Wednesday, April 27, 2022
State of Ohio v. Emile L. Weaver, Case No. 2021-0622
Fifth District Court of Appeals (Muskingum County)
State of Ohio v. Alan Schubert, Case No. 2021-0761
Fifth District Court of Appeals (Licking County)
State of Ohio v. Andre Sanford, Case No. 2021-0801
Ninth District Court of Appeals (Lorain County)
Should Appeals Court Scrutinize Trial Judge’s Assessment of Maternal Mental-Health Expert?
State of Ohio v. Emile L. Weaver, Case No. 2021-0622
Fifth District Court of Appeals (Muskingum County)
ISSUES:
- To what extent must an appeals court defer to the trial judge’s determination of a witness’ credibility?
- Must an appeals court overturn a trial court decision if the appeals court determines the judge was biased or prejudiced?
BACKGROUND:
In 2014, Emile Weaver was a sophomore at Muskingum University in New Concord, Ohio, when she received pregnancy test results from the university’s wellness center. Weaver didn’t respond to multiple messages informing her of a positive test, including not opening a certified letter containing the results.
Over the next several months, Weaver made no preparations for her pregnancy and continued to participate in normal college events. She didn’t feel typical signs of pregnancy, such as gaining weight or experiencing morning sickness. Without planning or medical care, Weaver delivered her baby in a basement bathroom of the sorority house where she lived. After giving birth in April 2015, Weaver put the infant in a trash bag and placed the trash bag outside by the sorority house trash cans. In the hours after the birth, those around Weaver reported nothing that indicated she had just given birth.
Body Discovered, Police Question Student
Two of Weaver’s sorority sisters discovered the trash bag, and police were called to the scene. Weaver was taken to the police station, where a detective interviewed her on and off for about five hours. Weaver described the infant’s birth and death.
Four months later, Weaver was indicted on one count of aggravated murder and three other counts. She pleaded not guilty to the charges and declined a plea deal. At her trial, which began in May 2016, her defense attorney presented little evidence about her maternal mental health and didn’t present any expert witness testimony on the high-risk pregnancies arising from mental-health issues or concerns regarding pregnancy denial or pregnancy concealment.
Weaver was convicted of all charges. At a sentencing hearing, Weaver’s attorney presented a short statement regarding neonaticide, which is the murder of an infant within 24 hours of birth. The attorney didn’t refer to Weaver by name when discussing neonaticide or provide further explanation as to why her mental condition would justify granting a sentence less than the maximum that could be imposed.
The trial judge sentenced Weaver to life in prison without the possibility of parole for aggravated murder, and four years for the other charges. Weaver appealed the conviction to the Fifth District Court of Appeals, which upheld the trial court’s decision. In 2018, the Supreme Court of Ohio declined to review her case.
Student Makes More Legal Claims After Conviction
Aside from appealing a conviction, an offender can seek “postconviction relief” from Ohio courts, raising legal arguments that couldn’t be considered during the appeal. Weaver filed this type of request in September 2017, arguing she was entitled to a new trial because her trial counsel was ineffective. Her petition included a report from an expert on neonaticide, stating Weaver likely suffered from mental-health problems that contributed to the murder. She argued the attorney failed to present evidence concerning neonaticide.
The petition was filed with the same trial judge who sentenced her to life in prison. Without a hearing, the judge denied her request to present new legal claims in her case. Weaver appealed to the Fifth District, which found that, based on reports from the neonaticide expert, the trial judge should conduct a hearing to determine if Weaver’s lawyer represented her effectively at her trial. The case returned to the trial court.
Trial Court Skeptical of Expert Witness
At the hearing, Diana Barnes, a psychotherapist who specializes in maternal mental health, testified about pregnancy negation, a syndrome that includes pregnancy denial and concealment. She testified those behaviors can lead to neonaticide and that Weaver fit the profile of someone who experienced both denial and concealment. Barnes explained that Weaver’s detached demeanor and lack of preparation aligned with her research on pregnancy negation syndrome.
Muskingum County prosecutors cross-examined Barnes and challenged her theories. At the conclusion of her testimony, prosecutors asked that the psychotherapist’s testimony not be considered because she wasn’t credible. The trial judge denied the request, but after closing arguments concluded, he immediately announced his decision from the bench. The judge stated that Barnes’ testimony was “the most unusual” he had heard in 40 years from an expert witness and noted that she wasn’t a medical doctor. He found her testimony wasn’t credible and dismissed Weaver’s case.
