Ah - just went to the court site - updated with yesterday's stuff. It's a long one.
05/16/2022 CERTIFICATION OF NON-DISCLOSURE PURSUANT TO CRIMINAL RULE 16(D) FILED
05/16/2022 (MOTION NO 89) DEFENDANT'S MOTION FOR AN ORDER REQUIRING AN EXHIBIT LIST PRIOR TO TRIAL FILED
Attorney: PARKER, JOHN PATRICK
05/16/2022 JOURNAL ENTRY -- This cause came on for oral argument on May 2, 2022, upon the following motions of the Defendant:
DEFENDANT'S MOTION NO. 65: "DEFENDANT'S MOTION TO COMPEL PRODUCTION OF 'OTHER ACTS' EVIDENCE PURSUANT TO EVID.R. 404(B)."
DEFENDANT'S MOTION NO. 77: "DEFENDANT'S RENEWED MOTION TO COMPEL THE PRODUCTION OF 'OTHER ACTS' EVIDENCE PURSUANT TO EVID.R. 404(B)."
DEFENDANT'S MOTION NO. 78: "DEFENDANT'S MOTION FOR PROPOSED JURY INSTRUCTION." (Concerning testimony of an accomplice)
DEFENDANT'S MOTION NO. 79: "DEFENDANT'S MOTION FOR PROPOSED JURY INSTRUCTION." (Concerning "immutable characteristics.")
DEFENDANT'S MOTION NO. 82: "DEFENDANT'S OBJECTION AND MOTION IN LIMINE TO PROHIBIT THE INTRODUCTION OF OTHER ACTS EVIDENCE AT TRIAL."
DEFENDANT'S MOTION NO. 83: "DEFENDANT'S MOTION FOR CHANGE OF VENUE."
DEFENDANT'S MOTION NO. 84: "DEFENDANT'S MOTION TO COMPEL ALL BRADY OR INFORMANT DISCOVERY."
The Defendant was present in Court and was represented by his attorneys, John Patrick Parker and Richard M. Nash, Jr. The State of Ohio was represented by the Prosecuting Attorney, Robert Junk, and by Special Prosecuting Attorney Angela Canepa and Special Prosecuting Attorney David A. Wilson. Also present was Ryan Scheiderer, Special Agent with the Ohio Bureau of Criminal Identification and Investigation.
The Court finds that the Defendant appeared in civilian clothing and without visible restraints outside his clothing.
With regard to Defendant's Motion No. 65 and Defendant's Motion No. 77, the Court finds that on February 22, 2021, the State of Ohio filed a "NOTICE OF INTENT TO USE OTHER ACTS EVIDENCE PURSUANT TO 404(B)'" and that such notice, especially as supplemented by the State of Ohio's oral presentation and argument at the hearing on May 2, 2022, satisfies the requirement of Evid.R. 404(B) that "the proponent of evidence to be offered under" [Evid.R. 404(B)] "shall provide reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial." The Court therefore grants Defendant's Motion No. 65 and Defendant's Motion No. 77 to the extent only that such motions request an order of the Court compelling the State of Ohio to provide notice of the general nature of any such other acts evidence that the State of Ohio intends to introduce at trial and it is so ordered. The Court finds that the State of Ohio has satisfied the pre-trial notice requirement of Crim.R. 404(B) by providing reasonable notice of the general nature of such evidence as set forth in the State of Ohio's "Notice of Intent To Use Other Acts Evidence Pursuant to 404(B)" filed on February 22, 2021 and as further presented by the Special Prosecuting Attorney on May 2, 2022.
The Court further finds that Defendant's Motion No. 82 requests that the Court issue an order in limine prohibiting the State of Ohio from introducing other acts evidence at trial, and that on May 2, 2022, the State of Ohio filed a "MEMORANDUM CONTRA MOTION IN LIMINE" in response to Defendant's Motion No. 82. Defendant's Motion No. 82 was orally argued at the hearing on May 2, 2022.
