The Akron Legal News

Login | March 29, 2024

Woman prejudiced by hearsay evidence

ANNIE YAMSON
Special to the Legal News

Published: July 28, 2014

The 11th District Court of Appeals recently ordered a new trial for a woman convicted of aggravated murder and aggravated burglary by the Lake County Court of Common Pleas.

The majority of a divided three-judge appellate panel ruled that Danna Weimer was prejudiced by the admission of hearsay evidence and it also decided to vacate her conviction for engaging in a pattern of corrupt activity.

The dissenting opinion was authored by Judge Diane Grendell, who held that, “(Weimer) was convicted of engaging in a pattern of corrupt activity based on her ongoing and dangerous course of criminal conduct with her son, Zachary Weimer, which included theft, the sale of stolen goods, the use of such money to purchase drugs and the murder of the victim in this case.”

She also held that the admission of a jailhouse informant’s testimony amounted to harmless error and she disagreed with the majority’s decision to grant Weimer a new trial in light of the overwhelming evidence indicating her complicity in the murder of Eleanor Robertson.

Case summary states that, in the early morning hours on June 13, 2012, two neighbors noticed unusual activity at Robertson’s house. Robertson was 77 years old and lived alone in her house in Madison Township.

The neighbors tried checking on Robertson but received no answer when they knocked on her door, so they called her son, Scott.

Scott arrived at his mother’s house around 7:15 p.m. and found the home in disarray. Numerous items were scattered all over the floor, candles were burning and the front door was barricaded from the inside. There was a strong smell of cleaning supplies.

Scott called police, who determined that a robbery had taken place and issued a Silver Alert to notify the community that Robertson was missing.

Robertson’s body was ultimately discovered in her bedroom, hidden under her mattress and a pile of clothing.

An autopsy revealed that she had suffered blunt and sharp force trauma injuries to her head, trunk, arms, legs, abdomen, back, neck and shoulders. Robertson had been stabbed 94 times and had sustained charring and alteration by “some type of chemical.”

Weimer and her son were arrested after an officer on general patrol duty in a high-crime area approached Weimer in her vehicle, which was parked by Gold Werks, a local pawn shop.

Weimer was leaning over into the passenger seat, touching a magnet to several pieces of jewelry. She told the officer that the jewelry belonged to her son, who was inside the pawn shop.

Before Zachary exited the pawn shop, the officer made note of a syringe and a digital scale that was visible in Weimer’s purse.

Zachary lied about his name and maintained that the jewelry belonged to his mother.

Eventually, police learned of the Silver Alert for a missing elderly person and found that the jewelry box seized from Weimer’s car following her arrest was inscribed with “E. Robertson.”

Further investigation revealed that Weimer and Zachary were both drug addicts who would often sell items at local pawn shops to support their habits. Weimer worked as a cleaning lady in exchange for drugs and money and was fired from several positions for theft.

It was discovered that Weimer had been Robertson’s neighbor for many years before she moved to a different home in Ashtabula County with her boyfriend, who installed a video surveillance system on the property.

During trial, the state presented testimony from 37 witnesses, many of whom testified that Weimer and Zachary were attempting to get drugs and money the night before Robertson’s body was discovered.

Cell phone records and video surveillance from Weimer’s Ashtabula County home were admitted at trial as state exhibits, revealing Weimer’s movements and contact with Zachary.

At 8:30 p.m., Weimer’s cell phone hit off a tower near Robertson’s home. The state’s theory was that she had dropped her son off in the area.

Weimer returned to her own home alone at 9:46 p.m. but was frequently in contact with Zachary throughout the rest of the night.

At 4:44 a.m., video surveillance showed Zachary arriving at Weimer’s home in Robertson’s van. He unloaded Robertson’s belongings and then went to purchase drugs.

Later that morning, Weimer helped Zachary dispose of Robertson’s van. They put some of the stolen good in a safe and took the jewelry to the pawn shop where they were apprehended.

After their arrest, Robertson’s family members identified more than 50 pieces of Robertson’s jewelry and other household items which were found in Weimer’s vehicle and in the safe recovered from her home.

Robertson’s children also testified that their mother always kept a basket of Nutrigrain bars on her kitchen counter. Wrappers from Nutrigrain bars with the same lot number as those missing from Robertson’s home were found on Weimer’s bed and in garbage cans in her house.

The state also presented the testimony of Richard Gould, a Lake County jail inmate.

Gould stated that Zachary told him that he and his “buddy” went to an elderly woman’s home, knocked on the door and “bum-rushed” her when she answered. Zachary stabbed the woman “until he got tired” and then moved her body to the bed, cleaned the house with bleach and then loaded the woman’s property into her van.

Gould stated that Zachary never revealed the identity of his “buddy” but letters between Weimer and her son admitted into evidence revealed that Weimer often called Zachary her “buddy” and her “bear cub forever.”

The jury eventually found Weimer guilty of the 17 counts she was charged with in her indictment and the trial court imposed an aggregate term of 44 years to life in prison.

Zachary was convicted in a separate case and sentence to life in prison.

Upon appeal, Weimer challenged only her aggravated murder, aggravated burglary and corrupt activity convictions. Specifically, she contended that Gould’s statements were hearsay and should not have been admissible in court.

“Here, statements to Gould were admitted into evidence presumably under the theory that they were statements by a co-conspirator made in furtherance of the conspiracy, which are not hearsay statements,” wrote Judge Colleen O’Toole on behalf of the court of appeals’ majority.

Weimer contended that Zachary’s statements were not made “in furtherance of a conspiracy” or in an effort to conceal his crime, therefore, they were not admissible as part of the exception to the rules of evidence barring hearsay.

The appellate panel agreed, holding that admission of Gould’s evidence violated Weimer’s rights and that it was not harmless because “there was a reasonable probability that Gould’s testimony contributed to appellant’s convictions for aggravated murder and aggravated burglary.”

This was despite the fact that, as Grendell pointed out in her dissent, Gould never specifically identified Weimer as the “buddy” that Zachary referred to in his story.

Still, according to Judge O’Toole, even though the state presented ample other evidence of Weimer’s guilt, the testimony was impermissibly admitted.

The panel’s majority proceeded to address the sufficiency of the evidence supporting Weimer’s conviction for engaging in a pattern of corrupt activity.

“There is not sufficient evidence upon which the jury could reasonably conclude beyond a reasonable doubt that the elements of enterprise and engaging in a pattern of corrupt activity were proven,” wrote Judge O’Toole.

That conviction was subsequently reversed and the matter was remanded for a new trial on the murder and burglary charges.

Presiding Judge Timothy Cannon joined Judge O’Toole to form the majority.

The case is cited State v. Weimer, 2014-Ohio-2882.

Copyright © 2014 The Daily Reporter - All Rights Reserved


[Back]