Weaver appealed to the Fifth District, which expressed some concerns with the trial judge’s actions during the trial. However, the appeals court affirmed the trial court’s decision, and Weaver appealed to the Supreme Court.
The Supreme Court agreed to hear the case at a special off-site court session in Fayette County.
Hearing Was Unfair, Student Asserts
Weaver argues the hearing was unfair and that different standards of review should apply in cases like hers. Applying those standards, she argues that her sentence should be vacated and a new sentencing hearing held. Weaver faults the appeals court for not closely examining the trial judge’s behavior and his ruling that Weaver’s key witness, Barnes, wasn’t credible.
The Fifth District had cited two Supreme Court of Ohio decisions that explained that the credibility of a witness is primarily determined by the “trier of facts.” The appeals court deferred to the trial judge’s determination about the psychotherapist’s credibility, and found the judge was within his discretion to deny a new trial for Weaver.
Weaver maintains, though, that the Fifth District is incorrectly relying on court decisions dealing with deference to juries regarding witness credibility. That standard doesn’t apply to a judge hearing a postconviction appeal, Weaver asserts. Instead, the appeals court had to ensure that the trial judge explained the reasoning for his decision and that there was competent and credible evidence to support the ruling, she argues.
Weaver maintains the judge’s explanation for discrediting Barnes contradicted the evidence presented in court. If the appeals court had closely examined what transpired, rather than deferring to the judge’s assessment, it would have found that the judge had no basis to discredit Barnes, Weaver asserts. She argues the appeals court should have ordered the trial court to conduct another hearing.
Weaver also asserts that the judge, who sentenced her to life in prison without the possibility of parole, was biased against her. She maintains the judge was displeased that the appeals court directed him to conduct a hearing. Weaver maintains the Fifth District again failed her when it didn’t ensure a hearing before an impartial judge
Judge Correctly Assessed Expert’s Credibility, Prosecutor Asserts
The Muskingum County Prosecutor’s Office notes it challenged Barnes’ credibility at the hearing after researching her assessment of Weaver and her reports on behalf of others accused of neonaticide. The office argues that Barnes presented misleading statistics, and her conclusion that Weaver suffered from maternal mental-health issues wasn’t based on any diagnostic test.
The prosecutor cites the Supreme Court of Ohio’s 2006 State v. Gandor, which found a trial judge’s decision receives the same deference by an appeals court as a jury’s decision. The office explains the trial court is the only court that actually hears the testimony. That holds true for this hearing where the trial judge saw and heard the witnesses and was in a much better position to weigh their credibility than an appeals court. The trial judge’s decision that Barnes wasn’t credible was supported by the evidence, and the appeals court correctly deferred to the trial court’s judgment, the prosecutor concludes.
The prosecutor also rejects Weaver’s claim that the trial judge was biased against her. The office argues that Weaver failed to show any bias given that the judge allowed her to present the expert witness of her choice and new evidence. In the end, the judge ruled that there were ample reasons not to believe Barnes and that Weaver’s original trial attorney was not ineffective by not having an expert witness at the trial, the prosecutor concludes.
Attorney General Sides With Prosecutor
The Ohio Attorney General’s Office submitted an amicus curiae brief supporting the prosecutor’s position. The attorney general received the Court’s permission to share 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.
Contacts
Representing Emile L. Weaver from the Ohio Public Defender’s Office: Rachel Troutman, 614.466.5394
Representing the State of Ohio from the Muskingum County Prosecutor’s Office: Taylor Bennington, 740.455.7123
Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Did Evidence Support Warrant to Search Cellphone After Car Crash?
State of Ohio v. Alan Schubert, Case No. 2021-0761
Fifth District Court of Appeals (Licking County)
ISSUE: Is a warrant valid when the affidavit submitted to a court to obtain the warrant states that the police “may” find evidence on a cellphone of how a car crash occurred?
BACKGROUND:
In June 2018, an Ohio State Highway Patrol trooper was called to the location of a car crash on State Route 37 in Licking County. During the investigation, officers collected three cellphones from the ground near the vehicles. The trooper determined that a Jeep SUV traveling south at about 4 p.m. had crossed left of center into the northbound lane and collided with a Chrysler. The person driving the Chrysler, Kristen Bergund, died at the scene. Alan Schubert, the Jeep’s driver, was injured and transported to the hospital.
At the hospital, Schubert’s blood was drawn and tested. A trooper obtained a search warrant from a judge for the blood samples and retrieved them from the hospital the day after the crash. Schubert’s blood tested positive for amphetamine and methamphetamine.
