 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
MEDIA: MUST HONOR SUBPOENA, WHEN. In Re August 28, 2002 Grand Jury, No. 9-02-46, (3rd Dist. Ct. Apps., Marion Co., 3-14-03). The state appealed the trial court's granting a motion to quash a grand jury subpoena. The Marion County Grand Jury was investigating Diana Farst, (who has since been indicted for an unspecified crime). A reporter from WBNS in Columbus interviewed Ms. Farst. A small portion of the interview appeared on the 11:00 p.m. news. The state issued a subpoena duces tecum commanding the reporter, James Donovan, to appear before the grand jury and produce the tape of the entire interview. The TV station filed a motion to quash the subpoena, claiming the information was protected under the First Amendment. The court quashed the subpoena and the state appealed. The Marion County Court of Appeals reversed. The right of a TV station to decide what to publish, the court said, fails to give the station the right to refuse to provide relevant information to a grand jury investigating a crime. OTHER ACTS: INEXTRICABLY INTERTWINED. State v. Jordan, No. 02AP-370 (10th Dist. Ct. Apps., Franklin Co., 2-20-03). As an elderly woman was entering a funeral home to attend a viewing, Arthur Jordan stole her purse . Several persons chased him and watched him run into a house. When officers brought Jordan to the funeral home, at least four persons identified him. One of them was Theresa Vandenburg-Watts, who lived behind the funeral home. Minutes before the robbery, Mrs. Vandenburg-Watts looked out her window and saw Jordan trying to remove a tire from her van. When she confronted him, he told her he needed a tire. She chased him away and watched as he returned tools he had borrowed from persons attending the funeral parlor. She then saw him go behind the funeral parlor and run around the front. She and several other persons chased him until he ran inside the house. Behind the house sat a van like that belonging to Mrs. Vandenberg-Watts. The van had a flat tire. The defendant was convicted of robbery. On appeal, he argued that Mrs. Vandenberg-Watts' testimony was improper under Evid. R. 404. The appellate court affirmed. The evidence, the court said, was relevant to identity. The court cited State v. Lowe (1994), 69 Ohio St. 3d 527 for the proposition that acts that "form part of the immediate background" of the crime and are "inextricably intertwined to the alleged criminal act" are admissible. EXPUNGEMENT: APPELLATE COURT LECTURES TRIAL JUDGE. State v. Pitts, No. C-020574 (1st Dist. Ct. Apps., Hamilton Co., 4-4-03). The trial court, over the objection of the prosecution, expunged the aggravated assault conviction of Larry Pitts. The trial court said it believed "the expungement process was discretionary." "But," said the court of appeals, "there is no discretion to ignore the law." Because aggravated assault is an offense of violence, the Hamilton County Court of Appeals continued, a conviction for aggravated assault may not be expunged. Now comes the lecture. If the trial judge had followed the law, this appeal would not have been necessary. And it is not the first time. This same judge has erroneously granted expungements in numerous cases. We have had to reverse expungements in at least thirteen additional cases: (citations omitted). Each time the state has had to file an appeal. Prosecutors have had to file briefs. Court reporters have prepared transcripts. The clerk of courts office has had much work to do. All of this is at taxpayer expense. And the person seeking expungement has had false hopes raised, only to have them dashed at the appellate level. All this needlessness sucks money from the taxpayers, respect from the law and patience from this court. And for what? To order one person to comply with the law - the one person who should comply with the law without being told. *** Judgment reversed. Again. The appellate court remanded the case for further proceedings. JURY MATTERS: HOWARD CHARGE ACCEPTABLE, WHEN. State v. Smith, No. 19370 (2d Dist. Ct. Apps., Montgomery Co., 2-28-03). Ernest Smith tried to steal John Neidert's bicycle. Mr. Neidert parked the bicycle in the basement of the photography studio where he worked. Hearing a noise, he found Ernest Smith in the hallway with Neidert's bicycle. Smith produced a knife and threatened to stab Neidert. Neidert grabbed the bicycle. Smith