 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: EXCLUSIONARY RULE INAPPLICABLE TO CHARGES ARISING WHERE ILLEGALLY ARRESTED PERSONS ATTACK POLICE OFFICER. State v. Barnes, No. 16434 (2nd Dist. Ct. Apps., Montgomery Co., 12-5-97). The state appealed from the trial court's granting the defendant=s motion to suppress evidence. A Dayton police officer followed a car driven by Dwight Barnes from a known drug area. He stopped the car for failing to have an illuminated license plate. However, the car displayed a temporary license plate. Barnes was unable to produce a drivers license and the officer arrested him for driving without a license. Before the officer could search Barnes for weapons, a car approached and its occupants inquired about Barnes's arrest. The officer handcuffed Barnes until the car drove away. Then a pedestrian approached and also inquired about why Barnes was being arrested. The officer put Barnes in the cruiser and got in himself. A gunshot came from inside the cruiser. The officer removed Barnes and found a gun just outside the door of the cruiser. Barnes was indicted for carrying a concealed weapon and assault on a police officer. The trail court granted the defendant's motion to suppress evidence of the gun. Relying upon State v. Chatton (1984), 11 Ohio St. 3d 59, the trial court held that the officer was unentitled to ask Barnes for his drivers license once the officer saw the temporary tag. When a vehicle carries a temporary tag, the court said, it is not required to be illuminated. The Montgomery County Court of Appeals court agreed with the trial court's applying Chatton to the C.C.W. charge. However, the court reversed the trial court's suppression of the weapon in the prosecution for assault on a police officer. The "fruit-of-the-poisonous-tree-doctrine," the court said, fails to apply to all fruits. There comes a point when the detrimental consequences of illegal police conduct fails to justify the cost of applying the exclusionary rule. "In cases where the response has been a physical attack upon the officer making an illegal arrest or search courts have held that the evidence of this new crime is admissible." Application of the exclusionary rule in cases such as this, the court continued, would give the victims of illegal arrests and searches license to murder police officers. The court affirmed in part and reversed in part, remanding for trial on the felonious assault on a police officer, at which trial the state may introduce all evidence, including the weapon. SENTENCING: JUDGE MAY NOT PUNISH DEFENDANT FOR INSISTING ON A TRIAL State v. Warren, No.71196 (8th Dist. Ct. Apps., Cuyahoga Co., 1-15-98). In the category of "the-less-said-the better," the Cuyahoga County Court of Appeals ordered the trial court to reduce the sentence of Jerrell Warren because it found the trial court had imposed the maximum sentence for theft, three to five years, to punish the defendant for failing to accept the court's offer of probation and plead to robbery. Jerrell Warren stole four bags of shrimp from a supermarket. The private security guard said that Warren pushed him and tried to get away. Warren admitted stealing the shrimp but claimed that the security guard hit him in the nose, breaking it, for no reason. The grand jury indicted the defendant for robbery. The defendant was willing to plead to theft but the prosecution refused to accept any plea except to robbery. The defendant had prior theft convictions. The jury acquitted the defendant of robbery but convicted him of theft. At sentencing, the court asked the jury to stay and insisted that the defendant tell the jury that he, the judge, had promised him probation but that the defendant had refused. The court then explained that he disagreed with the jury's verdict because he thought the defendant was guilty of robbery. The court continued for several pages about how many cases he had, about a different robbery case in which the victim had been killed, about how he was "tired of processing guys like you." The Cuyahoga County Court of Appeals reversed. Although the sentence was within the statutory limits, the appellate court said the trial court's statements showed that he was punishing the defendant for going to trial. Additionally, the appellate court cited other cases in which the same judge had made demeaning comments. The appellate court remanded the case for resentencing. ARREST: POLICE COMMUNITY RELATIONS; RIGHT TO RESIST UNLAWFUL ARREST; NO RIGHT TO ASSAULT POLICE OFFICER. In Re Lemuel Rucker No. 15739 (2nd Dist. Ct. Apps., Montgomery