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What's Up in the 8th

In State v. Carabello, the judge dismissed a case because the State hadn't provided full discovery by the trial date.  Read that sentence again; you're unlikely to see it anytime soon.

The State squawked and took it up on appeal, arguing that the judge should've conducted an evidentiary hearing on the discovery violation before dismissing it.  Here's where things get weird:  the State claims there was no hearing, but in their appeal filed a precipe asking for a transcript of the hearing.  Since no transcript was provided, the court presumes the regularity of the proceedings below.  What's more, no evidentiary hearing is really required; CrimR 48 simply specifies that the judge has to provide reasons for the dismissal, which the judge did, albeit ever so briefly:

Case called for trial. Outstanding discovery. Case is dismissed without prejudice. Over state's strenuous objection.

I've seen the State object strenuously.  It's not pretty.  The moral of the story, I suppose, is that if you wait until the day of trial to file supplemental discovery, be prepared to object strenuously when the judge dismisses the case.

The other weird thing about Carabello is why the case was appealed.  Remember, it's a dismissal without prejudice:  in the time it took the appeal to be heard, the State could have re-indicted and tried Carabello.  (In fact, the appellate court will not hear an appeal from a dismissal without prejudice in a civil case if it can be refiled under CivR 41(A).)  My guess is that the appeal was intended as a shot across the bow of judges who would dismiss a case for a discovery violation, and make the prosecutors do extra work.  Oh well.

The defendant in State v. Dennis raises eight assignments of error in an appeal from his convictions for rape and kidnapping.  There are a couple on insufficiency and manifest weight, there's an evidentiary issue with respect to the medical records, an instruction on lesser included offenses, one on consecutive sentences, an argument on merger, and two for ineffective assistance of trial counsel in failing to file a motion to dismiss for pre-indictment delay, and for DNA testing.

None go anywhere, and for the most part, rightfully so.  In the IAC claim on pre-indictment delay, for example, there's no showing of what other witnesses or evidence were lost in the twenty years between crime and conviction.

For the most part.  The court's work on the DNA testing, though, is troubling; essentially, the panel holds that independent DNA testing, and the funding for it, is not required unless the defendant can show a "particularized need."  For that, the court relies on the Supreme Court's 1998 decision in State v. Mason.

But Mason merely held that the defendant's right to expert funding was not limitless:  "due process does not require the provision of expert assistance relevant to an issue that is not likely to be significant at trial."  Mason sought expert funding for things like an expert on shoeprints and one on firearms.  He did in fact get funding for a DNA expert.

As for significance at trial, the DNA tests were the only evidence against Dennis, and it was a little on the sketchy side.  The tests initially came back positive for the victim's boyfriend, but a sample found on the waistband of the victim's pants, when tested twice, did show Dennis was the contributor, and another sample on the pants cuff "potentially" identified Dennis, whatever that means.  When the defendant's guilt will be determined solely by DNA evidence, it's hard to contend that the defendant can't show a particularized need because the issue "is not likely to be significant at trial."

The court's decision is somewhat defensible.  This came up, after all, on a claim of IAC for not asking for testing, rather than a trial court's denial of testing, and to reverse the court would have had to hold that failure to request DNA testing is per se ineffective assistance of counsel.  I wouldn't be surprised, though, if some prosecutors use Dennis to strenuously object anytime the defense requires expert funding for DNA.

Two appeals go nowhere.  In State v. Thomas, the defendant argues that some of the forgery offenses he was convicted of should have merged.  Maybe so, but it wasn't raised in the trial court, so it's reviewed only for plain error, and that rarely goes well.  The second assignment of error alleges that the restitution should have been apportioned between the co-defendants, but that wasn't raised at trial, either.

And State v. Zimmer, a child rape case, would seem to offer some interesting evidentiary issues on appeal:  at one point, the ex-boyfriend of one of the victims testifies that she told him, years later, that she had lost her virginity to the defendant.  Hearsay much?  But only issues raised on appeal are sufficiency of the evidence of the kidnapping count associated with the GSI, plus manifest weight.  And this was a bench trial.  Good luck in convincing an appellate panel that the trial judge "lost her way."

In Cleveland v. Maxwell, Maxwell tries to defend against an OVI charge by claiming that his swerving across multiple lanes was not due to his intoxication, but to the fact that he was attempting to text while driving.  He also argues that he couldn't properly perform the field sobriety tests because of the plate and screws in his head, which might also provide an explanation of why he was texting.  But his main claim on appeal is that his lawyer was ineffective for failing to file a motion to suppress the FST's.  It's clear, though, that the officer fully complied with the manual, so Maxwell is going to have plenty of time for texting without the hindrance of simultaneously attempting to drive a car.


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