Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, March 30, 2021

State of Ohio v. Sherry Tidwell, Case no. 2020-0290
First District Court of Appeals (Hamilton County)

Mark Johnson, Individually and as Guardian of David Johnson, an incompetent, Glenda Johnson and Gary Johnson v. Anthony Abdullah, M.D., Case no. 2020-0303
First District Court of Appeals (Hamilton County)

State of Ohio v. Khairi A. Bond, Case no. 2020-0415
Fifth District Court of Appeals (Richland County)

Was Shout to Officer of ‘That Lady is Drunk’ Sufficient to Stop Motorist in Gas Station Lot?

Motorists State of Ohio v. Sherry Tidwell, Case No. 2020-0290
First District Court of Appeals (Hamilton County)


  • Is an unidentified man’s warning to a police officer about a motorist in a parking lot enough to qualify the tipster as a citizen informant whose tip merits a high degree of credibility?
  • Does a citizen informant’s tip, which doesn’t provide predictive information, create sufficiently reasonable suspicion for a police officer to make an investigatory stop of a motorist?

On a Saturday evening in November 2017, Ohio State Highway Patrol Sergeant Jacques Illanz was in uniform and parked his marked police vehicle at a Speedway filling station in Hamilton County. Illanz was investigating a traffic accident that occurred on the street near the station and directed the vehicles involved in the accident to pull into the Speedway lot.

As Illanz was completing the accident report, a man called out from the doorway of the Speedway, directing the officer’s attention to an SUV in the parking lot. “Hey, you need to stop that vehicle. That lady is drunk,” the man yelled. Illanz watched the vehicle pull slowly backward out of a parking space and move slowly forward. He saw the face of the driver, later identified as Sherry Tidwell, and described her as having a “blank stare.”

Illanz gestured Tidwell to stop and she did. Tidwell rolled down her window, and Illanz detected a strong odor of alcohol coming from the vehicle. He described Tidwell’s eyes as “bloodshot and glassy.” He asked her, “What’s going on?”

Tidwell maintained she had not consumed any alcohol and had been at a party watching a football game. She was at Speedway buying alcohol and was driving home. As Illanz engaged Tidwell in questioning, a Hamilton County sheriff’s deputy arrived. The deputy administered a field sobriety test to Tidwell and arrested her for driving under the influence of alcohol. Her blood alcohol concentration was .213, more than twice the .08 legal limit.

Trooper Seeks Informant
Illanz went into the Speedway to look for the citizen who called out to him. He couldn’t recall what the man was wearing, but could only identify him as a white male with brown hair. Illanz believed it was the clerk at the Speedway who called out to him. The clerk, Daniel Bate, told Illanz that he instructed a departing customer to call out to the officer. The customer departed without speaking again to the officer.

Tidwell filed a motion to suppress the evidence in Hamilton County Municipal Court, arguing that Illanz’s approach to her vehicle constituted an illegal seizure without reasonable suspicion of criminal activity because it was based on an anonymous, unreliable tip. The Hamilton County Prosecutor’s Office argued Illanz was justified in waving down Tidwell to investigate after receiving a presumably reliable citizen-informant tip.

The municipal court agreed to suppress the evidence, and the prosecutor appealed to the First District Court of Appeals. The First District affirmed the trial court’s decision, and the prosecutor appealed to the Supreme Court, which agreed to hear the case. Because of the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Stop Was Reasonable, Prosecutor Maintains
The prosecutor explains the U.S. Supreme Court’s 1968 Terry v. Ohio decision describes a police officer’s investigatory stop of an individual as a “seizure” under the U.S. Constitution’s Fourth Amendment. To stop the individual without a warrant, the officer must have “reasonable suspicion based upon specific and articulable facts.” Reasonable suspicion may be formed on the basis of a tip from an informant, and the reliability of any informant’s information is based on the “totality of circumstances, including the informant’s status and basis of knowledge,” the office explains.

In general, courts have recognized three class of informants: anonymous informants, known informants (typically from the criminal world who have provided previous reliable tips), and citizen-informants, the prosecutor explains. Citizen-informants are presumed reliable, and the information they provide doesn’t need to be supported by independent observations from police officers, the office notes. Anonymous tips in some cases are deemed to be sufficient enough to provide reasonable suspicion to make an investigatory stop.

The prosecutor argues the trial court didn’t consider the man from the parking lot to be a citizen-informant because the officer didn’t know his name. The office argues not having the name was of no legal consequence because the tipster made face-to-face contact with the officer in a manner consistent of a person acting out of a civic duty. That in-person act transformed the man into a citizen-informant, not an anonymous tipster who was trying to hide his identity.

