Youngstown Daily Legal News

Man accused of striking a bicyclist while drunk gets new trial

ANNIE YAMSON
Special to the Legal News
Published: June 13, 2014

In the 8th District Court of Appeals, a three-judge appellate panel ruled recently that the Cuyahoga County Court of Common Pleas considered inadmissible evidence during a bench trial.

The judgment of the lower court, convicting defendant Gregory Schillo of two counts of aggravated vehicular assault and OVI, was reversed and the matter was remanded for a new trial.

According to case summary, on the evening of Nov. 9, 2012, Schillo attended a 7:30 p.m. dinner with approximately 16 members of the Brecksville Pre-School Mother’s Club and their husbands at the Market Garden Brewery in Ohio City.

Schillo and his wife were among a number of guests who arrived early, so they went next door to the adjoining Great Lakes Brewing Company to have drinks before dinner.

After dinner and drinks, several of the guests, including Schillo, returned to Great Lakes and consumed more alcohol.

Around 11:15 p.m., Schillo and his wife departed Great Lakes with Schillo at the wheel.

Subsequent investigations revealed that credit card receipts from Great Lakes and Market Garden indicated that he purchased a total of nine high-alcohol-content beers that night.

Around 11:30 p.m., David Gamble was riding his bicycle eastbound across the Lorain-Carnegie Bridge.

Gamble was heading to work, wearing black jeans, a jacket with red sleeves and carrying a black backpack with a diagonal reflector.

He did not have any lights on his bike but had small reflectors on the pedals.

Schillo was also traveling eastbound behind Gamble. Shortly after he passed the crest of the bridge, Schillo’s Jeep struck the bike.

Gamble was thrown from the bike and, three weeks later, woke up in an intensive care unit, paralyzed from his neck down.

Schillo claimed that he did not see Gamble and initially denied that he had been drinking.

Later, he told officers that he drank one beer six hours before the collision then told the court that he consumed, at most, three beers on the night of the accident.

When asked to perform a field sobriety test, Schillo refused. He also refused to submit to a breathalyzer and indicated that he wanted to speak to his attorney.

During the trial, 15 witnesses testified.

Gamble told the court that he regularly rode across the Lorain-Carnegie bridge to work and had chosen that route for its ample lighting, though on the night of the incident, one streetlight at the site of the collision was not working.

Dan Bernier, who was driving behind Schillo and witnessed the events, testified that he could clearly see Gamble.

Bernier was in the left lane, while Schillo and Gamble were in the right.

He told the court that he began to decelerate to allow Schillo to move into the left lane in order to pass the bicyclist but, instead, Schillo “slammed directly into Gamble.”

Responding officers stated that Schillo smelled strongly of alcohol upon their arrival and that his speech was slow, deliberate and slurred.

Some of the guests from the dinner also testified but, for the most part, they stated that they only saw Schillo drink one or two beers that evening and none of them stated that he appeared to be intoxicated.

Heather Toth, a member of the Brecksville Pre-School Mother’s Club and a friend of Schillo since high school, testified for the state.

She said she and her husband left Great Lakes with Schillo and his wife.

Both couples drove away from the brewery at the same time and stopped next to each other at a stop light.

Toth stated that, when the light turned green, Schillo sped off and she observed him switch lanes several times.

She testified that she thought to herself, “Greg is driving pretty ballsy considering he’s been drinking.”

Though she did not see the collision, Toth was only a short distance behind Schillo and was the one who called the police.

When she began placing the call, Schillo approached her and asked, “Heather, do you have anything for me?”

In response, Toth offered Schillo a piece of chewing gum because she knew that Schillo had a beer before leaving the brewery.

An accident reconstruction expert testified on Schillo’s behalf, stating that the collision was “unavoidable” and “did not flow from reckless or impaired driving” but rather, from poor lighting and lack of reflective materials on the bicyclist.

At the conclusion of his trial, the court found Schillo guilty of all counts and sentenced him to a maximum five years in prison along with imposing a $5,000 fine and a seven-year driver’s license suspension.

Upon his appeal, Schillo challenged the admission of an anonymous letter as evidence during the trial.

During cross-examination from the defense, the lead investigator in the case stated that he had received the letter from the prosecutor’s office.

In a sidebar discussion, the defense claimed it was surprised and that the state had never provided information about the letter or a police report from the investigating detective regarding the letter.

“The state indicated that the information about the letter was in the police report that had been provided during discovery,” wrote Judge Patricia Blackmon for the court of appeals. “The state also indicated that they had no intentions of using the anonymous letter because it contained hearsay.”

Nevertheless, the prosecution continued questioning the detective after an objection from the defense, asking him the steps he took after receiving the letter.

The state argued that, because the defense had opened to door to the line of questioning concerning the letter, it was entitled to proceed on the same subject.

The defense countered that the letter had witnesses and contact information listed in its contents, all of whom had been contacted and gave statements.

Therefore, the contents of the letter was hearsay, inadmissible and irrelevant.

The trial court overruled the objection and admitted testimony about the letter, which stated that “Greg Schillo was extremely intoxicated the night of the incident.”

“He drank the entire time, often bragging about how many Festivus he drank,” the letter stated. “I do not wish for Greg to go to jail, but I do not think he should be able to walk away unscathed and blame things on the true victim. Ms. Schillo is painting a sober picture of her husband which is really not the case.”

The appellate panel concluded that admission of the letter was prejudicial and harmful.

“In reaching this conclusion, we are mindful of the testimony that weighs in favor of concluding that the admission of the letter was harmless error,” wrote Judge Blackmon.

Judge Blackmon noted that Schillo repeatedly lied about how many beers he drank, stopping at a maximum of three.

He also refused to perform field sobriety tests or submit to a breathalyzer.

Police testimony also supported the conclusion that Schillo was drunk at the time of the collision.

“However, with all due respect to the various trial judges who sit as the trier of fact in countless cases each year, the fact that a defendant forgoes a jury trial is hardly an excuse to give the state free rein to admit any and all evidence on the presumption that the trial court will separate the wheat from the chaff,” Judge Blackmon wrote.

The appellate judge stated that Schillo was not entitled to a perfect trial, but he was entitled to a fair one.

She also pointed out that the state indicated it would not use the letter because it constituted hearsay and characterized the prosecution’s actions during trial as “gamesmanship.”

A copy of the letter should have been provided to the defense in discovery, she held.

The court of appeals consulted the trial court’s statement announcing the verdict and determined that nowhere in it did the lower court indicate that it either found the letter relevant or would disregard it.

Such a statement, the appellate panel ruled, “would have been critical.”

“Thus, notwithstanding the long-standing precedent that appellate courts presume that a trial court only considered relevant and admissible evidence in a bench trial, the risk exists that a reviewing court might ostensibly presume that the trial court considered the contents of the anonymous letter to have had some relevance,” Judge Blackmon concluded. “Otherwise, it would not have admitted this evidence over objections.”

Ruling that Schillo was prejudiced by the trial court’s consideration of the letter, the appellate panel reversed the judgment of the Cuyahoga County court and remanded the case for a new trial.

Judges Mary Boyle and Kathleen Keough concurred.

The case is cited State v. Schillo, 2014-Ohio-2262.

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