Pretrial hearing for former sheriff's deputy held; judge denies motion to dismiss reckless homicide case

A pretrial hearing in the reckless homicide case against former Highland County deputy sheriff Jonathan Dustin Malone was held Tuesday afternoon, hours after Highland County Common Pleas Court Judge Rocky Coss filed an entry denying a motion to dismiss the case.

As previously reported, Malone, appearing with defense attorney Joshua Engel, pleaded not guilty to bill of information charging him with the third-degree felony March 23. The bill of information, filed by special prosecutor Anthony Pierson, Assistant Ohio Attorney General, alleges that on or about July 17 and in Highland County, Malone “did recklessly cause the death of Richard Poulin, in violation of ORC 2903.041.”

The pretrial hearing Tuesday was conducted over Zoom in Highland County Common Pleas Court Tuesday afternoon.

As brought out during the hearing, Pierson will be withdrawing as prosecutor due to taking another job with the Franklin County Prosecutor’s Office. Chris Kinsler, Assistant Section Chief of the Ohio Attorney General’s Office Special Prosecutions Section, is expected to take over the case, Pierson said.

It was also noted that Rob Merkle — whom Engel said would be “co-counsel for the defendant” — was appearing for the pretrial. Coss told Engel to file paperwork for Merkle’s appearance “immediately,” as he had not yet done so.

Discussed during the hearing were various filing deadlines as well as motions that have already been filed.

Since Malone’s initial appearance in court, Engel had filed a motion to dismiss and a request for an evidentiary hearing.

In the entry filed April 11, Engel argued that Highland County Coroner Dr. Jeff Beery “concluded the manner of death was suicide” and indicated as such in the death certificate and a memorandum to the Bureau of Criminal Investigation.

According to Engel, the reasoning behind the coroner’s ruling was due to the victim’s “level of intoxication” and a statement purportedly made by the victim’s ex-wife. Beery claims that the victim’s ex-wife told her “he wanted to have a final confrontation with law enforcement,” Engel said, and Beery “then concluded, ‘I am ruling the manner of death suicide not accident and not homicide.”

In his request to dismiss the case, Engel “asks the Court to look beyond the face of the complaints to consider evidence from the coroner that the death in this case was suicide and no criminal act occurred.”

“Based on the Coroner’s report, the state will be unable to satisfy its burden of proving that [Malone] … ‘recklessly cause[d] the death of another,’” Engel wrote. “The causation element is missing.

“The act of the alleged victim to instigate a fatal confrontation with police would prevent the state from proving, beyond a reasonable doubt, that any actions by [Malone] — no matter how reckless — were the proximate cause of the alleged victim’s death.”

Engel continues to argue that a trial for the case “would be [a] waste of resources and inconsistent with the ends of justice.”

Engel further filed a request for an evidentiary hearing as part of the “process for dismissal.”

In response, the Ohio Attorney General’s Office filed a memorandum in opposition of the defense’s motion, arguing that the defense “is requesting this court take an action that is not permissible under the criminal rules,” that the basis for the defense’s motion is “inadmissible hearsay” and that Beery’s “cause of death finding is not relevant” to the case.

“The defendant is seeking what would equate to summary judgment in a criminal case,” Pierson wrote. “This is something that is specifically prohibited.”

Pierson goes on to write that such a dismissal has historically “been reversed as improper” in other Ohio courts.

“Ohio courts have made clear, there is no such thing in criminal cases,” Pierson wrote.

In response to the defense’s assertion that “the state will not be able to prove” causation, Pierson wrote, “The State wholeheartedly believes it can prove every single element of the bill of information beyond a reasonable doubt.”

Pierson explained that the “statements for which [the] motion to dismiss rely upon are inadmissible hearsay.” According to Pierson, Engel’s “sole argument is based on a statement allegedly made by the victim’s ex-wife.”

“The single most critical piece of information that Dr. Beery used to justify his designation of suicide by cop is a conversation between his investigator (Dr. McKown) and the ex-wife of Mr. Poulin,” Pierson wrote. “It should be noted that no time has ever been attributed to this statement as to when the final confrontation [between the victim and law enforcement] would occur nor when Mr. Poulin allegedly made this statement to his ex-wife.

“It should also be noted that Mr. Poulin’s ex-wife vehemently denies making this statement to the Coroner’s investigator.”

