What's Up in the 8th
The prosecutor gets up at the sentencing hearing and derides
the defendant, claiming that he "tells stories" and won't accept responsibility
for his actions. Did I say
"prosecutor"? No, it was the defense
attorney who did that, and that forms the primary basis of the ineffective
assistance of counsel claim in State
v. Weems. (The other basis was
the failure to use a prior inconsistent statement of the victim, but all the
record shows is that when the lawyer tried to cross-examine the victim with it,
the State objected, an off-the-record sidebar ensued, and the subject wasn't
mentioned again. Gotta preserve that
record.)
The defense attorney was apparently cheesed off because he
had presented a theory to the jury that Weems was in his home at the time he
supposed assaulted a woman, only to have Weems take the stand and testify that
he was in Akron at the time. The attorney-client
relationship seems to have gone into full melt-down somewhere along the way,
with the lawyer telling the judge at sentencing that he expected Weems to file
a bar grievance against him. This
prompted the concurring opinion to comment that counsel's statements at
sentencing "did not serve any mitigating purpose," and "appeared
intended to circumvent any subsequent actions filed against him."
"Self-preserving statements during a client's sentencing are not
appropriate."
An interesting situation arises in State
v. Wicks. Wicks had pled to rape
and child endangering, and had been given ten years on the former and seven on
the latter, to run consecutively. One
problem: the judge had failed to tell
Wicks what the maximum sentence was on the endangering count. Being informed of the maximum sentence is a
non-constitutional right. Ordinarily,
the judge need only substantially comply with that requirement, and if he does
the defendant has to show that the failure to advise him of it was prejudicial,
i.e., he wouldn't have pled if he'd known it.
But not telling a defendant about the potential sentence isn't even
substantial compliance, so it has to come back.
What has to come
back? The dissent argues that since the
judge failed to inform the defendant only about the sentence on the child
endangering count, that's the only plea that should be vacated, and the rape
conviction should stand. I think the
majority has the better argument here.
They note that since the ten years for the rape was the only specific
sentence mentioned by the judge, Wicks might have believed that that was the
only sentence he could get. The
dissent's basic contention is that the court shouldn't treat this as a "plea
package," apparently borrowing the concept from the "sentencing package"
doctrine, which provides that the sentence for each offense must be treated
separately by the courts. But when a
defendant is entering a plea, it is a
package: he's concerned with his total
exposure, and failure to tell him what the potential sentence is for one of his
offenses doesn't convey the necessary information to him.
Two cases from last week seem intent on putting the lie to
my claim that the 8th District is the most 4th-Amendment friendly in Ohio. In State
v. Robinson, the police get call about a shooting, with the perpetrator
described as a Hispanic male, 6', with "thinner build," wearing black
clothing. Thirty minutes later they get a call from another person saying
that he overheard a black male wearing blue jeans and a red sweatshirt saying
into his cellphone, "hurry up and pick me up because the cops are looking
for me." A police officer sees Robinson, who's six feet tall, has a
medium build, and is wearing a red shirt and jeans, walk through a yard and get
into a Chevy Impala that was parked on the apron of a driveway, "raising
officer's suspicions" because of way it was parked. The officer follows it and, despite observing
no traffic violations, pulls it over. No
gun or anything else linking Robinson to the shooting is discovered, but the four
pounds of marijuana he's holding is. There's
enough "reasonable suspicion" for this panel to uphold the search; another
panel might well have concluded differently.
Somewhat more troublesome is the decision in State
v. Boiani. The police get a call
from Molly McGhee's, a local watering hole, that someone who was obviously
intoxicated had just left the bar. The
police go to the scene, interview the caller, and get a description of the
vehicle and a license number. They spot
the car a short time later, and again, despite observing no traffic violations,
they pull it over. Boaini, who's
driving, is quite obviously drunk, and his conviction for felony DUI subsequently
ensues.
In its 1999 decision in Miami
v. Weisner, the Ohio Supreme Court explained the different levels of "informants,"
and the extent to which the police could rely on their information. At the low end of the totem pole was
anonymous tipsters; information obtained from them couldn't provide the basis
for a stop unless the incriminating aspects of the tip were corroborated by
police observation. The next rung on the
evolutionary ladder is occupied by the snitch, someone who's known to the
police but is part of the "criminal milieu"; there, the police need to show
some basis for crediting the snitch's information, such as that he has supplied
accurate information in the past. At the
top is perched the "citizen informant," someone who identifies himself to the
police; his information is presumed reliable, at least if the citizen relates
the basis of his knowledge. The
informant here falls into the latter category, case closed.
Except that the informant here was drunk, too. We learn that in the majority opinion, but
the details are fleshed out in the dissent. The caller was known to the police department
as someone who frequently phoned in tips from that very bar about other drunk
drivers. (The officer who testified to
this acknowledged that he was unaware of how many of these tips, if any, resulted in people being
stopped.) Remember the old joke about "good
thing I drove because there's no way I could walk home in this condition"? Well, that was the situation with the
tipster: he was disheveled when the
officers arrived, and so intoxicated that they drove him home because they did
not believe he was able to walk there. The dissent makes a cogent argument that,
notwithstanding the various categories of informants, the baseline still is whether
the totality of the circumstances gives rise to a reasonable suspicion, and
where the informant is so drunk he can barely stand up, that's just not
reliable enough to warrant a stop.
Comments