State v. Brady
| Decision Date | 11 September 2008 |
| Docket Number | No. 2007-0742.,2007-0742. |
| Parties | The STATE of Ohio, Appellant, v. BRADY, Appellee. |
| Court | Ohio Supreme Court |
Thomas L. Sartini, Ashtabula County Prosecuting Attorney, and Shelley M. Pratt, Assistant Prosecuting Attorney, for appellant.
Dean Boland, Lakewood, for appellee.
{¶ 1} The state appeals from a decision of the Ashtabula County Court of Appeals affirming the trial court's dismissal of the state's case against Daniel Brady, which consisted of 50 counts of pandering obscenity and sexually oriented material involving a minor.
{¶ 2} Two issues are presented on this appeal: whether a trial court may consider evidence beyond the face of the indictment in ruling upon a motion to dismiss an indictment and whether the federal child pornography statutes deprive a defendant of the right to expert assistance in a trial involving charges for pandering obscenity and sexually oriented material involving a minor.
{¶ 3} Crim.R. 12 permits a court to consider evidence beyond the face of an indictment when ruling on a pretrial motion to dismiss an indictment if the matter is capable of determination without trial of the general issue. Moreover, the federal child pornography laws do not deprive a defendant charged with pandering obscenity and sexually oriented material involving a minor of the right to expert assistance or to a fair trial. Thus, the trial court abused its discretion when it dismissed the indictment on that basis. Therefore, we reverse the judgment of the court of appeals and remand this cause for further proceedings consistent with this opinion.
{¶ 4} On September 17, 2004, the state indicted Daniel Brady on 34 counts of pandering obscenity involving a minor, 16 counts of pandering sexually oriented material involving a minor, and five counts of gross sexual imposition. The trial court bifurcated the case and dismissed three counts of gross sexual imposition, and the remaining counts of gross sexual imposition were tried to a jury, which returned a verdict finding Brady not guilty on both counts.
{¶ 5} Regarding the remaining 50 counts, the trial court appointed Dean Boland, an attorney, to serve as an expert to assist in the preparation of Brady's defense. Thereafter, on June 24, 2005, the Federal Bureau of Investigation executed a search warrant at Boland's home in connection with two unrelated child pornography cases—State v. Sparks, Summit Cty. Common Pleas No. CR 02-12-3669, and United States v. Shreck, N.D.Okla. No. 03-CR-43-H. In those cases, Boland had testified as an expert and allegedly prepared and displayed exhibits that depicted identifiable minors who appeared to be engaged in sexually explicit conduct. Among the items seized by the FBI were CDs containing copies of the state's evidence against Brady, Boland's laptop computer, and approximately 50 digital-image exhibits that Boland was preparing as exhibits for Brady's trial.
{¶ 6} At a subsequent hearing, Boland testified that he could no longer possess copies of the state's evidence, due to the threat of federal prosecution. He also claimed that he could not perform his duties as a defense expert by viewing the state's evidence at the prosecutor's office because, inter alia, he would have limited opportunity to view the images and would have to testify about them from memory, and he would not have the necessary software to perform his analysis. He further testified that he would be unable to investigate the origins of the state's evidence or to create trial exhibits for the defense. Boland also proffered that Brady would be unable to find any expert willing to analyze the state's evidence due to the risk of federal prosecution associated with the completion of these tasks.
{¶ 7} At the conclusion of that hearing, Brady moved to dismiss the indictment, claiming that he could not receive a fair trial without the benefit of expert testimony. In his subsequent written motion, Brady reiterated Boland's explanation for why an expert would be unable to adequately prepare for trial.
{¶ 8} Finding that the risk of federal prosecution of his expert deprived Brady of effective assistance of an expert witness and effective assistance of counsel, the trial court determined that Brady could not receive a fair trial, and it therefore granted Brady's motion to dismiss all the pandering charges pending against him.
{¶ 9} The state appealed that dismissal. The Court of Appeals for Ashtabula County concluded that because Brady's motion to dismiss challenged the constitutionality of proceeding to trial in light of the FBI's actions against Boland, the trial court properly ruled on the Crim.R. 12 motion. State v. Brady, Ashtabula App. No. 2005-A-0085, 2007-Ohio-1779, 2007 WL 1113969, ¶ 26.
