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On Reconsideration, 8th District Reverses its Decision in State v. Young.

I previously covered the 8th District Court of Appeals’ decision in State v. Young, in which it ruled that the indefinite sentence imposed by the Regan Tokes Act applied in determining the maximum period of civil commitment for a defendant found not guilty by reason of insanity. On reconsideration, the 8th District vacated this opinion, and affirmed the trial court’s original decision that Regan Tokes did not apply in this context.

            In its reconsidered opinion, the court noted that the State had not objected to the trial court’s decision, and therefore waived all but plain error. The court held that the civil standard for plain error applied to commitment following a not guilty by reason of insanity verdict. Under the civil standard, plain error should be found only under exceptional circumstances.

            The State also argued that Young’s sentence was void and could therefore be challenged at any time. The court responded that civil commitment is not a criminal sentence, and the voidness doctrine did not apply.   

            The Court found no plain error. Reversing its prior decision, it held that an indefinite sentence under Regan Tokes could only be applied to a Defendant based on the Department of Corrections’ determination that the defendant’s behavior in prison justified application of the sentence. Because Young would not be serving any time in prison, there would be no possible basis for imposing the indefinite sentence. Therefore, the trial court did not plainly err in finding that Regan Tokes did not apply, and the maximum period of commitment was eleven years, not sixteen and a half years.

            Notably, this decision is based on the stringent plain error standard. It therefore leaves open the possibility that a future court, addressing this issue when properly preserved for appeal, could reach a different decision. For example, a future reviewing court might disagree with this panel’s reasoning that there is no basis for imposing an indefinite sentence where the Defendant is not sent to prison. The relevant statute, R.C. § 2945.401 states that the maximum period of commitment is “the maximum prison term or term of imprisonment that the defendant or person could have received if the defendant or person had been convicted of the most serious offense with which the defendant or person is charged.” It is at least arguable that this sentence does include the indefinite sentence, because if the person had been convicted, they would have gone to prison, and could, based on their behavior, have received part or all of the indefinite sentence. Therefore, the argument goes, the indefinite sentence is part of the term of imprisonment that person “could have received” if they had been convicted. This issue could also become moot if the Supreme Court eventually decides that Regan Tokes itself is unconstitutional.  

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When is a Challenge to The Regan Tokes Law Ripe for Decision?

As I discussed in a prior post, the Regan Tokes Law adds an indeterminate, discretionary sentence to the minimum sentence for first- and second-degree felonies. Many defendants sentenced under this law have argued that the law unconstitutionally violates the separation of powers doctrine, by giving the department of corrections, rather than a court of law, discretion to determine how much, if any, of the indefinite sentence a defendant will serve. So far, no appellate court has found the law unconstitutional. Courts have split, however, on the issue of whether the issue is even ripe for decision at the time of sentencing.

The doctrine of ripeness states that a court should not address a merely hypothetical problem which will not definitely occur. Or, in the words of the Supreme Court of Ohio, “judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abstract or hypothetical or remote.”

The Fifth District Court of Appeals recently considered the ripeness of a challenge to the Regan Tokes Law in State v. Cochrane. The court found it was premature to consider the constitutionality of the law. The court reasoned that because the defendant might be released at the end of his minimum sentence, without serving any of the indefinite sentence period, the harm allegedly caused to him by the Regan Tokes Law was merely speculative. The court therefore declined to consider the defendant’s challenge to the law’s constitutionality.

Judge Gwinn wrote a lengthy dissent, arguing that the issue was ripe, and the court should have determined it. Gwinn pointed out that every offender convicted of a first- or second-degree felony in Ohio is subject to Regan Tokes, and it is therefore inevitable that many people will ultimately be subjected to an indefinite sentence under the law. The mere fact that some length of time may pass before this happens is not, the dissent reasoned, a good enough reason to postpone determining the issue. Gwinn noted the practical difficulties that could arise from delaying a decision on the constitutionality of the law:

“If, for example, the appellant must wait for three years for the DRC to extend his sentence, both the inmate and the courts will face a myriad of legal hurdles. First, how will the inmate inform the court of his or her desire to appeal the constitutionally of the law? Next, is the inmate entitled to appointed counsel to pursue such an appeal? If the inmate is not, then an incarcerated inmate with limited legal resources and acumen will have to cobble together a highly involved constitutional argument without the assistance of counsel and with extremely limited access to legal resources. It will also become evident that the DRC decision extending the inmate’s sentence is not part of the trial court record. In order to establish that the inmate’s sentence was in fact extended, will the trial court be required to order the DRC to file its decision with the clerk of courts for inclusion in the trial and appellate court records? Further, the inmate will necessarily have to await the trial court decision on the constitutionality of the law, the court of appeals decision and eventually the decision of the Ohio Supreme Court, a process that can take years. In the event that the inmate gains his or her release before then, the issue will no doubt be declared moot. Additionally, if the law is declared unconstitutional years from now, courts will be inundated with writs of habeas corpus, motions and other request for release or resentencing from the hundreds of inmates who were sentenced under the law and not permitted to appeal the constitutionality of the law in the inmates direct appeal. Finally, the inmate will have been incarcerated perhaps years beyond his release date for the time it takes to decide the issue in the event the law is found to be unconstitutional.”

