Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, July 31, 2018

State of Ohio v. James D. Tench, Case no. 2016-0899
Medina County Common Pleas Court

In re L.G., Case no. 2017-0877
Second District Court of Appeals (Montgomery County)

State of Ohio v. David L. Braden, Case nos. 2017-1579 and 2017-1609
Tenth District Court of Appeals (Franklin County)

Brunswick Man Appeals Death Sentence for 2013 Murder of His Mother

State of Ohio v. James D. Tench, Case no. 2016-0899
Medina County Common Pleas Court

James D. Tench of Brunswick, Ohio, was convicted for the 2013 kidnapping, murder, and aggravated robbery of his mother. Tench appeals his convictions and sentence of death to the Ohio Supreme Court.

Women Disappears After Work
Tench’s mother, Mary, was employed at a retirement community in Lakewood. On Nov. 11, 2013, she worked from 3 p.m. to 11 p.m. A coworker said she and Mary clocked out and left the facility shortly after 11 o’clock that night.

Tench, who lived with his mother, went to the Brunswick Police Department early on the morning of Nov. 12 to report her missing. He told police she never arrived home from work the night before. He indicated he awoke in middle of the night, noticed she wasn’t home, drove around looking for her, and called 911 and the Ohio State Highway Patrol.

Later that morning, employees at a Brunswick marketing company noticed a sports-utility vehicle in an empty field next to their office, and police were contacted. Officers discovered Tench’s mother’s body face down and curled up in the back of the SUV, which was her vehicle. The medical examiner determined that the cause of death was multiple blunt impacts to the head, neck, trunk, and extremities with skull, brain, skeletal, and soft-tissue injuries.

Detectives talked with Tench in his home before his mother’s body was found, and again afterward. Based on the conversations, the detectives arrested him.

Son Convicted of Murder
In August 2014, a Medina County grand jury indicted Tench on numerous counts, including aggravated murder, kidnapping, and aggravated robbery. The indictment included death-penalty specifications.

Following a March 2016 trial, the jury found Tench guilty of all counts and specifications, except for one. Tench had elected to have the trial court, rather than the jury, consider a repeat-violent-offender specification. The court found him guilty on this specification. The jury recommended the death penalty, and in April 2016 the court imposed a death sentence. The court also sentenced Tench to 44 years in prison for the other offenses.

Defendants sentenced to death are entitled to an automatic appeal to the Ohio Supreme Court. Tench has raised 18 legal arguments challenging his convictions and death sentence.

Statements Made to Police
Tench believes the trial court shouldn’t have allowed some of the statements he made to police to be heard during the trial. After discovering his mother’s body, detectives returned to the Tench residence on Nov. 12 and arrested him. The detectives read Tench his Miranda rights, and he said, “I think I want an attorney.” Tench was taken to the Brunswick Police Department where he signed a form stating that he understood his rights, but he refused to sign a section waiving his rights. Officers questioned him further.

Tench’s brief to the Court states that, knowing Tench had asked for an attorney on Nov. 12 and didn’t waive his rights in writing, the police should have stopped all questioning, and any statements from this interview should have been suppressed in court.

The Medina County Prosecutor’s Office states, however, that the U.S. Supreme Court has concluded that ambiguous and equivocal references to an attorney aren’t a clear request for counsel. The prosecutor notes that, when Tench said at his house he might want an attorney, detectives stopped the interview and took him to the police station. He was read his rights again, and he waived them, the prosecutor indicates. Tench’s statements in this Nov. 12 interview were voluntary, and there was no need to withhold them at his trial, the prosecutor concludes.

Was Cousin Acting as His Attorney?
On Nov. 13, Tench was also questioned at the Strongsville Police Department about a robbery at a local restaurant where he had worked. He told police he had been speaking to his attorney, who is his cousin, the day before at the police station. When he informed them he had an attorney, the police should have ended their interview, Tench argues.

