2007 Ohio 3502 | Ohio Ct. App. | 2007
{¶ 3} On August 27, 2001, Robinson and Carter were at a bar in Steubenville, Ohio, the Safari Lounge, with a group of their friends. Wade was also at the Safari Lounge with a group of his friends. At one point during the evening, Carter was overheard saying that he would like to kill everybody in Wade's group of friends. Robinson and Carter left the Safari Lounge before Wade and a mutual friend warned Wade that he had a feeling that Carter and Robinson may do something bad that night. When Wade drove home in the early hours of August 28, 2001, he was met by Carter and Robinson. He got into an altercation with them and they shot him multiple times. Wade was dead by the time emergency medical personnel responded to the scene.
{¶ 4} There were three eyewitnesses to the shooting, Demetrius Birden, a cousin of Wade's who was later murdered in an unrelated incident, Carl Williams, and Tina, an *2 unidentified Caucasian girl. Williams, a convicted felon who was testifying in an attempt to cooperate with federal authorities, testified that he saw the entire altercation in front of Wade's home.
{¶ 5} Carter was indicted for the murder of Wade on June 3, 2004. The indictment charged Carter with aggravated murder, complicity to aggravated murder, murder, complicity to murder, and two counts of felonious assault and complicity to felonious assault. Each of these charges also contained a firearm specification. The indictment was later amended on July 19, 2004. The same charges were filed against Robinson. Carter and Robinson retained the same counsel to represent them against these charges.
{¶ 6} On January 12, 2005, the State made a plea offer to Carter. That offer proposed that Carter plead guilty to one count of felonious assault in exchange for testifying against Robinson. At two separate hearings, the trial court urged Carter to obtain the services of separate counsel to advise him on whether to accept this plea since his current counsel represented both he and Robinson. The trial court offered to appoint separate counsel to Carter for this purpose. Carter turned down the offer of separate counsel, refused to discuss the matter with new counsel, and rejected the State's plea offer.
{¶ 7} The matter proceeded to a jury trial on February 1, 2005. During that trial, defense counsel's main strategy was to discredit the testimony of the State's only eyewitness, Williams, by using witnesses who testified that he was not in Steubenville on the date in question. In rebuttal, the State called a witness who testified that Robinson bribed one of the defense witnesses who testified that Williams was in Chicago during August 2001, not Steubenville. After deliberation, the jury found Carter guilty of all counts. The trial court then sentenced Carter to twenty-three years to life.
{¶ 9} "The trial court erred when it failed to declare a mistrial after the impartiality of the jury was compromised when jurors discussed and considered information outside *3
the record in violation of the Appellant's
{¶ 10} Carter maintains that he was prejudiced by the fact that one juror, during the course of the trial, discovered he knew one of the defense witnesses and told the rest of the jury that he was afraid of retaliation if they returned a guilty verdict. Carter claims the trial court was obligated to question each juror regarding whether this information would influence their decision, which it did not do.
{¶ 11} In this case, a juror informed the trial court during deliberations that he was uncomfortable with the possibility of a guilty verdict since he knew a defense witness. The jury's note to the trial court stated:
{¶ 12} "Juror realized during the testimony that he was familiar with Blake Thompson. Blake resided at the same complex (apt) within the last year. Juror did not know his name. Juror feels uncomfortable with possibility of defendants receiving a guilty verdict. Blake does recognize Juror as he has spoken to him in Hallway."
{¶ 13} After receiving this note, the trial court spoke to the juror in question. He stated that he recognized "quite a few of the audience members" and was feeling "paranoid" about the possibility that he may be retaliated against if there was a guilty verdict. He stated that he voiced these concerns to the other jurors. However, when asked by the court whether he could put these concerns aside and decide the case based on the available evidence, the juror stated that he could do so. After the trial court questioned the juror, defense counsel objected, claiming that he believed the jury was no longer competent to give a verdict.
