 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
STATUTE OF LIMITATIONS: CHANGES CONSTITUTIONAL State v. Steele, No. C-020693, (1st Dist. Ct. Apps., Hamilton Co., 12-12-03). On February 19, 1994, Charles Steele threatened a young woman with a gun and raped her. She could not identify anyone. Having been incarcerated on an unrelated charge, Steele provided a blood sample for DNA testing pursuant to R.C. 2901.07. The sample matched samples preserved from the 1994 rape. The Hamilton County Grand Jury indicted Steele on November 26, 2001, over a year after the six-year-statute-of-limitations in effect in 1994 expired. On March 9, 1999, the General Assembly extended the stature of limitations to twenty years for rape and kidnaping. The General Assembly provided that the new statue of limitations in R.C. 2901.13 applied to offenses committed before the effective date, if the six-year-period had not already expired by the day before the effective date. The defendant argued the retroactive application violated the ex post facto clause of the United States Constitution. The Hamilton County Court of Appeals, observing it had already rejected a similar argument in State v. Crooks (2003) 152 Ohio App. 3d 294, held that the United Sates Supreme Court case of Strogner v. California (2003) 123 S. Ct. 2446, had no effect on its holding in State v. Crooks. In Stogner, the United States Supreme Court held that California's changing the statute of limitation violated the ex post facto clause because the change revived already time-barred prosecutions. The ex post facto clause permits extending the time within which an offense may be brought to trial if, when that extension takes effect, the existing statute of limitations is unexpired. The court affirmed rape and kidnapping convictions. DNA: DATA BASE MAY BE COMPILED WITHOUT INDIVIDUALIZED SUSPICION. State v. Steele, supra Steele also argued that it violated his constitutional rights for the government to take blood samples and include them in a national DNA data base without individualized suspicion. Taking a blood sample is a search. However, the court said, a warrant was unnecessary because the state's interest in creating a DNA data base outweighed the prisoner's reduced interest in privacy. Inmates and probationers have reduced rights. The court held that R.C. 2901.07 providing for the blood sample for the DNA data base, is constitutional. The court compared the statute to the "special needs" doctrine discussed in cases approving road blocks to check for drunken drivers. MIRANDA: DEFENDANT MAY BE ASKED ABOUT SILENCE AFTER ARREST BUT BEFORE RECEIVING MIRANDA WARNINGS. State v, Hannah, No. 19208 (2nd Dist. Ct. Apps., Montgomery Co., 10-17-03). Timothy Hannah was charged with murder, two counts of felonious assault, illegal possession of firearm in a liquor permit premises, and CCW, all arising from a bar fight. The defendant testified he acted in self-defense. The prosecutor asked about the defendant's failing to tell the police it was self-defense. Upon defense counsel's objection, the prosecutor withdrew the question. The court overruled defense counsel's objection. Later, however, the prosecutor agreed that the question about post-arrest silence violated Doyle v. Ohio (1976) 426 U.S. 610, and asked the court to instruct the jury to disregard the question (There was no answer). The court instructed the jury that the question was inappropriate. The jury convicted Hannah of all charges, except CCW, and he appealed. The Montgomery County Court of Appeals, relying on Fletcher v. Weir (1982) 455 U.S. 603, held that a defendant may be questioned about his post-arrest but pre-Miranda silence. Because nothing in the record showed that Hannah had received Miranda warnings, the court affirmed his conviction. OTHER ACTS: EVIDENCE OF ROBBERY ATTEMPT IMMEDIATELY BEFORE ROBBERY ADMISSIBLE, WHEN. State v. Hodge, No. 02AP-1358, (10th Dist. Ct. Apps., Franklin County, 10-16-03). Ronald Gene Hodge and his stepfather, "Doug" were looking for money to buy cocaine. Pointing a gun, Hodge tried to rob the employee at a drive-through window at a Wendy's on High Street in Columbus at 1:00 a.m. Told that the employee could not open the register, Hodge hit the employee's arm before running away. A few minutes later and a short distance away, an employee of The Village Inn, Sam Spect, was killed. Another employee saw a man in the parking lot, carrying what appeared to be a television. The robbers took video equipment and a television monitor. A 52-year-old, married, Columbus fireman was visiting a secret, homosexual lover at the Village Inn. The fireman and his friend had intended to buy cocaine from Hodge and "Doug." When the shooting started, they decided to leave. As the fireman got into his car, Hodge who was parked nearby, said that the man had grabbed him and he had to shoot him. Despite threats from Hodge and the fireman's personal circumstances, the