State v. Forbus
2011 Ohio 4287
Ohio Ct. App.2011Background
- Incident outside Randy Hamblin's home on Sept. 23, 2009; Forbus, two males, and a female pushing a stroller confronted Hamblin; a threat to shoot the neighborhood arose.
- Forbus reappeared with a handgun; witnesses testified he fired multiple times toward Hamblin and companions; Aaron Hamblin fired back using Randy Hamblin’s gun, wounding Forbus in the neck.
- Police found four 40-caliber shell casings from Aaron Hamblin’s gun; no shell casings or Forbus’s gun recovered at the scene; a nine-millimeter bullet was lodged in a porch siding nearby.
- Forbus initially refused to cooperate, providing only name, date of birth, and Social Security number; officers questioned him while he was not in custody as a suspect.
- Randy Hamblin identified Forbus in a photo lineup; a jury found Forbus guilty of felonious assault (deadly weapon), improperly discharging a firearm at or into a habitation, and related firearm specifications; sentences merged for a ten-year term.
- On appeal, Forbus raises constitutional challenges to the use of his pre-arrest silence, ineffective assistance of trial counsel, and sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-arrest silence used as evidence violated the Fifth Amendment | Forbus | Forbus | Fifth Amendment violation; harmless error |
| Whether counsel was ineffective for failing to seek suppression of the photo lineup identification | Forbus | Forbus | No deficient performance; suppression not warranted |
| Whether the pre-arrest silence evidentiary issue was properly handled and the objection preserved | Forbus | Forbus | Harmless error; not reversible |
| Whether the evidence was legally sufficient to support felonious assault and related convictions | State | Forbus | Evidence sufficient; convictions affirmed |
Key Cases Cited
- State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147 (Ohio 2004) (pre-arrest silence as substantive evidence violates Fifth Amendment)
- State v. Thompson, 33 Ohio St.3d 1, 1997-Ohio-543 (Ohio 1987) (harmless-error review for constitutional violations)
- State v. Armstrong, 2006-Ohio-1805 (Ohio 2006) (pretrial confrontation reliability; identification weight goes to admissibility)
- State v. Lenoir, Montgomery App. No. 19241, 2003-Ohio-2820 (Ohio 2003) (failure to file pre-trial motion in limine does not per se constitute ineffective assistance)
- State v. Jenks, 61 Ohio St.3d 259, 1991 (Ohio 1991) (standard for reviewing sufficiency of evidence)
- State v. Buelow, Montgomery App. No. 2004 CA 18, 2004-Ohio-6052 (Ohio 2004) (silence during crime not extended to suppression rule)