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Tuesday, February 4, 2014

Jeremiah Jackson v. State of Ohio, Case no. 2010-0944
Cuyahoga County Court of Common Pleas

State of Ohio v. Carl M. Morris Jr., Case no. 2013-0251
Ninth District Court of Appeals (Medina County)

Jamie Paliath, Keller Williams Home Town Realty v. Torri Auer, Case no. 2013-0459
Second District Court of Appeals (Montgomery County)

Death Penalty

Jeremiah Jackson v. State of Ohio, Case no. 2010-0944
Cuyahoga County Court of Common Pleas

Jeremiah Jackson is appealing his 2010 convictions and death sentence for aggravated murder following a three-county crime spree with accomplices over 17 days in June 2009.

Jackson was indicted in Cuyahoga County on 42 counts for various offenses. The indictments included charges for the aggravated murder of a woman who worked at a laundromat and the attempted murder of the woman’s co-worker. The other indictments involved the attempted murder and robbery of an acquaintance, robbery of another self-service laundry employee, robberies and assaults in two bars, robbery of a Howard Johnson’s motel, and robbery of a Walgreens. The indictments also contained four kidnapping charges, and the aggravated murder charge included the possibility of the death penalty.

Jackson waived his right to a jury trial, and his case was heard by a three-judge panel in the Cuyahoga County Court of Common Pleas. Two charges were dismissed. The court then found Jackson guilty of all other counts and imposed a death sentence.

Jackson has exercised his right to appeal the convictions and death sentence directly to the Ohio Supreme Court. In their brief to the court, his attorneys have asserted 11 legal and procedural errors during his trial as grounds for the court to reverse his convictions and death sentence.

Among the arguments they make to the court:

On behalf of the state, attorneys from the Cuyahoga County Prosecutor’s Office offer these arguments in response:

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Jeremiah Jackson: David Doughten, 216.361.1112

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Saleh Awadallah, 216.443.7800

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In Appeals Alleging that a Court Has Improperly Admitted Evidence of Other Acts, What Standard of Review is Appropriate?

State of Ohio v. Carl M. Morris Jr., Case no. 2013-0251
Ninth District Court of Appeals (Medina County)

ISSUE: When evidence is alleged to have been erroneously admitted by a trial court, is the appellate court required to determine whether the error was harmless using the legal standard for reviewing non-constitutional issues, or should the court review the error based on the stricter standard for constitutional issues?

In December 2007, a 14-year-old girl, identified in the briefs by the initials S.K., told her mother and father that her stepfather, Carl Morris Jr., had repeatedly molested her over several years. Her parents took her to the police to file a report, and a trial followed.

During the 2009 trial, S.K. testified that Morris physically and sexually abused her starting in first grade until about eighth grade. A jury found Carl Morris Jr. guilty of two counts of raping his stepdaughter.

After his conviction, Morris appealed to the Ninth District Court of Appeals, which reversed his conviction based on an Ohio rule of evidence (Evid. R. 404(B)) that states, “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” The rule, however, does allow such evidence to be admitted for other reasons.

The state appealed to the Supreme Court, which in 2011 agreed to consider what standard is appropriate when courts review the admission of evidence of other acts. The court ruled in this case that appeals of trial court decisions regarding this type of evidence should be reviewed based on whether the trial court abused its discretion. The case was sent back to the Ninth District to review the case using the abuse-of-discretion standard.

Morris’s attorneys in part argued to the appellate court that the court improperly allowed testimony about other acts from S.K.’s adult half-sister, Sarah, and from S.K.’s mother. The appeals court determined that their testimony violated the rule of evidence. The court stated that the testimony was inflammatory and violated Morris’s constitutional right to a fair trial, so it reviewed whether the error was harmless based on a legal standard for constitutional issues. The court held the improper evidence may have contributed to Morris’s conviction, and, therefore, the errors were not harmless beyond a reasonable doubt.

The state again appealed to the Supreme Court, which, after denying the state’s first request, later agreed to hear the case.

Attorneys from the Medina County prosecutor’s office contend that the Ohio Supreme Court has held courts should analyze alleged errors not involving constitutional rights using a non-constitutional harmless error standard. In several cases, including State v. Webb (1994), they argue that the Supreme Court has ruled that the correct reviewing standard when evidence is alleged to have been improperly admitted is a non-constitutional harmless error standard.

