By Randa Wagner
January 9, 2014
Attorneys for Richland County resident Cory Jackson appeared with him in Morrow County Common Pleas court Friday to request that all charges against their client be dropped.
The January 8 hearing was set up for Common Pleas Court Judge Howard Hall to answer motions presented at an Oct. 10, 2013 hearing. A superceding indictment with revised language was filed at that time by the state regarding the Nov. 14, 2011 accident that took the life of Paul Nauman.
Defense attorneys S. Michael Lear and Larry Zukerman requested that original charges of aggravated vehicular homicide be dropped or dismissed based on ‘outrageous governmental conduct’ and ‘failure to preserve exculpatory evidence’ (evidence favorable to the defendant). The defense also requested charges in the superceding indictment be dismissed based on ‘speedy trial’ issues.
The issues at hand
Atty. Lear explained to the court that following the Nov. 2011 collision, law enforcement officers Sgt. James Burkhart and Trooper Christopher Carpenter had a sketch of what the state’s position was of how the accident occurred.
“Since that time, in a span of a few weeks, we’d had a change of that report,” Lear said, “specifically, a change of an S-T line (a specific tire mark) that initially would have reflected the Nauman vehicle would have crossed the centerline, then it was changed to showing the Jackson vehicle crossing the double line. We also learned during the course of this case somehow, in September of 2013, the state had taken total station measurements* and never disclosed those to the defense.”
Lear explained a traffic report crash (Form OH-1) by Tpr. Carpenter was modified in several steps to change the point of impact and the Ohio Traffic Accident Diagram (Form OH-2) was changed as well. This, the defense maintains, is ‘outrageous governmental conduct’ which results in failure to preserve evidence favorable to the defendant.
Additonally, in the original indictment filed January 27, 2012, Jackson was charged with Aggravated Vehicular Homicide (F-2), Operating Under the Influence (M-1) and Operating a Vehicle with a Prohibited Breath Concentration (M-1).
In the superceding indictment filed October 10, 2013, Jackson is now charged with (1) Agg. Vehicular Homicide (F-2) (causing the death of…); Agg, Vehicular Homicide (F-3) (recklessly causing the death of…); Vehicular Homicide (F-2) (negligently causing the death of…); Failure to stop and exchange identity information and vehicle registration (F-3) (and remain at the scene); Operating Under the Influence (M-1); and Operating a Vehicle with a Prohibited Breath Concentration (M-1).
Count 4 - failure to remain at the scene - is a point of contention with the defense.
“That’s a completely new charge based on facts that were known to the State of Ohio on Nov. 17, 2011,” Lear contended. “If the court allowed the State of Ohio to toll the time and continue to add additional charges, the state would be free to ‘cherry pick charges’ and continue to add on to the defendant.”
Lear said his team requested the total station measurements and obtained them in September of 2013.
“So, for approximately a year and a half, the state patrol had total station measurements crucial to the defense and (they) were withheld by the state patrol,” he told Judge Hall. “When we did get those total station measurements we had our own expert take his own total station measurements and determine Mr. Nauman’s vehicle was in the path of the Jackson vehicle. The state then responded to the motion by giving Sgt. Frank Horvath’s report which set forth another theory that essentially agreed with our expert’s - except advancing the assumption the Nauman vehicle crossed the double yellow line in response to a perceived threat, assumed to be Mr. Jackson’s vehicle.”
He went on to say from November 2011 through October 2013, there was conflicting testimony by Sgt. James Burkhart and, later on, Sgt. Horvath with respect to how this accident occurred. Lear also suggested the State of Ohio and the state patrol did not disclose total station measurements and there is conflicting testimony over whether a map (of the accident details) was actually generated.
“Sgt. Burkhart and Sgt. Horvath talked about the fact that ‘we’re not going to do an accident reconstruction - we’re going to prepare a map and that should be sufficient,’” Lear recalled. “Well, we’ve had conflicting testimony on whether a map was actually generated, and some testimony [and] that the total station measurements were put in a computer program - but the computer program was looked at by Sgt. Horvath.”
He said the hard copy of the map was not turned over to the defense until the day of the hearing in October 2013.
