What's up in the 8th
Lessons on how to pick a jury, how to get a search consent form signed, and how to get information if you're a cop. A half-dozen decisions from the 8th this past week, none of them in the case I argued waaaaay back on January 4th, but in one the judges decide to all hang out together.
After being arrested in a controlled drug buy, Lynell Tell was transported to the 2nd District police station, where he signed a consent form for his residence. The police went there, were met at the door by a female, and then procured her consent to search the house. Subsequently, Tell signs yet another consent form to search his car. Except that's where things get a bit funky; all of the police officers claim that Tell signed the consent form for the car at the scene, but none seem to remember how he got there. Tell, on the other hand, claims that he was asked to sign two forms in blank at the police station, and both he and the female claim he was never at the residence at the time it was searched, or at the time he supposedly would have consented to the vehicle search. The trial court found this testimony more credible, the state appeals anyway, and in State v. Tell learns to its sorrow that the appellate court's deference to a trial judge's factual findings is a two-way street.
There are two important lessons to be gleaned from State v. Rosa. One is that if you and hubby are going to have a 3-way with your neighbor's 15-year-old daughter, don't make notes of the whole thing and give them to the girl, and if you do, make sure you tell her not to leave them lying around in the bathroom where her mother can find them. The other is that if you challenge a juror for cause, you don't preserve the issue if you don't exercise all your peremptory challenges.
But do you also have to use peremptory on juror you challenged for cause? The opinion suggests that you do, citing language from the Supreme Court's decision two years ago in State v. Hale. Hale, in turn, is quoting the language from its 1990 decision in State v. Tyler, and the Tyler court cites the first paragraph of the syllabus from State v. Eaton in 1969. But if you look at Eaton, it says nothing of the sort; it only requires you to exhaust all your peremptories, which the defendants in Hale and Tyler (and Eaton, for that matter) hadn't done.
So which is right? Eaton. You can't claim you were prejudiced by the judge's failure to excuse a juror for cause if you squat with one of your peremptories still in your pocket, because you could have obviated the error by using that peremptory. But as long as you've used all of them, you've been prejudiced if you have to "waste" a peremptory on a juror that shouldn't have been seated in the first place. That's the point that Justice O'Connor made during oral argument in State v. Speer, the case involving the hearing-impaired juror (discussed here). And the court reversed the conviction in Speer, despite the defense obviously not having used a peremptory on the juror.
Officer Clayburn, one of Cleveland Heights' finest, responded to a call regarding a fight among three juveniles, and attempted to get information on the participants. He went to the home of Warren Lewis, the father of one of the girls, and found him recalcitrant: when he asked Lewis for the address of the house, Lewis told him to figure it out for himself, and similarly refused to provide information about his daughter. Clayburn arrested him, Lewis was convicted of obstructing official business, the judge gave him a $100 fine and court costs, and put him on six months inactive probation. Lewis asked the judge to stay the sentence pending appeal, but the motion was denied.
In Cleveland Heights v. Lewis, the court has no trouble reversing the conviction -- "mere failure to obey a law enforcement officer's request does not bring a defendant within the ambit of this offense" -- but there's an underlying issue: is the appeal moot because Lewis served his sentence? The court's latest decision on this issue held
“[u]nless one convicted of a misdemeanor seeks to stay the sentence imposed pending appeal or otherwise involuntarily serves or satisfies it, the case will be dismissed as moot unless the defendant can demonstrate a particular civil disability or loss of civil rights specific to him arising from the conviction.”
A thorny issue, so the court convenes en banc to decide it, all twelve judges participating. One judge finds that the appeal is moot, because Lewis didn't try to obtain a stay from the appellate court. The other eleven disagree; his serving his sentence was rendered involuntary by virtue of his request for a stay in the trial court, and he had no obligation to seek a stay in the appellate court.
But seven judges go further. The Ohio Supreme Court has held that completion of a felony sentence does not moot an appeal because of the "collateral consequences" of the conviction. Judge McMonagle writes a concurring opinion in Lewis arguing that misdemeanor convictions also result in collateral disabilities, such as disabling the defendant from possessing a weapon, precluding expungement of that or a subsequent conviction, subjecting one to sex offender registration requirements, and the like. In fact, so compelling is Judge McMonagle's opinion that one of the six judges joining it is the author of the majority opinion. And you don't see that too often. In fact, given that McMonagle's "concurring" opinion won the support of a majority of the court, it's entitled to the same precedential effect as the majority opinion.
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