 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
POST CONVICTION PETITIONS: RIGHT TO COUNSEL; EFFECTIVE ASSISTANCE OF COUNSEL. State v. Scudder, No.97APA12-1642 (10th Dist. Ct. Apps., Franklin Co., 12-3-98). On February 6, 1989, Kevin Scudder murdered fourteen-year-old Tina Baisden. He was convicted of aggravated murder, kidnapping, and attempted rape and sentenced to death. The Franklin County Court of Appeals and Ohio Supreme Court affirmed. Scudder filed a postconviction petition, which the trial court dismissed without a hearing. On appeal from that dismissal, Scudder argued, among other things, that he had been denied the right to effective assistance of counsel in the postconviction proceeding. Attempting to meet the requirements of the federal anti-crime bill limiting federal habeas actions, the Ohio General Assembly amended R.C. 2953.21 to provide capital defendants a right to be represented by counsel in postconviction proceedings. The General Assembly also, however, included the following in R.C. 2953.21(I)(2): [T]he Ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal. As a postconviction proceeding is civil in nature, the court continued, a party has no right to the effective assistance of counsel. Judge Tyack dissented. Despite the General Assembly's language, Judge Tyack opined that what the General Assembly really meant was to provide a capital defendant with assistance of effective counsel. Therefore, he continued, a petitioner must be allowed to argue that his postconviction counsel was ineffective. The court affirmed the trial court's dismissing the petition. EXPERT TESTIMONY: ABUSE OF DISCRETION TO DECLARE A WITNESS AN EXPERT ON DNA, WHEN. State v. Mitchell, No. 97-P-0074, (11th Dist. Ct. Apps., Portage Co., 12-4-98) After the husband of the unnamed victim left at 7:00 a.m. to play golf, someone climbed through an open window and raped the victim. James Mitchell was charged. Almost the only evidence connecting him to the crime were the results of DNA testing. The Portage County Court of Appeals held that the trial court abused its discretion in allowing Ms. Kay May to testify as a DNA expert. The court said the following: Kay May was called to testify regarding DNA evidence left at the scene in comparison to a sample provided by appellant. She testified that she has been a member of the Trace Evidence Department of the Cuyahoga County Coroner's Office for seven years, working chiefly with blood. She attended the College of Wooster, the University of Michigan, the State University of South Dakota, and has a Bachelor of Science degree in Medical Technology. She also testified that her training relating to DNA identification has been through practical application as opposed to educational seminars. She stated the Coroner's office has conducted DNA identification procedures for five years and has handled thirty-five hundred cases in that time. She has been qualified to testify as an expert witness in court on prior occasions. Appellant objected to Ms. May's qualifications in relation to DNA identification, but the court overruled his objection. Ms. May then testified generally about polymerase chain reaction ("PCR") typing, as opposed to RFLP typing, in DNA analysis. She opined, after comparing the DNA left at the scene with the sample provided by appellant, that the two samples were consistent. She stated that the markers found in both samples would be found in one in 1,606 in the black population, one in 19,409 in the Caucasian population, and one in 6,992 in the Hispanic population. A review of the record reveals no testimony that Ms. May, individually, was qualified to render an opinion on DNA evidence. Although she testified she has a Bachelor of Science degree in Medical Technology, she did not state that this degree entailed education in DNA analysis. Moreover, she testified that the Coroner's Office conducted thousands of DNA tests, but she did not testify that she was involved in those tests. She testified that she worked primarily with "blood," but she did not testify that she performed DNA tests on the blood with which she worked. Finally, even though she stated she has been qualified as an expert in court before, she did not state that she was qualified as an expert in DNA analysis. Resultantly, it was an abuse of discretion for the court, on this testimony, to qualify Ms. May as an expert in DNA. The court reversed and remanded "for further proceedings not inconsistent with this opinion." [Ed.Note: The appellant apparently failed to argue that the evidence was insufficient without the DNA evidence and, therefore, that the court should reverse for insufficient evidence. See State v. Lovejoy (1997) 79 Ohio St. 3d 440 in which the Ohio Supreme Court held that sufficiency is determined after improperly admitted evidence is excluded. The court so held despite a United States Supreme Court case to the contrary Lockhart v. Nelson (1998) 488 U.S. 33]. EXPERT TESTIMONY: OPINION-BASED-ON-FACTS-PERCEIVED-BY-EXPERT-OR-ADMITTED-INTO-EVIDENCE STANDARD RELAXED. State v. Gulertekin, No. 97APA12-1607, (10th Dist. Ct. Apps. Franklin Co., 12-3-98) Fugen Gulertekin, (AKA the Bexley Babysitter), was a child care provider recommended by an organization called "Action for Children." While Christina Lape was pregnant, she and her husband arranged for Gulertekin to care for the soon-to-be born baby. At first, the couple took their son, Patrick, to Gulertekin's home one day a week. Then Gulertekin cared for him full-time, along with five other children. There were problems