The Second, Third, and Twelfth district Courts of Appeals have all addressed this issue directly, and found the law constitutional, implicitly finding that the issue was ripe for review. Additionally, the Sixth District Court of Appeals recently found that the issue was not ripe, but recognized the conflict of its decision with those from the Second, Third, and Twelfth districts, and certified the conflict to the Ohio Supreme Court. Because this certification is limited to the issue of ripeness, the Supreme Court is not expected to resolve the underlying question of the law’s constitutionality just yet.

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10th District Court of Appeals Rejects Extension of Good-Faith Exception in 4th Amendment Case

In State v. Sears, the 10th District Court of Appeals affirmed a trial court’s order granting a motion to suppress. The Court found that an arresting officer’s mistake as to the identity of the suspect they arrested was not reasonable, and therefore evidence of a handgun they found on the defendant’s person should be suppressed.

Columbus police were dispatched to arrest a suspect in a car theft, who they also knew had a separate outstanding warrant. On their way to serve the warrant, officers briefly viewed a mugshot of the suspect. At the residence where they hoped to find the suspect, they found Sears, the defendant, who matched a general description of the suspect. Police approached him and immediately placed him in handcuffs. Body-worn camera footage showed that officers asked Sears’ name as they approached, and he told them. He also repeatedly told the officers they could check his driver’s license in his front pocket, but they did not do so. Police found a handgun on Sears’ person, and he was charged with having a weapon under disability.

Sears filed a motion to suppress, arguing that the arrest and search of his person were unreasonable under the Fourth Amendment. The trial court granted the motion, and the State appealed.

The Court of Appeals recognized that when officers have probable cause to arrest a suspect, but mistakenly arrest an individual matching the suspect’s description, the arrest and subsequent search of the suspect is not unlawful, as long as the officer’s mistake of identity is reasonable. The trial court had found that the officers made an unreasonable mistake, because Sears identified himself immediately, police could have checked his driver’s license, but decided not to, and Sears matched only a very general description of the suspect. The Court of Appeals held that this decision was supported by competent credible evidence in the record, and therefore affirmed.

The State argued that the good-faith exception to the warrant requirement found in ­United States v. Leon should apply. Leon held that the exclusionary rule does not apply to an officer acting in reliance on a determination of probable cause made by a magistrate, even if the magistrate’s decision turns out to be unreliable or erroneous.

The Court of Appeals pointed out the important distinction, that in this case, the police officer was not relying on erroneous information from a magistrate, but on his own mistake of fact. The Court reasoned that the purpose of the exclusionary rule is to discourage police from violating the Fourth Amendment. Because the exclusionary rule would not deter an officer in the situation of Leon, where officer relied in good faith on a magistrate’s determination of probable cause, the purpose of the exclusionary rule is not relevant. By contrast, the need to discourage bad police conduct does apply to the police officer in this case, who could easily have acted to correct his mistake by verifying the suspect’s readily available driver’s license, but chose not to. For that reason, the Court of Appeals held that the good faith exception did not apply, and the trial court correctly granted the motion to suppress.

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Ohio Supreme Court Clarifies Permissible Uses of Other Acts

The Ohio Supreme Court announced its decision in State v. Hartman this week. In a unanimous opinion, The Court affirmed the 8th District Court of Appeals decision which reversed the defendant’s conviction. the Court also used the opinion to issue a reminder about the permissible purposes of other-acts evidence, and the differences between various exceptions to the character evidence rule. I discussed the factual background of this case in a previous post. Here are a few key points from the opinion:

  1. Modus Operandi Evidence

Modus Operandi is only relevant where identity is at issue. The evidence must show that two or more crimes were committed in such a unique way that the person who committed one of the crimes is likely to be the same person who committed the other. The mere fact that a defendant has committed the same kind of crime before does not make that evidence admissible as modus operandi. The Court concluded that the other acts admitted in this case were not similar enough to qualify as modus operandi evidence, and that even if they were, it would not have been relevant, because identity was not at issue.

  • Common Scheme or Plan

In contrast to modus operandi, other acts used to show common scheme or plan do not need to be similar at all. However, the acts must be carried out in furtherance of the same overall plan. Without this limitation, “proof that the accused has committed similar crimes is no different than proof that the accused has a propensity for committing that type of crime.” Writing for the Court, Justice Fisher offered an example of a proper use of common plan evidence from the tv series Breaking Bad: The fact that Walter and Jessie had stolen a barrel of methylamine, an ingredient in methamphetamine, would be admissible as evidence of their plan to illegally manufacture drugs.

