 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
JURY MATTER: ALLOWING JURORS TO ASK QUESTIONS UNCONSTITUTIONAL State v. Baker, No. B-9907351 (1st Dist. Ct. Apps., Hamilton Co., 6-15-01) During the burglary trial of Antwann Gilden, the trial court allowed jurors to submit written questions for witnesses. The court discussed the questions with counsel and if the court determined the questions were proper, the court asked the witnesses the jury's questions. The defendant was convicted and he appealed. On appeal, the defendant argued that allowing jurors to frame questions so interfered with the adversarial process and the right of counsel to decide what questions to ask that it deprived the defendant of due process. The Hamilton County Court of Appeals agreed. The court held that allowing jurors to ask questions was so prejudicial that it should never be allowed. The Hamilton County Court opined that allowing the jury to frame questions, even if those questions are reviewed by the court, turns the jurors into advocates. The court reversed and remanded for retrial.
SELF DEFENSE: PRIOR VIOLENT ACTS OF VICTIM, MUST DEFENDANT KNOW? State v. Wetherall, No. C-000113 (8th Dist. Ct. Apps., Cuyahoga Co., 6-22-01) Gregory Wetherall was charged with domestic violence, arising from an argument he had with his wife that resulted in injuries to both Mr. And Mrs. Wetherall. The defendant claimed that his wife's more serious injuries occurred when she, in a drunken stupor fell down the stairs. The defendant claimed he only pushed her in the face after she bit him and hit him in the face with a beer bottle. The defendant offered the testimony of Mrs. Wetherall's formal live-in boyfriend to the effect that Mrs. Wetherall became violent when drunk. Because the defendant talked to the boyfriend after the incident, the evidence was irrelevant to the defendant's state of mind. The trial court excluded the evidence. The Cuyahoga County Court of Appeals reversed. Self-defense has two elements to which prior violence might be relevant, the Cuyahoga County Court of appeals said. Although a defendant must know of the conduct before it can be relevant to the defendant's state of mind, the victim's prior violence is also relevant to whether the victim was the first aggressor. Evidence admissible for that purpose the court said need not be known to the defendant. After discussing cases from other countries, including State v. Barnes (Sept. 14, 2000) Portage App. No. 98-P-0052, unreported, the Cuyahoga County Court held that evidence of a victim's prior violence is admissible, even if it was unknown to the defendant at the time of the offense. The court reversed and remanded. [Ed. Note: The Ohio Supreme Court accepted jurisdiction in State v. Barnes, and the case is pending]
WITHDRAWAL OF GUILTY PLEA: A MOTION TO WITHDRAW A GUILTY PLEA UNDER CRIM, R. 32.1 THAT ALLEGES A CONSTITUTIONAL VIOLATION IS SUBJECT TO THE TIME REQUIREMENTS FOR POST CONVICTIONS PETITIONS. State v. Deer, No. 00CA24, (4th Dist. Ct. Apps., Lawrence Co., 3-2-01) In June 1998, Gerald Deer entered guilty pleas to two counts of aggravated trafficking, two counts of illegal use of food stamps, and one count of trafficking in marijuana. He did not appeal. His motions for judicial release and modification of sentence having been overruled, Deer filed a motion to withdraw his guilty plea. One of the claims he made was that his counsel was ineffective for failing to investigate the charge. Relying on State v. Reynolds (1997) 79 Ohio St. 3d 158, the trial court equated the motion under Crim. R. 32.1 to a petition for postconviction relief under R.C. 2953.21. As the petitioner filed his petition beyond the time limit provided in R.C. 2953.21, the trial court dismissed the petition as untimely. On appeal, the defendant argued that the amendment to R.C. 2953.21 had not intended to change Crim. R. 32.1. Citing cases from Franklin, Lorain and Medina Counties, the Lawrence County Court of Appeals affirmed the trial court. To do otherwise the court said, would allow a defendant who had entered a guilty plea to circumvent the intent of the General Assembly, which imposed time limits on postconviction petitions.
SEARCH AND SEIZURE: WARRANT TO SEARCH PREMISES NEED NOT ALLEGE CRIMINAL ACTIVITY BY ALL RESIDENTS. State v. Stocks, No. 18614, (2nd Dist. Ct. Apps., Montgomery Co., 4-13-01). Husband and wife Steven and Melissa Stocks were charged with possession of greater than 20,000 grams of marijuana. Police seized the marijuana pursuant to a search warrant issued on information that Steven Stocks had been selling drugs and the officers "arranged a successful controlled buy" at the home of Steven and Melissa Stocks. The warrant authorized searching the home and persons of Steven and Melissa Stocks. The Trial court granted Melissa Stock's motion to suppress the marijuana found in the house. Police found no marijuana on Melissa Stock. The Trial court reasoned that the affidavit failed to establish reasonable cause that Melissa had engaged in criminal activity. The state appealed. The appellate court agreed with the trial court's factual findings. Had police found drugs on Melissa Stock, the appellate court said suppression would have been proper. However, Whether the state can sufficiently connect Melissa to evidence of criminal activity for purposes of conviction is a matter the fact-finder should resolve at trial; it is not something to be settled in a suppression decision. The court reversed and remanded for trial. APPELLATE PRACTICE: DENIAL OF EARLY RELEASE NOT A FINAL APPEALABLE ORDER. In re Kenneth Ross, No. 18847 (2nd Dist. Ct. Apps., Montgomery Co., 7-20-01) Having been adjudicated delinquent for having committed what would be rape if committed by an adult, Kenneth Ross was, on April 4, 2000, committed to the Department of Youth Services for a minimum period of one year and a maximum period of the years remaining until he turned twenty-one. The order was journalized on April 5, 2000. On April 4, 2001, Ross filed a motion for early released under R.C. 2151.38(C). The trial court denied the motion, ruling that on April 3, 2001, it had lost jurisdiction to entertain the motion. Ross appealed. A motion for early release may be filed after a juvenile has served half his minimum term and must be filed before a juvenile has served his entire minimum term. In dicta, the Montgomery County Court of Appeals ruled that the time started when the court ordered the commitment, not when it jounalized the order. That ruling was dicta because, the Montgomery County Court of Appeals said, a denial of a motion for early release is not a final appealable order. Relying on State v. Coffman(2001) 91 Ohio St. 3d 125, the Montgomery County Court of Appeals "reluctantly" dismissed the appeal.
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