“Those total station measurements now clearly shows the Nauman vehicle crossed the double lines in the northbound lane,” Lear said. “The biggest skid mark/brake mark line that shows the Nauman vehicle crossing the double yellow line is a southbound directional line. It was the strongest line - it wasn’t properly photographed. It’s our position that the state knew at the time there was evidence that the Nauman vehicle crossed that double yellow line into the path of Mr. Jackson’s vehicle and disregarded, ignored and failed to preserve that evidence and tried to paint a theory that Mr. Jackson was responsible for that accident. “Essentially, it’s our position that Mr. Jackson’s due process rights have been violated by those actions by the state. Based on what was presented, we are asking the court to dismiss (the charges).”
“There was a bit of a hiccup when it came to the testimony of Trooper Carpenter,” responded Morrow County Asst. Prosecutor Dave Homer. “The difficulty with Tpr. Carpenter’s testimony was in the preliminary transcript. Nobody’s actually done anything to hide anything.”
Homer said this case didn’t involve speed, so they said they weren’t going to do that kind of reconstruction.
“What they did in this case was in response to our pretrial - when they said we need to do a reconstruction and we made a layout,” he said. “We shared total station data - everything has been shared.”
Homer said there really wasn’t any aspect of the state’s evidence that remained undisclosed and that the state gave the defense everything they had.
“There’s simply isn’t any basis for contending that anyone has done anything in bad faith, even if the case hasn’t proceeded according to the way they (the defense) think it should proceed,” Homer maintained. “We got to this point by the actions of the state and people involved.”
Lear questioned conflicting testimony by officers at the last hearing, indicating their stories didn’t match about who decided there should not be an accident reconstruction.
With respect to the motion to dismiss the charges set forth in the superceding indictment, Lear cited case law State vs. Homan (89 Ohio St.3d 421, 2000-Ohio-212) where initial charges are brought forth then, after the speedy trial time runs (out), the state files a superceding indictment, adding charges to the case.
“They try to go back and say one motion that was filed in respect to the original indictment tolls the time under ORC 2945.72E,” Lear cited. “The supreme court said when a criminal defendant files a pretrial motion and the state later files additional related criminal charges against the defendant, ORC 2945.72E does not extend the time on those additional charges. It’s been almost two years after the accident, and the state goes to the grand jury with a superceding indictment to try to pile on another charge.”
Lear addressed Judge Hall, saying based on the Homan case, “I think it’s very clear that the superceding charges need to be dismissed.”
“The real issue is whether or not we can have in the superceding indictment count 4 - fleeing the scene,” Asst. Prosecutor Homer said. “When we added count 4, it’s not the same act (as the crash). It occurred after the DUI and main incident. While they (people at the crash scene) were milling about, the defendant fled the scene. That’s an entirely different act - it occurred maybe half an hour later.”
Homer said the issue now is whether the ‘speedy trial’ clock relates to the ‘fleeing’ aspect of the case.
“In this situation, the state knew all the facts when they first charged Mr. Jackson and when it took the case to the grand jury,” Lear contended. “The charge regarding ‘failure to stay at the scene’: the state knew that at the time they went to the grand jury. If they wanted to (file) charges, they could have done so back in January of 2012 when this case was originally indicted.”
Lear said the Homan case did not reverse.
“The state reindicted the case and was trying to toll that time by saying there was a motion to continue, which is different than a tactical decision that is akin to motion to suppress,” he reiterated. “So, the Homan [case] applies - it is exactly the same fact. So, based on Homan, we respectively ask the court to dismiss the superceding indictment.”
“My intention is to take you both under advisement as soon as possible, hopefully before next Friday,” Judge Hall told the prosecution and defense attorneys. “My understanding is that you’re conceding counts 2 and 3, and that it’s basically focused on count 4.”
The defense acknowledged, and has until next Wednesday to present any additional materials to Hall, who will give his determination on the dismissal motion at the January 17, 2014 pretrial conference at 2 p.m.
A two-week trial is scheduled to begin February 18, 2014 at 9 a.m.
* A total station is an electronic/optical instrument used in modern surveying and building construction. The total station is an electronic theodolite (transit) integrated with an electronic distance meter (EDM) to read slope distances from the instrument to a particular point.