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What's Up in the 8th

The 8th District's decisions last week in State v. Shropshire and State v. Simes provide further proof that Clevelanders are a tough crowd.  Simes comes home to find her boyfriend in a dalliance with another woman, things get understandably heated, with the upshot being Simes stabbing said boyfriend in the side.  Despite losing a quart of blood, he has the presence of mind to tell her to toss the knife in a neighbor's bush, and then not cooperate with the police when they arrive.

Simes eventually leads the police to the knife, and urges the affirmative defense of duress, pointing to the fact that Boyfriend beats her frequently.  That requires proof of an immediate threat of death or great bodily harm, though, and the panel decides that Boyfriend didn't pose a threat to anyone while he was bleeding all over the living room floor.

The victim in Shropshire is shot fourteen - count'em, fourteen - times, but survives to finger Shropshire as the shooter.  That results in a ten-count indictment, including a weapons under disability charge.  Shropshire tries the latter to the bench and the first nine to a jury.  The jury is accommodating:  it acquits him of everything.  The judge not so much:  she found Shropshire guilty of the weapons charge and shipped him off for sixteen months.

This happens with surprising regularity, and the appellate courts shrug it off by noting that inconsistent verdicts aren't a basis for reversal.  Which is true, normally; in fact, there's a US Supreme Court case extolling the merits of inconsistent verdicts, on the theory that they allow the jury to come to a compromise and exercise leniency if it deems it appropriate.

I don't see how that applies in this situation.  This isn't a "compromise" verdict:  the judge is coming to a decision that's directly contrary to what the jury found.  That's not really a problem in this particular case; there was proof that Shropshire possessed a gun independent of the shooting.  But there doesn't seem to be any legal or logical justification for a judge to conclude that a defendant possessed a gun in a shooting when the jury found that he didn't shoot anyone.

Shropshire presents an additional problem, though, one that it shares with State v. Graves.  In Shropshire, the judge allowed testimony, over objection, of a detective about Shropshire's gang affiliation.  The judge limited the testimony, and the panel founds no error in its admission, but says that even if it was, the presumption that a judge considers only relevant, admissible evidence.  In Graves, the judge allowed testimony that he'd been indicted for "pistol-whipping" his girlfriend, although he'd been acquitted of that.  The panel agrees this was improper, but this was a bench trial, and so the presumption kicks in again.

A few years back, the 8th made some excellent decisions on this in In re C.T. and State v. Schillo; both cases held that the presumption that the judge considers only relevant, admissible evidence disappears if the judge admits the evidence over objection.  That makes sense:  as the court noted in C.T., when a court admits evidence over objection, it is "counterintuitive" to conclude that the judge "would then proceed to disregard that same evidence as being irrelevant, immaterial, or incompetent when rendering its judgment."  And the language in Schillo is even better:

With all due respect to the various trial judges who sit as the trier of fact in countless cases each year, the fact that a defendant forgoes a jury trial is hardly an excuse to give the state free rein to admit any and all evidence on the presumption that the trial court will separate the wheat from the chaff.

That's not to say that the result in Shropshire or Graves is wrong; as mentioned, the panel found no problem with the evidence in the former case, and the attorney in Graves didn't even object to the testimony.  Still, if you're doing a bench trail - or you're appealing from one - make sure you have a copy of C.T. and Schillo handy.

State v. Davis shows that there's a big difference between an agreed sentence and a recommended sentence.  In the midst of a trial for multiple counts involving a shooting, Davis agrees to testify against the co-defendant in return for a plea to one count of felonious assault with a one-year firearm spec and one count of weapons under disability, with a recommended 3-year sentence.  After he's beaten up in the jail and his family is threatened, Davis' instinct for self-preservation kicks in, and he reneges on the promise to testify.  The State asks for a sentence of five to seven years, and the judge gives him ten.

Davis argues that the judge should have vacated the plea, and that's what would have happened if it had been an agreed sentence:  the judge would have had the choice of vacating the plea, or imposing the agreed three years.  But as long as the judge advises a defendant that he has the discretion to reject an agreed sentence, he can do just about anything he wants.  In fact, the judge could've given Davis ten years even if Davis did testify against the co-defendant.

The defendant in State v. Bennett is the first victim of the 8th's en banc decision a few weeks back in State v. Anderson.  For a number of years, judges have been handing down "split" sentences:  imposing a prison sentence on one offense, and community control sanctions on the other, with the latter to commence after the prison sentence is served.  Anderson put an end to that:  the judge can either impose a prison sentence on everything, or community control sanctions on everything, but not both.

A couple of points.  First, neither party raised the issue; the court raised it on its own.  Keep that in mind if you've got an appeal where the judge imposed split sentences:  only the community control sentence will be vacated, but that raises the possibility, however small, that the judge will impose consecutive sentences on the remand.

Second, the Supreme Court is likely going to have the last word on this:  last week, the 8th certified a conflict.  

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