Archive | October, 2012

Ohio Supreme Court Rules That Constitution Does Not Prohibit Imposition of Prison Sentence for Juveniles

The Ohio Supreme Court has ruled that the invocation of an adult prison sentence upon a juvenile does not violate the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

The case is In re J.V., Slip Opinion No. 2012-Ohio-4961.

The facts are relatively simple.  In June 2005, pursuant to a plea agreement, a trial court imposed a blended sentence on the juvenile:  at least two years of incarceration at the Ohio Department of Youth Services (“ODYS”) and a stayed adult sentence of three years.  As a result of a fight at the DYS facility, the trial court invoked the stayed adult prison sentence.

Under Ohio law, a juvenile court may invoke the adult portion of a serious youthful offender’s sentence for failure to successfully complete the traditional juvenile disposition.   The conduct that can result in the enforcement of an adult sentence includes committing, while in custody or on parole, an act that is a violation of the rules of the institution or the conditions of supervision and that could be charged as any felony or as a first degree misdemeanor offense of violence if committed by an adult, or engaging in conduct that creates a substantial risk to the safety or security of the institution, the community, or the victim

The juvenile court must hold a hearing, and the juvenile has the right to counsel and to present evidence on his behalf.

The Juvenile argued that the judicial fact-finding necessary to invoke the stayed adult sentence violates his right to a trial by jury.

Under a United States Supreme Court decision, Apprendi v. Jersey, 530 U.S. 466, 490, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

The court held that this case was inapplicable, because “when the juvenile court invoked the stayed sentence because [the juvenile] did not successfully complete his juvenile disposition, the judge did not increase [his] sentence; he merely removed the stay.  The sentence had already been imposed.”   In other words, “Even if the adult portion of the disposition is ‘only a potential sentence,’ the fact remains that [the juvenile] had been sentenced, and the juvenile court merely removed the stay of that sentence.”  Citing In re. D.H., 120 Ohio St.3d 540, 2009-Ohio-9.  The right to a jury trial, under this view, is not implicated because the juvenile court did not increase a sentence that had been previously imposed.

The court also noted that the right to a jury trial may not be applicable because juveniles do not enjoy a right to a trial by jury.

 

Second, the Juvenile argued that the burden of proof should be the heightened “beyond a reasonable doubt” standard of criminal trials rather than the lesser “clear and convincing” standard of the statute.

The court noted, as with the jury trial issue, that “juvenile proceedings are fundamentally different from adult criminal trials.”  The right to proof beyond a reasonable doubt is an element of a criminal trial.  In this case, however, the court did not “view the invocation proceeding as similar to a full-blown adult criminal trial.”  Instead, the court viewed the “invocation proceeding as similar to the proceedings incident to a criminal court’s imposition of a suspended sentence.”

A trial court may decide without proof beyond a reasonable doubt whether to impose a suspended additional prison term.  The United States Supreme Court has stated that “there is no right to a jury trial before probation may be revoked.”  Minnesota v. Murphy, 465 U.S. 420, 435 (1984).  The court explained:

Because the invocation proceeding is not a criminal proceeding, the fact-finding need not be according to the beyond-a-reasonable-doubt standard required in criminal trials.  The clear-and-convincing-evidence standard . . . is less rigorous, though stronger than a mere preponderance-of-the-evidence standard.  . . . We conclude that there is nothing fundamentally unfair about a statutory scheme that authorizes a judge to reach conclusions about facts according to a clear-and-convincing-evidence standard.

The court remanded the case on a non-constitutional issue.  Juvenile courts have jurisdiction over adjudicated delinquents until they are 21 years old, and do not have jurisdiction over adjudicated delinquents once they are 21 years old.  Because the Juvenile in this case was over 21, the juvenile court acted outside its jurisdiction and therefore that the disposition was void.

 

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Cell Phone Location Does Not Require Expert Testimony

An Ohio Court of Appeals has held that testimony about the location of a cell phone, obtained from cell phone provider records, was not expert testimony.

