The concluding part of the Court papers. Some convictions were reversed but the majority was affirmed. The Court papers prove that Bill Scott was a heroin trafficker and part of an organized crime conspiracy.
That he should now be running an Internet casino by the name of Intercasino.com on behalf of Cryptologic shows how rotten this company really is.
Now you can understand why Andrew and Mark Rivkin and Jenny and Harvey Solursh resigned so abruptly, they will probably try to leave the country before they get arrested because the whole Cryptologic operation is organized crime.
Below are extracts from the court records, 100% original, not edited.
SECTION G - CASE 8950
(ANDREW MEDDLEY)
ASSIGNMENT OF ERROR ONE
"The trial court prejudicially erred in overruling defendant's motion for a bill of particulars."
State v. Cook, Wayne No. 1548 (9th Dist. Ct. App., August 23, 1978) holds:
"*** the defendant has a right to a bill of particulars only when the indictment fails to adequately specify the nature of the offense charged. To require the prosecution to furnish the bill when the indictment does this is to require unnecessary procedural repetition, for the bill would only echo the indictment."
Andrew Meddley [*84] should have been afforded a bill of particulars. We do not understand why the state would voluntarily give a bill to a co-defendant, who is named in the same counts as Meddley, but oppose Meddley's request.
However, the overruling of Meddley's motion is not prejudicial error. First, Meddley was unable to show that he was not provided with discovery. Second, Meddley was afforded access to state pre-trial exhibit 1. This exhibit consists of 36 large cardboard sheets detailing in chronological order, many of the incidents which, in part, comprised the state's case at trial. Although the primary focus of this exhibit is on Daniel Burch and slight mention is made of Meddley, it affords a good look at the state's case.
ASSIGNMENTS OF ERROR TWO and SIX
"2. The trial court erred in overruling defendant's motion for a judgment of acquittal at the close of the state's case as to counts one and six.
"6. The trial court prejudicially erred in overruling defendant's motion for a judgment of acquittal at the close of defendant's case as to counts one and six."
We consider these assignments of error only in reference to count one. Looking solely at the year 1974, the jury could [*85] find that, at least Andrew Meddley, Rose Love, Daniel Burch, James Williams, Carol Brantley, Thelma Meddley, Alfred Oaks and David Burch were part of a criminal syndicate constituted to traffic in heroin. Meddley played the role of a retailer in the business. Evidence concerning the time prior to January 1, 1974, which helps to link together several of the syndicate's members, coupled with the evidence of their criminal activities during 1974, shows the existence of the syndicate and Meddley's intent to maintain it by selling heroin from 899 Baird Street. See, United States v. Campanale, 518 F. 2d 352, 369 (9th Cir., 1974); United States v. Crockett, 514 F. 2d 64, 72 (5th Cir., 1975); United States v. Ferrara, 458 F. 2d 878 (2d Cir., 1972).
ASSIGNMENT OF ERROR THREE
"The trial court erred in overruling defendant's motion to dismiss count one on the basis of cruel and unusual punishment."
Andrew Meddley says the sentencing provisions of R.C. 2923.04 constitute cruel and unusual punishment when applied to a "mere participant" such as, apparently, himself. Meddley cites no authority persuading us to agree with his assertion and we reject it.
ASSIGNMENT OF ERROR SEVEN
"The [*86] verdict is against the manifest weight of the evidence as to all counts." The conviction on count one is not against the manifest weight of the evidence.
The only real question concerning the conviction on count five is of Meddley's participation in the conspiracy to possess narcotic drugs. The evidence consists of: (1) Alma Jones' testimony that, after her return from Okinawa in September of 1972, she sold heroin for Daniel Burch from 406 Bishop Street; that Richard Powers, Thelma Meddley and Andrew Meddley also sold heroin for Burch; that Andrew Meddley frequently came over to 406 Bishop Street looking for Burch; and, that there Andrew Meddley occasionally picked up heroin from Burch; (2) the testimony of Jones that Daniel Burch told her he made one trip to Fayetteville with Andrew Meddley; (3) state exhibit 17-L, from which it can be inferred that Carol Brantley purchased heroin from Andrew Meddley, Richard Powers and Thelma Meddley sometime between November of 1972 and early August of 1973. (See, the discussion under the next assignment of error). This evidence is sufficient to show Andrew Meddley as a conspirator. State v. Eley, supra; State v. Vorys, supra; State v. Pruett,[*87]28 Ohio App. 2d 29, 34 (1971).
ASSIGNMENT OF ERROR EIGHT
"The court prejudicially erred in overruling appellant's objection to the admission into evidence of state exhibit 17-L."
State exhibit 17-L is a letter, dated December 13, 1974, and postmarked one day later, identified by Carol Brantley, as one she wrote to Daniel Burch while she was in the reformatory at Marysville. It contains the following statement:
"*** I don't think you have to worry about Rose saying anything detrimental about you to any authorities. If she's thinking about it, she'll tell me and I'll do everything possible to change her mind. Richard, Andy and Thelma, has sold me 'stuff' and if any of them try to do anything to you - I can also give up some information. * * *."
There is evidence from which it can reasonably be inferred that the term "stuff" in the passage refers to heroin, and that "Rose" refers to Rose Love. There is also Brantley's testimony that Richard Powers and Andrew Meddley are Rose Love's uncles, and that Thelma Meddley is Love's aunt. The "Andy" in the passage can, therefore, be seen as referring to Andrew Meddley, and the passage viewed as an offer or statement [*88] of Brantley's willingness to pressure Love to not expose Daniel Burch.
