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What's Up in the 8th

Either judges up here are getting tougher, criminals are getting worse, or some combination thereof:  229 years of sentences were meted out.  And that was in just two cases.

The defendant in State v. Daniel was the recipient of the 144-to-life sentence for his conviction of multiple counts of rape, aggravated robbery, and kidnapping.  Daniel's first claim is that the judge should have found him incompetent to stand trial, and Daniel certainly went the extra mile in trying to demonstrate that he was truly unhinged:  he feigned suicide after the first day of trial, and on the second "spread feces on himself and his holding cell." 

His claim was undercut by jail calls in which he asked his girlfriend to look up symptoms of schizophrenia.  If this were all, one might argue he was simply attempting to gather evidence for a self-diagnosis.  Alas, the calls included discussions of jury selection, the evidence, potential witnesses, an alibi, and circumstantial evidence, subjects not normally addressed by people who need a time-out at the Rubber Ramada.

The disconcerting aspect of the opinion in Daniel is its treatment of a witness who testified as to Daniel's location at critical times by analyzing cell phone data.  Daniel argues that the judge should have held a Daubert hearing as to the reliability of that methodology, but the court fluffs that off by saying that the witness wasn't an expert, and thus no hearing was necessary. 

An expert is defined as a witness who can provide testimony outside the knowledge of the lay juror, and it's hard to reconcile the court's determination on that score with the witness' credentials - bachelor's and master's degrees in computer science - and his testimony, which detailed the process by which he determined the location from which Daniel placed phone calls by reviewing the cell phone records, and then mapping that out with the cell phone towers. 

That this was beyond the ken of a layman was established on cross-examination, when defense counsel elicited the fact that there are various anomalies - bad weather, damage to a cell phone tower - which can cause the phone to connect to a tower that is not the closest to the phone.  Bewilderingly, the court finds that this evidence, which went far toward establishing that the witness was indeed giving expert testimony, was "invited" error, and could be discounted.

This isn't a situation where a guy gets on the stand, pulls out a bunch of cell phone data, and tells the jury, "You figure out where he was."  It may be that the technology is sufficiently well advanced and accepted to render a Daubert hearing unnecessary.  But to have the State introduce a witness with a lot of credentials and have him walk the jury through how he figured where the defendant was at a certain time by what cell phone towers his phone hit, and pretend he's not giving expert testimony, is a bit much.

Also somewhat questionable is the court's decision in State v. Shabazz, a non-support case.  Shabazz claims double jeopardy bars his prosecution because the juvenile court had found him in contempt of the support order, but the court correctly notes that that's civil contempt, not criminal. 

More problematic is its determination that the court could introduce the contempt order, on the theory that this proved the defendant had a support obligation.  A decent argument could be made that the original support order proved the obligation, and the burden was then on the prosecution to show that he hadn't met it; if the contempt order could bar his prosecution, it shouldn't have served as evidence for the prosecution, either.

The court does better work in State v. Primm, another aggravated murder case, where Primm testifies and explains that his excitement after the killing was due to the fact that he'd "never shot anyone before."  (That "excitement" entailed fleeing from the police and then, after hitting a building, getting out of the car and firing several rifle shots at the cops, which Primm explained by claiming that the rifle went off because he'd fallen down.)  The judge allows the State to introduce evidence of Primm's prosecution for aggravated murder three years previously, a charge for which he was acquitted, on the claim that this proved an absence of mistake or accident, an exception under EvidR 404(B). 

The court correctly finds that the evidence shouldn't have come in, because Primm wasn't arguing mistake or accident; he was claiming that he acted in self-defense.  That's the extent of the good news for Primm, because the court finds the evidence so overwhelming that the erroneous admission was harmless beyond a reasonable doubt.  So off goes Primm to Casa Kasich, no doubt somewhat depressed by the realization that when he gets done serving his sentence of life without parole, he's got another 85 years to go.

The court saves its best work for State v. Rodriguez, the only reversal of the week.  Rodriguez had pled to a couple of rape and GSI counts involving his pre-teen cousins, but comes in two months after sentencing with a motion to vacate his plea.  While a pre-sentence motion to withdraw requires a hearing, a post-sentence motion does not.  But this isn't a pro forma motion:  it includes affidavits from the two girls saying they exaggerated the claims, plus allegations that the defense attorney hadn't even interviewed them. 

The case is a factual quagmire, and that's the problem; the court finds enough there to warrant a hearing:

We recognize that the trial court had the power to evaluate the credibility and weight of the affidavits. But the traditional factfinding role of the trial court is based on its ability to observe the demeanor, gestures, and voice inflections of witnesses who testify.  In such a case as this one, where the defendant has raised at least a prima facie showing of merit, the more prudent course of action would have been to hold a hearing on the motion to withdraw the plea.

I'm not sure what's going to happen on the remand, but Rodriguez is in a lot better position than he was a week ago.


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