 | Written and Edited by Joyce S. Anderson, Former Chief Counsel Appellate Division, Franklin County
INTIMIDATION OF WITNESS; TIMING OF THREATS. State v. Malone, No. 9-06-43, (3d Dist. Ct. Apps., Marion Co., 10-15-07), 2007 Ohio 5484, 2007, Ohio App. LEXIS 4818. Donald K. Malone, III nicknamed "Demon," was convicted of, among other offenses, rape and intimidating a witness. All charges arose from his conduct during an evening of socializing with four other persons, some of whom, including the victim, identified only as L.K., were clients of the Marion Area Counseling Center West, because of mental illnesses. The victim is bi-polar. Malone, who seems not to be a client of the counseling center, had a bedroom in the apartment, but officially lived with his mother. During the evening, Malone talked almost exclusively about sex; to wit, his former girlfriends and how he wanted to kill them. Late in the evening, he held an unsheathed knife in his hand and told L.K. that he would kill her unless she had sex with him. L.K. complied. Malone told L.K. that if she told anyone, he would kill her and her mother. Malone also told the other persons in the apartment that he had raped L.K. and that he would kill them if they reported it. Two days later, L.K. reported the rape. At trial, the defendant claimed the sex was consensual. He said that L.K. agreed to have sex with him if he wore a condom, which he refused to do. Then he testified that he told L.K. "Now, you know my name is Demon and you know I'm carrying a knife. I don't want you to think I'm intimidating you or nothing or whatever. This is your own free choice." As L.K. agreed thereafter to have sex with him, it was, according to the defendant, consensual sex. The jurors disagreed. On appeal, the Marion County Court of Appeals held that the defendant's threats to the victim and the others in the apartment could not be intimidation of a witness because no charge had yet been filed. The court reversed the conviction on intimidation of a witness and certified the case to The Ohio Supreme Court as being in conflict with State v. Gooden, 8th Dist. No. 8621, 2004 Ohio 2699 and State v. Hummell, (June 1, 1998), 5th Dist. No. CA-851. The question certified was, "Is a conviction for intimidation of a witness under R.C. 2921.04(B) which requires the witness to be involved in a criminal action or proceeding, sustainable where the intimidation occurred after the criminal act but prior to any police investigation of the criminal act, and thus, also prior to any proceedings flowing from the criminal act in a court of Justice?" The court affirmed the other convictions.
BATSON CHALLENGE: PRE-TEXTUAL REASON, DEFINED. State v. Benton, No L-06-1113, (6th Dist. Ct. Apps., Lucas Co., 8-3-07), 2007 Ohio 3945, 2007 Ohio App. LEXIS 3625. A jury convicted Tremon Benton of rape and felonious assault. The jury was unable to agree on a charge of kidnapping. The victim was his live-in girlfriend, Andrea J. whom he suspected of cheating on him. Despite the defendant's having inflicted horrific injuries to the victim she recanted and testified for the defendant at trial. The jury convicted the defendant anyway and he appealed. The prosecutor had peremptorily challenged one of two black prospective jurors. When told to explain his challenge, the prosecutor said he was disturbed by the prospective juror's response that she could not remember what happened when she served as a juror three years before. He felt there must have been "something wrong with that jury service." On appeal, appellant correctly observed that the juror had said she could not remember her jury service, but that the service had been not three years ago but twenty-two years ago. Therefore, appellant argued, the prosecutor's reason must have been a pretext for racial discrimination. The Lucas County Court of Appeals disagreed. Although premised on inaccurate information, the court said, the challenge was race-neutral. A reason will be considered a pretext, the court continued, only when the reason given for the challenge is "implausible or fantastic ... silly or superstitious." The court also noted that neither the court nor the defense attorney had corrected the prosecutor at trial. The court affirmed the convictions. DOUBLE JEOPARDY: MISTRIAL DECLARED SUA SPONTE BARS RETRIAL, WHEN. State v. Rodriguez, No. 88913, (8th Dist. Ct. Apps., Cuyahoga Co., 11-29-07) 2007 Ohio 6302. Manuel Rodriguez was charged with raping and kidnapping his eleven-year-old stepdaughter. The girl had previously told her mother that her stepbrother had raped her. Although a social worker interviewed the victim, nothing came of the allegations against the stepbrother. It is unknown whether those allegations were true. The victim wrote a note to her mother saying that her stepfather had done the same thing her stepbrother had. The prosecutor filed a motion in limine asking that defense counsel be precluded from questioning the victim about the allegations against her stepbrother or evidence of any sexual contact with the stepbrother. The court granted the state's motion. The prosecutor told the girl not to mention her stepbrother. However, when asked how she told her mother about the defendant's alleged crime, the girl responded that she had written her mother a letter in which she said that her stepfather had done what her stepbrother had done. Defense counsel failed to object. The defendant's theory was that the victim was making up the allegations against her stepfather because nothing had been done about her allegations against her stepbrother. Defense counsel argued that her response to the prosecutor invited inquiry into the forbidden area. The court refused to allow defense counsel to mention the reason, saying counsel could only inquire if she was "mad" at her stepbrother. The victim on cross-examination repeated what she had said on direct. Because the court believed that defense counsel had deliberately disobeyed the court's instructions, the court sua sponte declared a mistrial and discharged the jury. Defense counsel objected and moved to dismiss on double jeopardy grounds. The court told defense counsel to file a motion, which the court ultimately overruled. By the time of the second trial, the court had reversed itself on the evidentiary issue and allowed inquiry about the stepbrother. The jury convicted the defendant of kidnapping and rape. The Cuyahoga County Court of Appeals reversed. When a trial court sua sponte declares a mistrial, the court said, citing Arizona v. Washington, (1978), 434 U.S. 497, the mistrial must be "manifestly necessary." The appellate court held that a curative instruction would have solved the problem. [Ed. Note: The opinion does not discuss it, but as soon as the trial court decided that the evidence was admissible after all, it became obvious that the mistrial was, far from being "manifestly necessary," decidedly unnecessary. Moreover, the appellate court failed to see any misconduct by defense counsel, and it is true that defense counsel's questions were no more specific than the prosecutor's questions had been.] Judge Gallagher concurred in the judgment only. He observed that the majority was incorrect when it said the court failed to allow the lawyers to speak before discharging the jury. Defense counsel objected to the mistrial before the court discharged the jury and the court asked for comments from the prosecutor, who chose to remain silent. Judge Gallagher believed the trial court acted within its discretion but followed the appellate court's previous case law and reluctantly concurred.
