State v. Kavlich12/12/1986
allenges the inclusion of two violence specifications to his indictment.
R.C. 2941.143 provides for the violence specification. It reads in pertinent part:
"Imposition of an indefinite term pursuant to division (B) * * * (7) of section 2929.11 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging the offense specifies * * * that, during the commission of the offense, the offender caused physical harm to any person * * *."
Appellant incorrectly speaks of the violence specification as an additional element of aggravated vehicular homicide, viz., surplusage, and asserts that the violence specifications should have been deleted. In State v. Jones (Apr. 3, 1986), Cuyahoga App. No. 50362, unreported, at 4, a case involving a conviction for aggravated vehicular homicide, this court ruled that the violence specification "is not an element of the offense but rather a factor which permits the imposition of an indefinite sentence." The trial court was therefore warranted in overruling appellant's motion to strike the violence specifications as surplusage.
Appellant's third assignment of error is overruled.
Judgment affirmed.
PARRINO, J., concurs.
MARCUS, C.J., concurs separately.
MARKUS, C.J., concurring. While I agree that we should affirm the defendant's conviction, I reach that conclusion for significantly different reasons. In my view, the trial judge did not decide that the statutory physician-patient privilege is inapplicable here. Further, we should not review such a pretrial advisory ruling even if the trial court had made that decision. Finally, I believe that this court should not follow the Sixth District cases by allowing judicial policy preferences to override a valid legislative enactment.
Defendant's counsel moved to suppress evidence about the blood sample which the defendant's physician obtained while treating the defendant's injuries. He premised that motion on two independent theories: (a) an alleged federal constitutional violation by extracting blood, and (b) a claimed state statutory privilege for physician-patient communications. If the former reason had merit, it would justify an order to suppress that evidence. If the latter reason had apparent merit,it could justify an advisory ruling in limine, until the prosecutor demonstrated admissibility during the trial.
The claimed privilege would not justify a pretrial suppression order. Cf. Columbus v. Sullivan (1982), 4 Ohio App.3d 7, 9-10, 4 OBR 27, 29-30, 446 N.E.2d 485, 488; State v. Bowen (Mar. 31, 1983), Cuyahoga App. No. 45113, unreported. The court could not finally determine whether the statutory privilege precludes this evidence until it knew the precise circumstances for its offer during the trial. Cf. State v. Maurer (1984), 15 Ohio St.3d 239, 259, 15 OBR 379, 395-396, 473 N.E.2d 768, 787; State v. White (1982), 6 Ohio App.3d 1, 4-5, 6 OBR 23, 28, 451 N.E.2d 533, 538; Hammond v. Moon (1982) 8 Ohio App.3d 66, 70, 8 OBR 97, 102, 455 N.E.2d 1301, 1306.
The trial court did not expressly rule whether the statutory privilege would apply here. Instead, the court denied the motion to suppress, saying:
"The court is prepared to rule on the question of blood alcohol. I find that it's perfectly proper for the doctor to draw a blood sample from Mr. Kavlich [the defendant]. I do not find a constitutional violation.
"There is a substantial difference between civil law and criminal law and simply stated, the public policy demands this answer: public policy as it relates to criminal
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