Law enforcement also requested a warrant to search the cellphones found at the accident, and a judge approved the search warrant in November 2018. Officers found photos believed to be naked minors on one of the phones. Law enforcement requested another warrant for further searches of that phone based on suspicion of criminal activity. A judge issued the warrant.
A Licking County grand jury indicted Schubert on two counts of aggravated vehicular homicide and six counts of pandering obscenity involving children. “Pandering obscenity” occurs when someone creates, reproduces, publishes, advertises, sells, distributes, displays, or buys obscene material that includes a minor.
Trial Court Reviews Legality of Search Warrants
In October 2019, Schubert asked the Licking County Common Pleas Court to exclude the results of his blood test and the evidence found on his cellphone. Schubert points to the U.S. Constitution’s Fourth Amendment, which protects people from unreasonable searches and seizures.
Among his arguments, Schubert maintained there was no probable cause shown to allow a search of the phones. The court overruled his request to exclude, or suppress, the evidence. The court noted that there were no witnesses to the crash and its cause wasn’t known when the cellphone warrants were requested. The purpose of the search was to find out who the phones belonged to, if they were in use when the accident happened, and whether distracted driving might have led to the crash, the trial court stated.
After the court ruled that the cellphone evidence could be considered, Schubert pled no contest to all charges. He was convicted and sentenced to 12 years in prison – eight years for vehicular homicide and four years for pandering obscenity.
Appeal Questions Basis for Search Warrants
Schubert appealed to the Fifth District Court of Appeals. In his appeal, he challenged the phone search warrants, arguing nothing indicated that a cellphone was in use at the time of the crash. The appeals court agreed, unanimously ruling that law enforcement didn’t establish probable cause to support the first warrant to search the cellphones. However, two of the three judges upheld the warrant based on an exception when officers act in good faith.
Specifically, the majority opinion stated that the officers who collected the evidence had an “objectively reasonable reliance” on the search warrant’s validity. In circumstances in which an officer acts in good faith, reasonably believing a warrant is valid, prosecutors aren’t prevented from using the evidence in court, the appeals court concluded.
Schubert appealed to the Supreme Court of Ohio, which agreed to review the challenge to the cellphone search warrant. The Supreme Court will hear oral argument in the case at a special off-site session in Fayette County.
Content of Request Lacked Facts to Justify Warrant, Offender Maintains
The affidavit provided by a trooper asking a court for the first warrant to search the cellphones stated:
“[The officer] avers, based on his knowledge, training and experience, the digital devices in question, may contain additional evidence into the criminal investigation. The digital device may contain personal identifiers for the owner, also date and time stamps for incoming and outgoing calls, text messages and/or Internet brow[s]ing information. The [officer] submits the digital device in question may contain evidence to phone conversations, texting, and/or video related to the crimes reference[d].”
Schubert argues this affidavit contained no facts to explain why the officer believed evidence about the crash would be found on the cellphones. For example, nothing in the warrant request established that he was holding a cellphone or checking it when the collision occurred, he notes. The request also didn’t identify a connection, or “nexus,” between the car crash and the place to be searched – the cellphones, he maintains. He states that law enforcement merely speculated that the cellphones “may” have evidence explaining the cause of the accident.
This kind of “bare bones” affidavit – noting only suspicions or beliefs without any underlying facts to support them – doesn’t provide the probable cause that is necessary for a warrant, Schubert’s brief contends. Without the facts to support a search warrant, an officer cannot reasonably believe the warrant is valid, his brief argues. When the evidence from a search is based on an invalid warrant, the evidence can’t be considered in court, he contends.
In summary, Schubert’s brief argues the warrant was issued in violation of the Fourth Amendment, which protects people from “the police’s arbitrary invasions of our privacy.”
“If indeed the whole point behind the Fourth Amendment is to prevent zealous officers from having cart[e] blanche to ferret out crime, then surely, this Court must prevent zealous officers from using a car crash to carte blanche search the entire contents of somebody’s phone, merely because it is possible, without proof, that there is evidence of crime there,” the brief states.
Request Only Requires ‘Fair Probability’ of Finding Evidence, State Argues
The Licking County Prosecutor’s Office responds that the cellphones could have belonged to Schubert, the woman who died in the crash, or anyone else. The information on the phones was important to explain whether distracted driving caused the deadly collision, the office states.
