Wednesday, April 24, 2024
State of Ohio v. DuJuan Wiley, Case No. 2022-1114
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Delmar L. Hickman, Case No. 2023-0889
Eleventh District Court of Appeals (Ashtabula County)
Look Ahead America et al. v. Stark County Board of Elections et al., Case No. 2023-1059
Fifth District Court of Appeals (Stark County)
Can Shooter Who Killed Fleeing Attacker Be Retried for Murder?
State of Ohio v. DuJuan Wiley, Case No. 2022-1114
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- When a criminal case is retried, does the second jury have to accept the first jury’s decision that the accused acted under the influence of sudden passion or in a sudden fit of rage brought on by serious provocation by the victim?
- When a criminal case is retried, and the first jury finds the accused acted under passion or rage after being seriously provoked by the victim, does the second jury have to consider serious provocation for every charge the accused faces?
BACKGROUND:
In 2018, DuJuan Wiley sold drugs. Antoine Reese, who had previously bought drugs from Wiley, went to a Cleveland home to find Wiley. Reese was accompanied by his brother and his uncle. One of them had a handgun. Wiley and his girlfriend were in an upstairs bedroom when the three men forced their way in. Reese attacked the girlfriend, the others attacked Wiley, and the gun fell on the bed. Wiley retrieved it as the attackers ran out of the house. He chased the men through the house and shot Reese in the back. Reese died from the gunshot wound.
Wiley jumped out of a second-floor window and went into hiding. In February 2020, Cleveland police received a tip about drugs being sold from a different Cleveland apartment and got a search warrant. Police discovered Wiley and his girlfriend and located illegal drugs, drug paraphernalia, and the handgun used to kill Reese.
A Cuyahoga County grand jury indicted Wiley in two separate cases, one regarding the crimes that occurred in September 2018, including killing Reese, and the other alleging the drug-related crimes in February 2020.
Plea Deal Sought, Charges Explained to Jury
Wiley was indicted for felonious assault, felony murder, and voluntary manslaughter. The Cuyahoga County Prosecutor’s Office stated it hoped to resolve the case by Wiley pleading guilty to voluntary manslaughter. Wiley refused, claiming he wasn’t guilty because he acted in self-defense.
At his trial, the prosecutor had two theories. The first involved felony murder. Under a state law, R.C. 2903.02(B), felony murder occurs when the accused murders a person while committing or attempting to commit a felony, including felonious assault.
The second theory was that Wiley committed voluntary manslaughter. Under R.C. 2903.03(A), voluntary manslaughter occurs when the accused causes a death “while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation by the victim that is reasonably sufficient to incite the person using deadly force.”
Before the jury deliberated, it received an instruction from the trial judge about the different murder charges. The jury was told that to convict Wiley of voluntary manslaughter, it must find he acted under the influence of sudden passion or in a sudden fit of rage brought on by the serious provocation by Reese.
When explaining the felonious assault and felony murder charges, the judge didn’t instruct the jury to consider whether Reese seriously provoked Wiley.
The jury rejected Wiley’s self-defense claim and found him guilty of all charges. Although Wiley was convicted of felony murder, the prosecutor requested that the trial court not sentence Wiley for felony murder. Instead, the trial court sentenced Wiley for voluntary manslaughter and all the rest of his charges from the two cases.
The trial court imposed a 14-year prison sentence for voluntary manslaughter while using a gun. Wiley also received a 7.5-year sentence for drug-related offenses for a total of 21.5 years in prison.
Appeals Court Orders New Trial
Wiley appealed his conviction to the Eighth District Court of Appeals. He argued the trial court failed to instruct the jury to consider that he shot Reese after he was seriously provoked. The Eighth District ruled that the jury received faulty instructions and ordered a new trial where a jury would reconsider the felony murder, felonious assault, and voluntary manslaughter charges.
Wiley appealed that decision to the Supreme Court of Ohio, arguing that because a jury already concluded he was seriously provoked, he could only be tried the second time for voluntary manslaughter. He argued he couldn’t be retried for felony murder and felonious assault. The Supreme Court agreed to hear the case.
