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  • Case Update at The Briefcase by Russ Bensing
    carrying a gun outside the home Three other circuits have upheld restrictions in concealed carry laws so the case could wind up in the Supreme Court s lap Sometime in August of 2011 your client decided to use the express checkout line at Walmart s except in this case it meant loading up a shopping cart with 600 worth of stuff and walking out of the store without paying At that point any theft over 500 is a felony but by the time he gets sentenced in October HB 86 has raised the threshold for a felony theft to 1 000 There was no dispute that the change required that he be sentenced for a misdemeanor but there was a dispute as to whether he was entitled to have the offense classified as a misdemeanor as well Last week in State v Taylor the Supreme Court resolved that dispute coming down on the side of not just reduction in punishment but reclassification as well Obviously the chances of this issue arising now are minimal there aren t a whole lot of shoplifting cases from 2011 still pending It does serve one purpose though which is to resolve the issue the next time the legislature raises the threshold It did it before in 1996 from 300 to 500 and when HB 86 came and this question first arose I did some checking and damned if I could find any cases from that period addressing it True I didn t make it my life s work to find one but the Supreme Court justices employ law clerks whose life work is to find those cases and if they did the opinion doesn t mention them Ohio s RICO statute requires proof that a defendant committed two or more offenses while part of an enterprise engaged in a pattern of corrupt activity The Supreme Court s other opinion last week State v Miranda addresses the question of whether the predicate offenses merge into the RICO count To the surprise of few the unanimous answer is no Some thought the case might be a springboard for further clarification of the court s 2010 decision in State v Johnson which substantially revised the test for allied offenses No need to get into that whether multiple punishments can be imposed is determined by the intent of the legislature Here the clear intent of the legislature was to allow for punishment of both the RICO count and the predicate offenses and we know that because although the legislature didn t say that other courts have held that the legislature clearly intended that Any questions Your client gets convicted and asks you to file an appeal You tell him that the fee agreement provided only that you d represent him at trial and besides you don t know nothing bout appeals or birthin babies so you tell him to get somebody else Good move Not according to the 12th District s decision in State v Francis which in

    Original URL path: http://briefcase8.com/2014/02/case-update-65.html (2016-04-27)
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  • Winning a search issue at The Briefcase by Russ Bensing
    favorite is Whren v US where the Court unanimously held that the police can pull you over for any traffic violation even if it s a pretext to see if you ve got drugs or other contraband or have an arrest warrant And that s exactly what happens the police use it to pull people over to see if they ve got drugs or other contraband or have an arrest warrant None of the people they do that to are remotely close to the status or life experience of the nine justices who decided Whren If they were Whren might have come out the other way So meet Isha Harper One evening a highway state patrolman stopped Harper On I 71 One thing led to another the another being the discovery of two kilos of Columbia s main non coffee export in Harper s trunk After the trial judge denied her motion to suppress a jury convicted Harper of possession with a major drug offender specification and the judge shipped her for the mandatory 11 year prison term Let s go back to that motion to suppress The police version was simple they stopped Harper for following too closely arrested her on an outstanding warrant and found the drugs while they were conducting an inventory search prior to towing the car Obviously if you can show the stop was bad everything else goes away but how do you beat a traffic stop Normally you don t there are so many trivial offenses lane changes without putting on the turn signal are a favorite and even if you didn t commit the offense if the cop says you did who s the judge going to believe Not the cop if his testimony directly conflicts with the video from his dashboard cam which it did here the cop testified that he was sitting on the median when Harper suddenly changed lanes and cut in front of another vehicle The dashboard cam though showed that he d already started following her when she changed lanes and that there was nothing in front of her Oops So today s first lesson is always ask for any video or audio tapes in your discovery requests And include a demand that any tapes be preserved My favorite was the cop who took the video tape home and accidentally recorded a TV show over it Even Terry O Donnell was openly incredulous at that one That should ve been the end of the matter bad stop and everything after is the fruit of that oh so poisonous tree The End But it s not the court proceeds to consider whether the inventory search was valid and decides that didn t meet muster either The inventory is done to ensure that personal effects are safeguarded and no false claims can be made against the officer or the towing company or garage but there are numerous decisions holding that the inventory to be valid has to be conducted according

