Oral Argument Previews

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Wednesday, Oct. 19, 2011

Please note that Wednesday's oral argument session will be held in the Highland County Courthouse in Hillsboro. As seating in the courtroom is limited, please remember that all oral arguments sessions can be viewed live online. Go to the Supreme Court's website at www.sc.ohio.gov to access to link to watch oral arguments live.

State of Ohio v. Toneisha Gunnell, Case no. 2010-1636
2nd District Court of Appeals (Clark County)

Alvin D. Jackson, M.D., Ohio Department of Health v. Bartec, Inc., et al., Richard Cordray [Mike DeWine], Ohio Attorney General, Case no. 2011-0019
10th District Court of Appeals (Franklin County)

State of Ohio v. Sudina Johnson, Case no. 2011-0033
12th District Court of Appeals (Butler County)

State of Ohio v. Richard E. Dunn, Case no. 2011-0213
2nd District Court of Appeals (Montgomery County)

Did Trial Court Establish 'Manifest Necessity' for Mistrial Before Ordering New Trial in Murder Case?

State of Ohio v. Toneisha Gunnell, Case no. 2010-1636
2nd District Court of Appeals (Clark County)

ISSUE:  After learning that a juror in a criminal case had done improper independent research after jury deliberations were underway, did the trial judge violate the defendants’ double jeopardy rights by granting a motion by the state for a mistrial without first examining the juror regarding her ability to disregard the results of her improper research or conducting a hearing at which double jeopardy issues and alternatives to a mistrial were thoroughly considered?

BACKGROUND: Toneisha Gunnell and three other Columbus women were charged with murder, involuntary manslaughter, aggravated robbery and theft based on a 2005 incident in which their car struck and killed a pedestrian while they were fleeing a security officer after shoplifting clothing from a Springfield mall. After striking the victim, the women did not stop immediately but abandoned the car nearby, leaving stolen merchandise and their fingerprints in the car. The following day, the women turned themselves in to Columbus police.

Gunnell and the other defendants were tried in the Clark County Court of Common Pleas and found guilty on all charges in November 2005, but their convictions were later voided on appeal because of errors in the jury selection process. 

A second joint trial was conducted in 2007. After the state and defense had presented all of their evidence and the jury had begun its deliberations, the court’s bailiff discovered that during an overnight break one of the jurors had conducted her own independent research into some legal terms at issue in the case.  Before that juror had shared any information from her research with any of the other jurors, the trial judge called her into the courtroom and questioned her in the presence of the defendants and attorneys for both sides about what specific information she had obtained through her research. The witness said she had looked up the meaning of the word “perverse,” which was part of the definition of “recklessness” that the court had given the jury in explaining the crime of involuntary manslaughter, and had also printed out a legal website’s hypothetical illustration of a crime that would qualify as “involuntary manslaughter.” 

Without asking the juror any further questions, the judge asked counsel for the state and the defendants what their positions were with regard to the misconduct of the juror.  The judge then stated that in his opinion the juror who conducted the research had been “irreparably tainted” by the information she had obtained, resulting in “substantial prejudice” to the state.  The judge went on to state  that based on his assessment of the juror at issue, if  questioned about her ability to disregard the results of her research she would “try to be accommodating” and “say all the right things,” but that the judge “(didn’t) know if (he) could be convinced that she’s going to be able to put this out of her mind.” 

After the judge’s statement and a brief recess, the state moved for a mistrial based on juror misconduct. Counsel for the defendants objected, asking the court to consider remedies short of a mistrial.  The court overruled the defendants’ objection and granted the state’s motion for a mistrial.

The defendants then filed a motion to bar a new trial and dismiss the indictments against them on double jeopardy grounds. They argued that the state had already had a full and fair opportunity to prosecute them, and the trial court had abused its discretion by declaring a mistrial without properly considering other reasonable remedies. The trial court denied that motion and proceeded with a third trial, at which Gunnell and her codefendants were found guilty and sentenced to prison terms of from 18 years to life.