Constitution Prevents Second Murder Trial, Accused Argues
Wiley explains that the U.S. and Ohio constitutions have double jeopardy clauses prohibiting a person acquitted of a crime from being tried again for the same crime. He notes that the double jeopardy protection encompasses a principle known as “collateral estoppel,” which means that once a factual issue is decided in a court’s final judgment, then that issue can’t be contested again by the same parties in any future lawsuit.
Wiley argues that since the jury found him guilty of voluntary manslaughter, it means that he acted after being seriously provoked by Reese. If a second trial occurs, the trial court must accept that finding, and then he can’t be found guilty of felonious assault, Wiley argues.
Instead, prosecutors would have to pursue another theory, he notes. If he were found to have committed assault after being seriously provoked, he could only be charged with the lesser offense of aggravated assault, he maintains. And because he can’t be found guilty of felonious assault, felonious assault can’t be used as the reason to charge him with felony murder. If he were to be tried for killing Reese based on an aggravated assault, he could only be charged with the lesser offense of involuntary manslaughter, he asserts.
If he is retried, the most serious crime he could face is voluntary manslaughter, and two lesser charges of aggravated assault and involuntary manslaughter, he concludes.
Retrial Rule Doesn’t Apply to Accused, Prosecutor Asserts
The Cuyahoga County Prosecutor’s Office maintains that Wiley is trying to stretch the collateral estoppel rule to apply to his case without legal precedent to back it up. The prosecutor notes that Wiley is relying on two decisions by the U.S. Supreme Court, in which collateral estoppel was used to limit the charges in retrials. However, in those cases, the accused was either acquitted of a charge or a jury agreed to a guilty verdict for a lesser charge. In the second case, the accused couldn’t be retried for the more serious charge because the first jury settled on the lower charge, the office explains.
These scenarios aren’t the same as Wiley’s situation, the prosecutor notes, as he was found guilty on all three charges. A final judgment of an acquittal is binding on a second jury, but there are no restrictions on a second jury if the first jury found the accused guilty of the crimes, the office concludes.
First Jury Reached Proper Result, Prosecuting Attorneys Association Asserts
The Cuyahoga County prosecutor urges the Supreme Court to consider additional arguments discussed in an amicus curiae brief from the Ohio Prosecuting Attorneys Association.
The association maintains that based on Wiley’s trial strategy, the judge intentionally didn’t instruct the jury on Reese’s provocation for the felony murder and felonious assault charges.
By claiming self-defense, Wiley attempted an “all or nothing” strategy, the association notes. Although he admitted to shooting Reese, if the jury agreed that it was in self-defense, he would have been found not guilty of felonious assault or felony murder. However, to claim self-defense, Wiley argued that he shot Reese out of fear for his own life, the association explains.
Wiley’s attorneys accepted the trial court’s instructions that didn’t mention Wiley acting out of sudden passion or rage because they wanted the jury to consider that he was justified only out of fear, the association maintains. Acting out of passion or rage contradicts the argument of acting out of fear, the prosecutors explain, and Wiley chose to have the jury consider fear. The association argues that acting with passion or rage would prompt the jury to convict Wiley of lesser charges but would not acquit him. The trial court didn’t commit any errors when instructing the jury because Wiley gambled by using a self-defense claim, the association concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing DuJuan Wiley from the Cuyahoga County Public Defender’s Office: John Martin, jmartin@cuyahogacounty.us
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Daniel Van, dvan@prosecutor.cuyahogacounty.us
Must State Prove Danger to Public When Contesting Less Restrictive Mental Health Facility?
State of Ohio v. Delmar L. Hickman, Case No. 2023-0889
Eleventh District Court of Appeals (Ashtabula County)
ISSUE: Must the state present clear and convincing evidence of a public safety threat when opposing a change to a mental health commitment before a trial court can deny the request?
