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Tuesday, January 22, 2013

State of Ohio v. Sandra Griffin, Case no. 2011-0818
Fifth District Court of Appeals (Coshocton County)

State of Ohio v. David Graham et al., Case no. 2012-0338
Twelfth District Court of Appeals (Brown County)

State of Ohio v. David L. Deanda, Case no. 2012-0471
Third District Court of Appeals (Seneca County)

Does Resentencing To Correct Clerical Omission Create New Opportunity for Offender to Appeal Conviction, Sentence?

After Defendant Has Already Pursued Unsuccessful Appeal Based on Same Issue

State of Ohio v. Sandra Griffin, Case no. 2011-0818
Fifth District Court of Appeals (Coshocton County)


BACKGROUND: This case involves an attempt by prison inmate Sandra Griffin to reopen her case. Griffin was convicted of participating in the 1989 robbery and murder of James Steurer of Coshocton, and has been imprisoned for that crime for the past 23 years.

Griffin was indicted on multiple felony counts including aggravated murder with a death penalty specification.  In return for the state’s agreement not to pursue the death penalty, she waived her right to a jury trial and also waived trial before a three-judge panel, and instead was tried before a single judge.  She was found guilty on all counts and the death penalty specification, and that judgment of conviction was recorded in the court’s journal on December 21, 1989.  Following the statutory procedure for trials in which “death may be imposed as a penalty,” set forth in R.C. 2929.03(F), the trial judge conducted a separate sentencing hearing and on Janaury 29, 1990, made a separate journal entry recording a sentence of life imprisonment with the possibility of parole after 30 years. The sentencing entry did not include information (already journalized in the court’s judgment of conviction) about the not-guilty plea entered by Griffin or the fact that she was convicted in a bench trial.

Griffin pursued a direct appeal in which she raised among other issues a claim that her convictions and sentence were invalid because her indictment included a death penalty specification, and the trial court was therefore required to try her before a three-judge panel notwithstanding her putative waiver of that right. In 1992, the Fifth District Court of Appeals denied Griffin’s appeal, including her claim based on the single-judge issue. The Supreme Court of Ohio declined to review the Fifth District’s decision. Griffin subsequently raised the single-judge issue in a federal habeas corpus action. The federal court rejected that argument and affirmed her conviction in 1998.

In 2008, the Supreme Court of Ohio ruled in State v. Baker that a trial court’s journal entry of a criminal conviction meets the requirements of a “final” order that is subject to appeal if it sets forth in the same document (1) the guilty plea, jury verdict or finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) a notice of entry on the court’s journal by the clerk of court.

In August 2009, Griffin filed a motion asking the Coshocton County Court of Common Pleas to issue a final appealable order in her  murder case.  In that motion, Griffin cited the Baker decision and alleged that the trial court had never issued a final, appealable order in her case because the separate journal entries recording the court’s December 1989 judgment of conviction and its January 1990 sentencing opinion did not set forth in a single document all the elements specified in Baker. The trial court entered a revised sentencing entry in the case on August 27, 2009, incorporating all of the elements specified in Baker in a single document.

Griffin then filed a new notice of appeal of her murder conviction with the Fifth District, again raising the single-judge issue the court had rejected in 1992. In doing so, Griffin asserted that there had not been a valid final judgment in her case until the corrected 2009 sentencing entry was made, and therefore her prior appeal had been a legal nullity, and she was entitled to a “first appeal” of the final judgment that had only been completed by the recording of  the corrected entry.  The state filed a motion to dismiss, arguing that the Fifth District had already considered and rejected Griffin’s claims based on the single-judge issue 17 years earlier, and that relitigation of that issue was barred by res judicata (the legal doctrine that a matter already tried and decided cannot be raised again).

In a 2-1 majority opinion issued July 27, 2010, the Fifth District denied the state’s motion to dismiss and entered a judgment vacating her conviction and remanding the case for a new trial.  In its decision, the court of appeals held that, based on Baker, there had not been a valid final, appealable judgment in Griffin’s case until the trial court made its 2009 corrective journal entry, and therefore the Fifth District’s 1992 ruling on her original appeal had been of no legal force. In considering Griffin’s single-judge argument “de novo” (as if for the first time), the court took note of State v. Parker, a 2002 decision  in which the Supreme Court of Ohio held that in cases where a defendant was charged with a death penalty specification, the case must be tried before a three-judge panel even though the state has agreed not to seek the death penalty.