The prosecutor maintains that an affidavit requesting a search warrant needs to show only “a fair probability that contraband or evidence of a crime will be found in a particular place,” quoting a 1983 U.S. Supreme Court decision. The prosecutor argues that the Fourth Amendment simply requires a warrant request to include a “substantial basis” for a judge to conclude that the search will uncover evidence of a crime. And a judge reviews all circumstances when deciding whether an officer has an appropriate basis for suspecting wrongdoing, the prosecutor states.
Evidence should be excluded only when the benefits of deterring police from conducting illegal searches outweighs the costs of keeping “inherently trustworthy tangible evidence” away from the jury, the prosecutor’s brief contends. Evidence shouldn’t be excluded when law enforcement acted in good faith, the brief maintains. The prosecutor argues that only when officers act with deliberate, reckless, or grossly negligent disregard for the Fourth Amendment should evidence from a search be prevented from being considered in court.
The prosecutor adds that the judge who issued the search warrant for the phones and the judge who presided over the hearing reviewing whether to allow the cellphone evidence both agreed that probable cause was established for a search.– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Alan Schubert: April Campbell, 614.356.8515
Representing the State of Ohio from the Licking County Prosecutor’s Office: Clayton Mischka, 740.670.5255
Do Lab Results of Drugs in Driver’s Body Reset Speedy Trial Timetable?
State of Ohio v. Andre Sanford, Case No. 2021-0801
Ninth District Court of Appeals (Lorain County)
ISSUE: Are the results of laboratory tests from samples taken on the day of arrest considered “new information,” which could alter the calculation of speedy trial time?
BACKGROUND:
Early on the morning of Oct. 6, 2016, Andre Sanford was driving a car when he hit a motorcycle, killing the motorcyclist. Sanford and his passenger, who was his brother, fled the scene on foot. Sanford was injured in the accident and, about 90 minutes later, the brothers turned themselves in at the Elyria Police Department.
Sanford was taken to a local hospital for treatment. While there, an officer presented him with a form known as a BMV 2255, which indicates the individual is suspected of operating a motor vehicle under the influence of alcohol and/or a drug of abuse (OVI). The officer read the information on the form to Sanford, which indicated he was under arrest for OVI. The officer requested he submit a blood sample. After speaking to another officer, Sanford signed a separate form. Both forms indicated Sanford’s agreement to cooperate and provide a blood sample.
Sanford told the police he and his brother had been drinking whiskey and smoked two marijuana “blunts” the night of the accident. When he was released from the hospital, Sanford was arrested and charged with one count of failure to stop after an accident. He was told the accident was under further investigation, and he was incarcerated in the Lorain County Jail.
Sanford remained in the jail from the date of his arrest until Jan. 9, 2017, which was 105 days. The day after the arrest in October 2016, police submitted his blood samples to a regional forensic laboratory for analysis. Elyria police received the test results on Nov. 14, 2016, revealing that Sanford had sufficient marijuana metabolites in his system to be charged with OVI.
In December 2016, Sanford was indicted by a Lorain County grand jury on seven counts, including the original charge on failure to stop after an accident. The additional charges included two counts of aggravated vehicular homicide and two charges of OVI. One OVI charge was for driving under the influence of alcohol, a drug of abuse, or a combination of both. The second was a “per se” OVI based on being above the legal limits for marijuana. Conviction on an OVI charge was necessary to convict Sanford of the most serious charge he faced— aggravated vehicular homicide under R.C. 2903.06(A)(1).
Suspect Seeks Case Dismissal
On Jan. 9, 2017, Sanford asked the trial court to drop the charges and dismiss the case because his speedy-trial rights were violated. He argued he was jailed for 105 days, 15 more than allotted under Ohio’s speedy-trial statutes. The trial court partially agreed, dismissing three charges, but retaining the two vehicular-homicide and two OVI charges.
Sanford then pleaded no contest to the remaining charges and was sentenced to eight years in prison. He appealed his conviction to the Ninth District Court of Appeals.
The Ninth District ruled that the speedy-trial clock expired for two charges — one of the vehicular-homicide charges based on reckless driving and an OVI charge. The court noted that when an offender admits to a police officer that he consumed alcohol or drugs while driving, the offender can be convicted for OVI under R.C. 4511.19(A)(1)(a) for driving under the influence. The police didn’t need any more information after Sanford’s October arrest to charge him with OVI.
