Zuanich Law Newsletter
Episode #57: Now You See Me Now You Don’t Episode
June 15, 2021
I just apologized to my Family Law Newsletter subscribers and now I’m apologizing to you too.
I know the absence of this newsletter has made many of you sad—really, really said I can imagine. (For those of you who subscribe, consider yourselves lucky because you get two heartfelt apologies in the same day, so I expect you to compliment me because of that. Sorry I digress, where was I?)
Never mind. All that matters is that we’re back. And that’s perfect timing because in ancient Roman culture, the number 57 had symbolic importance.
When Caesar was marching into Rome against the wishes of many of the elites and against the tradition of a Roman army not entering the capital, he saw 57 pigeons flying overhead and assumed it was the sign of rebirth for his people and that lead him to move forward despite pressures on all sides to refrain from doing so.
And after Caesar saw this, he led his troops inside the capital and came across 57 Soldiers who had deserted from his army months earlier and were in the course of making their way back to his army, wanting to rejoin the main striking force. And he took this as yet another sign that Providence was favoring him.
So obviously … this newsletter is going to be good with so much back story.
State v. Scabbyrobe
COA – Division 2
April 20, 2021
Panel decisions from the COA don’t generally come with dissents. Usually 3 judges can agree, right? But Judge Fearing delivers a blockbuster dissent in this case. Judge Ferling, for appellate geeks like myself, is a fantastic writer. Many people have commented, in fact, that I’m like a Judge Ferling in my writing ability. (I can’t remember who those people are, but I definitely know that’s a true statement). So read the dissent and you will not be disappointed.
But, of course, as I have stressed before. Dissenting opinions are like most of the Sharknado movies except for the first one … not that important in the grand scheme of things.
Facts: Scabbyrode convicted of MV theft. Defendant argued mistaken identity defense. Victim left car running in driveway, goes into house, comes back, and sees car backing away. Sees woman inside car. She backs car into pole. Victim yells for woman to get out. Notices dark tattoo on top of left hand. Woman eventually gets out of car and leaves on foot.
Victim calls 911. Officer responds within 1-2 minutes. Victim description of woman:
- Hispanic female
- Long dark har
- Black coat
- Two backpacks
Officer sees a woman a few minutes later who is running and looking behind her. Description:
- No coat
- Open toe sandals
Suspect woman handcuffed. Officer drives by with Huff and says: “woman may be the suspect, but maybe not.” Huffs says 100 percent certainty that is her. Jury trial. Long deliberations. Scabbyrode convicted. Defense attorney did not file motion to suppress show up ID. On appeal issue whether ID was suggestive and whether IAC for trial counsel not to have filed motion to suppress.
Holding: COA basically said: “The motion to suppress would have been a clear loser, so no reason for defense to have filed.” Rejecting argument on appeal, Court said that show-up focusing on one person was not suggestive because it was based on victim’s description. Yes, the Court acknowledged, the officer could have taken her pictures and later shown the victim a photomontage with the suspect and other woman and then had victim make ID. But that doesn’t mean a different procedure was better.
And finally … the procedure was reliable for the following factors: Victim got a good look at the suspect, the victim was attentive when making initial ID, and he was very certain about ID, and the time between the crime and confrontation was short.
My take: What was trial counsel thinking? Not filing a motion to suppress? Even if it wasn’t IAC, why not do it anyway? I mean, what’s the worst thing that could happen
Also, that 57 story involving Caesar … yeah, I totally made that up. But didn’t it sound believable? I mean, seriously. I almost believed it as I was typing it.
About Us: Zuanich Law focuses on criminal and civil appeals, DOL appeals, and post-conviction relief. Our civil practice focuses on personal injury, family law, breach of contract protection order hearings, property law, landlord-tenant law, and general civil litigation.