Not only were his statements made in the Nov. 13 interview not excluded, but Tench’s cousin, Sarah Verespeg, also testified at his trial. Tench had contacted out-of-state family members the morning of Nov. 12 about his mother’s disappearance. Those relatives contacted Verespeg, who lived in Cleveland, expressing concern about Tench’s story and asking her to see what she could find out. Tench and Verespeg talked on the phone and exchanged texts the morning of Nov. 12. Verespeg, who works as an in-house corporate counsel, testified that she went to the jail that day as Tench’s cousin, not his attorney.

Tench, however, argues that he contacted his cousin because she is a lawyer. He contends that statements made to her were protected by attorney-client privilege. Police even arranged for them to speak privately at the jail, Tench states. The detectives indicated in their testimony that they viewed Verespeg as Tench’s attorney, he maintains. Because he never waived attorney-client privilege, Tench reasons that the trial court couldn’t allow his cousin to testify against him.

The prosecutor notes, though, that Verespeg stated that she hired a private investigator on Nov. 12 because the family was suspicious about Tench’s involvement in his mother’s disappearance. Tench has offered no evidence that Verespeg acted as his attorney that day, the prosecutor concludes.

Relevance of Other Acts
Tench also contests the admission of information at his murder trial about comments witnesses heard from him, fraudulent credit card actions, drugs found in his truck, records of Internet searches, and the Oct. 28 restaurant robbery. This “other acts” evidence was legally irrelevant and prejudicial, Tench maintains. Allowing this evidence undermined the trial’s integrity and fairness, and was used solely to show he was prone to commit crimes, he argues. 

Noting that Tench admitted to and was convicted of the restaurant robbery, the prosecutor counters that the robbery, stealing from his mother, and opening fraudulent credit cards showed that he acted with prior calculation and design. The acts also demonstrated a motive to kill his mother – to conceal his thefts from her, and to prevent her from learning the extent of his actions and possibly contacting police, the prosecutor asserts.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing James D. Tench: Nathan Ray, 330.253.7171

Representing the State of Ohio from the Medina County Prosecutor’s Office: Vincent Vigluicci, 330.723.9536

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Should School Safety Director Have Read Miranda Rights to Youth Before Questioning About Bomb Threat?

In re L.G., Case no. 2017-0877
Second District Court of Appeals (Montgomery County)

ISSUE: Does the protection against self-incrimination guaranteed by the U.S. Constitution’s Fifth Amendment apply to interviews conducted by a private citizen, specifically the safety and security director for a public school system?

Someone called police on Oct. 27, 2015, and reported that there was a bomb in Dayton’s Longfellow Alternative School. Law enforcement contacted school officials, who evacuated the building. Jamie Bullens, executive director of safety and security for the City of Dayton Public Schools, met police officers at the school.

Bullens supervises 26 school resource officers, who are trained as special police officers and sworn in by the police department. They have authority to arrest people for conduct that takes place on school grounds. They carry handcuffs, but not weapons.

To look for a bomb, Bullens and a Dayton police sergeant enlisted bomb-sniffing dogs. None was found. The students were directed to gather in the gym, and Bullens told them a local Crime Stoppers group was offering a reward up to $1,000 for details about to those responsible for the bomb threat. Two people came forward, giving school officials information that implicated a student identified as L.G. in court documents.

Youth Questioned in Cafeteria
A school resource officer brought the 13-year-old boy to the school’s cafeteria. Bullens asked L.G. about the bomb threat while the police sergeant and a police officer stood nearby. Before questioning L.G., Bullens didn’t provide any of the warnings that law enforcement must give suspects in custody before questioning them, based on the U.S. Supreme Court’s 1966 decision in Miranda v. Arizona.

The teen confessed to calling in the bomb threat, and one of the police officers in the cafeteria arrested L.G. and took him to a police station for further questioning.

