 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: SEARCH OF PERSON UNDER AN "ALL-PERSON'S-PRESENT" WARRANT VALID, WHEN. State v. Johnson, No. 98CA86 (5th Dist. Ct. Apps., Licking Co., 4-26-99). The state appealed from the trial court's having granted the defendant's motion to suppress evidence. Having received information that Willie Herrington was selling drugs from a particular home, members of the Central Ohio Drug Enforcement Task Force watched the home for two days. Officers watched three persons they knew to have sold drugs go back and forth between the house under surveillance and another house in the same block. Officers got a warrant to search the first house and "all persons" found therein. When officers approached, they saw Willie Herrington and Amy Johnson walking down a breezeway to a car parked behind the house. The officers handcuffed Amy Johnson and brought her inside the house. (The opinion fails to reveal Willie Herrington's fate). A female officer searched Amy Johnson, finding unspecified drugs under one of her breasts. Amy Johnson was indicted for possession of drugs. The trial court's having granted the defendant's motion to suppress evidence, the state appealed. The Licking County Court of Appeals, relying on State v. Kinney (1998) 83 Ohio St. 3d 85 to modify its own holding in State v. Lallathin (Aug. 26, 1996), Licking Co. App. No. 95CA118, unreported, reversed. The Ohio Supreme Court said in the syllabus in Kinney at 94, that "A search warrant authorizing the search of 'all persons' on a particular premises does not violate the Fourth Amendment requirement of particularity if the supporting affidavit shows probable cause that every individual on the subject premises will be in possession of, at the time of the search, evidence of the kind sought in the warrant."(emphasis added). The Licking County Court of Appeals said, "We do not read Kinney to require that probable cause be established as to each individual on the premises, but rather probable cause be established as to the collective group of persons expected to be encountered at the time of the execution of the search warrant." As a majority of the Licking County Court believed the court's Lallathin opinion required such specific probable cause, the court modified Lallathin. Although the affidavit in the instant case was weak under the guidelines of State v. Kinney, supra, the majority of the Licking County Court of Appeals held that, giving deference to the magistrate's determination, there was a substantial basis for issuing the "all persons" warrant. When an affidavit says nothing about innocent persons on the premises, the court said, a magistrate is entitled to infer from other facts in an affidavit that no innocent persons are likely to be present. Judge Hoffman, in a concurring opinion, said the affidavit was deficient but believed that the trial court should have applied the good faith exception. The appellate court reversed and remanded for trial. PRIVILEGE: PATIENT-PSYCHOLOGIST PRIVILEGE APPLIES TO BOTH VOLUNTARY AND INVOLUNTARY TREATMENT: NEW RULE. In Re Lindsey Wieland, Holly Wieland and Danielle Wieland (2nd Dist. Ct. App., Montgomery Co., 17646, 7-9-99). Laura Wieland is the mother of Lindsey, Holly, and Danielle Wieland. In December, 1996, the Montgomery County Children's Services Board alleged that Lindsey and Holly were neglected and dependent. After Ms. Wieland gave birth to Danielle in August, 1998, the Board filed similar allegations about Danielle. The court granted the Board temporary custody of the children and ordered Ms. Wieland to substance abuse and psychological treatment. When the Board sought permanent custody of the children, it filed a subpoena seeking the mother's psychological records. Ms. Wieland claimed the records were privileged under R.C. 2317.02 and R.C. 4732.19. Following In re Smith (1982) 7 Ohio App. 3d 75, the trial court rejected Ms. Wieland's argument and ordered the records produced. Ms. Wieland appealed. The Montgomery County Court of Appeals in In Re Smith (1982), 7 Ohio App. 3d 75, had held that the privilege is applicable only when a person voluntarily seeks treatment. The court said that the underlying purpose for the privilege, to encourage open disclosure by the patient, is absent when the patient is ordered by a court to seek treatment. Recognizing that the trial court had properly applied In Re Smith, supra, the Montgomery County Court of Appeals decided that it had improperly decided In Re Smith. Encouraging full disclosure, the court said, is just as important for successful treatment whether that treatment is voluntarily sought or ordered by a court. The court distinguished between cases of court-ordered evaluations and court-ordered treatment. The privilege is inapplicable to the former, the court said, but applicable to the latter. The state also argued that Ms. Wieland had waived the privilege. However, the trial court made no finding on that issue. The appellate court sustained Ms. Wieland's assignment of error and remanded the case for the trial court to rule on the issue of waiver. POSTCONVICTION: TIME FOR FILING CANNOT BE CIRCUMVENTED BY FILING TWO APPEALS. State v. Weaver, No. 98AP-1345 (10th Dist. Ct. Apps. Franklin Co., 7-27-99). A jury found Phillip Weaver guilty of attempted murder, two counts of felonious