State v. May
2012 Ohio 5128
Ohio Ct. App.2012Background
- Defendant Daniel May was charged in two indictments with four counts of domestic violence against his mother, Diane Gerber, each with prior domestic-violence convictions alleged as special offenses.
- The four charged incidents occurred between 2008 and 2011, with deputies observing Gerber’s injuries and Gerber making multiple emergency calls asserting abuse by May while both were intoxicated.
- The State introduced audio recordings from 911 calls and on-scene recordings, and Gerber later testified as a court witness after the court granted the State’s motion.
- May’s trial included stipulations to his prior domestic-violence convictions; he was convicted by a jury of all counts and sentenced to three years and six months in prison.
- May appeals eight assignments of error challenging evidentiary rulings (silence, hearsay, witnesses, prior acts, statements to officers), voir dire practices (peremptory challenges), ineffective assistance, and cumulative error, all of which the court rejects and affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of May’s pre-arrest silence | State contends plain error not established; silence used to chronology during investigation. | May argues admission of pre-arrest silence as substantive evidence of guilt violates Fifth Amendment. | No plain error; admission affirmed as non-prejudicial to verdict. |
| Admission of Gerber’s out-of-court statements | Statements fit present sense impression or excited utterance exceptions. | Statements are inadmissible hearsay not covered by exceptions. | Not plain error; statements admitted under present sense/implied excited utterance rationale. |
| Trial court calling Gerber as its own witness | Court acted properly under Evid.R. 614 to call witness. | Calling Gerber violated defendant’s rights and should have been objected to. | Waived; alternatively, not prejudicial; no reversible error. |
| Admission of evidence of prior physical altercations | Evidence admissible to prove context, pattern, or other proper purposes under Evid.R. 404(B). | Evidence improperly shows character and propensity for violence. | Not reversible error; admissible for proper purposes; harmless in light of substantial other evidence. |
| May’s statements to arresting officers | Statements admissible; not violative of Miranda given trial context and other evidence. | Miranda violations; statements should have been suppressed. | Not plain error; harmless given other evidentiary support. |
Key Cases Cited
- State v. Leach, 102 Ohio St.3d 135 (2004-Ohio-2147) (pre-arrest silence cannot be used as substantive guilt evidence)
- State v. Castle, 2007-Ohio-3599 (3d Dist. No. 8-06-27) (isolated remark on silence not reversible error)
- State v. Rick, 2009-Ohio-785 (3d Dist. No. 9-08-27) (silence remark used to describe chronology not reversible error)
- State v. Balo, 2011-Ohio-3341 (3d Dist. No. 1-10-48) (plain-error review limits review when no trial objection)
- State v. Burks, 2008-Ohio-2463 (10th Dist. No. 07AP-553) (Batson-type issues require adequate record for review)
- J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (gender discrimination in jury selection prohibited)
- Batson v. Kentucky, 476 U.S. 79 (1986) (racial discrimination in jury selection prohibited)