Archive | August, 2012

State Has Difficulty Proving Possession of Sawed Off Shotgun

An Ohio court of appeals has held that a defendant cannot be convicted of illegal possession of a firearm simply because the state had evidence that he had lived in the house where the weapon was found.

The case is State v. Burney, 2012-Ohio-3974.

The case started when the defendant was on probation in 2009 and was living in his mother’s house.  His probation officer received information that he possessed firearms and arranged for a search of the house because as a condition of probation.

Prior to the search, the defendant informed the probation officer that he had a new contact address.  The search proceeded, and the police found one shotgun in the basement and two shotguns underneath a couch in the living room, including a sawed off shotgun.

The police swabbed each of the guns for DNA.  The sawed-off shotgun contained a DNA mixture consisting of at least three individuals’ DNA profiles. The defendant could be excluded as a contributor to the DNA mixture on the Remington gun, but could not be excluded as contributors to that DNA mixture on the shotgun.

Possession of a firearm by the defendant was a crime because of his criminal history.  (Referred to in Ohio law as having a “weapon under disability.”)  The argued that the State failed to prove he actually possessed the shotgun after his prior conviction, or after the gun was modified in an illegal fashion.  The court agreed:

The State did not present evidence that defendant physically handled the weapon after the occurrence of one or both of the events that made possession illegal. . . . Further hampering the State’s efforts to pinpoint the time of possession, the DNA expert indicated DNA “is fairly stable over time,” so an investigator could recover DNA evidence from a weapon decades after its use, barring exposure to adverse environmental conditions.

The State essentially conceded this point, and instead argued that the evidence supported a conviction under a theory of constructive possession.  The court also rejected this argument:

Possession, however, may not be inferred solely from “mere access” to contraband or occupation of the premises upon which contraband is found, particularly  “where such premises are also regularly occupied by others as co-tenants and the  [contraband is] found in an area ordinarily  accessible to all tenants.”  . . .  Here, the parole officer’s testimony suggests defendant’s mother owned and occupied the . . . house, while defendant stayed there. The record further connects at least two of defendant’s siblings, as well as an unidentified child, to the house during the same time period. On those facts, defendant’s occupancy alone is insufficient to support an inference of possession, meaning the “state is required to adduce additional other evidence to establish possession.”

The court also found that the DNA evidence did not help the state:

The State’s reliance on DNA evidence to prove constructive possession takes the State back to the same problems presented in its actual possession argument. Although the DNA on the gun supports an inference that defendant touched the gun at some point, and thus was aware of it, the evidence does not allow the inference that he touched it while it was in his mother’s home and thus was aware of its presence there, facts the State seeks to infer to advance its constructive possession argument. Nor did the State prove the touching or awareness, necessary to support constructive possession, occurred after defendant’s disability came to be or after the shotgun became a dangerous ordnance.

The court concluded that the state should have presented additional evidence of either defendant’s physically handling the gun after he incurred his legal disability and after the weapon was modified, or, alternatively, defendant knowingly exercising dominion or control over the gun during the same period.



Ryan Widmer Appeal Raises Issue of State’s Obligation to Provide Evidence

The CinciCrime Blog has an update on the appeal in the Ryan Widmer Case.

This appeal — in  case that already has had two mistrials — raises significant and interesting questions about the obligation of the state to disclose potentially exculpatory evidence.

The state has a constitutional obligation to disclose exculpatory evidence.  Exculpatory evidence is evidence that is favorable to the accused and that is material to either guilt or punishment.  This obligation was established in 1963 by the Supreme Court in Brady v Maryland.  (Which is why lawyers sometimes refer to Brady obligations or Brady evidence.)

Courts have found that the obligation of the state to turn over exculpatory evidence includes the obligation to disclose evidence that may impact the credibility of a witness.  This is the issue in the Widmer case.

