State v. Dutiel
| Decision Date | 13 November 2012 |
| Docket Number | Case No. 2012-CA-11 |
| Citation | 2012 Ohio 5349 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. DONALD L. DUTIEL Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
Criminal appeal from the Perry County
Court of Common Pleas, Case No.
For Plaintiff-Appellee
MIKE DEWINE
By: Emily Pelphrey
Jennifer Brumby
Office of Attorney General
For Defendant-Appellant
ELIZABETH GABA
{¶1} Appellant Donald Dutiel ("Dutiel") appeals his conviction and sentence after his "no contest" plea to one count of gross sexual imposition entered in the Perry County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
{¶2} On or about July 8, 2010, Kayla Burton claimed that Dutiel had raped her. On July 9, 2010, New Lexington Police Department Sergeant Rick Cline conducted his investigation by taking Kayla's statement while she was at Fairfield Medical Center after the conclusion of a "sexual assault" exam. On July 14, 2010, Sergeant Cline arrested Dutiel without a warrant. On July 20, 2010, Prosecutor Flautt dismissed the criminal case.
{¶3} On December 28, 2010, Prosecutor Flautt filed an "Application for Order Authorizing Appointment of Legal Counsel." On January 4, 2011, the trial court filed a judgment entry appointing a special prosecutor to investigate and prosecute the Dutiel case. On February 18, 2011, the Perry County Grand Jury returned a true bill against Dutiel charging him with rape, two counts of kidnapping, abduction and gross sexual imposition. The parties agreed to dismiss this indictment due to the trial court's concern that the case was pending for six months. The special prosecutor again presented the case to the Perry County Grand Jury and a new indictment, alleging the same criminal conduct was filed on September 29, 2011.
{¶4} On April 21, 2012, Dutiel entered a plea of "no contest" to one count of gross sexual imposition in violation of 2907.05(A)(1), a felony of the fourth degree. The trial court found Dutiel guilty of gross sexual imposition and ordered the plea form filed.The trial court ordered a presentence investigation report and set a sentencing date. On April 30, 2012, the trial court sentenced Dutiel to serve a seventeen-month prison sentence.
{¶5} Dutiel raises five assignments of error,
{¶6} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT WHEN IT DENIED DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO THE SPECIAL PROSECUTOR'S LACK OF STANDING TO PROSECUTE THE MATTER. THE SPECIAL PROSECUTOR, APPOINTED UNDER R.C. §305.14, HAD NO LEGAL AUTHORITY TO INVESTIGATE OR INDICT DEFENDANT, AND HER INVESTIGATION AND INDICTMENT VIOLATED THE SEPARATION OF POWERS DOCTRINE AND DEFENDANT'S CONSTITUTIONAL RIGHTS.
{¶7} "II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY DENYING HIS ATTEMPT TO ADMIT HIS EXCULPATORY POLYGRAPH RESULTS INTO EVIDENCE, IN VIOLATION OF HIS RIGHT TO COMPULSORY PROCESS, HIS SIXTH AMENDMENT RIGHT TO PRESENT A DEFENSE, AND HIS FIFTH AMENDMENT RIGHT TO DUE PROCESS.
{¶8} "III. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY DENYING THE ADMISSION OF CRITICAL EVIDENCE UNDER OHIO'S RAPE SHIELD STATUTE, IN VIOLATION OF THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE AS APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT, AND IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS. OHIO'S RAPE SHIELD STATUTE MAY BE
UNCONSTITUTIONAL ON ITS FACE AS APPLIED IN THIS CASE, PURSUANT TO STATE V. GARDNER.
{¶9} "IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY DENYING HIS MOTIONS OF 11-25-11[SIC.] AND 11-28-11 [SIC.]. THE TOTALITY OF THE CIRCUMSTANCES OF THE DENIAL OF THESE MOTIONS COMBINED WITH THE DENIAL OF MOST OF THE RAPE SHIELD AND POLYGRAPH MOTIONS, CREATED A HOBSON'S CHOICE FOR A PLEA, IN VIOLATION OF THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE AS APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT, AND IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS.
{¶10} "
{¶11} In his first assignment of error, Dutiel argues R.C. 305.14 was incorrectly used in the instant case to employ a special prosecutor.
{¶12} On December 28, 2010, the elected prosecutor for Perry County filed an application to appoint a special prosecutor for the case involving Dutiel. This motion was filed pursuant to R.C. 305.14, alleging that the office of the Perry County ProsecutingAttorney had a conflict in prosecuting the case. The trial court signed an order granting the appointment of a special prosecutor.