The case is State v. Perry, 2012 Ohio 4888.

In this case, the defendant was a suspect in a series of burglaries.  As part of the case, the State offered testimony regarding triangulation pinpointing with cell phone towers.  In particular, the witness offered an opinion regarding the approximate whereabouts of a cell phone at the time of the various thefts. The defendant argued that the testimony about the location of the phone was expert testimony, and that the state have provided a report summarizing the testimony, findings, analysis, conclusion, or opinion 21 days before trial.

Instead of an expert report, the disclosed that it intended to call witnesses to testify concerning the authenticity of cell phone records and also provide technical insights into how cell phones operate in conjunction with different tower sites in order to provide geographical information.

The trial testimony was accomplished by reviewing the date and time a call was placed, then determining which cell-phone tower provided the service; a method known as ‘triangulation.’  Notably, the phone number located was not the defendant’s but an accomplice’s.  Most of the testimony concerned how a cell phone works, including how the phone utilizes nearby towers for connectivity.  The court concluded that the witness “simply compared the locations on the phone records to locations on the tower site maps by matching the relevant numbers recorded by the service provider.”  This was not expert testimony because “any layperson could make this determination by examining the respective exhibits.”

Because the testimony was not “expert” testimony, the state was not required to provide a report prior to trial.

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State Not Required To Disclose Identity of Informant Who Set Up Drug Deal

The State is not required to disclose the identity of a confidential informant who set up a drug deal, according to the 12th District Ohio Court of Appeals.

The case is State v. Dennis, 2012-Ohio-4877.

The defendant appellant was indicted for trafficking in heroin and cocaine.

An officer with the Warren County Sheriff’s Office worked with a confidential informant to set up a drug deal involving the defendant.  The officer testified that he has worked with the confidential informant in over 50 cases.

The informant arranged to purchase crack-cocaine and heroin from an individual that went by the name of “Red” in a Burger King parking lot.  The officers set up surveillance and, after the informant left his vehicle to approach a vehicle driven by the suspect, the other officers surrounded the car.  The officer recognized a bag that appeared to contain cocaine in the rear passenger floor board.  The defendant and the second passenger, later identified as Red, were charged regarding their participation in the transaction.  A third passenger was not charged with any offense.

The Defendant first argued that the stop of the defendant’s car was not supported by reasonable and articulable suspicion. The court rejected this argument.

The law is that a police officer may briefly stop and detain an individual without an arrest warrant or probable cause for an arrest in order to investigate the officer’s reasonable suspicion of criminal activity.  Reliable and credible information received from an informant may provide an officer with reasonable suspicion for an investigatory stop.

In this case, the court believed that the confidential informant’s information was reliable and credible because the officer had previously worked with the informant in several cases.  In addition, the information provided by the informant was corroborated by the officer’s observations at the scene of the proposed drug transaction.

The subsequent search of the vehicle was permissible under the “automobile exception.”  This exception to the Fourth Amendment warrant requirement permits an officer the search a vehicle once the officer has probable cause to believe the vehicle contains contraband.  In this case, the officer justified by search by stating that he observed a baggie possibly containing cocaine or crack-cocaine in the car.

The defendant also argued that the state should have been required to disclose the identity of the confidential informant.  The law on the disclosure of confidential informant requires the court to balance a defendant’s constitutional right to confront accusers against him with the public’s interest in protecting the flow of information to the government.  The court explained “When the testimony of the informant is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges an accused is entitled to disclosure of the identity of the confidential informant.”

The general rule, the court acknowledged, is that the confidential informant must be disclosed when the informant helped set up the commission of the crime and was the sole witness to its occurrence.  However, disclosure is not necessary when another individual also witnesses the crime.

In this case, even though the informant set up the transaction, a codefendant and an uncharged passenger were in the vehicle.  “Therefore,” the court said, “the confidential informant was not the sole witness to the offense eliminating the need to disclose the identity of the informant.”

 

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Officers May Not Extend Traffic Stop to Ask Permission to Search Home

An Ohio appeals court concluded that, after the purposes of a traffic stop have been completed, an officer may not ask the driver for permission to search his apartment.

