Oral Argument Previews

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Tuesday, Nov. 17, 2009

State of Ohio v. Clarence Fry, Jr., Case no. 2006-1502
Summit County

Donna J. Stewart et al. v. The Lake County Historical Society, Inc., Case no. 2006-2029
11th District Court of Appeals (Lake County)

State of Ohio v. Scott A. Speer, Case no. 2009-0330
6th District Court of Appeals (Ottawa County)

Akron Bar Association v. Michelle A. Smithern, Case no. 2009-1522
Summit County


Death Penalty

State of Ohio v. Clarence Fry, Jr., Case no. 2006-1502
Summit County

In this case, the Court is asked to reverse the aggravated murder conviction and death sentence of Clarence Fry for the 2005 stabbing death of his girlfriend, Tamela Hardison.  A jury found Fry guilty of aggravated murder with two separate death penalty specifications: one alleging that he killed Hardison either in retaliation for filing an assault charge against him two weeks earlier or to prevent her from testifying in that case; and a second specification alleging that he caused Hardison’s death during the commission of aggravated burglary. 

Attorneys for Fry have advanced 20 assignments of legal and procedural errors by the trial court that they say are grounds to reverse his convictions or reduce his death sentence to a term of life imprisonment.  Among those alleged errors, they argue that:

Attorneys for the Summit County prosecutor’s office respond that the trial court had broad discretion to evaluate the competence of Hardison’s grandson, the only firsthand witness to her murder, to testify in court about what he saw and heard.  They argue that the transcript of the judge’s voir dire with the child showed that he understood that he was in court to talk about what happened when his grandmother was hurt, knew the difference between the truth and a lie, and stated that he would be punished if he told a lie. Based on that evidence, they say, the trial judge did not abuse her discretion by finding the child competent to testify.

With regard to the sufficiency of the evidence that Fry killed Hardison to prevent her from testifying in the pending assault case, the state cites prior court decisions holding that a defendant’s purpose may be determined from the totality of the circumstances surrounding the crime. In this case, they point out, the jury heard testimony that Hardison had told a social worker she intended to testify against Fry, that Fry was on probation from a prior conviction and anxious to avoid going back to jail,  that Fry had called Hardison from jail demanding that she recant the charges against him and suggesting that he was capable of lethal violence, and had told his mother after being released on bond that getting the pending charges dismissed was his top priority.

Contacts
Philip D. Bogdanoff, 330.643.2791, for the state and Summit County prosecutor’s office.

George C. Pappas, 330.535.6185, for Clarence Fry.

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May Non-Disabled Person Cite ADA Building Standard Violation as Evidence of Negligence in Civil Lawsuit?

Donna J. Stewart et al. v. The Lake County Historical Society, Inc., Case no. 2006-2029
11th District Court of Appeals (Lake County)

ISSUE:  In a premises liability lawsuit, when a non-disabled person is injured in a fall while walking on a wheelchair ramp installed to accommodate disabled visitors, and it is determined that the slope of the ramp did not comply with safety standards set by the U.S. Americans with Disabilities Act (ADA), is the ADA standard violation admissible as evidence that the property owner breached its duty to a non-disabled visitor to keep its premises “in a reasonably safe condition?”

BACKGROUND:  Donna Stewart was injured in a fall she suffered while working as a volunteer at a one-room schoolhouse that was maintained as a historical site by the Lake County Historical Society.  Stewart, who was not disabled at the time of the incident, slipped and fell while walking down a handicap access ramp at the entrance to the schoolhouse, fracturing her elbow. She sued the historical society, alleging that her injuries resulted from its failure to maintain the schoolhouse premises in a reasonably safe condition. 

In pretrial pleadings, the historical society acknowledged that after Stewart’s fall it had determined that  the ramp, which had been constructed by volunteer carpenters, had a steeper slope than the maximum allowed for handicap access ramps under ADA building standards. Notwithstanding that defect, however, the society sought summary judgment dismissing Stewart’s claim on the bases that the hazard was open and obvious; that Stewart was aware of the pitch of the ramp, having worked at the schoolhouse for more than a year and used the ramp to enter and exit the building many times previously; and that the ADA and its building requirements impose a duty on a property owner only with regard to persons with disabilities.

