Trial Summary
Thanks to everyone who attended the trial! No offense, but I hope we NEVER have to do this again!
While others started arriving at Tim Horton's around 7am, I didn't get there until almost 8 o'clock. That's what I get for taking the whole family...it's like herding cats!
There were about 40 of us there by 8:25 when we headed for the courthouse.
A Tim Horton's manager told me if we want to make our "meetings" a regular event, we can call in advance and they'll schedule extra help so we don't have to wait as long for service. I think I really like Tim Horton's.
We had plenty of potential jurors this time around. There were so many that there was no room for the public in the courtroom. We have seen the attorneys in action during this process back in April, so no one complained much.
When we got into the courtroom, it was standing and sitting (floor) room only.
Bill's defense counsel was Derek DeBrosse from Columbus, and Mike Moran from Gahanna.
Derek gave the opening statement...I though fire and brimstone was going to rain down on the prosecutor's table. Mike handled cross-examinations. He likes to look directly at the jury the entire time he's asking questions of the witnesses. They don't like that. I think it's an excellent tactic.
I'll run through the event first, then elaborate on some of the testimony that was given.
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On 12/31/10, Bill Nieman (nye'- man), a retired US Army veteran, was shopping with his wife at Walmart in Waverly, Ohio.
While picking out some orange juice, Bill was approached by Officer Matt Kelly of the Waverly PD. A Walmart assistant manager (manager-on-duty) had received complaints that Bill was openly carrying a handgun in a holster on his hip. Officer Kelly was already in the store on another matter and was asked to contact Bill.
Exactly
what the manager asked Ofc. Kelly to ask Bill to do was not mentioned.
Video of the encounter showed two people sedately shopping in the juice aisle. Bill was contacted by Ofc. Kelly. They talked for about 2 minutes (no audio) before Bill raises his hands and allows the officer to disarm him. The officer does not know how to clear the cocked and locked 1911 Colt Commander that he has just taken from Bill. Bill says the officer asked Bill to clear it, but the officer denied making such a request. The video shows the officer placing the gun in a food bunker*. After this, Bill places his hands
behind his back and lets Ofc. Kelly handcuff him.
*The large, open refrigerated tubs of food and beverages the meat and dairy aisles are called 'bunkers'.
Bill is walked out of the store uneventfully. The video shows Bill standing at the open door of Ofc. Kelly's patrol car for several minutes. A second patrol car arrives and that officer approaches Ofc. Kelly. At that time, Bill gets into the patrol car.
Testimony is that Bill refused to get into the car. Bill denies this. The video does not show any type of resistance from Bill. There is nothing on the video showing that Ofc. Kelly tried to force Bill into the car. The second officer did not touch Bill in any way.
Bill's charges were Obstructing Official Bussiness and Persistent Disorderly Conduct.
The video from inside and outside the store shows other customers walking past Bill without interest. Ofc. Kelly testified that Bill was yelling and screaming from the moment of first contact until he got into the car...so loudly, in fact, that the officer could not hear his radio and dispatch could not hear his transmission.
While the video has no audio and is not close enough to see mouths moving, there are no telltale signs of somebody screaming or even talking very loudly. None of the other customers in the area stop to look or even turn their heads to watch.
When I talk loudly, I tend to move my head to emphasize my speech. Bill doesn't show any such movements. Interestingly enough, prosecution did not introduce any audio evidence.
Ofc. Kelly testified he told Bill several times, "Please don't make a scene." This led to the Persistent Disorderly Conduct charge. This charge is an upgrade from Disorderly Conduct when "The offender persists in disorderly conduct after reasonable warning or request to desist." The penalty is also upgraded from a minor misdemeanor to a fourth degree misdemeanor. Defense counsel did not believe that the phrase "Please don't make a scene" was specific enough to be considered a warning.
The Obstructing Official Business charge stemmed from Bill's alleged refusal to get into the patrol car.
Okay, back to the initial contact with Bill.
Ofc. Kelly approached Bill, who was openly carrying a handgun, and asked him for his concealed handgun license.
The officer testified that he intended to ask Bill to cover his handgun, but would have to verify that he had a CHL first.
As most people from Ohio on this forum know:
1) You do NOT need any type of license to open carry a firearm in Ohio.
2) Without RAS (Reasonable, Articulable Suspicion) that a person has committed, is committing or is about to commit, a crime, or that a person has witnessed a crime that is a felony, that person is NOT required to identify themselves to law enforcement officers.
Bill told the officer he didn't have to show him anything. Several times.
Ofc. Kelly testified that Bill said "I don't have to show you s#!t!" Bill denies this, and
the officer's own written report states that "the subject told me he didn't have to show me anything".
The officer asked for other ID. Same result.
The officer told Bill that Walmart had signs that disallowed open carry. Bill disagreed and pointed to the front of the store and told the officer to "go see for himself". Ofc. Kelly testified that Bills finger pointing was a 'threatening gesture'.
Walmart employees informed the officer that Walmart han no signs posted regarding guns, and the officer admits that he was mistaken.
Eventually, Bill verbally identified himself (name, address, DOB) (2 or 3 times) to the officer. The officer stated "That really doesn't help me". Bill finally provided the officer with a driver's license.
After Ofc. Kelly notified Bill that he was being placed under arrest, the officer asked Bill to hand the gun to him. Bill declined and told the officer he would not touch his gun in the presence of a police officer.
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Well, that's all the excitement I can remember.
After being in the courthouse from 8:30am until almost 6pm, the prosecutor offered Bill the smallest plea bargain he could and still consider it a win (this is ALL political, remember?):
Plead out to a minor misdemeanor Disorderly Conduct, no fine, pay $80 court costs and the other charges would be dropped.
Bill's choice was to take the deal, or face having the trial continued AGAIN because of how late it was.
After fighting this injustice for 18 months, Bill took the deal, but he's not happy about it.
While I understand his 'displeasure' with the system, I think he's a hell of a guy, and he and his wife are to be commended for standing up for what is right.
We all gave Bill a round of applause outside as everyone was putting their openly carried handguns back in their holsters.
The lawyers, Bill and his wife all went home, but almost 20 of us went to Bob Evans' for dinner.
The police were NOT called.
