What's Up in the 8th
Who's that adorable moppet in the video below?
Why, it's Ryan Gosling, fresh from his audition for the
Mickey Mouse Club Musketeers. (He
doesn't look quite so adorable in this picture from his star turn in The Driver.)
So, why are you reading this here? Because it was probably that long ago that
the State won three search cases in the 8th in the same week.
Nothing particularly notable in the decisions. From State v. Harris, we learn that defacing
a prescription bottle is a first degree misdemeanor, and thus an arrestable
offense, providing one of the key events in Harris' journey to jail, where the
police find two bags of heroin in his underwear. (Lending credence to our mothers' warning,
"Do you know where that came from?") State v. Saleem teaches that the driver can give valid consent to search a car,
even if the owner is present, at least as long as the owner doesn't object. In State v. Green, the police have an arrest
warrant for Green, and claim that when they went to his house, they smelled a strong
odor of raw marijuana; on this basis, they got a warrant, searched the house,
and found a marijuana grow operation. Green's version is that the police
came, did a protective sweep of the house, and used that to get the warrant.
Quite possibly, but that's an argument you're going to win in the trial court
or not at all.
The Ohio State Bar Association gives a seminar each
September in Criminal Advocacy, and my friend John Martin, head of the county
PD's appellate division, and I have done the exact same gig there for the past
four years: I do an hour on evidence,
and he does an hour on preserving issues at trial for appeal. Two cases, State v. Davenport and State v. Wells, will provide him
additional fodder for discussion. One of
the key pieces of evidence in Davenport is
a CD containing various jailhouse telephone calls between Davenport and another
person, allegedly regarding the hiding of a gun used in the offense. There were actually four recordings, but
they're all on the same CD; parts of some were admissible and others not. The panel has not a clue as to which was
which. As is often the case when
recordings are played in court, the court reporter doesn't transcribe it; the record
simply notes, "recording played for the jury."
Trial attorneys often are unaware of how what happens in the courtroom
comes across in a transcript; I'm doing an appeal now involving two skilled
trial attorneys, where the transcript is filled with questions like, "And how
far was he from you at this point? About
where I'm standing?" Well, that
certainly limits it to someplace in the courtroom...
In Wells, the
police obtained identifications of Wells from several witnesses, and Wells
filed a motion to suppress, arguing that the identification procedures were
suggestive and didn't comply with the new statute on using photographic arrays,
RC 2933.83. At the hearing on the motion, the judge prohibited
Wells' attorney from cross-examining the witnesses as to the reliability of
their identification. Not a problem,
says the panel; the purpose of the hearing is to determine whether the
identification procedure was unduly suggestive, and when Wells didn't show
that, the question of the reliability of the identifications went to the
weight, not the admissibility, of the testimony. But the statute also provides that the jury
should be instructed to consider noncompliance with the statute in determining the
reliability of the identifications, and Wells argues that the judge erred in
not giving that instruction. The court
shrugs that off, too, first because no objection was made to the lack of an
instruction. (And objecting is the most
fundamental way to preserve the record.)
More significantly, while evidence of noncompliance was adduced at the
hearing, it wasn't presented at the trial, and therefore the jury would have
had no basis for determining what weight to give noncompliance.
That's probably an appropriate result, but the 47-page magnum opus in Wells is disturbing for another reason. When Wells was arrested in 2010 for a murder
he allegedly committed in 2006, he was on probation for another offense. It took 734 days to bring him to trial on
the murder, and the court painstakingly delves through the record to find that
only 226 of the 270 days for speedy trial had elapsed. But that's assuming that he wasn't in jail
solely on the pending charge; if he was, then he was entitled to the
three-for-one provisions of the speedy trial statute, meaning he had to be brought
to trial within 90 days. And a couple of
days before his arrest, he picked up a probation violation on another case, so
he was in jail on that during the two years it took to try him.
Two problems here.
While committing another offense is ordinarily a probation violation,
it's not if you committed the other offense before
you were placed on probation. Here,
the murder occurred four years before the offense for which he was being held
on the probation violation. If the
probation holder isn't valid, then you can't use that to take Wells out of the
three-for-one count. The court gets
around this; it allowed the State to supplement the record with the journal
entries and other material from the probation case, and found that the holder
was also because Wells had dropped a dirty urine.
The second problem is that the probation offense was only a
5th degree felony, with a maximum one-year jail term. That term would've expired a year before
Wells' trial. Wells should've at least
been entitled to the triple count provision from that point on, but the panel
says no, because Wells didn't appeal that case, and therefore whether the
holding of Wells beyond the one year "violated Wells' due process rights in the
probation case. . . is not before this court."
I'm sorry, but that doesn't make sense. Wells wasn't arguing that continuing to hold
him for the probation violation after a year violated his rights. (In fact, any appeal from that case would've
been moot; the judge terminated his probation when he sentenced him on the
murder conviction.) He was arguing that
the probation violation would have expired when he'd served a year in jail on
that, and the appellate court had everything it needed to make that
determination; this wasn't a situation where the lawyer had failed to put
something in the record. There was ample
evidence in the supplemented record to show that he couldn't be held beyond one
year on the probation violation, and once that happened, he should have
reverted back to the triple count for speedy trial purposes. There's lots of solid evidence against Mays,
and it's hard to cut a murderer loose for a speedy trial violation, but you get
the feeling that played too large a role in the court's determination of
whether that violation occurred.
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