 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
JURY WAIVER: DOCTRINE OF INVITED ERROR INAPPLICABLE TO VIOLATION OF R.C. 2945.05. State v. Harrison, No. 02-CA-157 (7th Dist. Ct. Apps., Mahoning Co., 6-2-04). Pernell Harrison shot and killed his wife. He told the police he was cleaning his gun. However, two persons who had been visiting just before the shooting would have testified that Harrison said he was "going to take care of that bitch as soon as y'all leave." The grand jury indicted Harrison for murder. On the day of trial, Harrison appeared with a guilty plea form of his counsel's devising. The form said he was waiving a jury and pleading guilty. However, the form failed to meet the requirements of R.C. 2945.05. Nevertheless, the court accepted the form and sentenced the defendant for murder. The Mahoning County Court of Appeals reversed. Although the defendant contributed to the violation of R.C. 2945.05, the appellate court held, he may still raise the issue of the trial court's failing to comply with R.C. 2945.05. The statute requires strict compliance, the court said, and the statute means what it says. The court reversed and remanded. COUNSEL: INEFFECTIVE ASSISTANCE, VOIR DIRE. State v. Atalla, No. 21747 (9th Dist. Ct. Apps., Summit Co., 6-30-04). Emad Atalla was charged in the Cuyahoga Falls Municipal Court with domestic violence. During voir dire, the prosecutor asked the prospective jurors questions about their feelings about Islam and September 11th because the defendant "shared the culture" of members of Al Qaieda. Rather than objecting, the defense counsel asked similar questions. The defendant was convicted and he appealed. The Summit County Court of Appeals reversed on the ground of ineffective assistance of counsel. Defense counsel should have objected to the prosecutor's questions. The line of questioning was so prejudicial, the court said, that the presumably benign purpose of uncovering bias based on ethnicity failed to justify the questions or defense counsel's failing to object to the questions. The court held that the prosecutor went too far by saying that if the jury could not be impartial to those who perpetrated the 9-11 attack, then they could not be impartial to the defendant, because he shared the same culture. Three prospective jurors said they could not fairly judge the defendant. Although the opinion is silent, those three were presumably excused. However, the court held that the questions poisoned the jury pool. The court reversed and remanded for retrial. APPEAL: RULING EVIDENCE INADMISSIBLE HEARSAY NOT TANTAMOUNT TO GRANTING A MOTION TO SUPPRESS. State v. Thompson, (10th Dist. Ct. Apps., Franklin Co., 03AP-841, 6-22-04). The State charged Carolyn Thompson with filing a false police report. The opinion fails to specify the exact circumstances. Apparently Carolyn Thompson and her husband, Terrence Thompson, were estranged. After the couple argued while out to dinner, and Mr. Thompson drove away in Mrs. Thompson's car, Mrs. Thompson reported the car stolen. She told the police her husband could not have taken the car because he was out of town. The police arrested a very angry Terrence Thompson. Eventually, the police charged Carolyn Thompson with filing a false report. The state sought to introduce statements made by Terrence Thompson during his arrest, attesting that his wife was getting back at him because the couple had argued. The municipal court admitted some statements and excluded others. The city prosecutor announced the state would appeal under Crim. Rule 12(K) and asked the trial court to stay the proceedings. When the court refused, the prosecutor left the courtroom and refused to participate in the trial. Mrs. Thompson was acquitted. The state filed a notice of appeal, calling the court's excluding evidence mid-trial "suppressing" the evidence. The Franklin County Court of Appeals dismissed the appeal because the state had failed to file a motion for leave to appeal. The appellate court said the trial court's evidentiary ruling was different from granting a motion to suppress and was appealable only with leave. As the state had failed to file a motion for leave, the appellate court held, the court lacked jurisdiction to decide the issue. [Ed. Note: Although the court cited State v. Davidson (1985), 17 Ohio St.3d 132, in which the Ohio Supreme Court ruled that any decision so limiting the state's evidence that it could not prove its case, was appealable as of right, the appellate court failed to distinguish it. A possible distinction is that in Davidson, the defendant moved the court, in a trial involving a traffic accident, to limit all references to alcohol, and the trial court granted the defendant's motion. The state may file both a notice of appeal and a motion for leave to appeal in the same case.]