State v. Jones

• Decision Date: 27 December 2000
• Docket Number: No. 98-1891.,98-1891.
• Citation: 739 NE 2d 300,2000 Ohio 187
• Parties: THE STATE OF OHIO, APPELLEE, v. JONES, APPELLANT.
• Court: Ohio Supreme Court

739 NE 2d 300

2000 Ohio 187

THE STATE OF OHIO, APPELLEE, v. JONES, APPELLANT.

No. 98-1891.

Supreme Court of Ohio.

Submitted July 25, 2000.

Decided December 27, 2000.

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Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for appellee.

Elizabeth E. Agar and Roxann H. Dieffenbach, for appellant.

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ALICE ROBIE RESNICK, J.

Appellant, Elwood Jones, has raised twenty-six propositions of law. We have reviewed each and have determined that none justifies reversal of appellant's conviction for aggravated murder. Pursuant to R.C. 2929.05(A), we have also independently weighed the aggravating circumstances against the mitigation evidence, and reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we affirm appellant's conviction and death sentence.

INEFFECTIVE ASSISTANCE

In his first four propositions of law, appellant contends that trial counsel provided ineffective representation, thereby depriving him of a fair trial in both phases. Reversal of a conviction for ineffective assistance requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693. Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

Failure to Assert Physician-Patient Privilege

In his first proposition of law, appellant argues that trial counsel were ineffective in failing to object to or prevent testimony protected by the physician-patient privilege of R.C. 2317.02(B). Appellant contends that his trial counsel simply missed the issue of physician-patient privilege and that his trial counsel never deliberately made a tactical decision not to raise the issue.

During trial, the prosecution called Dr. John McDonough to testify concerning appellant's hand injury. This testimony was incriminating to appellant, since other evidence elicited at trial revealed that Nathan was struck in the face with a "considerable amount of force" that broke her jaw. One of Nathan's teeth was found in her stomach during the autopsy. Another tooth was found under Nathan's head on the hotel room floor. Dr. McDonough concluded that appellant's injury to his hand was a fist-to-mouth injury due to the presence of the eikenella corrodens organism found almost always in dental plaque. This evidence was a key component of the state's circumstantial case against appellant and pointed to him as the killer. The other key component was the discovery of Nathan's pendant in the toolbox in the trunk of appellant's car.

Although defense counsel lodged several objections during Dr. McDonough's testimony, none of these objections attempted to assert the physician-patient privilege. Nor did defense counsel file a motion in limine to prevent Dr. McDonough's testimony or to prevent use of appellant's medical records. In addition, defense counsel did not file a motion to quash the subpoena requesting

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appellant's medical records. If defense counsel had used one of these avenues to assert the physician-patient privilege, the issue would have been directly before the trial court, and the trial court would have ruled on the applicability of the privilege. Since no issue regarding the physician-patient privilege was raised at trial, we must consider the question in the context of ineffective assistance of counsel.

We find that trial counsel were not ineffective in failing to raise the issue of physician-patient privilege, because we determine that the privilege was inapplicable in the circumstances of this case. For the following reasons, even if counsel had objected to Dr. McDonough's testimony, the trial court would have been required to overrule the objection and allow Dr. McDonough to testify.

R.C. 2921.22(B) requires that physicians and certain others giving aid to an injured person report to law enforcement personnel gunshot or stab wounds and further requires reporting "any serious physical harm to persons that the physician * * * knows or has reasonable cause to believe resulted from an offense of violence."

The statute applies here even though Dr. McDonough did not report the injury. Dr. McDonough suspected that the injury was a fist-to-mouth injury when tests revealed the presence of the eikenella corrodens, and he questioned appellant's version of how he received the injury. Dr. McDonough's opinion of a fist-tomouth injury was substantiated when the police contacted him with the information that appellant was a suspect in the murder investigation. At that point, Dr. McDonough's suspicions about the injury and the police information conveyed to him coalesced to support his belief that the injury was caused by an offense of violence. If Dr. McDonough had learned that appellant was a suspect from a source other than the police (e.g., a news report), he would have been required to report the injury pursuant to R.C. 2921.22, given his personal suspicions about the nature of the injury. As it was, he was already in contact with the police, so the reporting was no longer required. The situation is no different than if Dr. McDonough had reported appellant's injury on his own initiative.

