 | Written and Edited by Joyce S. Anderson, Former Chief Counsel Appellate Division, Franklin County
DEATH PENALTY: HEARING ON MENTAL RETARDATION; DEFENDANT'S RECORDS. State v. Lorraine, No. 2006-1-0100, (11th Dist., Trumbull Co., 12-14-07), 2007 Ohio 6724. The defendant was sentenced to death in 1986. He filed a post conviction petition, claiming he was mentally retarded and, therefore, ineligible for execution under Atkins v. Virginia (2002), 536 U.S. 304. In support of his petition he submitted mitigation testimony and IQ scores. The trial court denied the petition without hearing and the appellate court reversed and remanded. On remand, the defendant filed a motion in limine to exclude his psychological records from after the trial. Because, under Atkins, the mental illness must manifest itself before a person is eighteen years old, the defendant argued, other records, including post-trial psychological records should be irrelevant. The trial court denied the motion and the defendant immediately appealed. The state argued the order was not a final appealable order. Having rejected the state's argument on whether the defendant could appeal, the Trumbull County Court of Appeals affirmed the trial court's denying the defendant's motion in limine. Stressing that protocols and procedures for determining mental illness and retardation change, the court held that all records are relevant. The court affirmed and remanded for a hearing on whether the defendant may be executed under Atkins, at which all defendant's records will be admissible. CRAWFORD V. WASHINGTON: LAB REPORT INADMISSIBLE WITHOUT TESTIMONY OF PERSON WHO PERFORMED TEST. State v. Pasqualone, No. 2007-A-0005, (11th Dist., Ashtabula Co., 12-14-07), 2007 Ohio 6725. His motion to dismiss on speedy trial grounds having been denied, Thomas Pasqualone was convicted of possession of cocaine. The court admitted the lab report with an affidavit under R.C. 2925.51. Defense counsel failed to demand that the author of the report appear. The defendant was convicted and he appealed. On appeal, he argued that R.C. 2925.21 was unconstitutional because it allowed testimonial evidence to be admitted, unless the defendant demanded that the witness appear. The appellate court refused to accept that argument. However, the court held that the lab report was testimonial, and, therefore, appearance of the witness could only be waived by a knowing, intelligent, and voluntary waiver in court by the defendant. Simply failing to request that the witness appear, which is all the statute demands, fails to comport with Crawford, the court held. The court reversed and remanded for retrial. [Editor's Note: for a case involving testimony of an expert who did not do the test, see State v. Crager (2007), 116 Ohio St. 3d 369.] ADMISSIBILITY OF EVIDENCE: SIMILAR TRANSACTION ADMISSIBLE TO SHOW DEFENDANT'S KNOWLEDGE. State v. Martin, No. CA2007-01-022, (12th Dist. Ct. Apps., Butler Co., 12-28-07), 2007 Ohio 7073. Because of an illegally tinted windshield, officers stopped the car in which Jeannie Gail Martin was riding. Opening the door, the officers saw Vicodan on the back seat. They also found marijuana and crystal methamphetamine in the car. At her trial on felony aggravated possession and five unspecified misdemeanors, the defendant's theory was that she did not know the drugs were in the car. A police officer familiar with the defendant from another case, testified that he executed a search warrant at the defendant's home. While he was there, he testified, the defendant told him that she was involved in methamphetamine trafficking. She was convicted and appealed. On appeal, the defendant claimed that the evidence was an inadmissible other act. The Butler County Court of Appeals disagreed. The evidence was admissible, the court held, to show knowledge and plan. ADMISSIBILITY OF EVIDENCE: COURT SHOULD HAVE ADMITTED EVIDENCE OF CO-DEFENDANT'S PRIOR DRUG SALES. State v. Forbes, No. CA 2007-01-001, (12th Dist. Ct. Apps. Preble Co., 12-3-07), 2007 Ohio 6412. Officers stopped an SUV for a traffic violation which Elwood Forbes was a passenger. Suspicious activity by the occupants caused officers to call for a drug-sniffing dog. After the dog alerted, officers found cocaine between the seats and behind the panels of the interior. At his trial on possession of cocaine charges, the defendant claimed he knew nothing about the drugs. The driver of the SUV, Bobo Wince, testified that he did not sell drugs. He claimed to have agreed this time only to transport the defendant's drugs for $5,000. The defendant sought to call a witness, George Nelson, who would testify that Wince sold drugs all the time and that Nelson had helped him. The trial court excluded