 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
HEARSAY: PRELIMINARY HEARING TESTIMONY ADMISSIBLE WHEN WITNESS UNAVAILABLE. State v. Calvin Howard, No. 19413, (2nd Dist. Ct. Apps., Montgomery Co., 6-20-03). Calvin Howard broke into the apartment of his former girlfriend, Yolanda Brooks. Jealous of another man, Howard beat and stabbed Brooks. When police arrived, Brooks told them Howard had kicked in the door and stabbed her. She testified similarly at the preliminary hearing. When the time for trial arrived, however, Brooks had disappeared. The court admitted her testimony from the preliminary hearing under Evid. R. 804(B)(1). The defendant argued that he had not had a "similar motive" to develop the testimony through cross examination at the preliminary hearing as he would have if the witness appeared at trial. Although he cross-examined Brooks at the preliminary hearing, defense counsel argued that the cross-examination failed to satisfy the confrontation clause because some forensic evidence tending to support defendant's self defense claim had been unavailable. Defendant was convicted of aggravated burglary and felonious assault and he appealed. The appellate court was unimpressed with appellant's argument that his motive for cross-examining a witness at a preliminary hearing was dissimilar to what his motive would have been at trial. The court also said that the evidence unknown to the defendant at preliminary hearing was relatively insignificant. The court affirmed the convictions. COUNSEL, RIGHT TO: INQUIRY AT RESENTENCING REQUIRED. State v. Clark, No. C-020550 (1st Dist. Ct. Apps., Hamilton Co., 5-23-03). Jeffrey Clark was convicted of failure to comply with an officer's order, forgery, receiving stolen property, and robbery. The Hamilton County Court of Appeals reversed the conviction because the trial court had failed to make the findings necessary to support the maximum sentence for robbery. At the resentencing hearing, Clark asked for new appointed counsel. His lawyer said Clark wanted new counsel because he had been dissatisfied with the sentence. Because the proceeding was "only a resentencing," the court refused to appoint new counsel. The court failed to inquire further into Clark's dissatisfaction with his counsel. Rejecting counsel's request to impose a lesser sentence, the court imposed the original sentence. The appellate court reversed again. The court seemed offended by the trial court's reference to "only a resentencing." As evidence of the validity of the defendant's request for new counsel, the appellate court cited defense counsel's having "allowed the trial court to improperly sentence Clark," to wit: by failing to make the findings. The appellate court cited counsel's "lack of advocacy" at the resentencing as further evidence justifying the defendant's dissatisfaction with his counsel. The appellate court held that, when a defendant shows reasons to support his displeasure with his counsel, a court must inquire further into the attorney-client relationship at a resentencing, just as a court must at a trial. [Ed. Note: So many trial courts fail to make the necessary sentencing findings that, for the most part, the Case Digest has stopped reporting those cases.] CONTRIBUTING TO UNRULINESS OF A CHILD: CHILD NEITHER ADJUDICATED UNRULY, NOR ELIGIBLE TO BE ADJUDICATED UNRULY. State v. Bare, No. 2002-CA-14 (2nd Dist. Ct. Apps., Champaign Co., 6-13-03). The state appealed rulings by the trial court in a case in which the court acquitted the defendant. Dusti Bare had been charged with contributing to the unruliness or delinquency of a minor, in violation of R.C. 2919.24(A). Urbana police officer Seth King saw Ms. Bare and an un-named female minor at 1:00 a.m. in a Speedway convenience store. He asked for identification, which the minor was unable to produce. The minor lied and Ms. Bare supported her lie. The officer concluded that the minor violated section 510.02 of the Urbana City Code, obstructing official business, and Urbana's city curfew. The ordinances required that the minor, a first offender, be warned rather than referred to the juvenile authorities. However, the officer charged Ms. Bare with contributing. At a bench trial the court accepted the defendant's argument that the minor was not an "unruly child" because she was warned only. Therefore, the defendant asserted, she, the defendant, could not be guilty of contributing to the minor's unruliness. The court acquitted Bare. Having been granted leave to appeal under R.C. 2945.67, the state argued that the trial court had wrongly concluded that contributing to a first offense of the curfew violation cannot be contributing to the unruliness of a child. The appellate court agreed. Although the child was warned only, the court said, she was still an unruly child. Ms. Bare, therefore, could have been convicted of contributing to that unruliness. The trial court had also found that the state could not use the minor's false statements to prove Ms. Bare's guilt because those statements, supposedly in violation of the minor's fifth amendment rights, could not have been used against the minor. Therefore, according to the defendant, the minor could not have been adjudicated an unruly minor. Saying it need not decide the issue because it had already said that an adjudication as an unruly child was unnecessary, the court nevertheless dismissed the argument by observing that there is no fifth amendment privilege to lie. The appellate court sustained both assignments of error. Because the trial court had acquitted the defendant, however, its judgment remained in force. EVIDENCE ADMISSIBILITY: PANDERING OBSCENITY, "COMPARABLE MATERIALS." State v. Dute, No. C-020709 (1st Dist. Ct. Apps., Hamilton Co., 5-30-03). Jennifer Dute and her husband (he is nameless in the opinion) were charged with four counts of pandering obscenity for distributing video-tapes named "Jennifer #2" etc. The opinion, thankfully, describes the tapes only as showing Jennifer Dute "engaged in various sexual acts with multiple partners." At trial, defense counsel offered various pieces of information, including newspaper articles and sexually explicit videotapes, attempting to show that the "Jennifer" tapes were not obscene, according to local community standards. The court refused to admit the evidence and counsel proffered it into the record. Three videotapes were from the case of State v. Metcalf Hamilton C. P. No. B-0009955. The defendant in Metcalf had been acquitted. The jury acquitted "Husband" but convicted Mrs. Dute. On appeal, she argued the court should have admitted the "comparable materials." The appellate court reviewed the Metcalf tapes and found them to be "comparable" to the "Jennifer" tapes. Two members of the appellate court accepted appellant Dute's assertion that the acquittal in Metcalf meant that a Hamilton County jury had found the Metcalf tapes were not obscene. Judge Winkler dissented because, he said, the jury in Metcalf may have acquitted the defendant for other reasons. The majority held that the trial court erred in excluding the comparable material. The court reversed and remanded for retrial. JURY MATTERS: PUBLICITY. State v. Dute, Supra The defendant had previously been allowed to plead to a lesser offense arising from similar conduct. The trial court ruled that evidence of the prior incident was inadmissible. However, local newspapers reported the information. After defense counsel showed the article to the court, the court, upon inquiry, learned that seven jurors had read the article. The court asked if the article caused anyone "any problems." The court instructed the panel as a whole to disregard the information. However, the court refused defense counsel's request to talk to individual jurors and overruled counsel's motion for mistrial. The appellate court held the trial court should have granted the defendant's motion for mistrial.
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