 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
WITNESSES: COURT'S WITNESS State v. Newell, No. 1998CA00076 (5th Dist. Ct. Apps., Stark Co., 9-8-98). Paramedics arrived at the home of Ireka Thomas to find her with a bloody nose. She said her boyfriend, Roosevelt Newell, had punched her in the nose and kicked her in the stomach. Before Newell's trial on domestic violence charges, Thomas changed her story, telling the prosecutor that an unknown woman arrived on Thomas's porch and started hitting her. At trial, the prosecutor asked the court to call Thomas as a court's witness and impeached her on cross-examination. Newell was convicted and he appealed. On appeal, Newell claimed that the prosecutor had to show surprise and affirmative damage to impeach Thomas. The Stark County Court of Appeals affirmed. Evid. R. 614, the court said, allows a court to call a witness as a court's witness and allows each side to cross-examine that witness. Evid. R. 607, which requires surprise and affirmative damage before a party may impeach its own witness, the court continued, is inapplicable. Calling a witness as a court's witness is within the discretion of a trial court. The court affirmed the conviction. [Ed. Note: See also State v. Rogers, No. C-970190 (1st Dist. Ct. Apps., Hamilton Co., 6-19-98) for a similar holding]. ,hr> CLOSING ARGUMENT: PROSECUTORIAL MISCONDUCT; REFERENCE TO SILENCE OF DEFENDANT; DENIGRATING DEFENSE COUNSEL. State v. Smith, No. C-970349 (1st Dist. Ct. Apps., Hamilton Co., 10-16-98) Edward Smith did some masonry work on the home of Eugene Jenkins. Jenkins and Smith argued over the amount of money Jenkins owed Smith. On January 9, 1997, two women discovered Jenkins, slumped over the wheel of his truck, having been shot twice in the chest. One of the women saw Smith running from the truck. Earlier, the victim's son had seen Smith's truck parked behind the victim's barber shop. An acquaintance of the victim's, Gregory White, had seen Jenkins driving his truck while arguing with a passenger. Finally, police found a cassette tape in the truck. Smith's voice was recorded on the tape. After the murder, Smith tried to sell his trucks and packed two suitcases. He told people he was leaving town. He was arrested first. Having been convicted of murder and a firearm specification, Smith appealed, claiming that the prosecutor's closing argument referenced his right to silence and denigrated his defense attorney. The remarks were: Let's think about what you have heard in this case and the evidence that you have heard. And I have a list *** first of all, we have a lady who made a very good identification. *** But what happens then, the police start to investigate, and they find another man who happens to have seen a person who looked like this person with the victim minutes before the victim was killed. The odds go up a little bit, don't they? Get a little better. *** And then we have item number three. Mr. White says Mr. Jenkins wouldn't pick anybody up in the truck unless it was about business, a business partner, businessman, business. Odds go up a little bit more. Then the witness, and this is pretty important, because the witness has picked somebody who doesn't have an alibi. Smith had told police that he was alone and had no alibi. However, this statement was apparently not introduced into evidence. (The opinion is unclear. The dissent says the jury did not know about the statement. The opinion says nothing about the circumstances of the defendant's statement). The Hamilton County Court of Appeals in a 2-1 decision, held the prosecutor's remark was a comment on the defendant's failing to take the stand. The court also found the following argument by the prosecutor to be prejudicial misconduct: Mr. Burlew is a very nice man. He's one of the best criminal lawyers in Cincinnati. And I say that and I mean it, and I respect him greatly. And he's really, really good at making, and maybe you've heard the term before, chicken salad out of chicken -- fill in the blank. Maybe you've heard it before. Maybe you haven't. And he's done a superb job at doing that. Okay? And I can't emphasize to you enough, because he got up here at closing argument and he was arguing that I was going to attack him, and we're going to attack the lawyer because we don't have any evidence, so on and so forth; and I apologize to him ahead of time because I am going to attack him. I have to. He's put me in the position where I can do nothing else, because he has tried the whole case not by evidence, but by his speeches and misrepresentations. Defense counsel demanded an apology and the prosecutor apologized. Nevertheless, the Hamilton County Court of Appeals voted 2-1 to reverse. The dissent agreed the remarks were improper, but held the error was harmless because of the substantial evidence against the defendant. The court reversed and remanded for retrial. POSTCONVICTION PETITIONS: TIME TO FILE. State v. Price No. 98AP-80, (10th Dist. Ct. Apps. Franklin Co., 9-29-98) Kinte Price entered a