 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SELF-DEFENSE: SPECIFIC INSTANCES OF DECEASED'S CONDUCT INADMISSABLE TO PROVE THAT VICTIM WAS THE FIRST AGGRESSOR. State v. Barnes, No. 98-P-0052 (11th Dist. Ct. Apps., Portage Co., 7-21-00). The Portage County Court of Appeals reversed the involuntary manslaughter conviction of Marcus Barnes because the trial court refused to admit specific instances of the victim's violent conduct to prove that the victim was the first aggressor. Instances of violence by a victim that a defendant knew about have always been admissible to show that a defendant reasonably feared for his life. Several counties however, had recently held that examples unknown to the defendant were also admissible. The Ohio Supreme Court accepted State v. Barnes on a motion to certify conflict and reversed the Portage County Court. The holding of State v. Barnes (January 9, 2002) 94 Ohio St. 3d 21 is as follows: "A defendant asserting self-defense cannot introduce evidence of specific instances of a victim's conduct to prove that the victim was the initial aggressor (Evid. R. 404[A] and 405, construed and applied)." SEXUAL PREDATOR: HEARING REQUIREMENTS State v. Acklin , No. C-000 355 (1st Dist. Ct. Apps., Hamilton Co., 11-2-01). The Ohio Supreme Court remanded the case of Anthony Acklin to the Hamilton County Court of Appeals for reconsideration in light of State v. Eppinger (2001), 91 Ohio St. 3d 158. Acklin had entered a guilty plea to felonious sexual penetration of his four year old daughter, and had been determined to be a sexual predator. In State v. Eppinger, the Ohio Supreme Court announced guidelines for conducting hearings to decide whether a defendant is a sexual predator. The court said that the trial court should, 1.) make a clear record identifying the portion of the testimony or other evidence upon which the court's finding is based, 2.) determine whether an expert is necessary and, 3.) discuss what factors the court believes proves that the defendant is likely to engage in sexually-oriented offenses in the future. The Ohio Supreme Court also said the following: "One sexually oriented offense is not a clear prediction of whether the person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus we recognize that one sexually oriented conviction, without more, may not predict future behavior. As the trial court made no finding that Acklin was a pedophile and held the briefest of hearings, the appellate court remanded for the trial court to make findings or conduct another hearing. [Ed. Note: The Ohio Supreme Court, contrary to what defense counsel will argue, never said that a person must commit more that one offense against an adult, to be a sexual predator. The facts of a single offense may still be sufficient. The court merely said that the "fact" that a defendant has been once convicted of a sexual offense is insufficient to predict that the defendant will commit sexual offenses in the future]. CONFLICT OF INTERESTS: NO BLANKET DISQUALIFICATION OF PROSECUTOR'S OFFICE. State v. Adams, No. 13-01-13 (3d Dist. Ct. Apps., Seneca Co., 11-15-01). State v. Schramm, No. 13-01-18 (3d Dist. Ct. Apps., Seneca Co., 11-15-01). Ronald Schramm Jr. and Joseph Adams were represented by the county public defender's office on charges of escape and arson, respectively. After both were convicted, a Seneca County public defender, Chad Mulkey, became a Seneca County assistant prosecuting attorney. Mr. Mulkey had represented neither man. The public defender filed motions asking that the public defender be replaced by other counsel and that special prosecutors be appointed for all future motions in both cases. In Schramm, the public defender asked that testimony by Mr. Mulkey in another case raising the same issue be incorporated by reference. In Adams, there was no testimony, only argument by counsel. The trial court granted the motions and the state appealed. Citing Kala v. Aluminum Smelting and Refining Co., Inc. (1998) 81 Ohio St. 3d 1, the Seneca County Court of Appeals reversed. The Ohio Supreme Court in Kala listed three factors to consider in deciding a motion for disqualification: is there a substantial relationship between the matter at hand and the former matter; if so , is the presumption of shared confidences rebutted by evidence that the attorney whose representation is questioned had no knowledge of the former matter; and if the attorney had knowledge of the former case, did the new firm insulate the attorney from the instant case. The court in Schramm, citing State v. Murphy (Nov. 17, 1988), Marion Co. App. No. 9-87-35, unreported, observed that, unlike the circumstance when the lawyers are members of private firms, the appearance of impropriety is insufficient when the lawyers are government lawyers. Government lawyers share no pecuniary interests in other lawyers' cases and prosecutors represent the interests not of a private client but of the public. As the trial court held no hearing, the appellate court said, the court could not even begin an analysis under Kala. Evidence from a different case, the court continued, was irrelevant because Mr. Mulkey's connection to any case would have been unique. The court remanded for hearings. The public defender's office, the court said, must first establish a substantial relationship between the matters at issue. Then, the state must present evidence to rebut the presumption of shared confidences. The ultimate burden of proof is upon the party filing for disqualification, the public defender in these cases. JUDICIAL RELEASE - TIME TO REQUEST; CONSECUTIVE SENTENCES. State v. Anderson-Melton, No. 18703 (2d Dist. Ct. Apps., Montgomery Co., 11-9-01). The state appealed from the trial court's granting the defendant's motion for judicial release. Linda Anderson-Melton was convicted of receiving stolen property, insurance fraud, and illegal use of food stamps. She received consecutive sentences of twelve months, eleven months and twelve months, respectively, in September, 1998. In September, 2000, she filed a motion for judicial release. She argued that she could file a motion for judicial release at any of three times: thirty days after but no later than ninety days after the beginning of each sentence. The trial court agreed and granted the motion. The state appealed. Ohio Revised Code Section 2929.20(B)(1) provides that an eligible prisoner may file a motion for judicial release "not earlier than thirty days or later than ninety days after the offender is delivered to a state correctional institution." The Montgomery County Court of Appeals agreed with the state. Not only does R.C. 2929.01(B)(1) mean what it says, the court observed, but also R.C. 2929.01 (HH) defines "stated prison term" to include consecutive terms. As the statutes are unambiguous, the court held, the trial court erred in "interpreting" the statute. The appellate court reversed. SEARCH AND SEIZURE: PLAIN VIEW; "INADVERTENT" NO LONGER A REQUIRE- MENT. State v. Pitts, No. 18964 (2d Dist. Ct. Apps., Montgomery Co., 11-21-01). The state appealed from the trial court's granting the defendant's motion to suppress cocaine. Two Dayton police officers stopped Melody Pitts because she twice turned without using the car's turn signal. One officer saw Mrs. Pitts push her hand between the seat and the console. While one officer removed Mrs. Pitts from her car, the other officer, leaning into the car, shined a flashlight between the seat and the console. He saw what appeared to be crack cocaine. After conducting a field test, the officers arrested Mrs. Pitts. The trial court granted the defendant's motion to suppress evidence of the crack cocaine because, the trial court said, the state had failed to show that the discovery was "inadvertent". Before 1990, to justify seizing property under the plain view doctrine, the state had to show that the officers were entitled to be where they were, that the criminal nature of the property seized was immediately apparent, and that the discovery was inadvertent. In Horton v. California (1990), 496 U.S. 128, the Montgomery County Court of Appeals observed, the United States Supreme Court eliminated the requirement that discovery of evidence be "inadvertent". The appellate court also cited State v. Waddy (1992) 63 Ohio St. 3d 424, in which the Ohio Supreme Court followed Horton v. California. The appellate court reversed the trial court and remanded for trial. Two of the three judges said that using the flashlight was not a "search". The third judge concurred because, although the judge considered using the flashlight a "search", he believed it was reasonable to check for weapons.
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