{¶ 14} "An accused is entitled to a trial before an impartial, unprejudiced, and unbiased jury." State v. Daniels (1993),
{¶ 15} This and other district courts of appeals have, in the past, presumed prejudice when a criminal defendant has proven juror misconduct. See State v. Hood (1999),
{¶ 16} Trial courts are given broad discretion when dealing with allegations of juror misconduct. Keith at 526-527. Thus, its decision when faced with such allegations must be reviewed for an abuse of discretion. Id. at 528. "The term `abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v.Adams (1980),
{¶ 17} Carter argues that the juror was biased because he was concerned for his safety if the jury rendered guilty verdicts. However, "[a] juror's concerns for safety, standing alone, are not sufficient to warrant a new trial." State v. Garcia, 8th Dist. No. 79917, 2002-Ohio-4179, at ¶ 86. The party alleging juror misconduct must still prove bias. Id. Thus, the fact that a juror worked in a high-crime area and was afraid the defendant's family knew him did not prove that he was biased. Id. Likewise, the fact that jurors felt like they were followed when out to lunch and were concerned about the defendants' access to the personal information on the jury questionnaires did not prove bias.Daniels at 487.
{¶ 18} In this case, Carter has not proven that any member of the jury was biased *5 as a result of the juror in question's concerns. The juror in question told the judge that he could decide the case based on the fact presented at trial. Furthermore, his concerns, if they did influence him at all, would have made him more likely to find Carter not guilty, rather than guilty. We cannot conclude that the trial court abused its discretion when it overruled Carter's motion for a mistrial at this stage in the proceedings.
{¶ 19} Finally, Carter suggests that the trial court should have conducted a more thorough investigation into juror bias by questioning each juror individually to see if the juror's concerns affected them in any way. However, "the scope of voir dire is within the discretion of the trial court and varies depending on the circumstances of each case."State v. Williams,
{¶ 20} For these reasons, the arguments within Carter's first assignment of error are meritless.
{¶ 22} "The prosecutor's pervasive misconduct during the course of the Appellant's entire trial denied the Appellant his right to a fair trial and due process as guaranteed by the
{¶ 23} The test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial. State v.Fears,
{¶ 24} Because Carter argues the prosecutor committed misconduct in a variety of different ways, we will address each of his claims in turn.
{¶ 26} Carter is correct that evidence that an attempt by a third-party to bribe or otherwise influence a witness is generally inadmissible against a defendant. State v. Smith (1990),
{¶ 27} Courts from other states have held that there is sufficient circumstantial evidence that a defendant knew and approved of an attempt to influence a witness if the defendant was present during such an attempt. See Saunders v. State (Fla. 1989),
{¶ 28} In this case, the prosecutor elicited testimony showing that Robinson both attempted to and actually bribed witnesses. However, he did not introduce any evidence showing that Carter knew about or approved of those attempts. Nevertheless, we cannot conclude that the prosecutor committed misconduct when asking these questions.
{¶ 29} First, evidence that tends to demonstrate the attempted bribery of a witness by a defendant is admissible against that defendant since such an attempt is an admission of guilt. State v. Hunt, 8th Dist. No. 84528,
{¶ 30} Furthermore, the prosecutor may have been able to prove that Carter either knew or approved of Robinson's bribery attempts. If he had such proof, such as Carter's presence during the bribery attempts, then evidence of Robinson's bribery attempts would be admissible against Carter. See, generally, Admissibility in criminal case, on issue of defendant's guilt, of evidence that third person has attempted to influence a witness not to testify or testify falsely, 79 A.L.R.3d 1156. Likewise, the prosecutor may have had a good faith basis for asking these types of questions. Such evidence was not introduced because defense counsel did not raise the issue. Finally, the prosecutor may have reasonably believed that any harm to Carter would be mitigated by a curative instruction by the trial court if Carter had objected to the introduction of this testimony. For instance, the First Circuit has held that any risk of prejudice in this type of testimony is cured by an instruction that the jury is not to consider the testimony in any manner as to the defendant. U.S. v. Colon-Munoz (1st Cir.1999),
{¶ 31} Thus, we cannot conclude that the prosecutor committed misconduct by asking these questions for many reasons. Accordingly, Carter's prosecutorial misconduct argument with regard to questions about witness tampering is meritless.
{¶ 33} In its cross-examination of Birden, the State asked her whether she received a certain phone call and whether she would be surprised if there was a recording of that phone call. After asking these questions, the prosecutor informed the trial court at a sidebar that it had a copy of this tape, but did not wish to play it at this time. Instead, the prosecutor stated that he preferred to recall Birden on rebuttal and play the tape at that time. The trial court then excused Birden from the witness stand, but told her "I think you're going to be recalled. So, we need for you to stay," to which Birden replied, "Okay."
