STATE OF OHIO, Plaintiff-Appellee, v. LEONARD M. BANKSTON, SR., a.k.a. LEONARD MERCEDES BANKSTON, SR., Defendant-Appellant.
CASE NO. 2020-A-0005
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY
Decided: December 6, 2021
[Cite as State v. Bankston, 2021-Ohio-4332.]
MATT LYNCH, J.
Criminal Appeal from the Court of Common Pleas, Trial Court No. 2017 CR 00658. Judgment: Affirmed
Colleen M. O‘Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Rick L. Ferrara, 2077 East 4th Street, 2nd Floor, Cleveland, OH 44115 (For Defendant-Appellant).
MATT LYNCH, J.
{1} Defendant-appellant, Leonard M. Bankston, appeals his convictions for Murder, Felonious Assault, and Domestic Violence, following a jury trial in the Ashtabula County Court of Common Pleas. For the following reasons, we affirm the decision of the lower court.
{2} On January 24, 2018, the Ashtabula County Grand Jury issued an Indictment, charging Bankston with Murder, an unclassified felony, in violation of
{3} A trial was held on August 25 through September 6, 2019. The following pertinent testimony and evidence were presented:
{4} At approximately 1:45 p.m. on December 10, 2017, Ashtabula County Fire Department firefighter-paramedics Lieutenant John Paul and Nicholas Moon were dispatched to a home in response to a report of an “ill female,” later identified as Sheila Pyles. They were met by Bankston, who lived in the home. According to Pyles’ sister, Terry Towner, Pyles and Bankston had been in a relationship “on and off” for the past five years. Paul and Moon entered the upstairs master bedroom where Pyles was on the bed, unconscious and exhibiting slow breathing with “snoring respirations.” They observed that her face was severely swollen and bruised and there was a wet spot on the bed where she had urinated. Moon testified that her pupils indicated severe head or brain trauma.
{5} According to Paul, Bankston stated that Pyles “had been like this for a day or two; that she had been out with some men and they dropped her off and this is what she‘s been like.” Moon testified that Bankston had “mentioned that his girl was dropped off there the day before and that she was like this.” A similar explanation was provided in the 911 call, in which Bankston told the operator: “All I know she got back to the house she was with two men. I kept asking, who was it, who was it? What did they do to you? Okay. She was bruised up.” Both paramedics observed that Bankston had a calm
{6} Patrolmen Christopher Defina and Donald Martin of the Ashtabula City Police Department were dispatched to the home for an overdose but observed serious physical injuries to the victim, including her eyes being swollen shut and heavy bruising, rather than signs of an overdose. Martin testified that Bankston did not inquire about Pyles’ condition and appeared that he wanted to “leave” and “go the other direction away from us.” Defina spoke with Bankston, inquired about what happened, and Bankston stated that the victim “went to turn a trick on Friday [December 8] and she came back like that.”
{7} Defina and Martin entered the home and smelled a strong odor of cleaning agents. In one bedroom, later identified as belonging to Bankston‘s daughter, Defina observed “blood spatter” on the curtain, cardboard box, and mattress. Martin also testified that he saw what he “appeared to believe was blood splatter” on a cardboard box and bedding. Both men saw a “small pile of hair” in the corner of that room by the door. In the bathroom, Martin observed an open can of Comet cleaner and soap suds in the bathtub from cleaning agents. After exiting the house, Defina inquired further of Bankston regarding what had occurred and Bankston stated that they had gone to some bars the night prior, he went to a home to purchase marijuana while Pyles remained in the car, and when he came back outside, she “was beaten up in the car” and would not say who did it. Bankston told Defina the bedding from the bed where Pyles had been was in a garbage bag in the basement, where it was later located.
{9} Lindsey Deetz, a forensic scientist at the Ohio Bureau of Criminal Investigation (BCI), testified that swabs taken from the cardboard box, ceiling, and wall in the second bedroom tested presumptive positive for blood. A brown sheet was presumptive positive for blood on only one stain. Two of 19 stains on one curtain tested positive for blood. Swabs from a tool and another curtain tested negative for blood.
{10} BCI forensic scientist Stacy Violi testified that the major DNA profile from the swabs of the suitcase, cardboard box flap, stains on the curtain, and the ceiling was consistent with Bankston‘s, indicating that the DNA profile was “rarer than 1 in 1 trillion unrelated individuals.” Bedding contained DNA profiles of Pyles and Bankston. A sheet and the bathtub swab contained Pyles’ DNA.
