Appeals court hears 2 Valley cases

Appeals court hears 2 Valley cases

By PETER H. MILLIKEN

VINDICATOR STAFF WRITER

YOUNGSTOWN — The appeals lawyer for a man convicted of aggravated murder argued the trial judge erred by barring the defendant’s trial lawyer from cross- examining a prosecution witness about that witness’s failure of a lie-detector test.

Atty. John P. Laczko made that argument Wednesday before the 7th District Court of Appeals on behalf of Benjamin Beshara, who a jury convicted for the kidnapping, aggravated robbery and aggravated murder of Beshara’s neighbor, Marilyn Guthrie, 61, of Niles.

Excluding inquiry about the polygraph curtails “a defendant’s right to cross-examine witnesses that are testifying against him,” Laczko told the three-judge appellate panel. “That’s one of the fundamental constitutional rights that a defendant enjoys,” he added.

Ralph Rivera, an assistant county prosecutor, said, however, the polygraph, which had been administered to a co-defendant, was inadmissible under Ohio law because the prosecution and defense in the Beshara trial did not agree in advance to its admissibility.

Guthrie was kidnapped from her apartment complex July 10, 2005, and thrown into the trunk of her car before being taken from the car and run over by it on Parkcliff Avenue on the city’s South Side.

Judge R. Scott Krichbaum of Mahoning County Common Pleas Court sentenced Beshara, 35, to life in prison without parole.

Laczko also said Judge Krichbaum erred by not giving the jurors the forms concerning a possible complicity verdict on each charge after he instructed them concerning complicity.

But Rivera said the prosecution maintained throughout the trial that Beshara was the principal offender and that Beshara’s three accomplices could not have helped him commit the crimes had Beshara not admitted them to the gated complex.

The available sentencing ranges for being the principal offender and for being complicit were the same, appellate Judge Mary DeGenaro observed. “So where’s the prejudice?” she asked Laczko.

“The prejudice is the way that the jury was instructed, and what they were given didn’t give them any alternative. It was kind of an all-or-nothing deal,” Laczko replied.

The appeals court also heard arguments in the case of Dr. Gregory S. Dew, 48, a former Boardman chiropractor, who was convicted of four counts of rape and two counts of gross sexual imposition. Judge Krichbaum sentenced him to 43 years in prison.

Dew was convicted by a jury of sex crimes committed between 1990 and 1992 against two of his female gymnastics students, who were then between age 15 and 17, before he became a chiropractor.

He also was convicted of sex crimes against two adult female patients in his chiropractic practice between 2005 and 2007.

Dew’s lawyer, Richard G. Lillie of Cleveland, said the prosecution improperly used as evidence in the trial an illegal, surreptitious and warrantless wiretap by a Boardman detective of a telephone conversation between Dew, who was in Pennsylvania, and an accuser, who was in California.

Lillie said he believes Dew would not have been indicted if the wiretap didn’t exist.

The wiretap was illegal under both Pennsylvania and California law, which require a warrant, he added.

But James MacDonald, an assistant county prosecutor, said that, because the detective made the recording in Ohio, federal and Ohio law apply in this case. Ohio and federal law allow a warrantless wiretap if one party to the conversation consents and if a law enforcement officer is listening.

MacDonald also said there was no proof that Dew, who was using a cellular phone, was in Pennsylvania.

Lillie also said the prosecution failed to show evidence of force, or threat, with regard to any of the offenses charged. “There was no testimony that they were forced or threatened,” Lillie said, referring to the accusers.

Appellate Judge Joseph J. Vukovich asked MacDonald to explain how the element of force or threat applies to the chiropractic patients.

MacDonald replied that Dew used “subtle psychological force coupled with the trust that these patients had in their physician.”

“The jury certainly found that there was sufficient evidence of force,” MacDonald said.

The appeals court will rule on the Beshara and Dew cases at a later date.

milliken@vindy.com