  • Intent and Absence of Mistake 

The Court agreed with the State that intent and absence of mistake were relevant, since the Defendant suggested at trial that he could have mistakenly believed the victim consented. While the Court admitted that “there is a thin line between permissible use of other-acts evidence to show intent and the impermissible use to show propensity,” in this case it concluded that “the State’s theory is that because Hartman previously abused his stepdaughter, it is unlikely that he had consensual sex” with the victim. The Court held that this incident was too dissimilar, and too far removed from the present case to be probative of the Defendant’s intent or absence of mistake.

  • Intermediate Inferences

The Court held that, “It is not enough to say that the ultimate purpose for which other-acts evidence is offered is a permissible one; rather, we must ensure that any intermediate inferences are also free of impermissible character purposes.” The Court pointed out that the State’s use of other-acts evidence relied on an unstated inference that the Defendant preys on sleeping women, and therefore ran afoul of the character evidence prohibition.

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8th District: Regan Tokes Applies to Maximum Period of Civil Commitment

In State v. Young, the 8th District Court of Appeals issued a decision holding that the indefinite sentences under the Regan Tokes Law apply to determining the maximum period of civil commitment of a defendant found not guilty by reason of insanity.

The Ohio Legislature passed the Regan Tokes Act in 2019. The law added an indefinite sentence to the penalty for first- and second- degree felonies, equal to fifty percent of the definite sentence. For example, the range of prison sentences for a felony of the first degree is three to eleven years. If a judge sentenced a defendant to three years, the defendant would serve that sentence, followed by an indefinite sentence of 1 ½ years. The amount of the indefinite sentence served is determined by the Department of Corrections.   

When a defendant is found not guilty by reason of insanity, a judge may order the defendant committed to a mental hospital until the defendant is either no longer mentally ill, or until the expiration of the maximum prison term the defendant was facing for the criminal charge.

The defendant in Young was charged with aggravated burglary. At trial, the court found her not guilty by reason of insanity. The Court determined that the maximum sentence was eleven years, and that was therefore the maximum period of commitment for the defendant, Regan Tokes Law notwithstanding. The State appealed, arguing that under Regan Tokes, the maximum sentence for an F1 is 16 ½ years, because a defendant could receive a maximum definite sentence of eleven years, with an indefinite sentence of 5 ½ years. Therefore, the State argued the defendant was subject to a maximum term of commitment of 16 1/2 years.

Although the Defendant argued the State had waived the argument by failing to raise it at trial, the court of appeals held that this was plain error, subject to review on appeal. The Court agreed with the State’s argument. Because Young could have spent up to 16 ½ years in prison had she been convicted, the Court held, she was subject to a maximum commitment of the same length following a not guilty by reason of insanity verdict.

The Court declined to hear the Defendant’s argument that the indefinite sentencing provisions of the Regan Tokes Law are unconstitutional. The Defendant argued that because the law allows the Department of Corrections to determine the amount of the indefinite sentence the defendant actually serves, the law violates the separation of powers doctrine. The court of appeals held that the defendant had waived this argument by not making it at the trial level.

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Supreme Court of Ohio Addresses Meaning of “Technical Violation” of Community Control

The Supreme Court of Ohio recently issued a decision clarifying what constitutes a “technical violation” of the terms of community control. In State v. Nelson, the Court held that this term does not include all noncriminal violations.

In 2017, in an effort to reduce the number of low-level offenders in prison, the Ohio General Assembly amended R.C. 2929.15  by imposing caps on the prison terms for violations of community control where the violation was a technical violation or a violation of the law that was not a felony. The amended statute limited sentences to 90 days for defendants on community control for a fifth-degree felony, and 180 days for a fourth-degree felony, but did not apply for higher level offenses. The statute did not define “technical violation.”

From the outset, trial and appellate courts struggled to interpret the statute. While courts generally rejected the argument that all noncriminal conduct constituted technical violations, they differed on where exactly to draw the line. Courts found that technical violations included using alcohol,[i] failing to report to probation,[ii] and failure to maintain alcoholics anonymous attendance sheets in the way mandated by the probation officer.[iii] Courts generally agreed that failure to complete a community based correctional program was not a technical violation, because it was  “special” rather than a “standard” term of community control, in that it was a substantive rehabilitative requirement which addressed a significant factor contributing to the defendant’s criminal conduct.[iv]

In Nelson, the defendant pleaded guilty to four drug charges. His community control sentence included the conditions that he follow all laws, follow all orders given to him by his probation officer, and that he “conduct himself as a responsible, law-abiding citizen.” The court warned him that if he violated of the terms of community control, he would serve thirty-four months in prison.  

As part of the second of these conditions, Nelson’s probation officer ordered him not to have any contact with his former girlfriend Jamie Elliot, believing that “socializing with Elliot had been a contributing factor to his drinking,” which in turn contributed to his criminal conduct. When Nelson violated this order, the court revoked his community control, found that the violation was not technical in nature, and sentenced Nelson to the full thirty-four month prison term.

