Upcoming Events

Next meeting: February 18, 2010, at 6:00 PM at John Q's on Public Square. Scott Hurley will present a seminar entitled, "County Corruption, County Reform: A Defense Lawyer's Primer." A reminder: in order to receive CLE credit for the seminar, you have to be a member in good standing. If you haven't paid your dues yet for this year, please contact Dave Rowthorn at 781-2787.

Annual Retreat: The CCDLA annual retreat will be on June 4-5, 2010, at Mountaineer Racetrack and Casino in West Virginia. The retreat will feature a 3-hour seminar on Friday afternoon, a reception, a golf outing on Saturday, and the evening dinner, at which we will honor attorney David L. Grant with out lifetime achievement award. Further information concerning the outing will be mailed to members.

LISTSERV UP AND RUNNING: The CCDLA Listserv has been started, providing an excellent way of exchanging information and ideas with other Cuyahoga County criminal attorneys. If you're not a member, you can try it out for free for sixty days. See Member Benefits for further information.

Decision of the Week

1/18/2009
In State v. Lenard, the 8th District holds that the quantum of evidence necessary to establish a violation of community control sanctions is only "substantial" proof, not proof beyond a reasonable doubt.

1/11/2010
In State v. Whitfield, the Ohio Supreme rules that when offenses merge because they are allied, the prosecution gets to pick which offense the conviction will be on. Furthermore, the merged offenses remain as "findings of guilt."

1/4/2010
In State v. Jennings, the 10th District decides that Batson does not apply to prohibit use of a peremptory challenge in voir dire to remove a juror for religious reasons.

12/28/2009
In State v. Smith, the Ohio Supreme Court holds that where the police seize a cellphone incident to an arrest, they must obtain a search warrant before examining the cell phone's contents, unless the police can show it is necessary for officer safety or to prevent the imminent destruction of evidence.

12/21/2009
In State v. Hitchcock, the 8th District reiterates that an attorney can waive the defendant's speedy trial rights without the consent of the defendant.

12/14/2009
In State v. Jones, the 6th District agrees with other courts which have held that victim’s requiring medical treatment satisfies “serious physical harm” element of felonious assault

12/7/2009
In State v. Collins, the 6th District rules that counsel has no duty to discuss an entrapment defense prior to a plea, so failure to do so is not grounds for vacating a post-sentence plea.

11/30/2009
In State v. Rodriguez, the defendant had taken a woman from a phonebooth at gunpoint, driven her forty blocks away, and then raped her. The 8th District holds that although the two offenses, rape and kidnapping, do not merge, the firearms specifications for those offenses do, since they were all part of a "continuous transaction."

11/23/2009
In State v. Robinson, the Ohio Supreme Court decided reverses the 4th District's decision vacating the conviction of a defendant charged with disrupting public services. The defendant had taken away the victim's cell phone and smashed it during a domestic disturbance, but the 4th had held that the statute prohibited only a "substantial" interference with public emergency systems, not the destruction of a single phone. Other appellate districts had concluded to the contrary, and the Supreme Court unanimously sides with them.

11/16/2009
In State v. Hall, the 2nd District held that a nurse who stole drugs from a hospital did not hold a "position of trust" barring her from seeking treatment in lieu of conviction; other appellate districts have held to the contrary, and the issue is pending before the Supreme Court.

11/9/2009
In State v. Johnson and State v. Peck, the 8th District reverses the trial court's imposition of a sentence of "time served," where the trial court didn't first obtain a presentence report. The appellate court holds that jail time is an appropriate community control sanction, but that such a sanction also requires the court to impose some period of supervision by the probation department. It also requires first obtaining a pre-sentence report.

11/2/2009
In State v. Harrington, the 1st District upholds the trial court's sua sponte giving of a jury instruction on complicity in response to a jury question during deliberations.

10/26/2009
In State v. Hall, one of the jurors had overheard a conversation between the defendant and her sister in the restroom just before the second day of trial. The juror reported it to the judge, and told the judge that after hearing the conversation she believed that the defendant was "pond scum" and wouldn't believe anything she said. The 6th District reverses the ensuing conviction, holding that defense counsel was ineffective for failing to ask that the juror be removed.

10/19/2009
In State v. Brown, the 3rd District holds that act of having the victim touch the defendant's penis, of the defendant touching the victim's breast, and then touching her vagina with his penis after ejaculating, were three separate acts warranting three convictions of gross sexual imposition.

10/12/2009
In In re Minnick, the 3rd District affirms the denial of a motion to suppress the results of the breathalyzer. The court held that the defendant couldn't raise the issue of whether the test was taken in compliance with health department regulations because the motion didn't specify that as a basis for seeking suppression.

10/5/2009
In Toledo v. Lanier, the 6th District holds that service of a protection order is not an element of the crime of violating the order.

