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State of Ohio v. Rita Roddy, Case no. 2007-1640
8th District Court of Appeals (Cuyahoga County)
Danielle Moore v. Lorain Metropolitan Housing Authority et al., Case nos. 2007-2106 and 2008-0030
9th District Cout of Appeals (Lorain County)
Cleveland Metropolitan Bar Association v. Kenneth Podor, Case no. 2008-1205
Cuyahoga County
State of Ohio v. Thomas A. Pasqualone, Case no. 2007-2443
11th District Court of Appeals (Ashtabula County)
May State Appeal Trial Court Order Acquitting Defendant Despite Jury’s Guilty Verdict?
State of Ohio v. Rita Roddy, Case no. 2007-1640
8th District Court of Appeals (Cuyahoga County)
ISSUE: When a jury has found a criminal defendant guilty, but the trial court has issued a post-verdict order of acquittal based on a finding that the evidence was insufficient to support a conviction, may a court of appeals hear and decide an appeal by the state challenging the legal reasoning underlying the acquittal order without violating the defendant’s double jeopardy rights?
BACKGROUND: Ohio Criminal Rule 29(C) authorizes a trial court to set aside a jury’s guilty verdict and enter a judgment of acquittal if the court finds that the evidence presented at trial was not sufficient to sustain a conviction for the charged offense. In this case, after a jury returned a guilty verdict on a charge of kidnapping against Rita Roddy of Cleveland, the trial judge granted a Crim.R. 29(C) motion setting aside the verdict and acquitting Roddy based on a finding that the evidence presented by the state was insufficient to sustain her conviction.
The state, represented by the Cuyahoga County prosecutor’s office, sought leave from the 8th District Court of Appeals to appeal the legal reasoning and procedures followed by the trial court in arriving at its acquittal order. The 8th District initially granted leave for the state to pursue an appeal, but subsequently dismissed the case, ruling that Ohio appeals courts are barred by the principle of double jeopardy from reviewing a final order of a trial court that acquits a criminal defendant.
The county prosecutor now asks the Supreme Court to reverse the 8th District’s holding and direct the court of appeals to hear and decide the prosecutor’s claim that the trial judge committed legal and procedural errors in granting the Crim.R. 19(C) order of acquittal. Attorneys for the prosecutor’s office cite a specific provision of state law, R.C. 2945.67(A), that grants courts of appeals discretion to hear post-acquittal appeals by the state of trial court rulings on any legal question in a criminal case “except the final verdict.” In this case, they argue, the state is not asking the 8th District to overturn or vacate the order acquitting Roddy of the kidnapping charge, but is merely seeking a ruling on the propriety of the trial court’s procedures and legal analysis that resulted in that order. They assert that it is vital for courts of appeals to hear and resolve these kinds of appeals, because without an appellate decision identifying the trial court’s actions in Roddy’s case as erroneous, other courts are likely to follow the same flawed reasoning and procedures, resulting in wrongful acquittals in future cases.
The Ohio Attorney General’s Office has entered an amicus curiae (friend of the court) brief in which it goes beyond the position advanced by the prosecutor and urges the Court to hold that a court of appeals may review the validity of a Crim.R. 19(C) acquittal order, and if it finds reversible error, may vacate the order of acquittal and reinstate the jury’s guilty verdict. The attorney general argues that the double jeopardy provisions of the U.S. and Ohio constitutions protect a defendant from facing a second trial for the same offense after having been acquitted. In cases like Roddy’s, she asserts, reversing a trial court’s acquittal order does not expose the defendant to a second trial, but merely reinstates the jury’s verdict from the first trial.
Attorneys for Roddy, supported by an amicus curiae brief filed by the Ohio Public Defender’s Office, argues that R.C. 2945.67, the state law authorizing the state to appeal rulings by trial courts in criminal cases, specifies that the state may not appeal the trial court’s final verdict. They cite this Court’s 1985 holding in State v. Keeton that a directed verdict of acquittal by the trial judge is a “final verdict” which is not appealable by the state either as a matter of right or at the discretion of an appellate court.
They argue further that R.C. 2945.67 gives courts of appeals authority to review a trial court’s decision only where the reviewing court has legal authority to “affirm, modify or reverse” the trial court’s decision. Because courts of appeals are barred from reviewing the state’s appeal of a final verdict, and the trial court’s Crim.R. 19 (C) order acquitting Roddy was its final verdict in her case, they assert, the 8th District was also correct in declining to hear the state’s appeal of that order because it could not “affirm, modify or reverse” the action of the trial court, and therefore any appellate ruling would have constituted a merely “advisory” opinion, which is prohibited by law.
Contacts
Matthew E. Meyer, 216.443.7800, for the Cuyahoga County prosecutor’s office.
William P. Marshall, 614.466.8980, for the Ohio Attorney General’s Office.
John Martin, 614.443.3675, for Rita Roddy.
Is Operation of a Public Housing Authority a ‘Governmental’ or ‘Proprietary’ Function?