{¶ 34} At the end of the day, the prosecutor asked to ensure that the defense witness which he planned to call the next day in rebuttal knew that they should appear. The trial court asked if Birden was still present, since it had specifically told her to stay. Defense counsel informed the trial court that she was not in the hall and the prosecutor speculated that she must have left. The prosecutor asked the trial court if it felt that he should subpoena her to appear the next day, but the trial court answered that it did not believe that this was necessary. The prosecutor then told the trial court that he had four phone numbers he could use to contact Birden and that he would "track her down."
{¶ 35} The next day, the State began its presentation of the evidence on rebuttal by calling Birden to the stand. The bailiff informed the trial court, in the jury's presence, that Birden was not present. At a sidebar, the prosecutor said he tried contacting Birden at the three phone numbers available to him, but that there was no answer at two of the numbers and no minutes available for the third number. The prosecutor then called his next witness.
{¶ 36} During closing argument, the prosecutor used Birden's failure to appear for rebuttal to impeach her testimony.
{¶ 37} "Daphne Birden, [defense counsel] didn't even mention her [during his closing argument]. You know why he didn't mention her? Because she didn't come back. She left and was told by the Judge to come back and she didn't even come back. Why? Because of the tape. I told her I was going to play it for her. Come back to listen to it. I guess she wasn't interested. Speaks volumes. *9
{¶ 38} "What people don't say is as important as the things they do say. What people don't do is as important as the things that they do. * * *
{¶ 39} "Daphne Birden doesn't seek the truth. She gets paid for the truth. Her truth, whatever the price is, she must not have gotten paid enough. She could only tell half of the story."
{¶ 40} A prosecutor is encouraged to prosecute with earnestness and vigor. State v. Smith (1984),
{¶ 41} Nevertheless, Carter has not shown that he was prejudiced by this misconduct. There was a second reason to doubt Birden's testimony, Wrenn's testimony that Robinson bribed Birden. The prosecutor also mentioned this during closing argument. This ground alone is enough to seriously doubt Birden's credibility. Accordingly, we cannot conclude that the prosecutor's remarks in this case were enough, on their own, to require a reversal. Carter's arguments to the contrary are meritless.
{¶ 43} When reviewing the statements a prosecutor makes during closing *10
argument for prosecutorial misconduct, the Ohio Supreme Court has instructed appellate courts to give prosecutors "a certain degree of latitude in summation. The prosecutor may draw reasonable inferences from the evidence presented at trial, and may comment on those inferences during closing argument. We view the state's closing argument in its entirety to determine whether the allegedly improper remarks were prejudicial." (Citations omitted) State v. Treesh,
{¶ 44} Despite the fact that prosecutors are encouraged to argue fervently for conviction, see State v. Stephens (1970),
{¶ 45} Carter argues that the prosecutor's entire closing argument was designed to appeal to the juror's emotions, but a review of the entire argument does not support this contention. The prosecutor certainly began and finished his closing argument with references to the loss that Wade's family suffered. However, the bulk of the closing argument is based on the evidence introduced at trial and the prosecutor's inferences from that evidence. "[A] conviction based solely on the inflammation of fears and passions, rather than proof of guilt, requires reversal." State v. Williams (1986),
{¶ 46} Carter next contends that the prosecutor improperly expressed his personal belief or opinion numerous times and made numerous references to facts outside the record. However, a prosecutor is permitted to make reasonable inferences from the evidence and many of these instances are nothing more than inferences from the evidence. SeeTreesh at 466. For instance, the prosecutor told the jury, "I know what happened in this case." However, he followed this up by explaining that he and the jury knew what happened because they had all heard the testimony. Clearly, the prosecutor's *11 statement was an inference based on the evidence.
{¶ 47} Similarly, the prosecutor referred to Carter as someone who kills people. But this statement does not indicate that the prosecutor has knowledge of facts outside the record. Instead, it shows that he reached this conclusion based on the evidence in this case.
{¶ 48} Finally, Carter complains about the references to him and Robinson being drug dealers. However, a witness testified that Carter and Robinson were angry because drugs were stolen in the robbery of Robinson's brother. And the State's whole case was based on the theory that Robinson and Carter sought revenge on Wade because of that robbery. The prosecutor's comments were merely inferences from evidence in the record.