According to Pierson, a BCI special agent conducted a followup interview with the victim’s ex-wife, where she “was adamant that she did not make any such comment” and stated that she “had never known Poulin to be suicidal.”

Meanwhile, Pierson argued that there is no recording nor affidavit to support the purported claim by the victim’s ex-wife. “Said another way, there is absolutely nothing to support the claim that Mr. Poulin’s ex-wife stated that Mr. Poulin told her that he ‘wanted to have a final confrontation with law enforcement,’” Pierson wrote.

The prosecutor described the alleged statement as “blanketed with multiple layers of hearsay” and said that the defense “has not established a single hearsay exception to allow this court to consider this out-of-court statement.”

Next, Pierson argued the coroner’s cause of death finding is “an opinion,” not “a legal determination.”

“The determination as to what led the defendant to die should be determined by a jury,” Pierson wrote. “Dr. Beery is not a fact witness to this case. Dr. Beery did not even perform the autopsy of the victim. Thus, other than providing information that someone else told him through inadmissible hearsay, his contributions to this case are minuscule at best.”

Pierson also pointed out that Beery “does not dispute the victim died as a result of a gunshot to the neck.”

“The defendant would have this court place the findings of the Coroner over the role of the jury,” Pierson wrote. “This would be unprecedented and against the fabric of our criminal justice system.”

On Tuesday morning, Engel filed a response to Pierson’s motion. In it, he argued that the state did not provide “any evidence suggesting that the manner of death determined by the coroner is incorrect.”

“This is not merely a case where there are competing versions of the facts which require a jury determination,” Engel wrote. “Rather, this is a situation [where] there is a presumption that the manner of death was not a homicide. Under Ohio law, the coroner’s expert opinion on the manner of death is presumptively conclusive.”

Engel added that “Ohio courts have noted that ‘it is clearly within the expertise of the coroner to give an opinion on whether a death is a homicide’” and that a coroner “is explicitly permitted to rely on statements from family members in preparing his report and conclusion” under the Ohio Revised Code.

“The State’s objection to the conclusions of the Coroner based on hearsay are not well taken,” Engel wrote. “As an initial matter, the statement by the the deceased that he wanted to die in a confrontation with police would be admissible under Rule 803(3) as a statement of his declarant’s then existing statute of mind. Moreover, even if hearsay, the Coroner, as an expert witness, is permitted to rely on this type of hearsay.”

Engel also argued that Pierson’s report on the interview between a BCI agent and the victim’s ex-wife is “completely inadmissible” and should be “disregarded” because it was “not provided in discovery.”

During the hearing Tuesday afternoon, Coss said that he had reviewed all of the attorneys’ arguments and filed his decision at around 10:30 a.m. Tuesday.

Coss ruled that the evidentiary hearing is “not necessary or appropriate to determine the motion” because “the entire basis for the motion is the finding of the Coroner in the death certificate that the manner of death of the decedent was suicide.”

“It is not necessary that the Court conduct a mini-trial to hear what evidence the State intends to present,” Coss wrote.

Coss wrote about the “legal significance of the death certificate.” Under the law, the judge said, “the cause of death and the manner and mode in which the death occurred as determined by the county coroner … shall be considered both the legally accepted cause of death and the manner and mode in which such death occurred unless there is a hearing and the Court of Common Pleas directs the coroner to change the decision on either or both. A coroner may conduct an inquest pursuant to R.C. 313.17 and subpoena witnesses to testify under oath and reduce the testimony to writing.”

In this case, Coss said it appears that an investigation took place “without a formal inquest.”

“A county coroner is not charged with determining whether a death is a result of a criminal act by another or whether the use of deadly force was appropriate,” Coss wrote. “The coroner is not a peace officer, prosecuting attorney, grand jury, petit jury or judge. Therefore, Ohio law provides that the findings of a coroner in a death certificate are not binding in either a criminal or civil case. Otherwise, that law would clearly deprive both parties to that proceeding of due process of law.”

Coss added that “a death certificate is not considered to be a conclusive determination of any issue in a criminal case,” and that the prosecution is responsible for “[proving] the case of death and that the death was the result of a criminal act.”