Having been fully informed through oral argument of counsel on May 2, 2022, as well as through counsel's written memoranda, the Court issued orders orally at the hearing concerning Defendant's Motion No. 83 and Defendant's Motion No. 84, and the Court took under advisement Defendant's Motion No. 78, Defendant's Motion No. 79, and Defendant's Motion No. 82. Decisions and orders concerning the motions taken under advisement are set forth below in this Journal Entry.
With regard to Defendant's Motion No. 83, entitled "DEFENDANT'S MOTION FOR CHANGE OF VENUE," it is hereby ORDERED that Defendants' Motion No. 83 is overruled and denied; however, the Court may reconsider the ruling upon Defendant's Motion No. 83, if it appears through careful and searching voir dire of the prospective jurors at trial, or otherwise, that a fair and impartial jury cannot be seated in this action, due to any pretrial publicity or other reason.
With regard to Defendant's Motion No. 84, entitled "DEFENDANT'S MOTION TO COMPEL ALL BRADY OR INFORMANT DISCOVERY," Special Prosecuting Attorney Canepa indicated in oral argument that the State of Ohio agrees that the State of Ohio must comply with the provisions of Crim.R. 16 and Brady v. Maryland, but argues that the State of Ohio has already satisfied its discovery obligations pursuant to Crim.R. 16 and Brady v. Maryland and its progeny. The Special Prosecuting Attorney further indicated that the State of Ohio has provided the Defendant with information concerning all potential witnesses, including recorded statements of several potential witnesses, including any agreements between the State of Ohio and any potential witnesses in exchange for testimony, and including any information as to persons whom the defense may refer to as "informants," but that the State of Ohio did not think that in the present action there are any "informants," in the traditional sense that the term is used.
In response to the Court's inquiry of defense counsel concerning any specific allegations by the defense of deficiencies in the State of Ohio's provision of "Brady or informant discovery," counsel for the Defendant indicated that the defense desires to interview Elizabeth Freeman, but that the State of Ohio has not provided the defense with an address for Elizabeth Freeman and the defense does not know how to contact her. Special Prosecuting attorney Canepa responded that the State of Ohio does not have an exact address for Elizabeth Freeman as of the time of the hearing, but that the State does intend to locate Elizabeth Freeman in order to serve her with a subpoena to appear as a potential witness at trial, and that the State of Ohio will make reasonable effort to have Elizabeth Freeman available for an interview by defense counsel prior to trial. Special Prosecuting Attorney Canepa further argued that Elizabeth Freeman is not a person whose identify has been unknown to the Defendant and that the State of Ohio has identified her to the defense as a prospective witness and has provided the defense with recordings of her statements.
It is therefore ORDERED that Defendant's Motion No. 84, entitled "DEFENDANT'S MOTION TO COMPEL ALL BRADY OR INFORMANT DISCOVERY," is granted to the extent that the State of Ohio is required to comply with its discovery obligations under Rule 16 of the Ohio Rules of Criminal Procedure and Brady v. Maryland and its progeny, but that Defendant's Motion No. 84 is overruled and denied to any extent that such motion may request that the State of Ohio provide more discovery to the Defendant than is required by such applicable rule and case law. Further, if the State of Ohio does not disclose material or portions of material otherwise subject to disclosure under Crim.R. 16 for one or more of the reasons set forth in Crim.R. 16(D), then the Prosecuting Attorney and Special Prosecuting Attorneys shall comply with Crim.R. 16(D) with respect to certification of non-disclosure.
Having considered all arguments in support of and in opposition to Defendant's Motion No. 78, entitled "DEFENDANT'S MOTION FOR PROPOSED JURY INSTRUCTION," the Court finds that the jury instruction proposed by the Defendant adds the following paragraph to the instruction set forth in Section 2923.01(H) R.C.: "An accomplice may have special motives in testifying, and you should carefully examine an accomplice's testimony and use it with great caution and view it with grave suspicion." To the extent that the jury instruction requested and proposed in Defendant's Motion No. 78 tracts exactly the language of Section 2923.01(H), the Court finds that Defendant's Motion No. 78 is well taken and the same is hereby granted, provided that testimony of a person with whom the Defendant has allegedly conspired is introduced at trial and is supported by other evidence, thus justifying the proposed jury instruction set forth in Section 2923.01(H). To the extent that the jury instruction requested and proposed in Defendant's Motion No. 78 adds the above-quoted language to the instruction set forth in Section 2923.01(H) R.C., Defendant's Motion No. 78 is not well taken, and such motion is overruled and denied and the language added by the defense to the instruction shall not be given as part of the instruction.