Not only should the tip be considered reliable for Illanz to have reasonable suspicion to stop Tidwell, but when considering the totality of the circumstances, the officer also justifiably engaged Tidwell, the prosecutor maintains. The trooper observed her blank stare, and slow, exaggerated movements within a short period of time, the prosecutor notes, and Illanz recognized the potential hazard of an impaired driver attempting to leave a busy parking lot near a heavily trafficked road. The search was justified, and the evidence of her intoxication should be admitted in the case, the prosecutor concludes.

Call to Trooper Doesn’t Justify Stop, Driver Argues
Nothing about the man’s shout to the officer or the actions the officer and tipster took afterward justify classifying the officer as acting on a citizen-informant tip that should be presumed reliable, Tidwell maintains. And nothing Illanz did prior to questioning Tidwell should be considered as corroborating the tip, she adds.

Tidwell notes courts have considered tips made to police about potential impaired drivers to be reliable when the tips were based on the tipster’s personal observation. In this case, not only could Illanz not identify the tipster, who left the scene and has never been identified, but he also couldn’t demonstrate the customer observed anything about Tidwell. The trooper learned only that the tipster was relaying information from the clerk, who didn’t testify at the suppression hearing.

Nor did Illanz do anything to identify the man, Tidwell notes. The tipster, after shouting to the trooper, did not ask if he should stay there, and Illanz could have taken a moment to ask the man his name or ask him to remain there for a few minutes, Tidwell asserts. She indicates that Illanz’s cruiser camera was running and it could have captured audio of any conversation with the tipster and that Illanz could have retrieved the information later.

Tidwell notes the First District cited the U.S. Supreme Court’s 2000 Florida v . J.L. decision, which found that in order for a tip to provide reasonable suspicion for an investigatory stop, “the tip must not only contain detailed facts, but also predict future activities, or provide a means to test the informant’s credibility.” The customer’s call to Illanz didn’t do that, she argues. The First District wrote that had the customer reported, for example, “that Tidwell was falling down drunk, or consuming alcohol inside the Speedway, or nearly hit something while driving to the Speedway,” it would have provided a means to test the tip’s credibility. There was no reason for the trooper to suspect her of any particular criminal conduct based on the tip, Tidwell argues.

Tidwell also argues that Illanz failed to corroborate the information. He observed her pulling back out and moving forward slowly. At the suppression hearing, he conceded that it is more prudent to move slowly than quickly in a parking lot with several cars present near a very busy road. Tidwell explains the 2015 National Highway Traffic Safety Administration’s Student Manual was introduced in the trial court. Nowhere in the manual is a “blank stare” listed as indicative of impairment. Observing Tidwell driving slowly, as a prudent driver should, and having a blank stare, is insufficient to corroborate the tip that she was drunk, and Illanz had no reasonable suspicion to stop her, the driver concludes.

Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting the Hamilton County prosecutor’s position has been submitted by the Ohio Attorney General’s Office. The Ohio Public Defender’s Office has filed an amicus brief supporting Tidwell.

Argument Time Divided
The Supreme Court granted the request by the attorney general’s office to divide oral argument time with the prosecutor.

Dan Trevas

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: Philip Cumming, 513.946.3012

Representing Sherry Tidwell: Tad Brittingham, 513.929.9333

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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Did Brigham Health COO Engage in Enough Clinical Practice to Testify in Medical Malpractice Case?

Mark Johnson, individually and as guardian of David Johnson, et al. v. Anthony Abdullah, M.D., Case No. 2020-0303
First District Court of Appeals (Hamilton County)

ISSUE: When reviewing a trial court’s decision on the competence of a witness, how should an appellate court weigh a witness’ credibility and consider the trial court’s evaluation of the witness?

In September 2011, David Johnson underwent surgery at Christ Hospital in Cincinnati. His surgeon, Dr. Farooq Mirza, removed a diseased part of Johnson’s colon and sewed his colon back together. Mirza and Dr. Joseph Daugherty, Johnson’s primary care physician, followed the 52-year-old patient’s care after the surgery. Johnson experienced multiple symptoms, including fevers, an elevated heart rate, and high white blood cell counts. Johnson remained in the hospital from Sept. 23 to Oct. 1.

About 2 p.m. on Oct. 1, Johnson was released from the hospital. At approximately 9:45 p.m., his brother, Mark, brought him back to the hospital’s emergency department. Dr. Anthony Abdullah treated Johnson, who complained of shortness of breath. Abdullah ordered a series of tests. He later contacted the surgeon and ordered an abdominal and pelvic CT scan. Johnson was transported for the scan roughly between 2:30 a.m. and 2:45 a.m. During the test, he stopped breathing and went into cardiac arrest, but was resuscitated. Later that morning, Johnson had surgery for a perforated colon.

