State v. John Malinovsky
| Decision Date | 16 October 1991 |
| Docket Number | 89CA004592,91-LW-4209 |
| Parties | STATE OF OHIO, Plaintiff-Appellant v. JOHN MALINOVSKY, Defendant-Appellee C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF LORAIN, OHIO CASE NO. 89 CR 037121
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
We are required to determine in this case whether the trial court erred when it excluded evidence against the defendant on the grounds that sufficient evidence of a conspiracy had not been introduced. We reverse.
A short procedural history of the case is in order.
During its case in chief, the state appealed the evidentiary rulings now before us. The trial court ruled that the appeal was improper and ordered the state to proceed. The state refused and the court dismissed the case for want of prosecution. The state appealed. We ruled that the state was not entitled to a mid-trial appeal, and further that a re-trial would be barred by the double jeopardy doctrine.
The Supreme Court of Ohio reversed us and held that the stage was entitled to a mid-trial appeal and that a re-trial would not be barred by double jeopardy. The Supreme Court remanded the case to us to pass on the evidentiary rulings. State v. Malinovsky (1991), 60 Ohio St. 3d 20.
We believe the trial court erred in two separate ways in its rulings. These will be discussed separately after a recitation of the facts.
The defendant, Lorain Chief of Police John Malinovsky, was charged by a four count indictment with extortion, perjury obstructing official business, and interfering with civil rights. It was the State's theory that the defendant acted with and through Sergeant Wayne Long of the Lorain Police Department.
Because the trial court dismissed the case (improperly so the Supreme Court ruled) before the state rested, the evidence of the state was largely uncontroverted.
The defendant's daughter was an officer of the Society for Prevention of Cruelty to Animals (S.P.C.A.). She also was the manager and ran the day-to-day affairs of a bingo operation for the benefit of S.P.C.A. The daughter lived at home with the defendant and also worked at the police station with the defendant.
The S.P.C.A wished to operate the bingo game at a new location. The new premises could not pass the fire code without expensive improvements. The daughter informed the defendant of the S.P.C.A.'s problems with the fire code.
Sometime before January 11, 1988, defendant called Acting Fire Chief Joseph Pribanic to inquire about the fire code problems. On January 11, 1988 at about 11:30 a.m., the attorney for S.P.C.A. was notified in writing by the fire department of the fire code violations. That afternoon the defendant had a discussion with Long and two other policemen about S.P.C.A. not being allowed to open its bingo because of fire code violations. Long said that he knew of a night club that was in similar violation of the fire code which was allowed to open after they hired off-duty firemen for fire watch. (The allegations were untrue.) The defendant ordered an investigation of the allegations and instructed Long to "advise" the firemen of the investigation.
That afternoon, Long went to the fire department and threatened fire inspectors Thomas and Cuevas with dire consequences unless they allowed the bingo hall to open despite the fire code violations. Long indicated that the defendant wanted the bingo hall to open, and if it was not allowed to open, the firemen would be charged with crimes they did not commit. Long said he was there at the direction of the defendant and that they could easily set up false charges.
As soon as Long left, Thomas and Cuevas told Acting Fire Chief Pribanic what happened. Pribanic set up a meeting with Safety Director Yepko and the story was repeated to him. A meeting was then held with the Lorain County Prosecuting Attorney. As a result of that meeting, a telephone conversation between Thomas and Long was arranged. The conversation was tape recorded.
The trial court would not permit Thomas or Cuevas to testify about the threats made to them by Long. The trial court also denied introduction of the recorded conversation between Thomas and Long. The trial court was wrong. The threats by Long were themselves part of the crime. For that purpose, it doesn't matter if the threats were true. The question was whether they were made. The direct evidence of the threats was not hearsay and should have been permitted.
As has been aptly said:
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