What's Up in the 8th
Bad news for Old MacDonald, and for James Deal. The City of Bedford, one of Cleveland's 'burbs,
had seen fit to remove "one pygmy goat and four chickens" from Deal's abode,
and he contended that the city ordinance banning such animals was
unconstitutional. In Bedford
v. Deal, the 8th District delves into the intricacies of constitutional
analysis, finding that since "the maintenance of animals is not a fundamental
right," the ordinance need only survive rational basis scrutiny. The court notes that "raising goats and
chickens on so called 'urban farms' is increasing in popularity" -- a fact of
which I was blissfully ignorant, and can only pray that my neighbors remain
similarly unenlightened -- but concludes that the ordinance is "rationally
related to a legitimate governmental interest" in protecting the public safety
and welfare. Perhaps Deal, who handled
the case pro se -- imagine your
surprise -- would have had more luck had he argued for an originalist
interpretation: would the Framers have
believed that keeping animals was fundamental right? I'm not sure how Jefferson, Washington, and
some of the other large plantation owners might have come down on that issue.
The flight instruction gets another go-over in State
v. Hill, where Hill was convicted of a home invasion robbery solely on
the basis of fingerprint evidence. As I've
mentioned before, there are several cases holding that a flight instruction is
warranted when the defendant didn't have the good grace to stick around and
wait for the police to arrive at the scene of the crime. The court seemed to have cleared that up a
couple years back in State
v. Santiago, deciding that "mere departure from the scene of the crime is not to be confused with a
deliberate flight from the area in which the suspect is normally to be found." That's all that Hill appears to have done, but
the court nonetheless finds that the instruction was warranted, relying on a 9th
District case which concluded that an instruction could be given "where
the evidence established that defendant departed the scene, was sought for
questioning about the crime, and could not be located," and here the police
were "unable to locate" Hill.
Not the least of the problems with the court's analysis is
that in the 9th District case, the defendant was finally located -- in Florida. That's appropriate: the instruction should be given where the
defendant has fled the jurisdiction, or done something else indicative of a
consciousness of guilt, like fleeing from the police, or taking active steps to
avoid them. It shouldn't depend on the
degree of diligence the police use in finding a suspect.
State
v. Rivera teaches me something I didn't know: the State has to
prove venue, but you can't raise its failure to do so for the first time on
appeal. It also tells me something I did know: when
there's a bench trial, the judge's letting inadmissible evidence in will get a
pass unless there's something to indicate that the judge relied on it. A
year ago, in In
re C.T. (discussed here), the
court carved out an exception to the rule that a judge is presumed to disregard
inadmissible evidence: the presumption
doesn't apply if the judge overruled the defense objection to the
evidence. Although the Rivera court doesn't mention C.T., it comes to the same result. The claimed error was that allowing a
probation officer's testimony (over objection) violated EvidR 404(B), but the
trial judge specifically stated she would not use the testimony as proof of any
"bad acts" that Rivera might have committed in the past.
The court reserves the heavy lifting, though, for its
52-page opus in State
v. Rogers, an en banc decision
on what must be done in the trial court to preserve the issue of allied
offenses. That's not much of a problem where
there's a trial; there will be an ample record of the facts, and last year's
Supreme Court decision in State
v. Williams permits the appellate court to review the question de novo.
Thus, even where the concept of allied offenses is no more than a
distant rumor to the judge, prosecutor, and defense attorney -- as it was last
year in State
v. Trotter, where the defendant received sixty years on six counts of
rape and kidnapping which really should have merged into two -- the appellate
court can sort through the record and easily decide what should happen. The problem arises on pleas, as it did in Rogers:
he pled guilty in eight separate cases, and contends that his that two
counts of receiving stolen property in one should have merged, and so should
have the two counts of RSP and one of possession of criminal tools in
another.
The first issue is easily resolved: the indictment indicates the property was
stolen from two different victims in two separate houses, albeit on the same
day. Separate victims, separate animus,
so no merger. The second is more
problematic: there's nothing in the indictment,
the plea transcript, or the sentencing transcript which gives a clue as to
whether the offenses are allied or not.
The reason for the en
banc resolution is that the 8th has come down with two versions of how to
treat this. For the most part, the
decisions have held that the trial court committed plain error in failing to
address allied offenses, and remanded the case for that purpose. But in cases such as State
v. Lindsey (discussed here),
other panels have held that the failure of the defense to present any facts in
the trial court in support of its claim that the offenses might be allied
precluded a finding of plain error. Simply
put, an argument that something is plain error presumes that an error occurred,
and you can't make that presumption when there's no record showing that the
offenses might have been allied.
Whatever the merits of the argument, only one of the twelve
judges -- the author of the opinion in Lindsey
-- signs on to it. The others hold that
the defense's failure to raise the issue in the trial court doesn't preclude
appellate review, and the trial court commits plain error by refusing to
inquire where a "facial question" of allied offenses presents itself. The various opinions (majority, two
concurring, one dissenting) give thorough treatment to the issue, but they're
not going to be the last word: the court
certifies the decision as being in conflict with one from the 6th District, so
the Supremes will have the last word.
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