{¶ 49} Other examples of this type of prosecutorial misconduct which Carter cites, such as the feelings of people on the street, speculation about whether Robinson and Carter planned the shooting before it occurred, and speculation on exactly what occurred at the scene of the crime, are more obviously examples of inferences based on the evidence.
{¶ 50} Finally, Carter maintains that the prosecutor improperly denigrated defense counsel in his closing argument. This argument is baseless. During trial, a witness testified that he saw a defense witness receive money from Robinson shortly after that defense witness spoke to defense counsel. The prosecutor's recitation of these facts at closing argument is proper and does not denigrate counsel since it does not infer that counsel knew or approved of the alleged bribes.
{¶ 51} Carter's arguments concerning the prosecutor's comments during closing statements are all meritless.
{¶ 53} "The Appellant was denied effective assistance of counsel as guaranteed by the
{¶ 54} To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate counsel's performance was deficient and that deficient performance prejudiced the defense. Strickland v.Washington (1984),
{¶ 55} Carter argues that his counsel is ineffective for many reasons and we will address each of those arguments separately.
{¶ 57} In cases of potential conflict of interest resulting from one attorney *13
representing co-defendants, the United States Supreme Court has held that dual representation is not a per se violation of due process and, in some cases, it may be preferable to launch a common defense against a common attack. Holloway v. Arkansas (1978),
{¶ 58} Both defense counsel and the trial court have an affirmative duty to ensure that conflicts do not interfere with a defendant's representation. State v. Dillon,
{¶ 59} In some cases, neither counsel nor defendant raises an objection to the joint representation. In those cases, "[a] trial court is not constitutionally mandated to inquire of criminal co-defendants whether they wish to be jointly represented by the same counsel."State v. Manross (1988),
{¶ 60} In this case, the prosecution's plea offer created an actual conflict of interest between Carter and Robinson, since a condition of that offer was that Carter testify against Robinson. However, we cannot tell from the record whether counsel's joint representation adversely affected Carter. In particular, it is impossible to say, at this stage in the proceedings, whether separate counsel would have advised Carter to accept the plea offer and/or whether Carter would have taken this advice and actually accepted that offer. Carter is merely asking that this court speculate as to the effect of separate counsel on this decision. We cannot do so. This is an issue which is the proper subject of post-conviction proceedings.
{¶ 62} Joinder is governed by R.C.
{¶ 63} "When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court, for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, orders one or more of said defendants to be tried separately."
{¶ 64} The law favors joinder because a single trial will conserve time and expense and may minimize the potentially disparate outcomes that can result from successive trials before different juries.State v. Schiebel (1990),
{¶ 65} In this case, Carter argues that joinder of the trials allowed evidence which was inadmissible against him, namely, Robinson's prior brandishment of a firearm and bribery attempts, to be used against him. The most damning of these two types of evidence is the evidence that Robinson had attempted to bribe witnesses. However, trial counsel could not have been ineffective for failing to request severance because of the bribery evidence since that evidence was rebuttal evidence which was not made known to counsel prior to trial. Counsel could not reasonably be expected to anticipate that the State may bring evidence that one co-defendant attempted to bribe witnesses when he is not given any advance warning of such evidence prior to trial.
{¶ 66} Furthermore, counsel was not ineffective for failing to request a severance due to the evidence that Robinson had brandished a firearm in the month prior to Wade's death. This evidence was, for the most part, cumulative of other evidence already introduced. Many witnesses testified that tensions had been rising between Robinson and Carter on one side and Sayles and his friends on the other. Many witnesses testified that they had seen Robinson with a firearm. Thus, the fact that Robinson had brandished a firearm at Sayles and Sayles's friend added little.
{¶ 67} In conclusion, counsel was not ineffective for failing to request that the trial be severed. Carter's arguments to the contrary are meritless.
{¶ 71} "The Appellant was denied his right to confront the witnesses against him under the
{¶ 72} In this assignment of error, Carter contends that he was deprived of his right to cross-examine the witnesses against him in three ways: 1) by limiting the defense's ability to cross-examine the State's only eye witness, Carl Williams, about his criminal history; 2) by allowing the prosecution to introduce testimony which was not based on the witness's personal knowledge; and, 3) by admitting statements by Robinson, Carter's non-testifying co-defendant, as substantive evidence of Carter's guilt. Each of these issues will be addressed in turn.