{¶13} Courts of common pleas possess inherent power to appoint special prosecutors in criminal matters. See State v. Ross (In re Cirigliano), 105 Ohio St.3d 1223, 2004-Ohio-7352, 826 N.E.2d 287,¶16; State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 27, 661 N.E.2d 180(1996); State ex rel. Johnson v. Talikka, 71 Ohio St.3d 109, 642 N.E.2d 353(1994); State ex rel. Williams v. Zaleski (1984), 12 Ohio St.3d 109, 465 N.E.2d 861(1984); State v. Bunyan, 51 Ohio App.3d 190, 555 N.E.2d 980(3rd Dist.1988).
{¶14} We must be mindful of the " * * * elementary proposition of law that an appellant, in order to secure reversal of a judgment against him, must not only show some error but must also show that that error was prejudicial to him." See Smith v. Flesher, 12 Ohio St. 2d 107, 233 N.E. 2d 137(1967); State v. Stanton, 15 Ohio St.2d 215, 217, 239 N.E.2d 92, 94(1968); Wachovia Mtg. Corp. v Aleshire, Licking App. No. 09 CA 4, 2009-Ohio-5097 at ¶16. See, also, App.R. 12(D).
{¶15} The trial court appropriately appointed a special prosecutor in Dutiel's case. A conflict of interest creates a situation where it would be in the public interest to allow the court of common pleas to utilize its broad discretion and appoint a "special" prosecutor to represent the state. Bunyan, 51 Ohio App.3d at 192.
{¶16} The record does not affirmatively show that any mistaken reference to R.C. 305.14 prejudiced Dutiel.
{¶17} Dutiel's first assignment of error is overruled in its entirety.
{¶18} Dutiel contends that the trial court erred by failing to permit him to introduce evidence at trial that he had taken and passed a polygraph examination.
{¶19} The Ohio Supreme Court has "not adopted the unrestrained use of polygraph results at trial, and polygraphs themselves remain controversial." In re D.S., 111 Ohio St.3d 361, 856 N.E.2d 921, 2006-Ohio-5851, ¶13. Moreover, as stated in State v. Barton, 12th Dist. No. CA2005-03-036, 2007-Ohio-1099, the results of a polygraph examination are generally "inadmissible since such tests have not attained scientific or judicial acceptance as an accurate and reliable means of ascertaining truth or deception." Id. at ¶ 98.
{¶20} A trial court cannot admit the results of a polygraph test into evidence simply at an accused's request. State v. Jamison, 49 Ohio St.3d 182, 190, 552 N.E.2d 180 (1990). Instead, polygraph test results are only admissible if both the prosecution and defense jointly stipulate that the accused will take a polygraph test and that the results will be admissible. Id.; State v. Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318 at syllabus; In re D.S. at ¶13. However, even when there is a stipulation between the parties to that effect, the polygraph test results are still only admissible if the trial court, in its sound discretion, decides to accept such evidence, and then for corroboration or impeachment purposes only. Souel at syllabus; In re D.S. at ¶ 13.; but, see, State v. Sharma, 143 Ohio Misc.2d 27, 875 N.E.2d 1002, 2007-Ohio-5404(C.P.) ().
{¶21} In the present case, the prosecution did not stipulate to the admissibility of the polygraph results that Dutiel sought to offer into evidence before the tests wereperformed. Consistent with Souel and its progeny, which continue to state the law of Ohio, the results of defendant's polygraph tests are inadmissible at trial. State v. Bell, 12th Dist. No. CA2008-05-044, 2009-Ohio-2335, ¶49; In re J.F., 9th Dist. No. 24490, 2009-Ohio-1867, ¶10.
{¶22} Dutiel's second assignment of error is overruled in its entirety.
{¶23} Dutiel contends that the trial court abused its discretion by denying him the opportunity to present evidence concerning the victim, Kayla Burton. The record reflects that the trial court ruled that certain evidence was inadmissible pursuant to the so-called Rape Shield law, R.C. 2907.02(D). See, Judgment Entry filed March 22, 2012 at 3. However, the trial court further ruled that Dutiel might present evidence regarding the victim exposing herself to him, subject to any objection other than R.C. 2907.02 (D). The court found that the proposed testimony did not involve "sexual activity" as defined in R.C. 2907.01; therefore, it was not protected under the rape shield statute, R.C. 2907.02(D). Id.
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