State v. BlackState v. Black
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-512975
RELEASED: February 25, 2010
JOURNALIZED:
Thomas A. Rein
940 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Donta Black (appellant), appeals his conviction for aggravated robbery. After a thorough review of the record and pertinent case law, we affirm.
{¶ 2} On May 7, 2008, after Sharlene Hill (Hill) dropped her children off at school, she was picked up in a vehicle driven by her niece, Ayron Brown (Brown). The two drove around the Cleveland area smoking marijuana with Brown‘s baby in the car. At some point, the two women went to Brown‘s home and picked up appellant.1 They then picked up Lonnell Royal (Royal), and the group continued to drive around smoking marijuana.
{¶ 3} Hill testified that appellant kept asking if there was anybody they could lick. According to Hill, this meant appellant was asking if she knew anybody the group could rob for money. Hill then received a phone call from Irwin Belser (Belser). Hill asked Belser for money, and this conversation was overheard by appellant. Hill also testified that appellant likely heard her tell Brown that Belser always carried money with him.
{¶ 4} The group then stopped at Royal‘s mother‘s house. According to Hill, Royal went inside the house and came back out carrying something
{¶ 5} As the group was heading toward Hill‘s house, the vehicle they were riding in ran out of gas. Hill called Belser,2 who said he would bring a gas can and take her to get some gas. While the group was waiting for Belser to arrive, appellant and Royal walked away and were not present when Belser arrived to provide assistance. After assisting Hill in putting gas in the vehicle, Belser indicated that he and his friend, Gerald Thomas (Thomas), who was with him that day, would follow Hill to her house.
{¶ 6} When Belser and Thomas first arrived at Hill‘s house, no one was there. The two ran some errands, then Hill called and said she was home and they could come over. After arriving at Hill‘s house the second time, Belser went inside while Thomas waited in the car. According to Belser, he was sitting at the kitchen table talking to Hill and Brown when Hill excused herself to use the bathroom.
{¶ 7} After Hill had gone to the back of the house, two men unknown to Belser entered the house without knocking. Belser described one of the men as short and stocky and the other as tall and skinny with glasses. Belser informed Hill that she had company, and the two men went to the back of the
{¶ 8} According to Hill, she was in the bathroom when the robbery took place, but she heard a lot of commotion coming from the front of the house. Hill testified that Brown came running into the bathroom and told her that Belser was being robbed. When Hill opened the bathroom door, she saw Belser on the floor with appellant and Royal standing over him. Hill stated that when the men were finished robbing Belser, appellant came to the back of the house looking for Hill and Brown. Appellant then entered the bathroom and attempted to punch Brown, who ducked, causing appellant to hit the wall. According to Hill, it was after this occurrence that appellant and Royal went out the front door.
{¶ 9} After appellant and Royal left the house, Belser crawled to the front door and raised himself up so that he could see out the screen in the upper portion of the door. Belser saw appellant and Royal force Thomas out
{¶ 10} Hill then located a cell phone and contacted 911. Hill informed the operator that her friend had been robbed; Belser could also be heard giving information to Hill on the tape.3 Hill initially told the police that she did not know the men who robbed Belser, but she later provided a statement to the police identifying appellant and Royal as the men who took part in the robbery. Hill also told the police that appellant and Royal gave Brown $300 from the robbery, and Brown split the money with Hill. Hill testified that she thought she was given the money to keep quiet.4
{¶ 11} After appellant was arrested, he was placed in a lineup to see if Belser could identify him. According to the testimony of Detective Arthur Echols with the Cleveland Police Department, who conducted the lineup, the lineup was not performed under ordinary circumstances. Detective Echols testified that a lineup is ordinarily conducted so that the victim is behind one-way glass and cannot be seen by the suspect. The jail where appellant
{¶ 12} According to Detective Echols, Belser kept indicating that appellant looked familiar. Detective Echols testified that when Belser came up to the window and was recognized by appellant, appellant became extremely agitated waving his arms. It was at this point that Belser started acting nervous and indicated that he could not identify anyone in the lineup. After returning home, Belser left a message for Detective Echols stating that he recognized appellant in the lineup as one of the men who robbed him.
{¶ 13} Appellant was indicted on two counts of aggravated robbery, both with one- and three-year gun specifications. The first count was based on appellant‘s alleged robbery of Belser; the second was for the alleged robbery of Thomas. Appellant pled not guilty, and the matter proceeded to a jury trial. The jury found him guilty of aggravated robbery5 with respect to Belser, but not guilty of the gun specifications and not guilty of the aggravated robbery of Thomas. Appellant was sentenced to three years in prison with five years of postrelease control on his release from incarceration. This appeal followed.
