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Tuesday, March 11, 2014

State of Ohio v. Bennie Adams, Case no. 2011-1978
Seventh District Court of Appeals (Mahoning County)

State of Ohio v. Joseph Harris, Case no. 2013-0414
First District Court of Appeals (Hamilton County)

Village Green of Beachwood, L.P., et al. v. Carlos Sivit, et al., Case no. 2013-0586
Eighth District Court of Appeals (Cuyahoga County)

Death Penalty

State of Ohio v. Bennie Adams, Case no. 2011-1978
Seventh District Court of Appeals (Mahoning County)

Bennie Adams is appealing his conviction and death sentence for the 1985 murder of a woman who lived in the same Youngstown duplex where he resided.

On December 29, 1985, Gina Tenney went to a movie and dinner with a friend, then headed home. The next day her body was found in the Mahoning River.

Officers went to investigate Tenney’s apartment. It was locked, so they asked Adams, Tenney’s downstairs neighbor, to use his phone to call the landlord for access to Tenney’s apartment. While they were in Adams’s apartment, the officers heard a noise and found a man who one of them recognized as someone being sought for arrest. As they were arresting the man, an officer picked up a coat and discovered Tenney’s ATM card in the pocket. The man said the coat belonged to Adams.

Police arrested Adams as well, and he was charged with receiving stolen property, including the ATM card, Tenney’s apartment and car keys, a potholder matching one in Tenney’s residence, and Tenney’s television. Following an investigation, Adams was not indicted for Tenney’s murder. However, 22 years later, prosecutors charged him with the crime.

In late 2008, a jury found Adams guilty of aggravated murder, and the court imposed a death sentence. Adams appealed to the Seventh District Court of Appeals, which upheld the conviction and death penalty.

Adams exercised his right to have his death penalty appeal heard by the Ohio Supreme Court.

The attorneys for Adams have claimed that there were 21 legal and procedural trial errors, grounds for the court to reverse Adams’s conviction and death sentence or to send the case back to the trial court for a new trial.

Among the arguments they make to the court in their brief:

On behalf of the state, attorneys from the Mahoning County Prosecutor’s Office respond in their brief to the court:

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

Representing Bennie L. Adams: John Juhasz, 330.758.7700

Representing the state of Ohio from the Mahoning County Prosecutor’s Office: Paul Gains, 330.740.2330

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When is Testimony Regarding Psychological Evaluation by Court-Appointed Psychologist Admissible?

State of Ohio v. Joseph Harris, Case no. 2013-0414
First District Court of Appeals (Hamilton County)

ISSUE: Is a psychologist’s trial testimony about a defendant’s allegedly feigned mental illness admissible during the state’s case-in-chief (the part of a trial where the party with the burden of proof presents its evidence) to show the defendant’s intent to mislead and defraud authorities to escape prosecution?

In 2010, 18-year old Shane Gulleman was killed after attempting to buy Oxycontin from Joseph Harris. Harris drove to Cincinnati and met Gulleman in a parking lot in the middle of the night, and after climbing into Gulleman’s car, Harris shot the teen. Harris fled the scene, and Gulleman was found slumped over on the driver’s side of his car and died at the scene.

Harris was charged with aggravated murder, murder, aggravated robbery, and having weapons while under disability. Harris filed a suggestion of incompetency and a plea of “not guilty by reason of insanity,” but he was found competent to stand trial after a court-ordered psychiatric evaluation.

The case proceeded to trial, and a jury found Harris guilty as charged. At the trial, a court-appointed psychologist testified not only that Harris was competent, but also that she had concluded Harris faked illness to avoid prosecution. Harris was sentenced to life in prison without parole plus an additional 16 years.

Harris appealed to the First District Court of Appeals. The appeals court reversed the trial court’s decision, holding the lower court erred when it allowed the state to present testimony from the court-ordered psychologist during its case-in-chief about Harris’s credibility.

The state appealed to the Ohio Supreme Court, which agreed to hear the case.

Attorneys for the state argue that statements made during a mental evaluation are only prohibited by R.C. 2945.371 on the issue of determining guilt in a trial.

Citing the Ninth District Court of Appeals decision in State v. Mathes (2001), the state’s attorneys assert that the statute’s language clearly distinguishes between issues of the defendant’s psychological state and factual evidence of guilt. They emphasize that case decisions interpreting this law allow for testimony, such as a psychologist’s impressions and conclusions about whether a defendant was fabricating or exaggerating the symptoms of mental disorders, to be introduced only for reasons other than implicating guilt. Because the psychologist’s testimony in this case had been limited to whether Harris was pretending to be incompetent or insane, her testimony was permissible, they argue.