{11} Following the police response to the home on December 10, Bankston was transported to the Ashtabula Police Department, where he was questioned by Detective Michael Palinkas. During the interview, a video of which was played for the jury, Bankston
{12} A complaint was filed against Bankston for Felonious Assault on December 11, 2017, and he was set to be arraigned on that date. Following another interview with Palinkas, arraignment occurred. Felt testified that he was present during arraignment and witnessed Bankston turn toward Pyles’ family and state: “I‘m sorry. I didn‘t mean for this to happen” three times.
{13} Joseph Cellitti, the former lieutenant in charge of the Ashtabula Police Department Detective Bureau, conducted an interview of Bankston following the
{14} On December 11, 2017, after receiving treatment at MetroHealth, Pyles passed away. Dr. David Dolinak, deputy medical examiner at the Cuyahoga County Medical Examiner Department, performed an autopsy. He observed contusions and lacerations to Pyles’ face, chest, and arm, bruising on her scalp, and abrasions on her neck. He found bleeding in her brain, which was the result of an injury to her head, and pressure from the bleeding, which led to her suffering a stroke. She also had a fracture to her hyoid bone, which would be caused by impact or compression to the neck. He determined that the cause of death was blunt force injuries and classified the death as a homicide. He believed that the injuries were “fairly recent.” Although the toxicology report showed cocaine in her system, he did not find that this contributed to her death.
{15} The jury found Bankston guilty of Counts Two through Four as charged in the indictment and not guilty of Count One. The verdict was memorialized in a September 10, 2019 Order and Journal Entry.
{16} Following a hearing on the issue of merger, the court issued a November 15, 2019 Judgment Entry in which it found the convictions for Murder and Felonious Assault merged but that the conviction for Domestic Violence did not. The State elected to proceed on the Murder offense.
{18} Bankston timely appeals and raises the following assignments of error:
{19} “[1.] Defense counsel provided constitutionally ineffective assistance by failing to object to testimonial evidence regarding ‘blood spatter’ and ‘castoff’ without the requisite foundation or to unduly prejudicial interviews played for the jury at trial and failing to request an instruction on reckless homicide.
{20} “[2.] The trial court violated appellant‘s federal due process rights and rights under Ohio law by failing to allow a jury instruction as to involuntary manslaughter.
{21} “[3.] The manifest weight of the evidence did not warrant conviction for felony murder or felonious assault.”
{22} For ease of discussion, we will first consider Bankston‘s third assignment of error. In this assignment, Bankston argues that his convictions for Felonious Assault and Felony Murder were against the weight of the evidence given the lack of witnesses and forensic evidence to show Bankston knowingly caused injuries leading to Pyles’ death.
{23} “[W]eight of the evidence addresses the evidence‘s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence is more persuasive—the state‘s or the defendant‘s?” Id. An appellate court must consider all the evidence in the record, the reasonable inferences, the credibility of the witnesses, and whether, “in resolving conflicts
{24} To convict a defendant of Felony Murder, the State is required to prove, beyond a reasonable doubt, that a person did “cause the death of another as a proximate result of the offender‘s committing or attempting to commit an offense of violence that is a felony of the first or second degree.”
{25} In the present matter, the jury did not clearly lose its way in finding Bankston guilty of the offenses of Felonious Assault and Felony Murder. The evidence showed that Pyles experienced trauma to her head, leading to her death. Bankston‘s hands were shown to have cuts and swelling and his blood was located in the room where he admitted to having an argument with Pyles, stating that he hit her at least four times and pushed her on the bed. Although he stated that she had been injured by two unknown men, the details of this story changed throughout his statements to police officers, with him initially denying hitting Pyles to later admitting that he hit her several times. No evidence was found to corroborate the explanation that two men assaulted Pyles. Further, although Bankston stated that Pyles was “out of it” and unable to communicate with him, sleeping and urinating on herself for a period of at least a day and a half, he failed to seek treatment for her, which could contribute to a potential conclusion that he was trying to hide the fact that he had caused harm to the victim. The cleaning of the bathroom observed by the officers could also support this theory. Bankston‘s apologies to the family at arraignment
{26} While Bankston argues that he did not act with intent to kill or cause harm to Pyles, there were various facts in the record to dispute this contention. The degree of harm caused to Pyles was serious and, if it is believed it was committed by him, undercuts the theory that this was merely recklessness or a minor act of assault. Bankston‘s admission of hitting Pyles, combined with the other evidence outlined above, provided support for the convictions. The jury was best able to determine the credibility of Bankston‘s description of the events surrounding Pyles’ death. State v. Rice, 2019-Ohio-1415, 135 N.E.3d 309, ¶ 84 (11th Dist.) (“[i]t is well-settled that when assessing the credibility of witnesses, ‘[t]he choice between the credibility of witnesses * * * rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact‘“) (citation omitted).