Having considered all arguments in support of, and in opposition to, Defendant's Motion No. 79, entitled "DEFENDANT'S MOTION FOR PROPOSED JURY INSTRUCTION," the Court finds that the basis of the decision in Buck v. Davis, 137 S. Ct. 759 (2017), is not shown to be applicable in the present action. The Court concludes that Defendant's Motion No. 79 is not well taken. It is therefore ORDERED that Defendant's Motion No. 79 is hereby overruled and denied. To the extent that other acts evidence is admitted at trial pursuant to Evid.R. 404(B), it is the intention of the Court to provide jury instructions consistent with applicable provisions of OJI and State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440. The Court may reconsider this ruling upon Defendant's Motion No. 79 at trial, if it appears that evidence as to "immutable characteristics" is introduced, rendering an instruction based upon Buck v. Davis appropriate and necessary.
At the hearing on May 2, 2022, the Court heard at length the oral arguments of the State of Ohio in support of the admissibility of "other acts" evidence, the notice of which is included in the State's "Notice of Intent To Use Other Acts Evidence Pursuant to 404(B)" filed on February 22, 2021, and the oral arguments of the Defendant in support of Defendant's Motion No. 82, entitled "Defendant's Objection And Motion In Limine To Prohibit The Introduction Of Other Acts Evidence At Trial."
The Court notes that at the hearing on May 2, 2022, the State of Ohio withdrew items number 3), 4) and 7) that appear on the fourth page of the State's "Notice of Intent To Use Other Acts Evidence Pursuant to 404(B)" filed on February 22, 2021. The withdrawn items stated as follows:
3) Instance of Defendant's father threatening Defendant's mother with a gun.
4) Allegations that Defendant's father has killed/plotted/threatened to kill others
before.
7) Defendant's father/co-defendant threatening Christopher Rhoden, Sr. with a
gun within a week of the homicides.
Having considered the written and oral arguments of counsel, the Court finds that, provided there is a threshold showing through evidence at trial that the act for which the evidence is offered occurred, the State has shown that each item of evidence the notice of which has been given is relevant to the particular purpose for which the State proposes to offer the evidence; that the purpose for which the State proposes to offer each such item of evidence is other than a purpose to show the Defendant's propensity to behave in a way consistent with guilt of the crimes with which he is charged in this action; that the non-propensity purpose for which each such item of evidence is offered is material to issues actually in dispute between the parties; and that the State has sufficiently shown the chain of reasoning that supports the non-propensity purpose for admitting each such item of evidence.
Specifically, the issue of the Defendant's identity as a participant in the crimes with which he is charged remains an issue in this action, notwithstanding the fact that co-defendants Edward Jacob Wagner and Angela Jo Wagner have each entered guilty pleas and it is apparently anticipated by the State of Ohio that their testimony will identify the Defendant as a participant in the crimes with which he is charged.
The Court also notes that the Defendant is charged in Count Nine of the Indictment with conspiracy to commit aggravated murder, murder, and/or aggravated burglary over the period on or about the 1st day of January, 2016, through the 12th day of November, 2018, and is charged in Count Twenty-One with engaging in a pattern of corrupt activity over the period on or about the 1st day of January, 2016 through November 12, 2018. The Court further notes that in its Bill of Particulars the State of Ohio provides notice that the State may try the Defendant under the complicity statute, Ohio Revised Code 2923.03(A)(1) through (A)(4), as well for each and every one of the offenses stated in the Bill of Particulars, even though they are stated in terms of the principal offense.