The Supreme Court affirmed that violation of this no contact order was not a technical violation. First, the Court rejected the argument that all noncriminal violations are technical. The Court relied substantially on the definition of “technical” found in Black’s Law Dictionary: “immaterial, not affecting substantial rights, without substance.” The Court further found that the text of the statute, by referring to both technical violations and violations of law that are not felonies, supported this conclusion. The Court held that:

“interpreting technical violation to encompass all noncriminal conduct would effectively result in the caps applying to all violation conduct that is not a felony. But if the General Assembly had intended such a result, it would not have needed to mention technical violations at all, It could have stated in one simple provision that the caps apply whenever the violation conduct is not a felony.”

Because the General Assembly did not draft the statute in that way, the Court concluded that its “choice of the term technical implies it has meaning distinct from non-criminal violations.” The Court also held that the use of the undefined term “technical violation” showed that the statute was “intended to allow the judge to retain some discretion when faced with more serious violations that do not rise to the level of a crime.”

The Court then held that Nelson committed a nontechnical violation of the terms of probation by violating the no-contact order with Elliot. The Court found that “Nelson’s own testimony makes clear that he believed Elliot was a bad influence who would cause him to be at risk for violating his community control.” Therefore, the Court held, the no-contact order was a special condition, specifically tailored for Nelson, and not subject to the sentence caps for technical violations.

Justice Donnelly, in a dissenting opinion joined by Justice Stewart, wrote that the majority overly relied on a generic dictionary definition of the word “technical,” without considering the specialized meaning of the term “technical violation” in the field of criminal law. The dissent cited extensive authority from jurisdictions around the country, as well as academic sources and treatises using “technical violation” to refer to a violation that is not criminal in nature. Donnelly criticized the majority for overlooking this specialized meaning in favor of an acontextual dictionary definition.

The dissent also described the result of the majority’s decision as absurd: “Nelson . . . could get a 34-month prison term for violating his community control if he commits murder or if he talks to a woman who his supervising officer thinks is bad news, but he could get no more than a 180-day prison term if he commits arson under R.C. 2909.03(D)(2)(a) (a first degree misdemeanor.)”

The dissent argued that the majority’s rule provided no real guidance on how to define technical violations, and that its attempt at making a distinction based on the specifically-tailored condition amounted to allowing the probation officer to determine which violations were important enough to warrant a longer prison sentence, stating that Nelson was sentenced to almost three years in prison, essentially because his probation officer “indicated during Nelson’s revocation hearing that the verbal order was an important order.”

To me, the dissent is more persuasive. It troubles me that a statute that was specifically enacted to limit judicial discretion in sentencing community control offenders now places almost no limit on that discretion. Black’s Law Dictionary and the fact that the Assembly could have drafted a more verbally efficient statute do not seem like good enough reasons to justify this result. After Nelson, it appears that 2929.15 will have drastically reduced power to keep low-level offenders out of prison, as the General Assembly intended it to.


[i] State v. Pino, 11th Dist. Lake No. 2017-L-171, 2018-Ohio-2825.

[ii] State v. Stanko, 8th Dist. Cuyahoga No. 106886, 2019-Ohio-152.

[iii] State v. Catron-Wagner, 2019-Ohio-153, 131 N.E.3d 313 (8th Dist.)

[iv] State v. Davis, 12th Dist. Warren No. CA2017-11-156, 2018-2672.

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6th Circuit Permits Second Attempt at Execution of Death Row Inmate

The Sixth Circuit Court of Appeals recently ruled that the State of Ohio may attempt to execute death-row inmate Romell Broom a second time. During the first execution attempt in 2009, prison staff spent over two hours unsuccessfully trying to establish a working IV line on Broom, sticking him with needles many times. The court included a thorough account in its opinion:

Broom was transported to the Southern Ohio Correctional Facility (“Lucasville”) on September 14, 2009, in anticipation of his execution scheduled for the next day. Upon his arrival at Lucasville, a nurse and a phlebotomist conducted a vein assessment and found that Broom’s right-arm vein appeared accessible, but his left-arm vein seemed less so. Prison officials communicated this information to Edwin C. Voorhies Jr., the regional director for the Office of Prisons of the Ohio Department of Rehabilitation and Correction (“ODRC”), and the medical team assured him that this would not present a problem. At 1:59 p.m. on September 15, the warden finished reading the death warrant to Broom. One minute later, Team Members 9 (a female) and 21 (a male) entered the holding cell to prepare the catheter sites. Team Member 9 made three attempts to insert a catheter into Broom’s left arm but was unable to access a vein. At the same time, Team Member 21 made three unsuccessful stabs into Broom’s right arm. After a short break, Member 9 made two more insertions, the second of which caused Broom to scream aloud from the pain. Member 21 managed to insert the IV catheter into a vein, but then he lost the vein and blood began running down Broom’s arm. When that occurred, Member 9 rushed out of the room, saying “no” when a security officer asked if she was okay. Director Voorhies testified that he could tell there was a problem in the first 10 to 15 minutes. Warden Phillip Kerns saw the team make six or seven attempts on Broom’s veins during the same 10–to–15–minute period. According to Kerns, the team members did hit veins, but as soon as they started the saline drip, the vein would bulge, making it unusable. About 15 minutes into the process, Kerns and Voorhies saw Member 9 leave the holding cell. Voorhies described her as sweating “profusely” and heard her say No. 19-3356 Broom v. Shoop Page 4 that she and Member 21 had both accessed veins, but the veins “blew.” Member 17 then entered the holding cell and made “several attempts” to access a vein in Broom’s left arm. Simultaneously, Member 21 continued his attempts on Broom’s right arm. Terry Collins, who was then the director of the ODRC, called a break about 45 minutes into the process to consult with the medical team. The break lasted 20 to 25 minutes. The medical team reported that they were gaining IV access but could not sustain it when they tried to run saline through the line. They expressed “clear concern” about whether they would get usable veins. But because they said that there was a reasonable chance of establishing venous access, the decision was made to continue. By this time, Broom was in a great deal of pain from the puncture wounds, which made it difficult for him to move or stretch his arms. The second session commenced with three medical team members—9, 17, and 21—examining Broom’s arms and hands for possible injection sites. For the first time, they also began examining areas around and above his elbow as well as his legs. They also reused previous insertion sites, and as they continued inserting catheter needles into already swollen and bruised sites, Broom covered his eyes and began to cry from the pain. Director Voorhies remarked that he had never before seen an inmate cry during the process of venous access. After another ten minutes or so, Warden Kerns asked a nurse to contact the Lucasville physician to see if she would assess Broom’s veins and offer advice about finding a suitable vein. Broom later stated that he saw “an Asian woman,” whom he erroneously identified as “the head nurse,” enter the chamber. Someone handed her a needle, and when she inserted it, she struck bone, and Broom screamed from the pain. At the same time, another team member was attempting to access a vein in Broom’s right ankle. The Lucasville physician confirmed that she came to Broom’s cell, examined his foot, and made one unsuccessful attempt to insert a needle but quickly concluded that the effort would not work. By doing so, she disobeyed the warden’s express instructions to observe only and not get involved. The physician examined Broom’s foot but could see no other vein. After the physician departed, the medical team continued trying to establish an IV line for another five to ten minutes. In all, the second session lasted approximately 35 to 40 minutes. During the second break, the medical team advised that even if they successfully accessed a vein, they were not confident that the site would remain viable throughout the execution process. The governor’s office had signaled its willingness to grant a reprieve, and so the decision was made to halt the execution for the day.

After the failed execution, Broom filed a “placeholder” Habeas Corpus suit in the Federal District Court for the Northern District of Ohio, claiming that any second attempt to execute him would violate the Eighth Amendment prohibition on cruel and unusual punishment, and the Fifth Amendment prohibition on double jeopardy. He then began litigating his claims in Ohio courts, as federal law required. The Ohio trial court rejected Broom’s arguments, and the court of appeals affirmed.

The Ohio Supreme Court affirmed the lower courts’ decisions. As to Broom’s Eighth Amendment claim, the court relied on the U.S. Supreme Court case Louisiana ex rel Francis v. Resweber. The Resweber court held that after the State of Louisiana unsuccessfully attempted to execute defendant Francis by electrocution, the Eighth Amendment did not bar a subsequent execution, because “neither the psychological strain endured by Francis nor the fact that Francis had already been subjected to a current of electricity rendered his subsequent execution any more cruel in the constitutional sense than any other execution.”

 As to the Fifth Amendment claim, the Ohio Supreme Court concluded that “because the state’s first execution attempt did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached,” and therefore a second attempt would not put Broom in double jeopardy. 

Having exhausted his claims in state court, Broom resumed his federal Habeas petition in the federal district court. Under the Anti-Terrorism and Effective Death Penalty act of 1996, The district court could only grant Broom’s Habeas Corpus petition if the state court decision was contrary to, or made an unreasonable application of, clearly established law. Following this standard, the district court denied the petition. Broom appealed

In affirming the district court, the Court of Appeals for the Sixth Circuit found that Resweber was the only clearly established law on the subject of a second attempt at execution, and that the Ohio Court’s decision was in line with Resweber, and therefore could not be contrary to clearly established law.

As to Broom’s Fifth Amendment claim, the court noted that the Defendant in Resweber also claimed a second execution attempt would violate double jeopardy. The Supreme Court rejected that argument because, at the time, the double jeopardy clause was not thought to apply to the states. Therefore, there was no clearly established law that applied to Broom’s 5th Amendment claim. Even if it were addressing the issue on the merits, the Sixth Circuit suggested that a second execution would not violate double jeopardy because “the state is neither (1) attempting to subject [the] defendant to a second trial following an acquittal, nor (2) attempting to impose a ‘second’ punishment beyond that permitted by the legislature.”

Judge Karen Nelson Moore, writing for a unanimous panel, showed clear discomfort with permitting a second execution attempt. The opinion states, “we in no way condone Ohio’s treatment of Broom,” and also that “Broom makes a compelling case on the merits, one that some members of the panel might be tempted to accept were this case before us on direct review.” Nevertheless, under the narrow constraints of AEDPA, the court could not escape the conclusion that no clearly established law forbid a second execution.