9/28/2009
In State v. Cargile, the Ohio Supreme Court unanimously reverses the 8th District, and holds that a defendant who is arrested and then discovered to have marijuana on him at the time of booking can be prosecuted for conveying drugs into a detention facility, under RC 2921.36. The police had asked Cargile if he had drugs on him before taking him in, and he told them no. The decision leaves open the question of whether Cargile could have been convicted if he'd simply remained mute, or if the police hadn't asked him at all.

9/21/2009
In State v. Caldwell, the 8th District reverses a trial court's dismissal of an indictment. The defendant had been charged with failure to register under the AWA, and after a hearing, the trial judge agreed with his argument that the court in his earlier proceeding had determined that he was "a sexually oriented offender who is exempt from registration." The appellate court reverses, holding that a dismissal of the indictment is warranted only if the indictment is defective and fails to allege a crime; there is no criminal procedure counterpart to a summary judgment.

9/14/2009
The police conducted an undercover buy of drugs from defendant, but made no attempt to arrest him until three weeks later, when they did so as part of a traffic stop. In State v. Jones, the 2nd District says that the police had a reasonable opportunity to obtain an arrest warrant, and their failure to do so makes the arrest unlawful, and requires suppression of the items they seized at the time. Interestingly, this issue was not raised in the lower court or on appeal; the court came up with it on its own.

9/7/2009
We're back here, too. The big decision out of Columbus was State v. Hunter, which held that State v. Foster did not abolish the add-on sentence for Repeat Violent Offender specifications, it simply eliminated the requirement that the trial judge had to make certain findings in order to impose them.

5/25/2009
In State v. Block, the 8th District holds that Rule 11(C) does not require a trial court to advise a defendant at a plea hearing of his right to counsel, where he is represented by retained or appointed counsel at the hearing, the court inquires he's satisfied with counsel, and he responds affirmatively.

5/18/2009
In State v. Tayor, the defendant pled no contest to a drug charge with stipulation by both parties that court would conduct an evidentiary hearing on whether there was a sufficient evidentiary basis for schoolyard spec. At the hearing, after taking evidence from two state witnesses, the trial court refused to hear a defense witness who would have testified that the offense took place more than 1000 feet from a school, holding that the no contest plea constituted an admission to the facts of the state's case, and couldn't be contested. The 8th District agrees that the defense can't present evidence in this situation, but reverses, saying that defense counsel misunderstood the effect of the no contest plea, and therefore the plea wasn’t entered knowingly.

5/11/2009
In State v. Bess, the defendant had fled Ohio in 1989 after his stepdaughter alleged sexual abuse. He was arrested and brought back to Ohio in 2007, at which point his stepson also claimed that he'd been abused by Bess in 1991. The trial court dismissed the case on the grounds that the statute of limitations on the stepson's case had run, but the state appealed, claiming that the statute was tolled under RC 2901.13(G) because the defendant had left to "avoid prosecution." The 8th District affirms 2-1, the majority holding that the phrase only applies to the instant offense for which the defendant allegedly fled -- the stepdaughter's accusation -- and not to any other offense.

5/4/2009
In State v. Brooks, the trial court had dismissed an indictment, finding that a previous grand jury had no-billed the case, and the grand jury which had issued the indictment had received even less evidence than the first grand jury had. The 8th District reverses, holding that there’s no prohibition to submitting case to subsequent grand jury after first one no-billed it, also says that adequacy of evidence is not ground for dismissing indictment.

4/27/2009
RC 2950.11(F)(2) provides that a court can exempt a sex offender from the notification requirements of the Adam Walsh Act if it finds, after a hearing, that the offender would not have been subject to the notification requirements under the prior law. In State v. McConville, the 9th District upholds the trial court's determination to exempt the offender, who had been convicted of rape of his fiancee, agreeing that under the circumstances of the offense, the defendant would not have been designated an habitual sex offender or sexual predator under the prior law.

4/20/2009
In State v. Boswell, the Ohio Supreme Court holds that when post-release controls have been improperly imposed at a defendant's sentencing, the sentence is void, and if the defendant moves to vacate his plea, the motion must be considered under the more lenient pre-sentence standard, rather than the standard for evaluating post-sentence motions to vacate, which require that the defendant show a "manifest injustice."

4/13/2009
In State v. Silverman, the Ohio Supreme Court holds that a child does not have to be determined to have been competent in order to allow admission of his hearsay statements under Evidence Rule 807, essentially overruling its 1994 decision in State v. Said.

4/6/2009
In State v. Rivas, the defendant had been charged with importuning. The State provided the defense with a transcript of the conversations between the defendant and his intended victim, who, to no one's surprise beside the defendant's, was actually a detective. The defense sought a motion to compel the State to produce its computer for inspection by the defendant, alleging that the transcripts were not accurate, but the trial court denied the order. The court of appeals reversed Rivas' conviction on this ground, but the Supreme Court reverses that, holding that in order to warrant such disclosure, the defendant must make "a prima facie showing that the information in the transcript is false, incomplete, adulterated, or spoliated."

