What's Up in the 8th
One of the great things about practicing law is that we can learn so much from our clients. My all-time favorite was the defendant charged with fleeing from the police and running into a building - which doesn't sound so bad, except he was driving a car at the time - who assured me that under Ohio's statutes, in order to convict a defendant of failure to comply with a police order, the old "fleeing and eluding" statute, the State had to prove that the chase was more than four miles long. No idea how he came up with that one. I had another client who spent fifteen minutes in a holding cell telling me that he couldn't be convicted of drug possession based solely on residue, to the point where he accused me of not knowing what I was doing. "Let me see if I've got this straight," I told him. "You've been down to the joint six times, and I'm the dummy in the room?"
One of the other bits of legal mythology is that you can't be convicted of a firearm specification if you weren't the one with the gun. The next time a client springs this on you, show him the 8th District's decision last week in State v. Howard. Howard was the mastermind - in the loosest possible sense of the term - of a drive-by shooting, and his conviction of the crimes and the gun specification was affirmed, despite the fact that he was "merely" the driver. Howard also stands for the proposition that arguing ineffective assistance of counsel for failing to call alibi witnesses isn't a winning argument if you testify at trial that you made up the alibi and were really there at the scene of the shooting. A similarly Quixotic argument is made in State v. Cannada, where the appeal argues manifest weight. Turns out the only evidence the State had was that Cannada was the sole occupant of the apartment where the drugs were found, he was seen leaving it minutes before the search and just after a drug deal had gone down, and his "release cards" -- the cards the Department of Rehab and Corrections gave him when he got out of prison a few months earlier -- complete with his name, picture, and SS number, were found next to the dope. Other than that, the cops had nothing.
The court hands down a superb decision in a search case, which we'll discuss tomorrow, but as good as the 8th District has been on 4thAmendment issues, they continue to have problems with evidentiary ones. Two more examples crop up this week.
In State v. Bailey, the defense made a risky gambit at trial, seeking to admit the police report. The judge refused, and that serves as one of the main arguments on appeal. The court observes that "police reports are generally inadmissible hearsay and should not be submitted to the jury," and cites two cases to that effect. The cases both reference EvidR 803(8), which deals with police reports and does indeed render them inadmissible in criminal cases - "unless offered by the defendant."
To be sure, admission in that situation is not automatic; the judge can exclude it if she finds that the report's "sources of information or other circumstances indicate lack of trustworthiness." That would seem to prompt an inquiry into that issue, and get us closer to the real question: exactly why did the defense seek to introduce the report? Alas, the inquiry is not made, the question goes unanswered: in a curt two sentences, the court notes that "the police report reveals information that substantially parallels the testimony presented at trial" - and given that it was a police report about the crime that was the focus of the trial, how could it not? -pronounces the evidence cumulative, and goes on its way.
State v. Bartolo is more troublesome. Bartolo was accused of medically neglecting an 83-year-old woman so that he can steal her money, and charged with involuntary manslaughter in her death. The coroner ruled the death a homicide, and at trial she and the assistant who performed the autopsy were allowed to explain why they came to that conclusion. The defense objected, arguing that the conclusion was based in part on information gained outside the autopsy itself.
That's an easy argument to shoot down: the conclusion need not be based solely on the autopsy. EvidR 703 states that an expert opinion may be based upon facts or data "perceived by the expert or admitted into evidence." True, this isn't as expansive as the Federal rule, which permits the expert to also base his opinion on what he was told by others, even if it isn't admitted in evidence. The court's recitation of the testimony at trial runs for fifteen pages, and it seems plausible that whatever the coroner and her assistant used in coming to their conclusion other than the autopsy itself, it made its way into the trial as evidence.
But what does the court do? First, it looks to RC 313.17, which provides that the coroner, in making her report, can rely on "the statements of relatives or other persons having any knowledge of the facts, and from such other sources of information as are available." That's certainly true, but what evidence a coroner can rely on in making her report and what evidence she can rely on in testifying are two different issues.
Still, had the court stopped here, there'd be little cause for concern. The report itself, after all, is admissible as a business record, as long as there's no Crawford problem, and there isn't here, because the person who performed the autopsy testified. But the court doesn't stop there: it goes on to say
Evid.R. 703 states that the "facts or data" upon which an expert witness "bases an opinion or inference may be those perceived by the expert or admitted in evidence." The rule does not require the facts or data to be admitted into evidence.
Well, I'm sorry, that's wrong. The Staff Notes to the rule make it clear that, unlike the Federal rule, Ohio's does require that the facts or date be admitted into evidence; in fact, that's been the law in Ohio since 1955.
This isn't a big deal in terms of the result. As I mentioned, there were other reasons to reject the defense's argument here, and after reading the court's exhaustive recitation of the facts, the mystery is not that that DeBartolo was convicted, but that he came out of it with only a three-year prison sentence. But it is a big deal in terms of the law: you now essentially have a statement from the court of appeals for Ohio's largest county declaring that Ohio uses the Federal rule in determining the admissibility of an expert's opinion.
But as I also mentioned, the court made up for that with a superb decision in a search case. We'll discuss that tomorrow.
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