Big important case on separate criminal episodes
by: Ryan • August 20, 2014 • no comments
Since the Court of Appeals has reaffirmed -- in the case of State v. Cuevas -- that a finding of separate criminal episodes is a jury question in some situations, it should be more important than ever to get a handle on how that determination is reached. The COA has done a great service in today's opinion State v. Tooley in approaching a unified theory of criminal episodes, but just how well this will work in actual practice remains to be seen.
I nearly titled this post with maximum snark. The reason for snark is this: 99% of the time, a finding of separate criminal episodes favors the state. The exception is when a finding of one criminal episode is necessary to convict the defendant of aggravated murder. And while there's a lot of bad case law in which the appellate courts find separate criminal episodes, today's decision seemingly stretches the case law to its limit in finding one criminal episode that lasted 12 hours in a situation where doing so favors the state.
However, that summary is incomplete and thus unfair. For one thing, the case law that heavily favors a finding of separate criminal episodes -- including cases such as State v. Sparks -- is quite old, and while the COA doesn't explicitly say Sparks was overruled, it clearly gives it little weight in light of both more recent cases and a more thorough analysis of the legislative history. Since I have long said that I thought Sparks was wrongly decided, I can't really complain in good faith when the court rejects its application, even in a case where the outcome favors the state. (Here's a little note: there is a great, great dissent in Sparks, and the dissent was written by Judge Armstrong, who -- though he didn't write today's opinion -- was on the panel that decided today's case. One of the reasons I like Armstrong is because of his insightful and thoughtful dissents; see also State v. Toste.)
Today's opinion was in the context of a denial of a motion for judgment of acquittal, which means the standard the court used was whether any reasonable juror could find one criminal episode is "the light most favorable to the state." As I have said before, in a situation like this, a requested -- and denied -- special jury instruction provides a much more favorable standard of review at the Court of Appeals. However, even under the more difficult standard, the factors the court considers should allow defense attorneys to draft an instruction (or instructions) that can be helpful in a Cuevas-type situation or another aggravated murder trial based on the same theory.
Furthermore, when the issue isn't before the jury, the language should be quite helpful when you are asking the court to find just one criminal episode, even when the evidence isn't in the light most favorable to the state. The case reflects a growing trend -- that in most situations will be quite favorable to defendants -- that broadens the scope of one criminal episode, which will, in turn, reduce the amount of prison time some of our clients serve.
All that said, the opinion is sufficiently dense that I'll need to read it a few times before I feel that I completely understand it. But this is a reflection of the complexity of the issue and the reason drafting a high-quality special jury instruction is still going to take a lot of time and thought. But even though Mr. Tooley didn't benefit from today's opinion, many of our clients will.