Gunnell appealed, asserting among other arguments that the trial court had erred by denying the motion to bar a third trial and dismiss her indictment on double jeopardy grounds. On review, the 2nd District agreed with Gunnell’s argument and ordered that her convictions and sentence from the third trial be vacated and the charges against her be dismissed without further prosecution. In its opinion, the court of appeals cited prior court decisions holding that a defendant’s double jeopardy rights are violated when a trial court declares a mistrial over the defendant’s objections without conducting a sufficient inquiry to establish that there was a “manifest necessity” for the mistrial.

The state sought and was granted Supreme Court review of the 2nd District’s decision.

Attorneys for the state argue that trial courts have broad discretion in granting or denying motions for mistrial, and say the standard adopted by the 2nd District improperly infringes on that discretion by imposing a prescribed “script” and mandatory procedural steps that trial judges must follow before they are permitted to declare a mistrial without triggering double jeopardy. They argue that the trial judge in this case was in the best position to determine whether the information improperly referenced by the offending juror would inevitably prejudice her against the state regardless of any curative instruction, and say the rationale set forth in the trial court’s entry declaring a mistrial was more than sufficient to meet the “manifest necessity” requirement required to allow a new trial.

Attorneys for Gunnell respond that the 2nd District’s decision did not impose any new or arbitrary requirements on trial courts, but merely followed a line of federal and state double jeopardy cases that have set minimum procedural standards that trial courts must meet to establish the manifest necessity of a mistrial − and thereby allow a defendant to be prosecuted again for the same crime. In this case, they assert, the 2nd District correctly held that the trial judge did not establish the manifest necessity of a mistrial because he declared a mistrial without asking any questions to the offending juror about her recollection or understanding of the information she obtained or her ability to disregard that information, without examining her to establish what if any prejudice to either side might result from her exposure to that information, and without any meaningful opportunity for opposing counsel to present arguments for and against possible alternative remedies short of a mistrial.

Andrew R. Picek, 937.521.1770, for the state and Clark County prosecutor's office.

James N. Griffin, 937.322.5242, for Toneisha Gunnell.

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Do Health Department's Practices in Enforcing Statewide Smoking Ban Violate Bar Owner's Constitutional Rights?

Alvin D. Jackson, M.D., Ohio Department of Health v. Bartec, Inc., et al., Richard Cordray [Mike DeWine], Ohio Attorney General, Case no. 2011-0019
10th District Court of Appeals (Franklin County)

ISSUE: Do the practices of the Ohio Department of Health (ODH) and its designated local enforcement agencies in enforcing the state law that bans smoking in public places violate the provisions of the Ohio Constitution that: 1) prohibit governmental taking or unreasonable restrictions on the use of private property without due process of law; and 2) limit the power of executive agencies charged with enforcing a state law to the actual language of the statute.

BACKGROUND: In November 2006 Ohio voters approved State Issue 5, the Smoke Free Workplace Act, a ballot initiative that imposed a statewide ban on smoking inside public buildings and workplaces including bars and restaurants. The act, which was codified as R.C. Chapter 3794, conferred primary authority on ODH to enforce the smoking ban and authorized ODH to develop administrative rules to implement the law. It also authorized ODH to designate local health departments as its agents to enforce the act in their respective districts.

In 2007, following the adoption of administrative rules, ODH and local health departments began enforcing the law.  Under those rules, enforcement activity is triggered by complaints received by ODH or a local health department over a telephone “tip line” about smoking in a specific establishment or workplace. Upon receiving a tip, ODH sends the proprietor a notice and sends an enforcement agent to conduct an on-site investigation and interview the proprietor of the establishment. If no violation is observed at that time, the complaint is dismissed.  If a violation is observed, the proprietor is issued either a Warning Letter (for a first offense) or a Fine Letter (for subsequent offenses). Progressively larger fines are imposed for successive violations.

