Tuesday, January 11, 2011

Warrantless arrest was unlawful (1 11 11)

The Second District Court of Appeals of Clark County ruled that drugs seized from a defendant’s home should have been suppressed because they were fruit of the poisonous tree. Springfield police had probable cause to arrest the defendant in January and February of 2008, because the defendant sold drugs to a confidential informant (CI). But they did not arrest him until April of 2008. The police arrested him without an arrest warrant even though there were no exigent circumstances requiring them to make the arrest without a warrant. Without an arrest warrant, the arrest was illegal and all evidence discovered as a result of the unlawful arrest was obtained in violation of the Fourth Amendment to the Constitution of the United States. State v. VanNoy, 2010-Ohio-2845.

Contact me if you need a Dayton Criminal Lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form. Visit www.ohiocriminaltriallawyer.com if you need an experienced Dayton Criminal Defense Lawyer to represent you in the trial court.







Sunday, January 9, 2011

Against the manifest weight vs insufficient evidence (1 9 2011)

Be careful what you argue on appeal. The Court of Appeals is not obligated to help you out. You fail to raise the right argument and it is your fault. Make sure you get a lawyer who knows which arguments to raise on appeal and who will raise all the arguments that should be raised. The issue of manifest weight vs. insufficient evidence is an example of this.

A decision just came out of the Second District Court of Appeals for Clark County (seated in Springfield, Ohio) in which appellate counsel raised an argument that the conviction for possession of 1000 grams of cocaine was against the manifest weight of the evidence. Well, the State failed to present evidence of what the cocaine weighed without the packaging it was in so the Defendant/Appellant won the appeal. But they won on a manifest weight argument so what did the Court of Appeals do? The Court remanded the case for a new trial. So what will the State do? Weigh the cocaine, convict him again and put him back in the slammer.

Now if appellate counsel argued that there was "insufficient evidence" and won the appeal that way, the State would not be permitted to put the defendant back on trial. The worst that could happen is that the Court of Appeals could impose a conviction of a lesser included offense.

This is because a conviction that is against the manifest weight of the evidence allows for re-trial. A conviction based on insufficient evidence does not. Tibbs v. Florida, 457 U.S. 31.

Contact me if you need a Dayton Criminal Defense Lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.
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