3/30/2009
In Rivera v. Illinois, the defendant had sought to exercise a peremptory challenge to a juror, but the trial court blocked it on the grounds that it violated Batson v. Kentucky. The appellate courts later determined that the judge's finding was improper, and that the juror should have been excused. The defendant argued that this required his conviction to be reversed, but the US Supreme Court unanimously disagreed, holding that as long as the juror seated in criminal trial are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial judge's good-faith error in denying a defense peremptory.

3/23/2009
In State v. Thomas, the 1st District reopens a case under App. Rule 26(A) and holds that the defendant's convictions should have been merged, despite the fact that the defendant's convictions occurred in 2002, and the court of appeals had affirmed the case (and the allied offense issue) in 2003.

3/16/2009
In State v. Thomas, the 1st District grants a motion to reconsider a decision it had made in 2002, in which it had held that defendant's convictions for two counts of felonious assault, one under the "deadly weapons" section and the other under the "serious physical harm" section, were not allied offenses. The court now concludes that, in light of subsequent decisions, the offenses should have merged. It vacates its previous decision and merges the two offenses.

3/9/2009
In Vermont v. Brillon, the defendant had spent three years in jail awaiting trial for a domestic violence case, largely because a number of his appointed counsel (he had six of them, through the public defenders office) sought extensive delays because they were unprepared. In a 7-2 decision, the Supreme Court holds that actions (or inactions) of assigned defense counsel cannot be charged to the state for speedy trial purposes.

3/2/2009
RC 2929.41(A) requires that any misdemeanor sentence be run concurrently to any felony sentence. In State v. Trainer, the 2nd District notes that the Ohio Supreme Court declared 2941.25(A) unconstitutional in State v. Foster. The court reached that result in Foster because it concluded that the statute was part of the legislative scheme which required judicial fact-finding for imposition of consecutive sentences. The court in Trainer concludes that this means that courts now have the power to impose a misdemeanor sentence consecutive to a felony sentence.

2/23/2009
In various felonies, such as domestic violence and OVI, the state has to prove prior misdemeanor convictions. In State v. Dowhan, the 11th District says that a defendant can collaterally attack such prior convictions only by showing they were uncounseled; he cannot attack them on the grounds that the judge in that case failed to comply with a statute or rule in taking the plea.

2/16/2009
In State v. Rodriguez, the 12th District affirms the perjury conviction of a woman for giving false information in order to obtain a civil protection order.

2/9/2009
In State v. Bradley, the 8th District rules that the trial court erred by not granting the defense motion to appoint an expert on eyewitness identification, where the state's case was based solely on an identification from the alleged victim.

2/1/2009
In State v. Roberts, the trial judge decided to go along with the jury's recommendation of the death sentence, and asked the prosecutor to prepare an opinion announcing that, giving him the judge's notes on the aggravating and mitigating factors he found. He also met twice with the prosecutor to discuss the opinion. Defense counsel didn't learn of this until the judge read his opinion in court, and noticed that the prosecutors seemed to be reading along with the judge. In Disciplinary Counsel v. Stuard, the Supreme Court decides that this merits a public reprimand for both the judge and the prosecutor.

1/26/2009
In Arizona v. Johnson, the Supreme Court unanimously affirms the frisk of a passenger of a car. The Arizona courts had held that since there was no basis for believing that the passenger had engaged in criminal activity -- the driver had been stopped for a license violation -- the encounter with the passenger was a "consensual" one, and a frisk wasn't permissible. In reversing, the Court holds that a traffic stop results in the seizure of the passenger, and a frisk of the passenger is justified if the police have a reasonable suspicion that the passenger is armed and dangerous.

1/19/2009
In State v. Justus, the 8th District reverses a conviction for OVI, holding that the specification as to the prior offense of physical control doesn't elevate the OVI offense. The court holds that while physical control control was a substantially equivalent offense to OVI under former law, it’s not under current law because OVI requires movement of the vehicle, and physical control does not.

1/12/2009
The US Supreme Court comes down with two critical decisions. In Herring v. US, the Court holds that the evidence obtained in an arrest based upon a warrant which turned out to have been recalled should not be excluded, because the exclusionary rule should not be applied in cases of simple police negligence. In Oregon v. Ice, the Court holds that it does not violate a defendant's right to jury trial if a judge imposes consecutive sentences based on judicial fact-finding. The Ohio Supreme Court had come to the contrary conclusion in 2006 in State v. Foster.

1/5/2009
In State v. Davis, the prosecution had dismissed an indictment, then reindicted the defendant on the same charges. The 9th District holds that speedy trial continued to run during the time between the two indictments, because the dismissal did not comply with the requirements of Crim.R. 48 and RC 2941.33, which require that any nolle prosequi be done in open court, and that if the "open court" provision is not complied with, the nolle is invalid.

