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State of Ohio v. Terry Oliver, Case no. 2005-1967
8th District Court of Appeals (Cuyahoga County)
Harry Gehm v. Timberline Post & Frame v. Westfield Insurance Co., Case nos. 2005-2137 and 2005-2384
9th District Court of Appeals (Summit County)
State of Ohio v. Paul Buehler, Case no. 2005-2336
8th District Court of Appeals (Cuyahoga County)
State of Ohio v. Dean Dillon, Case no. 2005-2350
5th District Court of Appeals (Delaware County)
State of Ohio v. Terry Oliver, Case no. 2005-1967
8th District Court of Appeals (Cuyahoga County)
ISSUE: When police officers serving a search warrant for a home knock and announce their identity, does non-response after 30 to 60 seconds by occupants who are visible to officers through a window constitute an implicit “refusal of admittance” and thus justify forcible entry?
BACKGROUND: This case involves the actions of Cleveland SWAT team officers who executed a search warrant for a residence where drug trafficking was suspected. Officers serving the warrant came to the residence shortly after midnight. After knocking on an outer security door and announcing “ Cleveland police, search warrant,” officers found that door unlocked, opened it, and knocked again on a locked front door while repeating their announcement.
Because lights were on inside the house, officers could see two occupants of the house through a window, one lying on a couch and the other sitting in a chair facing away from them. When neither man moved in response to their knocks and announcements after 30 to 60 seconds, the officers used a battering ram to forcibly enter the home. After securing the home and its occupants for safety, police conducted a search in which they found marijuana, currency and a loaded.45-caliber handgun. The handgun was found on a sofa where one of the occupants, Terry Oliver, had been sleeping when officers entered the house. Oliver was subsequently indicted on felony drug charges.
Oliver's attorneys filed a pretrial motion to suppress the evidence obtained from the search, arguing that the police had not made a reasonable effort to alert the occupants to their presence and the purpose of their visit before making a forcible entry. The trial court granted the motion to suppress, finding that nothing the officers observed after they knocked gave them reason to suspect that the residents were knowingly refusing to admit them, and that they should have made additional efforts to awake the residents and enter the house peacefully before forcing their way in. On review, the 8th District Court of Appeals affirmed the ruling of the trial court.
Attorneys for Cleveland ask the Supreme Court to overrule the trial and appellate courts and reinstate the evidence against Oliver. They cite the language of R.C. 2935.12, which allows police serving a warrant to enter forcibly when they are “refused admittance” after knocking and notifying occupants of their intent. They urge the Justices to follow the U.S. Supreme Court's 2003 decision in U.S. v. Banks, which held that, where a warrant involves suspected drug trafficking and a possibility of armed suspects, a delay of 15 to 20 seconds was a reasonable interval between knocking and forcible entry to prevent occupants from disposing of evidence and/or arming themselves after police have announced their presence. They also note that, while the occupants of the living room who could be seen did not move after the officers knocked and identified themselves, police had no way of knowing whether other, unseen occupants were destroying evidence or retrieving weapons in other parts of the house.
Oliver's attorneys respond that the trial and appellate court decisions should be affirmed based on the specific facts of this case, which include that police came to Oliver's residence in the middle of the night, that they had visual confirmation that the occupants of the living room had not been alerted by their initial knocking or announcement, and that the occupants were clearly not destroying evidence or engaging in any other activity that would justify an immediate forcible entry. They point out that the execution of a warrant in U.S. v. Banks took place during daylight hours, and that the police in that case had no visual evidence from which to determine the awareness or actions of the occupants after they knocked. They argue that the ruling in Banks that 15 or 20 seconds was a reasonable time for officers to wait before forcing entry was based on those facts, which are materially different than the facts in this case.
Contacts
T. Allan Regas, 216.443.7800, for
the State of Ohio and Cuyahoga County prosecutor's office.
Christopher J. Pagan, 513.424.1823, for Terry Oliver.