. SEARCH AND SEIZURE: TRIAL COURT MAY NOT CONDUCT REVIEW DE NOVO OF SEARCH WARRANT AFFIDAVIT. STATE V. SWEARINGEN (1999), 131 OHIO APP.3d 124 OVERRULED. State v. King, No. 9-03-42 (3rd Dist. Ct. Apps., Marion Co. 5-3-04). The State appealed from the trial court's granting the defendant's motion to suppress evidence seized pursuant to warrant. To obtain a search warrant, the director of the Marion County Humane Society and an assistant dog warden testified before a judge that Kenneth King had a history of dog-fighting, and subscribed to an underground magazine about dog-fighting. The dog warden also testified that her son had seen a scarred pit bull in King's yard. The judge issued a search warrant for King's home. Officers recovered the dog, dog-fighting paraphernalia, 11.44 grams of crack-cocaine, and 15 firearms. The Marion County Grand Jury indicted King for possession of crack-cocaine and a firearm specification. King filed a motion to suppress evidence. At the hearing, the trial court declared it was considering the issue de novo, and heard evidence not contained in the affidavit or presented to the judge who issued the warrant. The court granted the motion to suppress. The Court of Appeals observed that the trial court had relied upon State v. Swearingen, in which the appellate court had held that a de novo review was proper. The Marion County Court of Appeals held that it had erroneously decided State v. Swearingen. The Marion County Court of Appeals also held that the information presented to the issuing magistrate provided a substantial basis for believing that evidence of dog-fighting would be found on King's premises. Therefore, the court said, the trial court erroneously granted the defendant's motion to suppress evidence. The appellate court reversed and remanded the case for trial. TRIAL PROCEDURE: COURTROOM SECURITY; RECORD MUST SHOW HEARING INTO REASONS TO EXCLUDE SPECTATORS. State v. Morris, (2004) 157 Ohio App. 3d 395. Kevin Morris was convicted of possession of crack cocaine and trafficking in cocaine. The court sentenced him to maximum, consecutive terms of incarceration, and a three-year term of incarceration because the defendant had committed the felonies while he was on post-release control. When the court announced the sentence of six and one-half years, the defendant forcefully expressed his opinion that the sentence should be five years. The judge asked a woman in the courtroom to leave. A deputy said other deputies were coming and the defendant expressed his displeasure more strongly. The court told the deputy to "remove all those people." The defendant appealed and the Hamilton County Court of Appeals reversed, saying the following: "In this case, it is apparent that initially the court had asked a female to leave the courtroom before ordering the removal of 'all those people.' The record does not indicate the identity of the persons who were subject to the court's removal order or whether the courtroom was cleared of all spectators. Moreover, the record is silent as to any conduct that would have prompted the removal order or that would have prompted the sheriff's deputy to interject that more deputies were on their way to the courtroom. "The trial court's actions in ordering the removal of certain individuals may well have been warranted and entirely appropriate due to disruptive conduct that impeded an overriding interest in the court's orderly administration of its docket. Certainly, a serious disruption must have occurred in the courtroom to trigger the removal order by this very experienced trial judge. But, on the record before us, we cannot say that the removal of some or all of the spectators was necessary to protect an overriding interest, that there were no viable alternatives to the removal, or that the order was narrow enough to protect only an overriding interest." Except for a remark in the concurring opinion that a court must find on the record why the court is excluding persons from the courtroom, the opinion fails to discuss why the normal burden of proof in an appellate case, that regularity is presumed unless the record shows error, should be inapplicable in the instant case. The appellate court cited cases in which courtrooms had been closed to the public, not cases in which some people were asked to leave. The appellate opinion fails to record any objection by the defendant to the court's excluding anyone. The appellate court reversed and remanded for resentencing. |