The discovery that the state did not disclose exculpatory evidence can mean that defendants who have been convicted and incarcerated may later be declared innocent.   as a result of DNA evidence, which was not available at the time of the original investigations. Following their release, all of the individuals file multi-million dollar lawsuits against the investigators, their supervisors, and their agencies for Brady violations. Their attorneys argue successfully that had their defense attorneys been provided with the exculpatory evidence in these cases, the defendant’s might not have been wrongfully convicted.  Some case have suggested that if a police officer in a case has a past record of falsifying reports or other conduct which could impact their truthfulness, the prosecutor must  provide the defense with that information.


Full disclosure:  I previously worked for the Warren County Prosecuting Attorney’s Office, although I left prior to the alleged crime in this matter.


Ohio Supreme Court Finds Arrest Warrant Invalid Where Magistrate is Not Neutral and Detached

The Ohio Supreme Court has held that a person acting in a dual capacity as deputy sheriff for a county and deputy clerk for a municipal court located in that same county is not a neutral and detached magistrate for purposes of determining whether probable cause exists for issuing an arrest warrant.

The opinion is State v. Hobbs, Slip Opinion No. 2012-Ohio-3886.

In this case, detectives suspected that the defendant was involved in a series of robberies.  She was arrested after she confessed.

One of the arresting detectives drew up a complaint charging appellant with burglary, an arrest warrant based on the complaint, and an affidavit swearing to the facts in the complaint.  The detective submitted the paperwork to a deputy clerk who was employed as a sergeant by the County Sheriff.  The deputy clerk had the arresting officer swear an oath on the affidavit, determined that probable cause existed for appellant’s arrest, and signed the warrant.  The complaint was filed the next morning and the defendant was subsequently indicted.

The Ohio Supreme Court acknowledged that the United States Supreme Court, in Shadwick v. Tampa, has held that magistrate who issues an arrest warrant must be (1) neutral and detached and (2) capable of determining whether probable cause exists for the requested arrest.  A magistrate is not neutral and detached if that magistrate is also the law enforcement officer in charge of the investigation.

The general view is that the executive function of law enforcement must be separated from the judicial function of determining probable cause.  The court noted that, for this reason, the Ohio Attorney General has issued opinions that clerks of a county or municipal court may not appoint deputy sheriffs, dispatchers, or police officers of that same county as deputy clerks of the court.  The concern in such cases was that a law enforcement officer sheriff in such a dual role could be subject to divided loyalties and conflicting duties.

The court did not question the findings that “there were no facts to suggest that the deputy clerk acted improperly or that he lacked impartiality.”  Nor did the court question whether there was any lack of probable cause for the warrantless arrest.  The court was still troubled by the process and the potential for a conflict of interest:

Notwithstanding these circumstances, however, the deputy clerk’s  dual position . . . creates an inappropriate tension between the executive function of law enforcement and the judicial function of determining probable cause.  The deputy clerk’s dual-capacity position blurs the separation and threatens the independence of the executive and judicial functions.  Further, the dual-capacity position places the deputy clerk at risk of divided loyalties and conflicting duties . . .  The result is that the deputy clerk lacks the requisite neutrality and detachment to make the probable-cause determination necessary for issuing a valid warrant.

The court suggested that the appropriate remedy for a defective warrant issued subsequent to a warrantless arrest is the suppression of wrongly obtained evidence, not the dismissal of the charges. However, because in this case the invalid warrant led to no evidence subject to suppression, the issue of whether the exclusionary rule is an appropriate remedy for an invalidly issued arrest warrant was not properly before the court.


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Prosecutors Statement in OVI Case that Officers Are Not “Liars” is Not Misconduct

An Ohio Court of Appeals has upheld an OVI conviction where the prosecutor said that the defendant, not the arresting officer, was a “liar.”  The statement was made in closing arguments.

The case is State v. Deal, 2012-Ohio-3903.

The defendant was charged with a felony offense of driving under the influence.  In April 2011 the defendant was pulled over for driving 69 mph in a 55 mph zone.  (The defendant was using the name and social security number of his brother).  The Defendant admitted that he had been drinking and failed two field sobriety tests.  The officer testified that the defendant had a “glazed stare” and speech so slurred he had to repeat his name four times before he could be understood by the officer.  The officer also observed that the defendant had wet his pants.  A half bottle of Jack Daniel’s on the right front passenger floor board.

The defendant refused to take a breath test.