The state appealed the Fifth District’s ruling to the Supreme Court.  The court summarily vacated the court of appeals’ decision and remanded the case for disposition consistent with this court’s 2010 holding in State v. Ketterer.  In Ketterer, the court heldthat in death penalty cases where the entry of a separate judgment of conviction and sentencing opinion is mandated by law, the trial court’s judgment should be upheld as a final appealable order if all four elements required by Baker were contained in the two journal entries when they are read together.  On remand, the Fifth District again vacated Griffin’s murder convictions and ordered a new trial, finding that unlike the trial court in Ketterer, the trial court in this case was not required by law to record a separate sentencing opinion because the court never considered the aggravating and mitigating factors supporting imposition of the death penalty.  The state sought and was granted Supreme Court review of the Fifth District’s most recent ruling.

Attorneys for the state urge the court to follow its recent decision in State v. Lester, in which the justices held that when a trial court must make a corrective sentencing entry to remedy the clerical omission of the manner of a defendant’s conviction, as required under Baker, that entry does not give the defendant a new opportunity to re-open the entirety of his or her case to relitigate a conviction or sentence that was lawfully imposed.  They also urge the court to find that, even though the state did not seek a death sentence, because Griffin was charged with a death penalty specification, the trial court that decided her case was required under R.C. 2929.03(F) to enter a sentencing entry separate from its judgment entry of conviction, and therefore fell under the exclusion from the “one-document” requirement of Baker that the court set forth in its Ketterer decision.

Attorneys for Griffin urge the court to affirm the judgment of the Fifth District, which they say correctly held that the court of appeals acted without jurisdiction when it heard and decided her 1992 appeal because the trial court had not issued a valid final order at that time.  Because Griffin’s right of appeal only arose after the trial court made its corrected sentencing entry in 2009, they assert, the Fifth District also acted properly in applying the Supreme Court’s 2002 decision in State v. Parker to overturn her murder conviction and order a new trial on the basis that the law required a trial before a three-judge panel, and Griffin had no ability to waive that requirement.

Representing the state and Coshocton County prosecutor’s office: Jason Given, 740.622.0166

Representing Sandra Griffin: Stephen P. Hardwick, 614.466.5394

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Is Public Employee’s Statement to Inspector General in Investigation a ‘Compelled Statement’ That May Not Be Used in Criminal Prosecution?

If Refusal To Answer Questions Potentially Punishable by Employee’s Firing

State of Ohio v. David Graham et al., Case no. 2012-0338
Twelfth District Court of Appeals (Brown County)

ISSUE:  When an employee of a state agency is questioned under oath by the Ohio Inspector General’s Office as part of an investigation of a suspected violation of law or administrative rules, and termination of employment is a possible sanction the employing agency could impose if the employee fails to fully and truthfully respond to questions posed by the inspector general, are the employee’s statements to the inspector general “compelled” statements under the U.S. Supreme Court’s decisions in Garrity v. New Jersey and Kastigar v. U.S., rendering information obtained through those statements inadmissible in a subsequent criminal proceeding against the employee?

BACKGROUND: In Garrity (1967) and Kastigar (1971), the U.S. Supreme Court held that when a public employee is required to fully and truthfully respond to questioning in connection with an   administrative investigation of suspected wrongdoing, and the employee faces termination from his or her job as a consequence of refusing to answer, information disclosed by the employee in such a compelled statement may not be used directly or indirectly as evidence against the employee in a subsequent criminal prosecution.

In this case, four senior officials of the Ohio Department of Natural Resources, Division of Wildlife, (DOW) including division chief David Graham, conducted an internal investigation of alleged wrongdoing by a division employee, Brown County wildlife officer Allan Wright. The investigation was in response to an allegation that Wright had aided a friend and fellow wildlife officer from another state in obtaining an Ohio hunting license as an in-state resident rather than as an out-of-state resident. By listing Graham’s home address on his application, the out-of-state officer was able to obtain an Ohio license for  $19 rather than the $125 out-of-state fee. 

Graham, along with DOW’s human resources and law enforcement program managers, and the district manager whose territory included Brown County, conducted an internal review of the matter and reprimanded Wright, but did not refer the case to the Brown County prosecutor for criminal prosecution.

Several months later, information about the Wright incident was sent to the office of the Ohio Inspector General (OIG) by a confidential informant. After contacting ODNR and being informed that the division had already conducted its own internal review of the incident, the OIG notified ODNR that the OIG was going to conduct an independent investigation. Each of the DOW officials who had participated in the internal review was contacted by the OIG and instructed to come to the OIG office to be interviewed by Deputy Inspector General Ron Nichols. Prior to being interviewed individually by Nichols, the DOW officials were each required to sign a sworn statement that they would answer all questions fully and truthfully. The DOW officials were not advised before or during their interviews with Nichols that the legality of their actions in conducting the division’s internal review of the Wright incident was a focus of the OIG investigation.