guilty plea on July 12, 1995 , to voluntary manslaughter. Appellant failed to file a timely notice of appeal. On February 4, 1997, the defendant filed a motion for delayed appeal, which the appellate court granted on March 14, 1997. The record was filed in the court of appeals on June 4, 1997 and the court, on September 30, 1997, affirmed Price's conviction. On November 25, 1997 Price filed a petition for post conviction relief. The trial court dismissed the petition, on the ground that it was untimely. Price argued on appeal that his petition was timely because it had been filed within 180 days of June 4, 1997. The Franklin County Court of Appeals disagreed. The new time limits of R.C. 2953.21, the court held, have no provision extending the 180 day period if a delayed appeal is granted. The court affirmed the trial court. DUE PROCESS: CONDUCT OF JUDGE. State v. Abi-Abdallah, No. 73007 (8th Dist. Ct. Apps., Cuyahoga Co., 10-22-98). Iskandar Abi-Abdallah managed two Subway shops. Three employees, all girls under eighteen, accused him of grabbing, fondling, and kissing them, despite their struggles to resist. He was charged with four counts of gross sexual imposition, two of which the court dismissed after the state's case. The jury acquitted the defendant on one remaining count and convicted him on the other remaining count. Appellant argued on appeal that he was deprived of a fair trial because the judge, during a bench conference, called the defense attorney a "son of a bitch." Appellant also claimed that the judge should have recognized that she was too angry to provide the defendant a fair trial and , therefore, that she should have declared a mistrial. The Cuyahoga County Court of Appeals affirmed the conviction. No evidence, the court continued, showed that the jury had heard the remark or that what the appellate court called a "lapse of judicial decorum" affected the fairness of the trial. EXPUNGEMENT: TRIAL COURT WITHOUT DISCRETION TO SEAL RECORDS, WHEN; RETROACTIVE APPLICATION. State v. Glending, No. 74066 (8th Dist. Ct. Apps., Cuyahoga Co., 10-8-98) The state appealed from the trial court's granting the motion of Michael J. Glending to seal the records of his conviction for corruption of a minor, R.C. 2907.04. In 1992, Glending, then nineteen years old, was convicted of corruption of a minor, for engaging in sexual conduct with a fifteen year old girl. He was placed on probation. In 1997, Glending filed a motion to seal his record. The state opposed the motion, as R.C. 2953.36 was amended in 1994 to exclude sexual offenses, including corruption of a minor, from the offenses eligible for expungement. Without conducting a hearing, the trial court granted the motion to seal the record. The state appealed. The Cuyahoga County Court of Appeals reversed. The statute on sealing records, the court said, is a remedial law, which may be applied retroactively. EXPUNGEMENT: STATE COURT'S JURISDICTION TO ORDER SEALING OF RECORDS IN STATE OFFICES OF FEDERAL CONVICTIONS. In Re: Application of Larry Pacifico for Sealing of Records, No. 16768 (2d Dist. Ct. Apps., Montgomery Co., 9-18-98) Pacifico had been convicted in federal court of smuggling anabolic steroids. He filed a petition in state court to seal records of the conviction under R. C. 2953.32(A)(1). That section provides as follows: [A] first offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the conviction record. Application may be made at the expiration of three years after the offender's final discharge if convicted of a felony, or at the expiration of one year after the offender's final discharge if convicted of a misdemeanor. The trial court overruled the petition, finding that "R.C. 2953.32 violates the Supremacy Clause of The United States Constitution insofar as it purports to give common pleas courts of Ohio authority to seal federal records of conviction." The appellate court reversed. Although agreeing that a state trial court cannot order sealing of federal records, the court held that a state could order sealed any records pertaining to the federal conviction that were maintained by state officials, unless federal law required the state to maintain the record. The court remanded for a hearing to determine whether any such state records existed. EXPUNGEMENT: PRIOR DUI CONVICTION PRECLUDES EXPUNGEMENT. State v. Cartellone, No. 783812 (8th Dist Ct. Apps., Cuyahoga Co., 7-23-98). Having been convicted on a guilty plea to aggravated assault in 1990, Anthony J. Cartellon Jr. filed a motion on February 26, 1997 to seal his records under R.C. 2953.32. The court granted the application over the states' objection. Cartellone had previously been convicted of driving under the influence of drugs or intoxicants. The state appealed and the Cuyahoga County Court of Appeals reversed. As Cardellone was not a "first offender," the court held, the court was without jurisdiction to order his records sealed. The court held it was irrelevant whether Cartellone had been represented by counsel in the DUI action. |
