March, 2020

Eighth Circuit: District Court Erred When
It Accepted Defendant’s Plea Without
Advising Defendant That
Government Would Have to Prove He Knew
He Was Illegally Present in US

Defendant pleaded guilty to possessing a firearm while being an alien illegally or unlawfully in the United States. The Eighth Circuit held that the district court committed plain error in failing to ensure that defendant’s guilty plea was voluntary where the district court did not advise defendant that the government would need to establish beyond reasonable doubt at trial that he knew that he was illegally present in the United States as required by Rehaif v. United States, 139 S. Ct. 2191 (2019). Defendant had indicated that he believed he was “legal” because of his long marriage to a United States citizen and his work permit. But for the district court’s error, there was a reasonable probability that defendant would have gone to trial. United States v. Jawher, ___ F.3d ___ (CA 8, 02-24-2020, WL 878515).

Indiana: Warrant to Search for GPS That
Disappeared from Defendant’s
Vehicle Lacked Probable Cause

Law enforcement obtained a warrant to plant a GPS tracking device on defendant’s vehicle, and when the device stopped working, they obtained warrants to search defendant’s home and barn for evidence of “theft” of the GPS device. The Indiana Supreme Court reversed the denial of defendant’s motion to suppress drugs found in the search, holding that the search warrants were invalid because the affidavits did not establish probable cause that the GPS device was stolen and lacked information that any control over the GPS device was knowingly unauthorized or that there was intent to deprive the sheriff’s department of the GPS. The good-faith exception to the exclusionary rule did not apply because the search warrant affidavits were devoid of information linking the allegedly stolen GPS device to criminal activity. Heuring v. State, ___ N.E.3d ___ (02-20-2020, WL 829991).

Oregon: Prosecutor Failed to
Satisfy “Other Reasonable Means”
Component of Unavailable
Witness Hearsay Exception

The prosecution filed an interlocutory appeal of the trial court’s ruling regarding the unavailability of the victim as an exception to the hearsay rule in a domestic violence case. The Oregon Supreme Court affirmed the trial court, holding that the prosecutor did not satisfy the “other reasonable means” component of the unavailability of witness statute where the victim had a history of not cooperating, not attending court even when subpoenaed, and making last-minute decisions regarding attendance. The prosecutor knew that the victim was in the area and knew her home and work locations, the case involved high stakes, namely serious felony charges against defendant, and the victim’s testimony was critical to the prosecution. These circumstances required the prosecutor to intensify its efforts such as requesting a material witness warrant or initiating remedial contempt proceedings. Oregon v. Iseli, ___ P.3d ___ (02-21-2020, WL 858157).

Ohio: Defendant was Deprived of
His Right to Effective Counsel When
Defense Counsel Failed to Inquire into the
Expressed Bias of a Juror

Defendant’s murder conviction and death penalty sentence were reversed where a juror, who was Caucasian, stated under oath in a juror questionnaire that “Blacks” as a group were more violent than other races or ethnic groups and that she sometimes did not feel comfortable being around “black people.” The Ohio Supreme Court found that this demonstrated her actual bias against defendant, who was African American, and thus established the prejudice prong of ineffective assistance of counsel based on counsel’s failure to question the juror during voir dire or attempt to strike her for cause or by peremptory challenge. The juror’s admitted racially biased view without a reassurance of impartiality and the threat that this powerful racial stereotype infected the jury’s deliberations as result of the juror’s bias was unacceptable. State v. Bates, ___ N.E.3d ___ (02-27-2020, WL 930286)

Massachusetts: Defendant Cannot Be
Exposed to a Harsher Sentence After
Predicate Offense Used for
Sentence Enhancement Was Dismissed
Due to Evidence Tampering

Defendant pled guilty and was sentenced using a sentence enhancement that used two drug offenses on his prior record as the predicate convictions. After defendant’s prior drug conviction was dismissed due to evidence tampering at a state laboratory, defendant requested a preliminary ruling that, if he succeeded in withdrawing his plea, he would not be subject to a harsher punishment. The Massachusetts Supreme Court ruled that any potential sentence must be capped at the sentence originally imposed when the defendant initially pled guilty. The Court also found that such cap must be applied retroactively for defendants who have already withdrawn such pleas and subsequently pleaded guilty to more serious charges, who were convicted of more serious charges at a trial, or who received longer sentences than they had for their first pleas. Commonwealth v. Claudio, ___ N.E.3d ___ (02-28-2020 WL 976949).