State v. Remy, 2004 Ohio 3630 (OH 6/10/2004), Case No. 03CA2731.

• Citation: 2004 Ohio 3630
• Decision Date: 10 June 2004
• Docket Number: Case No. 03CA2731.
• Parties: State of Ohio, Plaintiff-Appellee, v. Paul V. Remy, Defendant-Appellant.
• Court: United States State Supreme Court of Ohio

Page 1

2004 Ohio 3630

State of Ohio, Plaintiff-Appellee, v. Paul V. Remy, Defendant-Appellant.

Case No. 03CA2731.

Court of Appeals of Ohio, Fourth District, Ross County.

File-Stamped Date: June 10, 2004.

Raymond F. Grove, Columbus, Ohio, for appellant.

Michael M. Ater, Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

KLINE, P.J.

{¶1} Paul V. Remy appeals his conviction in the Ross County Court of Common Pleas on one first-degree felony count of possession of cocaine, a violation of R.C. 2925.11. Remy asserts ten assignments of error. Because we find that each of Remy's assignments of error is without merit, we overrule his assignments of error and affirm the judgment of the trial court.

I.

{¶2} On November 6, 2001, Captain James Calhoun swore in an affidavit that several informants provided tips that Paul Remy was selling crack-cocaine from Paul's Motor Sales, that law enforcement discovered cocaine in several traffic stops of vehicles leaving Paul's Motor Sales, that law enforcement discovered cocaine in Remy's vehicle during several traffic stops, and that a reliable confidential informant provided information that they were a past employee of Paul's Motor Sales and had observed cocaine, crack-cocaine, and marijuana being sold at Paul's Motor Sales. Based on this information, Judge Bunch of the Chillicothe Municipal Court issued a search warrant of 95 South Renick Avenue, Chillicothe, Ohio, where Paul's Motor Sales is located.

{¶3} Although the court issued the journal entry for the warrant on November 6, 2001, the court failed to fill in the blank for the day of November 2001 that the matter came before it for consideration. In the first line of the journal entry, the court stated that it was issuing the warrant to Ross County Sheriff Ron Nichols.

{¶4} Remy owns the property located at 95 South Renick Avenue. His daughter, Diane Barnett, is the president and chief operating officer of Paul's Motor Sales. The property consists of a car lot with over 200 vehicles, a customer parking area, and a building with offices and a bedroom.

{¶5} Members of the Ross County Sheriff's Department, led by Captain Calhoun, and members of the Chillicothe Police Department, led by Detective James Lowe, executed the warrant on November 6, 2001. Sheriff Ron Nichols was not present. When the law enforcement officers arrived, they found the business unlocked and entered through the front door. Remy and several other people were present when officers arrived. Officers detained the individuals in one room during the execution of the warrant. One of the people present, Hank Spencer, has a felony record for drug trafficking.

{¶6} Detective Lowe discovered that one door was locked. Rather than damage the door, he asked the people present if any of them had a key to the room. Remy stated that he had a key to the room and that it was his bedroom. Remy unlocked the door for the officers. Inside the locked bedroom officers found crack-cocaine on the nightstand, in the dresser, in the bed, under the mattress, in a bathrobe pocket, and in the suspended ceiling. They also found certificates of deposit in Remy's name with a value of $160,000.

{¶7} After the drugs were discovered in Remy's bedroom, officers removed him from the building and placed him under arrest. He received Miranda warnings, orally indicated that he understood his rights, signed a waiver of rights form, and gave a statement. During his statement, Remy said that the bedroom was his, and that no one else had a key to the bedroom. When asked about the cocaine in the room, Remy stated that he had five or six women running in and out of his bedroom at all hours of the night.

{¶8} When officers searched Remy, they found a large amount of cash and a metal capsule containing a small amount of cocaine powder residue. Additionally, officers found a small amount of cocaine in Remy's truck.

{¶9} The warrant authorized officers to seize items related to trafficking in drugs, drug abuse, and drug paraphernalia offenses and items related to those offenses, including computers, certificates of deposit, jewelry, currency, bank records, photographs, and video tapes. A laptop computer was among the items seized. Officers later learned that the laptop was stolen.

{¶10} The Ross County Grand Jury indicted Remy for one count of possession of crack-cocaine in an amount greater than twenty-five grams and for one count of receiving stolen property. Remy pled not guilty to the charges and filed a motion to suppress the evidence obtained in the search. The trial court held a hearing on the motion and denied it.