Columbus fireman, a few days later, called a friend who was a Columbus police officer. When the police tried to arrest Hodge and Doug, Doug fired at the officers, who killed him. The Wendy's employee recognized Hodge's picture in the newspaper. The Village Inn employee identified him as the man she saw in the parking lot. However, Hodge's stepfather was carrying the murder weapon when the officers killed him. The Grand Jury indicted Hodge for two counts of aggravated murder, two counts of aggravated robbery, one count of aggravated burglary, two counts of robbery, two counts of having a weapon under disability, one count of kidnapping and one count of tampering with evidence. The court denied Hodge's motion to sever counts arising from the robbery at Wendy's. The court reduced the prior calculation and design murder charge to murder. The jury returned guilty verdicts, but failed to fill out verdicts for three counts. As they would have merged into other counts anyway, the prosecutor asked to have them dismissed. On appeal, Hodge argued that his motion to sever should have been granted and that evidence of the Wendy's robbery was inadmissible under Evid. R. 403(B). The Franklin County Court of Appeals held the evidence admissible as showing a "scheme, plan, or system." As the evidence would have been admissible even if the court had severed the counts, the appellate court said, appellant suffered no prejudice from joinder. The appellate court affirmed. REVOCATION OF COMMUNITY CONTROL: PROSECUTOR MAY REQUEST REVOCATION WITHOUT COMPLAINT FROM PROBATION DEPARTMENT. State v. Young, (3d Dist. Ct. Apps., Marion Co. 8-25-03). 154 Ohio App. 3d 609. On September 6, 2000 a trial court sentenced Jeffrey Young to three years community control on a DUI conviction. On February 14, 2003, the grand jury indicted Young for another DUI and for driving while under suspension. On February 27, 2003, the prosecutor filed a "Notice of Probation Violation; a Request for Arrest Warrant; and a Request for Hearing." On the same day, the trial court ordered the prosecutor's motion stricken from the record, finding that the prosecutor's office lacked authority to initiate community control violation proceedings. The state appealed. [Ed. Note: The opinion does not discuss whether the state had a direct appeal or sought leave to appeal. The court said "The state appeals the order denying and striking their motion."] The state argued it continued to be a party under R.C. 309.03 in "all complaints, suits and controversies." The defendant argued that R.C. 2929.15(A)(2)(a) delegated supervision of community control to the department of probations and that R.C. 2929.15(A)(2)(b) granted that department the exclusive power to institute community control violation proceedings. The Marion County Court of Appeals agreed with the state. The court reversed and remanded for further proceedings.
EXPERTS: TESTIMONY ABOUT WHY A BATTERED WOMAN MIGHT RECANT ACCUSATIONS ADMISSIBLE IN DOMESTIC VIOLENCE PROSECUTION. State v. Thomas, No. 19435, (2nd Dist. Ct. Apps., Montgomery Co., 10-24-03) Reno Thomas and Stephanie Peterson maintained a romantic relationship for an unspecified but lengthy time. Ms. Peterson ended the relationship in April, 2001. On April 28, 2001; June 15, 2001; and June 3, 2001, Thomas assaulted Ms. Peterson. (Other than describing one incident in which Thomas pointed a gun at Ms. Peterson, the opinion fails to specify the nature of the assaults). The grand jury indicted Thomas for two counts of aggravated burglary, three counts of domestic violence, and one count of abduction, and one count of disrupting public services. By the time of trial, Ms. Peterson had changed her mind. She testified as a court's witness that the three events were "misunderstandings." She said she invented the allegation in her statements to the police, but admitted that she and the defendant had "altercations." The state called Margene Robinson, a retired Dayton police officer, with significant training and experience in domestic violence cases. She testified, in a variation on the sexually abused child syndrome, about why a battered woman might recant accusations against her abuser. The jury returned guilty verdicts on all charges except one of the two aggravated burglary charges. On appeal, appellant argued the trial court erroneously admitted the expert testimony. Quoting from State v. Dyson (October 27, 2000), Champaign Co. App. No. 2000CA2, the Montgomery County Court of Appeals said that the average person would not "have a detailed understanding of the workings of an abusive relationship, notwithstanding some awareness of domestic violence in our society." The court observed that Ms. Robinson's testimony about domestic violence statistics was improper. However, the defendant failed to object and the court declined to find plain error. The court affirmed the convictions.
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