Court Suppresses Statements Made to Safety Director
A complaint was filed in juvenile court the next day, alleging that L.G. was delinquent for inducing panic, which would be a felony offense if he were an adult. L.G. asked the court to suppress the statements he made to Bullens, arguing that the director’s questioning was unconstitutional because he didn’t inform L.G. of his rights beforehand. A magistrate agreed, and the juvenile court upheld the decision not to allow the statements in court. Concluding that Bullens acted as an agent of law enforcement and L.G. was in custody, the court determined that L.G. had to be advised of his Miranda rights.

The Montgomery County Prosecutor’s Office appealed to the Second District Court of Appeals, which affirmed the juvenile court’s ruling. The prosecutor filed an appeal with the Ohio Supreme Court, which decided to review the issue.

Police Didn’t Direct Questioning, Student Not in Custody, State Maintains
The prosecutor states that the constitutional protections against self-incrimination and the requirements of Miranda warnings apply only to a person who is subjected to custodial interrogation. In Miranda, the U.S. Supreme Court wrote, “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

In the prosecutor’s view, director Bullens wasn’t an agent of law enforcement. For a person to act as an agent of law enforcement when interviewing a suspect, law enforcement must direct and control the questioner and the questions, the prosecutor contends. Even an interviewer whose efforts might aid law enforcement isn’t their agent unless acting at law enforcement’s direction or control, the prosecutor asserts, citing the Ohio Supreme Court’s ruling in State v. Bolan (1971). The prosecutor adds that private citizens, such as Bullens, aren’t transformed into agents of police simply because their goals overlap with law enforcement’s or their actions ultimately benefit the police.

“[Bullens] was not functioning merely as an arm of the state to whom law enforcement had delegated questioning to avoid the requirements of Miranda,” the prosecutor writes in the brief to the Court.

The prosecutor maintains that Bullens was doing his job as the school system’s safety and security director. He received no direction, advice, or instruction on whether or how to interview L.G., the prosecutor indicates. While in the cafeteria, the officers were silent throughout Bullens’ questioning. From the state’s perspective, the Miranda mandates don’t apply because L.G. was never interrogated by police or an agent of police.

Even if Bullens were an agent of the police, the prosecutor argues that Miranda warnings still weren’t necessary because L.G. wasn’t in custody when he was questioned by Bullens at the school. Courts look at the “totality of the circumstances” to decide whether a reasonable person would feel free to leave and therefore isn’t in custody. Courts consider factors such as the surroundings, the number of law enforcement officers present and their conduct, the interview duration, and whether the interviewee is physically restrained.

In this case, the prosecutor states that L.G. was familiar with the school cafeteria, no physical restraints were used, the interview lasted 10 to 20 minutes, no coercion or trickery was employed, and, though the exact number is disputed, a small number of police officers were present. Under these circumstances, L.G.’s freedom to leave wasn’t inhibited, so he wasn’t in custody for purposes of Miranda, the prosecutor argues. The office asks the Court to reverse the Second District’s decision and return the case to the juvenile court.

Safety Director “Entangled” with Police, Student Not Free to Leave, L.G.’s Attorney Argues
The Office of the Montgomery County Public Defender, which is representing L.G., counters that Bullens wasn’t merely a private citizen in this situation. The public defender argues that Bullens wasn’t focused on educational issues, but instead was working with police to investigate a crime. He was acting in a law enforcement capacity, in the public defender’s view.

In June, the Ohio Supreme Court decided State v. Jackson, ruling that social workers following state law when they interview individuals in custody, but not acting under the direction or control of law enforcement, aren’t law enforcement agents and don’t have to alert those in custody of their rights. However, L.G.’s public defender states that Bullens said he consulted and made decisions “in unison” with the Dayton police and needed permission from law enforcement to take certain steps. The level of coordination and cooperation between Bullens and police created substantial entanglement, which indicates that he was acting as an agent of police, the public defender asserts.

The office argues the facts in Bolan are too different from those in L.G.’s case. Bolan involved a security guard who questioned a juvenile about stealing merchandise from a store. Unlike L.G., no armed police officers or police-trained school resource officers were present when the defendant in Bolan was questioned, and the alleged crime wasn’t a felony, the public defender notes.

