Burden to Demonstrate Prejudice

In an unpreserved federal constitutional claim the burden of demonstrating prejudice rests with the defendant on appeal.

 

State of Utah v. Bond, 2015 UT 89

     Martin Bond was convicted by a jury of various heinous crimes "including aggravated kidnapping and aggravated murder." He appealed these convictions on various grounds. First, on the basis of prosecutorial misconduct, because the prosecutor called a codefendant Mr. Rettig to testify after Mr. Rettig had indicated that he was invoke his Fifth Amendment privilege. He also posited that the prosecutor violated his Confrontation Clause rights by using leading questions. He also contends that his lawyers were ineffective for failing to merge the conviction for aggravated kidnapping with the conviction for aggravated murder.

     The convictions were confirmed because Mr. Bond failed to establish that the trial court abused its discretion, or that the prosecutor committed misconduct. He also did not demonstrate prejudice or that his counsel performed deficiently by making a "futile motion."

     Regarding the Confrontation Clause argument, the court cleared up previous confusion in case law and "expressly h[e]ld that the burden of demonstrating prejudice for an unpreserved federal constitutional claim rests with the defendant on appeal." Mr. Bond did not meet this burden because he failed to demonstrate prejudice from the prosecutor's leading questions.

http://www.utcourts.gov/opinions/supopin/State%20v.%20Bond20150930.pdf

Confrontation Rights Violated By A Letter From Beyond The Grave

The Sixth Amendment right to confront witnesses was violated by showing the jury a letter from the victim written two weeks before her death predicting that her husband would kill her.

 

Jensen v. Clements, 2015 BL 289651, 7th Cir., No. 14-1380, 9/8/15

    The U.S. Court of Appeals for the 7th Circuit said that it was not a harmless error because "[n]o other piece of evidence had the emotional and dramatic impact as did this 'letter from the grave."

    The Wisconsin Supreme Court had originally ruled that the letter was admissible (overturning the trial court's decision not to allow it), holding that it was admitted under the doctrine of "forfeiture by wrongdoing." That doctrine allows testimonial evidence to be allowed from an absent witness if the state can show by a preponderance of the evidence that the accused caused the witness's absence.

    The U.S. Supreme Court, while this case was on appeal, clarified the "forfeiture by wrongdoing" doctrine in the case of Giles v. California, 554 U.S. 353 (2008). They indicated that the "forfeiture by wrongdoing exception can only be invoked if there is proof that the defendant caused the declarant's unavailability with the intent of silencing the witness.

    The Wisconsin Supreme Court had ruled that because the poisoning - if any - was to kill the wife, not keep her from testifying, the "forfeiture by wrongdoing" exception did not apply. It also, however, held that the confrontation clause violation was harmless.

    The federal district court found, on habeas review, that the state court's application of the harmless-error doctrine was unreasonable. This subjected it to review under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. 2254(d)(1).
   
    The Seventh Circuit agreed, and voided the conviction, and invoked the recent Supreme Court decision in Davis v. Ayala, 2015 BL 193928 (U.S. June 18, 2015). This held that a state court's rejection of a claim of federal constitutional error on the ground that any error that occurred was harmless qualifies as a reviewable adjudication on the merits for AEDPA reasons.

http://www.bloomberglaw.com/public/document/Jensen_v_Clements_No_141380_2015_BL_289651_7th_Cir_Sept_08_2015_C

Can Appeal "Not Guilty Due to Insanity" Verdict.

Even though the verdict absolved the defendant of criminal responsibility he has the right to appeal the finding.

 

Commonwealth v. Bruneau, Mass. No. SJC-11820, 8/27/15

Unlike an acquittal, the special verdict given in this case finds that he commited the criminal act, but makes him ineligible for civil comittment. The Massachusetts Supreme Judicial Court ruled that the defendant has a right to appeal as a person who is "aggrieved by a judgment." This aggrievment is based on the harsh consequences that flow from a verdict of "not guilty by reason of insanity."

http://www2.bloomberglaw.com/public/desktop/document/Commonwealth_v_Bruneau_No_SJC11820_2015_BL_275264_Mass_Aug_27_201

Armed Forces Appellate Court Follows Majority on "Protective Sweep" Exception to Warrant Requirement.

The protective sweep exception to the warrant requirement does not neccesitate an arrest while in a home, so long as the law enforcement agents are lawfully in the home and are concerned about safety.

 

United States v. Keefauver, C.A.A.F., No. 15-0029



 

     The U.S. Court of Appeals for the Armed Forces ruled that law enforcement agents may make "protective sweeps" if they are lawfully in a house and have a justifiable concern for safety. They also indicate that this must not be a part of a "standard procedure."

 

     Some circuits have ruled that this "protective-sweep exception" is only applicable during an in-home arrest. But this court is following the majority of circuits, allowing for such sweeps whenever they are in a residence legally.

 

     This standard comes from the Supreme Court decision of Maryland v. Buie, U.S. 325 (1990). It allowed for warrantless post-arrest sweeps in two situations:

•       "As an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched."
 
•      Officers may also engage in a warrantless sweep when "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."

    This case included a sweep of the second type given above, and the court confirmed the standard but held that the agent's actions in this case were not up to snuff as they could not give facts that indicated danger that needed to be swept for.

   

     This was because the agents had watched the house for hours prior and had seen a package delivered and left on the step for an hour until the teenage son returned home and brought it inside. When the police entered soon after they smelled marijuana and claimed that the young man was not smoking alone, and that since most drug-related crimes become violent they needed to protect themselves. Though the trial court agreed with this reasoning, the appellate court did not.



 

http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Keefauver_No_150029_2015_BL_187821_CAAF_June_12_2