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8th District Vacates Conviction of Woman Charged with OVI Despite Negative Chemical Test

The 8th District Court of Appeals recently vacated the conviction of a woman charged with operating a vehicle under the influence of alcohol or drugs and failure to control a vehicle. In City of Cleveland v. Kuhlman, the court held that the defendant’s conviction was not supported by sufficient evidence, and that the trial court should have granted her motion for acquittal under Crim. R. 29.

The case arose when restaurant employees saw the defendant parked with her car over the curb in the restaurant’s parking lot. Defendant came into the restaurant. According to one of the employees, she was “obviously drunk,” however that employee made this judgment based only on seeing defendant drive over the curb, and she had no personal interaction with the defendant.

That employee called 911, and police officers responded to the restaurant. The officers testified that defendant appeared “a little incoherent,” and that she was “not walking in a normal gait.” They suspected, based on her behavior, that she was under the influence of both alcohol and narcotics. The officers took a water bottle from her car, which they claimed smelled like alcohol, but did not collect a sample of its contents. The officers then transported the defendant to the hospital.

At the hospital, nurses were able to collect a urine sample from defendant. However, she then apparently changed her mind and instructed the nurse not to give the sample to the police. Because of this, the officers marked that she refused to submit to testing, and she was charged with refusing to submit to a test. One of the officers instructed the nurses to pour out the sample. The sample was not poured out, and a test eventually revealed no alcohol or drugs were in the defendant’s system.

At trial, the jury found defendant guilty of driving under the influence and failure to control, but not guilty of refusing to submit to testing. Defendant appealed, raising thirteen assignments of error, including insufficiency of the evidence, prosecutorial misconduct, and exclusion of expert testimony.

The Court of Appeals found that there was insufficient evidence to support a conviction for operating under the influence in light of the negative test results for both alcohol and drugs. As to the conviction for failure to control, the court noted that this ordinance only applies on public roads, whereas defendant was only observed driving in a private parking lot. Therefore, the court vacated that conviction as well. Because the court found the insufficiency of the evidence claim dispositive, it did not reach the defendant’s twelve other assignment of errors. Nevertheless, it took the unusual step of addressing numerous other errors made by the trial court. The Court of Appeals stated that “charges in this case should have never been filed. The city was, or should have been aware, that Kuhlman, at the request of arresting officer Haggerty, did submit a urine specimen during treatment . . . and the city knew, or should have known, that Haggerty was advised in the emergency department that the specimen did not show the presence of alcohol or any drug . . . (f)urther, the evidence that Haggerty instructed a nurse to ‘pour out’ the urine specimen is appalling and could be construed as tampering with evidence.” The Court of Appeals also noted that the trial court misapplied the rules of criminal procedure in precluding testimony by defendant’s expert witness, refused to allow the defendant to make an offer of proof as to the expert’s testimony, and provided erroneous jury instructions as to the law on operating a vehicle under the influence. The Court of Appeals concluded by stating that “review of the record reflects that the trial court sought to expeditiously obtain a verdict at the expense of providing counsel with sufficient opportunity to review the instructions prior to submitting them to the jury, and it failed to review the instructions proposed by either side.”

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10th District Upholds Trial Court’s Refusal to Instruct Jury on Self-Defense

In May of 2019, Ohio amended its self-defense law. Previously, a defendant had the burden of proving self-defense by a preponderance of the evidence. After the amendment, the defendant still has the burden of producing some evidence tending to show self-defense, but after this, the burden shifts to the State to prove lack of self-defense beyond a reasonable doubt.

Interpreting the revised statute, Ohio’s Court of Appeals for the 10th District recently found that a trial court did not err in refusing to instruct the jury on self-defense or the related castle doctrine.

In State v. Collins, the defendant was charged with aggravated murder. At trial, a neighbor of the defendant testified that he had heard and seen the defendant, Collins, arguing with another man. Collins was slowly approaching the other man, who backed away. Collins eventually drew a gun and shot him twice. Video footage from a security camera on the street showed that Collins had in fact fired four times, but was otherwise largely consistent with the witness’ testimony.

 The defendant testified that he shot the victim, DeSean Bonet, in self-defense. Collins admitted that he sold marijuana out of his home. He claimed that on the night of the incident, he was sitting on his front porch, waiting for a friend to arrive to buy marijuana from him. Bonet, who he had never met before, approached him on the porch and asked if he was selling marijuana. Collins testified he was suspicious of Bonet, because he had never met him before, it was the middle of the night, and Bonet kept one hand in his pocket, as if holding a gun. He claimed Bonet then pushed him against the front door and grabbed the bag of marijuana from his pocket. Fearing for his life, Collins claimed he drew his gun, and fired at the ground, in order make Bonet release him. He claimed that as Bonet ran away, he still kept one hand inside his pocket. Worried that Bonet had a gun and would fire back at him, Collins kept shooting. Collins testified on cross-examination that he only shot in Bonet’s general direction, and had not intended to hit him, but was only trying to make Bonet run far enough away that he himself could safely retreat into his house.