In addition, the state’s attorneys contend that when the First District held that this testimony can only be introduced after the case-in-chief, the court essentially blocked the use of any evidence regarding a defendant’s feigned incompetence because the state would only be permitted to present that evidence in cases in which a defendant proceeds with a plea of not guilty by reason of insanity.

But the law allows evidence that sheds light on the defendant’s awareness of guilt, they argue. They assert that the psychologist’s testimony was admissible during the case-in-chief to show Harris’s continuing efforts to cover his guilt by manipulating witnesses and the court.

Even if the psychologist should not have testified during the case-in-chief, the state’s attorneys maintain that it was harmless error. They argue that the state presented ample evidence about Harris’s admissions of guilt to other parties, and the psychologist only testified to her observations and the results of psychological and intelligence testing unrelated to the crime. Without the psychologist’s testimony, the jury still would have reached the same verdict, they conclude.

Harris’s attorney argues that the psychologist did, in fact, use the defendant’s statements during her testimony, which is impermissible under R.C. 2945.371. Harris’s attorney asserts that the psychologist never said she reached her opinions merely by observing Harris, so her opinions must have been based on statements he made during his mental evaluation.

Additionally, his attorney maintains that Harris’s constitutional rights were violated, specifically his rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. She asserts that because Harris was not advised that his statements could be used against him, his Miranda rights, which also apply to pre-trial psychiatric evaluations, were violated. His attorney also claims that neither Harris nor his trial counsel could have anticipated the admission of these statements, so his attorney could not provide adequate representation given the circumstances.

Harris’s attorney also argues that the testimony was not harmless because it did contribute to Harris’s conviction. She asserts that the psychologist’s testimony called into question Harris’s credibility and character, and as an expert, her testimony would weigh heavily in the minds of the jury.  It cannot be determined, beyond a reasonable doubt, that the psychologist’s testimony had no effect on the jury’s verdict, she contends.

An amicus curiae (friend of the court) brief supporting Harris’s position has been submitted by the Ohio Public Defender.

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 Hamilton County Prosecutor’s Office: Judith Lapp, 513.946.3000

Representing Joseph Harris: Wendy Calaway, 513.351.9400

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Are Punitive Damages Capped by Statutory Limits on Torts When Case Involves Violation of Landlord/Tenant Contract?

Village Green of Beachwood, L.P., et al. v. Carlos Sivit, et al., Case no. 2013-0586
Eighth District Court of Appeals (Cuyahoga County)


On October 23, 2007, in the early morning, a fire started in a 32-unit building in a Beachwood apartment complex. The flames consumed the building. No one was hurt, but the remnants of the building were eventually demolished.

The afternoon before the fire, residents of one of the apartments reported a smell of smoke to the maintenance department. Beachwood fire and police responded to the report that evening but could not determine where the smell was coming from. Another resident told them she had smelled a barbeque or campfire odor the night before, and another reported flickering lights and a burning tar smell the evening before as well.

After the fire, an investigator and electrical expert determined that it had started in the space between the floor and ceiling of a third-floor apartment and a second-floor unit. He found that faulty electrical wiring combined with water leaks within the building caused the fire.

In September 2008, Carlos Sivit and several other tenants who had lost their residences and belongings filed a lawsuit against Village Green of Beachwood, the developer and owner of the complex, and Forest City Residential Management, the property manager since 2006.

After a trial in December 2011, a jury found in favor of the residents, awarding $582,328 in compensatory damages for property lost in the fire, $2 million in punitive damages, and more than $1 million in attorney fees.

Village Green and Forest City appealed to the Eighth District Court of Appeals, which upheld the trial court. They then filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

R.C. 2315.21(A) defines a “tort action” as “a civil action for damages for injury or loss to person or property” and excludes “a civil action for damages for a breach of contract or another agreement between persons.” R.C. 2315.21 also states that punitive damages awarded by a jury can be no more than twice the amount of compensatory damages.

Attorneys for the property owner and manager point out that the tenants claimed negligent construction and negligent maintenance in their lawsuit. The attorneys argue that the suit is clearly a tort action within the meaning of the statute because it is an “action for damages for injury or loss to person or property.”