{27} Bankston‘s arguments that there were a lack of eyewitnesses and that his changes in his story were slight are unconvincing. It is unnecessary to have an eyewitness in order to obtain a conviction and it is frequently the case that no such witness exists. In relation to his contention that the changes in his story were minor, it must be emphasized that he went from denying any sort of contact with Pyles to describing an incident in which he hit her four times and pushed her. It was well within the jury‘s province to determine that it was more credible that he knowingly caused serious physical harm which led to her death given his behavior surrounding the incident, including failure to seek treatment while Pyles was unconscious and unresponsive and cleaning in several
{28} The third assignment of error is without merit.
{29} In his first assignment of error, Bankston argues that trial counsel was ineffective by failing to object to testimonial evidence regarding blood spatter or castoff without foundation, prejudicial interviews played for the jury, and by failing to request an instruction on reckless homicide.
{30} To demonstrate ineffective assistance of counsel, a defendant must prove “(1) that counsel‘s performance fell below an objective standard of reasonableness, and (2) that counsel‘s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. “There is a strong presumption that the attorney‘s performance was reasonable.” State v. Gotel, 11th Dist. Lake No. 2006-L-015, 2007-Ohio-888, ¶ 10.
{31} Bankston first argues that trial counsel was ineffective by failing to object to officers giving testimony regarding blood spatter and castoff since they were not experts in this area. In particular, he emphasizes the testimony of Felt that “you‘ll see kind of a rainbow effect of some kind of dark stains here, which is indicative it could probably be a castoff of blood onto the curtain.”
{33} The testimony of other officers generally referenced “blood spatter” or spots observed in the bedroom, but did not elaborate with blood spatter or bloodstain analysis, nor does Bankston point to any particular objectionable statements they made. While the officers offered their observations of the scene, they generally did not testify as to what occurred in the bedroom to cause the blood spatter or the cause of any pattern or direction of the blood. The jury was able to listen to all of the evidence, including the officers’ testimony that they saw what appeared to be blood drops, confirmation of blood presence by BCI, the fact that this blood primarily belonged to Bankston, and Bankston‘s admission of hitting Pyles in the room where the blood was located, in order to determine the relevance of this blood evidence, the value of the testimony, and whether it supported the State‘s theory that Bankston assaulted Pyles in the bedroom. Further, Bankston‘s objections to the State‘s overall theory of the case that the assault occurred in the
{34} Bankston next argues that trial counsel should have objected to playing video of him during two jail interviews wearing his jail attire, i.e., a striped top and matching pants and handcuffs, rather than admitting transcripts or audio of the interviews, emphasizing authority stating that the requirement for a defendant to appear at trial in restraints is an “inherently prejudicial practice.” See Holbrook v. Flynn, 475 U.S. 560, 568-569, 106 S.Ct. 1340, 89 L.Ed.2d 525.
{35} It has been recognized that case law addressing the jury viewing a defendant in jail clothing and shackles generally relates to the defendant‘s appearance in courtroom proceedings and such precedent is “not directly applicable” where a video of the defendant in such attire during out of court events like a polygraph examination was shown at trial. State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 32. Some of the concerns of allowing a defendant to appear during trial in jail clothing, such as maintaining the dignity of the judicial process and avoiding the hindrance of the ability to communicate with one‘s attorney, do not apply here since the defendant appeared in such attire and handcuffs only in the interviews. See id at 31-32.
{36} In State v. Cline, 11th Dist. Trumbull No. 2007-T-0052, 2008-Ohio-1500, this court held that playing two videos of interviews with a defendant in jail clothing was not reversible error, noting that the jurors had been advised the defendant was in custody when he gave the interviews and “even if we were to find that it was error to admit such
{37} Furthermore, we emphasize that the standard here is whether trial counsel was ineffective. It has been observed that there are legitimate reasons of trial strategy to allow the juror to see the defendant in jail clothes, such as to elicit sympathy, that an appellate court will not second guess. See State v. Levingston, 5th Dist. Richland No. 17CA6, 2017-Ohio-7032, ¶ 35; State v. Miller, 1st Dist. Hamilton No. C-010543, 2002-Ohio-3296, ¶ 26. Here, while Bankston argues that counsel should have objected to a video interview, as an audio interview would have sufficed and avoided showing him in
{38} Bankston next argues that trial counsel was ineffective by failing to object to “grossly, prejudicial comments expressing the opinions of law enforcement members.” He contends that counsel should have objected to portions of the interview video showing law enforcement officials “vouching for their own case” and making statements to Bankston that expressed their opinion he was lying, had been inconsistent in his statements, and that the jury would not believe his story.