{¶ 74} In the second instance, defense counsel was cross-examining Williams about the specifics of what he allegedly saw at the scene and comparing these statements to Williams' prior statements to police. After Williams responded that he may have to have his memory refreshed, counsel asked, "How about 900 grams of marijuana and 220 grams of cocaine?" The prosecutor objected, the trial court sustained the objection, and the parties then had a sidebar. At the sidebar, the prosecutor stated that Williams had not been convicted for anything regarding those drugs and the trial court stated that he wanted "no further discussion" of those issues and, "We're done with that kind of stuff." Defense counsel then began questioning Williams on other topics.
{¶ 75} In the final instance which Carter cites, defense counsel was asking Williams about how long Williams had been cooperating with federal authorities during recross-examination. The prosecutor objected to these questions and the trial court excused the jury for lunch without ruling on the objection. At a sidebar, the trial court indicated that the parties held an unrecorded conference at which they discussed the objection and instructed counsel that he should not inquire further into that topic. When the trial resumed after lunch, defense counsel did not resume this line of questioning.
{¶ 76} Evid.R. 609(A) allows a party to use a witness's prior convictions to impeach the witness's testimony. However, this Rule only applies to convictions; prior bad acts which have not resulted in convictions cannot be used as the basis for an attack upon a witness's credibility. State v. Rodriquez (1986),
{¶ 77} When the conviction is only being used to attack a witness's credibility, a trial court has broad discretion to limit any questioning of the witness on cross-examination which asks more than the name of the crime, the time and place of conviction and the punishment imposed.State v. Robb,
{¶ 78} In this case, the sole purpose for using Williams' prior convictions was to attack his credibility. Accordingly, we must review the trial court's decision for an abuse of discretion.
{¶ 79} In this case, the trial court did not abuse its discretion when it refused to let defense counsel delve into the fraud conspiracy which Williams mentioned on cross-examination. Even if Williams' fraudulent acts had resulted in a conviction (and there is no evidence supporting this conclusion in the record), the information defense counsel was seeking was far beyond the name of the crime, the time and place of conviction and the punishment imposed. Furthermore, there is no indication in the record that the facts of that possible prior conviction bear any relevance to Williams' credibility in this case.
{¶ 80} The trial court also did not abuse its discretion when it prevented defense counsel from questioning Williams about drugs. There is no indication that Williams was ever convicted for any offense involving the drugs to which counsel referred. In his brief, Carter hints that criminal charges may have been filed against Williams regarding those drugs in Jefferson County and those pending charges may have given Williams a motive to lie on the stand. However, such evidence is not before this court in this appeal and, if true, would be the proper subject of a post-conviction proceeding.
{¶ 81} Finally, the trial court did not abuse its discretion when it stopped Carter's cross-examination into the length of time that Williams had been cooperating with federal authorities. After an unrecorded sidebar, the trial court concluded that the line of questioning should be discontinued. We must presume that the trial court's decision in this regard is correct, since the unrecorded sidebar could easily have revealed that counsel was just going to further delve into the facts underlying Williams' criminal history. State v. Phillips,
{¶ 82} In conclusion, the trial court did not abuse its discretion when it limited the scope of Carter's cross-examination of Williams in the manners discussed above. Carter's arguments to the contrary are meritless. *19
{¶ 84} The Confrontation Clause, which is encapsulated within the
{¶ 85} Carter's argument that he was denied his right to confront the witnesses against him because the portions of some of the witnesses' testimony, specifically evidence of the deteriorating relationship between Wade and Carter/Robinson, was not based on their own personal knowledge is meritless. Carter still had the opportunity to cross-examine these witnesses and their credibility about those subjects could easily be called into question if Carter could have proved that their testimony was not based on their own personal knowledge. Furthermore, many of these witnesses based their opinions on the relationship between Wade and Carter/Robinson on their personal knowledge; they did not repeat hearsay when they made these statements, but made independent observations based on what they heard. Any error in the admission of any of this testimony has nothing whatsoever to do with Carter's rights under the Confrontation Clause. Furthermore, any error in the admission of any single one of these *20 statements did not prejudice Carter, since such testimony would merely be cumulative of the other, properly admitted testimony.
