State v. Bertold J. Pembaur
| Decision Date | 18 February 1981 |
| Docket Number | C-790380,81-LW-2908 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. BERTOLD J. PEMBAUR, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
APPEAL FROM THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO.
Messrs Simon L. Leis, Jr., William E. Breyer, Joseph G. Carr and Bruce S. Garry, 420 Hamilton County Court House, Court and Main Streets, Cincinnati, Ohio 45202, for Plaintiff-Appellee.
Messrs Gold, Rotatori, Messerman & Schwartz, Co., L.P.A., and Gerald A. Messerman, 1100 Ohio Savings Plaza, Cleveland, Ohio 44114 and Messrs. Albert J. Mestemaker and Calvin W. Prem, 22 West Ninth Street, Cincinnati, Ohio 45202, for Defendant-Appellant.
The defendant-appellant, Bertold J. Pembaur, appeals from his conviction by a jury of obstructing official business in violation of R.C. 2921.31.®1¯ He presents six assignments of error, with multiple issues thereunder.
Footnote 1 . R.C. 2921.31 reads in full as follows:
The threshhold, and most complex, question raised by this appeal is whether the defendant, the proprietor of a medical ?? had a right or privilege to prevent entry into the private portions of that office by deputy sheriffs armed with writs of attachment (sometimes called "capiases" or "bench warrants") to arrest two individuals employed at the Clinic who had failed or refused to appear as witnesses before the Grand Jury to answer questions about offenses allegedly committed by the defendant. The deputies concededly did not have search warrants complying with the requirement of Crim. R. 41. Dr. Pembaur, the proprietor, claims the right or privilege under the Fourth and Fourteenth Amendments to the United States Constitution and under Section 14, Article I of the Ohio Constitution to resist the entry attempted by the officers. The State, on the contrary, argues that the possession by its officers of the writs of attachment was sufficient to remove the constitution impediment and, therefore, the privilege to resist entry.
The second assignment of error raises an associated issue, viz., was the foregoing question as to the existence of a constitutional right or privilege to prevent entry a matter of law for the court to decide, or a matter within the province of the jury? If the former, was the defendant prejudiced by the trial court's ?? to the jury concerning the issue of privilege, or was the error harmless beyond a reasonable doubt?
While these first two assignments of error embody, we conclude the substantial issues raised by this appeal, there are other issues submitted by the defendant which we are required to examine in accordance with App. R. 12(A). These remaining four assignments of error arise, in part, from the following circumstances: the charge of obstructing official business was only one of six counts in the indictment against Dr. Pembaur and others, and it was tried separately over defendant's objection; the trial of the instant misdemeanor charge was before an eight-person jury, and in the Court of Common Pleas, rather than a Municipal Court; the presiding judge was the third one to whom the case had been assigned; and the court refused to suppress certain evidence seized in an extensive search of Dr. Pembaur's office that occurred some three weeks before the incident which occasioned the charge of obstructing official business. Other facts necessary to exemplify these secondary assignments of error will be set out separately as the issues are serially considered in the latter sections herein. The facts contained in the record necessary for a proper consideration of the first two assignments of error are set out immediately hereafter.
At approximately 2:00 p.m. on May 19, 1977, two Hamilton County deputy sheriffs arrived at Dr. Pembaur's Rockdale Medical Clinic in Cincinnati to execute writs of attachment®2¯ for the arrest of two persons employed at the clinic, one Kevin Maldon, M.D., and one Marjorie McKinley, a secretary. These two individuals had failed to appear as witnesses before the Grand Jury pursuant to subpoenas issued to them for the purpose of securing their testimony in the Grand Jury's investigation of Dr. Pembaur's affairs. The deputies believed that both witnesses were in the Clinic, since that was their known place of work and was during the usual hours of their employment. In addition, the deputies testified that they saw a woman who met the description of Mrs. McKinley seated at a desk behind the receptionist. The two women were stationed behind a sliding glass window separating the waiting room from the working area of the Clinic. The individual meeting the description of Mrs. McKinley subsequently disappeared into the interior of the offices after an apparent consultation with the receptionist.
Footnote 2 . While the opening recitations in the two writs were, obviously, not identical because the circumstances relating to the witnesses were different, the operative portions of the writs read uniformly as follows:
After the presence and the purposes of the deputies were made known to the receptionist, Dr. Pembaur appeared at the receptionist's station. Following his reading the two writs, he wedged tight with a piece of wood the single latched door that led from the public reception room to the private working area of the Clinic, refused the deputies attempted entrance, and asked them to leave the premises. His stated reasons were that the writs were illegal, the judges had mistakenly issued them, and the judges had no business signing them. Dr. Pembaur's response to a question by counsel as to why he didn't open the door, was the following:
A. Well, as a physician I have certain obligations in running a medical office. I am obligated to protect the confidentiality of the medical records. I am obligated to protect my employees. So I wanted legal advice and I wanted a lawyer to tell me exactly what I am supposed to do. (T.p. 582.)
Dr. Pembaur stated that on an earlier occasion he had admitted police into his Clinic when they were armed with a search warrant for his offices. This time, however, the deputies testified that he appeared agitated and stated repeatedly that he was going to call the police. Obviously he did so, for within ten minutes two Cincinnati police officers appeared in response to a burglar alarm activated by Dr. Pembaur. The police officers told the doctor that the capiases were in order and that he should permit entry so that the witnesses could be found and arrested. Dr. Pembaur remained adamant and ordered the officers off the premises.
Meanwhile, the doctor had also called media organizations, and the scene at the Clinic was further complicated by the presence of TV cameras, reporters, newsmen, attorneys, including an assistant prosecuting attorney, and others. The confrontation continued during the next two hours while Dr. Pembaur attempted to reach four or five lawyers and two judges. The law enforcement officers waited for him to make those contacts, and were invited to listen in to the doctor's calls to them, but continued to insist on the legality of the court orders and their duty to execute them. The doctor, on the other hand, continued to assert the illegality or inappropriateness of the writs. At some point during the debate, Dr. Pembaur offered tea to the officers, who accepted the opportunity to refresh themselves. Finally, at about 4:00 p.m., in the presence of five Cincinnati police officers and the two sheriff's deputies, the ranking police officer advised Dr. Pembaur that force would have to be used to enter the working area. The doctor's response was to direct the two deputies to try to enter, but they could not budge the door with their shoulders. Thereupon, the door was broken down by the police with an axe and sledgehammer obtained from a nearby fire department. The two witnesses had, meanwhile, and with the help of another Clinic employee, secreted themselves in a stairway accessible to the Clinic but not part of it, and were not discovered by the searching officers. Mrs. McKinley was arrested later that evening in her residence. Dr. Maldon was arrested the next day.
In this assignment of error, ...
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