The Ninth District wrote that the speedy-trial calculation dating back to the October arrest date didn’t apply to the other OVI charged based on marijuana metabolites because the results weren’t known until mid-November. The Ninth District ruled the aggravated vehicular homicide based on the marijuana-related OVI also wasn’t subject to the original speedy-trial calculation. The appeals court upheld Sanford’s conviction and prison sentence for those charges.
Sanford appealed to the Supreme Court of Ohio, which agreed to hear the case at a special off-site session in Fayette County.
Lab Results Not New Information, Driver Argues
Criminal defendants are guaranteed the right to a speedy trial under the U.S. and Ohio constitutions. Ohio’s speedy-trial laws states that a defendant charged with a felony must be tried within 270 days unless the defendant waives the speedy-trial rights or an exception to the law applies. Each day a person is held in jail pending trial counts as three days toward the speedy-trial limit. Neither party disputes that Sanford didn’t waive his rights and was in jail for more than 90 days.
Sanford and the Lorain County Prosecutor’s Office discuss the Supreme Court of Ohio’s 1997 State v. Baker decision, which held that if the state didn’t know of the facts at the time of the original charge, then the original speedy-trial timetable doesn’t apply. Sanford urges the Supreme Court to clarify Baker by ruling that laboratory results based on samples taken on the day of arrest don’t count as “new information” unknown to the state at the time of the arrest.
Sanford notes that while he was charged on the date of the accident only with failure to stop, police read him a form stating he was under arrest for OVI and took his blood sample as proof of the charge. Sanford admitted he was drinking and smoking marijuana at the time of the accident. The lab tests confirmed the acts he was eventually charged for, and all those acts took place on Oct. 6, 2016. The lab results didn’t establish new facts that led to the OVI and vehicular-homicide charges, it only confirmed the allegations for which he was arrested, he argues.
Sanford notes his trial attorney told the trial court that lab results in nearly all drug arrests are received long after the day of the arrest. If lab results are used to reset the speedy-trial clock, then defendants could remain in jail indefinitely as the state attempts to “boost” their cases with additional information, Sanford’s brief states.
In Baker, the Court stated that the exception to the speedy-trial rule for new information is necessary to allow the state to pursue complex cases. Sanford argues that his case isn’t complex and the lab results relate to a crime the state knew about — his intoxicated driving — at the time of his arrest. The exception in Baker shouldn’t apply, and the charges against him should be dismissed, he concludes.
Speedy-Trial Clock Properly Reset, Prosecutor Asserts
The prosecutor’s office maintains the 270-day speedy-trial clock for the vehicular homicide based on the marijuana level in Sanford’s blood started on Dec. 29, 2016, when he was indicted on seven counts. The office asserts that the state could only bring the charge after receiving the result of the toxicology report from the lab that analyzed Sanford’s blood.
The prosecutor notes that while officers read Sanford the information on the BMV 2255 form, they specifically told him he was not under arrest for OVI. He was told he was being charged with failure to stop and that the accident was still under investigation. The office asserts that Sanford’s case is more complex than he states. Sanford’s admission that he smoked two blunts of marijuana and consumed whiskey doesn’t demonstrate that he had a sufficient level of intoxicants in his system to charge him with a crime. The only way the state could verify that Sanford was illegally under the influence of marijuana was through sophisticated lab testing, the office’s brief explains.
The prosecutor argues that the rule under Baker properly restrains the state from overcharging suspects based on suspicions at the time of arrest out of fear of running out of time to prosecute the case. The Baker decision permits the speedy-trial clock to be reset when the facts couldn’t be known at the time of an arrest. The state didn’t charge Sanford with aggravated vehicular homicide based on an OVI until it confirmed with the lab test that Sanford was actually under the influence. The testing for marijuana metabolites is complex and fits within the Baker rule, the prosecutor concludes.
Attorney General Office Participating in Oral Arguments
The Ohio Attorney General’s Office submitted an amicus curiae brief supporting the county prosecutor’s position. The Court granted the attorney general’s request to divide oral argument time with the prosecutor.
Friend-of-Court Brief Submitted by Defense Lawyers
An amicus brief supporting Sanford’s position has been submitted by the Ohio Association of Criminal Defense Lawyers.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Andre Sanford: Giovanna Bremke, 440.340.3938
Representing the State of Ohio from the Lorain County Prosecutor’s Office: Lindsey Poprocki, 440.329.5393
Representing the Ohio Attorney General’s Office: Michael Hendershot, 614.466.8980
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 aren’t part of the case record, and aren’t considered by the Court during its deliberations.