Ohio Criminal Appeals Blog

The Supreme Court of Ohio has held that a public records request is equivalent to a demand for discovery in criminal proceedings.

The case is State v. Athon.

In 2010, the Defendant was arrested by the Ohio State Highway Patrol after he was charged with operating a vehicle while under the influence of alcohol, speeding, and failing to reinstate his driver’s license.  The Defendant was represented by Steven Adams and plead not guilty. Adams asked another attorney to obtain the defendant’s arrest evidence by making a public records request, as opposed to participating a discovery pursuant of Crim.R. 16.

At trial, in March of 2011, the state argued that the Defendant was required to provide reciprocal discovery, suggesting that the attorney’s public records request acted as a demand for discovery. Under Criminal Rule 16, if a defendant requests discovery, this triggers a reciprocal duty of disclosure.

The Supreme Court of Ohio addressed two issues: “whether an accused in a criminal case may request public records to obtain information that could be demanded from the state during discovery, and if so, whether such a request triggers a reciprocal duty of disclosure to the state.”

The court held that a request for public records could be considered a demand for discovery from the state, and does in fact carry with it a reciprocal duty of disclosure from Crim.R. 16: “When an accused directly or indirectly makes a public records request for information that could be obtained from the prosecutor through discovery, the request is the equivalent of a demand for discovery and triggers a duty to provide reciprocal discovery as contemplated by Crim.R. 16.”

The court cited cases involving the Freedom of Information Act (FOIA) to support this conclusion. In one case, including United States v. Murdock, 548 F.2d 599, 602 (5th Cir.1977), a federal appeals court said: “Although information obtained through the FOIA may be useful in a criminal trial, we find that the FOIA was not intended as a device to delay ongoing litigation or to enlarge the scope of discovery beyond that already provided by the Federal Rules of Criminal Procedure”.

Justices Pfeifer, Kennedy, and O’Neill dissented.

The Supreme Court of Ohio has held it has exclusive jurisdiction in cases in which the death penalty is imposed. Additionally, the court ordered trial courts to apply the definition of a ‘definitive DNA test’ before dismissing a second application for postconviction DNA testing.

The case is State v. Noling, 2013-Ohio-1764

In 1990, the defendant, Tyrone Noling, was found guilty of aggravated murder of a couple in Portage County, Ohio. Noling was sentenced to death on two counts. The Supreme Court of Ohio affirmed the convictions.

Noling submitted his second application for postconviction DNA testing in December of 2010, arguing that advances in DNA technology could prove that new pieces of evidence “would be ‘outcome determinative,’ because it would identify the true killer.”  The trial court found that as they had previously rejected an application for DNA testing, court would not accept or consider second applications.

The Supreme Court of Ohio finds that there are two questions raised in Noling. One: can a court of appeals have jurisdiction from a trial court’s denial of postconviction DNA testing in a case where the death penalty was imposed? Two: does Ohio law bar additional applications for post-conviction DNA testing when previous applications were thrown out due to then-DNA testing statutes?

The court holds that the Ohio Constitution give the Supreme Court exclusive appellate jurisdiction for direct review of judgments in which the sentence of death is imposed. The court held that this specifically excludes the court of appeals from the direct review of those same judgments.

Addressing the second question, the court points to R.C. 2953.73(E)(1).

The court directed trial courts to apply DNA testing applications the definition of “definitive DNA testing” in R.C. 2953.71 (U):

 “Definitive DNA test” means a DNA test that clearly

establishes that biological material from the perpetrator of the

crime was recovered from the crime scene and also clearly

establishes whether or not the biological material is that of the

eligible offender. A prior DNA test is not definitive if the eligible

offender proves by a preponderance of the evidence that because

of advances in DNA technology there is a possibility of discovering

new biological material from the perpetrator that the prior DNA

test may have failed to discover.

