State v. Gillard

• Decision Date: 30 December 1988
• Docket Number: No. 87-352,87-352
• Citation: 533 N.E.2d 272,40 Ohio St.3d 226
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. GILLARD, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 226

40 Ohio St.3d 226

533 N.E.2d 272

The STATE of Ohio, Appellant and Cross-Appellee, v. GILLARD, Appellee and Cross-Appellant.

No. 87-352.

Supreme Court of Ohio.

Submitted Oct. 26, 1988.

Decided Dec. 30, 1988. ^*

Syllabus by the Court

1. When the state seeks to obtain relief from discovery or to perpetuate testimony under Crim.R. 16(B)(1)(e), the judge who disposes of such a motion may not be the same judge who will conduct the trial.

2. A cross-examiner may ask a question if the examiner has a good-faith belief that a factual predicate for the question exists. (State v. Williams [1977], 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, modified.)

On December 31, 1984, Timothy Hendricks held a New Year's Eve party in his home at 213 Kennet Court, N.W., Canton. Among the guests were Ronnie Postlethwaite, Denise Maxwell, Leroy Ensign, and defendant-appellee's brother William Gillard. During the party, there was a fight between Ensign and Gillard. After Hendricks broke up the fight, William Gillard left.

The party ended between 3:00 and 4:00 a.m., January 1. Seven guests stayed the night, including Ensign, Postlethwaite and Maxwell.

Postlethwaite and Hendricks were both awakened by a gunshot outside. Hendricks went back to sleep. Postlethwaite got up and looked outside; he saw William Gillard fire a second shot into the air from a handgun. Postlethwaite tried unsuccessfully to wake Ensign.

The next thing Postlethwaite recalled was hearing the back door slammed open. He heard heavy steps "[l]ike horses trampling" and then a shot was fired.

Someone grabbed Postlethwaite's hair and pulled his head back. His assailant put a gun against his temple, shot him, and threw him to the floor. Postlethwaite then saw the gunman aim at Denise Maxwell's head and fire, killing her. Postlethwaite recognized the gunman as John Gillard.

Larry Beck, a neighbor, heard two gunshots between 3:00 and 3:30 a.m. At 4:15, he heard "at least two people" going towards 213 Kennet Court. About twelve minutes later, he heard more gunshots and heard two men running away from 213 Kennet Court.

At approximately 4:50 a.m., Canton police officer Sheldon Godshall arrived. Godshall asked Postlethwaite who had shot him. Postlethwaite said, "Dirty John." Godshall asked, "Dirty John who?" and Postlethwaite replied, "Dirty John Gillard." Another officer found Leroy Ensign's body lying near the entrance of the house.

On January 4, Ronald Webb, his wife, and Donald Gorby were in the kitchen of Webb's downstairs apartment in a two-family house in Wellsburg, West Virginia, when John Gillard came to the door. Webb testified that Gorby introduced Gillard to him as "Butch Johnson." At Gillard's request, Mrs. Webb cut Gillard's hair.

While Gillard was there, Milton Smith, who lived upstairs with Gorby, entered the kitchen, saw Gillard, and said: "Jesus Christ, I didn't recognize you without the beard, Dirty John." Smith and Gillard went upstairs. They eventually came back down to the kitchen, where Smith told Webb " * * * to keep him there and party with him and don't let him go nowhere, don't take him outside that house, don't take him to no bars." Smith then left.

As they talked, Webb mentioned to Gillard that he had "read in the paper where his brother was in jail for shooting some people in Canton." Gillard replied: "I pulled the trigger, my brother is taking the fall."

Later that day, Webb had a dispute with Gillard and Gorby. Webb threatened to go "to the law," whereupon Gillard said, "I got to get out of here." Webb then reported Gillard's presence to the Brooke County, West Virginia, sheriff's office. As a result, sheriff's deputies and Wellsburg police went to the Webb residence and arrested Gillard. Gillard identified himself to the arresting officers as "Butch Johnson."

John Gillard was indicted for the aggravated murders of Denise Maxwell and Leroy Ensign, and for the attempted aggravated murder of Ronnie Postlethwaite. In each of these three cases, two counts were returned: one charging that the offense was committed with prior calculation and design, R.C. 2903.01(A), and one charging felony murder, R.C. 2903.01(B). Each count of aggravated murder carried two death specifications: one charging a course of conduct involving the purposeful killing of two or more people, R.C. 2929.04(A)(5); and one charging murder coupled with aggravated burglary, R.C. 2929.04(A)(7). A seventh count charged Gillard with aggravated burglary, R.C. 2911.11.

