State v. Eatmon , 2022 Ohio 1197 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Eatmon, Slip Opinion No. 2022-Ohio-1197.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-1197THE STATE OF OHIO, APPELLANT, v. EATMON, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Eatmon, Slip Opinion No. 2022-Ohio-1197.]
Criminal law—Material-witness warrants—When requesting that a court issue a
material-witness warrant, state must establish, by oath or affidavit,
probable cause to believe that the witness is material and that the warrant
is necessary to procure the witness’s attendance at trial—Court of appeals’
judgment affirmed.
(No. 2020-1018—Submitted October 27, 2021—Decided April 12, 2022.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 108786, 2020-Ohio-3592.
_________________
STEWART, J.
{¶ 1} R.C. 2937.16 through 2937.18 and R.C. 2941.48 provide mechanisms
by which a trial court may secure the presence of a witness at a criminal trial—
either by requiring the witness to provide surety or by ordering that the witness be
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detained until trial. In this discretionary appeal, we consider what the state must
establish when requesting that a court issue a material-witness warrant. The Eighth
District Court of Appeals determined that the trial court did not err when it denied
the state’s requests to issue material-witness warrants because the state failed to
demonstrate, by oath or affirmation, “probable cause that warrants were necessary
to procure the witnesses’ attendance at trial.” 2020-Ohio-3592, ¶ 20. We agree
and therefore affirm the Eighth District’s judgment.
Background
{¶ 2} In December 2017, a Cuyahoga County grand jury returned an
indictment charging appellee, Darnell Eatmon Jr., with five counts relating to the
shooting of Khaalis Miller: one count each of attempted murder, discharging a
firearm on or near prohibited premises, and having a weapon while under a
disability; and two counts of felonious assault. All but the weapons-under-
disability charge contained multiple firearm specifications. The police did not
apprehend Eatmon until early 2019. He pleaded not guilty to the charges.
{¶ 3} The trial court scheduled Eatmon’s trial for May 15, 2019.
Approximately three weeks before trial, the state filed motions for recognizance
and/or the commitment of material witnesses. In its briefs in support of those
motions, the state requested that the trial court declare Khaalis Miller and his
mother, Lisa Ford, material witnesses and order them to give recognizance “in the
amount of $5,000 to assure [their] attendance at trial” or, in the alternative, issue an
arrest warrant for them and order that they be detained until they testified at
Eatmon’s trial. The state’s briefs also informed the trial court of the various efforts
it had made to contact Miller and Ford.
{¶ 4} With respect to Miller, the state’s brief alleged that the assistant
prosecutor attempted to call him at multiple phone numbers, left voicemails for
him, and mailed letters to him. The state’s investigator also called Miller at
“multiple phone numbers” and traveled to four residences in an attempt to locate
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him: one in East Cleveland, two in Euclid, and one in Painesville. The investigator
left letters at the East Cleveland residence and one of the Euclid residences. A
woman answered the door at the second Euclid residence and stated that she had
lived there for three years and did not know Miller. At the Painesville residence,
another woman answered the door and also claimed that she did not know Miller.
But the apartment manager of the Painesville residence subsequently informed the
investigator that the apartment was rented to a person with the name “Miller” and
that one of the occupants was named “Khaaliah Miller.” After receiving the
investigator’s information, the state sent a letter to Miller at the Painesville address
and included a copy of a subpoena for Miller’s appearance at an April 3, 2019
pretrial hearing, but Miller did not appear at that hearing. On April 4, 2019, the
assistant prosecutor contacted Miller via Facebook but never received a response.
{¶ 5} Regarding Ford, the state’s brief in support of its motion explained
that she was a material witness because Eatmon had allegedly confessed “his
crimes” to her. The brief further explained that the state had called Ford at her
place of employment but did not reach her, and there was no answering machine.
