Case Update
While an opinion or two might be handed down before the end
of the year, SCOTUS closed out its argument calendar last week, with White v. Woodall, being the lone
criminal case. At the penalty phase of
Woodall's capital trial, the judge had refused to instruct the jury that they
couldn't draw any adverse inferences from Woodall's failure to make a
statement. Something often missed by
judges and attorneys is that a defendant's 5th Amendment right against
self-incrimination survives a conviction, as the Court held in Mitchell
v. US. That case, though,
involved a judge drawing an adverse inference from silence in determining at a
contested hearing the amount of cocaine Mitchell had distributed. Here, the issue was remorse: Woodall was contending that the failure to
instruct the jury not to make any adverse inferences could lead them to impose
the death penalty because they didn't believe Woodall was remorseful, and that's
a mitigating factor.
Or could be; the argument meandered into issues like whether
remorse was a mitigating factor or lack of remorse was an aggravating
factor. What's more, this was a habeas
case, and although that word was mentioned only twice in the argument, it's
likely to show up a lot more in the opinion.
Under the AEDPA, the habeas "reforms" passed by Congress in 1996, a
petitioner must persuade a Federal judge not only that state court decision was
wrong, but that it "was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States." While Mitchell and several other cases have
fiddled around the fringes of the question presented in Woodall, that the Court has never squarely addressed Woodall's
situation might be the means of avoiding addressing it here.
The Ohio Supreme Court also closed out oral argument for the
year, and the sole criminal case (besides a capital case) was State v. Limoli. At the time Limoli pled to possession of 9
grams crack cocaine, the offense was a third degree felony with a mandatory
prison sentence. Her sentencing, though,
came a few weeks after HB 86 went into effect, and one of the changes it made
was the abolition of the distinction between crack and powder cocaine. Under the new law, Limoli's offense became a
4th degree felony, with no mandatory time.
(In fact, if Limoli had no prior criminal record, she would have been
entitled to "mandatory" probation.) That
would seem to be resolved by RC 1.58(B), which provides that if the penalty for
an offense is reduced by a new statute, the defendant gets the benefit of the
reduction. The State relies, though, on State
v. Kaplowitz, a 2003 decision in which the Supreme Court held that
1.58(B) doesn't apply if the new law alters the nature of the offense, and contends that's what happened here: under the old law, that the substance was
crack cocaine was an element of the offense which the State had to prove, and
under the new law, it isn't. Hard to
handicap after watching the argument, but that gets back to Bensing's Rule of
Prognosticating Criminal Decisions: you're
not going to go broke betting on the prosecution.
In the courts of appeals, several notable 4th Amendment
decisions...
In Georgia
v. Randolph, the Supreme Court held that a tenant's consent to search a
house is invalid if the co-tenant is present and objects. The defendant in State
v. Cook makes a similar argument, but to no avail. Cook's girlfriend had given consent to search
their apartment, and when the police entered, Cook resisted to the point of
almost having to be tasered. The 1st
District finds that Cook made no express objection to the search, and holds
that resisting arrest isn't tantamount to refusing consent. The court also finds that despite a detective
noting that Cook seemed "dope sick" during his interrogation, the totality of
the circumstances indicated that Cook's being under the influence of drugs didn't
void his waiver of his Miranda rights.
If you've got a case involving a supposedly "consensual"
street encounter between the defendant and the police, State
v. Hawkins is a good place to start.
The 2nd District finds that the initial encounter wasn't consensual, and
the lack of reasonable suspicion for the stop meant that the police couldn't do
a frisk, even if they had a reasonable suspicion that the defendant was
armed. Most notable was the court's
handling of the issue of consent: it
held that since Hawkins didn't feel free to leave, his consent was
involuntary. That's key; there's case
law (which the opinion cites) holding that even with an illegal detention, the
court must still decide whether consent was voluntary under the "totality of
the circumstances." Hawkins essentially makes the issue of whether the detention was
illegal dispositive: if it was, the
consent's invalid.
Finally, State
v. Brown revives the distinction in search and seizure law between the
Ohio Constitution and the US Constitution.
Brown was stopped for a marked lanes violation by an officer who was outside
her jurisdiction. The jurisdictional problem
means the officer didn't have the statutory authority to make the stop, but
numerous cases have held that a violation of the statute doesn't require
suppression of the evidence found in the stop.
And under various US Supreme Court decisions, there's no jurisdictional
problem: the Court has held that any
violation of law, no matter how minimal, provides reasonable cause for a stop
under the 4th Amendment. But the 6th District
finds that under the Ohio constitution, "a stop made in violation of state law
is reasonable under the Ohio Constitution only when probable cause to make the
stop exists and the government's interests in allowing unauthorized officers to
make this type of stop outweighs the intrusion upon individual privacy." The court found that "no extenuating
circumstances were presented to justify an extraterritorial stop by township
police officers for this type of traffic violation," and suppressed the
evidence.
I'll second
that. In State
v. Thomas, the State agreed to recommend a three-year prison sentence,
but at sentencing the prosecutor indicated only that it had been agreed upon by
a previous prosecutor, and that his office would be bound by it. Thomas argues this reluctant recommendation
breached the plea agreement, but the court notes that "the State is not
required to be enthusiastic or convincing in giving its recommendation," and that the agreement "did
not commit [the prosecutor] to exude any particular level of zeal" in making
the recommendation.
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