 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
HEARSAY: ACCOMPLICE'S STATEMENT ADMISSIBLE, WHEN. State v Marshall, No. 75688 (8th Dist. Ct. Apps., Cuyahoga Co., 02-17-2000). Charles Marshall was convicted of aggravated murder and sentenced to death. The trial court vacated the sentence because the trial court failed to instruct the jury on the option of life without parole. The court granted the defendant's motion for a new trial, at which a different judge presided. Before Marshall's retrial, he moved to limit the prosecutor from introducing the co-defendant's statement, in-court identification by the victims, and other-act evidence of another robbery. The trial court granted the motion and the state appealed. The defendant was charged with robbing a Papa John's pizza restaurant and killing an employee. His co-defendant, Robert Martin, had confessed to the police that he and Marshall committed the robbery and that Marshall shot the employee. The Ohio Supreme Court in State v Madrigal (2000) 87 Ohio St. 3d 378 overruled that part of State v Gillian (1994) 70 Ohio St. 3d 17 that had held that an accomplice's statement was admissible because it was against the declarant's interest and, therefore, within a firmly-rooted hearsay exception. However, the court in Madrigal, according to the Cuyahoga County Court of Appeals, left open the possibility that such a statement could be admissible if "it contains particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statement's reliability." The co-defendant's statement in the instant case, although it named Marshall as the shooter, did not attempt to diminish Martin's culpability. Additionally, it was essentially consistent with the testimony of the surviving victims. Finally Martin had been convicted by the time of Marshall's second trial. The appellate court held that the trial court had abused its discretion in excluding the testimony. The appellate court also held that the trial court had abused its discretion in excluding in-court identification testimony, (apparently because there had been no previous photo identification or line-up, as the defendant had refused to cooperate). Finally, the appellate court held that the trial court had erred in excluding some evidence of a similar robbery a few months before. The court affirmed the trial court's excluding other evidence of the prior robbery as cumulative. The appellate court reversed and remanded for trial.
JURY WAIVER: CLERICAL ERROR MAY BE CORRECTED EVEN AFTER INITIAL CONVICTION REVERSED. State v Berry No. C-990354, 990365 (2d Dist. Ct. Apps., Hamilton Co., 04-14-2000). Terrell Berry was indicted for aggravated robbery, robbery, and firearm specifications. Having been convicted in a bench trial, Berry appealed. The appellate court, finding no signed, filed written waiver of Berry's right to a jury trial in the record, reversed and remanded. The trial court located the original waiver. It had been signed and filed before trial. Although the case number was correct, the waiver was filed under a co-defendant's suffix. The trial court ordered the record corrected, reinstated the conviction, and sentenced the defendant to a less-severe sentence than the court had originally imposed. The defendant appealed, arguing that the conviction from the first trial could not be reinstated because the trial court had been without jurisdiction. The appellate court disagreed. "Pless [State v Pless (1996), 74 Ohio St. 3d 333], clearly emphasized the fact of filing rather than the date of filing in determining the validity of jury waiver." Crim. R. 36, the court continued, allows a trial court to correct clerical errors at any time. Although the instant waiver had been filed before trial, the court cited cases in which the waiver had been filed months after the trial. As long as the record revealed a knowing waiver, the court said, a trial court had jurisdiction even if the waiver were filed months after trial. The Hamilton County Court of Appeals remanded, ordering the trial court to calculate the appropriate number of days of jail-time credit, but otherwise affirmed. JURY SELECTION: NO VIOLATION UNLESS DELIBERATE DISCRIMINATION. State v Dunn, No. 16904 (2d Dist. Ct. Apps., Montgomery Co., 09-29-2000). Escalating tension between Johnny Dunn and Jacque Olverson resulted in Dunn's shooting Olverson to death. A jury convicted Dunn of involuntary manslaughter and intimidation of a witness. During voir dire, Dunn complained that the panel contained no blacks and very few young persons. The court overruled his objections. However, the court allowed the transcript in another case to be admitted as an exhibit. In that case, the court had held a hearing into Montgomery County's method of jury selection. Apparently in an effort to avoid anticipated Y2K problems, the county purchased new equipment for registering voters. The names of voters comprising ten percent of all voters are selected for jury duty. The computer, however, alphabetized the names. The clerk decided an alphabetical list was insufficiently random (the opinion fails to say exactly what the objection was to an alphabetical list. So long as related persons did not serve on the same panel, the alphabetical list would appear to be more random than the ultimate result). The clerk used a number of computer programs that purported to sort jurors randomly. What the programs did, however, was group jurors by voter ID number and zip codes. The resulting panel was mostly persons over 55 years old (their voter ID registration numbers are lower), who lived in the same neighborhood. The appellate court nevertheless affirmed the conviction. Nothing shows intentional discrimination by the clerk. Moreover, persons living in other neighborhoods are not a "distinct group." MOTION TO WITHDRAW A GUILTY PLEA; TIME LIMITS OF R.C. 2953.21 APPLY TO MOTIONS UNDER CRIM. R. 32.1. State v Phelps, No. 00AP-109(10th Dist. Ct. Apps., Franklin Co., 09-26-2000). In 1995, Olisseo Phelps entered guilty pleas to five counts of aggravated robbery, three counts of kidnaping, two counts of felonious assault, and two firearm specifications. The Franklin County Court of Appeals affirmed on December 10, 1996. On November 3, 1999, the defendant moved pursuant to Crim. R. 32.1 to withdraw his guilty pleas. Without conducting a hearing, the trial court denied the motion and Phelps appealed. Holding that the trial court had been without jurisdiction to rule on the motion, the appellate court affirmed. The Ohio Supreme Court in State v Reynolds (1997), 79 Ohio St. 3d 158 held as follows: Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21." As a motion to withdraw a guilty plea based on alleged constitutional error is a postconvition petition, the appellate court continued, the time limits of R.C. 2953.21 apply. Appellant's motion was three years late. Appellant offered no explanation for the delay. As the trial court should have dismissed the motion, the appellate court affirmed the trial court's denying the motion. |