{¶ 86} Carter's arguments concerning the admission of hearsay evidence merits more discussion. The Confrontation Clause and hearsay rules spring from a common origin and protect the same values; nevertheless, the proscriptions of the Confrontation Clause cannot be likened with the general rule prohibiting the admission of hearsay statements. White v.Illinois (1992),
{¶ 87} In contrast, the Confrontation Clause ensures that a defendant will not be convicted based upon charges of unseen, unknown, and unchallengeable witnesses. Lee v. Illinois (1986),
{¶ 88} The admission of hearsay does not violate the Confrontation Clause if 1) the prosecutor shows that the declarant is unavailable to testify and 2) the statement bears adequate "indicia of reliability."Ohio v. Roberts (1980),
{¶ 89} In this case, Wrenn testified that he took Daphne Birden to see defense counsel soon before trial. After leaving counsel's office, Wrenn took her to see Robinson. *21 Daphne Birden went into a room with Robinson and came out with $470.00. She then told Wrenn, "Damn, we got paid good for doing this."
{¶ 90} Daphne Birden's statement is clearly hearsay. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Daphne Birden's statement was an out-of-court statement made by someone other than the witness (Wrenn), which was offered to prove the truth of the matter asserted (That Daphne Birden was bribed). Accordingly, it was improper to admit this evidence unless one of the exceptions to the hearsay rule applies.
{¶ 91} The State contends that the statement could be admissible as either a present sense impression, under Evid.R. 803(1), or an excited utterance, under Evid.R. 803(2). We agree, especially since Carter objected to Wrenn's testimony generally, but did not specifically object to this statement.
{¶ 92} Evid.R. 803(2) allows a statement which would otherwise be inadmissible hearsay to be admitted if it is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The admissibility of such statements does not depend upon the availability of the declarant as a witness. Evid.R. 803. Such statements are admissible because "[t]he circumstances surrounding an excited utterance — a startling event, a statement relating to that event, a declarant under the stress of the event — do not allow the declarant a meaningful opportunity to reflect on statements regarding the event. Without opportunity to reflect, the chance that a statement is fabricated, or distorted due to a poor memory, is greatly reduced." State v.Wallace (1988),
{¶ 93} In this case, Daphne Birden's statement was made immediately after she received the alleged bribe, an event which the trial court could reasonably have concluded would be a startling event. The statement was related to that event and, given the immediacy between event and statement, the trial court could have reasonably concluded that Daphne Birden was under the excitement of the event when making the statement. These conclusions are stronger since Carter did not challenge this particular *22 testimony as hearsay or test its admissibility under this hearsay exception.
{¶ 94} The excited utterance hearsay exception is a firmly rooted hearsay exception with sufficient guarantees of trustworthiness.State v. Shoop (1993),
{¶ 95} Carter's final argument under the Confrontation Clause is that the trial court erred by admitting the warrant authorizing the search of Robinson's apartment into evidence. He complains that the affidavit attached to the warrant contained hearsay which was different than the testimony presented at trial. He also argues that the warrant revealed that Robinson had previously been convicted of carrying a concealed weapon involving a firearm and discusses the possible sale of drugs from Robinson's residence. However, the admission of this evidence did not affect Carter's rights under the Confrontation Clause.
{¶ 96} The admission of hearsay does not violate the Confrontation Clause if the declarant testifies at trial since the defendant has the opportunity to confront the declarant on cross-examination. State v.Keenan (1998),
{¶ 98} The State's argument is meritless. Carter did both express to the trial court that he did not wish for independent counsel and filed an affidavit expressing his desire to be tried jointly with Robinson. But at no time did the trial court ask Carter the questions necessary to ascertain whether Carter knew and understood the issues surrounding the admission of Robinson's out-of-court statements against him. Carter's actions prior to trial do not constitute a knowing, intelligent, and voluntary waiver of these issues.
