 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
BATSON: STANDARDS FOR RACIALLY NEUTRAL REASON. State v. Melvin, No. 84471, (8th Dist. Ct. Apps. Cuyahoga Co., 5-12-05), 2005 Ohio 2329. Two men got in a fight over a woman. Shannon Dorsey hit Darcel Melvin. When one of Melvin's friends handed Melvin a gun, Dorsey ran away. Melvin shot him twice in the back. Charged with aggravated murder, Melvin's defense was that not he but his friend shot Dorsey. During voir dire, Melvin claimed that the state violated Batson v. Kentucky (1986), 476 U.S. 79 because, he said, the prosecutor's reasons for excluding two black prospective jurors were pretextual. The appellate court disagreed, as follows: Here, the record supports the trial court's finding of no discriminatory intent in excluding the two potential black jurors. First, the state explained that it exercised its challenge with respect to juror number 10 (a black man) because he had an attitude that the state believed favored the defense and he was perceived to be somewhat unstable in the community because he held temporary employment. Second, the state explained that it exercised another challenge with respect to juror number 9 (a black woman) because she became "teary-eyed" during the voir dire and the state perceived that she would be favorable to the defense. At the time of the state's challenge to juror number 9, there were four black potential jurors seated. In addition, the next replacement juror to take juror number 9's seat was black. Based on all the circumstances of the challenges and the total constitution of the jury, the trial court did not err in denying appellant's Batson objections, as he failed to prove purposeful discrimination. Thus, appellant's first assignment of error is overruled. The court affirmed the conviction. [Ed. Note: On June 13, 2005, the United States Supreme Court decided two Batson cases that could make Batson challenges more difficult to confront. In Johnson v. California, No. 04-6964, the court said that California could not set a standard of "more likely than not" satisfy the prima facie first part of the Batson test. In the more serious case, Miller-El v. Dretke, No. 03-9659, a majority of the court (Scalia, Rehnquist, and Thomas dissented), nit-picked the record, comparing answers between black and white jurors, to reverse both state and federal courts. The United States Supreme Court said that under all the circumstances, the prosecutor's reasons were pretextual.] SEARCH AND SEIZURE: CONSENT, VOLUNTARY, WHEN. State v. Schlarb, No 2004CA00224, (5th Dist. Ct. Apps., Stark Co., 3-7-05). The State appealed from the trial court's granting Brittany Rae Schlarb's motion to suppress evidence seized pursuant to her consent to search her apartment. An anonymous caller told the Stark County Children's Services Department that Schlarb, who had an eighteen-month-old baby, was operating a methamphetamine lab in her basement. After several attempts, both with and without a police officer present, social worker C.J. Cross found Schlarb at home. Ms. Schlarb admitted Ms. Cross to her home and showed her the bedroom. In plain view was a white powder, which Ms. Schlarb said was methamphetamine. Asked about the noise coming from the basement, Ms. Schlarb said her roommate was in the basement. Ms. Cross called the police. Several officers arrived. Having obtained both verbal and written consent to look around the apartment, the officers found drug paraphernalia and drugs. The police charged Ms. Schlarb with possession of methamphetamine and drug paraphernalia. The Stark County Grand Jury indicted her on one count of possession of drugs. Ms. Schlarb filed a motion to suppress evidence, which the trial court granted. The trial court said that Ms. Schlarb's consent was involuntary. "Knowing that her child's ability to stay with her may be in the balance," the trial court wrote, "is the owner really going to deny the investigator the ability to check out the property?" The Stark County Court of Appeals reversed. Although the involvement of the social worker was a factor to consider, the appellate court said, it was not the only factor. Nothing showed any coercive conduct by police officers. Therefore, the appellate court held, the trial court erred in finding the consent involuntary. The court reversed and remanded for trial.
WITNESSES: PROPER TO CALL VICTIM WHO RECANTS IDENTIFICATION AS COURT'S WITNESS. State v. Kiser, No. S-03-028, (6th Dist. Ct. Apps., Sandusky Co. 5-28-05) 2005 Ohio 2491. Three men entered the home of Sara Dannenberger and Mickey Hardy. They took cash and marijuana. Ms. Dannenberger told the police she knew that two of the men were Julian Kiser and Mario Taylor. Both Ms. Dannenberger and Mr. Hardy identified Kiser and Taylor from a photo array. Police charged Kiser with aggravated burglary and aggravated robbery, with firearm specifications. Before trial, Ms. Dannenberger recanted her identification. The day before trial, the prosecution filed a motion requesting the court to call Ms. Dannenberger as a court's witness. The court agreed and the state examined Ms. Dannenberger as if on cross-examination about her prior statements. The jury acquitted Kiser of aggravated burglary and the firearm specifications but convicted him of aggravated robbery. He appealed. The defendant argued the state is required to establish a prima facie case before a court calls a witness under Evid. R. 614(A). The Sandusky County Court of Common Pleas held the trial court properly called the witness as a court's witness. No authority requires the state to establish a prima facie case, the court said. Moreover, the state need not show surprise to cross-examine a court's witness. A court may call a witness as a court's witness within the court's discretion. As appellant failed to show an abuse of discretion, the court affirmed the conviction. INCONSISTENT VERDICTS: PERMISSIBLE State v. Kiser, supra. As hard as it is to believe, courts still sometimes accept arguments that inconsistent verdicts require reversal. Fortunately, the Sandusky County Court of Appeals was unimpressed with Kiser's argument that acquittal on the gun specification meant he must also be acquitted on the aggravated robbery charge. Citing Dunn v. United States (1932), 284 U.S. 390 and United States v. Powell (1984), 469 U.S. 57, the court rejected Kiser's claim that the conviction was against the weight of the evidence. DISMISSING INDICTMENT: ABUSE OF DISCRETION TO DISMISS WITH PREJUDICE UNDER CRIMINAL RULE 48(B) BECAUSE VICTIM TWICE FAILED TO APPEAR. State v. Steel, No. 85076, (8th Dist. Ct. Apps., Cuyahoga Co., 5-26-05), 2005 Ohio 2623. On the day of trial, when the defendant Ratoya Steel rejected a plea offer, the State asked for a second continuance to locate the victim of the unspecified offense. The court, observing that the victim had twice failed to appear, dismissed the indictment under Crim. R. 48(B), with prejudice. The State appealed. The Cuyahoga County Court of Appeals reversed. Crim. R. 48(B), the court said, provides no dismissal with prejudice. An indictment may be dismissed with prejudice when a defendant has been denied a constitutional or statutory right, the violation of which would, in itself, bar prosecution. The court remanded, ordering the trial court to amend its entry to a dismissal without prejudice and remarked that the state could re-indict.