The case is State v. Rogers, 2012-Ohio-4753.

The Defendant was convicted of a felony offense of having weapons under disability.

The case started when a Dayton Metropolitan Housing Authority employee sent an e-mail to the Dayton Police concerning possible drug activity at Defendant’s residence.  The e-mail identified that location both by address and by Defendant’s full name.

An officer, while attempting “a knock and advise” at the Defendant’s home saw a vehicle with darkly tinted windows approaching and decided to initiate a traffic stop.   The Defendant exited the vehicle.  The officer issued a verbal warning for the window tint and told the driver she was free to leave.  The Officer then asked Defendant to step out of the vehicle.

The officers showed the Defendant the e-mail complaint and then asked for permission to search his apartment.  The Defendant agreed.  The Defendant admitted that there was a shotgun in his living room closet and showed it to the officers.  An also found a loaded handgun in the Defendant’s bedroom.

The Defendant argued that his constitutional rights were violated because the officers illegally expanded the scope and duration of the original traffic stop when they asked Defendant to talk with them without first advising him that he could refuse.  The state responded that this was a permissible consensual encounter.

The court noted that the “purposes of the traffic stop were complete when the driver was given a warning citation and then drove off. . . .

With respect to Defendant, as opposed to the driver, there was no termination or interruption of the detention that commenced when the vehicle was stopped.  Because the purposes of the traffic stop had been completed, Defendant’s continued detention was illegal.  Under these unique circumstances, the officers could have told Defendant he was free to leave, but they did not.  Perhaps they believed their explanation of the purpose of their knock-and-announce and the tip about drugs in his apartment would be sufficient to demonstrate a purpose different from the traffic stop.  However, such a conclusion would be speculative.

The court concluded, citing State v. Robinette, 80 Ohio St.3d 234, 1997-Ohio-343, 685 N.E.2d 762,  that, after the purposes of a traffic stop have been completed, an officer may not ask the driver for permission to search his vehicle.  The court extended this reasoning to a request to search the Defendant’s apartment.

For this reason, the court concluded that the consent Defendant gave was invalid and the seizure of the two guns that were inside was unreasonable for purposes of the Fourth Amendment.  The gun evidence should be, a result, suppressed.

Judge Froelich wrote a concurring opinion to emphasize “the fact-specific nature of our holding.”  In the judge’s view, “without some reasonable articulable suspicion of criminal activity, the continued detention was unlawful.”

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Review of Search Warrants Should Be Done With Language Used by Nonlawyers.

The Ohio Supreme Court has held that a determination whether information in a search-warrant affidavit is false must take into account the nontechnical language used by nonlawyers.

The case is State v. Dibble, Slip Opinion No. 2012-Ohio-4630.

In 2010 an Upper Arlington Police Detective asked a Franklin County municipal court judge to issue a warrant to search the defendant’s home.  The Detective sought the warrant after speaking with two young women who claimed that the defendant had engaged in unlawful sexual contact with them.  One of the women claimed that the Defendant had taken nude photos of her.

The warrant was issued and the police seized several items, including a laptop computer, a camera, and several videotapes and DVDs.  The Defendant was arrested and charged with felony counts of voyeurism and some other misdemeanor counts, including sexual imposition.

The Defendant charged that the search warrant contained false information.  In particular, he claimed that one of the women mentioned in the search warrant was not a minor, so that the sexual acts described in the affidavit would not have been unlawful.  The detective had referred to the woman as a “victim.”  The Detective “explained that he had referred to [the woman] as a victim even though she was an adult when the incident described in the affidavit occurred because he believed that she had been manipulated by [the Defendant].”

The court noted that the focus of the lower courts – which had tossed out the search warrant — was on the detective’s use of the word “victim.” The court believed that this reading of the word was “too narrow a definition of ‘victim’ by viewing the term to encompass only victims of crime.”  And:  “We find this hypertechnical analysis inappropriate.”