    Original URL path: http://briefcase8.com/2014/02/winning-a-search-issue.html (2016-04-27)
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  • What's Up in the 8th at The Briefcase by Russ Bensing
    the argument That nifty little argument about it being a denial of Tatum s right to counsel was an attempt to get into constitutional error but it turned out not to matter the court held that even under the non constitutional standard it was error So much for clever huh Back in 2004 Bennie Herring was arrested in Coffee County Alabama on an outstanding arrest warrant and a search of Herring revealed he was carrying drugs It turned out the warrant had been recalled five months earlier Herring argued that made the search invalid but when the case finally made its way to the Supreme Court five years later the Court held that mere negligent errors in the maintenance of warrants wasn t enough to trigger the application of the exclusionary rule In State v Scott the State seeks refuge in Herring Scott too had been stopped on a warrant that turned out to be bad But there was a huge difference Scott had been stopped on the same warrant a month earlier and the cops had learned that the warrant was actually for another person who d been using Scott s name Indeed the very day after the first stop Scott went to the police station and made a report about the fraudulent use of his name Nonetheless he was stopped on the same warrant a month later and when the cops patted him down they found two small bags of drugs The trial judge upheld the search on the basis of Herring but Herring left an opening the exclusionary rule still applied where the retention of the invalid warrant was reckless or grossly negligent conduct or recurring or systematic negligence A shoutout to both Scott s trial and appellate attorneys trial counsel called four witnesses and built a very good record on the police failure to remedy the false warrant I had an oral argument in the 8th several months ago where one of the judges pointed out that a prior case from the district seemed to run contrary to my position That s the wonderful thing about this District I replied You can find a case to support just about anything Flippant but true with 220 possible combinations of judges for any particular panel the chances of moderately conflicting decisions increase exponentially And so it is with appellate review of sentencing especially consecutive sentences Previous decisions of the court have held that the court will review the issue to determine whether the record clearly and convincingly shows that consecutive sentences are not supported but just two weeks ago in State v Thompson discussed here the court seemed to hold that its review of consecutive sentencing was limited to determining whether the trial court made the required statutory findings Forget seemed the court doubled down on that position last week holding in State v Jones that we may only review the legal question of whether the court complied with its statutory obligation to make certain findings before ordering

    Original URL path: http://briefcase8.com/2014/02/whats-up-in-the-8th-63.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    point Amanda said she had to use the restroom then trotted off to the side of a building and squatted announcing I don t care if you arrest me I have to pee something I m betting none of us have ever said After she was done one of the detectives walked over to where she d been and found a cellophane bag on the ground covered in urine Guess what was in the bag Straley pled out to possession of cocaine but went to trial on the tampering charge the prosecutors had thrown in She lost but was rescued by the 2nd District which reversed it on an insufficiency argument See where the statute says that you have to commit the act with the purpose of impairing its availability as evidence in such proceeding or investigation The 2nd held that this meant the concealed evidence had to pertain to the investigation and since there was no investigation in process or likely as to cocaine possession there was no tampering But the 2nd s decision ran flatly contrary to one four years earlier out of the 9th State v Sorvanek While being stopped for a traffic violation Skorvanek threw a pill bottle out of his window He argued that his tampering conviction should be reversed because the pill bottle was unrelated to the investigation the traffic violation but the 9th wasn t buying This Court has never held that a defendant only commits the offense of tampering with evidence if he tampers with an item directly related to a police officer s purpose for investigating the defendant That folks is what we in the appellate biz call a conflict so last Tuesday everybody got together for oral argument in the Ohio Supreme Court to see how to resolve it I thought the 9th had the better of the argument on how the statute should be interpreted but the justices honed in on a different aspect was there an investigation at all O Connor Lanzinger and O Neill all expressed skepticism about State s position Pfeifer didn t say anything but I m betting he s a solid vote for the defense French and Kennedy are normally conservative votes but so is O Donnell O Donnell s one of the best questioners and much like Scalia on the High Court will sometimes use his questioning to bolster the State s argument If he made any attempt to do that on Tuesday it was tepid at best Still I m not sure how a decision will come out and I wouldn t be surprised if the case got dismissed for being improvidently allowed There s enough of a factual distinction between the two cases to muddy things up and it s not clear exactly what rule of law the court could come up with It s funny how you can get caught up in the legal arguments When I first read the facts they re fully detailed in the 2nd District s

