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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
Timothy E. Pierce
Franklin County Public Defender Office
-- Exercise of victim's rights by representative.
-- Means of giving notice to victim; notice of changes.
-- Information to be given to victim by investigating law enforcement agency.
-- Notice of arrest of defendant; affidavit concerning violence or intimidation.
-- Prosecutor to confer with victim and provide information; notice of court proceedings.
-- Concealment of victim's or representative's address, telephone number and similar identifying facts.
-- Notice of substantial delay in prosecution; victim's objections.
-- Presence of victim at proceedings; individual providing support.
-- Minimization of unwanted contact between prosecution and defense sides.
-- Return or retention of victim's property.
-- Notice of acquittal or conviction; inclusion of impact statement in presentence investigation report.
-- Victim may make written or oral statement to person preparing impact statement.
-- Victim may make statement prior to sentencing; defendant's opportunity to respond.
-- Notice of filing of appeal; victim's rights after reversal.
-- Notice of defendant's incarceration and release date; prior notice of events affecting release or of defendant's escape or death.
-- Victim's statement prior to granting of shock probation.
-- Prohibited actions by employer of victim.
-- Prosecutor's duty to seek compliance; effect of violations; conflicting statutes; incarcerated victims.
For numerous Court of Claims cases on awards to victims of crimes see 91 Ohio Misc. 2d 79-194.
Victim Impact Statements
Victim Impact Testimony
State v. Brown
, 146 Ohio App. 3d 654,
-- Court may consider new material facts raised in a victim-impact statement provided the defendant is given an opportunity to respond.
State v. Stewart
, 149 Ohio App. 3d 1,
-- No abuse of discretion found in denying defendant access to victim impact statements where ex-cop molested Eagle Scouts. Compare
State v. Randlett
, Franklin App. No. 03AP-385, 386, 387 and 388,
where the court sidesteps the issue by interposing plain error based on the failure to ask for the statements at the time of sentencing and the court's recitation as to what in the statements influenced its sentencing decision.
In re Contempt of Morris
(1996), 110 Ohio App. 3d 475 -- Objections by defense counsel to assertions beyond the proper scope of a victim impact statement were an effort to preserve the record and were not punishable as contempt.
State v. Patterson
(1996), 110 Ohio App. 3d 264 -- (1) While it is error for the court to fail to order a victim impact statement in a felony case, reversal is not required unless the defendant demonstrates affirmative damage. Also see
State v. Garrison
(1997), 123 Ohio App. 3d 11, 16-17. (2) At p. 271 "(A) trial court abuses its discretion in sentencing a defendant, even when the sentence is within the statutory guidelines, if the trial court has considered evidence concerning the acquitted charge." Defendant had been acquitted of the murder of one victim, but convicted of attempted murder of another. Also see
Columbus v. Jones
(1987), 39 Ohio App. 3d 87.
State v. Huertas
(1990), 51 Ohio St. 3d 22 -- Syllabus: "Expressions of opinion by a witness as to the appropriateness of a particular sentence in a capital case violate the defendant's constitutional right to have the sentencing decision made by the judge and jury." Compare
State v. Williams
, 99 Ohio St. 3d 493,
, ¶ 141-154 where extensive prosecutorial misconduct in argument at penalty phase of a capital trial led to reversal. The prosecutor focused on victim impact and the death of the fetus the homicide victim was carrying.
State v. Harwell
, 149 Ohio App. 3d 147,
-- A juvenile being tried for capital murder is entitled to the full rights of other capital defendants. It was reversible error for the three judge panel to allow members of the victim's family to make a recommendation as to sentence. It was not error to allow more than one family member to provide victim impact statements. It was error, but not plain error, for the panel to allow a family member to directly address the defendant. It was reversible error for the panel to weigh the facts and circumstances of the crime as aggravating circumstances to be weighed against mitigation factors.