With respect to the nine numbered paragraphs indicated on the State of Ohio's Notice filed on February 22, 2021 as pertaining to the Defendant's and/or Defendant's brother/co-defendant's relationship with Hanna Rhoden, the Court finds that, if the evidence to be presented at trial is as indicated by the State's Notice and by the argument of the Special Prosecuting Attorney, such evidence would be relevant to show the tumultuous and strained relationship between the Wagner's, including the Defendant, herein, and Hanna Rhoden, and thus a motive for committing the crimes, and to show the immediate background of the alleged crimes, as well as to show a common scheme or plan to commit the crimes. Further, with respect to Count Nine and Count Twenty-One, such evidence is relevant to help explain how the alleged illegal relationship between the participants - allegedly the Defendant, his brother Edward Jacob Wagner, his father, George Washington Wagner, III, his mother, Angela Jo Wagner, and possibly others - developed; that the Defendant and Edward Jacob Wagner were part of the same alleged conspiracy and alleged criminal enterprise, and to prove the nature of the alleged conspiracy and the purpose of the alleged enterprise.
With respect to the seven numbered paragraphs indicated on the State's Notice as relating to Tabitha Claytor, the Court finds that, if the evidence that will be presented at trial is as indicated by the Notice and by the argument of the Special Prosecuting Attorney, such evidence would be relevant to show the Defendant's identity as a part of the alleged conspiracy and the alleged criminal enterprise, especially by showing a modus operandi.
If the evidence that will be presented at trial relating to Tabitha Claytor is as indicated by the State's Notice and by the Special Prosecuting Attorney's argument, the Court finds that such evidence would also be relevant to show an association-in-fact between the Defendant, and his brother Edward Jacob Wagner, his mother and his father to achieve a common objective, and to show the Defendant's motive in joining the alleged conspiracy and alleged criminal enterprise.
With respect to the five numbered paragraphs shown in the State's Notice filed on February 22, 2021 as relating to Elizabeth Wagner, the Court finds that, if the evidence that will be presented at trial is as indicated by the State's Notice and by the argument of the Special Prosecuting Attorney, such evidence would be relevant to prove the existence of a conspiracy involving the Defendant, his brother, Edward Jacob Wagner, and the Defendant's mother and father and to show the Defendant's motive in joining the alleged conspiracy and alleged criminal enterprise.
With respect to paragraphs 1), 2), 5), 6), 8), 9), 10), 11), 12), and 13), of the final part of the State's Notice filed on February 22, 2021, if the evidence that will be presented is as indicated by the State's Notice and by the Special Prosecuting Attorney's argument, then such evidence would be relevant to show the existence of a conspiracy, a pattern of corrupt activity and the existence of a criminal enterprise and the Defendant's motive in joining the alleged conspiracy and alleged criminal enterprise, as well as to show consciousness of guilt through evidence of the participants' efforts to hamper the investigation, to avoid detection, capture and prosecution, and to plan escape from incarceration.
The Court further finds that, if the evidence that will be presented at trial is as indicated in the State's Notice and in the Special Prosecuting Attorney's argument, then the probative value of the evidence is not outweighed by any danger of unfair prejudice, of confusion of the issues, or of misleading the jury if such evidence is admitted at trial.
The Court therefore finds and concludes that the Defendant's Motion No. 82, requesting that this Court issue an order in limine prohibiting the State of Ohio from introducing other acts evidence at trial, is not well taken, and it is ORDERED that Defendant's Motion No. 82 is hereby overruled and denied.
The Court then inquired of the Defendant whether he is satisfied with the frequency with which he is seeing his attorneys, and the Defendant indicated that he is satisfied. The Court further inquired of the Defendant whether he is satisfied with the services being provided by his attorneys in representing him in this action, and the Defendant indicated that he is satisfied. Upon further inquiry by the Court, the Defendant indicated that he has no complaints concerning the process or the proceedings.
There being no further matters before the Court, the hearing was adjourned.
link:
https://www.pikecountycpcourt.org/e...flaEAB9ZG26YSAqmcqj35O4l7Al4ix2yxN3b4XxQAjuzA
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