 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
APPEAL BY STATE: STATE MAY NOT APPEAL COURT'S GRANTING SHOCK PROBATION. State v. Reed, No. 14 05 08 (3d Dist. Ct. Apps., Union Co. 10 31 05) 2005 Ohio 5759. On August 7, 2003, Jennifer Reed was convicted of five unspecified fourth degree felonies and sentenced to concurrent one year terms. The trial court granted probation. Reed absconded and the court revoked her probation. Within 90 days, Reed filed a motion for judicial release, which the court at the hearing modified to a motion for shock probation. The court granted the motion and the state appealed. The Union County Court of Appeals held that granting a motion for shock probation, although done in a special proceeding, was not a final appealable order. As no provision allows the state to appeal from a court's granting a motion for judicial release, the court held the court lacked jurisdiction and dismissed the state's appeal. CONFRONTATION: CRAWFORD V. WASHINGTON (2004), 541 U.S. 36; EXCITED UTTERANCES OF THREE YEAR OLD "TESTIMONIAL." State v. Siler, No. 02 COA 028, (5th Dist. Ct. Apps., Ashland Co., 12 23 05). A jury convicted Brian Siler of murdering his wife. Although the jury recommended the death penalty, the trial court imposed a life sentence. The couple's three year old son saw the murder. In response to questions of a detective at the scene, the child said things such as "Daddy hurt Mommy. Daddy and Mommy fighting .... In the garage," and a few other similar remarks. The victim's body was found hanging from the rails of the garage door. All Ohio courts affirmed the conviction. The defendant filed a motion to reconsider in the Ohio Supreme Court, raising the issue of confrontation under Crawford v. Washington, which had been decided before the appellate court affirmed the conviction but after the Ohio Supreme Court declined jurisdiction. The Ohio Supreme Court denied the motion to reconsider. However, the United States Supreme Court remanded the case to the Ashland County Court of Appeals for reconsideration in light of Crawford v. Washington, supra. On remand, the Ashland County Court of Appeals reversed. The court held that police questioning is "police interrogation." The court found the child's remarks "testimonial." According to the Ashland County Court of Appeals, the only thing that matters is the Supreme Court's saying, "Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford at 68. The Ashland County Court seemed undisturbed by the fact that the above sentence is neither the holding of Crawford, nor necessary for deciding Crawford. The United States Supreme Court in Crawford specifically declined to define testimonial. The Ashland County Court of Appeals also was undisturbed by doubts about whether a three year old could intend statements to be used in court. The court simply said the Constitution contains no age specifications. The State intends to appeal. CONFRONTATION: CRAWFORD V. WASHINGTON (2004), 541 U.S. 36; LAB REPORT AUTHOR MUST TESTIFY. State v. Crager, No. 9 04 54 (3d Dist., Marion Co. Ct. Apps., 12 27 05) 2005 Ohio 6868. Lee Crager was charged with aggravated murder and aggravated burglary. The person who performed the analysis of DNA samples was unavailable at the time of trial. Another analyst who had checked the work of the original analyst testified instead. Although the defendant had failed to raise the issue when he first learned that the original analyst would be absent from trial, the defendant objected at trial on the grounds that Crawford v. Washington required the author of the report to testify. The defendant was convicted and he appealed. The appellate court reversed. The court rejected the state's argument that the report should be admitted as a business record. Although citing a number of cases from other states holding that reports such as autopsy reports, etc. were not, quoting from Crawford, "affidavits, depositions, prior testimony, or confessions," and therefore not testimonial, and states that relied on the language from Crawford that "most of the hearsay exceptions covered statements that by their nature were not testimonial for example, business records." The Marion County Court of Appeals held that admitting the DNA report violated the confrontation clause. The court relied on the first quote from Crawford above, which continues as follows: "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." The court reversed and remanded for retrial. APPEALS: NO CONTEST PLEA PRESERVES ONLY ISSUES LISTED IN CRIMINAL RULE 12. State v. Reynolds, No. 20973, (2d Dist. Ct. Apps., Montgomery Co., 12 30 05). Reynolds was charged with committing burglary on November 9, 2002. He was indicted on March 3, 2003. He filed a motion to dismiss for pre indictment delay. He referred in his motion to R.C. 2941.401. The trial court's having overruled his motion, the defendant entered a no contest plea and was convicted. On appeal, the defendant argued he had been deprived of his right to a speedy trial. The Montgomery County Court of Appeals held that the appellant had failed to preserve the issue for appeal. A no contest plea preserves only those issues addressed in Criminal Rule 12. Criminal Rule 12 applies not to pre indictment delay but only to alleged violations of the statutory right to a speedy trial. "Where a defendant pleads no contest, all errors are waived except errors in rulings made on pretrial motions." However, the court continued, arguments that a defendant has been deprived of his constitutional right to a speedy trial are not covered by Rule 12. The court affirmed the conviction. [Ed. Note: When accepting the plea, the trial court told the defendant he could appeal his conviction and raise the speedy trial issue on appeal.] SEARCH AND SEIZURE: ULTERIOR MOTIVE OF OFFICERS IRRELEVANT WHEN SUSPECT'S CONSENT TO ENTER HOME VOLUNTARY. State v. Eastman, No. 05CA000030, (5th Dist. Ct. Apps., Guernsey Co., 12 14 05). The State appealed from the trial court's granting the defendant's motion to suppress evidence. Investigating a complaint that people were smoking crack cocaine in James Eastman's apartment, police officers knocked on his door. Eastman answered and denied any drug use. The officers asked if they could come inside out of the rain and Eastman agreed. Inside, officers saw a plastic bag containing white powder on the kitchen table. Then Eastman admitted that he and others in the apartment had been smoking crack cocaine. The trial court granted the defendant's motion to suppress because, the trial court said, the officers had an ulterior motive in asking to come inside. The appellate court reversed. Whether the officers had an ulterior motive, the court said, was irrelevant. They were not deceptive. The court reversed and remanded for trial.
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