{39} The interviewing officers, both during the interview and in their testimony, made statements that Bankston gave inconsistent versions of the events leading up to Pyles’ death. These statements merely recognized the fact that Bankston was indeed inconsistent during his interview and, in fact, at least one version of these events could not be entirely truthful. We do not find ineffectiveness in failing to object to the admission of these statements. It is evident that counsel was pursuing a strategy to discredit or mitigate the admissions made by Bankston, including a line of questioning to Palinkas regarding his interviewing techniques and whether he used misleading techniques to elicit a confession. Allowing the admission of statements made by Palinkas during the interview provided the grounds for this line of questioning. Again, we decline to second-guess matters of trial strategy.
{40} Bankston also contends that statements made in the interviews by officers
{41} Even presuming counsel should have requested the redaction of certain statements made by officers, as it did with some other statements in the interviews, we do not find prejudice warranting reversal would result. As the Ohio Supreme Court has noted, where “the jury was fully aware * * * [that] the officers were engaged in the interrogation of a criminal suspect * * * the impact on the average jury would have been much less than the same statements made by a police officer on the witness stand at trial.” State v. Madison, 160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867, ¶ 136, citing State v. Kidder, 32 Ohio St.3d 279, 285, 513 N.E.2d 311 (1987). Given that many of the statements made were subsequently presented as testimony and/or were consistent with what the evidence did demonstrate, and in light of the limited prejudicial effect of statements made by police during an interview, we do not find the admission of any statements made during the interrogation led to a result that would be different than had they been excluded.
{42} Finally, Bankston argues that counsel erred by failing to request a lesser-included instruction on reckless homicide, given the admissions in the interviews that
{43} “[T]he Supreme Court of Ohio has stated that the ‘[f]ailure to request instructions on lesser-included offenses is a matter of trial strategy and does not establish ineffective assistance of counsel.‘” State v. McEndree, 2020-Ohio-4526, 159 N.E.3d 311, ¶ 86 (11th Dist.), citing State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996) (“[t]he record may reveal that trial counsel did not request a certain jury instruction, but, without more, the court of appeals would have to guess as to why trial counsel did not make the request“); State v. Williams, 11th Dist. Ashtabula No. 2020-A-0033, 2021-Ohio-1256, ¶ 40. While it is not evident from the record why counsel chose to pursue an involuntary manslaughter lesser-included instruction rather than a reckless homicide one, we are reluctant to second-guess counsel‘s decisions on which lesser included instructions to seek, if any.
{44} Nonetheless, even presuming counsel should have sought such an instruction, we do not find that prejudice resulted from the failure to request a jury instruction on reckless homicide.
{45} An instruction on a lesser included offense must be given to the jury “where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” State v. Hall, 11th Dist. Trumbull No. 2017-T-0032, 2019-Ohio-1719, ¶ 26, quoting State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus. Of note, the Ohio Supreme Court has held that reckless homicide is not a lesser included offense of felony murder, for which Bankston was ultimately convicted. State v. Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 1. Even presuming, however, that the
{46} The first assignment of error is without merit.
{47} In his second assignment of error, Bankston argues that the trial court violated his due process rights by failing to allow the requested Involuntary Manslaughter instruction.
{48} “An appellate court reviews a trial court‘s refusal to give a requested jury instruction for an abuse of discretion.” State v. Petway, 2020-Ohio-3848, 156 N.E.3d 467, ¶ 36 (11th Dist.), citing State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240. An abuse of discretion occurs when the trial court fails “to exercise sound, reasonable, and legal decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black‘s Law Dictionary 11 (8th Ed.Rev.2004).
{50} Bankston argues that the failure to give the instruction for Involuntary Manslaughter violated his due process rights as such an instruction “would have allowed him to fully present a conflicting defense theory” and that, without the instruction, he was “denied the chance to fully admit that domestic violence occurred due to his admission of slapping Pyles.” The decision not to give the instruction was not made until after the defense rested, so it is unclear how he was denied the chance to admit that domestic violence occurred.
{52} For the foregoing reasons, Bankston‘s convictions for Murder, Felonious Assault, and Domestic Violence in the Ashtabula County Court of Common Pleas are affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.