Case Update
There are several cases that were argued before the Supreme
Court back in January and February where we're still awaiting opinions -- cases
on the application of Blakely to
minimum sentences, whether DNA samples can be obtained from anyone arrested for
a crime, a judge's participation in plea bargaining -- but the Court can work
quickly when it wants to. Just one month
after argument, the Court hands down its decision in Metrish v. Lancaster. Lancaster had been tried in Michigan for
murdering his girlfriend in 1995, and the jury convicted him, rejecting his
defense of diminished capacity. The
conviction was reversed, but by the time his second trial was to begin, the
Michigan Supreme Court had declared that the defense could no longer be
recognized. He claimed this violated his
rights; there is case law holding that the retroactive abolition of a defense by
a court is a due process violation, akin to a legislature passing an ex post
facto law doing the same thing. The
Court opted to write narrowly, Ginsburg's opinion for a unanimous Court saying
little about retroactivity, and instead focusing on the fact that the state
supreme court's intervening decision was based on its conclusion that the
legislature had actually abolished the defense back in 1975. The Ohio Supreme Court specifically rejected
the defense back in 1982.
Speaking of the Ohio Supreme Court, back when I started this
blog, I also did stuff on civil cases, like personal injury. I was reminded of that by the only decision
by the court last week, Marusa v. Erie Ins. Co., which was a
sequel to the decision in Snyder v.
American Family Ins., which I discussed when
it came down back in 2007. Snyder held that an insurance company
could exclude from its definition of an uninsured motorist a tortfeasor who was
exempt from liability on sovereign immunity grounds; Marusa holds that if the insurance company does include such a
tortfeasor in its definition, it does have to pay. That might seem self-evident, but the
decision was only 4-3. The majority
opinion also served to remind me why I stopped writing about stuff on civil
cases, specifically, this sentence:
Fortunately, the long and tortured
history of this court's jurisprudence regarding uninsured/underinsured-motorist
("UM") insurance coverage need not be retold for us to resolve the
case before us.
By comparison, allied offenses or disproportionate
sentencing is a walk on the beach.
Now, let's take a walk through the courts of appeals...
Ohio's drug laws elevate the crime one degree if the offense
is "committed in the vicinity of a juvenile."
That's defined as being within 100 feet of the juvenile, and it doesn't
matter whether the offender knows the age of the juvenile, knows the offense is
being committed within one hundred feet of the juvenile, or even whether the
juvenile actually views the commission of the offense; theoretically, a
defendant could be convicted of the offense if, unbeknownst to him, there was a
juvenile in the house next door. Or if
the "juvenile" hasn't even been born yet:
in State v. Brumbaugh, the 2nd District
holds that an unborn fetus which was delivered sixteen days after the drug deal
qualifies, based on the definition of "person" in the criminal code, which
includes "an unborn human who is viable."
The 2nd District makes up for that in State v. Howard. During a patdown, a police officer removed a
small container and opened it, finding cocaine powder. The trial court upheld the search based on
the officer's claim that suspects sometimes hid razor blades in "small
areas." The 2nd tossed the search,
correctly noting that if the police could use this to justify a search, "it
reasonably could justify almost any search."
An interesting decision in State v. Slane, where the 10th
District reverses and remands because the trial judge imposed consecutive
sentences without making a finding that they were not disproportionate to the
seriousness of the offender's conduct and to the danger he poses to the
public. What's interesting about the
case is that the State conceded the error.
Given the current state of the law on consecutive sentencing, I'm not
sure there is any such thing as an error that should be conceded.
Most people charged with drunk driving would be happy if it
got reduced to physical control, but not the defendant in State v. Taylor; after he tried the
DUI case to the bench and the judge found him not guilty of that but guilty of
physical control, he appealed, arguing that the latter wasn't a lesser included
offense of DUI. The 9th District agrees,
finding that while one can be convicted of DUI for operating a bicycle, that
wouldn't qualify under the physical control section; thus, it is possible to
commit a DUI without also committing a physical control violation, and so the
latter isn't a lesser included. Note
that this is only for trial; it doesn't preclude a court from accepting a
reduction from DUI to physical control, because the courts have held that the
defendant's agreement to the plea constitutes a waiver of any claim that the
pleaded offense isn't really a lesser included of the original charge.
Yeah, that'd do
it. This week's "The Headnote Tells
the Story" comes courtesy of the 5th District's decision in State v. Simon:
An OVI conviction under R.C.
4511.19 was supported by evidence showing that defendant had bought and
consumed alcohol on night in question, that she backed up while people were
near her car and turned her wheel in such a manner as to endanger people, and that
she disregarded the many screams to stop after she struck the victim and drove
over him.
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