The defendant challenged a portion of the prosecutor’s closing argument that referred to the testimony of two officers.  The prosecutor said in his rebuttal argument to the jury:

And in order to find the defendant not guilty on the OVI, the only way that could happen is for you to conclude that [the first Officer] lied about his observations; that [the second Officer]  lied about the odor of alcohol, the slurred speech, and the bloodshot eyes.  That is the only way to find him not guilty.  You must make that determination that those officers lied to you, because they presented to you a series of observations, any one of which could cause you to conclude that the defendant was under the influence of alcohol. . . . But we know who the liar is.  It’s not the officers, it’s this defendant.

The court rejected the defendant’s argument.  The court said that the “State was making a fair characterization of the evidence.”  Moreover, the court noted that the defendant’s counsel had, in his argument, questioned the credibility of the officers.  The court also noted that the evidence against [the defendant] was substantial and there is no showing how this one statement prejudiced [the defendant] so seriously that a new trial is warranted.”

The defendant was sentenced to a total of six years in prison following a jury trial.



Sex Offender Cannot be Convicted for Providing False Information on Initial SORN Form.

An Ohio Appeals Court has held that a sexually oriented offender cannot be convicted for failure to register when he provided false information on his initial sexual offender registration form.

The case is State v. Knox, 2012-Ohio-3821.

The defendant was convicted on two counts of gross sexual imposition in 1999.  He was sentenced to prison and classified under Megan’s Law as a sexually oriented offender.  Under Megan’s Law, he was required, among other things, to register his current address on an annual basis.

In 2008, as a result of the Adam Walsh Act, the defendant was reclassified by the Ohio Attorney General as a “Tier III” sexual offender.  Accordingly, the defendant was required to register his address every 90 days.

The defendant went to the Cuyahoga County Sheriff’s office to register.  On his form, he indicated that his address was that of the Lutheran Metropolitan Ministries Men’s Shelter.  However, according to the shelter’s records, Knox had not been present there for some time.  As a result, Knox was indicted for failure to register as a sexual offender and tampering with records.

The trial judge, after hearing the state’s evidence, correctly dismissed the charges.

The issue was whether a sexually oriented offender must put truthful information on the registration form.  The state argued that the statute “implicitly requires ‘honest’ information.”  In the view of the State, providing false information violated the registration statute.  The court disagreed.  The court wrote:

[The statute] is intended to ensure that the offender appears and completes a form for registration; if the offender does not, he or she is subject to prosecution for the failure.  The trial court thus correctly interpreted R.C. 2950.04(C) when it determined that “registration is complete” with only the physical action of handing a filled-out form to the sheriff.

The court also held that the tampering with records statute could not be used to convict the defendant for providing false information on his sexual offender registration form.

The court noted that the failure to provide truthful information can be prosecuted under a separate statute requiring sex offenders to periodically “verify” address and other information.



Law Review Article on Encryption and Fifth Amendment Listed in Top Ten for Law Enforcement.

A Law Review Article for the Whittier Law Review I wrote, RETHINKING THE APPLICATION OF THE FIFTH AMENDMENT TO PASSWORDS AND ENCRYPTION IN THE AGE OF CLOUD COMPUTING was recently listed on Social Science Research Network Top Ten download list for Law Enforcement.

The article should be appearing in print soon.



Terrorism Charges Affirmed, First Amendment Defense Rejected, by Federal Court of Appeals

The Federal Sixth Circuit Court of Appeals has affirmed the conviction three men on terrorism related charges.  An entrapment defense was rejected.

The case is United States v. Amawi et al., Nos.: 09-4339/ 4340/ 4341/4342/ 4344/ 4345; 11-4079(6th Cir. 2012 ).

The three defendants were convicted of terrorism related charges.

I will focus on a couple of issues:  the decision, pursuant to the Classified Information Procedures Act and Foreign Intelligence Surveillance Act, to delete classified information from discovery; and a First Amendment issue.

The case arose when an undercover government agent was approached by at a mosque and asked about the feasibility of kidnaping an Israeli soldier or politician.  Later, the agent was approached about Jihad training.  The agent offered to provide firearm instructions.