As a result of the cardiac arrest, Johnson experienced a lack of oxygen that caused a brain injury that left him in a vegetative state. He was released from the hospital on Oct. 27 and was moved to a long-term nursing facility.

Patient’s Brother Sues Doctors and Hospital
Johnson’s brother, who was appointed as Johnson’s guardian, filed a medical malpractice lawsuit in September 2012 against the hospital, Mirza, Daugherty, and Abdullah, alleging negligence. The hospital, surgeon, and primary care doctor settled with the Johnsons.

In March 2017, the case against Abdullah went to trial, which focused on whether Abdullah was negligent because he didn’t recognize Johnson’s deteriorating respiratory state and intubate him in the emergency department before the abdominal CT scan. Experts testified for the Johnsons and for Abdullah.

Dr. Robert Walls, chief operating officer of the Brigham Health hospital system and professor of emergency medicine at Harvard Medical School, was one of Abdullah’s expert witnesses. The Johnsons objected to Walls’ testimony, arguing the doctor didn’t meet the clinical practice requirements for an expert witness in a medical liability case under Ohio’s evidence rules.

The trial court questioned Walls and determined he met the requirements to testify. Walls and Abdullah’s other expert witnesses maintained that the standard of care for Johnson didn’t necessitate that he should have been intubated earlier. The jury found Abdullah wasn’t negligent in Johnson’s care.

The Johnsons appealed several issues to the First District Court of Appeals. The appeals court reversed the jury verdict, determining that Walls shouldn’t have testified because he didn’t spend at least half of his professional position in the active clinical practice of medicine, as required by Ohio evidence rules. Finding that the other issues the Johnsons raised were moot, the court ordered a new trial without Walls’ participation.

Abdullah appealed to the Ohio Supreme Court, which accepted the case. The Supreme Court will consider arguments in the appeal by videoconference because of the COVID-19 pandemic. The arguments will be livestreamed.

Testifying Doctor Spent 75% of Time in Clinical Role, Emergency Physician Argues
Rule 601 of the Ohio Rules of Evidence states that a person giving expert testimony on the issue of liability in any medical claim is disqualified unless the person meets three requirements. One requirement is that “the person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school.”

Quoting parts of Walls’ testimony about his professional experience, Abdullah states that at the time Johnson was treated in 2011, Walls spent 75% of his professional time practicing in the emergency department and teaching. Walls’ role remained the same during the first few years of the litigation in this case, but in 2015 his role changed and he was no longer “a hands-on practitioner” in the emergency department, Abdullah’s brief notes. However, Abdullah maintains, Walls continued to write and edit medical textbooks and teach intubation, and he was responsible for the clinical care of patients in the hospital. Far from a “hired gun,” Walls was one of the most qualified expert witnesses to testify about whether to intubate a patient in an emergency department setting, Abdullah states.

This expertise and clinical practice led the trial court to decide that Walls met the requirements of Rule 601 at the time of trial, Abdullah notes. He maintains that the trial court is in the best position to judge witness competence. The First District cannot substitute its judgment for that of the trial court unless the trial court’s action was unreasonable, arbitrary, or unconscionable, but that wasn’t the case here, Abdullah contends.

Testifying Doctor Devoted Less than 50% to Clinical Practice, Patient’s Brother Argues
Also quoting parts of Walls’ testimony and his deposition about his professional experience, the Johnsons counter that Walls said he spent 90% of his time after 2015 on administrative and executive matters. Even in 2011, Walls devoted less than half his time to active clinical practice or instruction, the Johnsons calculate. They maintain in their brief that case law on this issue makes clear that administrative work isn’t active clinical practice, and interpreting Rule 601 otherwise would stretch it “beyond the breaking point.”

This isn’t a case in which the trial court used its discretion to decide a contested factual issue, the Johnsons maintain. Instead, they argue, this is a case in which the First District corrected the application of Rule 601, which the trial court ignored.

The Johnsons’ brief also presents arguments on the issues that weren’t addressed by the First District, asking the Court provide a remedy for the trial court’s other errors.

Kathleen Maloney

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

Representing Anthony J. Abdullah: John Welch, 937.296.1600

Representing Mark Johnson, individually and as guardian of David Johnson, et al.: Dwight Brannon, 937.228.2306

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Did Court’s Closure of Trial Violate Defendant’s Constitutional Rights?

State of Ohio v. Khairi A. Bond, Case No. 2020-0415
Fifth District Court of Appeals (Richland County)

ISSUE: Does a trial court violate a defendant’s constitutional right to a public trial by partially limiting courtroom access to the trial?

