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Wednesday, Nov. 2, 2011

State of Ohio v. James D. Hood, Case no. 2010-2260
8th District Court of Appeals (Cuyahoga County)

Murray A. Miller et al. v. Sam M. Miller et al. , Case no. 2011-0024
11th District Court of Appeals (Trumbull County)

In the Matter of the Adoption of M.B., Case no. 2011-0831
9th District Court of Appeals (Summit County)

Disciplinary Counsel v. Christopher James Burchinal, Case no. 2011-1426
Delaware County


Was Court's Admission of Cell Phone Records at Trial Without Expert Authentication Unconstitutional?

Under Sixth Amendment Right to Confront, Cross-Examine Witnesses

State of Ohio v. James D. Hood, Case no. 2010-2260
8th District Court of Appeals (Cuyahoga County)

ISSUE: Does a trial court violate a defendant’s Sixth Amendment right to confront witnesses against him when it allows the state to introduce records documenting cell phone traffic of alleged co-participants in a crime without requiring authenticating testimony by an expert witness who can be cross-examined by defense counsel with regard to the reliability of the proffered records and the factual conclusions that can and cannot be drawn from them?

BACKGROUND:  James Hood of Cleveland and two other men, Kareem Hill and Terrance Davis, were charged with multiple counts of kidnapping, aggravated robbery and other offenses based on a home invasion incident in which they and a fourth man, Samuel Peet, allegedly robbed at gunpoint 11 persons who were participating in a late-night card game at the home of Sharon Jackson. The victims of the robbery described the physical builds and clothing of the perpetrators, who wore masks, to police and reported that they heard several gunshots as the robbers were leaving Jackson’s house.  About two hours later police received a 911 call that the body of Peet, who had been shot, had been found  in a yard near the site of the robbery.  Forensic evidence later established that Peet had been shot twice at close range in the hallway leading from Jackson’s basement to a basement door, and had left a trail of blood from Jackson’s house to the location where his body was found.

Hood and Hill, who had been apprehended by police with cell phones and other property of the robbery victims in their possession before Peet’s body was discovered, were subsequently also charged with felony murder based on their involvement in the crime that resulted in Peet’s death. Davis was later identified as the fourth robber and charged with the same offenses.

Hill told police that Hood had argued with Peet over some of the proceeds of the robbery while the two men were following Hill out of Jackson’s home, and that he (Hill) heard shots fired behind him, inside the house, as he emerged from a basement door.  Moments later Hill said Hood had emerged from the house without Peet, and he and Hill fled in Hill’s vehicle. Hill  subsequently entered into a plea bargain in which he agreed to plead guilty to a reduced charge of negligent homicide and one count of aggravated robbery in return for his truthful testimony against Hood. Davis also accepted a plea bargain to a reduced charge of involuntary manslaughter and a single count of aggravated robbery.

Hood was tried for the murder of Peet, 11 counts of kidnapping, 11 counts of aggravated robbery, single counts of aggravated burglary and having a weapon under disability, and firearm specifications relating to each of those offenses. Hill testified as a witness for the state, describing the movements of the four robbers prior to and during the robbery and stating that he did not know who shot Peet, but indicating that Hood and Peet were together near the place where Peet was killed seconds before the shots were fired.

Over the objection of Hood’s attorneys, the state presented as evidence computer printouts that detailed the cell phone calls that had been placed and received by each of the four robbers prior to and during the events leading to the shooting of Peet.  Hill testified that the records showed how he and his co-defendants had maintained contact with each other prior to the robbery. Police detectives Henry Veverka and Kathleen Carlin testified that the records had been obtained through subpoenaes issued to each of the defendants’ cell phone companies, and Veverka explained the meaning of the information contained in the printouts. No representatives from the cellular phone companies themselves were called to testify.

At the conclusion of evidence, the jury found Hood guilty of murder, nine counts and kidnapping, nine counts of aggravated robbery and one count of aggravated burglary, all with firearm specifications. He was sentenced to an aggregate term of from 21 years to life in prison.  Hood appealed, asserting among other claims that his convictions should be vacated because the trial court should not have admitted the cell phone records proffered by the state without authentication by the cell phone service providers that they accurately reflected the calls made and received by Hood and the other defendants.

The 8th District Court of Appeals held that, even if the cell phone records were not properly authenticated, their admission by the trial court would amount to harmless error because, in light of the other evidence against Hood, those records had no significant impact on the jury’s findings of guilt.  Hood sought and was granted Supreme Court review of the 8th District’s ruling.

Attorneys for Hood assert that by admitting the cell phone records proffered by the state into evidence without expert authentication and without a chance for his attorney to cross-examine the state’s witness about the reliability and meaning of those records, the trial court impermissibly allowed the jury to consider “hearsay” evidence in violation of Hood’s Sixth Amendment right to confront the witnesses and evidence against him.  While the 8th District identified that mistake as harmless error, Hood argues that the phone records provided crucial support for Hill’s version of the events surrounding the robbery and killing of Peet, without which the jury could have been left with reasonable doubt about the truthfulness of Hill’s claim that Hood was the only person with Peet when he was shot.

Attorneys for the state respond that the Sixth Amendment right of confrontation applies only to hearsay evidence or statements that are “testimonial” in nature, i.e., statements that a declarant makes with the understanding that they may be used as evidence in a criminal proceeding. They assert that the phone records at issue in this case fall under an exception to the hearsay rule that allows a court to admit “business records” that are routinely compiled by an impartial business entity as part of its everyday operations that also happen to document factual information relevant to a criminal case.

Contacts
Kristin L. Sobieski, 216.698.2226, for the state and Cuyahoga County prosecutor's office.

Melissa M. Prendergast, 614.466.5394, for James Hood.

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Is Corporation Required to Advance Legal Fees for Director to Defend Lawsuit Filed by Shareholders?

When Suit Alleges Director Violated Fiduciary Duty to Corporation

Murray A. Miller et al. v. Sam M. Miller et al. , Case no. 2011-0024
11th District Court of Appeals (Trumbull County)

ISSUE: When a director of an Ohio corporation is sued by one or more shareholders for allegedly violating his fiduciary duty to act in the best interest of the corporation, do the state’s corporation laws require the company to advance to that director the costs of his attorney fees to defend the lawsuit?

BACKGROUND: Trumbull Industries Inc. is an Ohio corporation owned by two sets of brothers:
Sam M. Miller and Kenneth Miller, and their cousins, Murray Miller and Samuel H. Miller. Each of  the owners owns 25 percent of the company’s shares, and together the four co-owners serve as Trumbull’s board of directors.

In February 2003, Murray and Samuel H. Miller filed suit against Sam M. Miller in their capacity as shareholders of Trumbull Industries. Their complaint alleged that Sam M. had violated his fiduciary duty as a director of Trumbull by personally participating in a new business opportunity identified as Private Brand and not bringing the benefit of that opportunity to Trumbull and its shareholders. 

Sam M. applied to Trumbull’s board of directors seeking advancement of corporate funds to defend himself against that lawsuit.  An initial payment was made by Trumbull to the law firm that Sam M. had retained, Ulmer & Berne, however the plaintiffs blocked payment of any additional corporate funds to cover the costs of Sam M.’s legal defense. In December 2006, the plaintiffs sought a declaratory judgment that Sam M. had no right to have his legal fees advanced by the corporation, and a court order requiring him to reimburse Trumbull for the single payment the company had already made.

In January 2007 and later on reconsideration, the trial court denied declaratory  judgment in favor of the plaintiffs and instead ordered Trumbull to make ongoing payments to Ulmer &
Berne for  Sam M.’s legal fees “as they are incurred.” The court cited R.C. 1701.13(E)(5), a state law that requires corporations to advance legal fees to a corporate director to defend against any lawsuit filed against him based on his status as a director, pending later repayment under certain circumstances.  The plaintiffs refused to comply with the trial court’s order, were found in contempt, and failed to purge that contempt. In a new order issued in July 2008, the trial court imposed a running  fine for every subsequent day the plaintiffs  failed to make the required payments of legal fees on behalf of Sam. M.  

The plaintiffs appealed the trial court’s judgment to the 11th District Court of Appeals.  In a divided opinion, the court of appeals reversed the trial court’s order and held 2-1 that Trumbull was not required to advance Sam M. funds to cover his legal fees under R.C. 1701.13(E)(5) because the law only required advancement of fees when a corporate director was sued for acts or omissions he committed on behalf of the corporation or its interests.  Because the claims asserted against Sam M. in this case were filed by his fellow shareholders and were based on acts and omissions that were allegedly contrary to the interests of Trumbull Industries, the 11th District held that the legal fee advancement provision of the statute did not apply.

Sam M. Miller sought and was granted Supreme Court review of the 11th District’s decision.

Attorneys for Sam M. Miller contend that the 11th District either ignored or misinterpreted the plain language of R.C. 1701.13(E)(5), which they say requires Ohio corporations to advance attorney fees to a corporate director who is named as a defendant in any lawsuit based on his status as a director.  They assert that the law imposes a requirement of legal fee advancement regardless of whether a director is sued by an outside party, by one or more company shareholders, or even by the corporation itself, except where the corporation has included a specific exclusion of such advancements in its bylaws.

In this case, they assert, the 11th District erred by reading the law to limit the fee advancement requirement to lawsuits in which the director and the corporation are on the same side, and erred again by misreading the “op-out” provision of the statute to instead require that a corporation “opt-in” by specifically authorizing legal fee advancements in its bylaws.

Attorneys for Murray and Samuel H. Miller urge the Court to affirm the 11th District’s decision that Sam M. is not entitled to have his legal fees advanced by the corporation because he did not undertake the acts and omissions that are the basis for their lawsuit while acting as a director of Trumbull Industries, but rather while he was acting as an individual and a principal of a separate legal entity, Private Brand, whose interests were in conflict with the interests of Trumbull and its corporate shareholders.

NOTE:  The Ohio State Bar Association has entered an amicus curiae (friend of the court) brief supporting the position of Sam M. Miller and urging reversal of the 11th District’s decision.

Contacts
Marvin L. Karp, 216.583.7014, for Sam M. Miller.

Irene Keyse-Walker, 216.592.5000, for Murray and Samuel H. Miller.

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Do Monetary Gifts Given Directly to Child Count as 'Support' Necessary to Preserve Parent's Right to Approve Adoption?

Law Allows Adoption Without Consent of Parent Who Abandons or Fails to Support Child

In the Matter of the Adoption of M.B., Case no. 2011-0831
9th District Court of Appeals (Summit County)

ISSUE:  R.C. 3107.07(A) provides that the consent of a child’s natural parent to the child’s adoption by another is not required when a court finds by clear and convincing evidence that the parent “has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year...” 

In this case, the Supreme Court is asked to decide whether, in the absence of any payments of court-ordered child support by a parent for more than a year, modest monetary gifts given directly by that parent to a child constitute “maintenance and support” of the child and therefore sustain the parent’s right to approve or disapprove of the child’s adoption by another under R.C. 3107.07(A). The case also questions whether a court of appeals reviewing a holding by a probate court that a parent has waived his right to approve of a child’s adoption under R.C. 3107.07(A) should apply a “de novo” standard under which the appellate court conducts its own independent legal analysis of the applicable statute, or must affirm the lower court’s ruling unless it finds that decision was “contrary to the manifest weight of the evidence?”

BACKGROUND:  The case involves a petition filed in the Summit County Probate Court by a man identified in court records as T.R., who sought to adopt his step-daughter, identified as M.B.  The biological father of M.B., identified as S. B., opposed the adoption. A magistrate reviewed the adoption petition and S.B.’s objections, and issued a decision holding that S.B.’s consent was not required pursuant to R.C. 3107.07(A) because he had failed to make any of the child support payments he had been ordered to make or otherwise provide for his daughter’s maintenance and support for more than a year prior to the filing of the adoption petition.