State v. Green
(2000), 90 Ohio St. 3d 352, 364-365 -- Error to permit victim and members of his family to express an opinion as to how defendant should be punished for a crime against another.
State v. Treesh
(2001), 90 Ohio St. 3d 469, 486-489 -- Though victim impact testimony was improperly received, court declines to reverse since it was not heard by the jury and there was no indication it formed the basis of the trial judge's decision to impose the death penalty. Also see
State v. Sanders
(2001), 92 Ohio St. 3d 245, 267 -- "Since a trial judge is presumed to have considered only the competent and material evidence, the impropriety does not reach the level of plain error."
State v. Ridenour
(1998), 128 Ohio App. 3d 134 -- The failure to allow the victim to testify at sentencing does not afford the defendant any grounds for relief.
Payne v. Tennessee
(1991), 501 U.S. 808 -- Under the Eighth Amendment there is no per se bar during the sentencing phase of a death penalty trial to the jury hearing victim impact testimony and related argument by the prosecutor. But unduly prejudicial victim impact testimony may violate the Due Process Clause of the Fourteenth Amendment.
State v. Reynolds
(1998), 80 Ohio St. 3d 670, 679 -- Opinion appears to accept that victim impact testimony is not admissible at the penalty phase of a death penalty trial. Such testimony is admissible in other states, but the Ohio statutes do not provide for admission. Also see
State v. Goodwin
(1999), 84 Ohio St. 3d 331, 342-343 which minimizes what was said to the judge but not heard by the jury and maintains any error may be cured by independent review.
State v. White
(1999), 85 Ohio St. 3d 433, 441-447 -- After taking a more expansive view than in the past of when victim impact testimony may be relevant before capital sentencing juries, opinion states it was improper to admit such testimony related to noncapital crimes which the judge alone bore the responsibility for sentencing.
State ex. rel Ferguson v. Court of Claims of Ohio, Victims of Crime Division
, 98 Ohio St. 3d 399,
-- Claim was denied based on past arrest for the felony of escape. Statute refers to criminally injurious conduct that would constitute a felony, and does not require a felony conviction for disqualification. Disposition via plea to misdemeanor of resisting arrest was not res judicata. Court was permitted to consider unsworn police reports.
State v. Drake
, 192 Ohio App. 3d 216,
– Defendant charged with nonsupport was deemed ineligible for intervention in lieu of conviction because support was for a child under age thirteen. Held that the victim is the payee of the support order, not the child for whose benefit it has been ordered.
State v. Martin
, 151 Ohio App. 3d 605,
, ¶61-64 -- State appealed ruling member's of homicide victim's family could not remain in the courtroom until after they had been excused as witnesses. Assuming, without deciding, state had standing to raise this issue, defendant's right to a fair trial is superior to victims' right to be present. Findings were not required.
Hartmen v. Ohio Crime Victims Reparations Fund
(2000), 138 Ohio App. 3d 235 -- Inmate was sued to recoup payment by fund exercising its subrogation rights. Motions filed by inmate amounted to sufficient participation in the action that he was entitled to notice of default judgment and a hearing before it was entered.
State v. Hall
, Montgomery App. No. 20025,
-- According to 1990 plea bargain, the prosecutor and the judge were to recommend an early release on parole to the APA. Instead they opposed such release when interviewed. Denied parole in 2000, the defendant sought to withdraw his guilty plea. (1) Specific performance of the original agreement, albeit lackluster, and initial grant of an earlier date to be reconsidered were an adequate remedy. (2) Subsequent opposition by the family, facilitated by the Office of Victims' Services was not within the original agreement, provided such action was not orchestrated by the prosecutor.
State v. Aldridge
(1997), 120 Ohio App. 3d 122, 153-154 -- Court overrules state's assignment of error contending "'Victim's' rights must be considered by utilizing the least drastic means available to remedy a constitutional violation under
Ohio Revised Code." At 154: "No right of the victim is advanced, and no interest of the state served, by incarcerating the innocent."
Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.