The government’s case-in-chief did not contain any classified information.  However, the district court examined and withheld from the defendants discovery of certain classified materials under the Classified Information Procedures Act and the Foreign Intelligence Surveillance Act.  The Act, in part, the court explained: “permits the government to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.”

The court noted a difficulty with the procedures and process:  “Rather than neutrally deciding disputes with an open record based on the adversarial process, we must place ourselves in the shoes of defense counsel, the very ones that cannot see the classified record, and act with a view to their interests.”  The court reviewed the materials and determined that “there was nothing ‘relevant and helpful to the defense.’” Citing  Yunis, 867 F.2d at 623.

The most interesting aspect of the case may be that one of the Defendants requested a jury instruction that stated that he could only be convicted if his conduct was not protected by the First Amendment.  Part of this instruction was:  “A defendant cannot be convicted on the basis of his beliefs or the expression of them, even if those beliefs are unpopular or favor violence.”  The court held that the instruction was not necessary.  The court said:  “First, although the conspiracy was closely related to, and indeed proved by, many of the defendants’ conversations about political and religious matters, the conviction was based on an agreement to cooperate in the commission a crime, not simply to talk about it.”

The court reasoned that an agreement “to engage in criminal activities—in contrast with simply talking about religious or political beliefs—is not protected speech.”  Moreover, juries can consider speech as evidence in a conspiracy.



Appeals Court Reverses Conviction Because Plea Not Knowing and Voluntary

An Ohio court of appeals has found that a guilty plea was not voluntary when a defendant was not clearly informed of the possible penalties.

The case is State v. Black, 2012-Ohio-3774.

The defendant was indicted on ten charges, including aggravated robbery with a gun specification, kidnapping, and felonious assault.  He negotiated a plea bargain with the prosecutor.  He was to plead guilty to seven of the charges, and te remaining charges would be dismissed.

Before a court can accept a plea, a judge must strictly comply with the requirements of informing the defendant of his constitutional rights.  The defendant must also be informed of the nature of the charges and the maximum penalty.

The court concluded that the trial judge did not “conduct a guilty plea proceeding which fully or substantially complied with” the legal requirements.  This was in part because the “Defendant was not aware of the maximum possible penalty that he faced.  This is based on the maximum penalty not  being conveyed in court, and the penalty’s failure to appear in the written plea of guilty form.”

The appeals court also noted that “There is also a question of whether The Defendant fully understood the nature of the charges he pled to.”  The problem was the failure of the defendant counsel to adequately explain the charges to the defendant.  The court said:

the record does not reflect that defense counsel told the court he went over the entry of guilty plea form with the defendant before he signed it or that The Defendant had read the guilty plea form.  The Defendant’s trial counsel only affirmatively answered that he felt his efforts in representing The Defendant met the requirements of representation as set forth in the guilty plea form.  This question is ambiguous and the answer cannot be taken to mean that The Defendant’s counsel affirmatively stated that The Defendant had read the guilty plea form or that counsel had reviewed the law and facts with The Defendant.  Further, The Defendant never states to the trial court that he reviewed the law or facts with his counsel or that counsel reviewed the guilty plea form with him.  Based on the totality of these circumstances, we cannot find sufficient evidence that The Defendant understood the nature of the charges he plead to.

The case was remanded to the common pleas court for a trial.


Miranda Not Violated When Warnings Given in Spanish and Not Signed

An Ohio Appeals Court has affirmed a murder conviction after finding the the defendant’s Miranda rights were not violated.

The case is State v. Hernandez-Martinez, 2012-Ohio-3754.

The defendant was convicted for his role in a gang-related drive-by shooting in 2008 in Fairfield.  According to the opinion, the local leader of the MS-13 gang, Hector Retana, was identified as the driver and shooter.  The defendant aided Retana as a passenger.  He was convicted of aggravated murder and other offenses, and sentenced to 78 years to life in prison.

The defendant was interviewed on four separate occasions.  He argued that the statements should have been suppressed because he did not knowingly or voluntarily waive his Fifth Amendment rights.

