 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
AGGRAVATED ROBBERY AND FIREARM SPECIFICATION: OFFICER'S GUN; SHOOTING OFFICER IS AN ATTEMPT TO FLEE. State v. Henderson, Nos. C-960734, C-961072 (1st Dist. Ct. Apps., Hamilton Co., 7-24-98). Vincent Henderson harassed and threatened a neighbor for unclear reasons. The neighbor called the police. Thereafter, Henderson threatened and harassed the neighbor for calling the police. Henderson approached the neighbor, Gwen Scott, pulling what appeared to be the blunt end of a black gun. Scott escaped and went to the police. Arriving officers saw Henderson on a porch. Henderson retreated into the house. Receiving no response to their calls, the officers entered. However, the house was so cluttered with clothing and trash that the officers brought a dog. The dog alerted at a closed bathroom door. Officer Farris entered the bathroom, having to push a washing machine from the door first, and began to search through a closet full of clothes. Henderson grabbed Farris's gun. As Henderson and Farris struggled over the gun, Henderson aimed it at Farris's chest and pulled the trigger but the gun misfired. Officer Zieverinki arrived on the scene. Henderson had Farris's gun. When Zieverinki tried to grab Henderson, Henderson shot Zieverinki in the knee. S.W.A.T. Sergeant Ventre arrived. He pulled Zieverinki out of the bathroom. As Farris still struggled with Henderson, Sergeant Ventre shot Henderson in the chest. Henderson was indicted for two counts of felonious assault and one count of aggravated robbery. All charges carried firearm specifications. The jury convicted Henderson of aggravated robbery but was unable to reach a verdict on the other counts. Henderson entered a guilty plea to one count of felonious assault and the firearm specification. On appeal, Henderson argued the evidence was insufficient to prove that he committed or attempted to commit a theft offense, to wit: theft of a firearm, or in fleeing immediately thereafter, recklessly inflicted or attempted to inflict serious physical harm on officer Zieverinki. Henderson argued on appeal that he had already completed the theft of the gun when he shot Zieverinki. The court held that shooting a police officer equaled attempting to flee. The court merged the sentence for the two firearm specifications but otherwise affirmed the conviction. COUNSEL, EFFECTIVE ASSISTANCE: FAILING TO "PREPARE" ALIBI WITNESSES. State v. Williams, No. 16687 (2d Dist. Ct. Apps., Montgomery Co., 7-31-98). Valentine Mbah owns a carryout that had often been attacked by thieves. Mr. Mbah decided to lay in wait. At 3:00 A.M., he heard the metal gates over the entrance being pried open. He struggled with the intruder but failed to hold him. However, Mr. Mbah saw the intruder's face. Two days later Ryan Laquinn Williams entered the store. Mr. Mbah recognized him as the intruder and ordered him to leave. Eventually, Mr. Mbah went to the police. At trail, Williams offered the alibi testimony of his uncle and girlfriend that Williams was home with them and never left. These witnesses "became confused" when cross-examined about when they realized they were alibi witnesses. The jury convicted the defendant of burglary but acquitted him of possession of criminal tools. He appealed, claiming ineffective assistance of counsel. Appellant argued his counsel should have "adequately prepared his alibi witnesses, albeit synchronized their testimony for consistency and accuracy." Rejecting this claim, the Montgomery County Court of Appeals said the following: Do we glean from this argument that had trial counsel carefully orchestrated his alibi witnesses' testimony to be sure they presented their stories in exactly the same fashion to the jury, their veracity would have been completely established? We hope not. If anything such a meticulous rendition of identical testimony by the two witnesses would have not only undermined their veracity, but would have cast serious doubts upon the conduct of Williams' trial counsel. The court affirmed the conviction. PLEAS: CRIM. R. 11; NO DUTY TO INFORM OF COLLATERAL CONSEQUENCE OF REGISTRATION AND REPORTING REQUIREMENTS. State v. Hill, No. 16791 (2d Dist. Ct. Apps., Montgomery Co. , 7-24-98). Donald Hill Jr. was charged with four counts of gross sexual imposition, the victim being his ten year old niece. While maintaining his innocence, Hill entered guilty pleas to two counts. The court sentenced Hill to two concurrent four-year terms. The court found that Hill was neither a sexual predator nor an habitual sexual offender, but that Hill had committed a sexually oriented offense and would be required to register and report under R.C. 2950.04. On appeal, Hill argued that Crim. R. 11(c)(2)(b), requiring the court to determine that a defendant understand the "effects of his plea," required the court to inform him about the registration and reporting requirements. In a 2-1 opinion, the Montgomery County Court of Appeals held that the registration and reporting requirements were collateral consequences that a trial court may disregard when accepting a guilty plea under Crim. R. 11.
The court affirmed the conviction.
