STATE OF OHIO v. DECO BAILEY
No. 97330
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 26, 2012
[Cite as State v. Bailey, 2012-Ohio-3356.]
JOURNAL ENTRY AND OPINION
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-543223
BEFORE: Boyle, J., Blackmon, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: July 26, 2012
Joseph C. Patituce
Megan M. Patituce
Patituce & Associates, LLC
26777 Lorain Road
Suite 708
North Olmsted, Ohio 44070
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Lauren Bell
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Deco Bailey, appeals his conviction for drug trafficking and drug possession. We affirm.
Procedural History and Facts
{¶2} In October 2010, Bailey was indicted on three counts: (1) trafficking, in violation of
{¶3} According to the state‘s witnesses, the events leading to Bailey‘s arrest on October 14, 2010, are as follows: Det. Gerald Crayton received a tip from a confidential reliable informant (“CRI“), prompting him to radio Sgt. Brandon Kutz and Officer Brian Moore. Det. Crayton instructed the men to head to East 124th Street and Superior Avenue and “look out for a gold Chevy Tahoe” in a convenience store parking lot. According to Officer Moore, they had information given to them “that there was a Chevy Tahoe in the area of 124th and Superior that had a large bag of crack cocaine and possibly a gun in the vehicle.” Sgt. Kutz likewise testified that they learned from the radio broadcast that “the male was in the parking lot in the vehicle and he had possession of crack cocaine and a weapon.”
{¶5} Craig Kelly was seated in the front seat. Sgt. Kutz opened the front seat passenger-side door and discovered 3.07 grams of crack cocaine in a plastic bag on the floor between Kelly‘s right foot and the door. Sgt. Kutz handcuffed Kelly and patted him down for weapons.
{¶6} No weapons were found on either occupant, but $103 was recovered from Bailey.
{¶7} At trial, Sgt. Kutz testified that Kelly immediately denied that the crack cocaine belonged to him, claiming that Bailey “must have thrown it at my feet or towards me.”
{¶9} Kelly further testified that he got in the car with Bailey hoping to get some crack cocaine from him but that he never had the opportunity to ask. He acknowledged that he did not have any money on him but that he was hoping to get some free crack.
{¶10} On cross-examination, Kelly, who has a felony record involving unauthorized use of a motor vehicle, receiving stolen property, and breaking and entering, admitted that he negotiated a plea bargain to substantially reduce his potential sentence in this case as well as another pending case in exchange for his testimony against Bailey. He further admitted that he would do “anything to avoid prison.”
{¶11} Det. Crayton testified that based on his experience dealing with thousands of arrests related to crack cocaine, 3.07 grams of crack cocaine “was consistent with someone
{¶12} The jury acquitted Bailey of the possession of the criminal tools count and found that the state failed to carry its burden with respect to the forfeiture specifications. The jury found Bailey guilty of the remaining counts of possession of drugs and drug trafficking. The trial court merged the two counts at sentencing and imposed an 18-month sentence.
Assignments of Error
{¶13} Bailey appeals, raising the following ten assignments of error:
“I. The government‘s lawyer engaged in, and committed prosecutorial misconduct by intentionally misleading the jury to believe facts that were both false and never introduced into evidence.
“II. The government‘s lawyer engaged in, and committed prosecutorial misconduct by repeatedly vouching for the credibility of a witness; specifically, the co-defendant.
“III. The defendant was denied due process of law where the court denied defendant‘s motion to reveal the confidential informant.
“IV. The defendant was denied due process of law where the court (1) denied defendant‘s motion in limine to prevent the state from presenting evidence as to what a
“V. The defendant was denied due process of law when the court granted the state‘s motion to consolidate where the state‘s motion was (1) untimely, (2) resulted in substantial prejudice to defendant, and (3) was not admissible as ‘other acts’ evidence or ‘simple and direct’ evidence.
“VI. The defendant was denied due process of law where the court denied defendant the ability to question the officer as to the co-defendant‘s criminal record pursuant to
“VII. The defendant was denied due process of law where the court denied defendant‘s motion for a mistrial due to prosecutorial misconduct.
“VIII. The defendant was denied due process of law when the court denied defendant‘s motion to suppress where the officers engaged in an impermissible arrest pursuant to Terry v. Ohio.