The Eighth District held that the lawsuit was both a tort and a breach-of-contract action because it involved an alleged violation of the Landlord-Tenant Act. However, the attorneys assert that the appeals court incorrectly held that the tort statute, with its cap on punitive damages, did not apply in this case because the only relationship between the tenants and the landlord was contractual.

Village Green and Forest City’s attorneys argue that punitive damages typically are not awarded in lawsuits involving a violation of a contract. But if the claim is both a tort and a breach-of-contract action, their attorneys maintain that the punitive-damages cap in the tort statute should apply.

They contend that many other torts involving the breach of a contractual duty – such as lawsuits for employer sexual harassment, employer age or sex discrimination, or legal malpractice – would now be exempted from the punitive damages limit in R.C. 2315.21 under the Eighth District’s reasoning. This interpretation is contrary to the General Assembly’s intent when it enacted the current version of the tort statute in its 2005 tort reform legislation, they argue.

To receive punitive damages, the attorneys assert that the tenants had to prove that Village Green acted with “actual malice,” or “‘conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.’” This means, they contend, that Village Green had to have had actual or subjective knowledge of the danger to the tenants. The attorneys respond that neither the property owner nor the management company knew about the electrical wiring issue between the two floors that led to the fire. The only evidence presented at trial had to do with exterior problems, which did not cause the fire, they maintain.

The attorneys add that the electrical wires involved in the fire were located in a concealed space between the floors that could not be inspected.

“[T]here can be no reasonable justification under the [landlord-tenant] statute for imposing legal liability on a landlord for loss and damage that arose from a hidden condition of which the landlord had no knowledge and which was not discoverable,” they write in their brief to the court. The building problems the owner and management company did know about did not constitute “notice” to them of the issue that actually caused the damage, the attorneys conclude.

Attorneys for the tenants argue that the punitive-damages cap in the tort statute does not apply to every case in which punitive damages are awarded. In addition, a breach-of-contract civil action is explicitly exempted in the tort statute so the damages cap does not apply, they contend.

The tenants are, however, entitled to recover punitive damages, they assert, because Ohio law permits these awards in cases alleging a breach of landlord-tenant contract if the conduct is also a tort. The Eighth District held that this case involved both a tort and a breach-of-contract action, they note. While the owner and management company claim that this approach would allow for unlimited punitive damage awards in landlord-tenant cases, the tenants’ attorneys counter that the U.S. Constitution has been interpreted to prohibit “grossly excessive” awards.

The tenants’ attorneys explain that the jury had ample evidence that Village Green and Forest City had knowledge of the dangers in the building and consciously disregarded them. Evidence presented at trial showed that the building was “plagued with electrical irregularities mixing with well documented and extensive water infiltration for a significant period of time leading up to the 2007 fire,” they write in their brief to the court.

Before Forest City took over the property management in 2006, the company had one of its vice presidents inspect the property, the tenants’ attorneys state. “His report details several deficiencies with the property, including but not limited to ‘deferred’ maintenance issues, water infiltration, improper venting, mold, insect infestation, failed flooring, and the need for a new roof, gutters, siding, windows and carpet (all due to rampant water infiltration),” they write.

They add that the city also inspected the property in 2006, identifying several code violations and restricting the owner and property manager from renting or leasing any units until the repairs were made and verified by the city. They assert that Village Green and Forest City ignored the directive.

They also contend that a 2004 fire that destroyed another building in the complex was caused by the same type of wiring issue. The same expert investigated both fires, and the attorneys maintain that he testified that there was no doubt the 2007 fire was caused by “‘faulty electrical wiring contaminated by water leaks’” within the building.

The tenants’ attorneys argue that the contention by the owner and management company that they only knew of the building’s exterior maintenance issues ignores testimony that these unrepaired external issues allowed water to enter the building and walls, damaging the electrical wiring, which caused the fire.

Village Green and Forest City had an “overwhelming volume of notice” from the tenants, yet they still consciously disregarded health and safety code violations, their duty to make repairs and to put and keep the premises in “a fit and habitable condition,” and their obligation to maintain the building in good and safe working order, the tenants’ attorneys conclude. Village Green and Forest City knew of various electrical malfunctions, they maintain, from not only tenant complaints but also maintenance staff reports, their own 2006 inspection, city inspections, and official city notices of code violations.

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

Representing Village Green of Beachwood and Forest City Residential Management: Marvin Karp, 216.583.7014

Representing Carlos Sivit, et al.: Joseph Diemert, 440.442.6800

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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.