The trial court denied Collins’ motion for jury instructions on both self-defense and the castle doctrine. The jury returned a guilty verdict.

The Court of Appeals affirmed the decision. It held that because Collins testified he was not aiming directly at Bonet, he could not claim self-defense. Citing one of its earlier opinions, the Court held “ by its terms self-defense presumes intentional, willful use of force . . . thus, when an individual testifies that they did not intend to cause harm such testimony prevents the individual from claiming self-defense.”

Does this rule make sense? If the doctrine of self-defense protects someone who shoots to kill, why should it not also protect someone who fires a warning shot? Someone who fires in another person’s general direction can do so willfully, as self-defense requires.

The court also cited to State v. Herrington from the 9th District supporting this holding. However, that case discussed the self-defense doctrine in a different context. The defendant in Herrington argued on appeal that his trial counsel was ineffective for failing to request a jury instruction on self-defense. Because the defendant testified that he did not intend to hurt anyone, and that he did not in fact cause anyone serious physical harm, the court held a self-defense claim would have been unsupported, and it was therefore not ineffective assistance of counsel not to request the instruction. A holding that it was not ineffective assistance to fail to request the instruction, when the defendant did not actually cause anyone serious physical harm has little persuasive value in determining whether a defendant who did request the jury instruction was entitled to one, in a case in which he killed someone, but claims self-defense. Also, Herrington was decided in 2010, when the defendant still bore the burden of proof for self-defense. Therefore, even if the analysis of the self-defense issue within the context of an ineffective assistance of counsel claim had any persuasive value in a case addressing self-defense directly, Herrington would still not control, since it addressed a different standard for proving self-defense; a defendant who did not have a viable self-defense claim under the law as it existed in 2010 might have a viable claim in 2020. 

In this case, the decision may have been harmless error, since all evidence showed the victim was running away when he was shot. Still, the 10th District’s rule is confusing. I am curious to see if this issue comes up again, and how another court would address it.

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Hill v. Anderson – On Remand, 6th Circuit Once Again Sets Aside Death Sentence Under Atkins

The 6th Circuit Court of Appeals recently overturned the death sentence of Habeas Corpus petitioner Danny Hill, finding that Hill was intellectually disabled, and therefore ineligible for the death penalty under Atkins v. Virginia.

Hill was originally convicted of murder and sentenced to death in 1986. His conviction and sentence were affirmed on direct appeal. It was not until 2002, while Hill’s first Habeas petition was pending in the Federal Court of Appeals, that the Supreme Court handed down Atkins. That decision relied on Supreme Court precedent that execution violates the 8th Amendment bar on cruel and unusual punishment when it is not proportional to the offense committed. The Atkins Court held that because of their lessened culpability, the death penalty is disproportionate when applied to intellectually disabled individuals.[i]

While the Supreme Court left it up to the states to decide how they would determine which defendants were intellectually disabled, it noted that two prominent psychiatric manuals require three separate findings in order to make such a diagnosis: (1) significantly subaverage intellectual functioning, typically indicated by an IQ of 70 or lower; (2) significant limitations in adaptive functioning; and (3) manifestation or onset before the age of 18.

 Following Atkins, the Court of Appeals remanded Hill’s case to the District Court, with instructions to remand to the state courts to determine if Hill was entitled to relief under Atkins. The Ohio Court of Appeals and Ohio Supreme Court had already determined in Hill’s direct appeal that Hill was intellectually disabled. On remand, the court determined that issue preclusion did not apply to this determination, since the issue of whether Hill was intellectually disabled was not essential to Hill’s conviction and sentence in 1986, before Atkins was decided.

During the hearing on Hill’s Atkins claim, the court ruled that “the focus of the evaluation would be Hill’s present functioning, and therefore that contemporary evidence was what was primarily relevant – not historical accounts.” Three expert witnesses testified during the hearing. One had been appointed by the court, one was retained by the State, and one retained by Hill. The evidence at the hearing showed that Hill’s IQ at the time of trial ranged from 55 to 68, low enough that the parties agreed he qualified as intellectually disabled under the first prong of Atkins. He also had the moral development of a two-year old. Hill had always struggled in in school, and was placed in special education classes from kindergarten forward. He remained essentially illiterate for his whole life, and was unable to take care of his hygiene independently, without reminders to brush his teeth or shower. While the defense expert focused on these facts, the other two experts pointed at evidence of Hill’s intelligence and sophistication, which was inconsistent with an intellectual disability diagnosis. This evidence included the fact that Hill had arranged a press conference with local news outlets in 2000, in order to draw attention to his case, something  the State’s expert claimed he had never seen an intellectually disabled person do. Both the State’s and the court’s experts were impressed with Hill’s memory of events, and by the fact that he was able to tell a complex and detailed account of events leading up to the murder. The court’s witness found Hill’s account “remarkable and not likely, not very plausible,” but nevertheless noted “the degree of organization, the degree of complexity, and the degree of memory,” which she believed would be unusual for an intellectually disabled person. The State also presented evidence of Hill’s current level of functioning in prison and interaction with prison staff and law enforcement to show that he was not disabled.