 The court, relying on State v. Prade,126 Ohio St.3d 27, 2010-Ohio-1842, said: “[n]ew DNA testing methods are now able to provide new information that was not able to be detected at the time of defendant’s trial. We hold that a prior DNA test is not “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.”

Justices O’Donnell and French dissented, arguing that R.C. 2953.73(E) is unconstitutional because it “purports to enlarge the constitutionally defined jurisdiction of [the supreme] court and because the legislature lacks authority to amend the constitution.” Additionally, the dissenters argues that it is the responsibility of the appellate courts to review errors, whereas it is the Supreme Court’s responsibility to review propositions of the law.

On May 1, 2013, the Ohio Supreme Court clarified lesser-included offenses for felonious assault. The case is State v. Deanda, Slip Opinion No. 2013-Ohio-1722.

In 2009, Defendant, Deanda, got into an altercation with David Swartz in front of Deanda’s residence.  Deanda attacked Swartz with a stick, which Swartz soon took and attacked Deanda, hitting him. Deanda then reached for a knife and proceeded to stab Swartz seven times, though none were life-threatening. Throughout the altercation, Deanda verbally threatened to kill Swartz.

The Defendant was charged with one count of attempted murder. At trial, the state requested an instruction on felonious assault, while Deanda asked for two instructions on the lesser included offenses, one for assault and the other for aggravated assault. The trial court found “that it would provide instructions on all lesser included offenses requested by both parties.” The jury found Deanda not guilty of attempted murder but guilty of felonious assault.

The state then appealed the trial court’s ruling to the Third District Court of Appeals. The Appeals Court held that felonious assault could not be considered a lesser included offense of attempted murder.

The Ohio Supreme Court held that felonious assault through causing physical harm is a lesser included offense of attempted murder. The court relied on State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987), which provides three requirements of a lesser included offense. The requirements altered in State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988) are:

An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.

While aggravated assault could not be considered a lesser included offense of felonious assault, the court recognized that it could be an inferior- degree offense.

The General Assembly defined the relationship between felonious assault and attempted murder in their Legislative Service Commission 1973 comments to R.C. 2903.11. “In particular, in explaining the newly created offense of felonious assault, the Legislative Service Commission staff stated that ‘the offense of felonious assault complements the section on murder’ and that felonious assault ‘is a lesser included offense to attempted murder.’”

The court explained further that “[t]he offense of murder necessarily includes the commission of felonious assault through causing serious physical harm, because purposely causing death necessarily involves knowingly causing serious physical harm.” Finally, it arrives at the conclusion that one “[c]annot intend to kill without also intending to cause physical harm.”

The case is State v. Spivey.

In May 2011, the Defendant allegedly abused his girlfriend while driving from Morral, Ohio to the Killdeer Plains Wilderness Area. The Grand Jury indicted the Defendant on the following: “felonious assault…a felony of the second degree; abduction…a felony of the third degree; domestic violence…a misdemeanor of the first degree; kidnapping…a felony of the first degree; and attempted murder…a felony of the first degree.”

According to the appellate court, the most serious of the possible errors is the numerous pieces of evidence to the disadvantage of the Defendant. For example, the court points out that in order for a “plain error” to have taken place, there must have been an “obvious” defect in the trial proceedings, and that without these errors, the trial would have been decided differently. The Defendant points to several pieces of evidence, and argues that if each was not given as evidence, the trial outcome would have been different; the court examines each piece and argues the opposite, therefore affirming the trial court’s decision.

The Defendant further argued that guilty verdict for both the felonious assault and kidnapping charges was against the “manifest weight of the evidence.” The court references State v. Thompkins to suggest the well-rounded review of the all trial aspects:

When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered, 78 Ohio St.3d 380, 387 (1997).

Applying this principle by examining all trial court factors, the appellate court finds that there is heavy evidence for both the felonious assault and kidnapping charges.

After basing their decision on the weight of the law versus the strong evidence against the Defendant, the appellate court affirms the trial court’s ruling.