Harry Gehm v. Timberline Post & Frame v. Westfield Insurance Co., Case nos. 2005-2137 and 2005-2384
9th District Court of Appeals (Summit County)
ISSUE: When a trial court denies a motion to intervene in a civil case by an insurance company, which seeks to participate in discovery and submit jury interrogatories based on insurance coverage issues, is that denial a “final appealable order” eligible for immediate review by a court of appeals?
BACKGROUND: In this case Westfield Insurance Co. issued a commercial general liability policy to Timberline Post and Frame, a company that erects agricultural and commercial structures. During Timberline's construction of a barn on the property of customer Harry Gehm, the structure collapsed.
Gehm filed suit in the Summit County Court of Common Pleas, alleging that the collapse was caused by Timberline's failure to perform in a workmanlike manner and seeking a variety of civil damages.
Westfield defended Timberline against Gehm's claims, but subsequently filed a separate court action seeking a declaratory judgment that the Westfield policy provided no coverage to Timberline or Gehm. Among other arguments, Westfield asserted that its policy specifically excluded coverage for any damages arising out of negligent work performed by Timberline. In addition to its declaratory action, Westfield also applied to intervene as an interested party in Gehm's suit against Timberline. The trial court denied the motion to intervene. Westfield attempted to appeal, but the 9th District Court of Appeals held that it lacked jurisdiction to review the trial court's denial of intervention. The district court held that the lower court's ruling was not a “final, appealable order” because it did not dispose of the underlying action or prevent the trial court from reaching a judgment on Gehm's claims against Timberline. Westfield has appealed the 9th District's denial of jurisdiction to the Supreme Court.
Attorneys for Westfield argue that the insurer's appeal should have been accepted by the 9th District because the trial court's order denying intervention falls within the statutory definition of a “final, appealable order.” Specifically, Westfield asserts that it may be legally bound by the jury's findings of liability and damages in the Gehm-Timberline suit. The company argues that, by preventing it from submitting questions to the Gehm-Timberline jurors, the trial court order prevents Westfield from determining if some of all of the liability assessed against Timberline by those jurors is based on negligent acts or omissions – a factual question they say is crucial to whether all, some or none of the damages that are assessed against Timberline are covered under the terms of Westfield's policy.
Gehm did not submit a brief in the case within the Supreme Court's filing deadline. Pursuant to the Court's procedural rules, he will not participate in oral argument. The Ohio Academy of Trial Lawyers has filed an amicus curiae (friend of the court) brief urging the Court to affirm the 9th District's denial of jurisdiction to hear Westfield's appeal. They assert that Westfield's attempt to intervene in the Gehm-Timberline suit is symptomatic of a recent “stealth” tactic by insurance companies to avoid paying claims without having to defend a policyholder's lawsuit. They say this is accomplished by insurers intervening in plaintiffs' suits against a policyholder and getting jurors to answer interrogatories that effectively exonerate the insurer from coverage without the jury being aware that its answers are being used for that purpose.
In a responsive brief, Westfield argues that intervention in claimant's suits is a proper and necessary tactic, and points out that the only legal question the Supreme Court has agreed to review is whether a trial court's denial of an insurer's motion to intervene for the purposes set forth in this case is or is not subject to immediate appellate review.
Contacts
Cari Fusco Evans, 330.244.0997, for
Westfield Insurance Co.
Eric J. Stecz, 330.253.5060, for Harry Gehm.
State of Ohio v. Paul Buehler, Case no. 2005-2336
8th District Court of Appeals (Cuyahoga County)
ISSUE: Before a court requires a prosecutor to search for and report on surviving biological evidence from an convicted offender's crime, must the offender first show that DNA test results excluding him as the source of the biological material would have resulted in his acquittal?
BACKGROUND: In 2003, the Ohio General Assembly enacted legislation (S.B. 11) allowing prison inmates who were convicted of certain crimes before current DNA testing techniques were perfected to apply to the trial court for post-conviction genetic testing. These tests compare the prisoner's DNA against any surviving biological evidence that was recovered from the victim or scene of the inmate's crime.