PLEA: CRIM. R. 11; FAILURE TO INFORM OF POSSIBLE ADMINISTRATIVE EXTENSION SUBSTANTIAL COMPLIANCE, WHEN.
State v. Griffin, No. C-970507, C-970527, (1st Dist. Ct. Apps., Hamilton Co., 7-24-98).
Steven Griffin was charged with attempted murder, with a firearm specification and a major-drug-offender specification; two drug abuse counts with firearm specifications and major-drug-offender specifications; two felonious assault counts with specifications; and a charge of having a weapon while being under disability. He entered guilty pleas to attempted murder with a firearm specification and one count of drug abuse with a major-drug-offender specification. The state dismissed all other charges and specifications.
Although the two plea forms the defendant signed informed him the parole board could extend his sentence, the trial court did not, contrary to Crim. R. 11. The defendant appealed on that ground.
The Hamilton County Court of Appeals affirmed. Substantial compliance, the court said, is sufficient when dealing with the non-constitutional rights detailed in Crim. R. 11. Substantial compliance means that under all the circumstances the defendant understands the consequences of his plea. The defendant talked to his lawyers and read the plea forms. That, the court held, was substantial compliance.
The court affirmed the conviction.
WITNESSES: TECHNIQUES USED TO INTERVIEW CHILDREN; COURT REJECTS BURDEN SHIFTING.
State v. Leak, No. 16424 (2d Dist. Ct. Apps., Montgomery Co., 3-27-98)
Katrina Leak was accused of endangering children, R. C. 2919.22(A).
Leak's three children, ages nine, seven, and two, having awakened before their mother, were playing in the living room downstairs from where Leak slept. The nine-year-old removed a loaded gun from a drawer in the coffee table. She handled it briefly and replaced it in the drawer. She turned away from the other two children and soon heard a shot. The seven-year-old had shot his two-year-old sibling.
The police came to the home and questioned the two surviving children separately, out of the presence of the mother.
At trial, Leak argued that the questioning techniques used by the police were so suggestive as to render the children's trial testimony unreliable. She asked for a pretrial hearing, which the court refused to conduct.
The jury convicted Leak of endangering children but acquitted her of the firearm specification.
The defendant urged the court on appeal to adopt the procedure adopted by the Supreme Court of New Jersey in New Jersey v. Michaels (1994), 642 A.2d 13. In that infamous case of alleged sexual abuse of children, the court held that the interviewing techniques used were so suggestive that there was substantial likelihood that the children's testimony was unreliable. The court held that a hearing was required if a defendant showed some evidence of coercive questioning. At the hearing, the prosecutor had to prove by clear and convincing evidence that the child's testimony was sufficiently reliable.
The Montgomery County Court of Appeals rejected the New Jersey rule as, the court said, "the procedure required is not one for which Ohio law provides." The court observed that questioning techniques could be raised during cross-examination. The court even suggested that extrinsic evidence of the "proper" protocol for interviewing witnesses could be introduced, citing State v. Gersin (1996), 76 Ohio St. 3d 491, in which the Ohio Supreme Court held: "A defendant in a child sexual abuse case may present testimony as to the proper protocol for interviewing child victims regarding their abuse." The Montgomery County Court said the following:
The rule announced in Gersin may be applied in any
case to impeach the credibility of a witness who may have
been exposed to undue influence by agents of the state or
partisans of its case against a defendant.
Finding that Leak had failed to show any coercive or suggestive interviewing techniques, the court affirmed her conviction.
EXPUNGEMENT: AMENDMENT PROCEDURAL AND PROSPECTIVE.
State v. Caldararo, No. 97APA12-1627 (10th Dist. Ct. Apps., Franklin Co., 8-4-98)
Michael Caldararo was convicted on his guilty pleas on January 31, 1992 of two counts of gross sexual imposition and sentenced to three years imprisonment. On May 20,
1997, he filed an application to seal his record under R.C. 2953.32. That statute requires an applicant to wait three years after being released before filing an application. (The opinion fails to note the date of the applicant's final discharge).
On December 9, 1994, the General Assembly amended R.C. 2953.36 to prohibit expungement of a conviction for gross sexual imposition. The trial court, therefore, denied the application and Caldararo appealed.
The defendant argued that he entered guilty pleas with the understanding that he would be able to seal his records and that to apply the new law to him would be an ex post facto application.
Expungement, the Franklin County Court of Appeals said, is not a right but a privilege. Moreover, as Caldararo was ineligible to apply for expungement until after the statute had been amended (because of the three-year-requirement), he had not even been divested of an opportunity to apply for the privilege because he was not yet eligible to apply for the privilege. The court held as follows:
Thus, when a defendant is convicted prior to the effective
date of R. C. 2953.36, but the application is filed after the
effective date of the statute, the application of the statute
does not violate Section 28, Article II, of the Ohio
Constitution prohibiting retroactive law.
The court affirmed the trial court's order.
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