“In fact, in the opinion of this judge, the law does not require that a death certificate be admitted as evidence since its findings must be based on the evidence presented in the case as to the cause of death as well as the criminal act which must be decided by a jury or a judge in a bench trial,” Coss wrote. “If there is a factual agreement as to the cause of death and the manner and mode of death, both parties are entitled to introduce evidence of their positions in the criminal case.”

Coss explained that if “the findings” in a death certificate “are based upon inadmissible evidence … such findings can be excluded.”

“The memorandum of the County Coroner … in which he explains his rationale for ruling the case as a suicide contains rampant speculation, conjecture, assumption, supposition and hearsay,” Coss wrote, adding “a few examples” in Beery’s writing.

“These are not expert opinions but gross speculation, conjuncture, assumption or supposition that are not based upon any scientific standards,” the judge wrote.

Coss also stated that the coroner’s memorandum includes “various opinions that are neither medical nor scientific” and “personal opinion as well as a misstatement of the law regarding the presumption of innocence.”

“The Coroner is not charged with the responsibility under the law to determine whether the use of deadly force was legally appropriate, which is the gist of his memorandum,” Coss said. “He is not charged with making medical evaluations of the person that allegedly caused the death and determining if he/she is being truthful.”

Coss explained the five causes for “manner of death” to be listed on a death certificate — “natural, accidental, homicide, suicide, and undetermined or could not be determined.” Based upon the coroner’s argument in the memorandum that “the decedent caused the defendant to intentionally shoot him,” Coss said guidance from the National Association of Medical Examiners “recommends this type of event be classified as homicide, not suicide.”

Coss concluded his decision by stating that the findings in the death certificate “are not binding on the parties in a court proceeding” and that “it would not be in the interests of justice for this Court to dismiss this case without allowing the State the opportunity to present its evidence at a trial.”

In addition to the motion to dismiss the case, Engel has also filed a motion to compel production of Brady material. (According to Cornell Law School, “Brady material is derived from the United States Supreme Court case Brady v. Maryland in 1963. It established a rule that the prosecution has a constitutional duty of due process to disclose material evidence favorable to a defendant.”)

In that motion, Engel said he was seeking “evidence related to the investigation conducted by the Coroner into the manner of death of the alleged victim and evidence related to accidental discharges” by the model of handgun possessed by Malone. He cited examples of “some accidental discharges by law enforcement in Ohio” from other agencies.

“My office is preparing a response to the first part of that motion to compel,” Pierson told the judge. “I spoke with my BCI agent last week and told him to get me everything related to the coroner, including all communications, text messages or emails, and he has provided me with those.

“With respect to part two of that, Your Honor, it’s requesting information regarding misfires of the type of weapon in question by the defendant. The state does not have that information in its possession, and I would object to being ordered to having to track that information down and produce it.”

Engel disagreed, saying that the state should have access to information from the Ohio State Highway Patrol and other agencies and that “it shouldn’t be that much of a burden for the state to find out.” He also argued that BCI may have conducted investigations in some of these accidental misfires, “so I think it’s not sufficient for them to say, ‘Oh, we don’t know about it,’ when reasonable inquiry can be made to find this information.”

Pierson responded that the OSHP is “not under the jurisdiction” of the Ohio Attorney General’s Office and that they could only access such information via subpoena or public records request, “which is certainly within the purview of Mr. Engel to do.”

Coss asked if the Ohio Attorney General’s Office or BCI was involved in any investigations regarding the examples of accidental misfire cited by Engel. Pierson said “there may be some civil litigation that I am not aware of,” but there were no criminal investigations to his knowledge.

“The defense is not entitled to have the state become its investigator,” Coss said. “That’s not what Brady means.

“That doesn't make them responsible for going out and looking for it. I see, Mr. Engel, you’ve actually subpoenaed for the records yourself from [one police department], and that’s exactly what I would expect.”

Coss added that “just because it's the state of Ohio doesn't mean that every law enforcement agency and every state agency in the state of Ohio becomes under the jurisdiction of this court or prosecutor’s office.” However, he advised Pierson to determine if BCI has any documents “in their possession” as the “investigating agency” and “report back.”

After a request from Engel, Coss agreed to extend the deadline for expert disclosure, for both the state and defense, to June 26.

In other discussion, Coss said he would agree to a motion allowing Malone, who is under house arrest, to attend an out-of-state family vacation.

A final pretrial in the case is scheduled for May 31 at 2 p.m.