On the issue of whether L.G. was in custody, the public defender points out that a person’s age and maturity are factors to consider.

“In this case L.G., a 13 year old seventh grader at an alternative school, was significantly deprived of his freedom when he was escorted by a sworn institutional police officer from a gymnasium full of students to a cafeteria with no students – but with uniformed, armed Dayton police officers and the school district Director of Security, a retired police officer who supervises 26 school police officers,” the public defender’s brief states.

As the trial court and Second District determined, no reasonable 13-year-old would have felt free to leave the cafeteria under these circumstances, the public defender maintains. The office concludes by noting that the U.S. Supreme Court has made clear that juveniles are entitled to greater protections than adults because of their vulnerable developmental status.

Groups Advocate Caution When Interrogating Children
The following organizations have submitted a joint amicus curiae brief supporting L.G.:

  • Children’s Law Center
  • Education Law Center-PA
  • Juvenile Justice Coalition
  • Juvenile Law Center
  • Ohio Public Defender’s Office
  • National Juvenile Defender Center
  • Schubert Center for Child Studies at Case Western Reserve University

They stress that the trial and appellate court decisions in this case protect the constitutional rights of children, ensuring full legal safeguards without undermining the need for school discipline.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the State of Ohio from the Montgomery County Prosecutor’s Office: Christina Mahy, 937.224.8836

Representing L.G. from the Montgomery County Public Defender’s Office: Michael Deffet, 937.496.7476

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Can Judges Waive Court Costs for Those Sentenced Prior to Change in Law?

State of Ohio v. David L. Braden, Case nos. 2017-1579 and 2017-1609
Tenth District Court of Appeals (Franklin County)

ISSUE: Under the current version of R.C. 2947.23(C), does a trial court have jurisdiction to waive, modify, or suspend court costs for defendants whose convictions became final before the effective date of the law?

In 2012, the Ohio General Assembly passed House Bill 247, which a part of it became R.C. 2947.23 and took effect in March 2013. Lawmakers supporting the bill cited the Ohio Supreme Court’s 2007 State v. Clevenger decision as a reason for passage. In Clevenger, the Supreme Court ruled that without specific authority from the legislature, trial courts don’t have the ability to waive court costs if they aren’t waived at the time the defendant is sentenced. The new law permitted courts to waive, modify, and suspend court courts at sentencing or any time after.

David Braden received two death sentences in 1999. At his trial, Braden was deemed indigent. In addition to incarceration until his execution, Braden was fined a total of $50,000 and assessed $2,127.50 in court costs. At the sentencing, Braden’s present and future ability to pay the costs weren’t addressed, and his attorneys didn’t object to the sanctions. He unsuccessfully appealed his sentence without raising the issue of court costs.

After the Supreme Court affirmed his conviction in 2002, the state began deducting funds from Braden’s prison account to pay the court-ordered financial obligations. After 16 years of withdrawals, Braden has paid $540 of his court costs.

In 2016, Braden cited R.C. 2947.23(C) in a request to a Franklin County trial court to waive further payments of his fines and court costs. The trial court, in a one-line decision, denied the request.

He appealed to the Tenth District Court of Appeals. In 2017, the Tenth District found that since Braden’s sentence became final before the effective date of the new statute, the law didn’t apply to his request related to court costs. The Tenth District denied his request to waive the fines on other grounds.

Braden noted the denial of the court-cost waiver conflicted with decisions from the Second and Eighth district courts of appeals. The Tenth District certified to the Supreme Court that its decision was in conflict with other appeals courts, and the Supreme Court agreed to hear Braden’s case and the certified conflict.

Law Applies Regardless of Sentencing Date, Inmate Argues
R.C. 2947.23(C) states: “The court retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution, including any costs under section 2947.231 of the Revised Code, at the time of sentencing or at any time thereafter.” Braden argues the language is “plain and unambiguous” and finds that regardless of when his sentence was final, the court can at any time waive, suspend, or modify the payments.

