 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
DOUBLE JEOPARDY: IMPOSITION OF BAD TIME PRECLUDES CRIMINAL CHARGES FOR SAME CONDUCT. State v. Nutt, No. 98CA36 (4th Dist. Ct. Apps., Pickaway Co., 9-16-99). Michael Nutt, serving a sentence for sexual battery, persuaded his wife to smuggle marijuana to him. An informer warned prison officials, who intercepted Mrs. Nutt and confiscated two marijuana cigarettes. Prison officials imposed 90 days bad time on Nutt and the trial court imposed a sentence of nine months for conspiring to bring drugs into a prison facility (R.C. 2923.03 and 2921.36). Nutt, who had already served the 90-day bad-time, argued not that bad time was itself unconstitutional but that imposing both bad time and the nine-month sentence violated the double jeopardy clause. Disagreeing with the Warren County Court of Appeals case of State ex rel Bray Russel, No. CA98-06-068 (Nov. 9, 1998), which upheld bad-time as the functional equivalent of revoking good time, the Pickaway County Court of Appeals held that the court's imposing sentence for the offense of conspiring to bring drugs onto prison property, after Nutt had been subjected to bad time, violated the double jeopardy clause. The court reversed and ordered the defendant discharged.
NEW SENTENCING: BAD TIME AND POST-RELEASE CONTROL UNCONSTITUTIONAL. State v. Jones, No. 74247 (8th Dist. Ct. Apps., Cuyahoga Co., 9-2-99). Woods v. Telb, No. L-99-1083 (6th Dist. Ct. Apps., Lucas Co., 6-23-99). White v. Koneth, No. 99-T-0020 (11th Dist. Ct. Apps., Trumbull Co., 3-23-99). James R. Jones in 1996 entered a guilty plea to carrying a concealed weapon. When prison authorities released him after his nine-month sentence. The prison authority imposed three years of post-released control. Six months later, the prison authorities alleged that Jones had violated the terms of his post-release control and ordered him to jail. Jones filed a motion for delayed appeal, which the appellate court granted. The provision allowing the parole board to impose post-release control, R.C. 2967.28, the Cuyahoga Appellate Court held, is an unconstitutional delegation of authority. The Appellate Court reversed the trial court's denying the defendant's motion to vacate the order of post-release control and ordered the defendant discharged. In Woods v. Telb, supra, the Lucas County Court of Appeals held that post-release control, bad time, and any other provision that allowed the parole board to impose additional time upon a defendant who had served his sentence, violated the separation of powers clause and due process. The court ordered Milton Woods, who had served his sentence for theft, discharged on a state petition for a writ of habeas corpus. Samuel White also filed a state petition for a writ of habeas corpus. White was sentenced to sixteen months for receiving stolen property. While serving that sentence, he was accused of assault. The parole board imposed bad time (the opinion implies that no criminal indictment was filed). Having served his original sentence, White filed a petition for a state writ of habeas corpus. The Trumbull County Court of Appeals held a habeas action the appropriate remedy. The court then declared R.C. 2967.11 unconstitutional and ordered the defendant discharged. EVIDENCE: NON-TESTIFYING ACCOMPLICE'S STATEMENT INADMISSIBLE, WHEN. State v. Bohannon, No. C-990386 (1st Dist. Ct. Apps., Hamilton Co., 3-10-00). Richard Bohannon was charged with burglary, misuse of a credit card, and receiving stolen property. The statement of a non-testiying accomplice was admitted in evidence pursuant to State v. Gilliam (1994), 70 Ohio St. 3d 17. Bohannon was convicted and he appealed. Citing State v Madrigal (2000), 87 Ohio St. 3d 378 and Lilly v. Virginia (1999), 527 U.S. 116, the Hamilton County Court of Appeals found error but held the error harmless. The Ohio Supreme Court in State v. Gilliam, supra, had held that the statement of an accomplice that implicated both the defendant and the accomplice was admissible because it fell within "a firmly rooted hearsay exception." The case has always been troublesome because the court failed to even mention Bruton v. United States (1968), 391 U.S. 123. The Ohio Supreme Court in State v. Madrigal (2000), 87 Ohio St. 3d 378, overruled State v. Gilliam, supra. The court in Madrigal said that an accomplice's statement is not within a firmly rooted hearsay exception. A statement of an accomplice is admissible, the court in Madrigal continued, if the statement contains adequate indicia of reliability. "The circumstantial guarantees of trustworthiness are those that exist at the time the statement was made and do not include those that may be added by using hindsight." The Hamilton County Court of Appeals held the statement against Bohannon lacked sufficient indicia of reliability. However, the court affirmed the conviction because the remaining evidence, including Bohannon's own statement, overwhelmingly proved Bohannon's guilt.
SEARCH AND SEIZURE: UNLAWFUL INVESTIGATORY STOP THAT PROMPTS FLIGHT AND LEADS TO LAWFUL SEIZURE DOES NOT RENDER EVIDENCE INADMISSIBLE. State v. Wagoner, No. CA17878 (2d Dist. Ct. Apps., Montgomery Co., 2-25-2000). The state appealed from the trial court's granting the defendant's motion to suppress. Dayton police officer Robert Rike worked for the Dayton Metropolitan Housing Authority task force. He saw a pickup truck parked at the curb in a public housing project notorious for drug sales. Two men were inside the truck. A third man, Marcus House, was leaning inside the truck. When House saw Rike, House reached inside the truck before walking away. Rike grabbed House. The driver of the truck started the engine. Both Rike and Sgt. Williams, who was now standing in front of the truck, told the driver to turn the engine off. Instead, the driver backed up and fled the wrong way on a one-way street. Eventually, other officers stopped the truck. Officer Wright approached the passenger, Wagoner. Illuminating the inside of the truck with his flashlight, the officer saw cocaine in plain view. After conducting a field test, officer Wright arrested Wagoner and charged him with possessing cocaine. The trial court suppressed the cocaine because, the court said, Officer Rike lacked a reasonable suspicion to investigate or to attempt to stop the truck from leaving. The state appealed. Although the appellate court agreed that the initial investigation and attempted stop had been illegal, the court reversed. Police discovered the cocaine, the appellate court said, not as a result of Officer Rike's invalid action but as a result of the unquestionably valid traffic stop. The court remanded for trial. INSTRUCTIONS: DEFENDANT ENTITLED TO SPECIAL INSTRUCTION ON CREDIBILITY OF INFORMER, WHEN. State v. Keith, No. 97-CA-44, (5th Dist. Ct. Apps., Richland Co., 2-24-2000). Durad Keith was charged with aggravated trafficking. An informer, Ricky Justice, testified against Keith and Keith's co-defendant. Counsel for the co-defendant asked the court for a special instruction cautioning the jury about the credibility of Justice. The court refused to give a special instruction. Having been convicted, Keith argued on appeal that the court had erred in refusing to give the instruction. The Richland County Court of Appeals agreed. Although Keith's lawyer failed to request the instruction, the appellate court said, the co-defendant's request preserved the objection. The court reversed and remanded for retrial. |