The trial court granted summary judgment in favor of the historical society, holding that Stewart’s only evidence of negligence was the ADA building standard violation, and that violation was not a breach of the society’s duty to Stewart, because she was not disabled. Stewart appealed. On review, the 11th District Court of Appeals reversed the trial court’s summary judgment order and remanded the case for further proceedings.  A 2-1 majority of the appellate panel ruled that, while the ramp’s noncompliance with ADA building standards did not constitute “negligence per se” by the historical society with regard to injuries suffered by a non-disabled party, that evidence did raise a material question of fact regarding whether the society had met its duty to all visitors to maintain its premises “in a reasonably safe condition,” and that issue was sufficient to defeat a motion for summary judgment.

The historical society sought and was granted Supreme Court review of the 11th District’s ruling.

Attorneys for the historical society argue that a property owner’s duty to protect visitors against hazards is relative to its relationship with the visitor. While acknowledging that the ADA imposes clear duties on a property owner to safely accommodate access by disabled persons, they assert that ADA construction standards impose no similar duty to protect persons like Stewart who are not disabled. They also assert that, to the extent that the pitch of the ramp at the schoolhouse may have constituted a hazard to non-disabled visitors, that hazard was open and obvious, and Stewart admitted that she had used the ramp to enter and exit the building scores of times in the past.

They cite a recent decision, Lang v. Holly Hill Motel (2007),  in which the Supreme Court of Ohio held that a property owner’s failure to comply with maximum stair height and hand rail requirements set forth in the state building code did not impose a duty on the owner to protect a guest from that hazard because the danger presented by the stairs was open and obvious.

Attorneys for Stewart point out that the safety standards imposed by the ADA have been incorporated into Ohio’s Basic Building Code, making those standards applicable to all occupied structures and imposing a duty on owners who construct handicap access features like ramps on their premises to ensure reasonably safe conditions for all visitors, whether or not they are disabled. 

They note that Stewart’s complaint did not assert claims against the historical society under the ADA, and did not claim that the building code violation imposed “strict liability” on the society for her injuries, but only cited the non-conformity of the ramp to an established safety standard as a material issue of fact that could support a finding at trial of common law negligence. They argue that it is not “open and obvious” to an ordinary person whether a ramp meets or doesn’t meet building code standards, and urge the court to affirm the 11th District’s holding that the unsafe condition cited by Stewart was sufficient to defeat the historical society’s motion for summary judgment and allow her negligence claim to be argued before a judge or jury.

Contacts
Timothy J. Fitzgerald, 216.241.5310, for the Lake County Historical Society.

Todd Peterson, 440.285.3511, for Donna and David Stewart.

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Must Court Dismiss Hearing-Impaired Juror for Cause When Audio Recording Will Be Evidence at Trial?

State of Ohio v. Scott A. Speer, Case no. 2009-0330
6th District Court of Appeals (Ottawa County)

ISSUE: In a criminal trial where audio tapes will be introduced as evidence of the defendant’s guilt, is a trial court required to dismiss for cause a juror who on voir dire informs the court that she has a hearing disability that prevents her from hearing an audio recording and requires her to read the lips of live witnesses?

BACKGROUND: In August 2002 passenger Jim Barnett was drowned when he allegedly fell out of a boat being piloted by Scott Speer on Lake Erie during a small craft advisory. Speer was indicted by a grand jury on multiple charges arising from the incident, including murder, involuntary manslaughter and aggravated vehicular homicide. During pretrial discovery, the state indicated that it would introduce an audio recording of a 911 call placed by Speer on the night of the incident as evidence of his guilt.

During voir dire (pretrial examination of prospective jurors), prospective juror Linda Leow-Johannsen informed the court that she had a hearing disability but was able to lip-read and would be able to accurately perceive the questioning and testimony of witnesses if the person who was speaking faced her. Attorneys for Speer moved that Leow-Johannsen be disqualified from serving on the jury “for cause,” i.e. without using one of Speer’s discretionary challenges, because of her hearing impairment.  The judge denied the motion to dismiss for cause. Defense counsel opted to use its discretionary challenges to disqualify four other jurors, and Leow-Johannsen was seated on the jury. During the trial, at the time the 911 audio tape was played for the other jurors, Leow-Johannsen moved to the court reporter’s table and viewed a real-time transcript of the call as the reporter typed it.

Speer was found not guilty of murder but guilty of manslaughter and aggravated vehicular homicide.  Those counts were merged into a single conviction for aggravated vehicular homicide, for which Speer was sentenced to four years in prison. He appealed, asserting among other claims that the trial court had erred in failing to grant his motion to disqualify juror Leow-Johannsen for cause based on her hearing impairment. 