Danielle Moore v. Lorain Metropolitan Housing Authority et al., Case nos. 2007-2106 and 2008-0030
9th District Cout of Appeals (Lorain County)
ISSUE: Is the operation of a metropolitan housing authority a “governmental function” entitled to immunity from civil lawsuits under Ohio’s sovereign immunity statute, or a “proprietary function” for which the housing authority may be subject to civil liability?
BACKGROUND: In October 2003, a fire at the apartment of Danielle Moore of Oberlin killed two of Moore’s young children. The apartment was part of a public housing project operated by the Lorain Metropolitan Housing Authority (LMHA).
Moore subsequently filed a wrongful death lawsuit against LMHA and its executive director, Homer Verdin, in the Lorain County Court of Common Pleas. She alleged among other claims that negligence by the authority and Verdin had been a factor in the children’s deaths because a smoke detector in Moore’s apartment had been removed by project employees several days before the fire and not replaced. Both LMHA and Moore filed pretrial motions for summary judgment. The court granted LMHA’s motion, finding that the housing authority was immune from civil liability arising from its operation of the housing project under R.C. Chapter 2744, the state’s political subdivision civil immunity statute.
Moore appealed the trial court’s ruling. On review, the 9th District Court of Appeals reversed the trial court and reinstated Moore’s suit against LMHA, holding 2-1 that LMHA was not entitled to immunity from Moore’s claims because the operation of a public housing project is not a “governmental function” for which political subdivisions have been granted immunity, but is rather a “proprietary function” for which a government agency can be held liable if a plaintiff can show that the agency or its employees acted negligently. The 9th District certified that its ruling was in conflict with decisions of several other appellate districts, which have held that the operation of a public housing project is an immune governmental function.
Attorneys for LMHA argue that operation of a public housing project by a metropolitan housing authority meets the definition of a “governmental function” under R.C. 2744.01(C)(2) because it is “a function that the General Assembly mandates a political subdivision to perform.” In support of that argument, they cite R.C. 3735.31, which authorizes the creation of local and regional public housing authorities and requires such authorities, once created, to “clear, plan and rebuild slum areas ... [and] to provide safe and sanitary housing accommodations to families of low income within that district.”
Attorneys for Moore respond that in adopting R.C. 3735.31 the legislature did not “mandate” the creation of public housing authorities, but merely authorized the director of the Ohio Department of Development, at his discretion, to establish housing authorities in areas where he determines there is a need for them. They also argue that housing projects operated by agencies like LMHA fall within the legal category of non-immune “proprietary” functions because they do not provide a service that can only be performed by a governmental entity, but rather duplicate the services of private landlords who rent property to low-income tenants.
Contacts
Daniel D. Mason, 440.930.4001, for the Lorain Metropolitan Housing Authority.
Joseph F. Salzgeber, 330.725.1199, for Danielle Moore.
Attorney Discipline
Cleveland Metropolitan Bar Association v. Kenneth Podor, Case no. 2008-1205
Cuyahoga County
The Board of Commissioners on Grievances & Discipline has recommended that the Supreme Court suspend the license Cleveland attorney Kenneth Podor for 12 months, with all 12 months of that term stayed on conditions, for violating the state attorney discipline rule that prohibits a lawyer from advancing funds for or guaranteeing the non-litigation related expenses of a client while he is representing that client in pending litigation.
The disciplinary board found that Podor advanced more than $19,000 to clients Carla and Charles White through another business owned by Podor while he was representing the Whites in a pending personal injury lawsuit. The Whites subsequently repaid Podor for the advances, which they used to pay everyday living expenses, from the proceeds of a settlement they later received in the personal injury case.
The Greater Cleveland Bar Association, which prosecuted the complaint against Podor before the disciplinary board, has filed an objection to board’s recommended sanction. The association argues that Podor should receive an actual suspension from practice for six months based on the aggravating factors that he was sanctioned for a prior disciplinary offense in 1995 and that he initially implied to investigators that the money his other business had provided to Carla White was payment for her appearance in a television commercial for that business rather than an advance of living expenses.
Podor responds that his deposition and hearing testimony accurately stated that the monies he provided to the Whites were “a loan” that was to be paid back if and when the Whites, who were longtime personal friends of his, were able to repay it. While acknowledging that his initial responses to the bar association’s inquiries did not accurately disclose his motive for the advances, Podor urges the Court to accept the disciplinary board’s finding that a stayed 12-month suspension is an appropriate and proportional sanction for his misconduct.
Contacts
Ellen S. Mandell, 216.771.7080, for the Cleveland Metropolitan Bar Association.
Joseph E. Rutigliano, 440.995.5130, for Kenneth Podor.
Is Lab Report a ‘Testimonial’ Statement Invoking Defendant’s Right to Confront Technician In Court?
