What's Up in the 8th
I had an oral argument in the 8th a few weeks back, and one
of the judges told me, "some of our cases indicate" something contrary to the position
I was taking. "That's one of the nice
things about this district," I replied. "You
can find case law to support just about any position." The judges laughed, because there's more than
a little grain of truth in that. Still,
the judges are aware of their precedents, and seem to be developing consistency
in various areas.
One of them is in consecutive sentencing. State
v. McGee and State
v. Davila present identical situations:
a judge imposes seemingly well-deserved consecutive sentences on a
defendant, only to be reversed for failure to make one of the findings required
by RC 2929.14(C)(4). In both cases, the
State argues that the record justifies consecutive sentences, and in some districts,
the courts will sift through the record and determine whether the trial judge could've made the necessary
findings. The 8th isn't one of
them. The judge doesn't need to say the "magic
words" precisely, but it has to be a reasonable approximation. Another thing: I'll bet that 90% of the reversals are because
the judge didn't make the second finding, that consecutive sentences aren't
disproportionate to the defendant's conduct or the danger he poses to the
public. That's the problem in both McGree and Davila.
The judge in State
v. Carman gets it right, but the opinion provides some interesting language: "the trial court delineated each necessary
finding under R.C. 2929.14(C)(4) when it imposed its sentence, and the trial
court supported its findings with facts from the record." Does that mean the trial court has
to support its findings with facts from the record? No, since appellate courts, including the
8th, have consistently held that under HB 86, unlike pre-Foster law, a judge
need not give reasons in support of the findings. But it's something to throw in to a brief,
and it's a movement in the right direction:
it encourages judges to talk, and the more a judge says, the better the
chances are that the judge actually gave the issue some thought, and the easier
it is for the appellate court to review it.
Other than
consecutive sentences, though, appeals of sentences are forlorn endeavors, as
demonstrated by State
v. White. White hardly presented
as a sympathetic figure: after pleading
to felonious assault for throwing boiling water on his girlfriend, causing
extensive second degree burns, he used the sentencing hearing to claim it was
an accident and blame her for causing it.
Unimpressed, the judge gave White five years. White pursues the same line on appeal, claiming
that the judge didn't give proper consideration to various seriousness and
recidivism factors under RC 2929.12, such as... well, that the victim facilitated
the offense, or that the defendant was provoked.
This is a
non-starter. I've seen cases
successfully arguing that the judge shouldn't have found a 2929.12 factors;
there's case law, for example, holding that a finding that the victim was a
minor (one of the "more serious" factors) is inappropriate where the offense involves
a minor, for example, child porn. But there's
simply no case law holding that a judge erred in imposing a sentence because he
didn't make a finding, or didn't give proper weight to one.
Another situation
where the 8th has enunciated a clear body of law is in the area of searches
involving trash pulls. The detective in State
v. Jones takes a minimalist approach to police work. He hears that a woman named Lauren, who's
described as black and overweight, cooks meth. Three months later, he's
at the Justice Center, where he sees a black overweight female talking to
assistant prosecutor. He asks the
prosecutor the name of the woman (she was victim of burglary), and learns that it's
Lauren. He gets her address and the
police go over, do trash pull, find various items used in meth production, and use
that to get warrant. If all criminal
investigations were like this, Law and Order episodes would be twenty
minutes long. And, if the show was based in this county, the search would
get tossed. A bright line rule in the
8th: a single trash pull is not sufficient to provide probable cause for
a warrant. There has to be something else: multiple trash pulls, surveillance
and observation of heavy pedestrian traffic, or controlled buys.
A police mistake
also causes a problem in State
v. Ellison: the detective sent
the defendant's DNA sample off to BCI labeled "Brandon C. Lewis" instead of "Brandon
C. Ellison." For whatever reason, the
prosecution attempts to overcome this problem by introducing the log of the BCI
analyst, which indicates she called the detective and he told her that the
sample was really from Ellison. The
panel finds that the log was admissible under the "recorded recollection"
exception to the hearsay rule. This is kinda
sketchy; that exception requires that the declarant not have any present
recollection of the matter, and that doesn't seem to fit the BCI analyst's
situation. The court, though, correctly concludes
that this doesn't solve the problem:
there's "hearsay within hearsay," i.e., there still has to be an
exception for the statement of the detective, and there isn't any.
But here's where
the decision goes off the tracks: the
court proceeds to analysis of the assignment of error alleging insufficient evidence,
rejects that, and concludes that since the evidence was sufficient, the error in
the admission of the detective's statement was harmless.
This analysis is
wrong. The test for harmlessness is
whether error contributed to the verdict, and since this is constitutional
error (confrontation), the State must show beyond a reasonable doubt that it
didn't. The test for sufficiency, on the
other hand, is simply whether any rational juror could have voted to convict
defendant. Showing that a rational juror
could have voted to convict the defendant has nothing to do with whether juror
was influenced by inadmissible evidence.
You can find harmless error where evidence is overwhelming, not where
it's merely "sufficient."
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