State v. Huber, 07-Ca-88 (4-3-2009)State v. Huber, 07-Ca-88 (4-3-2009)
{¶ 1} On March 7, 2006, Joseph W. Huber (Appellant) was caught with a suitcase chock-full of thousands of narcotic pain-reliever and analgesic tablets-methadone, hydrocodone, oxycodone, fentanyl patches, and acetaminophen with codeine. He was convicted on five counts of controlled substance possession in back-to-back trials (Huber I, No. 06-CR-509, and Huber II, No. 06-CR-674). The prosecutor‘s misidentification of the fentanyl patches in the original indictment required the state to reindict Mr. Huber, prompting the second trial three months later. The two trials spawned two appeals (this one and State v. Huber, Clark App. No. 07-CA-122), which we declined to consolidate.
{¶ 2} This is the appeal from the first trial, Huber I, where the jury found him guilty on four counts of possession and the trial court sentenced him to a state penitentiary for 18 years (the statutory maximum). Mr. Huber assigns four errors and raises several issues, the most important of which are whether the search of the suitcase violated his
{¶ 3} The first assignment of error alleges the trial court wrongly overruled Mr. Huber‘s motion to suppress the drugs. He contends the search of the suitcase was warrantless and failed to satisfy an exception to the
{¶ 4} In the early evening of March 7, 2006, in Springfield, Ohio, he and Detective
{¶ 5} Around 6pm, they watched a 1992 Chevy pickup truck pull near the house. The driver got out and walked into the house empty handed. Consistent with the pattern they, and Major Garman, had seen, the driver walked out a few minutes later carrying a suitcase, which he carried in a way that suggested it was heavy. The two officers watched as the driver swung the suitcase into the Chevy‘s open bed, got in the cab, and drove off; they decided to follow. “[W]hat caused you to follow him?“, asked defense counsel. (Tr. 31). “[T]he gentleman leaves the house with a suitcase and throws it in the back of the truck,” Turner replied, “there could be drugs in [there].” Id.
{¶ 6} They ran the Chevy‘s plates as they followed, and they discovered John Huber was its registered owner and also the subject of an outstanding arrest warrant.
{¶ 7} After the truck stopped, Sergeant Turner approached the passenger, Detective Woodruff the driver. When asked their names, both men replied, “Joe Huber,” but the passenger quickly corrected himself and said his was John Huber. Turner informed John of the arrest warrant and asked him to step out of the truck, where he arrested and handcuffed John. Searching him, Turner reached into his front pants-pocket and pulled out a small packet that contained a white powder, which he suspected (and later confirmed) was cocaine. Meanwhile, Detective Woodruff was busy with the driver, who, like John, was being combative and argumentative. Woodruff learned the driver‘s name was Joseph Huber, and Joseph was John‘s nephew.
{¶ 8} Turner, his hands full with John, could not testify in detail about Woodruff‘s encounter with Joseph, but he did know that it was at some point after he had arrested John when Woodruff opened the suitcase. Inside they saw pill bottles and thousands of pills. Woodruff immediately arrested Joseph, who, Turner testified, likely would not have been arrested but for this discovery.
{¶ 9} Mr. Huber contends that when Detective Woodruff opened the suitcase Woodruff violated his
{¶ 10} A trial court‘s suppression decision presents a mixed question of fact and law. See State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539. We accept the trial court‘s view of the facts, provided they are supported by competent, credible evidence, because “[w]hen considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8. But we determine independently what the legal conclusion should be. See State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906. Here, as we said, the trial court did not make express findings of fact, but neither was the testimony disputed, so we will assume the trial court accepted all of it.
{¶ 11} While the
{¶ 12} Probable cause is a decidedly amorphous concept that invokes an
{¶ 13} The facts of a case include not only the historical, sensory-based facts-what an officer saw, heard, felt, smelled, and perhaps tasted-but also the background facts known by resident judges and local law enforcement officers. Background facts are those facts, “though rarely the subject of explicit findings, [that] inform the judge‘s assessment of the historical facts.” Id. at 700. A reviewing court does well not forget that such facts exist because “[a] trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts though the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference.” Id. at 699. Therefore, “[a]n appeals court should give due weight to a trial court‘s finding that the officer was credible and the inference was reasonable.” Id. at 700.