{¶ 10} Additionally, the appellate court determined that the trial court properly ruled that Brady had a right to the assistance of an expert. Because the federal child pornography statutes do not contain an exemption permitting a "proper person" to use the material for a bona fide purpose, as the Ohio statutes do, the appellate court agreed with the trial court's determination that no expert could assist Brady without becoming subject to federal child pornography charges. Therefore, the court concluded that the trial court did not err in dismissing the charges against Brady.
{¶ 11} This cause is now before the court upon the allowance of the state's discretionary appeal.
{¶ 12} In its first proposition of law, the state contends that Brady's motion to dismiss addressed the quality of the evidence that he would be able to present at trial in light of alleged federal statutory limitations placed upon his expert witness. Because Brady's motion dealt with facts that went beyond the face of the indictment and events that had not yet occurred, the state claims that the motion constituted a motion for summary judgment—a motion for which there is no provision in the Criminal Rules.
{¶ 13} In response, Brady indicates that Crim.R. 12(C) permits pretrial motions regarding "any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue." He further indicates that the plain language of Crim.R. 12(F) permits the court to consider evidence beyond the four corners of the indictment, including "briefs, affidavits, the proffer of testimony and exhibits, a hearing, or other appropriate means."
{¶ 14} The state cites State v. O'Neal (1996), 114 Ohio App.3d 335, 336, 683 N.E.2d 105, quoting State v. Patterson (1989), 63 Ohio App.3d 91, 95, 577 N.E.2d 1165, for the proposition that "`"[a] motion to dismiss charges in an indictment tests the sufficiency of the indictment, without regard to the quantity or quality of the evidence that may be produced by either the state or the defendant."'"
{¶ 15} We have examined O'Neal and State v. Varner (1991), 81 Ohio App.3d 85, 610 N.E.2d 476, which dealt with similar claims.
{¶ 16} In O'Neal, the trial court granted the defendant's pretrial motion to dismiss an indictment for possession of cocaine in violation of R.C. 2925.11(A) on the ground that the small amount of cocaine found on his person was insufficient as a matter of law to sustain the "knowingly" element of the possession charge. O'Neal, 114 Ohio App.3d at 336, 683 N.E.2d 105. In reviewing the judgment, the appellate court stated: " " Id., quoting Patterson, 63 Ohio App.3d at 95, 577 N.E.2d 1165. Because O'Neal's motion required consideration of the general issue at trial— whether O'Neal knowingly possessed the small amount of cocaine found on his person— the Montgomery County Court of Appeals determined that the pretrial dismissal of the indictment was improper.
{¶ 17} Similarly, in Varner, the Summit County Court of Appeals considered the dismissal of an indictment for failure to appear in violation of a recognizance bond. The motion to dismiss required the trial court to examine Varner's bond to determine whether it was a recognizance bond. The appellate court reversed the order granting dismissal, holding that "[t]he Ohio Rules of Criminal Procedure, * * * do not allow for `summary judgment' on an indictment prior to trial." Varner, 81 Ohio App.3d at 86-87, 610 N.E.2d 476.
{¶ 18} O'Neal and Varner are distinguishable from the instant case, however, because they involved pretrial motions to dismiss that required consideration of the general issue for trial. Here, Brady's motion did not embrace what would be the general issue at trial. Instead, it alleged that the FBI's enforcement of federal child pornography laws against his expert compromised his constitutional right to a fair trial by restricting the expert's ability to perform tasks deemed necessary to Brady's defense. Because Brady's pretrial motion to dismiss did not require a determination of the general issue for trial, Crim.R. 12(C) allowed the trial court to consider it. Moreover, because Crim.R. 12(F) expressly permits a court to consider briefs, affidavits, the proffer of testimony, and other exhibits, the trial court could properly consider evidence beyond the face of the indictment in ruling on Brady's motion to dismiss. We now turn to the appellate court's decision affirming the trial court's dismissal of Brady's indictment.
{¶ 19} The appellate court affirmed the trial court's dismissal of the charges against Brady on the grounds that Brady had a constitutional...
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