Law and Analysis
Sufficiency and Manifest Weight
{¶ 15} Since appellant‘s first two assignments of error are interrelated, they will be analyzed together. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 486, 124 N.E.2d 148. A conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶ 16} Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the trier of fact as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147, 156, 529 N.E.2d 1236.
{¶ 18} Sufficiency of the evidence is subjected to a different standard than is manifest weight of the evidence.
{¶ 19} The United States Supreme Court recognized the distinction in considering a claim based upon the manifest weight of the evidence as opposed to sufficiency of that evidence. The Court held in Tibbs v. Florida, supra, that, unlike a reversal based upon the insufficiency of the evidence, an
{¶ 20} The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, 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. Id. at 720.
{¶ 21} Appellant was convicted of aggravated robbery in violation of
{¶ 22} (1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]
{¶ 23} Based on our review of the testimony and evidence presented at trial, we cannot find that appellant‘s conviction was based on insufficient
{¶ 24} Appellant relies on several theories to argue that his conviction was based on insufficient evidence and was against the manifest weight of the evidence. He first relies on Belser‘s inability to identify him in a lineup and the fact that Belser had a relationship with Hill to argue that Belser‘s testimony was unreliable. This argument is unpersuasive. Belser‘s trial testimony did not differ in any significant way from the information he provided to the police on the date of the incident. Although Belser was
{¶ 25} Appellant also argues that Hill‘s testimony was not credible and should not have been relied upon by the jury. Hill was eventually indicted for her role in the robbery. In exchange for her testimony against appellant, she received a favorable plea deal. Appellant relies on this fact, along with Hill‘s testimony that she was high on the day in question and the fact that she indicated to the 911 operator that she could not identify the robbers, to argue that his conviction should be overturned.
{¶ 26} The fact that Hill received a favorable plea deal was known to the jury. In fact, appellant‘s trial counsel rigorously cross-examined Hill about her plea deal, her drug usage, and the fact that she lied to the police when the robbery was initially reported. Hill never denied her role in this robbery, nor did she deny using marijuana. When questioned about why she lied to the police about knowing the robbers’ identity, Hill testified that she was high at the time and was afraid of what would happen if she told the truth because street rules mandate keeping quiet about such things.
{¶ 28} In his third assignment of error, appellant argues that the trial court improperly allowed Detective Echols to testify about the veracity of other witnesses. Appellant specifically relies on two statements made by Detective Echols at trial. The first statement appellant challenges was Detective Echols‘s testimony that appellant‘s statement was not consistent with those provided by Hill, Brown, and Belser. Appellant also argues that the trial court committed reversible error when it allowed Detective Echols to testify that he had no evidence that the Browns7 wanted to frame appellant.
{¶ 29} We note at the outset that appellant‘s trial counsel made no objection to this testimony, so it must be reviewed using a plain error standard of review. To constitute plain error, the error must be obvious on the record, palpable, and fundamental, so that it should have been apparent to the trial court without objection. See State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Moreover, plain error does not exist unless the appellant establishes that the outcome of the trial clearly would have been different but for the trial court‘s allegedly improper actions. State v. Waddell, 75 Ohio St.3d 163, 166, 1996-Ohio-100, 661 N.E.2d 1043. Notice of plain error is to be taken with utmost caution, under exceptional
{¶ 30} In support of his argument, appellant relies on State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220 (overruled on other grounds). In Boston, a doctor was permitted to testify that a child-victim did not fantasize stories she told to her mother about sexual abuse by the defendant. Id. at 128. The Court held that an expert may not testify to the veracity of a child declarant. Id.
{¶ 31} It is undisputed that a police officer may not testify to a witness‘s veracity. See State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶122. In this case, however, appellant mischaracterizes Detective Echols‘s testimony. At trial, the state asked Detective Echols: When you compared the statements that [appellant] gave you and compare it to the statements from Ayron Brown, Irwin Belser, and Sharlene Hill, is his statement consistent? Detective Echols testified that appellant‘s statement was inconsistent with those offered by other witnesses.
{¶ 32} This testimony in no way indicates Detective Echols‘s opinion with regard to the truthfulness of the statements. He merely made a factual statement that, in comparing appellant‘s statements to those made by other witnesses, the statements were inconsistent. We find no error with this testimony. See State v. Smith, Butler App. No. CA2004-02-039, 2005-Ohio-63, ¶17 (we do not find error in the psychologist‘s testimony that the children she evaluated were consistent in what they reported verbally and what they demonstrated to the psychologist).
{¶ 34} In this case, Detective Echols did not testify as to another witness‘s veracity. He simply noted that there were inconsistencies between the statements offered by other witnesses and the story offered by appellant. As such, Boston is inapplicable.