The defense expert testified that this behavior was not inconsistent with that of a mildly intellectually disabled person, explaining that many such people “are quite aware of their deficits in learning and functioning, and are somewhat worried that other people will find that also. So they oftentimes will develop certain skill areas that they can hold out as indicating that they have a competence in a certain area, and therefore, are trying to mask . . . what their deficits actually are.” Ultimately, the state and court experts opined that Hill was not disabled, while the defense expert opined that he was mildly intellectually disabled. The court credited the two experts, and held Hill was not entitled to relief under Atkins. Hill then renewed his Habeas petition in the Federal Courts.

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), The District Court could grant Hill’s petition on the Atkins claim only if the state court’s decision that he was not intellectually disabled was either an unreasonable application of clearly-established law, or an unreasonable determination of facts. Under this standard of review, the District Court denied the petition. The 6th Circuit reversed. It based this decision, in part, on Moore v. Texas, decided by the Supreme Court in 2017. In Moore, The Supreme Court reversed the Texas Court of Criminal Appeal’s decision that the defendant was not intellectually disabled. The Court found that the Texas court had improperly discounted the defendant’s adaptive deficiencies, and instead focused on his adaptive strengths, an approach rejected by the medical community.

The 6th Circuit found that the Ohio courts had made the same mistake as the Texas court in Moore, by focusing selectively on evidence of Hill’s strengths, while discounting evidence of his deficiencies. On appeal by the state, The Supreme Court held that the 6th Circuit should not have applied Moore retroactively. It therefore remanded for reconsideration of Hill’s claim under Atkins based only on the law that was applicable in 2008, when Ohio courts addressed the issue.

On remand, the 6th Circuit again reached the same conclusion that Hill was intellectually disabled. The Court noted that every court that had addressed the issue before Atkins was decided had found Hill to be intellectually disabled, and that he had been in special education classes for his entire time in school, that in prison he was unable to complete simple tasks without supervision, or maintain basic personal hygiene without reminders, and that he had been functionally illiterate his entire life. The 6th Circuit found that the Ohio courts had unreasonably discounted the extensive record of his disability, and instead focused on arbitrary and largely irrelevant facts, such as anecdotal accounts of prison staff, to show that Hill was of average intelligence. The Ohio courts also found evidence of Hill’s initiative and ability for self-preservation in voluntarily going to the police to talk about the murder in 1985, and crafting a narrative to try and deflect suspicion from himself. The 6th Circuit pointed out that Hill that was “not even a suspect before he went to the police, and his statements are what aroused their suspicion. Incriminating oneself is hardly self-preservation.”

We can expect that the State will seek review of this decision, either by the Supreme Court, or the full 6th Circuit sitting en banc. Could either court reverse the latest decision? The AEDPA is very deferential to state court decisions. Also, the Atkins standard is broad, and deliberately left it up to the states to decide how to determine whether a defendant was intellectually disabled. Without guidance from the Court’s later decisions such as Moore, there is room for a reviewing court to find that the state court decision did not violate the clearly-established law at the time.  

The Ohio court focused on present, rather than past evidence of Hill’s intellectual disability. As the 6th Circuit pointed out in its opinion, the diagnostic requirement that deficiencies appear by age 18 inherently contemplates that this is a backwards-looking, and not a strictly present focused analysis. However, The Atkins court did not require states to follow the three-pronged analysis. While later Supreme Court cases including Moore and Florida v. Hall have emphasized that state law on this issue should at least be rooted in medical consensus, those cases would not apply retroactively to Hill. Therefore, the three-prong analysis would not be considered clearly-established law for purposes of Hill’s petition. The 6th Circuit noted that Ohio adopted the three-prong test in State v. Lott. It held that that since the US Supreme Court directed the states in Atkins to develop their own tests for intellectual disability, and Ohio did just that in Lott, that Lott should be treated as clearly-established law in this context. However, this, to the best of my knowledge, is a novel argument. Clearly-established law in the AEDPA context refers only to holdings of the Supreme Court of the United States.   

Still, if Atkins is to have any effect, there must be some application of it that would qualify as unreasonable under AEDPA. The Hill case presents a large body of evidence of the defendant’s disability. If the state courts did not have any rational reason for deciding the case based on a much smaller amount of information that highlighted Hill’s strengths, rather than the much larger body of evidence showing his deficiencies, that could qualify as an unreasonable interpretation of Atkins. A reviewing court could also affirm the 6th’s Circuit’s decision on the basis that the state court made an unreasonable determination of facts. Still, it is far from clear what the outcome will be.


[i] The Atkins court used the term “mentally retarded.” Since then, “intellectually disabled” has become the preferred term.