 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
PROSECUTION FOR ESCAPE, RETALIATION, PARTIAL SUCCESS. State v. White, No. 06CA84, (5th Dist. Ct. Apps., Richland Co., 8-16-07). Maxwell White was on death row for killing an Ohio Highway Patrol Trooper in Ashland County. State courts had upheld his conviction and a petition for habeas corpus was pending. Richard Cooey, on death row for murdering two college students, and White planned for several weeks to escape. They collected clothing, first aid supplies and food; they wrote a list of things they would need to steal once they had escaped, such as weapons and ammunition; and they made a ladder of bed sheets and magazines. In February, 2005, heavy snow covered the physical activity area. Using dustpans, inmates had shoveled a snow-bank against the fence that almost reached the top of the fence. Although guards had been told by superiors to remove the snow, the guards did not. Cooey and White had hidden some items they would need for the escape in the snow-bank. On February 5, 2005, Cooey and White requested outdoor privileges. It was cold and they were the only inmates who ventured outside. The guards on duty placed the two men in the recreation area and left. Although guards were required to check on the inmates, the guards on duty that day failed to do so for one and one-half hours. Cooey and White climbed to the top of the pile of snow, went over the fence, and walked around the death row area to the perimeter fence at the back of the institution. Using an exercise mat to cover the razor wire at the top of the fence, Cooey climbed over. It is unclear from the opinion whether White, hampered by his supplies, ever made it over the first fence. Cooey, however, scaled the first fence and was trying to climb the second fence. Only then did alarms go off, summoning guards who took both men into custody and returned them to their cells. Because both men were under death sentence, the Richland County Prosecutor decided not to prosecute for escape. In December, 2006, however, the Federal Sixth Circuit Court of Appeals overruled the district court's denying White's petition for a writ of certiorari and ordered that White be retried. The Ashland County Prosecutor then asked the Richland County Prosecutor to reconsider his decision not to prosecute for escape. The Richland County Prosecutor's office took the case to the Grand Jury, which indicted White for escape. A jury convicted White of escape and the court sentenced him to eight years. On appeal, appellant argued that prosecuting him for escape was punishment for exercising his right to seek a writ of habeas corpus, relying on North Carolina v. Pearce (1969), 395 U.S. 711. The court of appeals found the presumption of retaliation of North Carolina v. Pearce inapplicable because the defendant was not sentenced to a harsher sentence after a successful appeal on the same offence. Rather, the court said, the prosecutor exercised his discretion to prosecute after the death sentence was vacated. Before then, the court said, prosecuting for escape would have been "superfluous." After that , the prosecutor was free to exercise his discretion to prosecute for escape, because, once the death penalty had been vacated, the possibility existed that the defendant might at some point be eligible for parole. The court affirmed the conviction.
OTHER ACTS: EVIDENCE OF SEXUAL ASSAULTS ON OTHER YOUNG RELATIVES ADMISSIBLE, WHEN. State v. Griffin, No. 2006CA00175, (5th Dist. Ct. Apps., Stark Co., 8-27-07), 2007 Ohio 4431. Johnny O. Griffin, Jr. had vaginal intercourse with twelve year old Amber McKenney, the daughter of Griffin's girlfriend's sister. Amber immediately awoke her ten year old sister to tell her. The next day, Amber told her school counselor, who informed authorities. A criminologist at the Stark County Lab found elevated levels of amylase, a digestive enzyme present in saliva, on the interior crotch of Amber's underwear. The criminologist found a small amount of male DNA, but was unable to get a result. The state criminologist sent the sample to a more sophisticated facility Lab Corp, in North Carolina. The criminologist in North Carolina used a testing method called YSTR, which cannot pinpoint a specific person, but only determines whether the sample came from the person's male lineage. The criminologist found with 95% certainty that the saliva matched the defendant's paternal lineage. The state introduced testimony of another girl, fourteen years old in 1999, that the defendant, who at the time was the best friend of her mother's boyfriend, had vaginal intercourse with her under similar circumstances (late at night, watching television, with the rest of the household asleep). The Stark County Court of Appeals held that there were enough similarities between the two incidents to justify introducing the evidence under the "scheme, plan or system" exception in Evid. R. 404(B) and R.C. 2945.59. The court affirmed the conviction.
