 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SENTENCES: DANGEROUS OFFENDER A BROADER CATEGORY THAN PSYCHOPATHIC OFFENDER. State v. Cole, No. 97APA05-673 (10th Dist. Ct. Apps., Franklin Co., 12-16-97). Samuel Cole was charged with felonious assault and pled guilty to attempted felonious assault. The trial court determined that Cole was a "dangerous offender" as defined in R.C. 2929.01(B) and, therefore, ineligible for probation. The Franklin County Court of Appeals reversed and remanded, holding that the trial court had failed to consider the defendant's "character, condition and behavior pattern," as required by the statute. After hearing on remand, the trial court again found the defendant to be a "dangerous offender" and, therefore, ineligible for probation. The defendant appealed the finding. A 'dangerous offender' is "[A] person who has committed an offense, whose history, character, and condition reveal a substantial risk that he will be a danger to others, and whose conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences." The appellant argued that the state had to prove him to be a "psychopathic offender" to prove him to be a "dangerous offender." The Legislative Service Commission notes to former R.C. 2929.01(B) state that the two terms are synonymous. The term "psychopathic offender" appeared in former R.C. 2947.24 et seq, statutes dealing with "mentally deficient offenders." Former R.C. 2947.24 required evaluation and testimony by an expert witness. The Franklin County Court of Appeals rejected appellant's argument. A psychopathic offender may be a sub-set of a dangerous offender, the court said, but the categories of "dangerous offender" and "psychopathic offender" are different, "legislative service notes to the contrary." The court affirmed the trial court's finding. JUVENILES: JUVENILE COURT PROPERLY REFUSED TO CONSIDER A MOTION TO SUPPRESS A JUVENILE'S STATEMENT AT A BINDOVER HEARING. State v. Whisenant, No. 95-P-0112 (11th Dist. Ct. Apps., Portage Co., 4-10-98). Disliking his father's live-in-girlfriend, Nevada Lynn Davis, fifteen year old Jimmie Whisenant Jr. decided to kill her. As Ms. Davis, laden with groceries, tried to enter the front door of the trailer where she lived with Jimmie and his father, Jimmie, who had exited the trailer through another door, sneaked up behind Ms. Davis and slit her throat with a kitchen knife. When Ms. Davis tried to escape, Jimmie caught her and stabbed her in the chest. Jimmie then forced the remarkably resiliant Ms. Davis to go inside the trailer and lean over the bathtub so he could wash her blood down the drain. Although Ms. Davis remained conscious for two hours and begged Jimmie to call for an ambulance, Jimmie instead called a few friends, just to chat. Losing patience with Ms. Davis's stubborn refusal to die, Jimmie tied two shoe laces together, with which he strangled her. A neighbor found Ms. Davis' body outside the trailer. When questioned at the scene, Jimmie readily admitted having "had enough" and killing her. At the bindover hearing in juvenile court, Jimmie attempted to file a motion to suppress. The juvenile judge refused to hear the motion, finding it premature. The court relinquished jurisdiction. Jimmie was convicted of aggravated murder, and a death penalty specification of having committed the murder in the course of a kidnapping. The court sentenced him to life with parole eligibility in thirty years. On appeal, appellant argued the juvenile court should have ruled on his motion to suppress the statement. Surveying the law from other states, the court held that the juvenile court had properly declined to decide the motion. A bindover hearing, the court said, is not an adjudication. Therefore, the court held, a juvenile had no right to have issues such as the admissibility of the evidence decided at a bindover hearing. The court affirmed the conviction. INDICTMENT: IMPROPERLY DISMISSED, WHEN; A DIFFERENT GRAND JURY MAY REINDICT. State v. Tankersley and Staimpel, Nos. 72398, 72399 (8th Dist. Ct. Apps., Cuyahoga Co., 4-23-98). The state appealed from the trial court's granting the defendants' motions to dismiss the indictments. Two off-duty police officers, Michael Tankersley and Todd Staimpel, allegedly assaulted Rickey Stephens and broke a window from the door of his home. On October 3, 1995, the Grand Jury indicted the two for criminal damaging and assault. At a pretrial conference, Stephanie Tubbs Jones told the court that unless both officers pleaded guilty and resigned from the police force, she intended to indict them for more serious charges. Staimpel agreed. Tankersley agreed to resign but refused to plead guilty. Over the objection of both defendants, the trial court granted the prosecutor's motion to dismiss the indictments. On the following day, the state presented the case to a different grand jury, which indicted the defendants for felonious assault and vandalism. When the second indictment came before the court, the defendants moved to dismiss, claiming that the evidence before the second grand jury was impermissibly different from the evidence presented to the first grand jury. The trial court granted the motion to dismiss, noting that it was unacceptable to "Grand Jury shop." The state appealed. Crim.R. 48, the Cuyahoga County Appellate Court said, has no provision for dismissing an indictment "with prejudice." When an indictment is dismissed, reindictment is prohibited only if some statutory or constitutional violation precludes trial. The court cited State v. Sutton (1979), 64 Ohio App.2d 105, among other cases. No statute