{¶ 35} The following exchange also took place on the record:
{¶ 36} Q. Is there any reason from Donta‘s own words that the Browns want to frame him?
{¶ 38} Q. Do we have any evidence of that?
{¶ 39} A. No.
{¶ 40} Q. So through the course of your investigation, have you ever suspected that the Browns were looking to frame him?
{¶ 41} A. No.
{¶ 42} Q. Through the course of your investigation, did you ever discover any evidence that Ms. Hill was looking to frame Donta?
{¶ 43} A. No.
{¶ 44} During this testimony, Detective Echols did not provide his opinion with regard to whether any witnesses were telling the truth. He merely made factual statements that he had no evidence to support the theory that appellant was framed. Since this was a factual statement based upon Detective Echols‘s investigation, we cannot find that the trial court committed plain error in admitting this testimony.
{¶ 45} Even if we were to find that this testimony was improperly admitted, such an error on the part of the trial court would be harmless at best. Any error will be deemed harmless if it did not affect the accused‘s substantial rights. Otherwise stated, the accused has a constitutional guarantee to a trial free from prejudicial error, not necessarily one free of all error. Before constitutional error can be considered harmless, we must be
{¶ 46} Both Hill and Belser testified that appellant was one of the two individuals involved in the robbery on May 7, 2008. Hill testified that appellant was looking for someone to rob that day and knew that Belser had money. Belser testified he was absolutely certain that appellant was one of the two men who robbed him and that the other man was holding a gun during the event. Hill testified that she saw appellant taking part in the robbery when she looked out the bathroom door and that appellant shared part of the robbery money with Brown. Based on this testimony, the jury could find appellant guilty regardless of any testimony elicited from Detective Echols, and we cannot find that Detective Echols‘s testimony contributed to appellant‘s conviction. Appellant‘s third assignment of error is overruled.
Ineffective Assistance of Counsel
{¶ 47} In his fourth and final assignment of error, appellant claims he was denied the effective assistance of counsel as guaranteed by the Ohio and
{¶ 48} In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98, 477 N.E.2d 1128; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164.
{¶ 49} The Ohio Supreme Court held in State v. Bradley (1989), 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373, that, [w]hen considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel‘s essential duties to his client. Next, and analytically separate from the question of whether the defendant‘s Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel‘s ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57
{¶ 50} Even assuming that counsel‘s performance was ineffective, this is not sufficient to warrant reversal of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 [101 S.Ct. 665, 667-68, 66 L.Ed.2d 564] (1981). Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066. To warrant reversal, [t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra, at 694, 104 S.Ct. at 2068. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. Bradley at 142.
{¶ 51} Accordingly, 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. Id. at 143.
{¶ 53} It is entirely reasonable that appellant‘s trial attorney made a conscious decision not to object to Detective Echols‘s testimony as a part of his trial strategy. An attorney‘s trial tactics, even if questionable, do not constitute ineffective assistance of counsel. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶116. In addition, [t]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel. To prevail on such a claim, a defendant must first show that there was a substantial violation of any of defense counsel‘s essential duties to his client and, second, that he was materially prejudiced by counsel‘s ineffectiveness. State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831.
{¶ 54} Appellant is unable to show that his trial attorney violated any of his essential duties to appellant in failing to object to the allegedly improper testimony. Regardless, in order to substantiate a claim of ineffective assistance of counsel, appellant must prove that he would not have been convicted but for his trial counsel‘s alleged errors. Appellant has failed to meet this burden. As previously discussed, any error in allowing Detective Echols to make the alleged
Conclusion
{¶ 55} After hearing the testimony of Hill, Belser, Detective Barrow, and Detective Echols, the jury did not lose its way in finding appellant guilty of aggravated robbery. In addition, there was no manifest miscarriage of justice in this case to warrant a reversal of appellant‘s conviction.
{¶ 56} Detective Echols did not provide his opinion with regard to the veracity of another witness. Regardless, even if he did provide questionable testimony, such error was harmless, and we do not find that it would rise to the level of plain error. Because we find no problem with the elicited testimony, we cannot find that trial counsel‘s failure to object to this testimony constituted ineffective assistance of counsel. Likewise, any decision not to object falls within the ambit of reasonable trial strategy and will not be challenged by this court. Based on this analysis, appellant‘s assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
ANN DYKE, P.J., and
LARRY A. JONES, J., CONCUR
APPENDIX A
I. The state failed to present sufficient evidence that Appellant committed this crime.
II. Appellant‘s conviction is against the manifest weight of the evidence.
III. Appellant was denied a fair trial by the police officer‘s improper comments while testifying.
IV. Appellant was denied effective assistance of counsel as guaranteed by