Braden points to the history of the legislation and notes that lawmakers established a Joint Committee to Study Court Costs and Filing Fees in 2008. The committee referenced the Clevenger decision in its recommendations to the legislature. The bill’s sponsor in the Ohio House of Representatives testified that the provision was in response to the Clevenger decision.

Braden maintains that the meaning of the language allows the modification regardless of when the original sentence was imposed and, when read in context with other provisions of the R.C. 2947.23, it is clear a trial court “retains jurisdiction” over costs and payments after the sentence is final. He notes the jurisdiction is limited to only the financial obligations, and doesn’t allow him to request a new trial or sentence.

Braden also addresses the state’s general prohibition on passing retroactive laws. He points to the Eighth District’s 2015 State. v. Hunter decision, which found the law applies to those sentenced before the March 2013 effective date. The Eighth District ruled the law isn’t applied retroactively because the trial courts can only modify future court costs. The law doesn’t allow courts to issue refunds or rescind the money paid to date, but only can block future payments, Braden notes.

The inmate also asserts the law is “remedial” in nature and helps to correct a wrong. Citing Hunter,he maintains the Ohio Constitution permits retroactive laws that are remedial because they don’t “reach back in time to upset settled legal expectations,” such as a changing a prison sentence.

Trial Courts Can’t Rule on Pre-March 2013 Cases, State Argues
The Franklin County Prosecuting Attorney’s Office, on behalf of the state, focuses on the opening words of R.C. 2947.23(C), which states “The court retains jurisdiction...,” and notes that a trial court loses jurisdiction of a case when the sentence is final. For cases that were final before the March 2013 imposition of the law, a court can’t retain jurisdiction if it doesn’t have jurisdiction, the prosecutor argues. Because the legislature used the words “retains jurisdiction,” the law clearly applies only to those cases in which the sentence isn’t final and can’t apply to cases that were final, the prosecutor concludes.

The prosecutor maintains that the term “at any time thereafter” doesn’t negate the requirement that the court must have jurisdiction at the time it considers the court costs. The state argues that “at any time thereafter” refers to “when” the court can act, but doesn’t determine “whether” the court can act.

The state argues that because the statute is clear, the legislative history is irrelevant and that if lawmakers wanted the law to apply retroactively, they could have chosen a word other than “retains,” or simply stated the law applied to cases before the effective date. The prosecutor also suggests that for a law to apply retroactively, the legislation must spell that out, and H.B. 247 didn’t contain such language.

“This case starts and ends with the plain statutory language of R.C. 2947.23(C). Given the plain and ordinary meaning of the word ‘retains,’ the statute allows a trial court only to keep jurisdiction it currently possesses; it does not allow a trial court to reacquire prior jurisdiction,” the prosecutor’s brief states.

Friend-of-the-Court Briefs
An amicus curiae brief supporting the state’s position has been submitted by the Ohio Prosecuting Attorneys Association.

Three amicus briefs have been filed supporting Braden’s position. The American Civil Liberties Union of Ohio and the American Civil Liberties Union Foundation filed a joint brief, which states that while Braden awaits execution at the Chillicothe Correctional Institution, he cannot afford to buy a pair of shoes. The ACLU notes that Braden earns $16 per month working in the prison and Franklin County attaches a payment to his account anytime it reaches $25. The minimum price for a pair of shoes in the prison commissary is $27.95, the ACLU states. The organization expects that Braden will never be released from prison and that he needs to waive the court costs so that he can obtain basic necessities. The ACLU argues that confining the law to only cases after March 2013 would seriously impede the ability of thousands of inmates to successfully re-enter society from prison.

The Franklin County Public Defender and the Ohio Community Corrections Association also submitted briefs in support of Braden.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (Case nos. 2017-1715 and 2017-1716).

Representing David L. Braden from the Ohio Public Defender’s Office: Kathryn Sandford 614.466.5394

Representing the State of Ohio from the Franklin County Prosecuting Attorney’s Office: Seth Gilbert, 614.525.3555

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.