Between July 2007 and September 2009, a Columbus bar called Zeno’s and its owner/proprietor Richard Allen, d.b.a. Bartec, Inc., were issued 10 violation letters and assessed fines totaling $33,000 after agents of the Columbus Health Department responding to tip-line complaints repeatedly observed patrons smoking in view of bar employees and on several occasions found that no-smoking signs were not posted and ashtrays were present in violation of state law. Zeno’s did not pursue administrative appeals of eight of the violations, which became final orders at the expiration of the appeal period. Two of the violations were challenged but upheld on administrative appeal.  Zeno’s appealed those rulings to the Franklin County Court of Common Pleas. The violations were affirmed by the court and became final orders after Zeno’s failed to file briefs or submit arguments in support of its appeals.

After receiving no payment from Zeno’s for any of its fines for two years, ODH filed suit in common pleas court seeking an injunction ordering  Allen and Bartec to comply with the law and pay the bar’s outstanding fines. Zeno’s countersued seeking a declaratory judgment that the department’s enforcement practices were contrary to law and an injunction barring  the state Attorney General from pursuing collection of the delinquent fines. The trial court denied ODH’s petition and granted a declaratory judgment in favor of Zeno’s in which it vacated all 10 of the bar’s prior violations and dismissed the unpaid fines.  The court based its decision on a finding that ODH had gone beyond the requirement of the law that Zeno’s “shall not permit” smoking and had improperly issued citations to the proprietor without first determining whether bar staff had asked patrons to stop smoking.

The state appealed.  On review, the 10th District Court of Appeals reversed the trial court, reinstated Zeno’s violations and directed the trial court to issue the injunction sought by ODH ordering Zeno’s to comply with the law and pay its delinquent fines.  Zeno’s sought and was granted Supreme Court review of the 10th District’s judgment.

Attorneys for Zeno’s advance three allegations of error by the 10th District and ask the Court to reinstate the trial court’s declaratory judgment voiding their violations and unpaid fines.  They argue that:

  1. ODH violated the separation of powers between the legislative and executive branches of state government by adopting an unwritten enforcement “rule” or policy that goes beyond the statutory requirement that proprietors “shall not permit” smoking, and instead holds proprietors strictly liable for all violations observed in their establishments without determining whether the proprietor was aware of the observed smoking, or had informed the offending patron that smoking was not permitted on the premises.
  2. The smoking ban statute is unconstitutional on its face because it arbitrarily requires the owners of some types of property to ban smoking on their premises but does not impose that requirement on owners of other property such as nursing homes, hotels and family-owned and operated businesses.  They also assert that a law banning smoking in establishments such as Zeno’s, where only adults are admitted and the presence of alcohol and tobacco smoke are traditional conditions known to patrons in advance, imposes an unreasonable restriction on the use of private property that amounts to a  governmental “taking” of the owner’s rights without compensation.
  3. They also assert that the 10th District erred when it held that Zeno’s could not pursue a declaratory judgment action to seek relief from final judgments, because those judgments were for  violations of an unconstitutional statute and therefore invalid from the moment they were issued.

Attorneys for ODH respond that:

  1. When the smoking ban ballot issue was passed, the language approved by voters clearly indicated intent to impose a health and safety regulation on employers, including the proprietors of restaurants and bars, to provide workers and customers in their establishments with an environment free of the proven health hazards of second-hand smoke. They point out that workplace safety  regulations impose an affirmative duty on proprietors to prevent a dangerous condition on their premises, and note that the statute specifically states that a proprietor can be found guilty of violations without a showing that those violations are intentional.
  2. They assert that the smoking ban statute does not prevent Zeno’s owner from using his property as a bar or “take” it for any governmental purpose, but merely exercises the police power of the state to set health and safety regulations for facilities used by the public. They assert that enforcing  the smoking ban against Zeno’s is no different than enforcing other safety regulations that set rules for sanitary food  preparation, proper refrigeration of meat, and the number of patrons that can be safely accommodated in the building.
  3. With regard to the applicability of the Declaratory Judgment Act to Zeno’s smoking ban violations,  ODH argues that Zeno’s had every opportunity to raise its constitutional arguments in direct appeals of the violation letters it received from ODH, but failed to do so within the statutory time limit.  They point to multiple prior court decisions holding that a party who fails to exhaust available administrative remedies cannot later use a declaratory judgment action to resurrect arguments it has waived through inaction.

