 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
CONFRONTATION: CRAWFORD V. WASHINGTON (2004) 541 U.S. 36 INITIAL ACCUSATION NON-TESTIMONIAL, WHEN; OHIO V. ROBERTS 448 U.S.56, STILL APPLICABLE WHEN. State v. McKenzie<.i> , No 87610, (8th Dist. Ct. Apps., Cuyahoga Co., 11-2-06). In a pretrial hearing, the trial court found that admitting into evidence the statements of an alleged victim of domestic violence would violate the defendant's right to confront witnesses against him. The state appealed. A police officer (unnamed in the opinion), while responding to an unrelated call, saw James McKenzie walking on a street. A woman (referred to in the opinion as "the victim" only) ran from a house pointing at McKenzie and screaming, "That's him. That's him. He is the one that just hit me." The officer put McKenzie in his police cruiser while the officer talked to the hysterical victim, who's face was bruised and bloodied. By the time of trial, the victim refused to testify. Accepting that the initial exclamation was an excited utterance, the trial court, nevertheless, ruled that everything the victim told the officer should be excluded. As the officer was the only person on the street, the trial court reasoned, the victim's remarks "That's him. That's him. He's the one that just hit me," was "an accusation." As the victim's motive was to accuse the defendant of a crime, the trial court continued, all of her remarks were testimonial. The state appealed and the Cuyahoga County Court of Appeals affirmed in part and reversed in part. The appellate court agreed that everything the victim told the officer after Mr. McKenzie had been secured in the police cruiser was testimonial. However, the appellate court equated the victim's initial accusation with the initial remarks made in the 911 call in Davis v. Washington (2006) 126 S.Ct.2266. The victim's primary purpose in shouting to the police officer was not, the appellate court said, to provide statements for a later prosecution but was to alert the officer to an on-going emergency. Having concluded that the victim's first three sentences were both non-testimonial and excited utterances, the appellate court next applied the standards of Ohio v. Roberts, 448 U.S.56, citing the reasoning of the court in United States v. Thomas (C.A.7, 2006) 453 F. 3d 838. [Ed. Note: Justice Rehnquist in his dissent in Crawford says that the majority overrules Roberts. Justice Scalia in Davis v. United States, writing the majority opinion, says that the court in Crawford overruled Roberts. However, the majority opinion in Crawford does not specifically overrule Roberts. Consequently, many federal courts, having found evidence non-testimonial, require that the evidence also meet the reliability requirements as a hearsay exception. The Ohio Supreme Court in State v. Stahl (2006) 111 Ohio St. 3d 186 said nothing about applying Roberts.] The Cuyahoga County Court of Appeals held that the first statement satisfied the reliability requirement of Roberts and, at trial upon remand, should be admitted. The court agreed that the answers to the officer's questions after Mr. McKenzie was secured in the cruiser should be excluded. The court affirmed in part and reversed in part and remanded for trial. OTHER ACTS: EVIDENCE THAT DEFENDANT REACTS BADLY TO BEING REJECTED BY WOMEN ADMISSIBLE IN TRIAL FOR KILLING WOMAN WHO HAD REJECTED HIM. State v. Charley, No. 05-BE-34, (7th Dist. Ct. Apps., Belmont Co., 3-6-07). Leroy Charley was convicted of aggravated murder with prior calculation and design. The victim, forty-two year old Sue Forbes, and Charley had dated for about five months. When Sue Forbes tried to end the relationship, Leroy Charley refused to be rejected. He stalked her, followed her, sent her unwanted gifts, and repeatedly telephoned her and her friends and family. On the night she died, Sue Forbes went to a bar with her sister and cousin. Although Ms. Forbes objected, Leroy Charley went with them. Evidence suggested that Leroy Charley put a toxic but non-fatal dose of muscle relaxant in Ms. Forbes's drink. Ms. Forbes, semi-conscious, was last seen at about 12:30 a.m. Leroy Charley was taking her into her apartment. The two were arguing and Ms. Forbes wanted him to leave her alone. Within an hour, Sue Forbes was dead. She had been beaten, bitten, strangled and stabbed twenty times. Her 13 year old son, who had spent the night with his married sister, found his mother's body when he returned home. Exactly two weeks before, Leroy Charley had told another girlfriend, Latonna Harrison, who had left him because he was seeing Sue Forbes, that in two weeks he would be "all her's" and that she would read about it in the papers. Ms. Harrison; the defendant's ex-wife, Lona Charley; and another woman testified that the defendant, when each woman tried to end her relationship with him, responded by stalking her, hitting her, pushing her into a wall, or trying to choke her. Having been convicted of prior-calculation-and-design aggravated murder, Charley appealed raising, among other issues, the admissibility of the evidence of his conduct toward the other women in his life. The Belmont County Court of Appeals affirmed. Citing State v. Wilson (1996) 74 Ohio St. 3d 382, the Belmont County Court of