The Court of Appeals for the Ninth Appellate District released two opinions on July 17, 2013. My summaries of the opinions appear below.
State v. Howard, 2013-Ohio-3120 affirmed Mr. Howard's conviction by the Summit County Common Pleas Court for trafficking in heroin, a first degree felony. Mr. Howard listed one assignment of error. He argued that the trial court erred in admitting into evidence a firearm found in the purse of a co-defendant of Mr. Howard's.
The Court of Appeals noted that while Mr. Howard had objected to the introduction of the firearm, he didn't object to testimony related to the firearm. Further his attorney questioned witnesses about the firearm during the trial. Given the evidence that wasn't objected to, the Court of Appeals found that the introduction of the firearm outweighed the probative value of the firearm. It also found that even if the firearm shouldn't have been introduced its introduction was harmless error.
In its argument to the Court of Appeals the State argued that firearms found on or near the person of a drug dealer is always relevant. The Court of Appeals specifically declined to adopt such a position although it noted that there was case law from other jurisdictions adopting such a position.
State v. Armbruster, 2013-Ohio-3119 affirmed the conviction of Mr. Armbruster by the Summit County Court of Common Pleas for the illegal manufacturing of methamphetamine and forfeiture specifications connected to that charge. On appeal Mr. Armbruster argued that the trial court erred in not granting his motion to suppress evidence seized by a Norton Police Department officer from a motel room where Mr. Armbruster was cooking meth.
The evidence was seized when the officer went to the motel on a tip that Mr. Armbruster was operating a meth lab at the motel. He went up to the room and smelled the odor of cooking meth. The Court of Appeals noted that there is an exigent circumstance that allows a police officer to enter a dwelling without probable cause if he or she has a reasonable belief that a person in the dwelling is in need of immediate aid. This exception has been used to justify searches of dwellings in which there is an active meth lab because of the danger of explosion and fire that such labs pose to the occupants in the dwelling, police officers investigating the meth lab, and people who are nearby. The Court of Appeals found that this exception existed in this case.
Showing posts with label admissibility of evidence. Show all posts
Showing posts with label admissibility of evidence. Show all posts
Sunday, July 21, 2013
Wednesday, June 02, 2010
Officer’s Unaided Visual Estimation of a Vehicle’s Speed Sufficient if Based on Training, Certification, Experience
Barberton v. Jenney, Slip Opinion No. 2010-Ohio-2420.
Summit App. No. 24423, 2009-Ohio-1985. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2420.pdf
(June 2, 2010) The Supreme Court of Ohio today ruled 5-1 that a police officer’s unaided visual estimation of a vehicle’s speed is sufficient to support a speeding conviction without independent verification of the vehicle’s speed if the officer is trained, certified by the Ohio Peace Officer Training Academy or a similar organization, and experienced in visually estimating vehicle speed.
In 2008 motorist Mark Jenney was convicted of speeding based on testimony by Copley police officer Christopher Santimarino that he observed Jenney’s SUV driving in the left lane “at a high rate of speed” which he visually estimated to be about 70 mph.
The 9th District Court of Appeals affirmed Jenney’s conviction on the basis of Santimarino’s visual estimate of his speed. Jenney sought and was granted Supreme Court review of the 9th District’s decision.
In an opinion authored by Justice Maureen O’Connor, she noted that a majority of the appellate districts that have considered the issue have held that an officer’s unaided visual estimation of a vehicle’s speed is sufficient to sustain a conviction for speeding.
“The Eighth District stands alone in holding that an officer’s visual estimation of the speed of a vehicle is insufficient to support a finding of guilt, and we agree with the courts that have found the opposite,” Justice O’Connor wrote. “Rational triers of fact could find a police officer’s testimony regarding his unaided visual estimation of a vehicle’s speed, when supported by evidence that the officer is trained, certified by OPOTA or a similar organization, and experienced in making such estimations, sufficient to establish beyond a reasonable doubt the defendant’s speed. Independent verification of the vehicle’s speed is not necessary to support a conviction for speeding. The officer’s credibility remains an issue for the trier of fact.”
The Supreme Court affirmed the appeals court judgment and upheld Jenney’s conviction and fine.
Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp.
