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Portage County drug defendant gets new trial for attorney errors

Legal News Reporter

Published: February 14, 2020

A defendant in a Portage County cocaine possession case must get a new trial due to attorney errors on both sides, the 11th District Court of Appeals ruled recently.
Michael Thompson appealed his conviction of possession of cocaine, a felony of the fifth degree, following a jury trial.
On June 20, 2017, Thompson was at the Ravenna Police Department to speak with Patrolman Scott Krieger about an assault for which he was a suspect and to pick up a report about a separate drug case.
Case summary indicates that while inside the building, Krieger saw Thompson coming up the outside steps. As appellant pulled a set of car keys from his left pants pocket, Krieger saw a small, clear, plastic bag fall out of that pocket. The plastic bag appeared to contain some white rocks, which Krieger suspected was crack cocaine.
Thompson denied the bag belonged to him and suggested he may have just kicked it. Krieger attempted to discuss the report of the alleged assault, but appellant had difficulty communicating and continued to stare at the bag in the officer’s hand.
Krieger did not arrest Thompson but informed him he intended to send the suspected crack cocaine to the laboratory for testing.
The trial court granted a motion to exclude prior acts unless appellant testified.
He was sentenced to 12 months of intensive supervision by the adult probation department followed by 36 months of general supervision, along with certain conditions.
On appeal, Thompson argued a police officer’s testimony that he was suspected of selling drugs to a juvenile in an unrelated case damaged his right to receive a fair trial.
The appellate panel agreed.
“The officer’s lack of knowledge about a formal accusation or his failure to specifically attest that appellant was suspected of or engaged in the act of offering drugs to a child is of no moment,” 11th District Judge Cynthia Westcott Rice wrote in her opinion. “The officer, as an individual of ostensible probity who represents sanctioned authority, testified twice on direct that appellant was visiting the police station to obtain reports that listed him as a suspect offering drugs to a juvenile.
“Even though the officer did not testify to the veracity of the contents in the alleged report, his testimony undoubtedly left an impression on the jury regarding appellant’s criminal character and propensity for possessing drugs. And, even if the officer’s testimony can be viewed as mere background evidence, there is no legitimate basis for him to freely vamp about why appellant was present at the police station on the day in question. To whitewash this evidence as merely part of the gestalt would permit prosecutors to insert propensity evidence whenever they wished, as long as it somehow, even loosely, fit their narrative of the case.
“Moreover, to forgive the officer’s testimony as merely a narrative response regarding what appellant said or did would allow prosecutors to ‘coincidentally’ elicit inadmissible evidence routinely, without regard to the rules of evidence or its impact on a defendant’s right to a fair trial. And, in this case, the prosecutor’s open-ended invitation to ‘tell us about’ the conversation he had with appellant at the police station indicates the testimony was neither coincidental nor an unexpected narrative. And, in light of the motion in limine that sought to keep out all other-acts evidence, which was granted by the trial court, the prosecutor was on clear notice that his line of questioning would foreseeably lead to inadmissible testimony. The trial court must exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.”
The panel found that the state’s open-ended question regarding what occurred at the police station was a solicitation of the officer’s testimony.
“As a result, the prosecutor’s elicitation of the testimony was obvious error and that error affected the outcome of the trial,” Rice added.
The panel also found Thompson’s counsel was ineffective for failing to object to Krieger’s testimony about the third-party allegations and move for a mistrial.
Eleventh District Judge Timothy P. Cannon concurred, while Judge Mary Jane Trapp concurred in part and dissented in part.
The case is State v. Thompson, 2020-Ohio-67.