{¶ 14} Here, three experienced officers believed the house on North Belmont Ave. was a likely hub of drug-related commerce. Turner knew Major Garman had watched people lug suitcases, and other bags, from the house. They saw Mr. Huber enter the house empty-handed and exit only a few minutes later with a heavy suitcase in hand; they also discovered cocaine on his uncle, the passenger, which fact alone can constitute probable cause to search a vehicle. See, e.g., Wyoming v. Houghton (1999), 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (hypodermic needle found in driver‘s pocket plus his admission that he used it to take drugs gave officer probable cause to search vehicle for contraband); U.S. v. Johnson (C.A.7, 2004), 383 F.3d 538, 545-546 (stating that officer‘s “discovery of a banned substance (drugs) on [defendant‘s] person clearly provided him with probable cause to search“). The trial judge, resident in Springfield, concluded that Sergeant Turner and Detective Woodruff, both local police officers, had a reasonable basis for believing the suitcase in the Chevy‘s bed was loaded with drugs. We cannot say that as a matter of law the trial judge erred in his conclusion. We overrule the first assignment of error.
{¶ 15} The second assignment of error alleges the trial court erred by admitting into evidence a card found in the suitcase and testimony from Officer Woodruff that Mr. Huber‘s nickname or “street name” is “Peanut,” the card‘s addressee. When the prosecutor looked through the suitcase on the day of trial, he found a card with “To my love, Peanut, love Lisa” written on the outside. On the suitcase‘s inventory list the card was lumped together with other items under the heading “various items.” Because the prosecutor had not discovered the card earlier, he had not provided a copy of it in his discovery responses or identified it as a potential exhibit. But Mr. Huber knew about the card a week before trial.
{¶ 16} Later on, the prosecutor asked Officer Woodruff whether he knew if Mr. Huber had a nickname or street name. Woodruff replied he was known on the street as “Peanut.” Defense counsel objected to this testimony, arguing the prosecutor failed to establish Woodruff had personal knowledge of the name. But during a sidebar counsel revealed that her real fear was of the jury hearing a police officer say that he had a street name. Counsel expressed concern the jury would infer a criminal past, which had already been ruled inadmissible. Counsel argued she could not cross examine Woodruff about this testimony without opening the door for admission of his criminal history. The trial judge overruled the objection, saying that while testimony of his criminal history was inadmissible, the same was not true of his street name.
{¶ 17} Mr. Huber, in the first of three arguments, contends the prosecutor violated Criminal Rule 16(B)(1)(c) by failing to produce the card in discovery and by failing to list it as an exhibit. This rule says, “Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, available to or within the possession, custody or control of the state, and which are material to the preparation of his defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant.”
{¶ 18} He misinterprets this rule, however, because it does not require a prosecutor to disclose and produce all evidence the latter intends to use at trial. The plain language of
{¶ 19} Second, he contends the trial court should not have admitted the card because the prosecutor did not establish the card‘s chain-of-custody. “The State has the burden of establishing the chain of custody of a specific piece of evidence. State v. Barzacchini (1994), 96 Ohio App.3d 440, 458, 645 N.E.2d 137. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’
{¶ 20} Sergeant Turner, who claimed familiarity with the police department‘s property-handling procedures, testified that it was unlikely the card had been tampered with. On the day it was found, the suitcase, and its contents, were locked up and were accessible only to property-room personnel. The next morning, said Turner, it was moved into the department‘s secure property-storage system, where any movement of an item is recorded. While it is true that, as Mr. Huber suggests, it cannot be said for certain the card
{¶ 21} Finally, Mr. Huber contends the writing on the outside of the card is hearsay. “`Hearsay’ is a statement,” “an oral or written assertion,” “offered in evidence to prove the truth of the matter asserted.”