{¶ 99} Nevertheless, Carter did not object to the admission of these statements during trial. Accordingly, he has waived all but plain error. Crim.R.52(B); State v. Jalowiec,
{¶ 100} Carter tries to argue that hearsay statements are subject to a higher level of scrutiny, by saying that they are "presumptively unreliable." However, Carter uses that phrase out of context. The United States Supreme Court has held the admission of certain types of hearsay evidence is "presumptively unreliable" and that the admission of such evidence may violate the Confrontation Clause. Lilly v. Virginia (1999),
{¶ 101} Robinson's out-of-court statements fall into two general categories: 1) statements before Wade's death showing that Robinson wanted revenge after the robbery and assault of his brother and 2) Robinson's statements to Williams after the murder. The issues surrounding the admission of each category of testimony are very different, although the issues within each category are similar.
{¶ 102} The trial court did not commit plain error when admitting the first category *24 of testimony. Some of these statements do not show that Robinson had an escalating desire to exact revenge on Wade for the crimes against Robinson's brother. For instance, both Wade's father and brother talked to Robinson to dissuade him from taking action against Wade. They each said that Robinson said, "okay," or "all right," statements which are far from damning.
{¶ 103} Other statements appear to be excited utterances or present sense impressions and, therefore, admissible under Evid.R. 803(1) and (2). For instance, Dixon said that Robinson was "very upset" about the assault on his brother and testified about altercations between Robinson and other parties. This testimony clearly falls within these exceptions. Likewise, the statements Robinson made to Brown on the night of the murder could have been understood to be excited utterances, especially since there was no objection to this testimony.
{¶ 104} The same cannot be said of Robinson's statements to Williams. Those statements were both bribes and confessional in nature. The only hearsay exception they could fit into would be Evid.R. 804(3), statements against interest.
{¶ 105} The United States Supreme Court has held that it is error to admit any statements made by a non-testifying co-defendant that inculpates an accused since this violates the accused's
{¶ 106} Since this case does not involve Bruton-type issues, Carter's rights under the Confrontation Clause are violated unless Robinson's statements fall within a firmly rooted hearsay exception or contain adequate indicia of reliability. Roberts at 66; State v. Robinson, 7th Dist. No. 00 CA 190, 2002-Ohio-6734, at ¶ 19. Evid.R. 804(3) is a firmly rooted exception to the rule against the admission of hearsay. State v.Gilliam,
{¶ 108} "The trial court denied Appellant his rights to a fair trial and due process of law by permitting witness testimony that did not conform to Evid.R. 401, 403, and 404(B)."
{¶ 109} In this assignment of error, Carter contends that the trial court erred when allowing evidence of Carter's prior possession of a handgun and evidence of Robinson's attempts to bribe witnesses. He contends that this evidence is inadmissible character evidence which was not introduced for any of the permissible purposes under Evid.R. 404(B), which bars the use of "other acts" evidence to prove the character of a person in order to show that he acted in conformity therewith.
{¶ 110} Carter contends that the State consistently elicited testimony regarding Carter's prior possession of a handgun. He maintains this is inadmissible "other acts" evidence and should have been excluded. In response, the State argues that Carter opened the door to the admission of this type of evidence when Carter's brother testified that Carter had not possessed a gun in the past.
{¶ 111} Character evidence is generally not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. Evid.R. 404(A). Thus, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evid.R. 404(B). This rule of evidence is in accord with R.C.
{¶ 112} "In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant." Id.
{¶ 113} "The focus of the inquiry into the admissibility of other-acts evidence is *26
whether the evidence is being offered for the impermissible purpose of proving that the accused acted in conformity with his or her criminal character in committing the charged offenses, or whether the evidence is being offered for another purpose." State v. Pearson (1996),
{¶ 114} Evidence that a person carries a gun is the type of "other acts" evidence which is generally inadmissible since it portrays the person as a violent individual who regularly carried guns. State v.Carusone, 1st Dist. No. C-010681, 2003-Ohio-1018, at ¶ 30. However, this type of evidence is admissible if it is admitted for another purpose.State v. Parrish (1991),
{¶ 115} Evidence that a defendant in a crime involving a firearm possessed a firearm at a point near in time to the crime is relevant to show that the person had an opportunity to use a firearm in the crime.Parrish at 666. Such evidence can also be used to prove motive, intent, preparation, and plan. State v. Bruno, 8th Dist. No. 77202, 2001-Ohio-4227.
{¶ 116} In this case, Carter never opened the door to evidence of his propensity for possessing firearms. All of the testimony in this case regarding Carter's prior possession or non-possession of firearms, including that from Carter's brother, was elicited by the State. Nevertheless, this evidence was admissible.