12/29/2008
In Middleburg Heights v. Quinones, the Supreme Court rescues municipal finances. In a decision last year, the 8th District had ruled that court costs could only be assessed per case, rather per charge. The Supreme Court agrees with that, but holds that municipalities can assess a fee for "special projects" for each violation. "Special projects," under the Supreme Court's definition, can include... well, just about everything.

12/22/2008
In State v. Belinger, the 11th District reverses a defendant's DUI conviction and remands the case to the trial court with instructions to vacate and enter a judgment of acquittal. In unusually harsh language, the court noted that Portage County Municipal Court Judge John Plough "has a documented history of failing to provide a complete record on appeal," and, after remanding the case three times for the purpose of allowing the parties to complete the record, and specifically ordering Plough to sign the statement of proceedings the parties had agreed to, the court felt it had no alternative but to order dismissal of the case.

12/15/2008
In Grundy v. Dillon, the Ohio Supreme Court holds that if a juror withholds information during voir dire, the losing party is not entitled to a new trial unless it can show that an accurate response by the juror would have provided a basis for challenging the juror for cause.

12/8/2008
In Thompkins v. Berghuis, the 6th Circuit grants a habeas petition. After Thompkins was advised of his Miranda rights, he refused to sign a form acknowledging or waiving them. The police continued to question him for three hours; during all but the last fifteen minutes, Thompkins did no more than make eye contact, nod his head, and sporadically say "yeah," "no," and "I don't know." The court held that the state court determination that this constituted a waiver was objectively unreasonable.

12/1/2008
In State v. Young, the 8th District rejects a claim of ineffective assistance of counsel for failure to request a jury instruction on the lesser offense of aggravated assault. The court noted that the defense was based on a theory of accident, and thus counsel's decision not to seek an instruction on a lesser, which would risk confusing the jury, was a matter of trial strategy for which review for ineffective assistance is highly deferential.

11/24/2008
In State v. Raines, the 8th District affirms the denial of a motion to suppress where the defendant made several statements in response to an inquiry by police officers after a traffic stop. This follows the "Terry stop" exception to the Miranda rule, which holds that such interrogations are not custodial as long as the detention isn't prolonged.

11/17/2008
In State v. Barb, the 8th District concludes that the state's taking two months to respond to discovery "probably not reasonable," says the time was tolled for only thirty days of that. Upholds denial of speedy trial motion nonetheless, says trial was timely held.

11/10/2008
In State v. Stevens, the defendant broke into a house and robbed three people at gunpoint, and also threatened two others, one of whom escaped and the other of whom came to the house after the initial entry. The trial court had imposed 15 years for the aggregate of the gun specifications, but the appellate court reverses the defendant's sentence, holding that the gun specifications should have merged because they were all part of a single, continuing transaction.

11/3/08
In State v. Barnes, the 8th District holds that an arrest warrant allows the police to enter a third party’s home if they have a reasonable belief that the person named in the warrant is in the house.

10/27/2008
In State v. Rufus, the 8th District reverses a conviction of a defendant for domestic violence, holding that the police officer's testimony that the couple's 8-year-old child had corroborated that the father was the aggressor was a testimonial statement barred by Crawford v. Washington.

10/20/2008
In State v. Stubblefield, the 8th District upholds a conviction for having a weapon under disability, finding that the gun was "operable" despite lacking a firing pin, because a firing pin could easily be inserted, making the gun operable. This would probably have been a better decision if there'd been any evidence that the defendant had the firing pin on him.

10/13/2008
In State v. Venney, the Ohio Supreme Court holds that the trial court's failure to inform a defendant at a plea hearing that the state has to prove his guilt beyond a reasonable doubt requires that the plea be vacated.

10/6/2008
In State v. Kalish, the Supreme Court articulates the standard of review appellate courts should use in reviewing sentences. The court should first apply the "contrary to law" standard, in determining whether the trial judge considered RC 2929.11 and 2929.12, whether PRC was properly imposed, and whether the sentence was within the statutory limits for the offense. It should then apply an "abuse of discretion" standard to review the sentence that was handed down.

9/29/2008
In State v. Crenshaw, the 8th District affirms the granting of a motion to suppress, holding that a fenced-in backyard is part of the "curtilage" protected by the 4th Amendment, and that the smell of marijuana does not allow the police to enter the property without a warrant.

9/22/2008
Two for the price of one this week. In State v. Mays, the Ohio Supreme Court rules that a trooper’s observation of a driver’s drifting over the right line on the roadway twice in a mile-and-a-half span was sufficient “reasonable cause” for a traffic stop, even in the absence of any other indication of improper operation. In State v. Davis, the court held that an indictment could not be amended to change the degree of the crime or severity of the penalty. In that case, the state had sought to amend the indictment for drug trafficking to change the amount so as to make the offense a second-degree felony instead of a fourth-degree felony.