“IX. The defendant was denied due process of law where his conviction was not supported by legally sufficient evidence.
“X. The defendant was denied due process of law where his conviction was against the manifest weight of the evidence.”
{¶14} For the ease of discussion, we will address these assignments of error together and out of order where appropriate.
{¶15} Bailey argues in his eighth assignment of error that the trial court erred in denying his motion to suppress. He contends that the police exceeded the scope of an investigatory stop and improperly arrested him based solely “on the word of a CI.” We find that his argument lacks merit.
{¶16} A motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. * * * Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. * * * Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Citations omitted.) Id.
{¶17} Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a law enforcement officer must have a reasonable suspicion, based on specific and articulable facts, that a motorist is or has been engaged in criminal activity before stopping a vehicle. State v. Davenport, 8th Dist. No. 83487, 2004-Ohio-5020. An officer is justified in making an investigative stop if the specific and articulable facts available to an officer indicate that a motorist may be committing a criminal act, which includes the violation of a traffic law. Id.
{¶19} Here, the evidence at the suppression hearing revealed that the police received a tip from a CRI, a person that the police worked with in approximately 50 to 60 prior cases, that directed them to Rosa Parks Boulevard, in search of a gold Chevy Tahoe. The police believed that there was crack cocaine and possibly a weapon inside the vehicle. The police encountered the vehicle stationary in the middle of the street, straddling two lanes of traffic. This traffic violation alone justified the police activating their sirens and lights. The police further testified that once they activated their lights, the vehicle began to move forward, ignoring their commands to stop. Officer Moore also testified that the driver did not immediately place his hands out the window despite the order to do so. Based on these facts, Officer Moore approached cautiously with his gun drawn. He further immediately pulled Bailey out of the car, concerned that he may have had a weapon.
{¶20} Under the totality of the circumstances, we find no violation of the Fourth Amendment. The police acted reasonably — the display of arms was reasonably necessary for the protection of the officers in this case. See United States v. Hardnett, 804 F.2d 353, 357 (6th Cir.1986), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171
{¶21} The eighth assignment of error is overruled.
Motion to Consolidate
{¶22} Bailey argues in his fifth assignment of error that the trial court abused its discretion in granting the state‘s motion to consolidate this case with another pending indictment. Bailey raises several arguments as to why the two cases should not have been consolidated, including that the state‘s motion was untimely, that the joinder failed to meet the requirements of Crim.R. 8, and that the joinder was prejudicial. But the record reveals that the two indictments were not tried together — the trial court granted the state‘s motion to dismiss the counts associated with the second indictment before the jury was sworn. We therefore find his arguments relating to the consolidation of the cases and the denial of his motion to sever to be irrelevant.
Identity of the CRI
{¶24} In his third assignment of error, Bailey argues that he was denied due process by the trial court‘s refusal to order the state to disclose the identity of the CRI. We disagree.
{¶25} The standard of review for a case involving a CRI is whether the judge abused her discretion in ordering or refusing to order disclosure of the identity of that person. State v. Brown, 64 Ohio St.3d 649, 597 N.E.2d 510 (1992). We therefore will
{¶26} A defendant is entitled to disclosure of a confidential informant‘s identity only where the informant‘s testimony is either (1) vital to establishing an essential element of the offense charged; or (2) helpful or beneficial to the accused in preparing a defense. State v. Williams, 4 Ohio St.3d 74, 446 N.E.2d 779, syllabus (1983). “If the informant‘s degree of participation is such that the informant is essentially a state‘s witness, the balance tilts in favor of disclosure.” State v. Wilson, 156 Ohio App.3d 1, 2004-Ohio-144, 804 N.E.2d 61, ¶ 35 (8th Dist.). When disclosure is not helpful to the defense, however, the state need not reveal the identity. Id.
{¶27} Despite Bailey‘s broad claims that the CRI‘s involvement “point directly to the elements of the offenses,” and that the disclosure would have been helpful to his defense, Bailey failed to satisfy his burden establishing the need for learning the informant‘s identity. While the testimony of the informant was helpful in establishing the probable cause to stop the vehicle, his testimony was not vital to establishing any of the elements of Bailey‘s offenses. See Wilson at ¶ 35. Moreover, Bailey‘s claims that the CRI‘s identity would have been helpful to his defense amount to nothing more than speculation. Accordingly, we cannot say that the trial court abused its discretion; the third assignment of error is overruled.