Alexandra T. Schimmer, 614.995.2273, for the Ohio Department of Health.

Maurice A. Thompson, 614.340.9817, for Zeno's, Bartec, Inc. and Richard Allen.

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Does Extended GPS Tracking of Suspect's Movements Without Warrant Violate Constitutional Privacy Rights?

State of Ohio v. Sudina Johnson, Case no. 2011-0033
12th District Court of Appeals (Butler County)

ISSUE:  Did the continuous tracking and recording of a suspect’s movements by police over a six-day period, including travel outside Ohio, by attaching a concealed GPS transmitter to his vehicle without obtaining a warrant to do so constitute an unreasonable search that violated the suspect’s constitutional rights?

BACKGROUND: Based on tips from informants, detective Mike Hackney of the Butler County Sheriff’s Office suspected that Sudinia Johnson of Hamilton had previously engaged in drug trafficking and was likely to use a van that he owned to transport illegal drugs in the near future.

Without obtaining a warrant, Hackney and other officers went to Johnson’s neighborhood late at night and found a white Chevy van registered in Johnson’s name parked across from his home. Hackney surreptitiously attached a battery-powered global positioning system (GPS) transmitter to the underside of the van. By monitoring the geographic location of the transmitter via a secure website, officers were able to remotely track and record all movements of the van for an indefinite period, limited only by the battery life of the transmitter.

During the first five days of monitoring, the van remained in the Hamilton area.  On the sixth day, the van was tracked to Calumet City IL, a suburb of Chicago. Through a contact with Chicago-area law enforcement, Hackney was able to have a retired officer verify the physical location of the van at a Calumet City shopping center and follow it to a private residence.  Johnson later exited the house and got into his van carrying a package. A second man, later identified as Otis Kelly, emerged from the house’s garage driving a second vehicle. The two vehicles then drove in tandem down I-65 from Chicago toward Hamilton with the retired officer following them to maintain visual contact and Butler County officers monitoring the van via GPS.  Hackney alerted other Butler County deputies and enlisted backup from other area law enforcement agencies to help intercept the two vehicles when they entered Ohio.  The car and van separated before crossing into Ohio. Officers were able to continue tracking Johnson’s van via the GPS unit while the retired officer maintained visual surveillance of Kelly’s car.

As soon as both vehicles had crossed into Ohio, Hackney directed responding officers to stop both if they “were able to find probable cause to make a stop.”  After an officer observed the van make an improper lane change, Johnson was pulled over. Johnson was removed from the vehicle and placed in the back seat of a sheriff’s cruiser. Johnson consented to a search of the van, which was found to contain no illegal drugs. Officers then transported Johnson a short distance away to the location at which Kelly’s car had been stopped. During a search of Kelly’s vehicle officers found a concealed compartment in the trunk that contained seven kilograms of cocaine. A key that opened the hidden compartment was found in Johnson’s possession.

Johnson was charged with felony drug trafficking. During pretrial proceedings, Johnson moved to suppress all evidence obtained through the GPS tracking of his vehicle, arguing that Hackney’s warrantless attachment of a GPS unit to his van and continuous tracking of his movements  over six days constituted an unreasonable search that violated his right to privacy under the U.S. and Ohio Constitutions.  The trial court overruled the motion to suppress. Johnson subsequently entered a plea of no contest and was sentenced to 15 years in prison.