    Original URL path: http://briefcase8.com/2014/02/case-update-64.html (2016-04-27)
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  • Harmless error and 404(B) at The Briefcase by Russ Bensing
    One the Guy s On Trial For That s basically the test for what s known as 404 B evidence Normally evidence of the defendant s prior depredations aren t allowed into evidence the prosecutor can t prove that the defendant is guilty by showing he s a bad guy Rule 404 B of the evidence rules says that the prosecutor can introduce prior acts to show certain things like motive intent identity and so forth The appellate court held that the above evidence didn t show any of those things The Supreme Court unanimously reversed two years later but not because it found to the contrary the 9th District had conducted a de novo review of the issue and the Supreme Court held that it should have used the abuse of discretion standard So back it went and guess what The 9th District held that the trial judge abused her discretion See That was easy Not so much The case s latest waypoint in its legal odyssey came in oral argument before the Supreme Court on Tuesday this time on another bit of minutiae revolving around appellate review the appropriate standard for harmless error in the admission of 404 B evidence The 9th District had used the standard for constitutional error and the State argued that it should have used the nonconstitutional error standard That s a big difference For nonconstitutional errors you ignore the evidence that was impermissibly presented and decide whether there s sufficient other evidence to convict For errors of a constitutional dimension the State has to show beyond a reasonable doubt that the error didn t contribute to the verdict Essentially if you ve got constitutional error the State is going to have to show there was overwhelming evidence of guilt to avoid reversal How did the 9th get to constitutional error By holding that the admission of the 404 B evidence undermined Morris right to a fair trial That didn t get much traction on Tuesday As Lanzinger and O Donnell pointed out that s hardly the brightest of lines you could make that argument in just about every case where evidence was erroneously admitted The 9th District had somewhat of a point though You could make a pretty good case that 404 B evidence has a more devastating effect than just about any other kind of evidence it s almost impossible to overcome the damage if the jury learns that your client has done something similar to what he s now charged with It s possible of course that the court will decide that the rule itself provides the needed bright line but based on how I saw the argument there s a better chance that Adam Sandler will take up Shakespearean acting roles Still there was a sense among several of the justices that this was no more than a bump in Morris s long journey toward a new trial several seemed frankly incredulous at the reasons offered by the prosecutor as

    Original URL path: http://briefcase8.com/2014/02/harmless-error-and-404b.html (2016-04-27)
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  • Discovery tactics at The Briefcase by Russ Bensing
    a complete misreading of the speedy trial statute That statute tolls the time for any period of delay occasioned by the neglect or improper act of the accused and the court simply assumed that the defendant s failure to respond to discovery caused a delay in the trial date without actually determining whether it did But that s the law folks so deal with it Which is what the lawyer in Johnson tried to do when he filed his request for discovery he also filed a reciprocal discovery response which simply said Defendant reserves the right to call any and all witnesses as listed on the State of Ohio s Response to Defendant s Request for Discovery The 5th District agreed with the trial court that the reciprocal discovery request was not made with due diligence and simply ignored it The courts found that a reasonable time for the defendant to respond to discovery was twenty five days and tolled the time for that period bringing the trial date just under the wire Where do we start With the new discovery rules As the panel notes the 2010 amendment to Crim R 16 which provides for open discovery in criminal cases was a basic shift from previous practice and placed an affirmative duty on a defendant to provide evidence he she intended to use to support his her defense Nobody s going to accuse the 5th District of gender bias The court concluded that the blind reciprocal discovery response was not in keeping with the rules because it placed the state in the untenable position of not knowing what appellant intended to produce under Crim R 16 H There s a bit of merit in that complaint the tactic of providing reciprocal discovery at the time you re requesting discovery from the State obviously is geared toward preserving a speedy trial claim rather than acquitting yourself of your obligations under the new discovery rules Especially when the reciprocal discovery consists of a single line saying you re reserving the right to call any of the witnesses listed in the State s response to discovery which of course you haven t received yet But there s a reality here too in at least 80 of criminal cases if not more the defendant doesn t have any discovery to provide so a discovery response that you don t have anything to give them is perfectly proper The question is timing if Johnson s lawyer had given the same response two weeks after the State provided discovery instead of doing it at the same time he requested discovery there would have been no basis for finding the submission improper or not in keeping with the spirit of the rules You can t give what you don t have In this respect it s important to note that Johnson gets it exactly backwards After discarding the reciprocal discovery request the defense had filed the trial court decided that a reasonable period within which the