BACKGROUND:
In August 1984, Delmar Hickman was found not guilty by reason of insanity for the 1980 murders of his parents, Carl and Kathleen. Before his trial, Hickman had been diagnosed with intermittent explosive disorder, borderline intellectual functioning, schizoid personality, and seizure disorder.
At age 17 in August 1980, Hickman was at home in Ashtabula County with his parents and twin brother. Hickman said he used a rifle to shoot his mother and father multiple times, killing them. The trial court committed Hickman to a state psychiatric hospital. His commitment is subject to periodic reviews by the court.
Hickman was transferred in 1985 to Massillon State Hospital, which is now called Heartland Behavioral Healthcare. Hickman has been hospitalized since then at the Heartland treatment facility.
In November 2004, the court approved a change in Hickman’s restrictions at Heartland to “Level V,” which allows “non-secured” movement. Hickman was permitted to move around the community without supervision for specified lengths of time, returning to Heartland each day.
For more than two decades, Hickman worked full-time at Goodwill in Massillon. On one occasion, he got into an argument with a coworker and grabbed the coworker’s arms. Hickman was suspended from Goodwill for a few days. Heartland also had him take an anger management course. The Goodwill job ultimately ended when the store changed ownership.
Treatment Facility Recommends Less Restrictive Confinement
For 18 years, no changes were made to Hickman’s non-secured movement privileges. In October 2022, the Ashtabula County Common Pleas Court reviewed Hickman’s conditions of confinement. Heartland recommended that Hickman be moved to the Richwood Residential Center, an intermediate care group home in Geneva, Ohio. Richwood was described in court as having fewer restrictions for residents than Heartland and as providing 24/7 care and supervision. Heartland recommended Hickman’s “conditional release,” which is still a mental health commitment under state law and the person continues receiving treatment. The Ashtabula County prosecutor opposed the change.
Hickman’s treating psychiatrist, Dr. Lev Goldberg, testified at the court hearing. Goldberg reported that Hickman’s intellectual functioning was borderline. He has below-average cognitive ability but not as severe as an intellectual disability. Hickman was diagnosed with trauma- and stressor-related disorder. Goldberg stated that the 1983 diagnoses of intermittent explosive disorder and any antisocial personality disorders were “rejected by numerous psychiatrists who have worked with [Hickman].” The doctor noted in his evaluation that Hickman hadn’t exhibited significant violent behaviors or attitudes for more than three decades. The move to Richwood would be the least restrictive treatment setting consistent with public safety and Hickman’s welfare, Goldberg concluded.
Goldberg said that Hickman wasn’t medicated at Heartland until 2017. The doctor explained that Hickman was prescribed medicine at that time as a preventive treatment in preparation for Hickman leaving the hospital setting and reintegrating into the community. The medicine was prescribed to control impulsivity.
A second expert evaluated Hickman, as required by state law. Dr. Jessica Hart, a psychologist, found the same diagnosis and borderline intellectual functioning. She concluded that Hickman had a history of violence based on the underlying offenses, but he showed no indication of personality disorder, violent attitudes, or failure to comply with his treatment. Hart supported his move to the Richwood facility, contingent on his compliance with the release plan and his medication. The recommendation addressed both community safety and his treatment, Hart concluded.
Trial Court Finds Potential Threat to Public Safety
In November 2022, the trial court denied the recommendation. The judge found that Hickman “would benefit from continued treatment in a hospital setting to address his Borderline Intellectual Functioning, Intermittent Explosive Disorder, and Schizoid Personality Disorder as described in the reports.” The court determined that Hickman is “a potential threat to public safety and other people if he were to be released in an uncontrolled and unmonitored environment other than a hospital setting.” The court also stated that the prosecutor showed “by clear and convincing evidence that there is a danger and risk to public safety if the Conditional Release is allowed at this time.”
Hickman appealed to the Eleventh District Court of Appeals, which in May 2023 upheld the trial court decision. The appeals court noted that the trial court was incorrect when it found Hickman needed to continue treatment for intermittent explosive disorder and schizoid personality disorder. The Eleventh District determined, though, that the trial court decision about the potential threat to public safety wasn’t unreasonable, given Hickman’s history, and that monitoring at Richwood would be less restrictive than in a hospital setting.
