2017 Ohio 2649
Ohio Ct. App.2017Background
- Defendant Hakeen K. Makin was indicted on 28 counts stemming from multiple controlled buys (March–August 2014) involving cocaine and heroin; several counts aggregated amounts and included major drug offender (MDO) specifications.
- A confidential informant (CI) conducted the buys under task-force supervision; transactions were recorded and the CI later testified; codefendant Harmon pleaded and testified for the state.
- Some counts and schoolyard specifications were dismissed under Crim.R. 29; jury convicted Makin on the remaining counts; trial court later found the MDO specification and sentenced Makin to 11 years on that specification.
- Pretrial, the prosecutor sought to keep the CI’s identity confidential under Crim.R. 16(D); the trial court granted the certification based on safety concerns and threats while ensuring defense counsel could view certain materials.
- Makin raised multiple claims on appeal including denial of jury trial on MDO, Brady/Crim.R.16 disclosure violations, informant- and accomplice-related jury-instruction errors, prosecutorial misconduct, ineffective assistance of counsel, insufficiency/weight of evidence, Batson challenge to peremptory strikes, and improper aggregation of drug amounts for MDO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MDO specification required jury finding and denial of jury trial | State: statute vests determination with court; but jury found aggregate cocaine >100g on Count 13 | Makin: MDO increases penalty and should be found by jury (Alleyne issue) | Overruled — jury already found aggregated cocaine >100g (no relief) |
| Whether Crim.R.16(D)/Brady violations and nondisclosure of CI/CI agreement denied due process or effective counsel | State: reasonable articulable grounds for nondisclosure to protect CI; provided materials for in-counsel review and CI testified | Makin: late disclosure of CI agreement and withheld identity/pretrial materials prejudiced defense | Overruled — court found certification justified, CI testified, no prejudice; ineffective-assistance claim fails |
| Adequacy of accomplice/CI-related jury instructions (accomplice credibility, informant instruction, prior convictions as impeachment) | Makin: court failed to give statutory accomplice instruction verbatim and failed to give special CI/prior-conviction credibility instructions | State: general credibility instructions and written jury charge covered issues; printed charge corrected verbal slip (‘credibility’ in writing) | Overruled — no plain error or prejudice; general instructions sufficient |
| Batson challenge to prosecutor’s peremptory strikes of African-American jurors | Makin: strikes were discriminatory; prosecution lacked race-neutral reasons | State: offered race-neutral reasons (family members with similar drug charges or prior prosecution involvement) | Overruled — trial court’s credibility evaluation not clearly erroneous; reasons found race-neutral |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (elements increasing mandatory minimum must be found by jury)
- State v. Dues, 24 N.E.3d 751 (Ohio App. 2014) (discussing court determination of MDO specification and related issues)
- State v. Thompkins, 678 N.E.2d 541 (Ohio 1997) (distinguishing sufficiency and weight of the evidence)
- State v. Jenks, 574 N.E.2d 492 (Ohio 1991) (standard for sufficiency of the evidence review)
- Batson v. Kentucky, 476 U.S. 79 (1986) (prohibition on race-based peremptory challenges and tripartite Batson test)
- State v. McKelton, 70 N.E.3d 508 (Ohio 2016) (no general constitutional right to discovery; trial court may protect CI identity)
- State v. Steele, 3 N.E.3d 135 (Ohio 2013) (preservation rules for jury-instruction objections and plain-error standard)
- State v. Iacona, 752 N.E.2d 937 (Ohio 2001) (ineffective-assistance legal standard referencing Strickland)