Wednesday, November 18, 2009

Court of Appeals Update (November 17, 2009)

Not much to get excited about here...

State v. Price. In burglary case, during jury deliberations, the court received a hand-written note stating that the juror couldn't convict on circumstantial evidence alone. Judge gave an instruction that the law does not require direct proof and gave a reasonable doubt instruction from State v. Connor.

Later, the court received a second note that, "I cannot apply the law as explained by the judge's case. I request to be removed from the jury." Judge brought the jury out, said he couldn't remove any jurors and gave an Allen charge.

Held: No error in the trial courts to perform investigation into juror competency and no error in giving the Allen charge.

State v. Remley. No abuse of discretion in trial court ordering a recess as a remedy for the state's failure to provide discovery (the defendant's statement), rather than excluding the statement. Trial court did err in sentencing defnednat to 150 days for two Class 1, Level 2 misdemeanors (cannot sentence more than 2x the consecutive sentence, even if defendant is convicted of more than 2 misdemeanors).

State v. Washburn. No invasion of any legitimate expectation of privacy when a dog sniffs the common area of the storage facility, where officers present with consent of owner of the facility. Search proper where, based on the alert and an informants info, police got a search warrant and seized drugs from defendant's storage unit.

State v. Williams. No error in trial courts failure to intervene when DA closing.

No error in allowing eye-witness to testify that she saw defendant, despite the fact that she initially identified him in a "show-up" procedure (rather than a line-up or a photo array). The court relied on the fact that the police didn't set up the show-up; rather, the victim just came to the jail and happened to see him and said, "that's him." Because there was no state action in setting up the show-up, there was no taint.

No due process violation in photo arrays provided to other eye-witnesses, as they were not unduly suggestive.

No error in failure to include jury instruction on lessers.

Thursday, November 5, 2009

Court of Appeals Update (November 4, 2009)

Reversals and Interesting Cases.

State v. Mobley. Melendez-Diaz. No confrontation problem in lab analyst's testimony about other, non-testifying lab analysts reports, where these were part of her own expert opinion comparing the data and about the accuracy of the underlying reports.

Ed. Note. The court went on to not that these were offered as the basis for the opinion, not for proof of the matter asserted. An interesting side not, here that under Rule 705, experts are not supposed to be allowed to disclose the underlying facts needed to come to their conclusion on direct (unless it would be otherwise admissible). Rule 705 creates an exception on cross, allowing for admission of underlying data, even if it is not otherwise admissible. In that situation, it comes in not for truth, but for the jury to evaluate the experts opinion. In practice, however, courts across the state routinely allow experts on direct to discuss the basis for their opinion. It's interesting that this practice that circumvents rule 705 is now being used to circumvent Melendez-Diaz. The court's conclusion that the expert can rely on other reports (reasonably relied on in the field) and provide an opinion doesn't have Melendez-Diaz problems is sound. It seems less sound, however, when the expert is allowed to discuss and disclose those underlying reports--with no cross examination of their drafters--directly to the jury.

State v. Mello. City drug loitering ordinance unconstitutionally vague because criminalizes any conduct with "manifests" purpose to conduct drug activity (compare with Gen. Stat. 14-204.1 that requires specific intent to engage in prostitution)

Other less interesting cases.

State v. Allen. No miranda violation when officer interviewed defendant in hospital unwarned, as officers did not restrain defendant--any restraint was part of his treatment. Later, at stationhouse, defendant requested a lawyer. The officer told them he couldn't find the lawyer. Later, an officer told him he was being booked for 2nd degree murder. When the defendant stated he wanted to talk "right now," he re-initiated interaction with police and no miranda problem in officer proceeding with interrogation. Under Mirdanda, once a defendant asserts his right to counsel, police cannot question him unless the defendant reinitiates such contact.

State v. Coleman. Strangely, to prove the crime of having sex with a minor by the minor's custodian--defined as a parent, someone in a parent-like role, or someone employed by an instution or person with custody of the minor-- (Gen. Stat. 14-27.7(a)), the state does not have to prove the defendant knew or should have known that the victim was in the defendant's custody or in the custody of the defendant's employer.

State v. Dunn. Bond forfeiture case.

State v. Gardner. In Satelite-based monitoring case, trial court's order contained conflicting provisions. Remanded for correction.

State v. Mewborn. Police pulled up next to a two men walking down the street and told the occupants to wait a minute, because they needed to speak to them. Defendant ran away, threw a gun, was caught, then threw away cocaine. Convicted of possession of firearm by felon and possession of cocaine.

The Court found, first, that the officers had no reasonable suspicion to stop the two men. BUT, that didn't matter, because the man didn't stop and, once he started to run away, this action gave the officers reasonable suspicion to stop him (and, thus, everything that happened afterwards was legal).

[I Guess the lesson is, if you're walking down the streets with guns and drugs, and a cop says to "wait a minute," you have to walk, not run, from the area. Of course, they'll probably stop and search you and the court change it's mind and find that the officers had reasonable suspicion...remember the only reliable rule in criminal procedure cases is, with rare exception, the house always wins]

State v. Stover. Probable cause and exigent circumstances existed to search a home where, during a vehicle stop, a passenger told them she had just bought marijuana from the house. When the cops knocked on the door, they smelled marijuana. They then heard a noise that made them think someone was trying to escape. They had: (1) probable cause to believe the crime of possessing marijuana was going on inside and (2) exigent circumstances to know that the evidence of that crime was being destroyed (by the smoking) and that the defendant was trying to flee. It is unclear if the destruction of evidence alone was enough, but at least in combination with a preventing escape, it was here.

If the destruction of evidence alone is enough (I don't see why it wouldn't be), it's important to note that the smell of marijuana emanating from a house gives police the right to burst in and search. I sure hope those officers are getting quality olfactory training...

State v. Tellez. Sufficient evidence of malice in DWI/2nd degree murder case where defendant had previously convictions for DWI, DWLR (not sure why DWLR is relevant...), was drinking while driving, and fled the scene after the accident.

State v. Williams. Defendant properly given 1 record level point for all elements of prior offense being present in current conviction where charged with delivery of cocaine and had a prior of delivery of marijuana. Court found all elements present, even though they were different drugs (and different schedule levels).

State v. Wright. No 404(b) problem in testimony about defendant's failure to properly disclose campaign expenditures and obstruction of justice charges. This was admissible as evidence to explain how some of the charges in this case were initiated, as they arose from audits performed on defendant's accounts as part of those prior charges.