Read More: Ohio Third Appellate District Court Affirms Marion County Court’s Ruling

http://www.sconet.state.oh.us/rod/docs/pdf/3/2013/2013-ohio-851.pdf

The case is FLORIDA, PETITIONER v. JOELIS JARDINES. 

In 2006, the Miami-Dade Police Department and the Drug Enforcement Administration sent a surveillance team to the home of Joelis Jardines after receiving a tip that marijuana was being grown in the home. Part of the surveillance team included a detective trained in canine handling and his drug-sniffing dog, Franky. Upon entering the front porch of the Jardines’ home, Franky indicated that he had detected a narcotics odor on the other side of the front door, giving the detectives a positive-alert for narcotics. At this point, the detectives obtained a warrant to search the home and later arrested Jardine after the search found marijuana plants on the property. Jardine was charged with trafficking in cannabis.

The trial court suppressed the evidence because it found the canine investigation was unreasonable. The Florida Third District Court of Appeal reversed the trial court’s decision. When the case was before the Florida Supreme Court, the court affirmed the trial court decision.  The US Supreme Court supported the Florida Supreme Court and ruled to suppress the evidence discovered in the canine investigation.

The Court agreed that the evidence was obtained in violation of the Fourth Amendment. The court reasoned that the front porch, on which the detectives and Franky were standing, is an extension of the home, which is protected under the Fourth Amendment. “This area around the home is ‘intimately linked to the home, both physically and psychologically,’ and is where ‘privacy expectations are most heightened.’” California v. Ciraolo, 476 U. S. 207, 213 (1986).

In addition, the majority found that there was no invitation (neither implicit or explicit) to open the door and come into the home; instead the detectives allowed Franky to investigate without an invitation.

Accordingly, the Supreme Court held that police must obtain a warrant to search a property with the use of trained dogs.

Writing a concurring opinion, suggested that the surveillance the Detectives and Franky are engaged in constitutes a ‘search’ because they are using instruments that are unavailable to the public and therefore would be unreasonable without a warrant.

Writing a dissenting opinion, Justice Alito suggested that no search within the Fourth Amendment took place. Justice Alito takes the evidence that the officers did not trespass, as they were only in the yard for a few minutes, and therefore “did not violate [Jardine’s] reasonable expectations of privacy.”

The Ohio Supreme Court has issued a decision clarifying the limitations of civil stalking or sexually-oriented-offense protection orders under the Ohio Revised Code. The case is State of Ohio v. Smith.

The case dates back to 2009, when Smith began dating Pickins. When their ‘”rocky”’ relationship reached a breaking point in 2010, Pickins filed a petition ex parte for a protection order against Smith. Pickens showed the order to Smith and indicated that he needed to stay away from her.

The following day, Smith broke into Pickens’ residence and attempted to choke her. The Columbus Police soon arrived and arrested Smith. The protection order was formally served on Smith later the same day.  A few weeks later Smith was indicted for aggravated burglary, a misdemeanor charge of violating a protection order or consent agreement domestic violence, and resisting arrest. The matter was tried to a jury, which found Smith guilty of aggravated burglary, violating a protection order, and resisting arrest. The state argued that Smith “’recklessly”’ violated the protection order. Ohio law defines recklessness as a “’perverse disregard of a known risk’”.

The Ohio Supreme Court finds that a protection order is not criminally enforceable unless it is served on the respondent. The Court finds that all parts of R.C. 2903.214 must be met to be charged under R.C. 2919.27. In Smith’s case, he could not be convicted of violating an order because he was not served with a copy of the order.

The Court reasoned that ‘delivery’ and ‘service’ are synonymous, meaning that though Smith was issued an order, it was not served, or delivered, until after the alleged violation.

Justice Lanzinger dissented. She reasoned that “the order has independent force, even apart from service” and points to R.C. 2903.214(E)(2)(a), which states that a protection order is valid from the date it was issued.