SENTENCING: COURT MAY NOT IMPOSE CONDITIONS ON CONFINEMENT AS PART OF SENTENCE. State v. Distasio, No 88983, (8th Dist. Ct. Apps., Cuyahoga Co., 10-11-07), 2007 Ohio 5454, 2007 Ohio Apps. LEXIS 4787. Phillip Distasio entered guilty pleas to 74 counts, including rape, GSI, pandering obscenity involving a minor, disseminating obscene material to a juvenile, and kidnapping. The trial court sentenced him to life without parole, and other sentences. The court also ordered that the defendant was "not allowed access to a computer with internet capability. All incoming and outgoing mail is to be screened. Mail claimed to be attorney/client is to be screened by an attorney who will respect the attorney/client privilege." The defendant on appeal claimed that applying State v. Foster (2006), 109 Ohio St. 3d 1, violated the ex post facto clause. The Eighth District Court of Appeals quickly rejected that argument. However, the court held a trial court lacks authority to impose conditions when no statute makes those conditions available as part of a sentence. Observing that offending parts of a sentencing order may be vacated without remanding for re-sentencing, the appellate court vacated the conditions but otherwise affirmed.
CONFRONTATION: STATEMENTS ADMISSIBLE UNDER CRAWFORD V. WASHINGTON (2004) 541 U.S. 66 AND DAVIS V. WASHINGTON (2006), 126, S.CT. 2266, WHEN. State v. Quinn, No. L-05-1302 (6th Dist. Ct. Apps., Lucas Co., 3-2-07). Armed with a shotgun, Albert Quinn, with three cohorts, broke into a house in which five adults and three children lived. On the day of the break-in, one of the adults, Lauren Bair, had cashed a check for $19,000.00, which she received as part of a settlement from a lawsuit. The four perpetrators knew some of the people who lived in the house and evidence suggested they also knew about the $19,000.00. When one of the male residents escaped through a window, however, the robbers fled, leaving the shotgun. Police officers arrived quickly but had trouble getting information from the frantic victims. Several, including Lauren Bair, identified Albert Quinn and one or more of the other four robbers. Ms. Bair was unavailable at the time of trial. The trial court admitted her statements to the police. The defendant was convicted of aggravated burglary and aggravated robbery, as well as a gun specification under each charge. On appeal, he argued that admitting Ms. Bair's statements violated the confrontation clause. In appeal by one of the other robbers, Charles Reardon, the Lucas County Court of Appeals in State v. Reardon (2006) 168 Ohio App. 3d 386, held that Bair's statements were non-testimonial because the officer's questions were aimed at "resolving the present emergency and apprehending the suspects before they escaped the area or harmed other (sic) others in the process of escaping. Our focus was on the purposes of the police interrogation, which was consistent with the prevailing interpretation of the Crawford case." (court's emphasis) Quinn at ¶ 32. However, the Lucas County Court continued, since the decision in State v. Reardon, the Ohio Supreme Court decided State v. Stahl (2006) III Ohio App. 3d 186, 2006 Ohio 186. The Lucas County Court observed that the Ohio Supreme Court in Stahl had adopted a broader interpretation of Crawford than what the Lucas County Court had considered the "prevailing interpretation." The Lucas County Court, therefore, believed it necessary to reconsider whether Lauren Bair's statements to police were "testimonial." The court reached the same conclusion as it had reached in State v. Reardon, to wit: that Bair's statements were non-testimonial. However, the court applied the reasoning from State v. Stahl, quoting from that opinion as follows: "courts should focus on the expectation of the declarant at the time of making the statement; *** the intent of the questioner is relevant only if it could affect a reasonable declarant's expectations." The court found that Ms. Bair "was answering the officer's questions solely to aid the police in the apprehension of the perpetrators. Under the circumstances of this case, a reasonable person would not have believed that their answers to the officers questions would be used against the perpetrators at trial." Therefore, the court held, her statements were non-testimonial and admissible. The court remanded the case for re-sentencing under State v. Foster but otherwise affirmed.
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