Johnson appealed the denial of his motion to suppress the GPS-based evidence. The 12th District Court of Appeals affirmed the trial court’s decision. In its decision, the court of appeals cited the U.S. Supreme Court’s 1983 holding in United States v. Knotts that tracking a crime suspect by means of an electronic beeper did not constitute an unconstitutional search, and other decision holding that a person driving a vehicle on public roadways has no reasonable expectation of privacy with regard to the location of his vehicle.

Johnson sought and was granted Supreme Court review of the 12th District’s decision.

Attorneys for Johnson argue that the Knotts court did not consider the constitutionality of continuous warrantless tracking and recording of every movement of a suspect over an extended period of days, but rather considered the use of an unsophisticated 1980’s beeper device to insure that officers who were already conducting personal surveillance of a suspect’s vehicle during a single trip would be able to reacquire it if they lost visual contact. 

They urge the Court to follow a 2010 ruling of the U.S. Court of Appeals for the District of Columbia Circuit, United States v. Maynard, in which that court held that Knotts was not controlling precedent in a similar case because prolonged and continuous police surveillance of a suspect by means of a GPS device was an invasion of privacy sufficiently intrusive to require the prior review and approval of a judge and issuance of a warrant. They point out that current GPS technology allows police to precisely monitor and record the movements of a subject not only when he or she is driving on public roads, but also on private property where police could not legally intrude without a warrant.  They argue that in light of the minor delay or inconvenience typically required to obtain a warrant, other than in emergency situations police should not have unlimited discretion to conduct such intrusive surveillance of private citizens without prior judicial review and approval.

Attorneys for the Butler County prosecutor’s office urge the Court to affirm the 12th District’s finding that, like the suspect in Knotts, Johnson had no reasonable expectation of privacy while driving his vehicle in full view of the public, and therefore police surveillance of his van did not require a warrant regardless of whether that surveillance was conducted by an officer who physically followed him or by means of GPS technology. They point out that lawbreakers routinely make use of the latest technologies to increase their chances of escaping detection and avoiding arrest, and argue that imposing unnecessary restrictions on police uses of GPS and similar tools places officers protecting the public at a disadvantage at a time when they need to make the most efficient possible use of available manpower and technical resources.

NOTE: A joint amicus curiae (friend of the court) brief supporting the position of Sudinia Johnson has been submitted by a number of organizations representing the criminal defense bar, including the National and Ohio Associations of Criminal Defense Attorneys, the Ohio Public Defender’s Office and the American Civil Liberties Union of Ohio.

William R. Gallagher, 513.651.5666, for Sudinia Johnson.

Michael A. Oster Jr., 513.887.3474, for the state and Butler County prosecutor's office.

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When Vehicle Stop Based on Police Radio Alert, Must State Show Dispatcher Had Reasonable Basis for Alert?

Where Intent of Stop Was to Prevent Suicide, Rather Than Apprehend Criminal

State of Ohio v. Richard E. Dunn, Case no. 2011-0213
2nd District Court of Appeals (Montgomery County)

ISSUE: When a police officer conducts an emergency stop of a vehicle in response to a radio alert that is not based on any observed or reported criminal activity by the driver, but the driver is later charged with a crime based on evidence police obtained through the traffic stop, if the driver moves to suppress that evidence, must the state make a showing at a suppression hearing that the dispatcher who issued the radio alert had a reasonable basis to believe there was an emergency situation that justified stopping the vehicle?

BACKGROUND: This case arose from a March 2007 incident in which the Vandalia police department received a telephone call from a private citizen indicating that Richard Dunn was currently driving an oversized  “big rig” tow truck to an address on Helke Rd. in Vandalia. The caller said that Dunn was emotionally distraught, and she believed he was armed and planned to commit suicide when he arrived at his destination. The police dispatcher issued an immediate “hot call” dispatching officers to the Helke Rd. address.

