2011 Ohio 2388
Ohio Ct. App.2011Background
- Howard Miller was indicted on four counts related to the controlled delivery of marijuana, including trafficking (200–1000 g) and possession with firearm specifications.
- A FedEx package containing marijuana was allegedly delivered to a two-family home in Cleveland addressed to a fictitious recipient, Barbara Jones, from a dubious sender, Charles Finley.
- Police used a drug-detection dog; the dog alerted, leading to a search warrant for the package and the recipient’s address, which was executed at the Cleveland location.
- Miller and his wife took possession of the package after delivery and were arrested; Miller was found with a loaded handgun and marijuana, while the package contained marijuana.
- At trial, the defense presented testimony that the delivery and possession were tied to helping Miller’s mother-in-law, who was in foreclosure, and that the package may have been misdelivered.
- The jury convicted Miller of trafficking and the firearm specification and possession, but acquitted on criminal tools and some forfeiture aspects; the court sentenced Miller to 18 months for trafficking and six months for possession, with concurrent terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the search warrant supported by probable cause? | Miller | Miller | Warrant supports probable cause; good-faith exception applies |
| Did prosecutor's closing comments on failure to testify violate rights? | State | Miller | Improper but harmless beyond reasonable doubt |
| Was trial counsel ineffective for not moving to suppress and for hearsay | Miller | Miller | No ineffective assistance; strategy and lack of suppression grounds; no error |
| Is the conviction against the manifest weight of the evidence? | State | Miller | Not against the weight of the evidence |
| Should Miller be resentenced due to allied offenses under R.C. 2941.25? | State | Miller | Convictions affirmed; sentence vacated and remanded for election of allied offenses |
Key Cases Cited
- State v. Nguyen, 157 Ohio App.3d 482 (2004-Ohio-2879) (drug-detection dog reliability required for probable cause)
- State v. George, 45 Ohio St.3d 325 (1989) (probable cause standard in warrants from Gates)
- State v. Cabrales, 118 Ohio St.3d 54 (2008-Ohio-1625) (allied offenses of similar import; trafficking and possession)
- State v. Webb, 70 Ohio St.3d 325 (1994-Ohio-425) (test of improper comments on defendant’s failure to testify)
- State v. Whitfield, 124 Ohio St.3d 319 (2010-Ohio-2) (electing among allied offenses at sentencing)
- United States v. Leon, 468 U.S. 897 (1984) (good faith exception to defective warrant)
- Mapp v. Ohio, 367 U.S. 643 (1961) (exclusionary rule applies to unreasonable searches)