The state also sent letters to Ford’s home and work, requesting that she contact the
prosecuting attorney. The prosecutor spoke to Ford’s sister, who said that she
would have Ford return the prosecutor’s call, but Ford did not do so. A Cleveland
police detective also went to Ford’s home and her job and left letters at both
locations, asking Ford to call him. The state claimed in its brief that Ford later
called the detective and “yell[ed] at him” for coming to her house and her job and
“stat[ed] that she want[ed] nothing to do with the case.” Ford further told the
detective that Miller did not want the case to be prosecuted, although she did
confirm that Miller lived in Painesville and worked in Mentor.
{¶ 6} The trial court held a pretrial hearing on April 30, 2019. Without
explanation, the judge denied the state’s motions for recognizance and/or the
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commitment of material witnesses and stated that Eatmon’s trial remained set for
May 15, 2019.
{¶ 7} On May 9, 2019, the state moved to continue Eatmon’s trial due to its
inability to secure the presence of Miller and Ford as witnesses. On May 10, the
state filed new motions for material witnesses, this time requesting that the trial
court declare Miller and Ford material witnesses, issue arrest warrants for them,
and keep them incarcerated without bail until they testified at Eatmon’s trial.
{¶ 8} In support of the May 10 motions, the prosecutor submitted briefs that
detailed the state’s previous efforts to contact Miller and Ford, but also added that
she called Miller on April 30, 2019. According to the brief, a male answered the
phone and replied, “Yes,” when the prosecutor asked for “Mr. Miller.” When the
prosecutor identified herself, however, the male stated that he would “need to take
a message because ‘Mr. Miller’ was not there.” The prosecutor unsuccessfully
attempted to call Miller at that same phone number two more times.
{¶ 9} The trial court again denied the state’s material-witness motions, but
granted the state’s motion for a continuance and rescheduled the trial for July 9,
2019.
{¶ 10} On July 9, the court asked the parties whether they were prepared to
go forward with the trial. The state informed the court that it was not prepared to
do so because Miller and Ford were not present. The state orally renewed its request
that the court issue material-witness warrants for Miller and Ford.
{¶ 11} The trial court asked the state what steps it had taken to serve Miller
and Ford with a “subpoena so that they would know that the trial [was] set” for that
day “and that their presence was requested.” The prosecutor began to recite what
she had explained in her previous motions, but the court interrupted and said, “But
those were for prior occasions * * * and [it] wasn’t inclined to issue a material
witness warrant at that time.” The court asked the state again, “So for this specific
date, today’s date, what steps did the State take?” The prosecutor told the court
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that in addition to the state’s previous attempts, letters had been mailed to each
witness and subpoenas had been “left at the residence of Lisa Ford for both her as
well as her son for today’s appearance.” The trial court asked the prosecutor
whether she had spoken to either witness directly about the trial scheduled for that
day. The prosecutor responded that the witnesses would not answer her phone calls.
The prosecutor then discussed the time that she had called Miller before she filed
her May 10 motions, explaining that she believed Miller had answered the phone
but that he then claimed to be someone else after she introduced herself. The court
asked the prosecutor whether the witnesses had been personally served with
subpoenas. The prosecutor replied that they had not but argued that R.C. 2941.48
“does not require a person or witness to be personally served prior to a warrant
being issued.”
{¶ 12} The trial court denied the state’s request for material-witness
warrants, explaining that it had granted the state’s request for a continuance “back
in May” so that the state could find its witnesses, but that the state still had not done
so. The trial court subsequently dismissed the case without prejudice.
{¶ 13} The state appealed the trial court’s judgment to the Eighth District
Court of Appeals, arguing that the trial court erred when it refused to issue material-
witness warrants and dismissed Eatmon’s case. The Eighth District affirmed the
trial court’s judgment, concluding that the state failed to establish probable cause
“that the witnesses would not appear at trial.” 2020-Ohio-3592 at ¶ 43. The state
appealed to this court, and we accepted its sole proposition of law:
Where a party to a criminal proceeding shows probable
cause that a witness is material to its case and the witness is
uncooperative and refuses to appear and detention of the witness is
necessary to procure the witness’[s] attendance at trial, the Trial
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Court shall issue a material witness warrant, pursuant to R.C.