Khairi Bond was charged in June 2018 on two counts of murder with firearms specifications. Bond’s trial began in March 2019. On the third day of the trial, an altercation took place outside the courtroom during a recess, damaging Richland County courthouse property.

For the remainder of the trial, the court limited access to the courtroom to Bond’s family and the victim’s family. Bond’s attorney didn’t object to the court’s decision.

Bond was found guilty of one count of murder and one firearm specification. The court sentenced him to 18 years in prison.

Bond appealed to the Fifth District Court of Appeals, which overturned his conviction. The Fifth District determined that Bond’s right to a public trial under the U.S. Constitution’s Sixth Amendment was violated by the courtroom’s closure.

The Richland County prosecutor appealed to the Ohio Supreme Court, which agreed to review the case. Because of social distancing guidelines during the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Analyzing Constitutionality of Trial Closures
The briefs in this case state that a violation of a defendant’s right to a public trial under the Sixth Amendment is considered a “structural error,” which is a mistake that affects the framework of the trial rather than simply an error in the trial process. When an accused is deprived of a constitutional right that is structural, a fair trial cannot be ensured because the trial is fundamentally flawed. If a defendant doesn’t object to an alleged violation of the right to a public trial, the failure to object doesn’t waive the constitutional right, the briefs note.

The parties’ arguments in this case center on four factors for analyzing whether the closure of a trial is constitutional when the defendant doesn’t object at trial. The factors are described in the U.S. Supreme Court’s 1984 decision in Waller v. Georgia:

“… the party seeking to close a public hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”

In State v. Drummond (2006), the Ohio Supreme Court concluded that when a trial is partially, rather than completely, closed, the justification for the trial’s closure must be for a “substantial reason” instead of for an “overriding interest.”

Court’s Actions Didn’t Infringe on Defendant’s Constitutional Right, State Contends
The Richland County Prosecutor’s Office notes that because the court only partially closed Bond’s trial, the court need only have a substantial reason for the closure. The prosecutor points to the altercation in the hallway that resulted in damage to a candy machine, contending that limiting who could enter the courtroom afterward reduced the likelihood of another incident.

The prosecutor also maintains that the court’s closure was limited in scope and duration because the courtroom wasn’t closed until the third day of a five-day trial and wasn’t closed to everyone. The office also suggests the closure didn’t apply to the press or the public.

The office argues the partial closure represented an alternative remedy to a full closure, noting that the courtroom was closed for only part of the trial and that family members of Bond and the victim were permitted to stay.

Although the Fifth District ruled the trial court made no findings beyond stating that a hallway argument led to the breaking of a vending machine, the prosecutor counters that the judge also said no one from the families of the parties were involved, explaining why they were allowed to remain in the courtroom.

The prosecutor maintains that the trial court considered the factors in Waller to support closing the courtroom, so Bond’s constitutional right to a public trial wasn’t violated. The Fifth District’s decision should be overturned, the prosecutor concludes.

Court’s Actions Didn’t Meet Requirements for Closing Public Trial, Man States
Bond points out that the Fifth District concluded the trial court gave no substantial reason for the courtroom’s closure. The record didn’t describe who was involved in the altercation, their relationships to the parties or witnesses, what the disagreement was about, or whether any witnesses were fearful or needed protection, Bond’s brief states. Courtrooms can’t be closed for every minor disturbance, the brief maintains.

On the remaining Waller factors, Bond contends that the prosecutor’s brief “conjur[es] up its own explanations that are supported nowhere in the record.”

The trial judge said, for example, “We will only allow immediate family members,” which directly contradicts the prosecutor’s assertion that media and the public also were permitted to stay in the courtroom. Closing half of the trial and excluding members of the public who weren’t involved in the altercation was overly broad, Bond concludes.

He also maintains there were other less-onerous alternatives to closing the trial’s second half, which included witness testimony, closing arguments, and jury instructions. In his view, the court could have excluded only those involved in the altercation or implemented additional security measures, such as posting a deputy at the door.

Bond argues the trial court’s findings based on the record weren’t adequate to justify the decision to close the courtroom and weren’t specific enough for a reviewing court to evaluate whether the closure order was proper.

He contends that the prosecutor is simply asking the Court re-review the facts in this case with the hope that its analysis will generate a different outcome, which will offer no guidance to Ohio courts on closing trials to the public.

Kathleen Maloney

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 Richland County Prosecutor’s Office: Joseph Snyder, 419.774.5676

Representing Khairi A. Bond: Charles Koenig, 614.454.5010

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