immediately. Gulertekin complained that Patrick cried too much. She told Christina Lape that Christina spoiled Patrick by holding him too much. Twice Patrick had slight bruises, which Gulertekin claimed had been caused by other children dropping toys on him. Before the Lapes could employ a different babysitter, they were called to the hospital. Patrick, then five months old, had suffered a skull fracture and a subdural hematoma. The former, according to several doctors, could only have been caused by a severe blow to the back of the head. The latter was caused by shaking. Patrick survived but suffered serious permanent brain damage. Gulertekin, remaining calm and cold, told slightly different versions of the usual "choking-on-milk" story. The state's expert relied on some things, such as X-rays and CAT scans, that were omitted from evidence admitted at trial. The defendant's having been convicted of felonious assault, she argued on appeal that allowing the expert's testimony violated Evid. R. 703. That rule provides that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." Citing State v. Solomon (1991), 59 Ohio St. 3d 124, the Franklin County Court of Appeals held that the Supreme Court has relaxed its previous strict interpretations of Evid. R. 703. In Solomon, the Supreme Court said, "We find that where an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid. R. 703 has been satisfied." The court affirmed the conviction. SENTENCING: MERGER; REASONS FOR CONSECUTIVE SENTENCES. State v. Mirmohamed, No. 97APA11-1492 (10th Dist. Ct. Apps., Franklin Co.,12-3-98). Seventeen-year-old Rafik Mirmohamed and his adult friend, Christopher Graham, planned to rob a gas station. The two knew the attendant and knew he never moved from his chair. The two bought a pair of gloves. Each donned a glove and waited for customers to leave the station. Appellant, carrying a .357 magnum, entered the station and pointed the gun at the victim's chest. According to Appellant, the victim grabbed the gun, causing it to fire. The victim died. The grand jury indicted Appellant on charges of aggravated murder and aggravated robbery. The prosecutor agreed to accept a plea to involuntary manslaughter and aggravated robbery. Defense counsel apparently led the prosecutor to believe that the defendant was agreeing to a separate sentence on each count. However, after the court accepted the pleas, the defendant argued the court should merge the sentences. The state remonstrated that the agreement presupposed separate sentences. After the defendant had declined the court's offer to withdraw his plea, the court found that aggravated robbery and involuntary manslaughter were crimes of dissimilar import under R.C. 2941.25(A). Although unnecessary, the court also found the offenses were committed separately under R.C. 2941.25(B). The court imposed consecutive sentences of ten years plus a three-year-term for a firearm specification. On appeal, the defendant claimed both that the trial court should have merged the offenses and that the court had failed to justify consecutive sentences. The appellate court found it unnecessary to decide whether aggravated robbery and involuntary manslaughter were dissimilar offenses. Under the facts of this case, the court said, the aggravated robbery was completed when the robber entered the station. Therefore, the court said, the offenses were separate. Two of the three judges also held that what the trial court had said about the juveniles self-serving statements and the advance planning was sufficient to constitute findings under R.C. 2929.14(E)(3). Judge Deshler has apparently decided that only the statutory language is sufficient, to wit: that consecutive sentences are necessary to protect the public from future crime or to punish the offender. PLEA BARGAINS: PROSECUTOR IN ONE COUNTY CANNOT BIND PROSECUTOR IN ANOTHER COUNTY. State v. Barnett, No. 16281 (2d Dist. Ct. Apps., Montgomery Co., 1-9-98) The state appealed from the trial court's dismissing two counts of a five-count indictment. On May 19, 1995, John Oliver Barnett entered a no contest plea in Warren County to one count of gross sexual imposition involving Barnett's step-daughter. The Warren County prosecutors dismissed other charges and agreed that no further charges would be filed. On November 21, 1995, the Montgomery County Grand Jury indicted him on five counts of gross sexual imposition involving the same step-daughter and Barnett's own daughter. The Montgomery County trial court dismissed the charges alleging Barnett's step-daughter as the victim, finding that the agreement with the Warren County prosecutor's office prevented the state from filing additional charges. The state appealed and the Montgomery County Court of Appeals reversed. The trial court had relied on State v. Urvan (1982), 4 Ohio App 3d 151, in which the Cuyahoga County Court of Appeals held that double jeopardy prevents separate counties from pursuing separate charges arising from the same course of conduct. The Cuyahoga Court in State v. Mutter (1983), 14 Ohio App 3d 356, limited Urvan to its facts (a drug deal on the same day that involved two quantities of drugs). Drug sales on separate days, the Cuyahoga Court said in Mutter, are separate. The court also rejected Barnett's argument that because county prosecutors represent "the state" that the actions of one county prosecutor bind a different county's prosecutor. A county prosecutor's authority ends at the county border. The court reversed the trial court's dismissing the two counts and remanded for trial. |