2937.16 and 2937.18.
See 160 Ohio St.3d 1451, 2020-Ohio-5166, 157 N.E.3d 771.
Material-Witness Warrants
{¶ 14} The “duty to disclose knowledge of crime * * * is so vital that one
known to be innocent may be detained, in the absence of bail, as a material witness.”
Stein v. New York, 346 U.S. 156, 184, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953),
overruled on other grounds, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12
L.Ed.2d 908 (1964). The government’s authority to arrest and detain material
witnesses was “the long established rule of English Law, in effect when the United
States became a nation.” Bacon v. United States, 449 F.2d 933, 938-939 (9th
Cir.1971). In Bacon, the United States Court of Appeals for the Ninth Circuit
observed that material-witness statutes existed in every state. Id. at 939. See also
18 U.S.C. 3144 (federal material-witness statute).
{¶ 15} Ohio’s material-witness statutes are set forth in R.C. 2937.16
through 2937.18 and R.C. 2941.48. These statutes provide mechanisms by which
a trial court may require material witnesses to give sufficient surety to secure their
attendance at trial or, in some cases, order their detention until they testify.
{¶ 16} R.C. 2937.16, which governs when witnesses must enter into
recognizance, provides:
When an accused enters into a recognizance or is committed
in default thereof, the judge or magistrate shall require such
witnesses against the prisoner as he finds necessary, to enter into a
recognizance to appear and testify before the proper court at a proper
time, and not depart from such court without leave. If the judge or
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magistrate finds it necessary he may require such witnesses to give
sufficient surety to appear at such court.
{¶ 17} R.C. 2937.18, which governs a witness’s refusal to comply with a
recognizance order, provides:
If a witness ordered to give recognizance fails to comply
with such order, the judge or magistrate shall commit him to such
custody or open or close detention as may be appropriate under the
circumstances, until he complies with the order or is discharged.
Commitment of the witness may be to the custody of any suitable
person or public or private agency, or to an appropriate detention
facility other than a jail, or to a jail, but the witness shall not be
confined in association with prisoners charged with or convicted of
crime. The witness, in lieu of the fee ordinarily allowed witnesses,
shall be allowed twenty-five dollars for each day of custody or
detention under such order, and shall be allowed mileage as
provided for other witnesses, calculated on the distance from his
home to the place of giving testimony and return. All proceedings
in the case or cases in which the witness is held to appear shall be
given priority over other cases and had with all due speed.
{¶ 18} R.C. 2941.48, which addresses the recognizance of witnesses,
provides:
In any case pending in the court of common pleas, the court,
either before or after indictment, may require any witness designated
by the prosecuting attorney to enter into a recognizance, with or
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without surety, in such sum as the court thinks proper for his
appearance to testify in such cause. A witness failing or refusing to
comply with such order shall be committed to the county jail until
he gives his testimony in such case or is ordered discharged by the
court. If a witness is committed to jail upon order of court for want
of such recognizance, he shall be paid while so confined like fees as
are allowed witnesses by section 2335.08 of the Revised Code. The
trial of such case has precedence over other cases and the court shall
designate any early day for such trial.
{¶ 19} These statutes enable a court to ensure the presence of a material
witness at trial if the court has good reason to believe that the witness will not
appear. R.C. 2937.16 authorizes a court to order a witness to enter into
recognizance “as [the judge or magistrate] finds necessary.” R.C. 2937.16 further
authorizes the court to require such witnesses “to give sufficient surety to appear at
* * * court.”
{¶ 20} If a court orders a witness to give recognizance and that witness fails
to comply with the court’s order, then the court “shall commit” the witness “to such
custody or open or close detention as may be appropriate.” R.C. 2937.18.
