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8th District Roundup

One thing that doing this blog has taught me is how much the law changes.  The US Supreme Court's decisions in Blakely v. Washington and Crawford v. Washington have dramatically altered the right to jury trial and confrontation, respectively.  The law on allied offenses has undergone three major changes in the past decade.  Sentencing law went through a major transformation with the reforms in 1996, another with the Ohio Supreme Court's 2006 decision in State v. Foster, and another with the sentencing reform package in 2011.

New trials for newly discovered evidence?  Not so much.  The lead case on that is State v. Petro, handed down the same year that The Harmonicrats "Peg O' My Heart" was edged out by Francis Craig's "Near You" on the Billboard 100 for 1947. 

Petro pops up in two of the four criminal cases decided by the 8th District last week.  In State v. White.  White had allegedly been a participant in an attempted theft from a drug dealer, which went south when somebody killed the dealer.  "Allegedly" probably shouldn't be a part of it, because White was convicted of aggravated murder and aggravated burglary, and shipped for 28 to life.

But White seeks to put "allegedly" back into the equation, proffering with his motion for new trial an affidavit from someone named Devon Johnson.  Johnson, one of White's fellow inmates, also happened to be the cousin of White's co-defendant, Harris, and claimed that Harris had told him that he and someone who was not White broke into the victim's house, and that Harris had actually been the shooter.

So here's the law from Petro.  A motion for new trial on the basis of newly-discovered evidence should be granted only if the evidence

(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.

Number Six is problematic.  As subsequent courts have recognized, any new evidence would necessarily impeach or contradict the evidence at trial, else there wouldn't be too much point to it.  The better view is that Number Six must be read in context with Number One:  if the new evidence merely impeaches or contradicts the earlier evidence, but not sufficiently so to raise a "strong probability of a different result," it's not good enough.

And that's what happens to White:  the judge, who sat through the trial, notes that four witnesses placed White inside the home at the time of the shooting, and cell phone records indicated he was in the area of the victim's house then, too.  In short, the judge isn't buying, and the panel isn't about to overrule him on that point.  Perhaps we should add another factor to Petro:  "(7) the evidence must be more than an affidavit from one of your homies saying you didn't do it."

The defendant in State v. Dues also tries to get out from under a lengthy prison sentence - eleven years for a major drug offender spec -- by asking for a new trial.  The police arrived at Dues' apartment with a misdemeanor arrest warrant.  As they approached the door, they heard loud music and talking.  When they knocked on the door and announced themselves as police officers, the music and talking stopped abruptly, replaced with the sound of people running around.  One thing led to another, the "another" being Dues eventual co-defendant tossing bags over the apartment's balcony, one of which contained over 100 grams of crack, and the other holding some $22,000 in cash. 

But Dues has an argument, and a good one:  the warrant was invalid.  It contained a statement that Dues "did knowingly cause or attempt to cause harm" to another person, but lacked anything showing probable cause to believe that an offense had been committed.  While that's not an unusual procedure in municipalities, the Supreme Court held a few years ago in State v. Hoffman that "a mere conclusory statement that the person whose arrest is sought has committed a crime is insufficient to justify a finding of probable cause." 

Dues' argument founders on Petro Factor No. 2:  the arrest warrant wasn't recently "discovered," it had been known all along.  It was provided to the defense in discovery before trial, and in fact had been the subject of a motion to suppress.

The opinion in State v. Fears, despite coming in at a hefty 38 pages, teaches but a solitary lesson.  If a social worker or SANE nurse testifies as to her opinion about whether a sexually abused child is telling the truth, that's a problem.  But anything short of that, including testifying about what the child told them, is coming in.  Call it statements for purposes of medical treatment and diagnosis, call it Evid R 807 testimony, call it Zelda, it's coming in.

In re K.A. also involves a Supreme Court decision, though one of slightly more recent vintage.  Seventeen-year-old K.A. had been charged with rape and kidnapping, and the judge referred him for a competency evaluation.  Despite a finding by the shrink that K.A. demonstrated "extremely low range of intellectual capabilities," and that two prior cases against him had been dismissed on competency grounds, the judge accepted a plea without holding a competency hearing. 

The State resorts to State v. Bock, a mere 30 years old, which held that while the statute makes a competency hearing mandatory once an evaluation had been requested, you don't need a hearing if there's adequate evidence in the record that the defendant is competent.  But in Bock, the defendant went to trial, testified, and gave other indications that he didn't think his attorney was the Easter Bunny.  Here, there was nothing more than a plea, and that's not going to cut it.


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