PROSECUTORIAL CONDUCT: COURT'S WITNESS: EVID. R. 614, PROPER FOR PROSECUTOR TO REQUEST , WHEN. State v. Curry, No. 89075, (8th Dist. Ct. Apps., Cuyahoga Co., 10-25-07) 2007 Ohio 5721. The Cuyahoga County Grand Jury indicted Deshon Curry of felonious assault, attaching firearm specifications requiring a one-year term, a three-year term, and a five-year term; and having a weapon while being under disability, arising from his shooting at Paul McPherson. Mr. McPherson had driven home from a bar. As he emerged from his car, another car, a Kia, pulled up. Someone inside the car fired several shots. The bullets hit Mr. McPherson's car and house, but not him. Mr. McPherson used his undamaged truck to follow the fleeing Kia. At a red light, Curry got out of the Kia and fired more shots at McPherson before getting back into the Kia. Mr. McPherson continued following the Kia, eventually ramming his truck into it and pinning it against a fence in a parking lot. The men in the Kia ran into a bar, from which the police removed them. Mr. McPherson identified Curry as the shooter. At trial, however, Mr. McPherson refused to testify because, he said, he feared for his family. He later agreed to testify if a sentence he was serving at the time of trial could be reduced. At the prosecutor's request, the court called the victim as a court's witness under Evid. R. 614. The jury acquitted the defendant of the three-year and five-year specifications and convicted him of the remaining counts and specification. On appeal, the defendant argued that it was prosecutorial misconduct to ask the court to call the victim as a court's witness. The appellate court disagreed. Evid. R. 614, the court remarked, was intended for just such a witness; one who has valuable information but who appears to be aligned with the other party or who refuses to cooperate with the party who had intended to call the witness. To request that the court call a witness as a court's witness, the appellate court continued, a party need not be surprised. The defendant also argued that the court deprived Mr. McPherson of his Fifth Amendment rights by ordering him to testify. The opinion says nothing about Mr. McPherson's claiming any Fifth Amendment rights. Nevertheless, the court observed that those rights are personal to Mr. McPherson and the defendant may not allege error relating to those rights. [Ed. Note: the court addressed only the propriety of the trial court's calling the witness as a court's witness. A few other courts, however, have mentioned the annoying habit of defense counsel's alleging prosecutorial misconduct when the real issue is whether the trial court's ruling was correct. The standard of review for the latter is abuse of discretion, an almost impossible standard to meet. How it can be prosecutorial misconduct to ask the court to do something that the court has the power to do is unclear. However, it has reached the point where almost every appellant turns everything the prosecutor does into so-called prosecutorial misconduct.] The court affirmed the conviction.
FAILING TO REGISTER AS A SEXUALLY ORIENTED OFFENDER: "RESIDE" DEFINED. State v. Sommerfield, No. 14-07-09, (3d Dist. Ct. Apps., Union Co., 12-3-07), 2007 Ohio 6427. Richard Forest Sommerfield was convicted of failing to register as a sexually oriented offender, in violation of R.C. 2950.04. Appellant argued that the conviction was against the weight of the evidence because, he claimed, he "resides" not in Union County but in Delaware County. R.C. 2950.04 provides that a sexually oriented offender shall "register personally with the sheriff of the county within five days of the offender's coming into a county in which the offender resides or temporarily is domiciled for more than five days...." Although the defendant had a house in Delaware County, several neighbors of that home testified he had rarely been there for several months. The defendant had told a neighbor at his girlfriend's house that, since he hurt his back, he spent five nights out of seven at his girlfriend's house. Several of his girlfriend's neighbors testified that he was there every day, spent the nights there, and honked his horn when he left for work every morning between 5:30 a.m. and 5:45 a.m. The evidence, the Union County Court of Appeals held, was sufficient to show that the defendant resided in Union County. The court affirmed the conviction.
|