Instead, the Ohio Supreme Court held that, because “search warrant affidavits are usually drafted by nonlawyers” they should be reviewed using broader terms.  In this case, the term “victim” could refer to:

a person who suffers from a destructive or injurious action,” or (2) “a person who is deceived or cheated, as by his own emotions or ignorance, by the dishonesty of others, or by some impersonal agency.”  Webster’s Encyclopedic Unabridged Dictionary (Random House 1997).

The court explained that the validity of a search-warrant affidavit “should not turn on the identifier that an officer selects when trying to protect a person’s identity.”  In this case, the court was satisfied that the use of the term “victim” was a general term to describe the women in the affidavit.  The Defendant allegedly exploited the young women while employed as a teacher at their school, including back rubs, inappropriate touching, and photographing both women in see-through unitards.  The court believed that, in these circumstances, a non-lawyer would see the women as “victims.”

The lower court decision suppressing the search warrant was reversed and the case was sent back to the trial court for a trial.

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Ohio Supreme Court: What Does “from a motor vehicle” mean?

The Ohio Supreme Court has held that an Ohio law that adds a five year prison term when a defendant commits certain felonies “by discharging a firearm from a motor vehicle other than a manufactured home.”  is not applicable when a person fires a weapon while standing completely outside a motor vehicle.

The case is State v. Swidas, Slip Opinion No. 2012-Ohio-4638.

In this case, the Defendant shot Ulysses “Cory” Altizer.

The issue was the defendant’s location when he fired his weapon.  The court explained:

Where he was when he fired the gun makes a significant difference: R.C. 2941.146 states that if he fired the shots “from a motor vehicle,” he is subject to a mandatory, five-year prison term.  But what does “from a motor vehicle” mean?

The issue came down to what the word “from” means in the phrase “from a motor vehicle.”  The evidence suggested that the defendant was standing near, but not inside, a car.

One witness said that the defendant was “over the windshield of the car a little bit, pointing a gun at me, shooting.”  The witness did not testify that any part of the defendant was on the vehicle.  While the appellate court believed that the defendant was leaning on the vehicle as he shot the victim, this belief was erroneous.

The statute was intended to apply to drive-by shootings.  “But” the court asked, “does it apply to a “stand-by” shooting?” The court applied standard definitions of from to mean a “point” or “place” whence something departs.  The court said:

In the statute, that point or place is “a motor vehicle.”  That place is not “the vicinity of a motor vehicle” or “near a motor vehicle.”  The statute requires that the starting point of the activity is the motor vehicle itself.

But a motor vehicle cannot fire a  weapon; the statute applies to people.  That does not obviate the statutory requirement that the locus of the discharge of the weapon is the motor vehicle itself.  For the locus of the discharge to be the motor vehicle, then, the person discharging the weapon must have a substantial physical connection to the vehicle.  If a person were in or on a vehicle to the extent that the vehicle was providing substantial support to the person, the locus of that person’s firing of the weapon would be the motor vehicle.  Without a substantial physical connection to the vehicle, a shooter cannot be said to have fired a shot that commenced from the motor vehicle.

The argued that a defendant does not need to have physical contact with the car, but only that the vehicle must be “the instrumentality, the sine qua non, of the crime.”  However, the court rejected this argument, stating that the statute referred only to the location of the shooter at the time of the shooting.

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Do Elmwood Place Traffic Cameras Violate Ohio or US Constitutions?

The issue of traffic cameras to catch speeding violations has received recent attention because of  a program by the Village of Elmwood Place in Southwest Ohio.

Some have asked whether this violates the Ohio or United States Constitutions.

In 2008, the Ohio Supreme Court decided that a municipality may constitutionally use its home-rule powers to authorize a method of traffic enforcement that imposes a civil fine on the registered owner of a vehicle identified by automatic camera to be speeding in a school zone.

The case Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270.

In 2005, the Akron City Council passed an Ordinance authorizing the use of cameras in mobile units to identify speed-limit violators in school zones. The city then entered into a contract with Nestor Traffic Systems, Inc. (“Nestor”) to install and administer the automated enforcement system.