{¶11} The State was initially represented by Assistant Prosecuting Attorney Michael Ater. Michael is married to Jennifer Ater, a former assistant prosecuting attorney. Jennifer represented Remy in an unrelated, non-criminal matter several years before this matter arose. Remy still owes Jennifer money for legal services she rendered on his behalf. Remy filed a motion to cause the entire Ross County Prosecutor's Office to disqualify itself from the case due to a conflict of interest. Meanwhile, Michael Ater was called to active military duty and Ross County Prosecutor Scott Nusbaum took over for the prosecution. The trial court denied Remy's motion, noting that Michael Ater was no longer involved in the matter. Michael Ater represents the State in this appeal.

{¶12} Remy moved for a separation of witnesses during the trial, and the court granted his motion. However, the State designated Detective Lowe as its representative. Therefore, the trial court allowed Detective Lowe to remain in the courtroom and sit at the counsel table throughout the trial. Detective Lowe testified last in the State's case.

{¶13} The State included an individual named Tonya Sue Perry on its witness list and subpoenaed her to testify at trial. Perry did not appear at the trial as ordered. The court issued a warrant for Perry's failure to appear as a witness.

{¶14} During the trial, witnesses and counsel frequently used the terms "cocaine" and "crack-cocaine" interchangeably. The State's expert witness, Keith Taggart, testified that "crack-cocaine" is street terminology for a base form of cocaine created when powder cocaine is mixed with a substance such as baking soda and heated. Taggart specified that the cocaine found in Remy's bed, under his mattress, in his bathrobe, in his dresser, and in the ceiling was the base form of cocaine.

{¶15} In his cross-examination of Detective Lowe, Remy sought to introduce a copy of the journal entry whereby an individual named Hank Spencer was convicted of drug trafficking. The State objected on relevancy grounds. The trial court sustained the State's objection, but stated that it would allow Remy to present evidence of the conviction if he could also present evidence that the Hank Spencer named in the journal entry was the same individual as the Hank Spencer present at Paul's Motor Sales at the time officers executed the search warrant.

{¶16} The State dismissed the receiving stolen property charge. The jury found Remy guilty of possessing cocaine in an amount excess of twenty-five grams. At the sentencing hearing, the trial court found that the shortest available prison term, three years, would demean the seriousness of Remy's conduct. The court ordered Remy to serve a prison term of four years.

{¶17} Remy filed a motion for a new trial due to newly discovered evidence. Remy based his motion on a letter that was placed in the court's mailbox on June 30, 2003, by an unknown source. The court shared the letter with the prosecutor and defense counsel in chambers. The letter contains a confession allegedly from Perry, the State's witness who failed to appear, that the cocaine in his ceiling belonged to her and another woman, Dorothy Spencer. The letter also states that Remy was home when they stashed the cocaine in his ceiling, and that he provided them with the plastic bag to hold the cocaine. Additionally, the letter states that Perry and Spencer informed Remy that the cocaine stashed in the ceiling was theirs approximately four weeks after the November 6, 2001 raid. The trial court denied Remy's motion for a new trial without holding a hearing.

{¶18} Remy appeals, asserting the following ten assignments of error: "I. The trial court committed prejudicial error by failing to sustain [Remy's] motion to cause the Ross County Prosecutor's to disqualify itself for conflict of interest. II. The trial court committed prejudicial error by not sustaining [Remy's] motion to suppress the search warrant and the items seized. III. The jury's verdict is against the manifest weight of the evidence. IV. The trial court committed prejudicial error by not suppressing any statements made by [Remy] in violation of his Miranda rights and which are not provided per Crim.R. 16. V. The trial court committed prejudicial error in not sentencing [Remy] to the statutory minimum sentence. VI. The trial court committed prejudicial error by permitting the jury to consider crack-cocaine and powder cocaine which were not properly qualified and quantified. VII. The prosecutor committed prejudicial error by misleading the jury in final argument. VIII. The trial court committed prejudicial error when it would not allow the defense to introduce the felony record of a witness who was present at the search warrant location. IX. The trial court committed prejudicial error when it allowed a violation of the separation of witness rule. X. The court committed prejudicial error by overruling [Remy's] motion for a new trial without an oral hearing."

II.

{¶19} In his first assignment of error, Remy asserts that the trial court committed reversible error when it denied his motion to disqualify the Ross County Prosecutor's office from this case. Remy contends that, at minimum, an appearance of a conflict of interest is present in this case because the...