9/15/2008
In State v. Brady, the trial court had dismissed an indictment for child pornography on the grounds that the defendant could not obtain an expert. The reason? Because defendant's expert was subject to federal prosecution for possession of child pornography if he took the images for review and preparation of his testimony. The Ohio Supreme Court reverses, finding that federal law permits such material to be reviewed in a government office, and that defense counsel in oral argument admitted that the expert could have accomplished the necessary preparation of his testimony at the prosecutor's office.

9/8/2008
To convict a defendant of a firearm specification, the prosecution has to prove that the firearm was operable. A jury can infer operability from the defendant's use of the firearm, for example, if he points it at others in a threatening manner. An inference operability does not arise, however, if he uses it to beat someone on the head, says the 8th District in State v. Johnson.

9/2/2008
In another example of the 8th District giving lip service to the Supreme Court's recent decision in State v. Cabrales, the court in State v. Phillips holds that attempted murder and felonious assault are not allied offenses: Fire one shot at one person, and you can be convicted of two crimes.

8/25/2008
In State v. Cook, the defendant had come back for resentencing, his sentence having been vacated for failure of the trial court to give him his right of allocution. A different judge handled the resentencing. Cook had originally been sentenced to 7 years in prison, and the judge gave him that same sentence, saying that she didn't feel she knew enough about the case to deviate from the original sentence. The 8th District reversed, holding that the defendant was entitled to a new resentencing. "Although the trial court is free to impose the identical sentence that was originally imposed, or a greater or lesser sentence within its discretion, Cook was still entitled to a de novo review. Gaston, supra. Here, the trial court merely deferred to the original judge’s decision, and erred by not giving Cook a de novo review."

8/18/2008
In US v. Booker, the US District court for Maine denies a motion to dismiss an indictment under 18 USC 922(g)(9), which prohibits a person convicted of a misdemeanor crime of domestic violence from possessing a gun. The defendant had earlier made a claim that his 2nd Amendment rights protected him from prosecution, but the judge denied that in June, holding that the 2nd Amendment conferred only a collective, rather than individual right, to bear arms. After the the Supreme Court's decision a few days later in District of Columbia v. Heller, declaring that the 2nd Amendment protected an individual right to bear arms, the defendant refiled his motion to dismiss. The District Court, noting that the Court in Heller had said that the decision left unaffected the prohibition against felons and the mentally ill owning guns, domestic violence was a sufficiently "violent" crime to fall within the same prohibition.

8/15/2008
In State v. Carter, the 8th District affirms two convictions for felonious assault arising out of a single incident: the defendant and victim had gotten into an altercation, resulting in the victim being stabbed in both arms with a pair of scissors. The court held that the two felonious assault charges, one for causing serious physical harm and the other for causing harm with a deadly weapon, did not merge, since an abstract comparison of the two crimes showed that each contained elements the other did not. The dissent argued, correctly, that the "abstract comparison" test had been abrogated by the Supreme Court's recent decision in State v. Cabrales.

8/14/2008
In State v. Weber,, the 2nd District holds that a witness' statement that she used her grand jury testimony to prepare for trial does not entitle the defense to disclosure of that testimony.

8/13/08
In State v. Craig, the 8th District affirms the dismissal of a child rape indictment for want of prosecution. The trial court had previously indicated in discussions that the child had "credibility problems." On the morning of trial, after the judge had ruled that Children and Family Service records couldn't be used, the defense waived a jury. The judge refused the state's request to recuse herself, and set the trial for 1:00 PM that afternoon. When the state hadn't appeared by 1:30, she dismissed the case. The prosecution claimed that it didn't appear because it was preparing a writ of prohibition to prevent the judge from proceeding with the case. The appellate court said that dismissal was within the judge's discretion, and noted that, since the dismissal was without prejudice, the defendant could be reindicted.

8/12/08
In State v. Robinson, the 8th District holds that the trial court could accept a plea to involuntary manslaughter from a defendant who was indicted for aggravated murder. While manslaughter is not a lesser-included offense of murder, the defendant waived her right to object to the change by agreeing to take the plea.

8/11/08
In State v. Bennett, the 8th District upholds the granting of a motion to suppress. While investigating allegations of drug activity, a police officer observed the defendant, who was standing next to an automobile some distance away, put something in his mouth and then lean into a car. The trial court held that this did not give reasonable suspicion to believe that the defendant was engaged in criminal activity, and the police officer's stop and subsequent frisk of the defendant was held impermissible. The appellate court affirmed.

8/8/08
The Supreme Court unanimously reverses the 11th District and reinstates a murder conviction in State v. Jeffries. The defendant had taken a polygraph exam under arrangements made by her attorney in 2002. In 2003, the parties entered into plea negotiations, and the defense provided the prior exam and a statement made by the defendant to the examiner. When the plea negotiations failed, the state introduced the earlier statement at trial. The Supreme Court ruled that while Evid.R. 410 prohibits use of statements made in the course of plea discussions or negotiations, the statements were made far in advance of that, and thus were not protected by the rule.