{¶ 21} Similarly, R.C. 2941.48 provides that a court “may require any
witness designated by the prosecuting attorney to enter into a recognizance, with or
without surety.” If the witness fails or refuses to comply with the court’s order,
then the witness “shall be committed to the county jail” until the witness testifies
or the court orders the witness to be released. Id.
{¶ 22} It is clear that under R.C. 2937.16 and 2941.48, a court retains some
discretion for purposes of initially ordering a witness to enter into recognizance. It
is only after a court orders a witness to enter into recognizance and that witness
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does not comply with the court’s order, that the court is further authorized to issue
an arrest warrant for that witness. R.C. 2937.18; R.C. 2941.48.
{¶ 23} A court is similarly authorized to order the arrest of a witness who
fails to appear in court after the witness was personally served with a subpoena.
See R.C. 2317.21 (in such an instance, the court “may issue to the sheriff or a
constable of the county, a writ of attachment, commanding him to arrest and bring
the person named in the writ before such court or officer at the time and place the
writ fixes, to give his testimony and answer for the contempt”). And when a witness
is served with a subpoena by residential service and fails to appear, then the court
may order the witness “to show cause why such writ should not issue against him”
or her. Id.
{¶ 24} Thus, it appears that there are two ways in which a court may obtain
personal jurisdiction over witnesses: (1) by ordering them to enter into a
recognizance or (2) through service of a subpoena. Once either of those things
happen and the witness subsequently fails to appear, then the court may issue an
arrest warrant for that witness.
{¶ 25} In State ex rel. Dorsey v. Haines, a petitioner, who was “being held
as a material witness pursuant to the provisions of R.C. 2937.16 through 2937.18
and 2941.48 in the custody” of the county sheriff, filed a writ of habeas corpus. 63
Ohio App.3d 580, 581, 579 N.E.2d 541 (2d Dist.1991). The Second District Court
of Appeals granted the writ after determining that a Montgomery County Court of
Common Pleas judge had issued the warrant “without the most fundamental
rudiments of constitutional due process.” Id. The Second District explained that
“at a minimum, a warrant to detain a material witness must be supported by
probable cause, supported by oath or affirmation, to believe that the witness is
material and that the detention of the witness is necessary to procure her attendance
at trial.” Id. at 582.
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{¶ 26} Here, the Eighth District relied on Dorsey when it determined that
the state had failed to demonstrate probable cause that the warrants were necessary
to procure the witnesses’ appearance at trial. 2020-Ohio-3592 at ¶ 26. The court
of appeals explained that the state (through the detective) had talked to Ford only
once⸻and that conversation “occurred before the continuance and before residence
service of the trial subpoenas.” (Emphasis sic.) Id. at ¶ 29. The court further
pointed out that even after the state had been granted a continuance, it “still failed
to secure personal service of subpoenas on Miller and Ford or otherwise directly
contact the witnesses to sufficiently demonstrate that they would not show up for
trial without a warrant.” Id. at ¶ 31. The court of appeals concluded that “the state’s
failure to obtain personal service contributed to its failure to demonstrate probable
cause, by oath or affirmation, that detention was necessary to procure the witnesses’
attendance at trial.” Id. at ¶ 26. The court reasoned that “[t]hese requirements are
not mere procedural technicalities or formalities. Rather, they exist to ensure that
people are afforded ‘ “the most fundamental rudiments of constitutional due
process.” ’ ” Id. at ¶ 32, quoting Robinson v. Green, 7th Dist. Mahoning No. 16
MA 0134, 2016-Ohio-5688, ¶ 9, quoting Dorsey at 581.
{¶ 27} The state argues that the material-witness statutes require neither
personal service nor an affidavit. While this is true, individuals who may have
information regarding a crime still have constitutional rights. The Fourth
Amendment to the United States Constitution protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures,” and further provides that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” “Article I, Section 14
of the Ohio Constitution affords the same protection in felony cases,” State v.
Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 12, citing State v.
Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶ 10, fn. 1, and even
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more protection in certain misdemeanor cases, see State v. Brown, 99 Ohio St.3d
323, 2003-Ohio-3931, 792 N.E.2d 175, ¶ 22-25. Based on the language in the
United States and Ohio Constitutions, we now hold that material witnesses are
entitled to these basic, fundamental rights and therefore agree with the Eighth
District that the state’s request for a warrant to detain a material witness must be by
oath or affirmation and be supported by probable cause to believe that the witness
is material and that the warrant is necessary to procure the witness’s attendance at
trial. Federal courts have also held as much. See Simon v. New York, 893 F.3d 83,
93 (2d Cir.2018) (“a person detained as a material witness enjoys any Fourth
Amendment protection that is extended to criminal suspects. * * * The former is
suspected of refusing to share information about a crime, whereas the latter is
suspected of having committed one”), citing Schneyder v. Smith, 653 F.3d 313, 322
(3d Cir.2011).
{¶ 28} The state claims that the facts of this case are similar to the facts in
State v. Hollins, 8th Dist. Cuyahoga No. 103864, 2016-Ohio-5521, in which the
Eighth District Court of Appeals found that the trial court erred when it did not
grant the state’s motion for a material-witness warrant. Id. at ¶ 29. In Hollins,
however, the state provided a detailed affidavit explaining why the witness was
material and setting forth its efforts to procure her attendance at trial. Id. at ¶ 25.
Specifically, in a telephone conversation before the first trial date, the witness told
the prosecutor that she had received a subpoena and that she would appear at trial,
but she then hung up on the prosecutor after he began asking questions about the
incident. Id. at ¶ 3. The witness then refused to answer her phone when the
prosecutor tried to call her again on multiple occasions before the first and second
trial dates, and she did not respond to the prosecutor’s voicemail messages asking
that she call him. The prosecutor also obtained personal service on the witness
before the second trial date, but she still did not appear. Id. at ¶ 6, 8. The Eighth
District concluded that under those facts, “court intervention was necessary to
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procure [the witness’s] attendance at trial,” id. at ¶ 26, and “the trial court abused
its discretion in denying the state’s motion for a material witness warrant,” id. at
¶ 29.
{¶ 29} We agree with the Eighth District that Hollins is distinguishable
from the facts in the present case, 2020-Ohio-3592 at ¶ 27-32. The state’s motion
in Hollins was supported by a detailed affidavit. Further, in addition to the state’s
other efforts to contact the witness in Hollins, the state perfected personal service
on the witness before trial and the witness still failed to appear.
{¶ 30} In its merit brief to this court, the state argues that the prosecutor’s
statements to the trial court on the record on the day of trial “were never rebutted.”
The state further maintains that because a prosecutor is an officer of the court and
as such must speak truthfully to the court, the prosecutor’s statements were the
equivalent of a “virtual affidavit.” The state provides no authority for recognizing
an officer-of-the-court exception to the oath or affirmation requirement of the
Fourth Amendment. Moreover, the prosecutor’s statements to the court were
merely that—statements—not a “virtual affidavit.” The difference between a
statement and an oath is that an oath contains the additional element of being sworn.
See Youngstown Steel Door Co. v. Kosydar, 33 Ohio App.2d 277, 279, 294 N.E.2d
676 (8th Dist.1973). The state’s “virtual-affidavit” argument is unpersuasive. But
even assuming arguendo that the prosecutor’s statements could be considered the
equivalent of a “virtual affidavit” or an oath or affirmation, the state still did not
establish probable cause that Miller and Ford would not appear at trial.
