 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
APPEALS: APP. R. 26(B), APPLICATION TO REOPEN, UNAVAILABLE TO REOPEN APPEAL THAT REVERSED TRIAL COURT=S GRANTING SHOCK PROBATION. State v. Young, No. 79113, (8th Dist. Ct. Apps., Cuyahoga Co., 5-20-03). Having been convicted of an unspecified felony, Curtis Young filed for super shock probation. The trial court granted his motion and the state appealed. The Cuyahoga County Court of Appeals reversed. For unstated reasons, Young was ineligible for probation. Young filed an application for reopening under App. R. 26(B), (commonly called a Murnahan Motion), claiming his appellate counsel had been ineffective. The appellate court denied the motion. App. R. 26(B) provides in part "a defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. * * *" As Young was not applying to reopen the appeal from his "conviction and sentence," the court said, App. R. 26(B) was inapplicable. DISCOVERY: DISMISSING INDICTMENT IMPROPER, WHEN. State v. Seals, No. 81598 (8th Dist. Ct. Apps., Cuyahoga Co., 6-19-03). The state appealed from the trial court's dismissing an indictment charging Damon Seals with robbery. The grand jury indicted Seals for robbing a BP station. The gas station had a video-camera, which recorded the crime. However, the detective who investigated the crime had died and some of the evidence, including the videotape, had been misplaced. An officer who had watched the tape told the prosecutor the tape was not exculpatory but inculpatory. Two eye-witnesses were prepared to identify Seals and Seals' fingerprints were found at the gas station. Defense counsel argued that the tape could be exculpatory because it would show that someone else robbed the station or, if the videotape showed Seals robbed the station, it would show he did not use force. Defense counsel never accused the state of deliberately destroying the tape but opined it had been lost. Nevertheless, the trial court dismissed the indictment "based upon the State [sic] failing to preserve material exculpatory evidence." The state appealed and the Cuyahoga County Court of Appeals reversed. The state may not destroy exculpatory evidence. However, the court continued, if the evidence is merely potentially helpful, a defendant must prove that the state deliberately destroyed the evidence to weaken the defendant's case. California v. Tromleetta (1984) 467 U.S. 479. The trial court erred, the appellate court said, in accepting defense counsel's assertion that the tape was exculpatory. Without conducting an evidentiary hearing, the court continued, the trial court could determine neither whether the tape was exculpatory, nor whether, if the tape was only potentially useful, the state acted in bad faith. The court reversed and remanded for an evidentiary hearing. The court also observed that Brady v. Maryland (1963) 373 U.S. 83, upon which the state had relied, was irrelevant to the instant case. Brady applies, the court said, only when exculpatory evidence that the state had suppressed is discovered after trial. BRADY: DEFENDANT MUST SHOW THAT MATERIAL IS EXCULPATORY. State v. Tisdale No. 19346 (2d Dist. Ct. Apps., Montgomery Co., 8-8-03). Gary Tisdale was convicted of trafficking in cocaine, tampering with evidence, possession of criminal tools, and failure to comply with an order or signal of a police officer. Dayton police detective Rick Elsworth arranged through an informant, Tom Offinger, to buy cocaine from Tisdale on February 20, 2001. When Detective Elsworth signaled officers, they tried to arrest Tisdale. Tisdale ran. The defendant testified that the informant invented the story of his selling drugs. According to Tisdale, he knew Offinger and went to his apartment to collect twenty dollars he had loaned Offinger. At trial, Detective Elsworth testified that Offinger had attempted to arrange a buy on December 27, 2000. The police arrested Tisdale that day, but found no drugs and filed no charges. The conversation of December 27, 2000 had been recorded. Defense counsel asked the trial court to sanction the state for a discovery violation, to wit: failing to disclose the allegedly exculpatory audiotape of December 27, 2000. Defendant argued the tape would show that Offinger misled the police in December, just as, according to defendant, he misled them in February. The trial court ruled that the tapes were irrelevant. Defendant was convicted and he appealed. The court of appeals affirmed. As nothing in the record shows the tape to be exculpatory, the court said, the appellant had failed to prove a Brady violation. [Ed Note: Brady is inapplicable in this case also but at least the trial court in Tisdale overruled the defendant's motion]. CONTINUANCE: NOTHING IN RECORD TO SHOW THAT HALF-DAY CONTINUANCE WAS INSUFFICIENT. State v. King, No. WD-02-055 (6th Dist. Ct. Apps., Wood Co., 7-25-03). Having been convicted of receiving stolen property and failing to comply with an order of a police officer, Anthony King appealed, claiming he should have been granted a longer continuance to locate a witness who had failed to appear pursuant to subpoena. Anthony King and Christopher McIntyre stole a car. When officers tried to stop the car, both King and McIntyre ran. Police captured McIntyre immediately and captured King about an hour later. King claimed it was not he who stole the car. Although none of the officers who testified saw King behind the wheel of the car as it was eluding the officers' signals, two officers testified that they saw the driver run from the car, jump over the hood of the car, lose his shoe on the hood of the car, and jump over the fence to avoid capture. Officers found King, without shoes, hiding. Both the state and the defendant subpoenaed McIntyre. He failed to appear. The court convened the trial for the afternoon. The following morning, defense counsel told the court his investigator had gone to two homes belonging to McIntyre's relatives. No one knew anything. The court decided to proceed with trial. Among other issues, appellant argued the court should have granted a longer continuance, and that appellant's counsel had been ineffective for failing to demand a longer continuance. The Wood County Court Appeals affirmed. As nothing in the record showed that further efforts would have located the witness, the court said, the trial court acted within its discretion in going forward. Morever, defense counsel declined to request a longer continuance, which was reasonable, considering that counsel knew nothing to suggest that McIntyre could be found. ALLOCUTION: RIGHT OF ALLOCUTION AT HEARING ON COMMUNITY CONTROL SANCTION DIFFERENT FROM RIGHT OF ALLOCUTION AT TRIAL. State v. Artiaga, No. L-02-1021 (6th Dist. Ct. Apps., Lucas Co., 5-9-03) Having pled guilty to rape, Thomas Artiaga was sentenced to five years of community control. At a hearing on an alleged community control violation. Artiaga admitted to domestic violence, contributing to the delinquency of a minor, and attempted gross sexual imposition. The court revoked community control, and Artiaga appealed. On appeal, appellant asserted that the trial court failed to comply with Crim. R.11. Appellant equated his admissions to a guilty plea. The Lucas County Court of Appeals disagreed. Appellant was unentitled to the protections of Ohio R. Crim. P.11 at a community control revocation hearing. The court complied with Crim. P.32.3, which was all that was necessary. The appellate court affirmed.
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