The key issue involves Miranda warnings.  A recent law review article I wrote about Miranda issues appeared in the Seton Hall Circuit Review.  The Attorney General also maintains slides from a presentation I made on this issue to a Law Enforcement Conference.  The Miranda decision requires that a suspect in custody must be advised of his Miranda rights and make a knowing and intelligent waiver of those rights before any statements obtained during the interrogation will be admissible as evidence.  Mirandarequires that the suspect be warned:  that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

The defendant argued that any waiver of his Miranda rights was not knowing and voluntary because: (1) police could not confirm whether he had been Mirandized upon his arrest; (2) he was suffering from an obvious head injury; and (3) while he was read an unsigned rights explanation form in Spanish, he was interrogated in English.

The court rejected these arguments.  The court noted that the defendant was read his Miranda rights from a Spanish Miranda card.  The defendant indicated that he understood the warnings and that he wished to speak to him without an attorney.  The court noted that the defendant appeared to understand and be able to communicate in both English and Spanish.  The court also noted that the defendant had refused medical treatement.

The court also rejected an argument that defendant had to sign a Miranda waiver.  The court said:  “The record indicates that [the defendant] orally expressed that he understood his rights and was willing to talk to the detectives without the presence of an attorney.  The failure of the detectives to have [the defendant] sign the waiver form does not render that waiver invalid.”

The court affirmed the conviction, rejecting other arguments by the defendant based on discovery, procedural, and other issues.


Ohio Supreme Court to Consider Conflicting Penalty Provisions of Ohio’s Adam Walsh Act and Megan’s Law

The Ohio Supreme Court is set to consider whether a sex offender who violated the terms of the sexual offender registration obligations should be sentenced under the terms of Ohio’s Adam Walsh Act or the Megan’s Law penalty scheme that was in place on the date his duty to register arose.

Argument is scheduled for Wednesday, August 22, 2012.

The case is State v. Howard.  The opinion of the Court of Appeals is found at 195 Ohio App.3d 802, 2011-Ohio-5693.

In September 2000, The Defendant was convicted of rape and was sentenced to four years in prison.  Pursuant to Megan’s Law, the sex offender registration statute in place at the time, the Defendant was designated a habitual sex offender.  The trial court also ordered community notification for a period of 20 years.

In 2006, Ohio passed the Ohio Adam Walsh Act (the “AWA”).  Pursuant to the AWA, The Defendant was reclassified a Tier III sex offender.

In2010, the Defendant was convicted on failure to notify, a felony of the first degree, for failing to provide notice of his change of residence address to the sheriff.  He was sentenced to three years in prison.

The Ohio Supreme Court, in 2010, struck down as unconstitutional the reclassification provisions in the AWA.  As a result, the defendant’s original classification under Megan’s Law as a habitual sex offender and the community-notification and registration orders attending that classification were reinstated.

We looked at this case last month.   This case boils down to this:  under Megan’s Law, the Defendant’s crime would be a fifth degree felony, punishable by up to twelve months in prison.  Under the AWA, the crime is a first degree felony, punishable by up to ten years in prison.

The court of appeals held that while the Defendant’s original classification and registration requirements are applied, his conviction for failure to notify is not offended.  The court said, “There is no dispute that under former law, [The Defendant] was required to provide written notice of a change of address at least 20 days prior to changing his address of residence. . . . However, the [AWA] changed the penalty for failure to notify from a felony of the fifth degree to a felony of the first degree, based upon the penalty for the underlying offense of rape, and The Defendant was subject to a mandatory term of incarceration.  . . . the fact that The Defendant had committed his offense of failure to notify after the effective date of [the AWA] does not affect the outcome.”

The state argued in its brief that “the penalty for a registration offense, however, is not part of an offender’s classification and registration requirements . . .   It is a new criminal offense. Therefore, the new increased penalties in [the AWA] are not being [impermissibly] retroactively applied to offenders classified under Megan’s Law.”

In response, the defendant argued this interpretation of the statute “is not supported by well-established Ohio retroactivity jurisprudence, nor is it supported by this Court’s recent rulings scaling back the applicability of AWA to offender’s classified under Megan’s Law.”

A decision is expected in early 2013.