After obtaining the statements of the DOW officials, the OIG sent a report to the director of ODNR and to the Brown County prosecutor’s office. The report questioned whether the DOW managers’ collective failure to refer Wright’s conduct for criminal prosecution was itself a violation of state law. Along with its report, OIG provided the prosecutor with transcripts of the sworn statements the DOW officials had made during their interviews with Nichols.

The prosecutor decided to seek indictments against the DOW officials by a Brown County grand jury. During grand jury proceedings, the prosecutor provided jurors with transcripts of the officials’ respective interviews with Nichols. The grand jury handed down indictments charging Graham and the other DOW officials with felony counts of obstructing justice and complicity to obstruct justice.

Graham and his codefendants filed motions asking the trial court to suppress all information obtained by the prosecutor through review of their statements to the inspector general. In support of that motion, they cited the U.S. Supreme Court’s holdings in Garrity, Kastigar and other cases barring the use of statements a public employee is compelled to make during an administrative investigation as evidence against the employee in a subsequent criminal prosecution.

The court conducted a suppression hearing at which it heard testimony from ODNR Labor Relations Administrator Bret Benack, the senior advisor to the director of ODNR on matters of employee discipline. Benack testified that department rules required all employees to fully and truthfully respond to questions posed to them during administrative investigations, and that refusal to answer questions during such an investigation, particularly by senior executives, could subject an employee to disciplinary action up to and including termination from employment. The court granted the motion to suppress, barring the state from making any direct or indirect use of information it had obtained by reviewing the defendants’ statements to the OIG.

The state appealed.  On review, the Twelfth District Court of Appeals reversed the trial court, vacated the suppression order, and remanded the case for further proceedings. In a 2-1 majority opinion, the appeals court held that Garrity and Kastigar are applicable only in situations where a public worker is compelled by his or her employer to answer potentially self-incriminating questions during an administrative investigation, and the employer explicitly indicates that the consequence of refusing to answer those questions fully and truthfully would be termination. In this case, the majority noted, Graham and the other DOW managers were questioned by the OIG, a third-party agency that had no authority to terminate their employment or impose any other disciplinary sanctions against them other than seeking a contempt order.  The court also ruled that there was insufficient evidence in the record to support the trial court’s findings that the defendants’ statements were involuntary, or that they had an objectively reasonable basis to believe that refusal to respond to the OIG’s questions would result in the loss of their jobs.

The defendants sought and were granted Supreme Court review of the Twelfth District’s ruling.

Attorneys for the defendants argue that, contrary to the Twelfth District’s holding, nothing in Garrity, Kastigar or other federal and state court decisions in similar cases requires that an employee’s compelled statement must have been compelled by his or her employing agency in order to render it inadmissible in a criminal prosecution. They point to a specific provision of state law, R.C. 121.45, that requires all state employees to cooperate fully with OIG investigations, and assert that Benack’s testimony at the suppression hearing supported the trial court’s finding that the refusal of an ODNR employee, and especially of a senior manager, to fully answer questions during either a departmental or an OIG investigation of suspected wrongdoing would be grounds for the department to impose a sanction up to and including termination. They also point to decisions from other states holding that a public employee’s statements made during an administrative investigation are “compelled,” and thus subject to suppression under Garrity, even when the potential consequence of noncompliance is a sanction less severe than firing, such as loss of a government contract or a professional license.

Attorneys for the state urge the court to affirm the Twelfth District’s decision, which they say correctly held that Garrity requires suppression of a public employee’s statements only in cases where the employee is directly and specifically threatened by his or her employer with termination if the employee refuses to truthfully answer questions that may prove to be self-incriminating.  In this case, they assert, the OIG could not and did not threaten the defendants with termination or any other punishment if they declined to answer Nichols’ questions, but merely solicited their voluntary statements about a division employee’s illegal conduct and their handling of that incident.

Representing David Graham and other Division of Wildlife defendants: Gary A. Rosenhoffer, 513.732.0300

Representing the state and Brown County prosecutor’s office: Jessica A. Little, 937.378.4151

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Is Felonious Assault Based on Infliction of ‘Serious Physical Harm’ a Lesser Included Offense of Attempted Murder?

State of Ohio v. David L. Deanda, Case no. 2012-0471
Third District Court of Appeals (Seneca County)

ISSUE: Under the test set forth in the Ohio Supreme Court’s 2009 decision in State v. Evans, in a trial where the defendant has been indicted only on a charge of attempted murder, may the court validly instruct the jury that it may find the defendant not guilty of the charged offense, but guilty of “serious physical harm” felonious assault under R.C. 2903.11(A)(1) as a lesser included offense of attempted murder?

