 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
JURY MATTERS: ALLOWING JURORS TO ASK QUESTIONS; CONFLICT CERTIFIED. State v. Fisher, No. 01AP-614 (10th Dist. Ct. Apps., Franklin Co., 1-29-02). The Hamilton County Court of Appeals in State v. Gilden (2001), 144 Ohio App. 3d 69 (See Case Digest, September, 2001) held it was per se prejudicial error for a judge to ask witnesses questions that had been submitted by jurors. In State v. Fisher the Franklin County Court of Appeals reached the opposite conclusion. The Court of Appeals granted the defendant's motion to certify the following question to the Ohio Supreme Court: Is the practice of a trial court of allowing members of a jury to submit questions to the court and attorneys for possible submission to witnesses per se prejudicial to a criminal defendant? CONFESSIONS: VOLUNTARY, WHEN. State v. Caulley, No. 97AP-1590 (10th Dist. Ct. Apps., Franklin Co., 3-14-02). In January, 1994, Robert Caulley beat his parents to death. Charles and Lois Caulley owned a plumbing business. Charles wanted to retire and persuaded Robert to return from Seattle to take over the business. However, the arrangement between father and son proved less lucrative than Robert Caulley hoped. According to his statement, Robert went to his parents' home to discuss the problem and lost his temper. Other evidence suggested he waited for his parents to return from an evening out and immediately killed them. Robert Caulley inherited one-third of his parents' million dollar estate. The police investigated for three years. Robert Caulley's wife, Celeste, told police that Robert was with her at the time of the murder. Although police suspected him immediately, they lacked evidence to arrest him. Robert Caulley, who was trained as an aviation engineer, eventually took a job with Continental Airlines in Houston, Texas. In 1997, two Franklin County Sheriff's deputies flew to Houston to interview Caulley. They told him he was not under arrest. He agreed to go with them to the local Sheriff's office to talk. After several hours of talking; coming and going (Caulley had left his allergy medicine at Continental Airlines); and being interrupted by an hysterical Celeste Caulley, Robert Caulley asked to speak "off the record." Detective Scott agreed and Caulley confessed. Having filed a motion to suppress his confession at his trial for the double homicide, defendant Caulley argued both that his request for counsel was ignored and that the officer's promise rendered his confession involuntary. It is unclear whether Caulley actually asked for a lawyer. Celeste many times screamed that he needed a lawyer. It is agreed by all, however, that the deputies told him several times that he was not under arrest. At least three times, when it appeared that Caulley would continue to deny his guilt, the deputies told him they would return to Columbus and seek an indictment. Each time, Caulley called them back, trying to discover what other evidence they had. (They had none). A jury found appellant guilty of murder and involuntary manslaughter. The Franklin County Court of Appeals found it unnecessary to decide whether appellant had asserted a right to counsel because, the court said, he had no right to counsel. As he was not in custody, Miranda v. Arizona (1966) 384 U.S. 436, was inapplicable. Although the officers read the defendant his Miranda rights, he was still not in custody. The court also found that Detective Scott's lying about what evidence the officers had or agreeing that Caulley's confession could be "off the record" failed to render the confession involuntary. The court implied that deception might under some circumstances be "coercive" but said that this deception was not. The court affirmed the conviction. EVIDENCE ADMISSIBILITY: EVIDENCE THAT DEFENDANT TRIED TO HIRE SOMEONE TO KILL PROSECUTOR ADMISSIBLE. State v. Caulley, supra. While awaiting trial, Caulley offered a fellow inmate, Todd Elkins, $10,000 to kill the assistant prosecuting attorney, Jim Canepa. According to Elkins, Caulley believed that, if the trial were delayed while another prosecutor prepared, that he, Caulley, would be released on bond. He intended to flee. Although an attempt to record Caulley and Elkins discussing the offer resulted in Caulley's denying the plot, the court allowed Elkins to testify. The Franklin County Court of Appeals implied that it believed the evidence was too prejudicial. However, because the Ohio Supreme Court in State v. Richey (1992) 64 Ohio St. 3d 353 had held similar evidence admissible, the Franklin County Court of Appeals felt compelled to hold the evidence admissible as showing consciousness of guilt. The court affirmed the convictions. SEARCH AND SEIZURE: CRIM. R. 41, COMPUTATION OF TIME. WEEKENDS EXCLUDED. State v. Hill, No. 18875 (2d Dist. Ct. Apps., Montgomery Co., 12-28-01). The state appealed from the trial court's granting Hill's motion to suppress evidence. On Thursday, September 21, 2000, a Dayton municipal court judge issued a warrant to search Tony Hill's home for crack-cocaine. On Tuesday, September 26, 2000, officers executed the warrant, finding crack-cocaine. Before his trial