{¶ 117} No firearm matching the one used to murder Wade was ever recovered. However, the police recovered many bullets both at the scene and within Wade. Numerous witnesses testified that they had seen Carter with a firearm and that firearm matched the caliber of weapon which was used to kill Wade. Thus, this testimony established that Carter had an opportunity to murder Wade with such a weapon. This testimony could also establish intent, preparation, or plan, since Carter could arguably have been carrying the firearm in preparation for retaliation for the assault on Robinson's brother. Carter's argument that this testimony should not have been admitted is *27 meritless.
{¶ 118} Carter next argues that the trial court erred by allowing evidence of Robinson's bribery attempts since such testimony was improper "other acts" evidence. However, this evidence was clearly not introduced to show that Robinson has a propensity to bribe. Instead, the bribe to Daphne Birden was offered to show that she had a motive to perjure herself when testifying on the defendants' behalf. Likewise, the attempted bribe to Williams was not introduced to demonstrate Robinson's character.
{¶ 119} Carter clearly has valid complaints regarding the admission of Robinson's bribery attempts. However, his complaints have nothing whatsoever to do with the admissibility of that evidence under Evid.R. 404(B). Accordingly, Carter's arguments in this regard are meritless.
{¶ 121} "The Appellant's convictions for aggravated murder and complicity to aggravated murder are against the manifest weight of the evidence and without sufficient evidence as a matter of law."
{¶ 122} The Ohio Supreme Court has stated that arguments concerning the "sufficiency of the evidence' should not be confused with those addressing the `manifest weight of the evidence.'" See State v.Thompkins,
{¶ 123} In contrast, when reviewing whether a conviction was against the manifest weight of the evidence, this court must "examine whether the evidence produced at trial `attains the high degree of probative force and certainty required of a criminal conviction.'" State v.Tibbetts,
{¶ 124} Carter was convicted of aggravated murder in violation of R.C.
{¶ 125} In order to show that a person has acted with prior calculation and design, the State must prove more than "instantaneous deliberation;" instead, the State must show that the defendant had a scheme designed to implement a calculated decision to kill. State v.Cotton (1978),
{¶ 126} In this case, the evidence supports the jury's conclusion that the murder was with prior calculation and design. The testimony shows that tensions rose between *29 Robinson and Carter and Wade during the month of August 2001. During the night that Wade was shot, both he, Robinson, and Carter were at the Safari Lounge in Steubenville, Ohio. At one point during the night, Troy Dixon, a friend to Wade, Robinson, and Carter, heard Carter say that "he should kill everybody" in Wade's group of friends. Dixon later warned Sayles and Wade because he had a feeling something bad would happen, based on how Robinson and Carter were acting. Sayles confirmed that Dixon warned he and Wade. Robinson and Carter left the Safari Lounge before Wade.
{¶ 127} Williams testified that he saw Carter and Robinson outside Wade's house that night after Robinson and Carter left the Safari Lounge. Wade then drove up in his van, got into a fight with Robinson, and Carter and Robinson shot Wade.
{¶ 128} These facts are sufficient to show prior calculation and design. Carter and Robinson had been angry with Wade because of the assault on Robinson's brother and Carter has expressed his desire to kill Wade on the evening of Wade's death. Carter and Robinson then left the Safari Lounge to wait for Wade outside his home. They then shot and killed Wade. By waiting outside Wade's home, Carter demonstrated that he had a scheme designed to implement a calculated decision to kill. Accordingly, Carter's argument regarding the weight and sufficiency of the evidence supporting his conviction are meritless.
{¶ 130} "The cumulative effect of errors deprived the Appellant of his right to a fair trial under both the Ohio and United States Constitutions."
{¶ 131} Although a particular error might not constitute prejudicial error in and of itself, a conviction may be reversed if the cumulative effect of the errors deprives appellant of a fair trial, despite the fact that each error individually does not constitute cause for reversal. State v. DeMarco (1987),
{¶ 132} In this case, Carter has not demonstrated multiple instances of harmless error. Thus, this doctrine has no application to his appeal and Carter's seventh assignment of error is meritless.
{¶ 133} Accordingly, all of Carter's assignments of error are meritless and the judgment of the trial court is affirmed.
*1Donofrio, J., concurs. Waite, J., concurs.
