What's Up in the 8th
So, which of the 8th District's decisions last week warrant extended discussion? The only thing interesting about State v. Werber is the extended chronology of his mostly pro se sojourn through the legal system, beginning with his conviction in 2009 in a trial in which - you guessed it - he represented himself. After a while, the recitation of every pitstop along the way to this latest decision begins to resemble a travelogue: "if it's Tuesday, it must be the 26(B) motion to reopen the decision for ineffective assistance of trial counsel." Werber's litany of woe centers on his claim that the court reporter in his first hearing filed a false transcript, which damned if I could make any sense of. Besides, since it was déjà vu all over again: Werber had made this same argument in one of his previous legal forays, so res judicata took care of that.
The defendant in State v. Spock has an attorney, and an enterprising one at that: he manages to fashion no fewer than seven assignments of error from a guilty plea. There are very good appellate attorneys who follow the maxim that you should assert every possible assignment of error; others believe that you should just go with your best arguments. I go with the latter, for several reasons, one being that with the first approach your best arguments sometimes get buried under the dross. That might have happened here. The 8th has been very good about holding judges to making the required findings for consecutive sentences, and the court concludes that the judge did so here. But the court quotes at length from the sentencing, and damned if I can see where the court made more than one: there's no mention that consecutive sentences are necessary to protect the public or punish offender, or that they're not disproportionate.
The one meaty decision in the bunch comes is State v. Conner, which clocks in at a hefty 51 pages. A tip for revelers: avoid the Sirrah house, a Cleveland nightclub "with a history of fights, shots being fired, and assaults." The past is prologue: a "large, fighting crowd" emerged from the bar on the night of the incident, and the police saw a man in a long-sleeved red plaid shirt (this was August) pointing a gun at somebody, and then at the police. The somebody Red Shirt had first pointed the gun at wound up dead, and Conner, aka Red Shirt, was apprehended after a foot chase.
Tip #2, this time for criminals: the "evil twin" defense doesn't work. It didn't this time; despite Conner's insistence that the shooter was actually his twin brother, a jury had little trouble convicting him of aggravated murder, and the judge less in sentencing him to life in prison with parole eligibility coming four decades from now.
The story of the shooting is complex, and it's not until page 14 that we come to the assignments of error, six in number. Actually, two; the other four deal with sufficiency and weight of the evidence, there's another on consecutive sentences, and one on prosecutor misconduct, but they all come to the inevitable bad end.
Cases are decided on the evidence (not the facts, mind you; there's a difference), and so it's common for an appeal to center on evidentiary rulings; I'd guess that over 50% of reversals come because the judge let evidence in he should have kept out, or the other way around.
And so it is here. Conner moved for mistrial four times during the trial, and presses the issue on appeal, knowing he only has to bat .250. He comes closest with the judge's admission of testimony by the police officer that someone claiming to be Conner's sister said to him, "What did you do now?" as he was being arrested. The court says, correctly, that this is an excited utterance.
But it misses the next step. Just because something falls within a hearsay exception doesn't mean it's admissible. Like all evidence, it has to be probative: it has to make something more likely than not. And I'm just not seeing how Conner's sister's statement, "what did you do now," makes it more or less likely that Conner murdered somebody.
The real centerpiece of the appeal is the testimony of Hollowell, who was interviewed at the crime scene, and fingered Conner as the shooter. By the time Hollowell took the stand, though, he'd contracted a bad case of Witness Amnesia, and professed no memory of that night. To jog his recollection, the judge let the prosecutor play the tapes of Hollowell's police interview. The judge told the jury not to consider this as substantive evidence, but only for impeachment of Hollowell, and I'm sure the jury did just that.
Complicating all this was that Hollowell had his own case pending in another courtroom, and the judge there decided he wasn't competent to stand trial. The panel decides that that doesn't make him incompetent to be a witness, and that's the right call: being unable to assist your attorney is different from being unable to testify accurately. And note to trial judges: make your record. The court's decision was immensely helped by the fact that the judge had done an extensive hearing on Hollowell's competency to be a witness.
So we're left with whether the prosecutor should have been allowed to impeach Hollowell with his prior inconsistent statements. Normally, you can't impeach your own witness, but the judge called Hollowell as a court's witness under EvidR 614, and in that case, the gloves come off for both parties. The only issue left is whether the prosecutor laid the proper foundation for introducing the videos. To do that you have to give the witness a chance to admit or deny that he made the prior statement. If he denies it -- and "I don't remember" qualifies as a denial -- you've established the foundation, and you can put somebody on the stand to testify that the witness did indeed make the statement.
And after 51 pages of that, we never do learn whether Conner even had a twin.
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