In his dissent, Justice Terrence O’Donnell wrote that a police officer’s credibility – just like that of any other witness – is to be determined by the jury or other fact-finder, which can believe all, part, or none of the testimony. “Thus, I would assert that a broad standard as postulated by the majority that a trained, certified, and experienced officer’s estimate of speed is sufficient evidence to support a conviction for speeding eclipses the role of the fact-finder to reject such testimony and thus such testimony, if found not be credible, could, in some instances, be insufficient to support a conviction.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
John Kim, 330.434.2000, for Mark Jenney.
Michelle Banbury, 330.472.1511, for the Barberton city prosecutor.
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Summit App. No. 24423, 2009-Ohio-1985. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2420.pdf
(June 2, 2010) The Supreme Court of Ohio today ruled 5-1 that a police officer’s unaided visual estimation of a vehicle’s speed is sufficient to support a speeding conviction without independent verification of the vehicle’s speed if the officer is trained, certified by the Ohio Peace Officer Training Academy or a similar organization, and experienced in visually estimating vehicle speed.
In 2008 motorist Mark Jenney was convicted of speeding based on testimony by Copley police officer Christopher Santimarino that he observed Jenney’s SUV driving in the left lane “at a high rate of speed” which he visually estimated to be about 70 mph.
The 9th District Court of Appeals affirmed Jenney’s conviction on the basis of Santimarino’s visual estimate of his speed. Jenney sought and was granted Supreme Court review of the 9th District’s decision.
In an opinion authored by Justice Maureen O’Connor, she noted that a majority of the appellate districts that have considered the issue have held that an officer’s unaided visual estimation of a vehicle’s speed is sufficient to sustain a conviction for speeding.
“The Eighth District stands alone in holding that an officer’s visual estimation of the speed of a vehicle is insufficient to support a finding of guilt, and we agree with the courts that have found the opposite,” Justice O’Connor wrote. “Rational triers of fact could find a police officer’s testimony regarding his unaided visual estimation of a vehicle’s speed, when supported by evidence that the officer is trained, certified by OPOTA or a similar organization, and experienced in making such estimations, sufficient to establish beyond a reasonable doubt the defendant’s speed. Independent verification of the vehicle’s speed is not necessary to support a conviction for speeding. The officer’s credibility remains an issue for the trier of fact.”
The Supreme Court affirmed the appeals court judgment and upheld Jenney’s conviction and fine.
Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp.
In his dissent, Justice Terrence O’Donnell wrote that a police officer’s credibility – just like that of any other witness – is to be determined by the jury or other fact-finder, which can believe all, part, or none of the testimony. “Thus, I would assert that a broad standard as postulated by the majority that a trained, certified, and experienced officer’s estimate of speed is sufficient evidence to support a conviction for speeding eclipses the role of the fact-finder to reject such testimony and thus such testimony, if found not be credible, could, in some instances, be insufficient to support a conviction.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Contacts
John Kim, 330.434.2000, for Mark Jenney.
Michelle Banbury, 330.472.1511, for the Barberton city prosecutor.
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Thursday, February 08, 2007
Evidence Rule 104
Evidence Rule 104 reads as follows:
RULE 104. Preliminary Questions
(A) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (B). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (emphasis added)
(B) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(C) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require.
(D) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.
(E) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
It seems that Evid. R. 104 would give attorneys and judges a way to shorten trials. If there were preliminary matters regarding the admissibility of evidence that did not depend on establishing a condition of fact, such matters could be disposed of by filing written motions with supporting documents or having brief summary hearings prior to trial on the admissibility of evidence. An example might be the admissibility of photographs, business records, etc.
In over 20 years on the bench, however, I can only recall a very few times that attorneys have referenced Evid. R. 104 to me regarding admissibility of evidence issues. My recollection is that such references have been during a trial, yet it would seem to be a tool that could be effectively used prior to trial.
Judge James Kimbler
RULE 104. Preliminary Questions
(A) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (B). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (emphasis added)
(B) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(C) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require.
(D) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.
(E) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
It seems that Evid. R. 104 would give attorneys and judges a way to shorten trials. If there were preliminary matters regarding the admissibility of evidence that did not depend on establishing a condition of fact, such matters could be disposed of by filing written motions with supporting documents or having brief summary hearings prior to trial on the admissibility of evidence. An example might be the admissibility of photographs, business records, etc.
In over 20 years on the bench, however, I can only recall a very few times that attorneys have referenced Evid. R. 104 to me regarding admissibility of evidence issues. My recollection is that such references have been during a trial, yet it would seem to be a tool that could be effectively used prior to trial.
Judge James Kimbler
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