What's Up in the 8th
If I had a dime for every rape or domestic violence defendant I've had who assured me that the victim wouldn't show for trial, I could have retired years ago. My retirement would have been on the same schedule if I got a dime for every victim who did show up, despite my client's assurances.
Such is the unfortunate plight of the defendant in State v. Williams. In fact, so flummoxed is Williams by the victim's appearance that when she takes the stand, he blurts out, "Man, what are you doin'? You just wrote me and told me you weren't coming." When the inevitable conviction occurs, Williams appeals, claiming that the jury was tainted by his outburst.
That's chalked up to invited error, and Williams' other nine assignments of error meet a similar fate. Of interest is the fifth, a claim that the trial court erred in permitting evidence that Williams had attempted to hang himself in his cell the night before trial. Here we learn that the defendant's suicide attempt is admissible as proof of consciousness of guilt. The ultimate flight instruction, I suppose we could call it.
Some of the other decisions last week provide other useful tips. If you shoot someone and steal his money, State v. Simmons teaches, and there's blood all over it, simply bleach it and let it dry on the radiator. In State v. Sinclair, we learn that no, you can't claim self-defense if the owner of the store you're trying to rob pulls out a gun and shoots you, and you shoot back, killing him, and no, you don't get separate trials if you rob two stores in an hour's span of time.
Several pointers in State v. Lenard, where Lenard has his conviction affirmed for selling houses that don't belong to him, the fourth time that's happened. One is that caveat emptor doesn't apply in that situation. Another is that you don't have to actually be the records custodian to testify about business records; all that's necessary is for the person to have "sufficient familiarity" with how records are kept. Finally, just because the witness can't identity the defendant in court doesn't mean the State can't introduce evidence of the identification in a previous photo array.
But this leads to the question: what kind of trial prep results in the witness not being able to identify the defendant in court? Just explain the seating arrangements in the courtroom, and if the witness knows what table the guy's at and can't pick him out, the defendant's got one seedy-looking lawyer.
There are cases of more substance. One is State v. Caldwell. Robbery and burglary are normally probationable, but not if the defendant has a prior conviction for robbery or burglary; in that event, it's mandatory prison time. Caldwell finds himself on the wrong side of this. (He probably would have gone to prison anyway, but the mandatory nature of the sentence precludes judicial release.) One problem: there's no prior conviction specification in the indictment.
Caldwell argues on appeal that giving him a mandatory sentence violates the Ring/Apprendi/Blakely line of cases, which holds that the maximum sentence which can be imposed on a defendant is one based on facts found by a jury or admitted by the defendant. That would nix a mandatory sentence, but the court sloughs that off by noting that Caldwell also pled guilty to having weapons under disability, and that count did include the prior robbery conviction, which served as the basis of the disability.
Probably the most interesting case of the lot is State v. Smith. Smith pleads guilty to participating in a criminal gang, but on appeal asserts that he didn't understand what he was pleading to, an argument based on the sentencing colloquy. Under the judge's probing questions, Smith claimed to be a member of the J Park gang, which, according to him, had no other members. The person in the gang charged with enforcing gang rules, especially the "no-snitching rule," had been killed five years earlier, and that essential position had gone unfilled. The colloquy culminates with this exchange:
THE COURT: So you operate on your own, the gang has no leader, no one can enforce the no snitch rule, why be in a gang? What is the purpose of being in a gang that has no leader, has no rule enforcement?
[SMITH]: I can't really explain it to you.
Smith makes two arguments from this: that he did not understand what the charge of participating in a criminal gang meant, and that he was only a nominal or passive member of a gang, and that's insufficient to support the charge.
The latter contention relies upon an earlier 8th District decision, but there the defendant went to trial, and the case dealt with sufficiency of the evidence. As the panel points out, here Smith pled guilty to the charge, thereby relieving the State of its burden of proof.
The court's treatment of Smith's first argument is a bit rockier. In fact, the panel never really deals with it, stating at one point that "Smith does not contend that he did not understand the nature of the charges." Well, that's precisely what Smith is contending. The court treats this as a claim of innocence, but whether the defendant is actually innocent of the charges and whether he didn't understand what he was pleading to are two separate contentions.
The court's reluctance to differentiate between the two bleeds over into its other basis for rejecting Smiths' claim: the case law holding that protestations of innocence at the sentencing hearing cannot be used to invalidate the earlier plea. (A motion to withdraw the plea would be the appropriate vehicle.) But again, Smith is contending that he didn't understand the charge he pled to, and what he said at the sentencing hearing, or just about anyplace else, is relevant to that determination.
That's not to suggest that the court's decision is wrong. One might reasonably ascribe Smith's statements at the sentencing hearing to an effort to minimize his guilt and thus mitigate his punishment. If so, it proved spectacularly unsuccessful; the judge, rejecting a recommended sentence of between 3 and 5 years, gave Smith 8½.
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