Within a short time after receiving the dispatch, Officer Robert Brazel spotted the truck described by the dispatcher driving toward Helke Rd. and followed it until a  backup unit joined him. Brazel and the other officer then turned on their sirens and lights, stopped the tow truck, and approached it with their guns drawn. Dunn, who was talking to someone on a cell phone and crying, emerged from the truck with his hands in the air and cooperated with the officers as they patted him down and handcuffed him. 

As Brazel walked with him toward a cruiser, Dunn volunteered the information that there was a gun in the glove compartment of the truck. Police subsequently found a loaded handgun in the glove compartment.

Dunn was indicted for improper handling of a firearm in a motor vehicle, a fourth-degree felony. During pretrial proceedings, Dunn filed a motion to suppress the evidence obtained through the police stop and search of his vehicle, arguing that the stop was not constitutionally permissible because neither the dispatcher who broadcast the radio alert nor the officers responding to it had probable cause to believe that Dunn had violated any law. The trial court conducted a hearing on the motion to suppress.  At that hearing, the only witness called by the state was Officer Brazel, who testified about receiving the radio alert and his resulting stop of Dunn’s truck. Brazel indicated that he had no conversation with the police dispatcher beyond verifying the broadcast description of Dunn’s vehicle, and said he had followed Dunn for approximately 1.5 miles before pulling him over and had not observed any traffic law violation or other dangerous or unlawful conduct by Dunn during that time period. Based on Brazel’s testimony, the trial court overruled Dunn’s motion to suppress. Dunn then entered a no-contest plea to the firearm charge, and was convicted and sentenced to community control sanctions.

Dunn subsequently appealed the trial court’s denial of his motion to suppress the evidence obtained through the police stop of his vehicle. On review, the 2nd District Court of Appeals held that the trial court erred when it denied Dunn’s motion to suppress the evidence from the traffic stop because the stop was based exclusively on the radio alert Brazel received from the police dispatcher, and the state had not established by evidence that the dispatcher had a reasonable basis to issue that alert. Based on that finding, the court of appeals vacated Dunn’s conviction and sentence and remanded the case to the trial court for further proceedings without the evidence obtained through the vehicle search. The state, represented by the Montgomery County prosecutor’s office, sought and was granted Supreme Court review of the 2nd District’s decision.

Attorneys for the state argue that the 2nd District erred by requiring the state to prove the reasonableness of the dispatcher’s radio alert in this case, because that requirement is applicable only where a vehicle stop is based on a suspicion of criminal activity, and should not be applied in cases where officers are responding to a call describing an emergency situation in which there is an immediate danger of death or serious injury 

They urge the Court to follow the U.S. Supreme Court’s 1978 holding in Mincey v. Arizona that, when a warrantless police entry or search is undertaken in an emergency situation, evidence obtained through such an intervention is not barred by the exclusionary rule if the police can show that, under the totality of the circumstances, officers reasonably believed that a person was in immediate danger of death or serious injury.

Attorneys for Dunn respond that the 2nd District’s decision in this case followed the Supreme Court of Ohio’s 1999 decision in Maumee v. Weisner, which held that when an officer’s sole basis for a warrantless stop of a vehicle or entry into a premises is information the officer received from a radio dispatcher or another officer, and a person charged with a crime moves to suppress evidence obtained through that stop or entry, the police bear an affirmative burden of showing that the dispatcher who issued the alert had a reasonable basis to believe that the stop was justified. 

They argue that, while the police might have been able to show that the phone call received by the dispatcher was sufficient to justify an emergency stop of Dunn’s vehicle, the state failed to present any such evidence at Dunn’s suppression hearing, and therefore failed to meet the burden of proof required to allow the trial court to consider evidence obtained through the warrantless traffic stop.

Carley J. Ingram, 937.225.5757, for the state and Montgomery county prosecutor's office.

Gary C. Shaengold, 937.299.9940, for Richard Dunn.

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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.