 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
DEATH PENALTY: MUST BE HEARD BY THREE-JUDGE PANEL OR JURY. HOWEVER, ERROR MAY NOT BE RAISED IN COLLATERAL ATTACK. State v. Swiger, No. 17864, 18416 (9th Dist. Ct. Apps., Summit Co., 1-28-98). Michael Swiger was indicted for two counts of aggravated murder with death penalty specifications. At his request, he was brought to trial before a single judge, who convicted him of involuntary manslaughter, kidnapping, and a firearm specification. His conviction's having been affirmed on appeal, Swiger filed a postconviction petition and a Civ.R. 60(B) motion for relief from judgment. He claimed that a single judge is without jurisdiction to preside over a trial on an indictment charging death penalty specifications. The trial court dismissed the postconviction petition and overruled the Civ.R. 60(B) motion, finding the issue could have been raised on direct appeal and was, therefore, barred by the doctrine of res judicata. The Summit County Court of Appeals affirmed. Although it is axiomatic that jurisdiction may be raised at any time, the court said, that rule applies only to jurisdiction over the person or jurisdiction over the subject matter. The instant case, the court said, involved a third kind of jurisdiction, "the authority of the trial judge to act within that [subject matter] jurisdiction." The court continued as follows: "The statutory requirement that a three-judge panel preside over capital cases is a procedural protection that, even if arguably 'jurisdictional,' falls within this third category of jurisdiction." The opinion cites many cases from other states and federal courts to show that this kind of "procedural" requirement may be waived and must be raised on direct appeal. The court affirmed the trial court. [Ed. Note: R.C. 2945.06 also provides that when a defendant pleads guilty to an indictment with death penalty specifications, a three-judge panel shall hear evidence and examine witnesses and determine the degree of offense. Recently the Ohio Supreme Court held in State v. Green (1998) 81 Ohio St.3d 100, that R.C. 2945.06 means what it says and vacated a plea based on a statement of the prosecutor only.] SEARCH AND SEIZURE: PLAIN FEEL; PROBABLE CAUSE. State v. Lee, No. 18441 (9th Dist. Ct. Apps., Summit Co., 2-4-98). The state appealed from the trial court's granting the defendant=s motion to suppress. Two Akron police officers driving in a high-crime area saw Cecil T. Lee leaning into a car. When he saw the officers, he "appeared startled" and rapidly walked away. When an officer approached Lee, Lee tried to shield the front of his body. His lips were cracked and burned, a phenomenon common with smoking crack. The officer conducted a patdown, feeling two cylindrical objects in Lee's jacket. Lee tried to grab the officer's hand. Asked what was in his pocket, Lee said "just a comb." The "comb" was a transparent bottle containing crack cocaine. Lee was indicted for possession of cocaine. The trial court granted his motion to suppress and the state appealed. The Summit County Court of Appeals reversed. The court held that the totality of the circumstances gave the officer probable cause to believe that the tube contained contraband. The court reversed and remanded the case for trial. SENTENCING: "BAD TIME" PROVISION; CONSTITUTIONALITY CANNOT BE DETERMINED UNTIL DEFENDANT HAS BEEN GIVEN BAD TIME. State v. Somerlot et al, No. E-97-002, (6th Dist. Ct. Apps., Erie Co., 1-23-98). Keith Somerlot, Jr., was convicted of burglary and two counts of forgery and sentenced to two years. He and several other defendants appealed the constitutionality of R.C. 2967.11, providing for bad time. The court held that the defendants lacked standing to appeal the issue, as they had not yet been subjected to bad time. The court affirmed the trial court. EVIDENCE, ADMISSIBILITY: EVID.R 410, PROHIBITING ADMITTING STATEMENTS MADE DURING NEGOTIATIONS, WAIVEABLE. State v. Miller, No. 15552 (2nd Dist. Ct. App., Montgomery Co., 10-31-97). Charles Miller appeals his conviction for drug trafficking. As part of a plea agreement, appellant agreed to stay in touch with law enforcement officers, take a polygraph, and testify truthfully. When asked if appellant's drugs had come from a particular dealer, he said they had come from another dealer. Part of the agreement was that if appellant breached the agreement, anything he had said would be admissible against him. Appellant was released and disappeared. At his trial, appellant's theory was that he had found the drugs in jail. The trial court allowed the state to introduce the defendant's statement to the officers, although the court found the statement would otherwise have been excluded by Evid.R. 410. The defendant was convicted and he appealed. Citing United States v. Mezzanatto (1995) 115 S.Ct. 797, the Montgomery County Court of Appeals affirmed. A defendant may waive application of evidentiary rules. POSTCONVICTION PETITIONS: "ACTUAL INNOCENCE" NOT A CONSTITUTIONAL ISSUE; RES JUDICATA PROPER, WHEN; BRADY STILL APPROPRIATE STANDARD. State v. Watson, No. CA97-07-145 (12th Dist. Ct. Apps., Butler Co., 2-17-98). The State Public Defender's office filed a postconviction petition on behalf of Kevin Watson. Watson was convicted of robbing a furniture store and killing the owner. Having been sentenced to death, he appealed to the Ohio Supreme Court, which found residual doubt of his guilt and vacated the death penalty. In his petition, Watson claimed that the Supreme Court holding, combined with affidavits from witness that contradicted minor points of witnesses at trial, showed that Watson was actually innocent. Finding that the claim of actual innocence, among others, were barred by the doctrine of res judicata, and that other claims were unsupported by sufficient evidence, the trial court dismissed the petition without granting a hearing and Watson appealed. The Twelfth District Court of Appeals affirmed. The United States Supreme Court in Herrera v. Collins (1993), 506 U.S. 390, the appellate court said, held that a claim of actual innocence is non-constitutional. Only constitutional issues may be raised in postconviction petitions. Moreover, the claim is barred by the doctrine of res judicata. Although the Ohio Supreme Court vacated the death penalty, the appellate court said, the supreme court found sufficient evidence to support the conviction. The twelfth district court held that the minor contradictions contained in the affidavits were unlikely to change the result if a new trial were granted. Appellant argued that when a defendant shows that the state withheld Brady material, that the burden of proof should shift to the state to show that beyond a reasonable doubt that the result of the trial would have been the same. The Twelfth District Court of Appeals declined to overrule the United States Supreme Court. Finally, the court said, the evidence attached to the petition was insufficient to show a constitutional violation and, therefore, insufficient to justify a hearing. Quoting from State v. McGuire (Apr. 15, 1996), Preble App. No. CA95-01-001, unreported, affirmed (1997), 80 Ohio St.3d 390, the court said "An appellate court is not a performing bear, required to dance to each and every tune played on appeal." |
