Initial Reactions to Today's Flood of COA Opinions
by: Ryan • October 24, 2012 • no comments
If you're looking for in-depth analysis, look elsewhere.
(1) The present-sense hearsay exception is often subject to confusion, in part because one side -- more than the other, in my opinion -- is constantly trying to expand it well beyond what was ever intended. "My stomach hurts" might be subject to the exception. "My stomach hurts because Katie punched me" is not. State v. Richardson should go a long way to turning off the smoke machine.
(2) For a great discussion on the difference between "factual nexus" and "inevitable discovery," in the context of unlawful stops, see State v. Knapp. See that opinion also if you want to understand a passenger's ability to complain about an unlawful search of the driver's car.
(3) Another defense win in an 803(18)(a)(b) notice challenge. State v. Wood.
(4) Just a reminder: a 90-day violation results in a dismissal with prejudice.
(5) Concurrence instructions are not given if (a) it's one incident and (b) the jury must simply choose between alternative sets of facts to prove one element. However, the OSC has under advisement right now the question whether the accomplice/principal distinction is merely a factual one or actually involves different elements. Therefore, you need to ask for a concurrence instruction whenever the jury might convict your client as either an accomplice or a principal. The trial court will deny it, rightfully so under current COA case law, but it's worth preserving.
(6) A hardwood floor can be a dangerous weapon, even if it only is used in such a way as to cause minimal injury. Another reminder: whenever you've got an unusual "dangerous weapon," -- e.g., shoes, boots, floor, pillow -- you need to ask for a jury instruction that instructs the jury that your client must KNOW it's a dangerous weapon.
(7) Not a legal argument but one to make to a jury in these types of dangerous weapons cases: the state is trying to convict your client of a counter-factual. State: the weapon could have caused a serious physical injury in the way it was used but it didn't. In other words, the state is trying to prove something that didn't happen. While it's true that a slightly different application of the weapon could have caused a more serious injury, that would require the weapon being used in a different way. When push comes to shove, what the jury needs to believe in order to convict (in my opinion) is that the weapon -- as used -- would have caused serious physical injury but for the fact that the victim got lucky. He turned just in time to avoid a serious stabbing. She ducked and barely got scraped by the flower pot. But if the use of the weapon is unimpeded, yet still fails to cause serious physical injury, then it wasn't used in a way to cause serious physical injury. It was nearly used in a way that would have caused serious physical injury, but that's not enough.
(8) I'll need to read State v. Ziska a couple of more times before I feel I can comment intelligently, but at first blush it seems like a very weak analysis.
(9) Hey, y'all, you're still missing some pretty obvious opportunities for merger. Go here for the merger memo.
(10) A per curiam win on a PCS and Theft from the same incident. My only observation is that the two counts were almost certainly improperly joined, because a PCS and a Theft (barring some factual scenario where the PCS is used to bargain for stolen property) are not part of the same criminal episode, even if an arrest for one resulted in the discovery of the other. In other words, don't forget to file the improper joinder demurrer.