S.B. contested the magistrate’s ruling at a hearing before the probate court, arguing that he had given his daughter a $125 gift card from the Aeropostale clothing store for Christmas and sent her a birthday card that included $60 in cash during the applicable time period, and those gifts constituted “maintenance and support” sufficient to sustain his right to approve or disapprove M.B.’s adoption.  The court rejected S.B.’s arguments and upheld the magistrate’s ruling that the adoption could go forward without S.B.’s consent. 

S.B. appealed the probate court’s decision to the 9th District Court of Appeals. The 9th District determined that, rather than deferring to the judgment of the probate court, it should conduct an independent “de novo” analysis of the applicable legal provisions. After doing so, the court of appeals issued a decision reversing the probate court and holding that the gift card and birthday cash S.B. had given his daughter were sufficient to meet the requirement of maintenance and support set forth in R.C. 3107.07(A), and therefore M.B.’s adoption could not go forward without S.B.’s consent.  T.R. filed and the 9th District subsequently granted motions certifying that both its ruling in favor of S.B. on the merits and its determination that a de novo standard of review was appropriate were in conflict with rulings by other court of appeals districts in similar cases. The Supreme Court agreed to review the 9th District’s decision to resolve the conflict among appellate districts.

Attorneys for T.R. urge the Court to follow the legal reasoning of other courts of appeals that have held that gifts given directly to a child on a birthday or holiday are gestures of affection, not the “support or maintenance” that the legislature intended when it adopted laws requiring a non-custodial parent to make regular monthly payments to provide for the child’s food, shelter, clothing, medical care and other necessities. In this case, they point out that the $185.00 in gifts S.B. gave his daughter represented less than 2 percent of the $12,000 in court-ordered support payments he was supposed to have provided to her mother to pay for her everyday living expenses during the 12-month period in question.  By failing to make any payment at all toward his child support obligation for more than a year, they assert, S.B. effectively abandoned his responsibility to support his daughter, and thereby waived his right to veto her adoption by her step-father.

Attorneys for S.B. argue that prior federal and state court decisions have found that the ability of a natural parent to continue exercising parental rights and control over a child is a fundamental constitutional right that may not be taken away absent a showing that the parent has abused or neglected the child to the point of actual abandonment.  In this case, they assert, the 9th District found that S.B. had not abandoned his daughter by showing that he had maintained a relationship with her and provided small but significant gifts on special occasions such as her birthday, including a gift card redeemable for clothing and cash that could be used for meeting other daily needs.  They also allege that M.B.’s mother and step-father could have pursued remedies such as contempt findings to pursue collection of child support arrearages sooner, but instead took no action until 12 months had passed, then applied  to terminate his parental rights by invoking the non-support provision of the adoption statute.

Contacts
Scot A. Stevenson, 330.762.0765, for S.B., natural father of M.B.

Carmen V. Roberto, 330.434.1000, for T.R., stepfather and petitioner to adopt M.B.

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Attorney Discipline

Disciplinary Counsel v. Christopher James Burchinal, Case no. 2011-1426
Delaware County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Delaware attorney Christopher James Burchinal be suspended for two years, with the final 12 months of that term stayed, for professional misconduct in his dealings with four different clients.

The board found that in three cases Burchinal diverted to his own use funds from lawsuit settlements that he was supposed to use to pay bills owed by his clients to third-party creditors. In the fourth case Burchinal missed the statutory deadline for filing a couple’s personal injury suit, resulting in permanent dismissal of their  claim, but continued to reassure the clients for more than two years that he was negotiating a settlement of that claim. 

In recommending a sanction for this misconduct, the board noted the mitigating factors that Burchinal had no prior history of disciplinary violations, cooperated with disciplinary authorities and has made full restitution to the clients whose funds he misappropriated and entered into a voluntary settlement agreement with the clients whose personal injury suit he neglected. 

Burchinal has filed objections to the board’s recommended sanction.  He argues that in light of the mitigating factors in his case, a two-year suspension with 12 months stayed is too severe a penalty when compared to similar cases.  He urges the Court to instead impose the sanction recommended by the Office of Disciplinary Counsel, which is a two-year suspension with 18 months stayed.

Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Alvin E. Mathews Jr., 614.227.2312, for Christopher Burchinal.

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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.