Motion in Limine
{¶29} We note that Det. Crayon never testified as to what the CRI told him. He merely testified that as a result of his conversation with the CRI, he radioed the officers and provided them with the description of the vehicle to effectuate a stop. But we acknowledge that both Officer Moore and Sgt. Kutz testified as to the information that they learned from the radio broadcast, which directly implicated what the CRI had reported: a male in the parking lot with crack cocaine and a weapon. The trial court allowed this testimony because it found that the testimony was not hearsay. We find that the trial court did not err in doing so.
{¶30} Pursuant to
{¶31} We find that the testimony implicating what the CRI reported was not hearsay. The evidence was introduced to provide context to the events leading up to Bailey‘s arrest, specifically explaining the police‘s actions in searching for a gold Chevy Tahoe on Rosa Parks Boulevard. It was not offered for the truth of the statement, and therefore Bailey‘s rights under the Confrontation Clause were not implicated.
{¶32} The fourth assignment of error is overruled.
Due Process
{¶33} In his sixth assignment of error, Bailey argues that he was denied due process because the trial court denied him the right to question Sgt. Kutz as to Kelly‘s criminal record pursuant to
When a hearsay statement, or a statement defined in
Evid.R. 801(D)(2), (c) ,(d) , or(e) , has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence that would be admissible for those purposes if declarant had testified as a witness.
{¶34} Bailey maintains that once Sgt. Kutz testified as to what Kelly told him regarding the fact that Bailey threw the drugs, the trial court was required to allow Bailey to question Sgt. Kutz as to Kelly‘s criminal record. He contends that he was denied the
{¶35} While we agree that Bailey should have been allowed to question Sgt. Kutz as to his knowledge of Kelly‘s criminal record under
{¶36} The sixth assignment of error is overruled.
Sufficiency and Manifiest Weight of the Evidence
{¶37} In his ninth assignment of error, Bailey argues that the state failed to produce sufficient evidence to convict him of drug trafficking and drug possession. He further argues in his final assignment of error that his convictions are against the manifest weight of the evidence because the state‘s evidence was not credible. The gravamen of both arguments is that the state failed to prove that Bailey even possessed the drugs found in the vehicle, let alone that he trafficked them.
{¶39} Conversely, the manifest weight of the evidence standard is as follows:
In reviewing a claim challenging the manifest weight of the evidence, [t]he question to be answered is whether there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
(Internal quotes and citations omitted.) Leonard at ¶ 81.
{¶40} Pursuant to drug trafficking under
{¶41}
{¶43} The police discovered 3.07 grams of crack cocaine between the right foot of the front-seat passenger and the side door. The front-seat passenger, Kelly, testified that he never saw the drugs until he heard the police sirens. He did not see the drugs when he first entered the vehicle or when he exited and reentered at the convenience store. Kelly further testified that he got into the car with Bailey hoping to get some drugs from Bailey.
{¶44} The state‘s theory at trial was that Bailey threw the crack cocaine upon hearing the sirens, distancing the drugs from himself and implicating Kelly. Kelly‘s testimony, if believed, established that Bailey had constructive possession of the drugs. Likewise, we find that the state presented sufficient evidence to prove that Bailey was transporting drugs with the intent to sell. Kelly testified that he was a “longtime friend” of Bailey‘s and that he flagged Bailey down and got into the car, with the hope of getting crack cocaine. Det. Crayton testified that the amount of crack cocaine recovered was large enough to “at least cut * * * 20 times.”
{¶45} We do not agree with Bailey that this case is analogous to the facts in State v. Smith, 8th Dist. No. 96348, 2011-Ohio-6466, where this court vacated the defendant‘s
{¶46} Construing the evidence in a light most favorable to the state, thereby taking Kelly‘s testimony as being true, the evidence was enough to establish that Bailey had constructive possession of the drugs and that he was transporting the drugs in his vehicle with the intent to sell.1
{¶47} Furthermore, we cannot say that this is the exceptional case where the jury clearly “lost its way.” The determination of weight and credibility of the evidence is for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Although an appellate court must act as a “thirteenth juror” when considering whether the manifest weight of the evidence requires reversal, it must give great deference to the fact finder‘s
{¶48} The ninth and tenth assignments of error are overruled.