State of Ohio v. Thomas A. Pasqualone, Case no. 2007-2443
11th District Court of Appeals (Ashtabula County)
ISSUES:
- In light of the U.S. Supreme Court’s decision in Crawford v. Washington (2004), is a written crime lab report attesting to the identity and quantity of drugs that were in the possession of a criminal defendant “testimonial” evidence that invokes the defendant’s Sixth Amendment right to confront and cross-examine the technician who prepared the report in court?
- If the defendant’s constitutional right to confront a witness is implicated, is an Ohio statute that authorizes courts to accept written crime lab drug analysis reports as prima facie evidence of the accuracy of their contents unless the defendant has proactively demanded that the technician appear at trial unconstitutional because it does not provide for a defendant’s “knowing, intelligent and voluntary waiver” of his Sixth Amendment right to confront the preparer of the report?
BACKGROUND: This case involves a challenge to a provision of state law that authorizes trial courts to accept written laboratory reports establishing the identity and weight of a drug as prima facie (sufficient on its face) evidence of the accuracy of the test results without requiring the technician who performed the tests to appear in court and face cross-examination by the defendant. The statute in question, R.C. 2925.51, provides that a lab report will be admitted into evidence and presumed accurate without supporting testimony unless the defendant, within seven days after receiving a copy of the report, has filed a demand with the prosecutor that the technician who performed the report appear at trial.
In this case, Thomas Pasqualone of Geneva was stopped by a State Highway Patrol trooper for a minor traffic infraction. In the course of the traffic stop, the trooper determined that Pasqualone was driving while under suspension, and placed him under arrest. While performing a pat-down search of Pasqualone’s pockets pursuant to the arrest, the officer found a cigarette package containing a large “rock” of what appeared to be cocaine. The highway patrol’s crime laboratory subsequently analyzed the rock and issued a report indicating that it was cocaine and weighed 0.446 grams. Pasqualone was charged with one felony count of possession of cocaine. Pasqualone’s attorney was provided with a copy of the report. No demand was filed for the technician who performed the lab test to appear in court.
At trial, the state offered the written lab report into evidence as prima facie evidence of the identity and weight of the drug found in Pasqualone’s pocket. Pasqualone objected, but the trial court overruled his objection and admitted the test results into evidence. He was found guilty by a jury and sentenced to eight months in prison. Pasqualone appealed.
On review, the 11th District Court of Appeals overturned his conviction and remanded the case for a new trial. The court of appeals held that the U.S. Supreme Court’s 2004 decision in Crawford v. Washington bars prosecutors from introducing a “testimonial” out-of-court statement by a witness against a criminal defendant unless the witness is unavailable and the accused has had a prior opportunity to cross-examine that witness. In this case, the 11th District held that the written lab report offered by the prosecutor was “testimonial” because the test was performed and the results offered at trial by the state for the specific purpose of proving the crime with which Pasqualone was charged. By admitting that report into evidence without allowing Pasqualone to confront and cross-examine the technician who performed the test, the court of appeals held that the trial court had denied his Sixth Amendment right to confront witnesses against him.
The state, represented by the Ashtabula County prosecutor’s office, now asks the Supreme Court to reverse the court of appeals and reinstate Pasqualone’s conviction. They urge the Court to follow its holding in State v. Crager (2007) that written reports conveying the results of scientific tests conducted by a crime laboratory “in the normal course of business” are not “testimonial” in nature and do not implicate a defendant’s Sixth Amendment right to confront witnesses, but rather qualify as “business records” that are admissible as evidence under a specific exception to the rule that bars hearsay evidence.
They argue that Pasqualone and his attorney had the opportunity to require the technician who prepared the lab report to testify and be cross-examined, but made a tactical decision not to do so when they did not enter a demand with the prosecutor to examine that witness within seven days pursuant to R.C. 2925.51.
Attorneys for Pasqualone argue that it is irrelevant whether the lab report in this case qualifies as a “business record” because the U.S. Supreme Court’s holding in Crawford changed the standard for admissibility of out-of-court statements from whether a written statement was reliable to a new standard of whether or not the statement was testimonial in nature. While the Crawford decision did not provide a detailed analysis of what types of statements are testimonial, they urge the Court to follow its holding in a 2006 decision, State v. Stahl, that a statement is testimonial if it was elicited for the purpose of supporting a criminal prosecution and the declarant had a reasonable expectation that his statement would be used in court. In this case, they assert, the lab report was testimonial because the sole purpose and intent of the test was to produce prosecution evidence for use in court that identified the material in Pasqualone’s possession as an illegal drug and established the amount of that drug he possessed.
They also argue that, if the lab report was a testimonial statement under Crawford, Pasqualone had a clear constitutional right to confront and cross-examine the technician who conducted the drug tests at trial, and he did not “knowingly, intelligently and voluntarily” waive that right simply by failing to proactively assert it by filing a demand with the prosecutor within seven days after receiving the report.
Contacts
Shelly M. Pratt, 440.576.3664, for the state & Ashtabula County prosecutor’s office.
Deborah L. Smith, 330.393.1584, for Thomas Pasqualone.
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court 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.