Co., 12-31-97) Lemuel Rucker was adjudicated a delinquent child for having committed acts that, if he had been an adult, would have constituted two charges of resisting arrest and one charge of assault on a police officer. The City of Dayton has installed locked gates in some areas of the city to deter drug traffickers. The opinion fails to describe how the gates are located. However, one of the gates prevented Lemuel Rucker and others from pushing a disabled automobile, belonging to Rucker's mother, from the street onto property owned by the Rucker family. According to the opinion, getting the car onto the property without unlocking the gates would have required pushing it for fourteen blocks. A Dayton police officer was preparing to have the car towed as an abandoned vehicle when Lemuel Rucker objected. The opinion fails to fully describe their altercation. The officer had the capacity to unlock the gate but refused. After doing whatever he did to cause the officer to attempt to arrest him for assault, Rucker ran. Apprehended, he pushed the officers (other officers had arrived). Eventually, Rucker was arrested and charged with assault on a police officer and two counts of resisting arrest. Rucker argued on appeal that the officer illegally towed the car. The court held that Rucker lacked standing to object to the seizure of his mother's car. Rucker next argued that the officer brought the assault on himself by failing "to foster good relations between the community and the police." Rejecting that argument, the court said the following: It has not escaped the scrutiny of those willing to apply it that the various efforts of the campaign styled the "war against drugs" has caused some people who live in the principle battlegrounds of that war to resent the strategies and tactics applied to win it. That should not be a surprise. Americans resent government activity that affects the patterns of their private lives, even when the government is motivated by a benign purpose. Nevertheless, their resentment does not create a constitutional right to be free of the efforts government makes to achieve its purpose. Rucker next argued that the officer used excessive force and, therefore, he, Rucker, should have been entitled to resist. A lawful arrest, the court said, is an essential element of resisting arrest. However, an officer's using excessive force fails to render a lawful arrest unlawful. If the officer used excessive force, the court continued, the remedy is a civil suit against the officer. The court affirmed the adjudication. PRIVILEGE: ABUSER CANNOT GET PSYCHOLOGICAL RECORDS, WHEN. State v. Boehm, No. 16335 (2nd Dist. Ct. Apps., Montgomery Co. 12-31-97) William Boehm was charged with ten counts of rape, G.S.I. and felonious sexual penetration, alleged to have occurred over a three-year period. The alleged victim, his step-daughter, was seven when the alleged abuse began. He was convicted of six counts, including three counts of forcible rape. At trial, the defendant argued he was entitled to review psychological counseling records of the victim's. The psychologist filed a motion to quash a subpoena, asserting the privilege provided in R.C. 2317.02(G)(1). The defendant cited the exceptions to the privilege in R.C. 2317.02(G)(1)(a), when the communication "indicates clear and present danger to the client or other persons[.]" and there is "present or past child abuse." Therefore, the defendant claimed, the privilege should be inapplicable. The appellate court affirmed the convictions, saying the following: Though the allegations against Boehm involve past child abuse, it is obvious beyond peradventure that the purpose of the exception in R.C. 2317.02(G)(1)(a) is to protect persons from the person who allegedly poses the danger involved. Therefore, the alleged abuser cannot invoke his own alleged abuse to demonstrate the "clear and present danger" that waives the privilege. SEXUAL PREDATOR: CERTIFIED TO OHIO SUPREME COURT. State v. Bartis, No. 97APA05-600 (10th Dist. Ct. Apps., Franklin Co., 2-10-98) The Franklin County Court of Appeals certified the instant case, holding that the sexual predator law is constitutional, to the Ohio Supreme Court as in conflict with State v. Cook (Aug. 7, 1997), Allen County App. No. 1-97-21, unreported. The question certified is: Is the application of R.C.2950.09, which became effective January 1, 1997, a violation of The Ohio Constitution's prohibition on the passing of retroactive laws? The Ohio Supreme Court has already accepted Cook and several other cases raising the same issue. |
