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Friday, July 18th, 2008

Judge denies motion to throw out evidence

By Margie Wuebker
Mercer County Common Pleas Court Judge Jeffrey Ingraham denied a motion to throw out potential evidence in the case of a 22-year-old Chickasaw man charged in connection with a deadly March 15 traffic accident that claimed four lives.
Attorneys for Nicholas R. Schwieterman, 90 S. Maple St., wanted results of blood and urine tests conducted after the crash suppressed, citing errors in the procedure, time frame and chain of custody. They also objected to oral and written statements Schwieterman allegedly made to law enforcement and the seizure of his wallet without a search warrant.
The points were addressed in a pair of May court hearings, with Ingraham taking the matter under consideration before issuing his decision late Wednesday afternoon. Copies then were forwarded to Mercer County Assistant Prosecutor Matt Fox and Schwieterman's attorneys, Marc T. Ross and Scott M. Calaway.
Ingraham ruled evidence presented at the hearing indicated Schwieterman voluntarily consented to having the blood and urine samples taken after the ramifications of not doing so were explained to him. Additionally, the judge found the tests were performed within the three-hour window cited in the Ohio Revised Code. Schwieterman asked authorities whether the tests could wait until his parents, Robert "Buster" and Linda Schwieterman, arrived at the hospital. The request was denied due to time constraints.
The judge also ruled proper testing procedures were followed by certified personnel at Mercer County Community Hospital in Coldwater and the Ohio State University Medical Center's toxicology lab in Columbus. Evidence further established a valid chain of custody for the specimens, according to Ingraham. He also cited testimony from expert witness Dr. Michael Bissell indicating failure to refrigerate them during transportation had no effect on reliability of test results, which indicated alcohol and drug usage at the time of the crash.
As for the alleged "warrantless" seizure of the wallet, Ingraham noted Lt. Martin Emerine of the Mercer County Sheriff's Office talked with Schwieterman and Kyle Schmitmeyer at the scene. The men, who reportedly had blood on their clothing and showed signs of having consumed alcohol, denied being in the Bonneville and stated they had just happened upon the scene.
Emerine attempted to obtain the vehicle identification number in hopes of determining the registered owner but the cracked windshield made that impossible. The front bumper was no longer attached to the vehicle and the rear bumper was smashed against a telephone pole making the lone remaining license plate unreadable. He then spotted the wallet in plain view, removed the operator's license and returned the wallet to the front seat. The license was found to be Schwieterman's, and his father was determined to be the vehicle's registered owner.
"As the investigating officer, Lt. Emerine was acting lawfully when he looked into the vehicle to observe the wallet on the seat, and he did not violate any constitutionally protected rights of the defendant," Ingraham wrote.
In regard to oral and/or written statements made by Schwieterman, Ingraham ruled statements made at the hospital or enroute to the Mercer County Jail admissible because he had been advised of his Miranda rights to remain silent and that anything he said could be used against him. Additionally, the judge found no evidence the statements resulted from threats or coercion.
In the wake of the decision, Ingraham set an additional pretrial hearing for July 25. The final pretrial is scheduled Sept. 4 with a five-day jury trial to commence Sept. 22.
Ingraham has yet to rule on a defense motion filed June 3 seeking modification of Schwieterman's electronic house monitoring to permit him to attend church services with family members. The motion states "He would like to have the benefit of spiritual guidance during current circumstances."
No decision has been handed down on another defense motion requesting a reduction in the $2 million bond to allow Schwieterman's family to pay for such things as attorney fees, expert witness fees and the cost of scientific testing. In early April, his father posted $200,000 - 10 percent of the bond - in order to secure release from jail. If bond is reduced, a portion of that amount would be returned to his father.
Schwieterman faces a 16-count indictment that includes four counts of involuntary manslaughter and eight counts of aggravated vehicular homicide in the deaths of Jordan Moeller, Jordan Diller, Brad Roeckner and Jordan Goettemoeller.

Other cases related to quadruple fatal accident:
Court proceedings continue in the cases of two men also implicated in connection with the March 15 traffic accident resulting in four fatalities.
• Staush M. Homan, 22, 582 N. Eastern Ave., St. Henry, remains incarcerated at the Mercer County Jail on a $1 million bond. Mercer County Assistant Prosecutor Matt Fox and defense attorney William Kluge have scheduled an Aug. 13 attorney conference in Mercer County Common Pleas Court.
Homan faces 10 felony charges including four counts of involuntary manslaughter alleging he caused the March 15 deaths of Jordan Moeller, Jordan Diller, Bradley Roeckner and Jordan Goettemoeller as a proximate cause of committing or attempting to commit drug trafficking, and four counts of reckless homicide alleging he recklessly caused the death of the young men through his actions. The remaining charges involve two counts of trafficking in cocaine on or about March 14 in the vicinity of a school.
Nicholas Schwieterman, the driver of the car involved in the two-vehicle crash, was found to have consumed alcohol and used cocaine prior to the traffic accident.
Homan, who entered a not guilty plea April 9, has waived his rights to a speedy trial.
• Kyle J. Schmitmeyer, 22, 7915 Clover Four Road, Celina, was scheduled to appear Wednesday morning in Celina Municipal Court on a misdemeanor charge of obstructing official business. However, defense attorney Eric Wilson requested a continuance. No date has been set as yet. Schmitmeyer allegedly was a passenger in Schwieterman's car.
Wilson previously entered a not guilty plea on his client's behalf.
The charge stems from Schmitmeyer's demeanor at the accident site near St. Sebastian. He allegedly denied being in one of the cars involved and continually interfered with deputies during the course of the investigation.
He remains free on bond after his family posted 10 percent of the $75,000 bond imposed by Judge James Scheer.
- Margie Wuebker
Additional online story on this date
Mercer County commissioners have 20 days to decide whether a height restriction should stay in place for commercial and industrial areas in East Jefferson Township following a crowded public meeting Thursday. [More]
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