IN THE SUPREME COURT OF OHIOOF OHIO9Appellee,-vs-JULIAN STEELEAppellan - PDF document

IN THE SUPREME COURT OF OHIOOF OHIO9Appe
IN THE SUPREME COURT OF OHIOOF OHIO9Appellee,-vs-JULIAN STEELEAppellantCase No. 2011-2178Appeal No. C-1000637Trial No. B-0903495FIRST APPELLATE DISTRICTMEMORANDUM OF APPELLANTDaniel Breyer, 0008683Special ProsecutingAttorneyBatavia,OH 43103ATTORNEY FOR APPELLEEGloria L. Smith, #0061231The Gloria L. Smith Law OfficeDublin, OH 43017ATTORNEY FOR APPELLANT^Lthh Ur GOURfSUPREME COURT OF OHIOTABLE OF CONTENTSPAGEEXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLV

ES A SUBSTANTIAL CONSTITUTIONAL. . . . .
ES A SUBSTANTIAL CONSTITUTIONAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . ............... ISTATEMENT OF THE CASE AND FACTS .............................................................1ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ..........................................4PROPOSITIONOF LAW NO. I: Policeofficers are not subject to criminalPROPOSITION OF LAW NO. II:The

crime of abduction as set forth in Ohio.
crime of abduction as set forth in Ohio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . . .. ...4PROPOSITION OF LAW NO. III:The crime of intimidation as set forth in Ohio(B) does not apply to police officers when theyPROPOSITION OF LAW NO. IV: The conviction is against the manifest weightThere is a violation of the Due Process ClauseCONCLUSION ... ... ... ... ... .

........... .................. .........
........... .................. ......... .... ....... ................... ... .........9EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREATSUBSTANTIALCONSTITUTIONAL QUESTIONThis case is of great personal interest to police officers that risks their lives in their effortsthe Northside area of Cincinnati, Ohio. The latest robbery occurred in the early moming hoursCadillac that was being driven by another black male. The witness followed the vehicle, got thethe mother of Ramone Maxton and Lamo

nt Green. Anthony AJ Griffin also lived
nt Green. Anthony AJ Griffin also lived with them,school that day. The officers considered their absence to be very suspicious because from their1The officers returned to the school the next day with uniformed officers to take all threeDetective Steele was indicted and found guilty by a jury of two counts of abduction (R.C.§ 2905.02) with gun specifications for taking Ramone Maxton from the high school to the policeimproper jury instructions and ordered a new trial. The appellate court aff

irmed the conviction2robbed when they w
irmed the conviction2robbed when they were assaulted and property was taken from them. An unidentified witness644, 645, 673)Between May 5 and May 6, 2009, Steele viewed photos of the three teens, and attemptedof them. Lamont, who did not confess, was released. Ramone confessed to the robberies and was3arrested. AJ Griffin confessed to the robbery and was arrested too. Ramone and AJ implicatedRandolph's purpose was to question Steele about allegations that Steele arrested Ramone evenfollow

-up in the investigation that he felt th
-up in the investigation that he felt that Ramone gave a false confession. (T.P. 917-921,PROPOSITION OF LAW NO. I:Police officers are not subject to criminalPROPOSITION OF LAW NO. II:The crime of abduction as set forth in OhioRevised Code Section 2905.02 does not apply to police officers when they makePROPOSITION OF LAW NO. III:The crime of intimidation as set forth in Ohio2931.03 (B) does not apply to police officers when they[ARGUED TOGETHER]4liberally construed in favor of the accused."

In this case, the accused was a police
In this case, the accused was a police officer thatRamone had been given the proper Miranda Warnings.Miranda v. Arizona(1966), 384 U.S.end in sight. Are magistrates who issue warrants that are subsequently ruled to lack probable5This slippery slope could lead to unintended consequences for everyone who usesWeeks v. United States(1914), 232 U.S. 383, 34 S. Ct. 341. Inarrest him. He also has the ability to pursue a civil action in state or federal court. As a result,conviction is against th

e manifest weightA conviction based on i
e manifest weightA conviction based on insufficient evidence violates the Due Process Clause of the OhioIn re Winship(1970), 397 U.S. 358, 90 S.Ct. 1068;Jackson v.(1978), 436 U.S. 478, 98 S.Ct. 1930; Section 16, Art. I, OhioState v. Eley(1978), 56 Ohio St.2d 169, 383 N.E.2d 132. The verdict should beState v. Jenks(1991) 61 Ohio St.3d 259, 273, 574 N.E.2d 492 citingJackson v.(1979), 443 U.S. 307, 99 S.Ct. 2781. To reverse a conviction because of insufficient6evidence, it must be determined

