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What's Up in the 8th

A couple years ago, the 8th District was throwing out aggravated murder convictions left and right for insufficiency of evidence of prior calculation and design.  The prosecutor's office appealed each one of them, their apoplexy at the result increasing exponentially as each decision came down.  The Supreme Court finally agreed to hear one of them, State v. Walker (discussed here).  To the State's continued distress, the Supreme Court affirmed.

The closeness of the 4-3 decision reflects the murkiness of the issue:  prior calculation requires more than premeditation, but the line is blurred.  The court in Walker relied heavily on an earlier decision, State v. Taylor, in which the court articulated three factors to consider in deciding prior calculation and design:  whether the victim and the defendant knew each, especially when there was bad blood between them; whether the defendant exercised some thought and preparation in choosing the murder weapon or the murder site; and whether the killing was drawn out or an "instantaneous eruption of events."  I said at the time that Walker meant that at least one of the Taylor factors had to be present for a finding of prior calculation and design.

Which proved to be as prescient as my prediction that the American public would never elect an egomaniacal orange-haired loon as president.  

One would have thought that the affirmance in Walker would have allowed the 8th to go its merry way and continue tossing aggravated murder convictions.  Instead, the 8th has done a 180.  First was the decision last November in State v. George.  Two men went into a convenient store, came out and started walking away, when the victim and his son pulled into the parking lot.  George and the other man turned, took shooting positions, and fired at both the son and father, killing the latter. 

Then there was State v. Harris, just a few weeks ago.  Harris, being chased by another group, pulled out a gun, shot one of his pursuers, then closed in on him and fired a kill shot to the chest.  And last week there was State v. Lash.  Lash was convicted of killing someone in a bar, an event which occurs in Cleveland with the frequency of cloudy days.  The evidence that Lash was the shooter is a bit sketchy, but we'll leave that alone.  The evidence of prior calculation and design was that he fired two shots at the victim, paused for a second or two, and fired five more.

The court found prior calculation and design in each of these cases, and what they have in common is the absence of any of the Taylor factors.  There was no evidence that the shooter and victim knew each before the incident.  George and Harris didn't "choose" the murder site; the victims happened to show up where George and Harris were.  And it strains credulity to argue that Lash selected a crowded bar as the ideal location for a shooting.  In Harris, the time between Harris' pulling out a gun and his shooting was no more than half a minute, around the same time as it took Walker to kill his victim.  There was no evidence in any of the cases of the defendants putting any sustained thought into the killing.

Instead, in each case the panel relied on case law which holds that a jury can infer prior calculation if the killing is done "execution-style." 

To be sure, there is substantial case law to that effect, typified by another case a couple weeks ago, State v. Wilson, in which the defendants broke in to the victim's home, went into her bedroom, and shot her nine times while she was sleeping in bed with her two young children.  The cases cited by Lash all involved "pursuing and killing an incapacitated victim after the initial confrontation."  Wilson easily clears that bar.  George is more problematic; the court there relied heavily on its conclusion that the defendants had taken up positions to maximize their chances of hitting the victim.  Harris clears that bar, if barely.  Lash does not.

State v. Wynn provides an important lesson for conduct of our daily lives:  "For the purposes of instructing on the appropriate assault offense, this court has held that a person acts 'knowingly' as opposed to 'recklessly' when he punches another person in the face."  Wynn did this to his girlfriend, and presents eleven assignments of error from his conviction for felonious assault.  Some of them are actually well-thought out and presented. 

Not that it does him any good.  No, the State shouldn't have introduced evidence of his arrest, which involved drugs, but it's harmless error.  No, the judge shouldn't have instructed on flight, but it's harmless error.  No, some of the photographs shouldn't have been introduced, but -- all together now --it's harmless error.

Apparently, the only thing about the case that wasn't harmless error was Wynn punching his girlfriend in the face.


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