Hickman appealed to the Supreme Court of Ohio, which agreed to hear his case.
Patient Argues State Didn’t Prove Threat to Public Safety
Hickman explains that R.C. 2945.401 – a law in the Ohio Revised Code – presents a comprehensive structure for trial courts that have ongoing jurisdiction over someone committed for mental health reasons. In division (G)(2) of R.C. 2945.401, the burden to oppose a change to a mental health commitment is placed on the government and requires clear and convincing evidence, Hickman notes. His brief contends that the language of the law is “clear and unambiguous” and reflects the intent of the Ohio legislature that the prosecutor carry the burden to show why the recommended change shouldn’t be made. R.C. 2945.401(I) explains that at the conclusion of the court hearing on the change, “the trial court may approve, disapprove, or modify the recommendation.”
Hickman maintains that the Supreme Court of Ohio in State v. Stutler (2022) stated that the various divisions in R.C. 2945.401 must work together. In Stutler, the Court wrote:
“R.C. 2945.401(I) may not be read in a vacuum. R.C. 2945.401(I) is part of a comprehensive statutory scheme that also requires the prosecutor to represent the state or the public interest, R.C. 2945.401(H), and to carry the burden of proving by clear and convincing evidence that the recommended change would result in a threat to public safety or any person, R.C. 2945.401(G)(2).”
Hickman maintains that no one suggested to the trial court that he be released from all monitoring and court supervision. Along with the doctors’ testimony, a conditional release plan was submitted to the court. The plan stated that an individual service plan for Hickman would be developed at Richwood, a treatment plan would be put together by the selected mental health provider, Hickman would meet monthly with a psychiatrist, and he would meet weekly with his case manager or community treatment team. A representative of the Ashtabula County Board of Developmental Disabilities also testified that Hickman qualified for a job, that his work schedule would be known to the Richwood staff, and that the staff had reporting obligations if Hickman was involved in any problematic incident.
Hickman concludes that the state presented no evidence to contradict the testimony or recommendation and no evidence that he was a threat to public safety or to any person.
State Counters That Plan Was Inadequate, Improved Health Not Shown
The Ashtabula County Prosecutor’s Office responds that Heartland didn’t file the required plan for implementing its recommendation, as required in R.C. 2945.401. The statute requires that a plan be developed if the proposed change would terminate the person’s mental health commitment or is the first request for a non-secured status. The plan must include a system for monitoring the person’s compliance with treatment that involves prescribed medication, including a schedule for the medication compliance checks.
The prosecutor argues that the conditional release plan given to the court didn’t meet what was required in the law. Goldberg’s statements in court that a nurse would monitor Hickman’s medications wasn’t included in the plan provided to the court, the prosecutor notes. No schedule for compliance checks was presented, the prosecutor adds. The trial court couldn’t conclude that Hickman would follow his treatment based on the submitted plan, especially because his borderline intellectual functioning limits his ability to understand and cope, the prosecutor argues.
The state’s brief contends that Hickman’s treatment has not improved his intellectual functioning, adding “[r]egretfully, [Hickman] for the most part remains stranded in time at the same place he was 37 years ago.” The prosecutor notes that Goldberg said Hickman’s limited intellectual functioning impacts his ability to talk about his feelings and that he requires a lot of support to deal with stressors. The proposed plan doesn’t provide adequate support, the prosecutor argues. The greater freedom at Richwood will include more stressors, and the concern is whether Hickman can adapt to the stresses in a way that doesn’t involve violence, the prosecutor contends. The prosecutor maintains that the state isn’t implying that the lack of progress is Hickman’s fault, but the circumstances reflect that Hickman poses a threat to public safety and to others.
The prosecutor acknowledges that the state has the burden of proof. The prosecutor maintains, however, that the state is permitted to argue that the lack of proof of Hickman’s wellness can be used to meet the state’s burden that Hickman is a danger. In addition, after the trial court reviews certain factors, it has unqualified discretion to make a decision regardless of the state’s burden in other parts of that law, the prosecutor argues. The trial court relied on the evidence before it to conclude that Hickman’s mental illness hasn’t be addressed adequately and the danger to the public remains, the prosecutor concludes.