as a matter of law, after viewing the ev
as a matter of law, after viewing the evidence in a light mostJenks,paragraph two of the syllabus.The statutory language for Abduction is as follows:from school to the police station. (T.P. 1028) Steele, however, was performing his police dutieshehad7The statutory language for Intimidationis asfollows:is a violation of the Due Process Clauseand the Confrontation Clause of the Constitution when the trial court allows thedefendant from cross-examining the witness on those new matters.The def

endant is entitled to present a defense
endant is entitled to present a defense and to confront witnesses against him.Holmes v. South Carolina(2006) 547 U.S. 319, 126 S.Ct. 1727;Crane v. Kentucky(1986) 476U.S. 683, 106 S.Ct. 2142;United States v. Payne(2006) 437 F.3d 540 (6th Cir.) The trial court8examination and failed to allow the defense to re-cross on the new matters. The new matterRespectfully submitted,The Gloria L. Smith Law Office2783 Martin Rd., #2159PROOF OF SERVICEI hereby certify that a copy of this Memorandum in Su

pport of Jurisdiction was sent byof Marc
pport of Jurisdiction was sent byof March, 2012.10^^i .._.IN THE COURT OF APPEALSAMILTON COUNTY, OHIOSTATE OF OHIO,JULIAN STEELE,OPIR7I®N.PRESENTED TO THE CLERKOCT 2 8 2011COURT OF APPEALSCriminal Appeal From: Hamilton County Court of Common PleasJudgment Appealed From Is: Affirmed in Part, Reversed in Part, and CauseRemandedDonWhite, Clermont County Prosecuting Attorney, andDaniel J. Preyer,SpecialGloria L.Smith, for Defendant-Appellant.Please note: This case has been removed from the acc

elerated calendar.OHIO FIRST DISTRICT C
elerated calendar.OHIO FIRST DISTRICT COURT OF APPEALS{91 & }This casepresentsan issue of firstimpression:what is the proper juryFacts{112} In the course of investigating a series of robberies, defendant-appellant detective Julian Steele arrested seventeen-year-old Jerome Maxton and{¶3} A subsequent investigation revealed that Steele may have arrestedMaxton, coerced a false confession from him, and incarcerated him in order tosupply information to exonerate her son. There were also allegat

ions that Steele had2ENTEREDOHIO FIRST
ions that Steele had2ENTEREDOHIO FIRST DISTRICT COURT OF APPEALSa jury, Steele claimed he was innocent of all charges. He argued that the arrest wasfive years' community control. For the following reasons, we affirm in part, reverseThe Contested dury+ 6nsfiraectâon(^6} Steele's fourth assignment of error is dispositive of a number of issues{7t8} In pertinent part, the abduction statute provides that "[n]o person,without privilege to doso shall knowingly * * * (i) By force or threat, remove

2State v. Comen(1990), 50 Ohio St.3d 2o6
2State v. Comen(1990), 50 Ohio St.3d 2o6, 553 N.E.2d 640, paragraph two of the syllabu3See id.; see, also, State v.Wolons(1989), 44 Ohio St.3d 64, 541 N.E.2d 443.3®HII® FIRSTISTRICTCOURT OF APPEALSrestrain the liberty of another person under circumstances that *** places the otheroffice or relationship *"°." The jury was further instructed that when an "arrest iswhen the arrest is made without probable cause.statute should not apply to police officers since other remedies exist to deter po

liceit.�{¶4 R.C. 29o5.o2(A)(1) an
liceit.�{¶4 R.C. 29o5.o2(A)(1) and (A)(2),State ex rel. Savarese u. BuckeyeLocal SchoolIa'st. Bd. of Edn.,74 Ohio St.3d 543, 545,ProvidentBank v.Wood (1973),36 Ohio St.2d 101, 105-1o6,Youngstown(1946), 146 Ohio St. 203, 65 N,E.2d 63, paragraph on^e of4OHIO FIRST DISTRICT COURT OF APPEALSPraesilege and LegmsBat;fve Ontent{J12} Determining whether the jury was instructed correctly turns on theby express or implied grant, arising out of status, position, office, or relationship, or6 R.