{¶ 31} The state never personally served the witnesses⸻not for any of the
pretrial hearings or the initial trial date, and, most importantly, not for the July 9,
2019 trial. Instead, the state mailed letters to Miller and Ford and left subpoenas
for them at Ford’s residence. Crim.R. 17(D) states that “[s]ervice of a subpoena
upon a person named therein shall be made by delivering a copy thereof to such
person or by reading it to him in person or by leaving it at his usual place of
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residence.” “When a subpoena is left at a witness’ usual place of residence, or
business location, or place of employment, and the witness has actual knowledge
of the subpoena, service of summons has been completed.” State v. Juenger, 12th
Dist. Butler No. CA2003-02-049, 2004-Ohio-796, ¶ 32, citing State v. Castle, 92
Ohio App.3d 732, 734, 637 N.E.2d 80 (9th Dist.1994); see also Denovchek v.
Trumbull Cty. Bd. of Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988) (this
court held the same with respect to “actual knowledge” of a subpoena in civil cases
under Civ.R. 45). There is nothing in the record to establish that Ford had actual
knowledge of the subpoena. And although the state never confirmed where Miller
lived, it knew that he did not live with Ford.
{¶ 32} Moreover, at the July 9 hearing, the state focused its arguments on
the efforts that it had previously made to contact Miller and Ford⸻essentially, the
efforts it had included in its prior motions. But the trial court granted the state’s
motion to continue the trial after denying those motions. When the trial court asked
the prosecutor what the state had done to secure the presence of the witnesses for
Eatmon’s July 9 trial, the prosecutor explained that the state had mailed letters to
Miller and Ford and also left subpoenas for them at Ford’s residence. However,
this was not sufficient to establish probable cause to believe that the witnesses
would not appear at trial.
{¶ 33} Although the state asserts that it “did not just request material
witness warrants without any basis in fact,” the reality is that the state’s efforts
merely established that Miller and Ford were reluctant to cooperate. Reluctance to
cooperate does not amount to deliberate defiance of a lawfully served subpoena.
Simply put, the state failed to lawfully serve subpoenas on the witnesses or ensure
that they had actual knowledge of the subpoenas the state left at Ford’s residence.
The state’s efforts were therefore not sufficient to establish probable cause that
material-witness warrants were necessary.
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{¶ 34} Finally, we address the standard of review for this case. Although
the end of an opinion is generally not where we would discuss a standard of review,
due to the question presented in this case and our analysis of that question,
discussing the standard of review is more appropriate here. The Eighth District
applied an abuse-of-discretion standard of review, but it did so in the context of a
continuance. It stated, “A request for a continuance to issue a material witness
warrant is also reviewed for an abuse of discretion.” 2020-Ohio-3592 at ¶ 19, citing
State v. Metz, 2019-Ohio-4054, 146 N.E.3d 1190, ¶ 86 (8th Dist.). Thus, the Eighth
District did not set forth the appropriate standard of review because it framed the
issue in the context of a continuance. After reviewing the statutes at issue in this
case, it is clear that the standard of review depends on the question presented.
{¶ 35} When reviewing whether a trial court’s decision to issue a material-
witness warrant was proper, i.e., whether the court could order that a witness be
arrested and detained, abuse of discretion is not the proper standard of review.
Rather, the appropriate standard of review is for courts to conduct an independent
review of the record to determine whether the state established probable cause that
the witness is material and will not appear at trial to testify. But when the issue is
simply whether the trial court should have ordered a witness to enter into
recognizance in the first place, a matter over which the court has discretion, that
decision would be reviewed for an abuse of discretion.
Conclusion
{¶ 36} When the state requests that a court issue a material-witness warrant,
it must establish, by oath or affidavit, probable cause to believe that the witness is
material and that the warrant is necessary to procure the witness’s attendance at
trial. The state did not do so in this case. Therefore, the Eighth District Court of
Appeals correctly determined that the trial court did not err by denying the state’s
request to issue material-witness warrants.
Judgment affirmed.
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O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and
BRUNNER, JJ., concur.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and John
Kosko and Gregory Ochocki, Assistant Prosecuting Attorneys, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and John Martin,
Assistant Public Defender, for appellee.
_________________
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