Appellant urges that, even assuming that Dr. McDonough had a duty to report the injury under R.C. 2921.22(B), there is a further question of whether the statute leads to waiver of the physician-patient privilege. Appellant argues that the privilege remains intact even if the injury is reported to the police.

In State v. Antill (1964), 176 Ohio St. 61, 26 O.O.2d 366, 197 N.E.2d 548, paragraph four of the syllabus, this court, in considering the predecessor statute to R.C. 2921.22(B), held, "Where a physician is required by the former statute to report to a law-enforcement officer a gunshot wound or wound inflicted by a deadly weapon, the former may testify, without violating the physician-patient privilege, as to the description of the wounded person, as to his name and

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address, if known, and as to the description of the nature and location of such wound, obtained by examination, observation and treatment of the victim."

We see no reason to distinguish between a report of a "gunshot wound or wound inflicted by a deadly weapon" as specified in Antill and a report of "serious physical harm" pursuant to R.C. 2921.22 at issue in the present case. The policies implicated in the statutory duties to report are identical in the two situations. If the details of the wound have already been reported, "the only purpose that sustaining the privilege can now serve is to obstruct the course of justice." Antill, 176 Ohio St. at 65, 26 O.O.2d at 368, 197 N.E.2d at 552. We find that the holding of Antill is applicable to the situation in the instant case.

Appellant argues that in State v. Smorgala (1990), 50 Ohio St.3d 222, 553 N.E.2d 672, this court established that there is no public policy exception to the privilege statute regarding evidence sought by the state in criminal prosecutions. Appellant's citation of Smorgala is inapposite. In that case, this court held at paragraph one of the syllabus that "courts may not create a public policy limitation upon the physician-patient privilege in order to allow otherwise clearly inadmissible evidence to be received in drunk driving cases." The situation in the case at bar, and in Antill, is different from that in Smorgala, where a judicially created policy limiting the physician-patient privilege was found inapplicable because it conflicted with the statute giving rise to the privilege, R.C. 2317.02(B). At issue instead in the instant case, as in Antill, is the interplay of two statutes, the physician-patient privilege statute, R.C. 2317.02(B), and the medical personnel reporting statute, now R.C. 2921.22(B). In this case we are dealing with a statute, R.C. 2921.22, not judicially created policy; hence, the rule of Smorgala is not implicated.

Our conclusion is bolstered by the Legislative Service Commission 1973 comment to Am.Sub.H.B. No. 511. The portion of R.C. 2921.22(B) at issue in this case—the requirement that medical personnel report "serious physical harm" when they know or have reasonable cause to believe the harm resulted from an offense of violence—is essentially unchanged from the 1972 enactment of R.C. 2921.22(B). See Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1951. The 1973 comment to H.B. No. 511 provides:

"This section also requires doctors * * *, and others who give aid to the sick or injured, to report gunshot and stab wounds, and other serious injuries which they know or have reasonable cause to believe resulted from a crime of violence, such as the `battered child syndrome.' The reporting requirement under this part of the section is absolute, i.e., no privilege attaches in the cases covered."

Even if appellant's counsel had raised the physician-patient privilege, they would not have been successful. Appellant's trial counsel, therefore, were not deficient in failing to raise the physician-patient privilege as an issue. The

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requirements of Strickland are not met. Appellant's first proposition is overruled.

Failure to Object

Under his second proposition of law, appellant asserts ineffective assistance where trial counsel failed to interpose a specific objection to the admission of statements made to police after appellant invoked his right to counsel. In particular, appellant complains that counsel failed to raise the issue of "constructive interrogation" concerning statements he made at District 1 headquarters after his arrest.

This proposition lacks merit. Appellant concedes that counsel filed a motion to suppress statements that he made to police on three different occasions. In fact, a suppression hearing was held, at the...