Prosecutorial Misconduct and Motion for a Mistrial
{¶49} In his first and second assignments of error, Bailey argues that the prosecutor‘s comments in closing arguments denied him a fair trial; he additionally argues in his seventh assignment of error that the trial judge should have granted his motion for a mistrial based on the prosecutor‘s comments.
{¶50} The standard of review for prosecutorial misconduct is whether the comments and questions by the prosecution were improper, and, if so, whether they prejudiced appellant‘s substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). Prosecutorial misconduct will not provide a basis for reversal unless the misconduct can be said to have deprived the appellant of a fair trial based on the entire record. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). “The touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.‘” State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶51} Therefore, our duty is to consider the trial record and to determine whether Bailey‘s substantial rights were violated, thereby depriving him of a fair trial. We note,
{¶52} Bailey argues that the prosecutor‘s statements during the state‘s closing argument deprived him of a fair trial because the prosecutor twice told the jury that the gold Chevy Tahoe belonged to him — a fact that was neither proven nor true. He complains first of the following comment made during the prosecutor‘s initial closing statement: “So how do we know from the events that you heard, the evidence that you heard, that he knew that this crack was in his car? Well, it‘s his car. That a pretty good starting point.” Next, Bailey argues that the prejudice was compounded by the following statement made when the prosecutor addressed the jury during the second closing argument: “But what was shown was exactly what I told you in my first closing. Mr. Bailey‘s car, Mr. Bailey as driver, Mr. Bailey with 20 uses of crack cocaine.”
{¶53} The state counters that the prosecutor was merely summarizing “the fact that [Bailey] was driving the car and the car was under [Bailey‘s] control.” The state further argues that “even if the statement that the car belonged to [Bailey] is factually inaccurate, the statement did not impact [Bailey‘s] substantial rights” because the jury was specifically instructed that closing arguments were not evidence.
{¶55} While we find that the prosecutor‘s statements that the vehicle was Bailey‘s were factually inaccurate, we cannot say that it deprived Bailey of a fair trial or that Bailey was prejudiced by such comments. Here, the state‘s success was dependent on the jury believing that Bailey threw the drugs once the police activated their lights and sirens. The fact of who owned the vehicle was not a critical issue. Indeed, this was not a case where the police located the drugs in an obscure part of the car and each occupant was denying ownership. Nor was it a case where the drugs were found closer to the driver than the passenger. In this case, the drugs were found next to Kelly‘s foot who expressly testified that they were not there when he first entered the vehicle or when he later exited
{¶56} Furthermore, Bailey never objected to these references when made by the prosecutor in closing argument. Nor did he ask for any curative instruction. And while Bailey moved for a new trial based on these statements, we cannot say that the trial court abused its discretion in denying the motion when Bailey failed to demonstrate any prejudice by the statements. See State v. Schiebel, 55 Ohio St.3d 71, 76, 564 N.E.2d 54 (1990) (abuse of discretion standard applies for a motion for a mistrial based on prosecutorial misconduct); See also Crim.R. 33(A)(2) (mistrial should be granted only if the prosecutorial misconduct “affect[ed] materially [defendant‘s] substantial rights“).
{¶57} Bailey also argues that the prosecutor improperly vouched for the credibility of Kelly by telling the jury that “[Kelly] came here and was honest about his role in this situation.” Bailey did timely object to this statement and the trial court overruled it.
{¶58} We do not find that the prosecutor‘s single, isolated comment that “[Kelly] was honest about his role in this situation” rises to the level of prosecutorial misconduct. Nor can we say that it amounts to the prosecutor improperly vouching for the witness‘s credibility when viewing the statement in its entire context.2 Instead, we find that the
{¶59} Accordingly, the first, second, and seventh assignments of error are overruled.
the trial court overruled. The prosecutor continued as follows: “He came here and he told that parts [sic] of his plea agreement with the State of Ohio was to testify truthfully and he told you — imagine admitting to a room of 14 strangers sitting in a box, admitting to them that he uses drugs of that [sic] he uses crack cocaine. And that he had no money on October 14, 2010 and was flagging down his friend in the hopes that he could once again get crack cocaine.”
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
PATRICIA ANN BLACKMON, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR