September 12, 2012
Witness Intimidation

by Justice Paul E. Pfeifer

This case started with an extended chase and altercation that involved a man named Tracy Davis, and a deputy sheriff. The chase ended when Davis drove his ex-wife’s minivan within feet of the deputy sheriff, who was on foot.  The deputy was injured trying to dodge the vehicle as he fired at Davis.

Davis got away and made it to his ex-wife’s place. Once there, he changed out of his bloodstained clothes and tried to conceal the damage to the minivan. He also warned his ex-wife that she should lie about the incident or he would kill her and blow up her apartment.

Despite his efforts to flee, Davis was eventually caught and indicted on four counts: one count of felonious assault of a peace officer, two counts of tampering with evidence, and one count of intimidation of a witness.

A jury found Davis guilty of one of the counts of tampering with evidence (relating to taping over bullet holes in the minivan) and one count of intimidation of a witness. It found him not guilty of the second count of tampering (relating to efforts to conceal bloodstains on his clothes). But a mistrial was declared with respect to the assault charge after the jury failed to reach a verdict.

The trial court sentenced Davis to two years on the tampering-with-evidence conviction and four years on the intimidation-of-a-witness conviction. The sentences were to be served concurrently, followed by three years of post-release control.

Afterwards, Davis filed an appeal, arguing that the conviction of witness intimidation was not supported by sufficient evidence and that it was against the manifest weight of the evidence. He made the same claim about the conviction for tampering with evidence.

The court of appeals affirmed the conviction of tampering with evidence, but it vacated Davis’s conviction of witness intimidation. After the court of appeals ruling, the state filed an appeal here – at the Supreme Court of Ohio – asking us to review the witness intimidation conviction.

The law in question – the “witness intimidation law” – says that no person, by force or by unlawful threat of harm “shall attempt to influence, intimidate, or hinder ... an attorney or witness involved in a criminal action or proceeding in the discharge of the duties of the attorney or witness.” For the purposes of this case, the critical language is the phrase “involved in a criminal action or proceeding.” (The term “criminal action” appears throughout the Ohio legal code. It does not mean the act of committing a crime. Rather, it refers to a formal process involving a court in criminal proceedings.)

In 2009, our court reviewed the witness intimidation law in a case called State v. Malone. In that case, we addressed an issue regarding the requirements for qualifying as a witness under the terms of the law.

The Malone case involved a rape. Shortly after committing the rape, Malone threatened a woman who had observed the crime as it occurred. At the time the threat was made, the rape victim had not yet reported the crime. Because the witness intimidation law “requires a witness’s involvement in a criminal action or proceeding, not his or her potential involvement,” we concluded that the woman who observed the crime was not yet a witness when she was threatened.

In Malone, we held that a conviction for intimidation of a witness under the witness intimidation law “is not sustainable when the intimidation occurred after the criminal act but prior to any proceedings flowing from the criminal act in a court of justice.”

Malone’s threat occurred long before the threat victim qualified as a witness under the law, so the law did not apply.  Our decision in Malone stands for the proposition that a “criminal action or proceeding” – as it is described in the witness intimidation law – requires the formal initiation of proceedings such as criminal charges or grand jury proceedings, not merely the investigation of the crime.

In Davis’s case, a police investigation had begun before he threatened his ex-wife. In fact, since the victim was a deputy sheriff, the police were immediately aware of the acts leading to Davis’s felonious-assault charge.

But even though they were immediately aware of his assault, no “criminal action or proceeding” was initiated until later, when the state filed charges against Davis. Therefore, no “criminal action or proceeding” was underway at the time of the threat, and thus the witness intimidation law does not apply.

Justice Yvette McGee Brown, who wrote the majority opinion for this case, said that the witness intimidation law “prohibits the intimidation of a person who observes a crime after the initiation of proceedings flowing from the criminal act in a court of justice. But a police investigation, without more, is not a proceeding in a court of justice, and it does not invoke the protection” of the witness intimidation law for a person who observes the crime.

We therefore concluded – by a six-to-one vote – that the court of appeals correctly determined that insufficient evidence existed to convict Davis for witness intimidation based upon his threat to his ex-wife.

In her closing remarks, Justice McGee Brown said, “We do not arrive at this conclusion lightly. Threats to prospective witnesses cause real harm to the administration of justice, as we recognized in Malone. But we are limited by the language chosen by the General Assembly to define the crime of witness intimidation, and we cannot apply that language to conduct” that is outside the witness intimidation law.

However, as Justice Evelyn Lundberg Stratton observed in her dissent, this case will have limited impact because the General Assembly has since chosen to amend the witness intimidation law to cover these situations. Going forward, “potential and real witnesses to a crime will now be protected regardless of the status of any legal proceedings.”

EDITOR'S NOTE: The case referred to is State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-1654. Case No. 2011-0685. Decided April 17, 2012. Majority opinion written by Justice Yvette McGee Brown.