C. 2901.01(12).7 See Crim.R. 2(J); R.C.
C. 2901.01(12).7 See Crim.R. 2(J); R.C. 2935039 State ex rel. Cooper v. Savord(195o), 153 Ohio St. 367, 92 N.E.2d 390, paragraph onsyllabus; see, aiso,State v.Nickles(1953), 159 Ohio St. 353, ga2 N.E.2d 531,paragraph one of thesyllabus.10 Savord,supra.5®HII®1F%Tt5 T DISTRICT COURT OF ^PEAISthe state's position to be without merit. The jury instruction should have been moreThe Parameters of the Prlvalege to Arrest{¶Il5} The question of when a police officer should be held personally° Pear

son u, Callahan(2009), 555 U.S. 223, 231
son u, Callahan(2009), 555 U.S. 223, 231,129 S.Ct. 808.'3 Miller v.Sani/ae Cnty. (C.A.6, 2oio), 6o6 F.3d 240, 25o;Brooksu. Rothe (C.A.6, 2009), 577Fridley v. Horrighs(C.A.6, 2002), 291 F.3d 867, 872.Anderson v. Creighton(1987),483 U.S. 635,641,107 S.Ct. 3034; see, also, Harris u. Bornhorst (C.A.6, 2008), 513 F.3d 5o3, 51i.5Euerson u.Leis(C.A.6, 2009), 556 F.3d 484, 494 (citationsomitted).6OHIO FIRST Y9YSTI2HCTCOURTOF APPEALSadopt the test for "qualified immun4The Proper Jury Instrrecti®n{¶

9 8} The jury in this criminal case shou
9 8} The jury in this criminal case should have been instructed that a policeThe Error was P9aira Error{9120} InStatev. Barnes,20 the Ohio Supreme Court set forth a three prong17 State v.Gordon (1983),9 Ohio App.gd184,186,458 N.E.2d 1z77.^x SeeMorisetteu. UnitedStates(1952),342 U.S. 246; 250-252, 72 S.Ct. 240.Leon(1984), 468 U.S. 897, 9o6, ao4 S.Ct. 3405.94 OhioSt3d21, 27, 2oo2-Ohio-68, 759 N.E.2d 1240.21Id.22Id.7OHIO FIRST DISTRICTCOURT OF APPEALSsubstantial right-meaning that the error m

ust have affected the outcome of theWeig
ust have affected the outcome of theWeight and ^uffacAency(123) In Steele's first and second assignments of error, he claims that hisState u. Adams,103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, 7i97.State u. Cooperrider(1983),4 Ohio St.3d 226,448 N.E.2d 452;State U. Long(r978), 5327 See State v.Duncan, 154 Ohio ApP.3d 254, 2003-Ohio-4695, 796 N.E.2d ioo6 (double28 See App.R. 12(A)(a)(c).8EREDOHIO FIRST DISTRICTCOURT OF APPEALSSteele is correct that the state failed to prove that he ha

d had a firearm on or aboutOnt®madat6®ss
d had a firearm on or aboutOnt®madat6®ss{IJ24} Steele also claims that his intimidation conviction and accompanyingwould be arrested and his siblings sent to a foster home. Maxton testified that Steele29 Stateu. Ford128 Ohio St.3d 398, 2oii-Ohio-765, 945 N.E.2d 498,paragraph one of thesyllabus.9OHIO FIRST DISTRICTCOURT OF APPEALSreasonable doubt 30 And although Steele presented a version of events that wouldC®aer-9us6®n{¶28} Steele's abduction convictions are reversed and those counts arer

emanded to the trial court for a new tri
emanded to the trial court for a new trial, or for other proceedings consistent withJudgment affirmed in part, reversed in part, and cause remanded.S4JNDE1tB9ANN, PoJo9 HENDON and C9JRRaTINJHAid'[9 J.11,N ease Note:The court has recorded its own entry on the date of the release of this opinion.30 Stateu. Jenks(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.ik State v.Thompkins 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541;Statev. Martin (1983),Ford,supra.10IN THE

COURT OF PEALSHAMILTONC® `I`Y^ ®IiISTAT
COURT OF PEALSHAMILTONC® `I`Y^ ®IiISTATE OF OHIO,JULIAN STEELE,APPEAL NO. C-ioo637JUDGMENT EIVTItI :i9395141E62sENTEREDThis cause was heard upon the appeal, the record, the briefs, and arguments.The judgment of the trial court is affirmed in part, reversed in part, and causeThe Court further orders that r) a copy of this Judgment with a copy of the Opinionattarhar^rnnctitntac tha_manrlata anrl ol tho man^atA hP cant tn thp trialrnnrtfnr evanntinnunder App. R. 27.To The C9erke^ C ^/ ^LPresi