One provision included in that legislation, R.C. 2953.74(B), states that a court shall grant a prisoner's application for genetic testing only if the applicant can show that DNA test results excluding him as a possible source of the crime scene biological material would have “determined the outcome” of his trial (i.e., resulted in his acquittal of the crime for which he was convicted). A separate provision of the statute, R.C. 2953.75, states that “if an eligible inmate submits an application for DNA testing,” the trial court is required to order the prosecuting attorney to search for and report on the existence, type and condition of any surviving biological material that was gathered from the victim or scene of the crime for which the inmate was convicted.
In this case, prisoner Paul Buehler and an acquaintance, Rodney Hedrick, were convicted of aggravated murder for their respective roles in the 1985 bludgeoning death of their landlady, Joan O'Brien of Cleveland. As part of a plea bargain to avoid a death penalty specification, Hedrick testified as a state witness at Buehler's trial. He told the jury that Buehler held O'Brien while Hedrick struck her repeatedly in the head with a hard rubber mallet. Both defendants were convicted and Buehler was sentenced to consecutive prison terms of 20 years to life.
Following the enactment of S.B. 11, Buehler applied to the Cuyahoga County Court of Common Pleas seeking DNA testing of scrapings retrieved from O'Brien's fingernails by medical examiners. The court rejected his application without ordering the county prosecutor to search for the fingernail scrapings or any other biological evidence taken from the crime scene for possible testing. The trial judge ruled that, before the prosecutor could be required to initiate a search for surviving biological evidence to be tested, Buehler was required to first make a R.C. 2953.74(B) showing that DNA test results would have prevented his conviction. The court held that Buehler had not met this test because, even if testing of the scrapings from the victim's fingernails revealed that tissue came exclusively from Hedrick, that finding would not have disproved the state's trial argument that O'Brien had been attacked at close range by both Buehler and Hedrick.
On review, the 8th District Court of Appeals reversed the trial court's decision. The appellate panel ruled 2-1 that R.C. 2935.75 required the court to order the prosecutor to search for and report on the existence and availability of remaining biological material from the crime scene “prior to making its decision on an inmate's application.” The Cuyahoga County prosecutor has appealed the 8th District's decision to the Supreme Court, citing a conflicting holding by the 9th District in a 2005 case, State v. Wilkins.
Attorneys for the prosecutor ask the Court to reinstate the trial court decision denying Buehler's application for testing. They argue that the legislature intended for the requirements of the genetic testing statute to be applied sequentially, i.e. that trial courts should first require an inmate seeking testing to make an R.C. 2853.74(B) showing that test results excluding him as the source of crime scene material would have “determined the outcome” of his trial. They assert that only if this first test is passed should a court order the prosecutor to conduct a potentially lengthy and expensive search for surviving crime scene evidence that, in cases like Buehler's, may be 20 or more years old. Since the trial judge in this case found that test results excluding Buehler as the source of scrapings from the victim's fingernails would not have clearly exonerated him of participating in the murder, they assert, the judge was not legally required to go on to the second step of the process.
Attorneys for Buehler respond that nothing in the language of the genetic testing statute requires or even allows trial courts to apply one test or set of requirements for granting testing before they apply another, equally mandatory, test or criterion. They say that, under the plain language of the statute, a trial judge is required to order a prosecutor to search for biological evidence “if an eligible inmate submits an application.” They argue that if the legislature had intended the “outcome determination” test to be applied as a prior requirement before a prosecutor could be compelled to search for testable evidence, it could easily have said so in the statute, but did not. In the absence of such language, they assert, the state has cited no precedent for its argument that one statutory requirement should be imposed as a prior condition to another simply because the first requirement appears earlier in the statute.
