December 2022

South Carolina: Defendant’s Confrontation
Rights Were Violated Where
Pathologist Testified Regarding a
Laboratory Report He Did Not Prepare

Defendant was convicted by jury of homicide by child abuse. The South Carolina Supreme Court reversed for a new trial where a report from a private laboratory stating that reddish-colored liquid in a child’s sippy cup in defendant’s home contained opioid pain medication that had dissolved in the liquid was testimonial in nature, and thus, admission of the report through a pathologist who performed the autopsy, rather than through the analyst who performed the testing, violated defendant’s Sixth Amendment right of confrontation where the pathologist was initially unable to determine the cause of death and relied on the report to determine that the cause of death was a high concentration of opioids, and the report was crucial to the State’s prosecution and to rebut the defense theory that the child had accidentally swallowed the pills. The Court found the error was not harmless where the pathologist testified that the quantity of the medication in the cup was enough to kill an adult, and the jury heard about the quantity of medication found in the child, which undercut the defense theory that the child accidentally found and ingested it in pill form. State v. Brewer, ___ S.E.2d ___ (10-12-22, WL 6881963).

Pennsylvania: Remand for Probable Cause
Determination Required Where
Inevitable Discovery Doctrine Issue Was
Not Preserved on Appeal

Defendant was charged with a double homicide and moved to suppress evidence obtained from his cell phone pursuant to a search warrant. The trial court granted the motion finding that there was no probable cause to support the warrant. The Pennsylvania appeals court held that the evidence was admissible under the doctrine of inevitable discovery, and thus the trial court erred in suppressing the evidence even if the search warrant lacked probable cause. The Supreme Court reversed and remanded for review of the probable cause issue holding that the inevitable discovery doctrine was outside of that raised in the Commonwealth’s concise statement of the issue pursuant to Pennsylvania’s rules of appellate procedure. The Court held that the issue statement thus should have separately raised the inevitable discovery doctrine to preserve it for appeal, and the appeals court erred in ruling that inevitable discovery was a “subsidiary issue.” Commonwealth v. Price, ___ A.3d ___ (10-19-22, WL 11542807).

Eleventh Circuit: Resentencing Required
Where Prosecution Breached Plea Agreement

Defendant pled guilty to fraud and related charges. The Eleventh Circuit remanded for resentencing holding that the government’s plain breach of defendant’s plea agreement, by arguing against the acceptance-of-responsibility reduction under the guidelines based on defendant’s conduct before he pled guilty, seriously affected the integrity, fairness, or public reputation of the proceedings. The Court noted that the government exacerbated its breach by violating the second provision of the agreement when it advocated for an above-the-guidelines sentence, and on top of that, its argument for a sentence two to three times the guidelines range may well have ensured that defendant received the highest possible guidelines sentence. United States v. Malone, ___ F.4th ___ (CA 11, 10-26-22, WL 14687024).

Hawaii: Improper Comments by Prosecutor
Regarding Defendant’s and Complainant’s
Credibility Required a New Trial

Defendant was convicted by jury of CSC charges at a trial where the prosecutor commented that defendant’s testimony could not be believed because he had a motive to lie based solely on his party status and that the complaining witness’s testimony was “consistent with a child who is traumatized.” The Hawaii Supreme Court reversed for a new trial finding that the improper comments were not harmless error where the first meddled with the constitutional rights to testify and not to testify and the second effectively hinted that the prosecutor knew something that the jury did not know in a case that turned on credibility where the evidence of guilt was not overwhelming. State v. Hirata, __¬_ P.3d _¬__ (10-31-22, WL 16549517).