8/7/08
In State v. Silsby, the Ohio Supreme Court holds that only a defendant who had an appeal pending at the time State v. Foster was decided were eligible for resentencing under that decision. Silsby had filed a delayed appeal after Foster was decided, and the Court held that while a delayed appeal is considered a direct, rather than collateral, attack, a delayed appeal does not meet the "pending" requirement.

8/6/08
In State v. Clark, the Ohio Supreme Court holds that where a trial court gives a defendant incorrect information at a plea hearing about post-release controls -- in this case, telling a defendant pleading to aggravated murder that he'd have five years of PRC, when in fact if he were given parole at all it would be for life -- an appellate court must determine whether the defendant was prejudiced, i.e., that he wouldn't have entered the plea if he'd been given correct information. Earlier this year, in State v. Sarkozy, the Court had held that vacating the plea is required if the trial judge doesn't give a defendant any information about PRC at the plea.

8/5/08
Back in March, the Ohio Supreme Court had decided in State v. Colon (Colon I) that the failure to include the mens rea element in a robbery indictment was a "structural error" requiring reversal even though the defendant had not objected to the defective indictment. Last week, on a motion for reconsideration, the court in Colon II clarified its earlier decision. It held first that the decision in Colon I applied only to future cases and those which were pending on direct appeal at the time it was decided. (I.e., defendants whose cases had been finalized prior to that cannot raise the issue through post-conviction relief or delayed appeal.) Second, the error in Colon was structural only because it had "permeated" the trial: the indictment didn't include a mens rea, both sides tried the case as though it was a strict liability offense, and the jury was not instructed on an intent element. The court concluded by noting that it would be a "rare case" in which a defect in an indictment required a structural error analysis.

8/4/08
In State v. Chambliss, the 8th District holds that a trial court's decision to remove a retained lawyer from a case is not a final appealable order, but notes that the US Supreme Court held in 2006 in US v. Gonzalez-Lopez that unwarranted removal of retained counsel was not only a violation of defendant's 6th Amendment rights, but was a "structural" error requiring automatic reversal. The 8th District thus noted that the defendant was in a win-win situation: if he won at trial, the case would be over, but if he lost, he was entitled to have the conviction reversed.

7/30/08
In State v. Sutton, the 8th District vacates a maximum, consecutive sentence of 46 1/2 years in an attempted murder case, holding that the sentence was contrary to law because the judge had not engaged in any proportionality or consistency analysis.

7/29/08
In State v. Price, the 8th District holds that the decision in State v. Colon does not apply to aggravated robbery with a deadly weapon, i.e., the indictment does not have to include a mens rea element with regard to the brandishing of a deadly weapon.

7/25/08
In State v. Cain, the 8th District affirms the trial court's granting of a motion to suppress an identification. The victim, who was 80 years old, initially described his assailant as 5'10" and weighing 175 lbs., but after being shown a solitary picture of the defendant, identified him as the perpetrator, despite the defendant weighing 235 pounds.

7/24/08
Good news for attorneys. In In re Heffernan, the 8th District vacates a $500 fine on an attorney who appeared late for a motion to suppress, holding that tardiness cannot serve as the basis for a finding of direct contempt.

7/23/08
In State v. Salinas, the 6th District affirms a three-year sentence for having a weapon under disability. The defendant had claimed that the sentence was improper, since the judge merely gave a rote recitation of the sentencing factors. The appellate court rejected the claim, stating that "nothing more than a rote recitation that the applicable factors of R.C. 2929.12(B)(1) have been considered is needed."

7/22/08
Yeah, yeah, I know it doesn't have to do with criminal law, but this is too good to pass up. In CBS v. FCC, the 3rd Circuit threw out a $550,000 indecency fine against CBS Corp. for the 2004 Super Bowl halftime show that ended with Janet Jackson's breast-baring 'wardrobe malfunction.

7/21/08
In State v. Hale, the Ohio Supreme Court upheld the death penalty for Delano Hale in a 2004 Cleveland murder. The court held that the police were not required to give Hale Miranda warnings before taking personal information from him, and also held that the trial court did not have to "life-qualify" the jurors, i.e., question them as to whether they could impose a life sentence if they found the defendant guilty.

7/18/08
In State v. Arnold, the 10th District holds that a social worker’s interview with child abuse victim not testimonial under Crawford.

7/17/08
In State v. Maddox, the 1st District rules that convictions for forcible rape and rape of a person under 13 do not merge, because each requires proof of an element that the other does not.

7/16/08
In State v. Sunderman, the 5th District holds that in order to preserve the failure to give a jury instruction for appellate review, the defendant must not only present the instruction he wants, but must object to the instructions as given. This isn't the correct law; the Supreme Court rejected that approach 10 years ago in State v. Mack. The error is preserved if defense counsel presents the charge to the court, and provides the court with the law on the subject. Note that the rules do require that a proposed jury instruction be submitted in writing.