BACKGROUND: The Ohio Constitution requires that before a person may be charged in court with a felony offense, the state must first present evidence to a grand jury, and the grand jury must return an indictment finding that the evidence presented was sufficient to establish probable cause that the accused committed the offense charged in the indictment.

Ohio Criminal Rule 31(C) provides that a court deciding a criminal case may find that the evidence presented by the state was insufficient to prove the offense charged in the indictment, but instead find the defendant guilty of a less serious crime not charged in the indictment, if that crime qualifies as a “lesser included offense” of the charged offense. When a criminal case is tried before a jury, if either the defendant or the state wishes the jury to consider one or more lesser included offenses in addition to the crime charged in the indictment, that party must request that the judge instruct the jury on the elements of each lesser offense before the jury retires to deliberate.

In this case, David Deanda of Tiffin was indicted by a Seneca County grand jury on one count of attempted murder for stabbing another man multiple times in the neck and chest while shouting that he intended to kill the victim. No other offenses were charged in the indictment.

At trial, before the case went to the jury, Deanda’s attorney asked the court to instruct the jurors that instead of convicting Deanda on the charged offense of attempted murder, they could instead find Deanda guilty of a lesser offense, aggravated assault. In response to the defense motion, the prosecutor asked the judge to also instruct the jury on a different lesser offense, felonious assault. Without objection from either party, the court instructed the jury on both lesser offenses as well as attempted murder.

The jury returned a verdict of not guilty on the attempted murder charge, but found Deanda guilty of felonious assault based on a finding that he had inflicted  “serious physical harm” on the victim of his attack. The court sentenced Deanda to seven years in prison. He subsequently appealed his conviction, arguing that the trial judge had committed reversible error by instructing the jury on “serious physical harm” felonious assault, because that crime did not meet the requirements of a lesser included offense of attempted murder. 

The Third District Court of Appeals agreed with Deanda’s argument, finding that the form of felonious assault of which he was convicted was not a lesser included offense of attempted murder because it was theoretically possible to attempt to murder someone (for example, by putting poison in food that the intended victim doesn’t eat) without actually causing that person to suffer serious physical harm. Based on that analysis, and the fact that Deanda had not been indicted for the separate offense of felonious assault, the court of appeals held that his conviction on that charge violated Deanda’s right to a fair trial and vacated his conviction and sentence. 

The state sought and was granted Supreme Court review of the court of appeals’ decision.

Attorneys for the state argue that the test applied by the Third District, i.e., whether it was ever possible to commit attempted murder without also committing felonious assault, failed to follow the Supreme Court of Ohio’s 2009 decision in State v. Evans. In Evans, they assert, the court significantly modified the former test for lesser included offenses (set forth in State v. Deem, 1988)  by eliminating the word “ever” from the required analysis. By doing so, they contend, the court  eliminated the requirement that there be no abstract hypothetical situation in which the greater crime could possibly be committed without also committing the lesser offense, and instead required courts to consider whether an indictment for the greater offense put the defendant on notice that he was accused of conduct that would also support the lesser charge.

In this case, they assert, there is no reasonable question that an indictment for attempted murder that accused Deanda of “knowingly engaging in conduct that, if successful, would result in causing the death of another” based on his repeated stabbing of the victim in the chest and throat, also put him on notice that he could be prosecuted for the lesser offense of “knowingly causing serious physical harm to another.”

Attorneys for Deanda respond that the Third District followed established precedent, including the Supreme Court of Ohio’s holding in State v. Barnes (2001) that felonious assault is not a lesser included offense of aggravated murder because there are multiple ways in which one can attempt to commit murder without committing felonious assault. They point out that while this court’s decision in Evans rejected the use of “extreme” or “tortured” hypotheticals to determine whether one offense is a lesser offense of another, the Evans court specifically reaffirmed the requirement set forth in Deem and other decisions that courts must make a “comparison of the elements of the respective offenses in the abstract to determine whether one element is the functional equivalent of the other.”

They argue that where the elements of a lesser offense are not equivalent to those of a more serious charge, as in this case, it is the responsibility of the state to present evidence to a grand jury and obtain an indictment on that separate offense.  Because the state failed to obtain a separate indictment for felonious assault, and the trial court acted contrary to law in instructing the jury to consider felonious assault as a lesser included offense of attempted murder, they assert, the court should affirm the Third District’s determination that Deanda’s conviction and sentence for felonious assault were unlawful and therefore must be vacated.

Representing David Deanda: John M. Kahler II, 419.447.2285

Representing the state and Seneca County prosecutor’s office: Brian O. Boos, 419.448.4444

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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.