prohibits presenting a case to a different grand jury after a dismissal or nolle prosequi. R.C. 2941.58, in fact, contemplates submitting a case "to the next succeeding grand jury" when necessary. The court also held that Tankersley and Staimpel had failed to show selective prosecution but had merely alleged they were being treated differently because theirs was a "high profile" case. The appellate court also rejected the defendants' argument that reindicting for more serious charges after Tankersley refused to plead was vindictive prosecution. There is no requirement, the court said, that the prosecutor immediately indict on the most serious charges. "An initial indictment, used as a starting point for plea negotiations, does not limit the extent of the prosecution; a prosecutor may file additional charges if an attempt to reach a plea agreement is unsuccessful." The defendants argued that the prosecutor was motivated by "media coverage." Mrs. Jones said on the record that she became involved with the case only because most of her assistants were busy with other cases (Ed. Note: An interesting defense theory: the elected prosecutor is only allowed to represent the state in cases nobody cares about). The appellate court said the defendants had failed to prove the prosecutor's motivation. Although the appellate opinion is unclear on this point, the appellate court seems to adopt the correct standard that a prosecutor's motive for prosecuting is relevant only if the prosecutor's decision is motivated by race, religion, or other impermissible criteria. The appellate court said nothing about the state's argument that a trial court has no supervisory authority over prosecutors. However, the appellate court held that the instant trial court's dismissing the indictment was an abuse of discretion. The court reversed and remanded the case for trial. DISCOVERY: REMEDY WITHIN DISCRETION OF TRIAL COURT. State v. Morris, No. 97APA07-897 (10th Dist., Franklin Co., 5-5-98). Fifty-five year old Kenneth Morris, a patron of campus bars, followed twenty year old Monica Schuette when, having argued with her live-in boyfriend, she left a campus bar to walk home. He caught up with her and was solicitous, asking if she was all right after the argument. He suggested she come to his apartment to smoke marijuana. He assured her he was uninterested in sex. Because she was unwilling to face her boyfriend when he returned home and because she recognized Morris as a regular at the bar, she foolishly agreed. Morris produced no marijuana but insisted that she have a drink and play cards. When Ms. Schuette tried to leave, Morris produced a knife (apparently used as a security device in his front door). He told her he only wanted to see her naked and if she allowed this she could then leave. He was, of course, lying about that, just as he lied about his intent and his possession of marijuana. Morris forced her to engage in oral sex and vaginal intercourse. When Ms. Schuette reacted negatively to the suggestion that they should "see each other again," Morris told her to "get her shit and get out." She got out, carrying her shoes into a February early morning. When the police arrived at Morris's door, Morris, wearing no clothes at all, opened the door and invited the police inside. Asked to get dressed and come to the station, Morris uttered the classic rapist's exclamation, "You come here and charge me with rape." Of course, the officers had said nothing about rape. Finally, (you knew it was coming), Morris's story was that twenty-year-old Ms. Schuette had found his fifty-five year old body so irresistible that it was she who had followed him home, like the proverbial puppy. The grand jury indicted Morris for kidnapping and two counts of rape. In the prosecutor's file was a statement that, three years before, a woman named April Runge had accused Morris of rape but had been discouraged by the police from prosecuting because tests for semen were negative. The night before opening statements, after the jury had been sworn, the detective assigned to Ms. Schuette's case faxed the police report in Ms. Runge's case to the prosecutor. The next morning, the prosecutor delivered the report to defense counsel and announced her intention to call April Runge to testify. Twenty-one year old April Runge had, three years earlier, had an argument with her boyfriend in a campus bar. Morris suggested she go to his apartment so she "would not be alone." They would smoke marijuana and watch a movie. She had nothing to worry about, he assured her, as there would be no "hanky-panky." After she had been at Morris's apartment for a while, without having any marijuana, she decided to leave. Morris produced a gun and told her he only wanted to see her naked. Both Morris and Ms. Runge were drunk. After Morris forced her to engage in oral sex and vaginal intercourse, they both fell asleep or passed out. Waking the next morning, Ms. Runge fled. When interviewed, Morris admitted having sex with a "girl named April," but it was according to Morris, consensual. Hell hath no fury like a defense attorney facing such damaging evidence. Defense counsel argued that excluding the evidence was the only fair remedy. Each time the court granted a continuance to investigate, defense counsel discovered something else he needed to do. Asked how long he needed, defense counsel asked for a month. When the court responded that a month was unreasonably long, defense counsel said it was impossible to know how long he needed. The court agonized for days, trying to balance the interests of the defendant and the