Gillard's alibi defense consisted of testimony that he and Jerri Oney had been at the home of Tracy and Melissa Price between 10:30 p.m., December 31, and 4:30 a.m., January 1, and had gone directly from there to Oney's house. Oney and the Prices corroborated this account. Gillard admitted going to Wellsburg and meeting Webb, but denied introducing himself as "Butch Johnson" and telling Webb that he had been "the trigger man." Gillard also denied that Mrs. Webb had cut his hair.

Gillard was convicted of all charges and specifications. The jury recommended that Gillard be sentenced to death on both counts of Leroy Ensign's murder and both counts of Denise Maxwell's murder. The trial judge followed the recommendation and sentenced Gillard to death.

The court of appeals reversed the convictions and remanded the cause to the trial court. The cause is now before this court upon the allowance of a motion and cross-motion for leave to appeal.

Robert D. Horowitz, Pros. Atty., Richard D. Reinbold, Jr. and John F. Anthony, Canton, for appellant and cross-appellee.

Gutierrez, Mackey & Gwin Co., L.P.A., John N. Mackey and Kathleen M. Tatarsky, Canton, for appellee and cross-appellant.

MOYER, Chief Justice.

The state asserts six propositions of law and Gillard's cross-appeal asserts two propositions of law. For the reasons that follow, we sustain the state's propositions of law, overrule Gillard's propositions of law, and reverse the judgment of the court of appeals.

I

The state's first proposition of law stems from a dispute over the procedures to be followed under Crim.R. 16(B)(1)(e), which provides as follows:

" * * * Names and addresses of witnesses shall not be subject to disclosure if the prosecuting attorney certifies to the court that to do so may subject the witness to physical or substantial economic harm or coercion. Where a motion for discovery of the names and addresses of witnesses has been made by a defendant, the prosecuting attorney may move the court to perpetuate the testimony of such witnesses in a hearing before the court, in which hearing the defendant shall have the right of cross-examination. * * * "

Before defendant's trial began, the state sought to certify to the court that one of its witnesses might be subjected to physical harm or coercion if his identity were disclosed to the defense. See Crim.R. 16(B)(1)(e). Although the defense withdrew its motion for discovery, thereby waiving any sanctions for nondisclosure of the witness' name, the trial judge permitted the prosecutor to state, ex parte, her reasons for believing that the witness was in danger.

The prosecutor told the judge that John Gillard had been national president of the Outlaw motorcycle gang and had been an active member of that gang in four states. The prosecutor stated that Ronald Webb, who had turned Gillard in, was a potential state's witness whose family had been threatened by Gillard's brothers. She added that the family of another suspect had been threatened with death if the suspect turned state's evidence. Finally, she said that a member of the Outlaws had telephoned another witness to threaten still other witnesses whom the prosecutor did not name.

The state then requested, based on these representations, that Webb's testimony be perpetuated pursuant to Crim.R. 16(B)(1)(e). This request was granted. As provided by the rule, the defense was present during Webb's deposition and cross-examined him.

Crim.R. 16(B)(1)(e) is substantially the same as proposed Fed.R.Crim.P. 16(a)(1)(vi), which was not adopted. See Proposed Amendments to Crim.Rules (1970), 48 F.R.D. 553, 589-590.

The rule provides two distinct alternatives: the state may be relieved of its obligation to disclose the names of endangered prosecution witnesses, or such witnesses' testimony may be perpetuated. ¹ However, both forms of relief require the prosecution to show the existence of "an undue risk of harm to the witness * * *." 48 F.R.D. at 605. Our concern here is with the judge before whom that showing is made.

In our view, when a judge hears information that a defendant has attempted to harm, coerce, or intimidate an opposing witness, there is an unnecessary risk that the judge will harbor a bias against that defendant. It is true, as the state reminds us, that judges who issue arrest warrants and preside at preliminary hearings are not barred from presiding over the defendant's trial, even though they have already found the existence of probable cause. See Withrow v. Larkin (1975), 421 U.S. 35, 56, 95 S.Ct. 1456, 1469, 43 L.Ed.2d 712. We also recognize that trial judges preside at hearings on motions to suppress evidence, exposing themselves to probative evidence of guilt that may later prove inadmissible, and that this exposure does not taint their impartiality.

However, the information revealed to the judge here was not merely evidence of guilt, as in the examples mentioned above. Rather, it consisted of representations that Gillard was a leader of a motorcycle gang, and that his brothers had engaged, on his behalf and perhaps at his behest, in an organized-crime tactic of intimidating witnesses by threatening the lives of their families.

Clearly, such information is more inflammatory and harder to disregard than the sort of information heard by the judge who issues an arrest warrant or presides over a motion hearing. Where, as here, the certification is ex parte, it is especially troublesome, for the defendant has no...