CONSTITUTIONAL LAW: OVERBREADTH DOCTRINE LIMITED TO FIRST AMENDMENT RIGHTS. State v. Thomas, No 85155 (8th Dist. Ct. Apps., Cuyahoga Co., 5-26-05), 2005 Ohio 2631. The State appealed from the trial court's dismissing the indictment charging George Thomas, a security guard at a high school, of sexual battery of a seventeen-year-old student at the school. The trial court held R.C. 2907.03, sexual battery, vague and overbroad. The trial court's entry says the following: Defendant's motion to dismiss is granted. The State of Ohio has failed to produce any evidence that the defendant was a person in authority and as such, the statute must be strictly construed against the state. The statute at issue with respect to a person in authority is overbroad and unconstitutionally vague. The appellate court called the trial court's reliance on the overbreadth doctrine misplaced. The application of the overbreadth doctrine is limited to the First Amendment context. The defendant argued no First Amendment right. The appellate court reversed and remanded for trial.
CONSTITUTIONAL LAW: R.C. 2907.03 NOT VAGUE. State v. Thomas, supra. The trial court also agreed with the defendant's argument that the language "other person in authority" is vague. The appellate court disagreed.
TRIAL PROCEDURE: CRIMINAL LAW HAS NO SUMMARY JUDGMENT. State v. Thomas, supra. Finally, the appellate court held, as has every appellate court that has considered the issue, that trial courts may not dismiss indictments pretrial based on weight of the evidence. The defendant argued that a security guard at a high school is not a person in authority. The trial court's entry stating that the state has failed to produce any evidence that the defendant was a person in authority, is inaccurate, as the trial court dismissed the indictment before the state had a chance to produce any evidence. The appellate court said that questions of sufficiency of the evidence must be determined at trial. DNA: ONCE IN THE DATA BANK, DEFENDANT LOSES EXPECTATION OF PRIVACY. State v. Whitfield No 1-04-80 (3d Dist. Ct. Apps., Allen Co., 5-9-05), 2005 Ohio 2255 Michael Whitfield's motion to suppress evidence having been denied, the jury returned guilty verdicts on four counts of rape and one count of aggravated burglary. Whitfield appealed, arguing that his DNA sample, voluntarily given in another rape investigation, could not be used against him in this case. Appellant argued his consent to provide the sample in the unrelated rape investigation should be limited to that case and was not consent to keep the sample for use in other cases. The court of appeals affirmed. A consent that is voluntary when given, the court said, cannot be rendered involuntary retroactively. Moreover, once the sample was in the possession of the state, the defendant lost all expectations of privacy in the sample. OBSTRUCTION OF OFFICIAL BUSINESS: WARNING OTHERS THAT A PURPORTED PROSTITUTE IS A POLICE OFFICER IS OBSTRUCTING OFFICIAL BUSINESS. State v. Jeter, No. C-040572, (1st Dist. Ct. Apps., Hamilton Co., 4-22-05), 2005 Ohio 1872. Gerald Jeter appealed from a municipal court conviction of obstructing official business under R.C. 2921.31(A). Cincinnati police were conducting a sting operation to arrest those soliciting prostitutes. A police officer posing as a prostitute stood on a street corner waiting for cars to approach her. After the undercover officer had negotiated an act and a price with a prospective customer, she motioned to other officers nearby, who then arrested the customer. Gerald Jeter stood on the corner opposite the undercover officer for ten to fifteen minutes. After Jeter saw one man arrested, he yelled at the drivers of two cars that stopped, warning them that the undercover officer was a police officer. The two drivers hurried away. Officers arrested Jeter for obstruction of official business (It is unclear whether he was also a prospective customer or an officious intermeddler.) On appeal, Jeter argued that words were not acts. Therefore, he claimed, he had committed no act that hampers or impedes a public official in the performance of the public official's lawful duties. The appellate court disagreed. Jeter's words, the court said, not only hampered the officer's performance of duty, but also put her in danger. Under those circumstances, a word could be an act. The content-based restriction on speech, the court continued, was sufficiently justified by the government's compelling interest of protecting police officers. The court affirmed the conviction.
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