{¶ 22} What Mr. Huber alleges to be hearsay-“To my love, Peanut, love Lisa,” (Tr. 119)-is not. Even if it could, perhaps, be read as Lisa asserting her love for Peanut, the prosecutor was not trying to prove that Lisa loved Peanut; rather, he was trying to link the suitcase to Mr. Huber.
{¶ 23} Next, he argues the trial judge erred by allowing Officer Woodruff‘s testimony about his street name. He contends the prosecutor failed to lay a foundation of personal knowledge.
{¶ 24} Here, there was sufficient evidence from which the trial judge could find that
{¶ 25} The third assignment of error alleges the trial court should have dismissed two jurors for cause. During voir dire, one juror admitted that Major Garman (a witness for the prosecution) was a family friend and also admitted that his (the juror‘s) entire family worked in law enforcement. But the juror also said neither fact would keep him from fairness and impartiality. A second juror expressed his belief that police officers, being specially trained, can more skillfully detect crime than can an untrained lay person, just as, he explained, anyone specially trained for a job can perform it more skillfully than can an untrained lay person. When asked by defense counsel whether he believed police officers could still make mistakes, he replied, “Absolutely.” (Tr. 70). When counsel pressed him, asking whether he would nonetheless presume they would not make a mistake, he answered, “No, I wouldn‘t.” Id.
{¶ 26} Mr. Huber contends their statements make it clear that neither could have been fair and impartial, and the trial court ought to have dismissed them.
{¶ 27} We find nothing in either juror‘s statements that evinces a bias or shows them partial toward the state or otherwise makes them unsuitable jurors. Simply knowing a witness does not make a potential juror ineligible to serve, nor does having police officers in the family make one incapable of fairness. The other juror, as the trial judge observed,
{¶ 28} Finally, Mr. Huber argues the trial court erred by preventing him from exercising a peremptory challenge. This, though, is an error different from the “for cause” error alleged in the third assignment of error, and it is not raised separately. An issue not raised by specific assignment of error is not properly before us, making it inappropriate to consider. State ex rel. DeMuth v. State Bd. of Edn. (1996), 113 Ohio App.3d 430, 434, 680 N.E.2d 1314. And
{¶ 29} The final assignment of error alleges the trial court should not have overruled a motion to dismiss the charges on speedy-trial grounds. Over fourteen months elapsed between Mr. Huber‘s indictment in May 2006 and his trial in July 2007. The charges ought to have been dismissed, he contends, because the delay violated his right to a speedy trial under the
{¶ 30} The Ohio Constitution “guarantees an accused th[e] same right” to a speedy trial as the U.S. Constitution does. State v. Hughes (1999), 86 Ohio St.3d 424, 425, 715 N.E.2d 540. Neither right is self-executing, however. See State v. Butler (1969), 19 Ohio St.2d 55, 56, 249 N.E.2d 818. “Affirmative action on the part of an accused in the nature of a demand to be tried is necessary to invoke the constitutional protection.” Id. at 56-57.
{¶ 31} Mr. Huber asserted his constitutional rights for the first time on the day of trial; by then he had waived them.
{¶ 32} Mr. Huber points out that fourteen months exceeds the 270-day period imposed by Ohio‘s speedy-trial statute. See
{¶ 33} But does
{¶ 34} When he was arrested in this case, Mr. Huber was free on bond in an unrelated robbery case (No. 05-CR-458). At the end of March 2006, he pleaded guilty to the robbery charge and received a four-year prison sentence, which he began serving on April 5, 2006. Thus,
{¶ 35} So the speedy-trial question here is actually whether the 180-day period had elapsed. Critical to note is that the 180-day period does not begin to run until a defendant asks, in writing, that the charges be addressed. See Stewart, at ¶ 21. Mr. Huber failed to
{¶ 36} Finding no error, we affirm the judgment of the trial court.
DONOVAN, P.J., and FAIN, J., concur.