State Public Defender Submits Arguments
The Ohio Public Defender’s Office filed an amicus curiae brief supporting Hickman.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Delmar L. Hickman from the Ashtabula Public Defender’s Office: Michael Ledenko, mledenko@ashtabulacountypd.com
Representing the State of Ohio from the Ashtabula County Prosecutor’s Office: Mark Majer, mrmajer@ashtabulacounty.us
Can Elections Officials Discuss Purchase of Voting Machines in Closed-Door Meetings?
Look Ahead America et al. v. Stark County Board of Elections et al., Case No. 2023-1059
Fifth District Court of Appeals (Stark County)
ISSUES: Does the Ohio Open Meetings Act allow for a closed-door executive session when a public body wants to discuss any property purchase for public purposes?
BACKGROUND:
After the 2020 presidential election, a controversy brewed nationally over the Dominion Voting Systems election equipment. About a month after the election, a dispute arose between the Stark County Board of Commissioners and the Stark County Board of Elections about purchasing Dominion equipment.
The Stark County Board of Elections had begun the purchasing process in 2018 including contacting certified vendors and scheduling live demonstrations of new equipment, which were open to the public. That year, the General Assembly set aside $104.5 million to help local boards of election pay for new voting machines. To be eligible for the funding, boards were required to select from a list of vendors certified by the Ohio secretary of state.
Board Discusses Selection in Closed Session
The board sought to use its rights under a state law, R.C. 3506.02, to recommend that the county commissioners purchase new voting equipment. During a December 2020 special meeting, the board announced it was going into a closed-door executive session “to discuss the purchase of property for public purposes.” The board reconvened in a public session and publicly voted to acquire Dominion voting equipment. The board announced it was submitting its recommendation to the county commissioners and a funding request for the equipment.
The county commissioners perceived the board’s request as a recommendation and told the board that the commissioners had the right to independently determine which type of equipment to buy. The commissioners also sent questions to the board, asking for further explanations of its choice. The board countered that the commissioners were required under R.C. 3506.03 to purchase equipment once the board recommended equipment.
The board met again in early January 2021, again going into executive session to discuss property purchases. Following the executive session, the board chairman told the public it stood by its decision to purchase voting equipment from Dominion. The board did the same at its regular February meeting.
In March 2021, the county commissioners voted unanimously not to adopt the board’s recommendation. The board met after the commissioners’ vote that month and went into executive session. After the closed session, the board expressed to the public that it was sticking with its position to purchase from Dominion.
Dueling Lawsuits Follow Standoff
When the commissioners reiterated that they wouldn’t purchase equipment from Dominion, the board filed a lawsuit against the commissioners, asking the Supreme Court of Ohio to order the commissioners to buy the voting machines. To block the board from acquiring the Dominion equipment, Look Ahead America, a Washington, D.C. based non-profit organization, and Stark County resident Merry Lynne Rini filed a lawsuit against the board in Stark County Common Pleas Court. Look Ahead claimed that the board failed to follow the Ohio Open Meetings Act by not discussing the Dominion voting equipment purchase decision in an open session.
Look Ahead specifically claimed that under R.C. 121.22(G)(2), a public body can’t go into executive session to discuss every property purchase but only to discuss purchases “if premature disclosure of information would give an unfair competitive advantage to a person whose personal private interest is adverse to the general public interest.”
In response to Look Ahead’s lawsuit, the board told the Stark County trial court that the “premature disclosure” clause pertains only to the sale or disposal of property, not discussions about purchases. The trial judge ruled the “premature disclosure” clause was “so vague and unworkable as to be unenforceable,” noting that state lawmakers didn’t define what would be considered a “premature disclosure” and what information couldn’t be disclosed. The law doesn’t discuss how the board would know who would have a competitive or bargaining advantage, and the law doesn’t explain what is meant by “a person whose personal, private interest is adverse to the general public,” the judge wrote.
