The cop's on the stand, and the answers he gives are teres, but
pointed: the defendant was put in jail
in February, and he's stayed there until the trial. That's a no-no; you can't bring out the fact that
the defendant's in jail, because the jury might draw the inference that he's
there because he's unusually dangerous. That's
why jailed defendants come dressed for trial in street clothes, instead of the
orange jumpsuits. So this would
certainly seem to provide a basis for appeal of the conviction, on grounds of
prosecutorial misconduct.
Except it was the defense lawyer's questions which brought that out.
The defendant in
the 8th District's decision last week in State
v. Benitezraises that argument on appeal anyway, claiming ineffective
assistance of counsel. And so we are
introduced to the doctrine of invited error; simply put, it "precludes
a defendant from making an affirmative and apparent strategic decision at trial
and then complaining on appeal that the result of that decision constitutes
reversible error."
A
classic example of that is the case the court first cites, State
v. Doss, which I handled. Doss
was hired by a convenience store to collect on bad checks, and developed a
unique method of doing so: posing as FBI
agents, complete with blue jackets with yellow lettering, Doss and an associate
would visit the home of the person who'd written the check and advise them that
they'd be arrested if the check wasn't made good. After the pair's arrest, Doss' associate had
made a lengthy statement to police, unsurprisingly pinning most of the blame for
all this on Doss. This would normally
require separate trials, under the Supreme Court's 1968 decision in Bruton v. US, which held that the
introduction of a co-defendant's statement at trial implicating the defendant
violated the latter's constitutional rights, since he had no opportunity to
cross-examine the co-defendant. The
judge made Doss' attorney aware of this problem, but the attorney, for reasons
known only to him and his god, not only agreed to a joint trial, but went on
the record and specifically waived his right to claim a Bruton error on appeal.
The
court in Doss spent about 18 seconds
disposing of my argument that this constituted ineffective assistance of
counsel -- the opinion is a mere 10 paragraphs -- and given the record, that's
probably the correct result; this wasn't a case where the defense attorney
simply didn't recognize a Bruton issue. There remains a slight opening here,
though. In Doss, the court held that the decision to waive the Bruton issue "involves the
exercise of trial strategy, and the courts have repeatedly held that an
appellate court will not question matters of trial strategy." That's not entirely correct; you can find
cases which hold that a trial strategy can be so flawed in formulation or
execution that a tenable claim of ineffective assistance can be made. Whether that was the case in Doss, it certainly wasn't in Benitez:
Benitez was charged with violating a protective order granted to his
ex-girlfriend, which is why he'd been in jail for the past three months; the
defense theory was that she'd done this to get him out of the way so she could
be with someone else.
The court's work in State
v. Gastonis more problematic.
Gaston and his girlfriend were playing pool in the recreation room of
the Riverview apartments, with Glawacky next in line for a game. An argument ensued between Gaston and
somebody else, after which Gaston picked up two of the balls and walking into
the hallway. Glawacky chased after him,
asking him to return the balls. Gaston
expressed his disagreement with this suggestion by hitting Glawacky twice in
the face with one of the balls.
That was Glawacky's story, anyway. Gaston's was that he took the balls to take
to the security guard at the end of the hall to "straighten this out." Glawacky entered the hall behind him and
yelled, "you ain't nothing but a snitching mother-fucking bitch." Gaston turned and said, "come say to that my
face." Glawacky took up the offer,
charging Gaston and running into him, at which point Gaston struck Glawacky in
self-defense.
That was Gaston's story, anyway, so imagine his dismay
when the judge refused to instruct the jury on self-defense.
A defendant claiming the
use of non-deadly self-defense has to show two things: he wasn't at fault in creating the affray,
and he had a reasonable fear of physical harm.
The court decides that Gaston's claim founders on the first
element: by taking the pool balls off
the table so nobody else could play, by telling Glawacky to "come say that to
my face," and then by waiting for Glawacky to come down the hall toward him, "although
under
Gaston's version of the events he did not throw the first punch, it is apparent
that he was at fault in provoking Glawacky."
To be sure, one does not have to
throw the first punch in order to be the aggressor, and thus lose the right to
self-defense; the court cites five separate cases for the proposition that "a
person may not provoke an assault or voluntarily enter an encounter and then
claim a right of self-defense."
But is that what Gaston
did? The cases cited by the court are
not helpful to its decision; none involved a factual situation remotely like
this one. In most, the defendant had
engaged in some deliberatively provocative act, such as following the victim
into a parking lot to initiate a confrontation after an argument in a bar. (In fact, in one of the cited cases, State v. Gillespie, the defendant,
believing the victim had stolen from him, followed him to his mother's home,
armed with a shotgun; the court nonetheless found that the judge had erred in
not charging on self-defense.)
Gaston's act of telling Glawacky
to repeat his slur to Gaston's face, and waiting for him as he approached,
certainly cannot be deemed "provocative" to the point of forfeiting his right
to self-defense when Glawacky instead charged him. That leaves taking the pool balls. While that may have exhibited poor
sportsmanship, it seems a stretch to argue that this also sufficed to make
Gaston the "aggressor."
So it's the wrong result, by why
am I making a big deal about an obscure case?
You get the sense that the court didn't believe Gaston, and that's
probably for good reason. His story doesn't
hold up well, especially his denial that he hit Glawacky with the balls, a
claim that is wholly inconsistent with the damage Glawacky suffered. The judge probably didn't believe him,
either, which is why he didn't instruct on self-defense. But it's not the job of the judge -- trial or
appellate -- to weigh credibility in determining whether to give an
instruction. If the evidence raises it,
give it, and then let the jury figure it out.
That's their job.
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