Contacts
Mary H. McGrath, 216.443.7800, for the
State of Ohio and Cuyahoga County prosecutor's office.
James R. Foley, 614.466.5394, for Paul Buehler.
State of Ohio v. Dean Dillon, Case no. 2005-2350
5th District Court of Appeals (Delaware County)
ISSUE: When a prison warden fails to serve an inmate with a copy of an indictment or give the inmate a statutorily required written notice that he has been indicted on new charges and has the right to request a disposition of those charges within 180 days, does the inmate's “actual knowledge” that charges are pending against him relieve the state of its duty to actually serve him with the indictment and stop the 180-day speedy trial time limit from running?
BACKGROUND: While he was incarcerated in Franklin County awaiting return to prison for a parole violation, Dean Dillon was indicted in Delaware County on new charges of robbery, burglary and theft. A Delaware County detective and assistant prosecutor visited Dillon in jail and tried to question him about the new charges, but he declined to talk to them without counsel and they did not give him a copy of an indictment.
On Feb. 4, 2004, the Delaware County Sheriff faxed a copy of the indictment to the Ohio Corrections Reception Center, where Dillon then was housed, and requested that the warden serve Dillon with a copy and notify him in writing of his right to request a disposition of the new charges within 180 days under Ohio's ‘speedy trial' statute. Dillon was not given a written copy of the indictment or a written notice of what he needed to do to assert his speedy trial rights.
On Aug. 13, 2004, Dillon was arraigned in the Delaware County Court of Common Pleas and at that time was given a written copy of the indictment specifying the charges against him. His attorney filed a motion to dismiss on the basis that the 180-day speedy trial time limit for the state to prosecute those charges had expired. The trial court denied the dismissal motion. Dillon then entered a plea of no contest to one count of burglary and was sentenced on that charge, but appealed the denial of his speedy trial claim to the 5th District Court of Appeals. The 5th District vacated his conviction, holding that the state had failed to meet a “bright line” statutory duty under R.C. 2941.401 to have Dillon served in prison with the indictment and notified in writing of his speedy trial rights. Because of that failure, the court of appeals held that the 180-day period had begun running on Feb. 4, 2004, and had expired before Dillon's Aug. 13, 2004 arraignment.
Attorneys for Delaware County now ask the Supreme Court to overrule the 5th District and reinstate Dillon's conviction and sentence. They argue that under Ohio case law, including the Supreme Court's 2004 ruling in State v. Hairston, notwithstanding the state's failure to actually serve an inmate with a copy of an indictment, the inmate is barred from claiming that he was denied a speedy trial when he had actual knowledge that new charges had been filed against him while he was incarcerated, but took no action to initiate a request for disposition of those charges. In this case, they assert, Dillon was notified of the Delaware County charges pending against him when he was visited by a sheriff's deputy and assistant prosecutor in the Franklin County jail, but made no effort to file the required paperwork seeking disposition of his case within 180 days. Once Dillon had actual knowledge of the new charges pending against him, the state argues, the 180-day speedy trial “clock” did not begin to run until Dillon took the affirmative step of filing a written request for disposition of his case.
Attorneys for Dillon respond that R.C. 2941.401 imposes a clear duty on the state to see that, when new charges are brought against a current inmate, the warden of the institution where the defendant is incarcerated must serve the accused with a copy of the indictment specifying the new charges against him, and must notify the inmate in writing that he has a right to seek disposition of those charges within 180 days, including an explanation of what the inmate must do to initiate a speedy trial request. They note that the state admits that Dillon was not served as required under the statute, and argue that in the Hairston case the state presented evidence that it could not locate the defendant within the penal system until after the speedy trial deadline had expired, whereas in this case the state knew where Dillon was and had every opportunity to comply with the law but failed to do so.
Contacts
Marianne Hemmeter, 740.833.2690, for
the State of Ohio and Delaware County prosecutor's office.
Jeffrey P. Ulrich, 614.899.6868, for Dean Dillon.
These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.