7/15/08
In State v. Talley, the 8th District reversed a conviction for corrupting another with drugs, holding that the police officers' testimony with regard to the juvenile's age -- specifically what she had told them her age was -- was inadmissible hearsay.

7/14/08
In Redding v. Sanford Unified School District, the 9th Circuit en banc overrules an earlier panel decision and reinstates a lawsuit by a 13-year-old girl who had been strip-searched by the school district in the belief that she had ibuprofen. You can also read a story about the decision here.

7/11/08
In Commonwealth v. Lora, the Massachusetts Supreme Court holds that suppression of evidence was a remedy for an otherwise lawful traffic stop that was motivated by racial profiling. What the court giveth, the court taketh away: the announced standards of proof to show such profiling would be almost impossible to meet.

7/10/08
In State v. Baker, the Supreme Court reverses the 9th District's hypertechnical reading of what is required for a final journal entry under CrimR 32(C). The 9th District had read the rule to require that an entry require not only a statement that the defendant had pled guilty, but a further "finding of guilt" by the court; absent that language, the 9th District held that the entry was not a final appealable order, and thus dismissed the appeals. The Supreme Court reverses, holding that a statement that the defendant pled guilty is sufficient.

7/09/08
In US v. Navrestad, the US Court of Appeals for the Armed Forces held that sending someone a hyperlink to a remote server which contains images of child pornography does not constitute "distribution" of child pornography under the Child Pornography Prevention Act.

7/8/08
In State v. Futo, the 8th District holds that the Supreme Court's decision in State v. Boston, 46 OSt3d 108 (1989), prohibiting testimony regarding the truthfulness of a child victim's statements about sexual abuse, did not apply if the child testifies at trial.

7/7/08
In State v. Brock, the 3rd District holds that written communications between spouses aren’t covered by marital privilege, and also holds that where husband is imprisoned, parties aren’t living under “coverture” for purposes of the privilege.

7/3/08
In Rothgery v. Gillespie County, the Supreme Court holds that the Sixth Amendment right to counsel attached from the time of an arrestee's initial appearence proceeding before a judge or magistrate, even if a prosecutor is not yet involved in the case.

7/2/08
In State v. Stroud, the 7th District vacates a maximum sentence for manslaughter. The judge had imposed the maximum sentence because "we cannot ignore that a life was lost in this case." The appellate court held that this did not constitute a justification for imposing a maximum sentence, because manslaughter always necessarily involves a loss of life. The court also held that the proper standard for review was whether the trial court's decision was contrary to law, not whether it was an abuse of discretion.

6/30/08
Giles v. California involved a case in which the defendant was accused of murdering the victim, his girlfriend, and at trial the state was permitted to introduce statements she'd made three weeks earlier to police investigating her complaint of domestic violence against the defendant. The California Supreme Court upheld the admission of the evidence, holding that the defendant had forfeited his right to demand confrontation under Crawford by killing the victim. The US Supreme Court reverses, holding that the forfeiture doctrine doesn't apply unless the defendant killed the victim with the intent of preventing her from testifying.

6/27/08
In Heller v. District of Columbia, the Supreme Court holds that the 2nd Amendment protects an individual, not collective, right to bear arms. The decision does not address the question of whether the 2nd Amendment applies to the states, and the Court holds that the decision does not call into question current regulatory schemes on firearms, other than a total ban.

6/26/08
In Kennedy v. Louisiana, the Supreme Court strikes down Louisiana's statute imposing the death penalty for child rape, and holds that the death penalty cannot be imposed except for the intentional killing of another person.

6/25/08
In State v. Palmer the 8th District acknowledges that while there is law holding that when a burglary occurs while the inhabitants are at work, the state has failed to show that people "were present or likely to be present" sufficient to satisfy the element of aggravated burglary. Here, though, the court holds that the burglary occurred sufficiently close to the time of the inhabitants' departure for work, and thus satisfied the element.

6/24/08
In United States v. Greenlaw, the US Supreme Court held that a court of appeals could not find plain error and increase a defendant's sentence, without an appeal or cross-appeal by the government.

6/23/08
In State v. Goudlock, the 8th District holds that where defendant was brought back for a resentencing hearing under RC 2929.191, in order to impose post-release controls when those controls had not been imposed at the original sentencing, the court must conduct an entirely new sentencing hearing; it is not sufficient to simply add post-release controls to the sentence.

6/20/08
In Indiana v. Edwards, the trial court had ruled that although the defendant, who had a lengthy psychiatric history, was competent to stand trial, he wasn't competent to act as his own lawyer. The Indiana appellate court reversed, holding that prior US Supreme Court precedents required that the defendant be allowed to represent himself. The Supreme Court reverses, ruling that the Constitution does not forbid States from insisting upon representation by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.