The trial court dismissed Look Ahead’s case, and the group appealed to the Fifth District Court of Appeals. The Fifth District affirmed the trial court’s decision.
Look Ahead appealed to the Supreme Court, which agreed to hear the case.
Board Should Discuss Most Purchases in Public, Organization Asserts
Look Ahead explains the purpose of the Open Meetings Act is to require public officials to take official action and conduct all deliberations of official business in open meetings. If the board violated the law by discussing public business in private, then its decision should be invalid, and its recommendation to the commissioners to buy Dominion equipment should be invalid, the group maintains.
The organization argues that the Fifth District’s decision that a government body can conduct closed-door sessions on any property purchase flies in the face of the law’s purpose. If the Fifth District’s position is correct, elected officials could opt to conduct private discussions on purchases as minor as a single pencil, it asserts. The group maintains that is why the R.C. 121.22(G)(2) narrowly limits the closed-door discussions of both the purchase and sale of property to instances when “premature disclosure of information would give an unfair competitive advantage to a person whose personal private interest is adverse to the general public interest.”
Look Ahead also asserts that under the methods that courts interpret state laws, the grammar of R.C. 121.22(G)(2) indicates the “premature disclosure” clause applies to both the purchase and sale of property.
R.C. 121.22(G) permits eight reasons a public body can go into executive session. R.C. 121.22(G)(2) states it’s for officials “To consider the purchase of property for public purposes, the sale of property at competitive bidding, or the sale or other disposition of unneeded, obsolete, or unfit-for-use property in accordance with section 505.10 of the Revised Code, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.”
Look Ahead explains that because there is a comma between “Revised Code” and “if premature disclosure,” the premature disclosure clause applies to all the phrases before it, including “the purchase of property for public purposes.” The group also explains that under a separate grammar rule, if a modifier, such as the “premature disclosure” clause, appears at the beginning or end of a series, then the modifier applies to all the phrases in the series. Since R.C. 121.22(G)(2) contains three phrases, one about the purchase and two about the sale of property, then the “premature disclosure” clause applies to all of them, the group concludes.
Group Misinterprets Meetings Law, Board Asserts
The board maintains Looks Ahead’s use of the Open Meetings Act is a second attempt to prevent the board from acquiring Dominion equipment after initial attempts by the commissioners failed. The board notes that it prevailed in its lawsuit against the commissioners, and the Supreme Court issued a writ of mandamus that directed the commissioners to buy the equipment.
The board notes that the trial court and the Fifth District found no precedent from an Ohio court that the “premature disclosure” clause pertains to property purchases. The clause only applies to the sale, the board adds, and the law provides no clear guidance on how to apply it to discussions regarding purchasing property.
The board explains that two guides produced to assist public officials with complying with the Open Meetings Act indicate that the “premature disclosure” clause doesn’t apply to purchases. They note the Ohio Attorney General’s Office produces an annual Sunshine Manual to train public officials on open meetings. That manual indicates the law applies only to the sale of property. Another publication, the Ohio Administrative Law Handbook and Agency Directory, published by the Ohio State Bar Association Administrative Law Committee, also indicates the clause applies only to sales.
The board argues that Look Ahead wants the Supreme Court to “engage in algebraic gymnastics” to avoid the law’s plain meaning and to insert words into the statute to make the clause apply to purchasing property. If the Court interprets the law as written, it will conclude that the “premature disclosure” clause doesn’t apply to purchases, the board argues.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Look Ahead America’s position was submitted by Brian M. Ames, a Northeast Ohio man who has filed several open meetings lawsuits. Another amicus brief supporting Look Ahead was jointly submitted by Copley Ohio Newspapers and Gatehouse Media Ohio Holdings II, a Division of Gannett GP Media.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Look Ahead America et al.: Curt Harman, hartmanlawfirm@fuse.net
Representing Stark County Board of Elections: Elizabeth Nemes, LANemes@starkcountyohio.gov