The system is purely civil in nature.  The Ohio Supreme Court described it as follows:

The ordinance authorizes the imposition of civil monetary fines when the posted speed limit in the targeted enforcement areas has been violated.  If a vehicle exceeds the posted speed limits, the owner of the vehicle receives a “notice of liability,” which includes photographs of the vehicle, the vehicle’s license plate, the date, time, and location of the violation, the posted speed limit, the vehicle’s speed at the time of the violation, and the amount owed as a civil penalty.  The criminal justice system is not involved in penalizing violations of the speed limit captured by an automated camera.  Unlike those who receive speeding citations from a police officer who has observed the infraction, speeders caught by the automated enforcement system do not receive criminal citations, are not required to appear in traffic court, and do not have points assessed against their driving records.

Owners of vehicles receiving notices of civil liability have several options.  They may pay the amount owed, sign an affidavit that the vehicle was stolen or leased to someone else, or administratively appeal the violation.  Owners choosing to appeal have 21 days to complete and return the notice-of-appeal section of the notice-of-liability form.

Administrative appeals of notices of liability are overseen by a hearing officer, who is an independent third party appointed by the mayor of Akron.  After administering the oath to any witnesses and reviewing all the evidence, the hearing officer determines whether a violation . . . is established by a preponderance of the evidence and whether the owner of the vehicle is liable for that violation.  The images of the vehicles and their license plates, the ownership records of the vehicles, and the speed of the vehicles  on the date in question are considered prima facie proof of a civil violation and are made available to the appealing party.

Under Ohio’s Constitution, a municipality may “to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

In this situation, a potential conflict exists because the state has enacted statutes regarding speed limits.  These statutes are enforced as part of the criminal law of the State.  The court concluded that no conflict existed because the “Akron ordinance does not change the existing state speed limits; in that respect, the ordinance prohibits conduct identical to that prohibited by state law.”

However, by adopting civil penalties, Akron may have created a conflict by changing the character of an offense.  The court also rejected this potential conflict.  The court said that the traffic cameras do not replace traffic law, “It merely supplements it.”  The court noted that a person cannot be subject to both criminal and civil liability under the ordinance.

The question of a due process violation was resolved in favor of the City by the Sixth Circuit Court of Appeals.  Mendenhall v. City of Akron, 374 Fed. Appx. 598, 599-601 (6th Cir. Ohio 2010).  The court said that the ordinance provided constitutionally adequate due process because “the ordinance provides for notice of the citation, an opportunity for a hearing, provision for a record of the hearing decision, and the right to appeal an adverse decision.”  The court specifically rejected the claim that “it violates due process to impose civil penalties for speeding violations irrespective of whether the owner was, in fact, driving the vehicle when the violation was recorded.”

Judge Clay dissented.  Judge Clay wrote that “Akron’s civil speed enforcement scheme violates due process by failing to provide vehicle owners with an opportunity to avoid liability by proving that they did not commit the infraction.”  Judge Clay suggested that the hearing officer only consider evidence of whether a violation “occurred in the owner’s car, not whether the owner was the person who committed the violation.”  Due process, under this view, is violated because “an owner may be held liable for someone else’s actions.”

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Ohio Supreme Court Holds That Juveniles Do Not Have Right to Counsel During Interrogation

The Ohio Supreme Court determined that a juvenile has no statutory right to counsel during a police interrogation conducted before a complaint is filed or an appearance is made in juvenile court.

The case is In re M.W., Slip Opinion No. 2012-Ohio-4538.

The case started in 2009.  A Cleveland Police Sergeant stopped a vehicle driven by the juvenile and determined he had no valid Ohio driver’s license and had also provided a false name.  When the Sergeant asked the juvenile why he lied about his name, M.W. stated he “thought [he] could get away with it.”

The juvenile also mentioned another juvenile who had been arrested for aggravated robbery the previous day.  When asked about the robbery, the juvenile admitted that he had served as the lookout. Back at the station, the juvenile was provided with his Miranda warnings and then provided a written statement.