By comparing the dates contained in the counts in the indictment with Brantley's testimony concerning the times she was not incarcerated, it can reasonably be inferred that the passage refers to a purchase or purchases of heroin from Meddley by Brantley during the period from November of 1972 to early August of 1973. The statement, therefore, bears upon count five.
The evidence showed the existence of the conspiracy by November of 1972 and its continuing nature at the time the letter was written. The passage is reasonably viewed as an effort to conceal the criminal enterprise. See, State v. Shelton, 51 Ohio St. 2d 68 (1977), second paragraph of the syllabus; Toneff v. State, 23 Ohio App. 421 (1926), second paragraph of the syllabus, and is, therefore, made in furtherance of the conspiracy. The letter is the best evidence of its contents. Vairin v. The Canal Ins. Co., 10 Ohio 224, 226 (1840).
ASSIGNMENT OF ERROR NINE
"The trial court prejudicially erred in overruling appellant's objections to and motion to strike the testimony of David Kish and allowing state's exhibit 174 in evidence over the objection [*89] of appellant."
David Kish, a B.C.I. identification technician, testified concerning the examination of the substance purchased October 8, 1974, by William Campbell at 899 Baird Street. Campbell was co-operating with the police in the "controlled buy." Andrew Meddley, Richard Powers, and Cathy Gary resided at 899 Baird Street at that time.
State exhibit 174 is a B.C.I. evidence submission sheet indicating that the substance purchased on October 8, 1974, was submitted to the B.C.I. on December 16, 1974. Kish, using the case file kept by the B.C.I., testified that heroin was found in the substance.
Meddley argues that the state failed to establish what happened to the substance after it was submitted to the B.C.I. and before Kish received it. We hold a sufficient chain of custody was established. State v. Moore, 47 Ohio App. 2d 181 (1973), first paragraph of the syllabus. Kish testified that he and others returned the substance to Detective Van Pelt on December 26. Van Pelt testified that he took the item to the B.C.I. on December 16 and later picked up the item from the B.C.I. State exhibit 174 was properly admitted as its contents were testified to by Van Pelt and Kish. [*90]
ASSIGNMENT OF ERROR TEN
"The court prejudicially erred in overruling appellant's objections to the prosecutor's closing argument." Andrew Meddley complains about the following portion of closing argument:
"***
"Andy Meddley. Two defenses for Andy Meddley in this case, I think, ladies and gentlemen. The first defense is what the evidence from the witness stand showed, and I can summarize Andy Meddley's defense on that in five seconds (approximately a five-second pause).
"Now, there's another defense for Andy Meddley. That's what Mr. Lenehan says the evidence shows. That's what he says the evidence shows. His attorney says everyone's lied about Andy. Everyone's lied about Andy. * * *."
We find that this argument constitutes a comment on Andrew Meddley's failure to testify. State v. Cooper, supra, at 173. There was, however, no timely objection and the comment did not deprive Meddley of a fair trial. State v. Wade, supra; State v. DeNicola, supra; State v. Cloud, supra.
ASSIGNMENT OF ERROR ELEVEN
"The court erred in overruling defendant's motion to dismiss counts five and six of the indictment for the reason that they did not set forth specific [*91] substantial overt acts as required by Section 2923.01 of the Ohio Revised Code."
Effective January 1, 1974, R.C. 2923.01(B) provides:
"(B) No person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by him or a person with whom he conspired, subsequent to the accused's entrance into the conspiracy. * * *."
R.C. 2923.01(B) is incorporated by reference in former R.C. 3719.20(H) by R.C. 2923.01(K)(2).
Amended counts five and six each contain the following allegation:
"*** that a substantial overt act in furtherance of the said conspiracy was done by the said defendants or a person with whom they conspired, subsequent to the said defendant's entrance into the conspiracy, * * *."
The state says these allegations comply with Crim. R. 7(B). We agree.
SUMMARY
Jerome Powell's conviction under count one is reversed and final judgment entered in his behalf. Powell's conviction under count five is affirmed.
James Williams' convictions under counts four, six, seven and sixteen are reversed and final judgment entered in his behalf. Williams' convictions under counts one, five and fifteen [*92] are affirmed.
Daniel Burch's convictions under counts four, six and seven are reversed and final judgment is entered in his behalf. Daniel Burch's convictions under counts one, five, twelve, fourteen, fifteen and sixteen are affirmed.
Rare Elements, Inc.'s conviction under count two is reversed and final judgment is entered in its behalf. Rare Elements, Inc.'s conviction under count one is affirmed.
David Burch's convictions under counts four, five, six and seven are reversed and final judgment is entered in his behalf. David Burch's conviction under counts one and twelve are affirmed.
Andrew Meddley's conviction under count six is reversed and final judgment is entered in his behalf. Meddley's convictions under counts one and five are affirmed.
Cases 8878, 8883, 8890 and 8950 are remanded for further proceedings consistent with this opinion.
[*93]
The court finds that there were reasonable grounds for these appeals.
We order that a special mandate, directing the Court of Common Pleas to carry these judgments into execution, shall issue out of this court in each case. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment in each case, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run, in each case. App. R. 22(E).
Costs taxed to the parties equally.
Exceptions.
End of Court document.