The prosecutors claim that the Ninth District improperly relied on pre-Webb Supreme Court cases, which incorrectly reviewed such alleged errors using a stricter constitutional standard. The Ninth District is the only appellate court that analyzes evidentiary issues with no “clear connection” to constitutional rights under a constitutional review standard, the prosecutors assert.

They argue that the Ninth District has been wrongly turning issues regarding evidence into constitutional issues related to fair trials.

Even if the testimony of S.K.’s half-sister and mother had been excluded from the evidence in Morris’s trial, there was “substantial other evidence” presented to support his conviction, they conclude.

Attorneys for Carl Morris counter that the admission of other-acts evidence that violates a defendant’s right to a fair trial is a constitutional issue requiring review using a constitutional standard. They note that the Ninth District applied the more stringent review standard because the inflammatory testimony impacted Morris’s right to a fair trial.

They argue that the Supreme Court has for 40 years applied a constitutional harmless error standard when reviewing the potentially mistaken admission of evidence of other acts. They assert that the constitutional review standard is the proper standard for analyzing any alleged error by a trial court in admitting other acts evidence because “such inflammatory and prejudicial evidence implicates the accused’s right to a fair trial.”

The Ninth District’s decision in this case does not conflict with other appeals courts in the state, they claim. Those appellate courts have applied a non-constitutional review standard to other types of admitted evidence, they argue, so those cases are not relevant to this case. They dispute the state’s contention that the Ninth District is somehow transforming all evidentiary issues into fair trial issues.

They point out that the Ninth District held that the effect of Sarah’s testimony about a sexual comment Morris made to her and S.K’s mom’s testimony about her sex life with Morris was extensive, and the testimony was presented to the jury so it would draw a negative inference about Morris, which the other-acts evidentiary rule forbids.

Amicus curiae (friend of the court) briefs supporting the position of the Medina County Prosecutor’s Office have been submitted by the Cuyahoga County Prosecutor’s Office and the Ohio Prosecuting Attorneys Association.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the State of Ohio from the Medina County Prosecutor’s Office: Matthew Kern, 330.723.9536

Representing Carl M. Morris Jr.: David Sheldon, 330.723.8788

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Is a Real Estate Broker Liable for the Conduct of Its Independent Contractor Salesperson?

Jamie Paliath, Keller Williams Home Town Realty v. Torri Auer, Case no. 2013-0459
Second District Court of Appeals (Montgomery County)

ISSUE: Is the legal doctrine that holds an employer or principal liable for an employee’s or agent’s wrongful acts absolute, or is it dependent on whether the wrongful conduct was done within the scope of the employment?

Jamie Paliath began working as a licensed real estate salesperson for Keller Williams Home Town Realty in 2006. The company hired her as an independent contractor.

In September 2007, California resident Torri Auer contacted Paliath about a Dayton property and expressed an interest in buying investment properties. After visiting Ohio, Auer purchased a house and a duplex, based partly on information that the properties were worth twice the purchase prices. As the broker, Home Town received a commission from these sales.

Auer and Paliath also created a company, which bought a 12-unit Dayton property in November. Auer then purchased two more multiunit buildings in the city. Paliath told her there were people on a waiting list to rent the spaces, the units could be rehabilitated in about two months, and they could be sold for $90,000 each. Home Town also received commissions from these sales as the broker. Auer went into contract on another property from Paliath in November, from which Home Town earned a commission.

On December 7, 2007, Home Town Realty returned Paliath’s license to the state, and Paliath created her own company to continue working as a real estate salesperson.

By August 2008 very few of the properties Auer had bought were rented, and an investor who evaluated the buildings for Auer told her they were in disrepair and needed work.

Auer filed a lawsuit in October against Paliath, Home Town Realty, and others for fraud in the inducement in the sale of the properties, and other claims.

After a jury trial in March 2012, Auer in part was awarded $135,200 from Paliath for fraudulent inducement on four of the six properties and $135,000 from Home Town Realty, based on its liability as the broker in the sales.

