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Top court hears appeal arguments



Published: Thu, November 29, 2007 @ 2:00 a.m.

The defendant was convicted of aggravated burglary in the 2004 beating of his

ex-girlfriend.

By MICHELE C. HLADIK

VINDICATOR CORRESPONDENT

COLUMBUS — Faulty jury instructions are not a reason to award a Columbiana County man a new assault trial, a county assistant prosecutor told the Ohio Supreme Court.

The high court heard arguments to determine if it should uphold the 7th District Court of Appeals’ decision to vacate Timothy Wamsley’s conviction and order a new trial.

Wamsley was convicted of aggravated burglary in the 2004 beating of his former girlfriend at her apartment.

The Ohio Supreme Court is considering its decision.

According to Tammie Jones, assistant county prosecutor, the appellate court was wrong in its decision and “skewed” on the type of errors committed and the way they should be treated.

“The problem is you are encouraging litigants to not raise objections at the time of trial and to sit back and remain silent — and then come back on the review process and obtain an automatic reversal, which runs afoul of our entire premise of our judicial proceedings,” Jones argued this week.

“We want cases to be tried fully, fairly and accurately the first time around.”

Chief Justice Thomas Moyer questioned Jones on the importance of the jury’s receiving the right instructions on this issue.

Jones agreed it was important but said this issue should not overturn a court’s decision and remand a case for retrial.

“Those errors in the jury instructions were not objected to at trial,” Jones said.

Justice Maureen O’Connor questioned Jones on the responsibility of the prosecutors to make sure the instructions are correct.

“To my way of thinking, one of the jobs of the prosecutor is to make sure that the t’s are crossed and the i’s are dotted and the judge is doing the job the judge should be doing,” Justice O’Connor said.

Jones agreed but added the prosecutors did not believe at the time the instructions were lacking.

Katherine Szudy, assistant public defender, represented Wamsley before the high court and argued those errors changed the outcome of the case.

“Because the trial court’s error prejudiced the outcome of the trial, a miscarriage of justice would occur if this case was not reversed and remanded for a new trial,” she said.

Wamsley’s knowledge of whether he was trespassing at the time of the crime should have been considered by the jury, according to Szudy.

Justice O’Connor questioned Szudy on why she thought the outcome would have been different.

“You don’t think busting the door down with his shoulder and the occupant screaming was something the jury could take into consideration and find he knowingly entered an occupied structure?” Justice O’Connor asked.

Szudy said the jury could consider that information but maintained the outcome would still have been different.

She said the jury had also heard evidence that Wamsley had once lived in the apartment with the girlfriend and that a key was continually left out for him to use until earlier the day of the incident, when Stoddard had taken the key away.


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