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What's Up in the 8th - Part II

The 8th District handed down 15 decisions last week.  In eight of them, the defendants had fools for lawyers:  they acted pro se

Well, not all of them.  The defendant in State v. Anthony gets his sentence vacated again because the judge thought that giving concurrent time solved the problem of allied offenses.  It doesn't.  In State v. Brown, the judge didn't impose the mandatory fine on a drug conviction, so it back for resentencing, and Brown can submit an affidavit of indigency to avoid having it imposed.  If the judge imposes it anyway, the plea has to be vacated because nobody told Brown that there was a mandatory fine for the crime.  So the judge can decide not to impose the fine, or the case goes back on his docket.  Gosh, I wonder what's going to happen?

The rest of the lawyer-spurning crowd fares worse, but much of that failure can be traced to the intricacies of special writs and 26(B) motions.  In the former category, Chambers v. Gaul tells us that the incorrect caption -- it should've been State ex rel. Chambers v. Gaul -- is a sufficient reason to toss out a writ of mandamus.  And in State v. Tharp, a 26(B) motion alleging that appellate counsel was ineffective proves unavailing because of the rule that you can't argue your own ineffectiveness, and Tharp was represented in his appeal by -- you guessed it -- Tharp.

There were some more -- ahem -- substantive decisions.  One of them was State v. Harris, which involved the fact-intensive issue of sufficiency of the evidence to prove prior calculation and design in an aggravated murder case.

So we'll start with an abbreviated version of the facts.  Group A is chasing after Group B, because a member of Group B tried to rob a member of Group A.  Harris, a member of Group B, ups the ante by pulling out a gun.  He shoots Parker, a member of Group A, in the hand.  Parker hides behind a tree.  Harris keeps firing while approaching him, striking him again in the arm, then, at a range of three or four feet, fires a kill shot into Parker's chest.  Video surveillance showed that it was about ten to fifteen seconds between the time between the first shot and Harris' approaching Parker.  No other time is stated in the opinion, but it would appear that the whole thing took maybe twenty-five or thirty seconds. 

Last year, in State v. Walker, the Supreme Court considered a similar scenario:  a bar fight broke out, and Walker extricated himself from the fight, walked behind a pillar, and shot one of the opposing combatants in the back, killing him; twenty-two seconds expired between the time Walker got up and the time of the gunshot.  The court held that wasn't sufficient to establish prior calculation and design.  The decision relied heavily on the factors outlined in State v. Taylor:  whether there was bad blood between the defendant and the victim, whether there was thought and preparation in choosing the murder weapon or the murder site, and whether the act was "drawn out" or "an almost instantaneous eruption of event."

Although at first blush none of those factors would appear to be present, any more than they were in Walkers, the Harris panel comes to the opposite conclusion.  Walker says tomahto, the panel says tomayto.  The victim and Walker didn't know each other, and neither did Harris and Parker, but the relationship between the latter could've become strained because Parker was chasing Harris and taunting him.  Harris got the gun out of the bookbag, thus "choosing the murder weapon."  (What "thought and preparation" were involved in this isn't explained.)

Probably the key to the court's ruling was the fact that Harris continued to shoot at Parker after the latter was hit and trying to hide, and the execution-nature of the ultimate killing.  I think you could quibble with the result, but the court does analyze Walker and also considers numerous other cases on the issue; whatever the virtue of those decisions, clarity is not among them.  The lesson here is that while prior calculation and design is heavily fact-dependent, it's also heavily judge-dependent; of the 212 possible combinations of judges for a panel in the 8th District, I'd guess at least a third would have come to the opposite conclusion.

A few years ago the Ohio legislature decided to pass RC 2933.83, which spells out in painstaking detail the steps the police must take in order to do a photo lineup of the suspect.  The police have to put together packets of six pictures, a "blind administrator" -- one who has had no participation in the investigation, and doesn't know who the suspect is -- has to show the photos to the witness, and so on. 

The police don't do any of that in State v. Lennon.  In fact, it's a mess:  the witness came forward a week before trial, she testified that she was shown a single photograph of the defendant, and then the six-pack; the detective who investigated the case - and had since "left for a position in basic patrol," although the reason for that reverse career trajectory is left unexplained - confirmed that he had shown a single photograph, but denied he'd shown the six-pack.  He testified that he'd shown only the single photograph because the witness said she knew the shooter.

There are two issues here:  due process and compliance with RC 2933.83.  The court finds no violation of either.  The due process argument is easier:  while the showing of a single photograph can be suggestive, courts have upheld it where the witness knew the person she identified.

The court's treatment of the statutory violation is puzzling:  it concludes that since a photo lineup didn't occur, "R.C. 2933.83 does not apply to the issue of suppressing" the identification.  The statute was obviously enacted to address the problem of mistaken eyewitness identification, something studies show is the biggest reason for wrongful convictions.  It's one thing to say that showing a single photograph to a witness is not a due process violation resulting in the likelihood of an irreparably mistaken in-court identification.  It's an entirely different thing to say that it's not a violation of the statute. 

And while a statutory violation does not require suppression of the identification, it does require the jury to be instructed that it can consider the violation in determining the validity of the identification.  The court fluffs that off, too; since it found that 2933.83 didn't apply, the jury instruction wasn't required either.

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