the evidence under Evid. Rule. 404(B) and 608(B). Relying on a Franklin County Court of Appeals case, the Preble County Court of Appeals reversed. The court agreed that the evidence was inadmissible on the issue of Wince's credibility or to prove Wince was a drug dealer. However, the court held that the evidence was "specific contradiction" testimony governed not by the rules of evidence but by the common law. According to the Preble County appellate court, "extrinsic evidence of contradiction is admissible if the evidence would be admissible for any purpose other than the contradiction." The court held that the evidence was relevant to whether defendant Forbes knew that the drugs were in the car. The court affirmed on other assignments of error but reversed and remanded for retrial. TRIAL PROCEDURE: NO PRETRIAL MOTION TO DISMISS BASED ON SUFFICIENCY OF EVIDENCE. State v. Troupe, Nos. C-061087, C-061088, (1st Dist. Ct. Apps., Hamilton Co., 12-28-07), 2007 Ohio 7065. The state appealed from the trial court's granting the defendants' motion to dismiss the indictment. Corey Troupe and Varian Scott offered to sell 3,000 to 4,000 grams of cocaine to a confidential informant. Officers arrested Scott and Troupe. Searching their car, officers found 14.3 grams of cocaine in the passenger compartment, and benzocaine, and a large amount of a counterfeit controlled substance in the trunk. Officers charged the pair with aggravated trafficking and a major drug offender specification under R.C. 2925.03(c)(4)(g). Relying on State v. Chandler (2006) 109 Ohio St.3d 223, in which the Ohio Supreme Court held that the drugs must contain an "appreciable amount" of a controlled substance to support a specification that a defendant was a major drug offender, the defendant filed a motion to dismiss. The parties stipulated to the above facts. The court dismissed the indictment and the state appealed. The Hamilton County Court of Appeals sua sponte held that a motion to dismiss that is based on the sufficiency of the evidence cannot be raised pretrial under Crim. R. 12. To determine whether the state has provided sufficient evidence to prove its case, the court held, the trial court must hear the evidence. The court sustained the state's assignment of error, although on grounds not raised by the state, and remanded for trial. SENTENCING: TRIAL COURT MUST COMPLY WITH STATUTE. State v. Beatty, C-060988, (1st Dist. Ct. Apps., Hamilton Co., 12-21-07), 2007 Ohio 6872. Owen Beatty entered a guilty plea to a second offense of operating a motor vehicle while intoxicated, 4511.19(G)(3). The municipal judge sentenced him to serve five days in jail and eighteen days under house arrest. R.C. 4511.19(G)(1)(b)(i) requires a sentence up to six years, with mandatory incarceration for ten days, unless the record shows that the jail is unable to house the defendant. Neither party objected to the sentence, but the state appealed. The appellate court reversed, holding that the evidence in the record was insufficient to show that the jail could not accommodate the defendant. On remand, the court imposed a sentence of 170 days, suspending 160 days and ordering that the defendant serve five days at Tolbert House instead of the jail and 18 days of home monitoring. The city did not object. The next day the court entered a nunc pro tunc entry, saying that the jail was overcrowded. The city filed a motion to reconsider. At the hearing on the state's motion, the court said it was the court's policy to sentence offenders not to the Justice Center but to Tolbert House, because the jail was overcrowded. The judge relied on evidence from the first record and said that he had "spoken to people," who told him the jail was overcrowded. The City appealed and the Hamilton County Court of Appeals reversed. The Court first held that the prosecution could not file a motion to reconsider after the journal entry because the criminal rules fail to provide for a motion to reconsider. However, the court also held that the trial court could not impose the sentence it did. Regarding evidence at the first hearing, the appellate court held that it said the first time that the evidence at the first plea hearing was insufficient to justify departing from the sentence provided in the statute. The court continued that "talking to people" was not evidence. Even if there had been additional evidence, the court concluded, the trial court was bound by the appellate court mandate to sentence the defendant appropriately on remand and was not free to consider additional evidence. The court remanded, ordering the trial court to impose the sentence the court ordered it to impose the first time.
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