Appeals held that appellant's inability to accept rejection was relevant to motive and, therefore, admissible. TRIAL PROCEDURE: MOTION IN LIMINE FAILS TO PRESERVE OBJECTION TO THE RELEVANCE OF EVIDENCE. State v. Charley, supra. The court held a pretrial hearing on the defendant's motion in limine to exclude the other acts evidence as irrelevant. Overruling the motion, the trial court observed that defense counsel raised some issues that would be good arguments to make during the trial. Nevertheless, defense counsel, a lawyer who lives and works primarily in West Virginia, failed to object when the evidence was admitted at trial. Following long-established Ohio law, The Belmont County Court of Appeals held that appellant had failed to preserve his objection to admitting the evidence. Thus the standard to be applied was whether admitting the evidence had been plain error. The court found no error at all. [Ed. Note: See State v. Grubb (1986), 28 Ohio St 3d 199 and State v. Spahr (1976), 47 Ohio App., 2d 221, for the rule that a motion in limine fails to preserve an objection based on whether evidence is relevant.] DUE PROCESS: COURT MUST, EVEN IN A BENCH TRIAL, ALLOW CLOSING ARGUMENTS. State v. Bowersock, No. 05-MO-19, 05-MO-20, (7th Dist. Ct. of Apps., Monroe Co., 12-29-06), 2006 Ohio 7102. Ronald and Roy Bowersock (relationship unstated) were charged with disorderly conduct arising from an altercation during a labor dispute. Video tape from the security cameras outside Ormet Corporation showed each man in a fight with contract drivers during a strike. In a bench trial, after the defense rested, the trial court said it would "take the case under advisement" and adjourned. Defense counsel asked if the court did not want to hear oral arguments. The court said it did not need to. Counsel asked to submit something in writing. The court again declined. The court found both men guilty. The Monroe County Court of Appeals reversed. The court cited Herring v. New York (1975), 422 U.S. 853, in which the United States Supreme Court held that denying a defendant a chance to make closing arguments in a bench trial, deprived the defendant of due process. A defendant need not specifically object, nor even ask to argue if the court indicates a request would be denied. The appellate court reversed and remanded for retrial. FEDERAL PREEMPTION: CONDUCT NOT PART OF COLLECTIVE BARGAINING, PROSECUTION PERMITTED. State v. Bowersock, supra. The appellants also argued that the National Labor Relations Board had exclusive jurisdiction in the case because the element of disorderly conduct, R.C.2917.11(A)(1), of "creating a condition by any act that serves no lawful purpose," made the conduct part of the collective bargaining process. If the offense is only unlawful because of the labor laws, the preemption doctrine applies and the National Labor Relations Board has exclusive jurisdiction. However, the appellate court held "... If the offense is merely a 'peripheral concern' of the labor laws, the preemption doctrine does not apply. Vaca v. Sipes (1967) 386 U.S. 171." As disorderly conduct is a crime notwithstanding labor laws, the appellate court held that the common please court had jurisdiction. WEIGHT OF EVIDENCE: EVIDENCE OF A "THREAT" SUFFICIENT, WHEN. State v. Green, No. 05-BE-36, (7th Dist. Ct. Apps., Belmont Co. 12-15-06), 2006 Ohio 7074. In 2004, Eugene Green had a busy summer, committing a number of robberies, burglaries, and batteries. On July 26, 2004, Darl Burris, a plumber, found him standing beside his truck, holding a hammer. Green told Burris he "was not going to hurt him," but that he "neededf" his truck because he was "in trouble" for "working over two ladies." Burris gave Green the keys. On July 27, 2004, Green broke into the home of Magdalene Lawson. He demanded a gun, but eventually left without stealing anything. Responding to Lawson's call and knowing that Green might still be driving Burris's truck, the pilot of a police helicopter found the truck. Deputy Stanley Gallownia, in uniform but driving his own truck because he was off-duty, responded. As he approached Burris's truck on foot, Green jumped from hiding and got into the deputy's truck. Deputy Gallownia had removed the keys, so Green ran away. Officer's caught Green after further pursuit. The Grand Jury indicted Green for several aggravated burglaries, aggravated robberies, and felonious assaults. The Grand Jury indicted Green on one court of robbery for taking Mr. Burris's truck. The jury acquitted Green of some counts and convicted him of other, including robbing Mr. Burris. On appeal, Green argued the state had failed to prove he "used or threatened the immediate use of force" against Mr. Burris. Citing State v. Davis (1983), 6 Ohio St. 3d 91, the Belmont County Court of Appeals disagreed. Although Mr. Burris testified that Green spoke in normal tones and did nothing to make him afraid, he also testified "the truck wasn't worth somebody hitting me with a hammer." The Ohio Supreme Court in Davis held that comments such as "I'm not going to hurt you" can be threats. The court remanded the case for re-sentencing under State v. Foster 109 Ohio St. 3d 1, 2006 Ohio 856, but otherwise affirmed.
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