The 6th District Court of Appeals reversed and remanded the case for a new trial, holding that the trial court abused its discretion in failing to disqualify Leow-Johannsen for cause. In its decision, the court of appeals found that the juror’s hearing impairment prevented her from fully evaluating the 911 recording, because determining Speer’s guilt of the charged offenses required analysis of his tone of voice, level of excitement or anxiety, prompt or slow responses to questions, evidence of  possible drug or alcohol intoxication and other audio cues that were important in determining his mental state at the time of the call and whether his subsequent account of the events of that night was credible. 

The state sought and was granted Supreme Court review of the 6th District’s decision.

Arguing for the state, the Ottawa County prosecutor’s office asserts that a trial judge has wide discretion in determining whether a prospective juror with a disability will or will not be able to perform that role faithfully with reasonable accommodation by the court. They argue that the record in this case shows the judge spent considerable time exploring the prospective juror’s abilities and limitations, and made a reasonable determination that she was capable of fulfilling her duties. They contend that the possible inclusion of an audio recording as evidence in a case does not justify disqualification of a  juror for cause solely on the basis of a hearing impairment, and argue that if defense counsel believed Leow-Johannsen’s  presence on the jury would be prejudicial to Speer, they had the opportunity to exclude her by using one of their peremptory challenges.

Attorneys for Speer respond that when a trial court has advance notice that important evidence in a criminal case will be presented in the form of an audio tape, and the jury’s evaluation of that evidence will require analysis of audio cues such as a speaker’s tone of voice, calm or excited emotional state, presence or absence of signs of intoxication, etc., it is clear that a candidate who cannot hear those audio cues does not meet the minimum requirements for jury service in such a case, and must therefore be dismissed for cause.  Where there is a conflict between the interest  of a jury candidate  in serving and the right of a criminal defendant to a fair trial in which all of the evidence is understood and considered by the jury, they assert, justice demands that courts must resolve that conflict in favor of a fair trial.

NOTE:  Amicus curiae (friend of the court) briefs supporting the position of the state in this case have been submitted by the Ohio Attorney General’s Office and by a group of advocacy groups for the hearing impaired including the National and Ohio Associations of the Deaf.

Contacts
Mark E. Mulligan, 419.734.6845, for the Ottawa County prosecutor’s office.

Bradley D. Barbin, 614.445.8416, for Scott Speer.

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Attorney Discipline

Akron Bar Association v. Michelle A. Smithern, Case no. 2009-1522
Summit County

The Board of Commissioners on Grievances & Discipline has recommended that the law license of Akron attorney Michelle A. Smithern be indefinitely suspended for multiple acts of misappropriating funds from her former law firm.

Smithern admitted that over a 2½ year period she stole more than $100,000 from the firm of Buckingham, Doolittle and Burroughs, in which she was a partner, by depositing checks she received as retainer fees from 32 different clients in her own personal account rather than in the law firm’s client trust account. Her license has been under an interim suspension imposed by the Court in February 2009 as a result of her felony conviction.

Smithern has stipulated that her conduct violated the state attorney discipline rules that prohibit conduct involving dishonesty, fraud, deceit or misrepresentation; conduct that adversely reflects on an attorney’s fitness to practice and failure to preserve the identity of a client’s funds.  However, she has filed objections to the board’s recommended sanction. In  light of her previously clean disciplinary record, evidence that her misconduct did not harm clients and resulted from gambling and alcohol addictions from which she is now in recovery, and her entry into a consent agreement to repay the misappropriated funds, Smithern asks the Court to impose a two-year license suspension but stay 18 months of that term and credit her with the time she has already been barred from practice by her interim suspension.

The Akron Bar Association, which investigated and prosecuted the disciplinary complaint against Smithern, urges the Court to impose an indefinite suspension as recommended by the board. Its attorneys argue that the number of separate acts of misappropriation Smithern engaged in, the cumulative amount taken from her law firm and the extended time period over which that misconduct took place distinguish her violations from other cases she has cited in which attorneys who misappropriated funds from their firms received partially stayed suspensions.

Contacts
Nathan A. Ray, 330.253.7171, for the Akron Bar Association.

Charles E. Grisi, 330.535.8171, for Michelle Smithern.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.