abandoned the bicycle and ran. As Neidert chased him, Smith turned and again threatened him with the knife. Neidert continued to chase Smith, running between cars for protection. Eventually, police officers appeared and arrested Smith. At the defendant's trial on charges of aggravated burglary and aggravated robbery, the jury sent a note to the court saying, "The jury has reached a decision on Count I of the indictment. The jury is unable to reach a unanimous decision on Count II of the indictment. Further deliberation will not change this situation." Over defense counsel's objection, the court instructed according to State v. Howard, (1989), 42 Ohio St. 3d 18. The jury continued deliberating for one and one-half hours. The jury acquitted the defendant of aggravated burglary and convicted him of aggravated robbery. On appeal, appellant argued that the jury's note asserting that further deliberation would fail to resolve the deadlock distinguished the case from State v. Howard. Appellant claimed the court erred in giving the Howard charge. The Montgomery County Court of Appeals disagreed. Of the jury's remark that further deliberation would be unhelpful, the court said the following: "Such an assertion is implicit in virtually every instance when jurors report an inability to reach a unanimous verdict. Indeed, if jurors thought that continued deliberation might break a deadlock, they presumably would continue deliberating rather than stopping to report a deadlock." The court affirmed the conviction.
CROSS-EXAMINATION: LEARNED TREATISE NOT SUBSTANTIVE EVIDENCE: EXPERTS' AFFIDAVITS. State v. Mahad Hassan Samatar, No. 02AP-180 (10th Dist. Ct. Apps., Franklin Co., 3-31-03). A native of Somalia, Mahad Hassan Samatar, arranged to provide a plant substance called AKhat@ to friends who were getting married. Khat is commonly chewed at weddings or brewed into tea in Somalia. Samatar picked up a package, sent from England and addressed to AJohn Goodman.@ Samatar signed the name John Goodman to receive the package. Khat contains a psychoactive substance called cathinone. Cathinone is a Schedule I controlled substance. Fresh Khat contains the most cathinone. As Khat ages, the cathinone changes to cathine. The states' analyst, forensic scientist Gregory Kiddon from BCI, found cathinone but no cathine. On cross-examination counsel for Samatar used an article published by the United States Department of Health and Human Services that opined that within 72 hours of being harvested, the Khat plant would decompose and the cathinone would change to cathine. Kiddon acknowledged the accuracy of the report, said he was surprised he had found no cathine, but stood by his report that the Khat contained cathinone but no cathine. The defendant testified he came to the United States from Somalia in 1998. According to the defendant, he had no idea that Khat contained cathinone or was illegal in the United States. The defendant was convicted of drug possession. He filed a motion for a new trial, arguing that Mr. Kiddon's testimony was "scientifically impossible." Therefore, he asserted, the witness lied, constituting "witness misconduct," a ground for a new trial under Crim. R. 33. The learned treatise, the Franklin County Court of Appeals said, was not substantive evidence. Therefore, no evidence proved the witness lied. Moreover, the court continued, the scientist could have mistakenly failed to find cathine, but still have correctly found cathinone, as the two may both exist in a Khat sample. The defendant had attached an affidavit from Dr. Michael Jon Kell, a chemist. Dr. Kell averred that "it is not chemically possible to have a quality of harvested Khat which contains cathinone but which contains no cathine." The appellate court said that the trial court was not required to accept Dr. Kell's opinion. The court affirmed the trial court. CONSTITUTIONALITY: FAIR NOTICE. State v. Samatar, Supra The defendant also argued that the drug statute failed to give fair notice of prohibited conduct because the average person would be unaware that Khat contained cathinone and was, therefore, illegal. Citing United States v. Hussein (D.Maine, 2002), 230 F.Supp.2d 109, the court summarily dismissed that argument. If the defendant was so ignorant, the court observed, he would have used his own name to pick up the package.
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