assault, and one count of aggravated burglary, arising from Weaver's attacking his neighbors, Mr. and Mrs. Cameron. On July 11, 1997, Weaver's trial counsel filed a notice of appeal. The clerk assigned the number 97APA07-905. The Franklin County Public Defender's office also filed a notice of appeal on July 11, 1997. The clerk assigned the number 97APA07-908. The clerk filed the record in the case number 97APA07-905 on August 25, 1997. The public defender continued to represent appellant. Eventually, the appellate court sua sponte dismissed case number 97APA07-905. On February 11, 1998, the record from case number 97APA07-905 was transferred to case number 97APA07-908. On August 7, 1998, Weaver filed a postconviction petition, which the trial court dismissed as untimely. On appeal, Weaver argued that the 180-day period should begin not on August 25, 1997, but on February 11, 1998. The Franklin County Court of Appeals rejected that argument, saying the following: "Appellant should not be allowed to circumvent the time limitation rules within R.C. 2953.21(A)(2) by filing two appeals of his conviction, allowing one appeal to be dismissed by the appellate court because appellant failed to comply with App. R. 18(A), and then transferring the trial transcript to the second appeal six months after the filing date of both appeals." The court affirmed the trial court's order. RES JUDICATA: LAW OF THE CASE; TRIAL COURT CANNOT EXCEED SCOPE OF APPELLATE COURT'S MANDATE. State v. Letts, No. 17084 (2d Dist. Ct. Apps., Montgomery Co., 1-29-99). Following a jury trial, Joseph Letts was convicted of aggravated murder, four counts of aggravated robbery, and a firearm specification attached to each charge. The court imposed a sentence of life for aggravated murder, to be served consecutively to two concurrent ten-to-twenty-five year terms on two counts of aggravated robbery and consecutively to two concurrent ten-to-twenty-five year terms on the other aggravated robbery charges. The court imposed one three-year sentence for the merged firearm specifications. The Montgomery County Court of Appeals in State v. Letts (June 3, 1997), No. 15681, unreported, held there was insufficient evidence on the aggravated murder count, but upheld the robbery convictions. The court remanded for resentencing. Before the resentencing, the defendant filed motions to merge all aggravated robbery counts, dismiss all firearm specifications, and to sentence under S.B. 2. the defendant also filed a motion for leave to file a motion for new trial. The trial court denied all motions and sentenced the defendant to the same sentences as the court had initially imposed, except for the aggravated murder charge. On appeal, the defendant argued the trial court should have allowed him to file a motion for new trial, and ultimately should have granted him a new trial because his trial on the aggravated robbery charges had been tainted by the "unfounded" aggravated murder charge. The appellate court upheld the trial court, saying the following: "It is abundantly clear from our opinion in the direct appeal that our remand of this case to the trial court had a very limited purpose: to re-sentence Letts absent the aggravated murder conviction. "In accordance with the law of the case doctrine, trial courts have no discretion to disregard the mandate of a reviewing court, and they have no authority to extend or vary the mandate given, *** Had the trial court elected on remand to grant Letts' motion for a new trial on the aggravated robbery charges, that action would have been wholly inconsistent with our decision affirming those robbery convictions, and would have exceeded the permissible scope of the trial court's authority on remand." The appellate court also said that the defendant was barred by the doctrine of res judicata from arguing that the aggravated robbery counts merged, as he could have raised that issue in his first appeal. CONFESSION: SUPPRESSED STATEMENT FROM FIRST TRIAL PROPERLY USED AS IMPEACHMENT IN SECOND TRIAL. State v. Holt, No. C-980527 (1st Dist. Ct. Apps., Hamilton Co., 6-11-99). Three juveniles, Philip Haley, Rayshun Holt, and Anthony Bines, were walking together when an argument caused Holt to shoot Haley. Bines ran. Haley died. On May 8, 1995, police arrested Holt on an outstanding warrant for running away from a juvenile facility. The police questioned Holt about the shooting without advising him of his Miranda rights. On June 19, 1995, the police again questioned Holt, after having read him his Miranda rights. Holt claimed three unknown persons shot Haley. Holt was tried as an adult and convicted of murder. The court of appeals reversed Holt's first conviction in State v. Holt (Sept. 12, 1997) Hamilton App. No. C960140, unreported. On retrial, Holt, represented by the same lawyer who had represented him on appeal and at the first trial, claimed that Bines had shot Haley. Although the court of appeals had held that the defendant's statements should have been suppressed, the trial court allowed the prosecutor to play the taped statement to impeach the defendant's testimony at his second trial. The defendant was again convicted and again appealed. The appellate court affirmed the conviction. The evidence, the court held, was properly admitted under Evid. R. 613, as a prior inconsistent statement. |