Home Town appealed the trial court’s decision to the Second District Court of Appeals. Paliath also appealed, but her case was dismissed.

One of Home Town’s arguments on appeal was that the jury had been given improper instructions about how to determine whether Home Town, as the broker on the sales, was liable for Paliath’s misconduct. The Second District found no fault in the jury instructions defining “vicarious liability” and “scope of employment.” The appellate court also ruled that Paliath was acting within the scope of her employment when she made the sales on the four properties, so the trial court properly found Home Town to be liable.

Home Town appealed to the Ohio Supreme Court.

Attorneys for Home Town Realty describe Paliath as a “rogue real estate agent,” who did not inform it that she had created other companies, some of which directly competed with Home Town, and whose conduct violated her independent contractor agreement and only benefitted her. They argue that Home Town had no knowledge of Paliath’s illicit activities.

They also contend that the Second District’s decision is inconsistent with state law and Ohio Supreme Court precedent. State law requires a real estate salesperson to be associated with a real estate broker in order to engage in activities such as negotiating the sale or purchase of property. The law also mandates that salespersons may only collect commissions “in the name of a broker.”

“But this fact, standing alone, means nothing more than the process by which commissions are collected is being properly observed; it in no way signifies a broker’s tacit acquiescence in the unknown or unknowable fact that the salesperson’s actions in bringing about a transaction may have been the very antithesis of the broker’s policies, violated the salesperson’s agreement with the broker, or violated the applicable statutes themselves,” the attorneys write in their brief to the court. “Either overlooked or ignored by the Court of Appeals was a separate mandate of R.C. 4735.21. To collect a commission, a salesperson cannot act only ‘in the name of a broker’; the salesperson must affirmatively act ‘with the consent of the licensed real estate broker,’ and a broker obviously cannot consent to unethical and fraudulent practices it knows nothing about.”

Home Town’s attorneys point to Groob v. Keybank, a 2006 Ohio Supreme Court decision in which the court rejected the argument that an employer or principal is liable for wrongful acts when an employee acts outside the scope of her employment. They also note that the Supreme Court has held that the facts of each case determine whether actions are within the scope of employment.

Home Town’s attorneys also assert that the trial court’s jury instruction about vicarious liability was inadequate and misleading and was not harmless error. They contend the instruction had four flaws: the trial court did not tell the jury it was to determine whether Paliath was acting within the scope of her authority with Home Town; it did not explain that Auer had the burden to prove that Paliath was acting within her authority; the court included language from cases involving a different aspect of the broker/salesperson relationship; and it instructed the jury that if it found Paliath committed wrongdoing, it must find that Home Town was liable.

They conclude that the Second District’s decision prohibits brokers from advancing any argument that a salesperson acted outside the scope of her authority when she engaged in wrongful conduct.

Attorneys for Auer claim that Paliath was not properly trained or supervised, and brokers have a duty to supervise their agents/employees and ensure that the public is protected from any misdeeds.

“The facts in this case support the position that a real estate broker cannot reap the benefits without expecting any consequences when said broker doesn’t take any initiative to control a new salesperson or at the very least monitor her activities in a more competent fashion,” they write in their brief to the court.

They assert that the willful and malicious nature of an employee’s conduct does not always remove the conduct from the scope of employment – unless the conduct is so “‘divergent’” that it severs the employer/employee relationship. That is not the case here, they contend, because Home Town received commissions on the sales, the broker received benefits from Paliath’s work, and she was doing her job as a salesperson.

Based on a three-part test, they claim Paliath acted within the scope of her employment because she was employed to sell real estate, the broker oversaw the sale of the properties, and the sale was “in large part to serve the master.”

“To reverse and remand this action would only encourage lackadaisical attitudes toward managing sales personnel and consumers would suffer the most,” they argue. “Real estate brokers would merely state that the matters were out of their control and there would be no incentive to supervise competently. This case boils down to a matter of responsibility.”

Amicus curiae (friend of the court) briefs supporting Home Town Realty’s position have been submitted by the National Association of Realtors and the Ohio Association of Realtors.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Keller Williams Home Town Realty: Thomas Pyper, 937.610.1990

Representing Torri Auer: Laurence Lasky, 937.222.6699

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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.