The juvenile argued that the state had violated R.C. 2151.352, a statute providing juveniles with a right to representation by legal counsel at all stages of the proceedings.  The juvenile argued that giving a written statement was “a proceeding” and therefore triggered his statutory right to counsel.  He also argued that any waiver of his Miranda rights was invalid based because he had not consulted with an attorney or parent.

The Ohio Supreme Court rejected the statutory argument.  The court said:

the term “proceedings” denotes acts or events taken between the time of commencing an action at law until the entry of a final judgment by a judicial tribunal.  “Proceedings” evokes a court of law, not the investigatory action taken by police prior to the filing of a complaint or a juvenile’s initial appearance before a tribunal.

The court conclude that the juvenile was not entitled to an attorney during the interrogation because only the complaint filed by the police commenced the delinquency proceeding, and invoked the jurisdiction of the juvenile court, and afforded the juvenile the right to counsel pursuant to the statute.

The court emphasized that the decision was limited to the statutory issue.  Although the juvenile had a Fifth Amendment right to counsel pursuant to Miranda, he did not exercise that right.

Justice O’Connor dissented, saying that the “majority’s holding offends the United States Supreme Court’s constitutional commands on a juvenile’s due process and Fifth Amendment rights . . .”  Also:  “Because  it is founded in due process, the juvenile’s right to counsel in proceedings is a malleable right rather than a rigid one; it is driven by concerns for fundamental fairness.”

 

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“Whupping” Son with Belt is Not Proper Parental Discipline in a Domestic Violence Case

An Ohio Appeals Court has rejected an appeal in a domestic violence case.  The Defendant, who allegedly beat his son with a belt, had argued self-defense and appropriate parental discipline.

The case is State v. McKinney, 2012-Ohio-4521.

The Defendant was convicted of one count of domestic violence, a felony of the fourth degree, against his 16-year-old son.

According to the son’s testimony, the defendant came into his bedroom Jarred and appeared to be angry.  The defendant told his son to take the dog outside, but his son argued that it was not his turn.  The son complied, but when he got back the Defendant was removing clothes from the chest of drawers in the room.

The Defendant left and returned with a belt.  He told his son to take his sweatshirt off so that he could “get a whupping.” The Defendant then struck his twice in the back with the nonmetal end of the belt.  During a subsequent struggle, the son received additional injuries, including a cut lip and a small cut near his left eye.  The son walked to school, where his nose began to bleed again and he was sent to the office.  He told the story to a Hamilton Police Officer.

The Defendant claimed that the he had punished his son for poor grades and bad behavior.  The punishment included washing the dishes no use of his car, cell phone, and video games.  He said that during the incident he told his son that if he didn’t improve his grades, he would get a ‘whupping.”  He said he attempted to strike his son in the buttocks with the belt but that his son lunged at him and tackled him onto the nearby mattress. During the struggle, he restrained his son on the mattress and smacked him across the face “with an open hand.”

The Defendant suggested that he should have been permitted to tell the jury about his son’ prior disciplinary history, including drug use.  The court disagreed.  The court said that the drug use “does not go to . . . his behavior leading up to the altercation, his response to prior noncorporal punishment, the location or severity of his punishment, or [the defendant’s] state of mind while punishing his son . . .”The Defendant as permitted to testify that his son had a “disrespectful attitude” and that he had punished his son in a number of ways.  The Defendant also testified about a past instance where his son had caused his mother to have a black eye.

The Defendant also argued that he should have been permitted to assert self-defense.  The court said that the Defendant “essentially argues that he was exercising proper and reasonable parental discipline when he struck [his son] with the belt, but then acted in self-defense once Jarred tackled him . . .”  self-defense was not appropriate because the defendant “initiated the altercation.”

The law on this issue can become very complicated.  Persons facing potential domestic violence charges, as well as victims, are encouraged to contact an attorney with significant experience in domestic violence criminal defense and prosecutions.

 

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