state. The court found the discovery violation to be inadvertent but ordered the prosecutor to assist defense counsel in his investigation. The prosecutor produced April Runge to be interviewed by the defense attorney. The prosecutor provided Ms. Runge's medical records. The prosecutor located Ms. Runge's former roommate, now living in Florida, and arranged for defense counsel to interview her. Thirteen days and four continuances after first receiving the police report, defense counsel asked for a continuance to locate records showing that Morris had been working sometime during the day Ms. Runge was attacked. The work records, which had been destroyed, would not, defense counsel admitted, show the time of day. Defense counsel asked, nevertheless for time to find copies of the work records that might still exist somewhere. The court refused and Ms. Runge testified. Morris was doomed. The Franklin County Court of Appeals affirmed. The continuances and the cooperation of the prosecutor in securing the evidence, the court said, eliminated the prejudice caused by the discovery violation. The prejudice inherent in admissible other-act evidence is insufficient to justify reversal under Evid.R. 403. As the evidence was admissible and the court had done all it could to eliminate the prejudice of the late discovery, the trial court acted well within its discretion. The court affirmed the conviction. WITNESSES: EXCEPTIONS TO BRUTON RULE. State v. White, No. 72011 (8th Dist., Cuyahoga Co., 4-16-98). Four men broke into a three-story house, terrorizing, robbing and assaulting six persons inside. One of the men forced one of the victims to perform fellatio on him. The four men claimed that the owner's son, "ID", owed them $10,000. At least two of the four men had guns. Some of the victims did not see the faces of the men. The homeowner's daughter, however, saw the face of Dontez White, whom she knew. White carried a shotgun. ID's girlfriend also saw White's face and identified White as one of the four men. At trial, a witness named Charley Cooper testified that one of White's co-defendants, Juliun Potter, told Cooper that Cooper should "watch his back" because "some dudes" were on "some house shit ... Dontez and ..." After the defendant objection, the court instructed the jury to disregard any reference to Dontez and to consider Cooper's testimony only against Potter. The defendant was convicted on most of the charges. On appeal, he argued that the court's failing to sever his case from the co-defendant's resulted in his being unable to cross-examine co-defendant Potter, thus creating a violation under Bruton v. United States (1968), 391 U.S. 123. The appellate court affirmed, saying the following: "The Bruton rule is not absolute. The courts have carved out exceptions to the rule in cases where (1) the co-defendant's statements have been redacted to the point where the statements do not name or reasonably implicate the defendant ... (emphasis supplied, see editor's note below.) The Cuyahoga appellate court held that the testimony did not reasonably implicate the defendant as one of the "dudes." The court said the statement could have as easily meant that Dontez was to be a victim or that Dontez learned of the plot and warned Cooper. The court affirmed the conviction. [Ed. Note: See the recently decided case of Gray v. Maryland (1998) 118 S.Ct. 1151, holding that merely redacting a defendant's name from a co-defendant's statement is insufficient to comply with Bruton.] SENTENCING: A SENTENCE IS "IMPOSED" AT JUDGMENT, EVEN IF THE SENTENCE IS NEVER "EXECUTED" BECAUSE THE DEFENDANT IS GRANTED COMMUNITY CONTROL SANCTIONS. State v. Brewer, No. 2-97-20 (3d Dist. Ct. Apps., Auglaize Co., 1-28-98). Ryan Brewer, while attempting to pass a car on a two lane road, hit an oncoming minivan carrying five persons. Four of the van's occupants died. Brewer entered guilty pleas to one count of aggravated vehicular assault and one count of involuntary manslaughter. The court imposed maximum sentences but found the defendant amenable to community control sanctions and deferred execution of the sentences upon the condition that, among other conditions, Brewer serve two consecutive six month terms in the county jail. Responding to Brewer's appeal, the state argued that he could not appeal because he would only have to serve the maximum sentence if he failed to comply with the conditions of the community control sanctions. The appellate court rejected that argument, holding that a sentence is "imposed" by the court's judgment. A sentence is "executed" when the defendant is delivered to the institution to begin serving the sentence. The court decided the defendant's appeal, reversing and remanding. (See below.) SENTENCING: TRIAL COURT MUST MAKE FINDINGS. State v. Brewer, supra. R.C. 2929.14(B) requires the trial court to impose the shortest authorized sentence when a defendant has never served a prison sentence, unless the court finds that the shortest term will demean the seriousness of the crime or that a longer term is necessary to protect the public. R.C. 2929.19(B) and 2929.14(E) require the court to find certain factors, such as the harm caused by the offense was so great that concurrent sentences are insufficient or that consecutive sentences are necessary to protect the public. The trial court in the instant case made only positive findings (Brewer would be unlikely to commit future crimes and was remorseful) and no negative findings at all. The appellate court remanded for resentencing, ordering the court to make the necessary findings to support the sentence. |
