 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
WITNESSES: COURT MUST COMPEL TESTIMONY OF WITNESS WHO HAS BEEN GRANTED IMMUNITY. State v. Neff et.al. Nos. 13-98-74, 13-98-75, and 13-98-76, (3d Dist. Ct. Apps. Seneca Co., 9-23-99) H. Weldin Neff is the Sheriff of Seneca County; James Browning is a lieutenant in the Sheriff's Office and Barbara Gracemeyer is employed by the same agency as an administrative assistant. They were indicted for ten charges, including intimidation of a witness in a pending criminal matter, and theft in office. A special prosecutor was appointed to try the cases. On the fifth day of trial, December 5, 1998, the prosecution called Nancy Porter, another employee in the department. Porter testified on direct and on cross-examination conducted by counsel for Lt. Browning. However, during Porter's cross-examination by the attorney representing both Gracemyer and Sheriff Neff, information began to surface about Porter's possible involvement in the improper shredding of important documents. At that point, a discussion in chambers resulted in the court's advising Porter of her constitutional right against self-incrimination. The prosecutor then asked that the court grant Ms. Porter immunity. Although the court granted immunity, Ms. Porter refused to answer questions on cross-examination, from fear of federal prosecution. The court struck her direct testimony. Because she was a crucial witness, the court continued the trial to allow the state to appeal. The Seneca County Court of Appeals, in a 2-1 decision, reversed the trial court. Citing Murphy v. Waterfront Comm'n of NY Harbor (1964), 378 U.S. 52, the appellate court found that the grant of immunity protected the witness from use of that testimony in a federal prosecution. Therefore, the trial court should have compelled the witness to answer the questions on cross-examination. The court reversed and remanded for the trial to continue. SEARCH AND SEIZURE: QUESTIONING DURING TRAFFIC STOP THAT DOES NOT UNLAWFULLY EXTEND DETENTION, PROPER. State v. Cavins, No. 17962 (2nd Dist. Ct. Apps., Montgomery Co., 12-30-99). The state appealed from the trial court's granting the defendant=s motion to suppress evidence. A Montgomery County deputy sheriff stopped a car driven by Robert Sallie. Mr. Sallie had been driving 81 miles per hour. Keith Cavins was a passenger. Because Mr. Sallie was unable to produce a driver's license, the deputy put Mr. Sallie in the patrol car while checking the departmental computer. While waiting, the deputy asked Mr. Sallie where he was going. The deputy found Mr. Sallie's answer, that he was going out of town to visit a sick grandfather, suspicious because Mr. Sallie had no luggage. He decided to ask Mr. Cavins the same questions. The deputy received similar answers from Mr. Cavins. Learning that the car belonged to Mr. Cavins, the deputy asked if there were any drugs or contraband in the car. Although Mr. Cavins said "no", the officer saw a box of shotgun shells in the back seat. Mr. Cavins signed a consent form giving the deputy permission to search the car. Mr. Cavins then volunteered that "there might be a possibility [that] there was a Smith & Wesson semi-automatic handgun was underneath the driver's seat of the car." Surprise! Surprise! Having been charged with carrying a concealed weapon, Mr. Cavins filed a motion to suppress the loaded Smith & Wesson semi-automatic handgun that the deputy found under the seat. The trial court granted the motion and the state appealed. The trial court said that once Mr. Cavins had confirmed Mr. Sallie's answers, the officer should have sent the men on their way. Therefore, the trial court continued, continued detention was unlawful. The appellate court reversed. When the deputy approached Mr. Cavins, the court said, he was awaiting the results from the department's computer. As questioning Mr. Cavins did not prolong the detention, the court continued, the officer could question Mr. Cavins, and act upon the answers he received. The court reversed and remanded for trial. SENTENCING: R.C. 2929.14(E)(4), ALLOWING CONSECUTIVE SENTENCES, REQUIRES BOTH FINDINGS AND REASONS. State v. Kachermeyer, No. 99APA-439 (10th Dist. Ct. Apps., Franklin Co., 12-29-99) James Kachermeyer was convicted on his guilty pleas to two of three third-degree gross sexual imposition charges. The victim was Kachermeyer's eight-year-old granddaughter. The court sentenced him to a four-year-term and a twelve-month term, to be served consecutively. The court also found him to be a sexual predator. On appeal, the court found that the findings supporting a sentence greater than the minimum, thought scant, were sufficient. However, the court reversed the trial court=s ordering the sentences to be served consecutively. Unlike R.C. 2929.14(B), which requires a trial court to make findings before imposing a sentence greater than the minimum , R.C. 2929.14(E)(4) requires a court both to make findings and to state its reasons for making the findings. The trial court made the necessary findings, quoting parts of the statute. However, the appellate court said, the trial court failed to give any reasons supporting the findings. The court remanded for re-sentencing. SEXUAL PREDATOR HEARING: EVIDENCE. State v. Kachermeyer, supra. The appellant also attacked the court's finding him to be a sexual predator. Appellant claimed the trial court erred in relying on the presentence investigation report and on the court's own memory of the trial. The rules of evidence, the appellate court said, are inapplicable to sexual predator hearings. A trial court may rely on its memory of the trial. The court affirmed the sexual predator determination. POST-CONVICTION PETITIONS - TIME PERIOD FOR FILING BEGINS NOT UPON NOTICE OF RECORD FILING BUT WHEN TRANSCRIPT IS FILED. State v. Reeves, No. 17631 and 17768 (2nd Dist. Ct. Apps., Montgomery Co., 12-10-99). Edward Reeves was convicted on October 8, 1997 of aggravated murder, aggravated robbery, aggravated burglary, and having a weapon while being under disability. He filed a notice of appeal on December 31, 1997. The trial transcript was filed in the trial court and the court of appeals on April 21, 1998. The court of appeal sent notice on May 12, 1998 that a complete record had been filed. On November 9, 1998, Reeves filed a motion for post-conviction relief, which the trial court dismissed on January 6, 1999 as untimely. On February 4, 1999, Reeves filed a notice of appeal from that dismissal. On February 5, 1999, Reeves filed a Civ.R. 60(B) motion, which the court denied on April 12, 1999. Reeves appealed that dismissal and the appellate court consolidated the two appeals. Reeves argued that the 180 days should begin to run when the record is filed and that a transcript is not "filed" until the record is filed in the court of appeals. The Montgomery County Court of Appeals rejected that argument. The statute, R.C. 2953.21(A)(1), the court said, says the petition shall be filed no more than 180 days after "the trial transcript is filed in the court of appeals." The statute, the court continued, means what it says. Different parts of the record are often filed at different times. If the General Assembly had meant "complete record" the court concluded, it would have said so. The court affirmed the trial court. [Ed. Note: The opinion fails to explain why the transcript was filed at all, as the notice of appeal in the original appellate case would appear to have been untimely. The opinion gives no date for the original journal entry.] |
