Oral Argument Previews

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Tuesday, March 20, 2012

State of Ohio v. Wayne Powell , Case no. 2007-2027
Lucas County Court of Common Pleas

State of Ohio v. Keith Ramey, Case no. 2011-0597
Second District Court of Appeals (Clark County)

In re: Application of Michele McKinney, Case no. 2011-1520
Board of Commissioners on Character & Fitness

Cleveland Metropolitan Bar Association v. Kevin T. Toohig, Case no. 2011-2037
Cuyahoga County


Death Penalty

State of Ohio v. Wayne Powell, Case no. 2007-2027
Lucas County Court of Common Pleas

Wayne Powell of Toledo was found guilty of aggravated arson and four counts of aggravated murder and sentenced to death for deliberately setting a 2006 house fire that caused the deaths of his estranged girlfriend, Mary McCollum, her four-year-old adopted son, Jamal McCollum-Meyers, Mary’s disabled mother, Rosemary McCollum, and a two-year old cousin who happened to be spending the night at McCollum’s house, Sanaa Thomas.

Powell has appealed to the Supreme Court, alleging 26 legal or procedural errors by the trial court as grounds to reverse his convictions or reduce his death sentence to a term of life imprisonment.

Among those assignments of error, attorneys for Powell argue that:

Powell also asserts that the prosecutor engaged in misconduct by making multiple statements during his closing statement that went beyond the evidence presented at trial, and improperly urged jurors to consider victim impact information and other irrelevant considerations in deciding his guilt or innocence.

The state, represented by the Lucas County prosecutor’s office, responds that the trial judge properly allowed the prosecutor to put forward an aggressive presentation of the evidence in his closing argument, and points out that the court granted several objections raised by Powell’s attorneys during the closing argument, and instructed jurors to disregard specific statements that the court determined were beyond the bounds of zealous advocacy.

With regard to the specific assignments of error referenced above, the state argues that:

Contacts
Spiros P. Cocoves, 419.241.5506, for Wayne Powell.

David F. Cooper, 419.213.2061, for the Lucas County prosecutor's office.

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Does One Codefendant's Pretrial Motion Stop Running of Other Codefendant's 'Speedy Trial' Time Limit?

Where State Opts to Prosecute Both Defendants In Single Trial

State of Ohio v. Keith Ramey, Case no. 2011-0597
Second District Court of Appeals (Clark County)

ISSUE:  When one of two co-defendants in a criminal case set for a joint trial is able to post bond, but the other co-defendant remains in jail prior to trial, does the filing of a pretrial motion by the bonded defendant to suppress evidence that is applicable only to himself “toll” (stop the running of) the 90-day speedy trial time limit within which the state must begin the trial of the incarcerated co-defendant?
 
BACKGROUND: Ohio’s “speedy trial” statute, R.C. Chapter 2945, requires that a person charged with a criminal offense must be brought to trial within 270 days after the date he or she is arrested. Failure by the state to act within that time limit requires dismissal of the charges. In cases where a defendant is unable to post bond and remains in jail pending trial, the statute specifies that each day of incarceration counts as three days toward the defendant’s speedy trial limit, effectively requiring that offenders who remain in custody must be brought to trial within 90 days of being arrested.

To make allowance for delays in bringing a case to trial that are not within the state’s control, the speedy trial law provides that the filing of pretrial motions and certain other legal actions initiated by a defendant  “tolls” or stops the running of the speedy trial time limit in the defendant’s case until those issues have been resolved by the court and trial preparations can move forward again.

In this case, Keith Ramey and Jonathan Keeton of Springfield were jointly indicted on October 13, 2009, on charges of aggravated robbery, felonious assault and breaking and entering for two separate crimes in which both men were involved. Ramey was arrested on October 7, 2009, the same day the two crimes were committed, at the home of an acquaintance where police found property taken from a tattoo parlor during the break-in offense.  Keeton was arrested separately the following day at the home of his father, where police found a gun, a duffle bag, items taken during the tattoo parlor break-in and a backpack and jewelry taken from the robbery victim.

At their arraignment, the court set bond at $50,000 for each defendant. Keeton was able to post bond and was released from custody. Ramey was not able to post bond, and remained in the Clark County jail pending trial. Because both co-defendants were charged with the same offenses based on the same events, the case was scheduled for a joint trial. Keeton and Ramey were represented by different attorneys.

On December 10, 2009, Keeton’s attorney filed a pretrial motion to exclude from evidence the observations of the officer who arrested him, the items found at his father’s house, and statements Keeton made to police at the time of his arrest.  Ramey did not join the motion to suppress, and his attorney filed no pretrial motions on his behalf.  On January 5, 2010, 26 days after Keeton’s motion to suppress was filed, the court held a hearing to consider it. The next day, the court issued an entry denying Keeton’s motion in its entirety.  In that entry, the court also noted that “counsel have indicated their respective availability for trial on February 1, 2010.”  The trial date was subsequently changed to February 2.

On February 1, 2010, the original trial date, Ramey filed a motion to dismiss the charges against him based on the state’s failure to bring him to trial within the 90-day speedy-trial time limit after his arrest on October 7.  The trial court denied that motion, holding that Ramey’s attorney had “agreed” to the February 1 trial date, and by doing so had waived the 90-day limit. The case proceeded to a jury trial, at which Ramey was found guilty on the aggravated robbery and felonious assault charges and a firearm specification, and sentenced to a total of 11 years in prison.

Ramey appealed the trial court’s denial of his motion to dismiss on speedy trial grounds. The Second District Court of Appeals affirmed the action of the trial court, but cited as its basis for doing so a finding that Keeton’s motion to suppress had tolled the running of the speedy trial time limit for both defendants for the 26 days that his motion was pending before the court. Subtracting those 26 days from the elapsed time between Ramey’s arrest and the start of the trial, the court of appeals found that Ramey had been brought to trial within 90 countable days after his arrest.

Ramey sought and was granted Supreme Court review of the Second District’s decision.

Attorneys for Ramey argue that the Second District applied the wrong provision of the speedy trial statute in denying his appeal.  They assert that in State v. Smith, a 2004 decision of the Second District that it cited as precedent in Ramey’s case, the court relied on R.C. 2945.72(H), which tolls the speedy trial time of all defendants in a multi-defendant case when any party moves for and is granted a continuance of proceedings by the trial court. In this case, they point out, the motion filed by Keeton was not a motion for a continuance but rather a motion to suppress evidence, and in any case the trial court did not grant a continuance, so R.C. 2945.72(H) was not applicable. In reviewing the effect of Keeton’s motion on Ramey, they contend, the Second District should have applied a different statutory provision, R.C. 2945.72(E), which provides that the running of a defendant’s speedy trial time is tolled only for motions that are “made or instituted by the accused.”

Because Keeton’s motion to suppress was not made, instituted or joined by Ramey, and the evidence that motion sought to suppress dealt exclusively with the circumstances of Keeton’s separate arrest, they argue that under R.C. 2945.72(E) Keeton’s motion tolled only his own speedy trial time, and the Second District’s ruling that it also tolled Ramey’s speedy trial time should be overturned.

Attorneys for the state urge the court to affirm the Second District’s ruling as consistent with prior court decisions holding that a defendant’s speedy trial time may be tolled based on delays in a case resulting from motions not made by that defendant, such as motions to delay proceedings because of a missing witness or because of a mandamus action pending in another court regarding media access to the defendant’s trial.  They also argue that if Keeton’s motion to suppress evidence had been granted, Ramey’s chances of winning acquittal would have been improved along with Keeton’s, and point out that Ramey had the opportunity to seek an earlier trial date by moving to sever his case from Keeton’s, but failed to do so.

Contacts
Stephen P. Hardwick, 614.466.5394, for Keith Ramey.

Andrew R. Picek, 937.521.1770, for the Clark County prosecutor's office.

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Application to Take Bar Examination

In re: Application of Michele McKinney, Case no. 2011-1520
Board of Commissioners on Character & Fitness

The Board of Commissioners on Character and Fitness has recommended that the court permanently deny the application of Michele McKinney of Cincinnati to take the Ohio Bar Examination.

The board based its recommendation on findings that McKinney was terminated from her employment as a paralegal with a Cincinnati law firm in 2008 for using the firm’s letterhead in a scheme to escape from an apartment lease by falsely claiming she had been transferred by her employer to another city. The board also found that McKinney subsequently made inaccurate and misleading statements about the reason for her termination in her application to take the bar examination, and in hearings before the character and fitness board.

McKinney has filed objections to the board’s report and recommendation. She asserts that the reason she listed for her firing on her bar exam application and in hearings before the board, improper personal use of office email, accurately reflected what was communicated to her by her employer during the brief interview at which she was fired, and corresponded to the reason the firm gave for firing her then-fiancé, now husband, when he was terminated on the same day. She points out that the “fake” transfer letter she admits preparing on firm letterhead was never sent to her landlord or even printed out, but existed only in electronic form, and urges the court to allow her to reapply to take a future bar examination after an interim period of good conduct, as it has done in previous cases involving applicants who actually engaged in illegal acts prior to seeking admission to the bar.  

The Cincinnati Bar Association, which recommended that McKinney’s current application for admission to the bar be denied, has filed an answer to McKinney’s objections in which it disputes her claims to have accurately reported the reason for her firing on her original bar exam application.  Counsel for the association also asserts that when repeatedly given the opportunity to admit the true reason for her firing and acknowledge that her answers to questions were misleading, she has continued to deny that conduct and has demonstrated a lack of the candor and honesty.

Contacts
Christopher Wiest, 513.352.6660, for the Cincinnati Bar Association.

Thomas D. Richards, 513.871.8755, for Michele McKinney.

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Attorney Discipline

Cleveland Metropolitan Bar Association v. Kevin T. Toohig, Case no. 2011-2037
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that Cleveland attorney Kevin T. Toohig be permanently disbarred for multiple acts of professional misconduct that included a 2010 felony conviction for federal income tax evasion and a 2007 incident in which he used his law office trust account to temporarily conceal $710,000 conveyed to him by an acquaintance who was the subject of a police manhunt, and who was later convicted of stealing nearly $11 million from the state of Colorado. 

The board also found that on multiple occasions Toohig diverted client funds on deposit in his trust account to his own use, failed to make timely disclosure and distribution of funds in his possession to clients who were entitled to receive them, and used his client trust account to conceal personal assets from the Internal Revenue Service and other creditors who had obtained judgment liens against his other accounts.

Toohig’s law license has been under an interim suspension since January 2011, when the Supreme Court was notified of his felony conviction.

Toohig has filed objections to some the board’s findings, and asks the court to impose a sanction that would allow the possibility of his return to the practice of law at some time in the future. He points out that the tax evasion charge was based on conduct that occurred in 2000, and asserts that most of the other rule violations in the complaint against him took place while he was a practicing alcoholic. Toohig also objects to the board’s refusal to give significant weight to his abstinence from alcohol and active participation in a recovery contract with the Ohio Lawyers Assistance Program since November 2009, or to a written statement he submitted from a psychologist who has been treating him for more than two years attesting that Toohig’s previously untreated substance abuse and undiagnosed major depression and anxiety disorders were major causal factors in his misconduct.

Contacts
Robert J. Pollock, 216.348.5400, for the Metropolitan Cleveland Bar Association.

Kevin Toohig, pro se, current phone contact information unavailable.

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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.