    Original URL path: http://briefcase8.com/2014/02/discovery-tactics.html (2016-04-27)
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  • What's up in the 8th at The Briefcase by Russ Bensing
    any error was harmless In essence after spending several pages talking about why the threat was sufficient to convict on felonious assault the panel holds that precluding the defense from showing that the threat wasn t made didn t matter Jury nullification is a jury s acquittal despite seemingly overwhelming evidence of a crime but Kurtis Fields finds himself the victim of judicial nullification The jury acquits him of attempted murder and two counts of felonious assault but he had elected to try the weapons under disability count to the judge She finds him guilty gives him the maximum three year sentence and the court affirms in State v Fields It s a little odd reading the court s opinion about how the evidence clearly showed Fields fired the shots a conclusion obviously at odds with the one the jury made but that s the way the law works you can t claim inconsistency in a jury s verdict on separate counts let alone a jury s verdict versus the judge s But don t shed any tears for Fields The evidence against him was fairly damning and trying the weapons disability count to the bench kept the jury from learning that he d spent six years in prison for another felonious assault something which might well have tipped scales on the other charges That s not mentioned in the opinion I looked it up on the docket Considering he was looking at a potential twenty five years on those this was certainly one of the best decisions he s ever made One summer day in 2012 65 year old Jacqueline Gavorski was taking the groceries out of her car when 16 year old Jeffrey Rembert came up behind her and bludgeoned her to death with a large landscaping rock so he could take her purse Rembert will be just seven years shy of eligibility for Social Security when or if he gets out of prison something I do not find in the least troubling and the 8th affirms that outcome in State v Rembert Half of the eight assignments of error argue that Rembert s plea was invalid on the grounds that the judge failed to advise him of something or other That something or other didn t include any constitutional rights which means that in order to vacate the plea Rembert must show prejudice For example one of the claims is that the judge incorrectly told Rembert the maximum fine was 15 000 when it was actually 25 000 as the court notes this would require Rembert to show that although he pleaded guilty knowing he could receive life imprisonment without any parole eligibility had he known the maximum fine was 25 000 instead of 15 000 he would not have pleaded guilty To put it mildly that s a hard sell Another argument that the judge didn t advise Rembert that he wasn t eligible for community control sanctions doesn t even pass the Giggle Test whether

    Original URL path: http://briefcase8.com/2014/02/whats-up-in-the-8th-62.html (2016-04-27)
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  • Case Update at The Briefcase by Russ Bensing
    convincing a jury that it wasn t the defendant is culpable Burrage is definitely worth a read No decisions from the Ohio Supreme Court but oral arguments are on tap this week for four criminal cases plus a death penalty case The biggie is State v White link is to the Supreme Court s online docket page which reversed a conviction of a police officer for an on duty shooting of a motorist The 6th District s opinion generated 81 pages and 67 count em 67 Lexis headnotes and five propositions of law so it s going to be interesting to see that compressed into 30 minutes of argument Two other cases come from the 2nd District in State v Tolliver the State argues that the force or threat of force element in robbery is a strict liability offense and State v Straley considers the recent prosecution tactic of charging someone for tampering with evidence for dropping a crack pipe or bag of drugs when they re approached by the police Perhaps most interesting if not in the result in the journey is State v Morris on 404 B evidence It s the second appearance for the case before the court and I ll have more on it later this week In the courts of appeals The 1st District s decision in State v Kostyuchenko is a must read if you re representing someone who s not a citizen Kostyuchenko pled guilty to failure to comply and received a one year prison sentence His lawyer told him that the offense could make him deportable but there was no could about it deportation was mandatory The lawyer denied that it was any big deal claiming that his client was only concerned with avoiding a prison sentence The trial court wasn t buying that and neither did the 1st District Notable is the panel s holding that the trial court s advisement under RC 2943 031that a non citizen may be deported doesn t cure the deficient performance of counsel in failing to advise the client that deportation is mandatory In State v Widener the trial court grants Widener s application for expungement of his conviction for contributing to the delinquency of a minor because one of the sections of the expungement statute specifies that convictions of various low level sex offenses aren t expungeable if the victim was a minor and contributing isn t one of those offenses But this is an easy one the 2nd District reverses noting that the very next subsection section precludes expungement if the offense involves a minor victim and the offense is a first degree misdemeanor or a felony and contributing to delinquency is the former Turnabout is fair play when the General Assembly passed HB 86 it eliminated the requirement that judges give reasons in support of their findings for consecutive sentences But it also eliminated the requirement that judges give reasons in support of their findings overcoming the presumption that a person convicted

    Original URL path: http://briefcase8.com/2014/02/case-update-63.html (2016-04-27)
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