for possession of crack-cocaine, the defendant filed a motion to suppress evidence. Finding that the officers had failed to comply with Crim. R. 41, which requires officers to execute a search warrant within three days of obtaining it, the trial court granted the defendant's motion. The Montgomery County Court of Appeals reversed. The trial court, the appellate court said, ignored Crim. R. 45. That rule provides that when calculating time, the first day is excluded and, if the time is less than seven days, Saturdays, Sundays, and holidays are excluded. Therefore, the appellate court concluded, the officers executed the warrant on the third day. The court reversed and remanded for trial. [Ed. Note: The opinion says nothing about the exclusionary rule's inapplicability to violations of criminal rules.] [Ed. Note: Medina County Assistant Prosecuting Attorney Joseph Salzgeber submitted the following summaries:] CONFESSIONS: EXCLUSIONARY RULE INAPPLICABLE TO VIOLATIONS OF THE VIENNA CONVENTION ON CONSULAR RELATIONS. State v. Mendoza, No. 9-01-02 (3rd Dist. Ct. Apps., Marion Co., 6-29-01). State v. Tuch, No. 3186-M (9th Dist. Ct. Apps., Medina Co., 12-26-01). Manuel Mendoza appealed his conviction for possession of marijuana. He argued that the trial court should have suppressed his statements to Marion City Police Officers, because he was not advised of his right as a foreign national, pursuant to Article 36 of the Vienna Convention on Consular Relations (VCCR), April 24, 1963, TIAS 6820, 21 U.S.T. 77, 596 U.N.T.S. 261, to consult with Mexican consular officials. Similarly, Nathan Tuck appealed his cocaine trafficking convictions, arguing that the trial court should have suppressed his statements to Medina County Drug Task Force Agents, who failed to advise him of his right as a foreign national, pursuant to Article 36 of the VCCR, to consult with Canadian consular officials. Unlike the defendants in previous Ohio cases addressing this issue, both Mendoza and Tuck timely raised the issue of VCCR non-compliance by local law enforcement officials in the form of pretrial motions to suppress. See e.g., State v. Issa (2001), 93 Ohio St. 3d 49, 752 N.E. 2d 904 (issue raised for first time on direct appeal); and State v. Loza, No. CA96-10-214 (12th Dist. Ct. Apps., Butler Co., 10-13-97) (issue raised for first time in postconviction petition). Both the Third and Ninth District courts held that suppression of evidence is not an available remedy for violations of Article 36 of the VCCR, because the treaty "rights arising from the Vienna Convention do no rise to the level of constitutional rights." The Third and Ninth District courts, therefore, affirmed the judgments of the lower courts. TRIAL PROCEDURE: RESUMPTION OF BENCH TRIAL UPON REMAND, FOLLOWING REVERSAL OF TRIAL COURT'S MID-TRIAL DISMISSAL OF THE INDICTMENT. State v. Hernon, No. 3081-M (9th Dist. Ct. Apps., Medina Co., 3-21-01). Catherine Hernon was charged with possession of anabolic steroids and elected to proceed with a bench trial. After the State rested, Hernon moved for judgment of acquittal, pursuant to Crim. R. 29, arguing that the State had presented insufficient evidence. Hernon also moved to dismiss the case on the separate ground that the indictment failed to state a crime. The trial court granted Hernon's motion to dismiss the indictment "for failure to state a crime." The State appealed and the Ninth District Court reversed and remanded the case, holding that the indictment was sufficient on its face to charge a crime. See State v. Hernon, No. 2933-M (9th Dist. Ct. Apps., Medina Co., 12-29-99). On remand, the trial court, without objection, reconvened the trial, allowing Hernon to present her defense. The trial court found Hernon guilty of felony possession of anabolic steroids and sentenced her accordingly. Hernon appealed, arguing that the trial court should have begun a new trial upon remand and that reconvening the trial after remand violated her Fifth Amendment and Fourteenth Amendment rights under the Double Jeopardy Clause. The Ninth District Court held that the trial court's failure to grant a new trial upon remand, where Hernon made no such request, did not constitute plain error. The Court reasoned that Hernon already had the opportunity to cross-examine the State's witnesses and that the trial judge had an independent memory of the case and reviewed the transcript of the trial before reaching a verdict. The Ninth District Court further held that: (1) jeopardy attached when the first witness was sworn in; (2) the trial court's mid-trial dismissal of the case was based on its erroneous conclusion that the indictment was fatally flawed; (3) the trial court's dismissal was therefore unrelated to a finding of factual guilt or innocence; and (4) thus, pursuant to the reasoning of the Supreme Court of Ohio in State v. Broughton (1991), 62 Ohio St. 3d 253, paragraph three of the syllabus, the resumption of trial upon remand, following reversal of the trial court's decision granting Hernon's motion to dismiss the indictment, did not violate her rights under the Double Jeopardy Clause.
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