6/19/08
In State v. Gardner, the defendant had been charged with aggravated burglary, which prohibits a person from entering another's home through stealth, force, or deception, with the intent to commit "some criminal offense." The 2nd District had reversed defendant's conviction because the trial court had failed to instruct the jury on what those "other offenses" might be, and on their elements. The Supreme Court reverses, the plurality opinion holding that the trial court was not required to do that.

6/18/08
Last week in Irizarry v. United States, the Supreme Court considered Fed CrimR 32(h), which requires a trial court to give advance notice to the defendant before sentencing if it is considering a departure from the Guidelines. The Court held that since the Guidelines were no longer mandatory, and that the trial courts had much more discretion over sentencing, advanced notice was no longer required for the court to make a departure from the Guidelines or grant a variance under 18 USC 3553(a).

6/17/08
In State v. Willis, the Indiana Supreme Court reverses a misdemeanor conviction of a parent for battery against her child, based upon a spanking she'd administered with either a belt or an extension cord. The supreme court found that a parent has a fundamental right to administer discipline to a child, and used the Restatement of Torts (Second) definition of parental privilege to use force in such situations.

6/16/08
The New Hampshire Supreme Court, in State v. Rodriguez has held that police officers don't need a warrant to enter a residence if they smell burning marijuana eminating from the premises. The court based its decision on the fact that possession of any amount of marijuana in New Hampshire is a jailable offense.

6/13/08
In State v. Cargile, the 8th District vacates a conviction for illegally conveying drugs into a detention facility, in violation of RC 2921.36(A)(2). The defendant had been arrested for a robbery and taken to jail; as he was being booked, he was asked if he had any contraband, and answered no. A subsequent search discovered three bags of marijuana concealed in his pants cuff. The court held that a crime must be the product of a voluntary act by the accused, and since the defendant's transportation to jail wasn't voluntary, he couldn't be convicted.

6/12/08
In State v. Acevedo, the 8th District affirms an 11-year consecutive sentence on heroin trafficking charges against a claim that the sentences were disproportionate and that the judge hadn't considered RC 2929.11. The court held that the claims were waived by failure to object, that courts have full discretion to sentence within the statutory range, and that the sentences were consistent with sentences imposed on similar offenders.

6/11/08
In State v. Smith, the 5th District holds that defendant's statements to police while he was hospitalized were not suppressible under Miranda because defendant was not in custody and because record did not show that his injuries were so serious that he could not make a voluntary statement.

6/10/08
In State v. Pierson, the defendant had sought to discharge his attorney on the day of trial, and requested a continuance. The court denied the continuance, and gave the defendant the option of proceeding with or without counsel; the defendant chose the latter, and was convicted. The 2nd District reversed, holding that the trial court should have advised the defendant of the dangers of proceeding pro se.

6/9/08
In State v. Jenkins, the Florida Supreme Court holds that an officer's on-the-street check for drugs in the suspect's underwear was not an unreasonable search, holding that the "reach-in" search was less intrusive than the traditional strip search because the arrestee's genitals were not visible to onlookers. No, I am not making this up.

6/6/08
In State v. Southall, the trial court had ordered the defendant convicted of felonious assault to pay over $18,000 to the victim's medical providers. The 9th District reverses, noting that the restitution statute, RC 2929.18(A)(1) was amended in 2004 to permit payment of restitution only to the victim, not to third parties.

6/5/08
In State v. Swogger, the defendant had been sentenced to community control sanctions, and the journal entry stated that the potential sentence upon revocation was 17 months. The defendant was violated, and the trial court imposed a 36-month sentence, after entering a nunc pro tunc entry changing the journal entry to reflect the longer sentence. The 5th District affirmed, holding that correction of a "clerical error" was permissible, since the judge had consistently announced at the time of initial sentencing that he intended to impose a 36-month term for violation of probation.

6/4/08
In State v. Hawkins-Hall, the 2nd District rejects defendant's argument that he could not be convicted of tampering with evidence for flushing a small quantity of crack down a toilet. The defendant had argued that because tampering is a third-degree felony, while the drug possession offense was a fifth-degree felony, sentencing him on the former constituted disproportionate punishment.

6/3/08
In State v. Smith, the 1st District holds that two felonious assault charges, one for attempting to cause serious physical harm and one for using a deadly weapon, should have merged when they involved the same victim. Two counts of attempted murder for firing one shot at two police officers should not have merged, however, since there was potential harm to two separate victims.

6/2/08
Last year, in State v. Crager, the Ohio Supreme Court ruled that the testimony about DNA results from someone other than the person who performed the tests didn't qualify as "testimonial" under Crawford v. Washington. In State v. Belvin, the Florida Supreme Court holds that a "breath test affidavit" involving the operator's procedures and observations in administering the test constitutes a testimonial statement under Crawford, and in State v. Johnson, it rules the same way with regard to a state drug lab report. There are cases pending on these same issues before the US Supreme Court and the Ohio Supreme Court.