 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: BURDEN OF PROOF ON CONSENT TO SEARCH. State v Hall, Nos. 2000AP030025, 2000AP030026 (5th Dist. Ct. Apps., Tuscarawas Co., 12-14-00). Kevin Hall and Danielle Johnson lived in Ms. Johnson's apartment. While driving Johnson's car, Hall was stopped by officer John Murphy. Because of an unspecified incident between Hall and Officer Murphy earlier on the same day, Officer Murphy knew that Hall lacked a valid driver's license. Murphy arrested Hall. During an inventory search of the automobile, Officer Murphy found marijuana. Hall denied owning the marijuana. Hall had a prior conviction for drug trafficking and a police informant had recently reported that Hall was selling drugs. At the police station, the officers asked Hall for permission to search the apartment where he lived and took him there. Hall went inside and the officers stayed outside. (The opinion does not say whether Hall granted and then revoked permission, or whether he told the officers to wait outside). While the officers were waiting, Danielle Johnson came home. The officers asked her permission to search the apartment. Because she refused, one of the two officers said he would get a search warrant and started to leave. Johnson explained she was concerned about Hall's two children who were sleeping in the front room. When the officers said they would not disturb the children, Johnson consented to a search and signed a consent form. Inside, the officers found marijuana and hashish. Both Hall and Johnson were charged with possession of drugs. They filed motions to suppress the evidence. The trial court found that the state had proved by a preponderance of the evidence that they had a valid consent to search. Hall and Johnson entered no contest pleas. They were convicted and appealed. Appellants claimed the burden of proof on consent is not by a preponderance of the evidence, but rather is by clear and convincing evidence. Observing that some Ohio appellate courts have held that the burden of proof is by a preponderance of the evidence and some courts have held that the burden of proof is by clear and convincing evidence, the Tuscarawas Court of Appeals agreed with the appellants. The court reversed and remanded the case to the trial court to determine whether the state had proved by clear and convincing evidence that Johnson's consent was voluntary. ARREST: TAKING CAR KEYS NOT AN ARREST, WHEN. State v Caldwell, No. CA00-05 (Morgan Co., 12-19-00). The state appealed from the trial court's granting the defendant's motion to suppress evidence. Two Ohio Highway Patrol Troopers stopped Donald Caldwell for speeding. One trooper smelled alcohol on the defendant's breath. While that trooper talked to Caldwell, the other trooper removed Caldwell's keys from the ignition. The first officer, having conducted a horizontal gaze nystagmus test, put Caldwell in his cruiser. The trial court relied on State v Smith (1994), 96 Ohio App. 3d 130, to find that taking the keys was an "arrest." The court further found that the officers lacked probable cause to arrest. Therefore, the court granted the defendant's motion. The state appealed and the Morgan County Court of Appeals reversed. The opinion is however, curiously narrow. The appellate court said the following:
"The trial court did not find that probable cause arose during the horizontal gaze nystagmus test and before the appellee was placed in the cruiser. Because of this finding, the Court does not reach whether or not probable cause exists, after the time the keys were removed and before the defendant was placed in the State Patrol's cruiser. ***
"The very narrow question presented for review is whether the taking of the keys from the ignition was an arrest and whether probable cause existed prior to the seizure of the keys.
The appellate court held that to be an "arrest," seizing keys must be understood by the person to be an "arrest." In Smith, the court continued, there was only one officer and the suspect understood he had been arrested. The appellate court reversed and remanded. [Ed. Note: Despite the court's claiming to answer a "narrow" question, the court's conclusion "[t]he court erred in granting appellee's motion to suppress[.]" appears to answer the broader question. If no probable cause existed after the officer removed the keys, the court should have affirmed the trial court, even if it disagreed with the trial court's reasoning. The difficulty may have been caused by the motion's having been decided on stipulated facts. The appellate court may have believed the stipulated facts insufficient. On remand, an argument exists that, despite the limiting language, the court's broad holding is the law of the case.] WITNESSES: COURT'S WITNESS; DISCRETIONARY. State v Pritchard, No. 78497 (8th Dist. Ct. Apps., Cuyahoga Co. 8-2-01). Jeffrey Pritchard and Akim Dunlap were charged with aggravated murder and related offenses for killing Anthony Walker. Dunlap entered a guilty plea to involuntary manslaughter and testified for the state. Walker had apparently shot a friend of Pritchard's, Ricardo, the day before because he believed Ricardo and Pritchard had burgled his apartment. In retaliation, Pritchard shot Walker. Terrell Baines testified as a court's witness. He had given a statement to police that Dunlap and Pritchard had confronted Walker and that Pritchard shot him. Baines, however, failed to honor the state's subpoena and his mother told the prosecutor he would not appear. Defense counsel told the prosecutor that Baines had recanted his statement. Baines was arrested and held as a witness. The court complied with the state's request to call Baines as a court's witness. After Baines testified, denying knowledge of the shooting, the court allowed the state to impeach him with is prior statement. The defendant was convicted and he appealed. Appellant claimed the state had failed to show surprise and affirmative damage. A trial court may in its discretion call witnesses under Evid. R. 614(A), the appellate court said. Both sides may cross-examine and impeach a court's witness with a prior statement without showing affirmative damage and surprise. However, the court continued, the prior statement is not substantive evidence. The court affirmed the conviction. APPLICATION FOR REOPENING: BARRED BY RES JUDICATA: ALSO CANNOT SUPPLEMENT RECORD. State v . Graff, No. 74860 (8th Dist. Ct. Apps., Cuyahoga Co., 5-8-01). Bruno Graff was convicted of murder. The Cuyahoga County Court of Appeals affirmed his conviction and the Ohio Supreme Court dismissed his appeal and overruled his motion for leave to appeal. Graff filed an application to reopen his direct appeal (commonly called a Murnahan motion) in the court of appeals. He asserted his appellate counsel had been ineffective by failing to raise alleged errors as Graff instructed. The Cuyahoga County Court of Appeals held that the appellant could have complained about his appellate counsel in his pro se memorandum in support of jurisdiction filed in the Ohio Supreme Court. Therefore, he was barred by the doctrine of res judicata from raising any alleged ineffectiveness of counsel in an application for reopening. The court also held that appellant's claims lacked merit and that he could not add things to the original appellate record by way of an application to reopen his original appeal. The court denied the application. SEXUAL PREDATOR: STATUTE CONSTITUTIONAL. State v Todd, No. 78586 (8th Dist. Ct. Apps. Cuyahoga Co., 7-19-01). Alonzo Todd entered a guilty plea in 1987 to rape. In August 2000, pursuant to a request from the Department of Rehabilitation and Corrections, the state filed a request that Todd be declared a sexual predator. The trial court refused and the state appealed. The trial court had held that Ohio's sexual predator statute violated the separation of powers doctrine and deprived the appellant of due process. Citing State ex rel Mason v Griffincy (2000) 90 Ohio St. 3d 299, the appellate court said: "The appellate courts and the Supreme Court of this state have spoken on the constitutionality of the sexual predator statute. It is now incumbent upon the trial courts that they enforce the statute as it is written." The court reversed and remanded for consistent proceedings.
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