State v. CassellState v. Cassell
Rendered on April 29, 2010
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Brehm & Associates, and Eric W. Brehm, for appellant.
APPEALS from the Franklin County Court of Common Pleas
CONNOR, J.
{¶1} Defendant-appellant, Otha Cassell, Jr., has filed these delayed appeals from judgments of the Franklin County Court of Common Pleas convicting him of promoting prostitution, possession of crack cocaine, having a weapon while under disability and trafficking in crack cocaine. For the following reasons, we affirm appellant‘s convictions.
{¶2} In early January 2007, a Columbus Police Department (“CPD“) patrol unit informed CPD Vice Squad Detective, Steven Lazar (“Lazar“), that a female they had
{¶3} Lazar attempted to locate the advertisement over the next few weeks. On February 17, 2007, he observed the advertisement in the classifieds section of the Columbus Dispatch. As Jones had described, the advertisement read simply “Olivia,” “24 hrs,” and “614-279-3651.” (State‘s exhibit No. 11, Tr. 275.) At approximately 11:00 p.m. on February 19, 2007, Lazar called the number listed in the advertisement and asked to speak to Olivia. The woman who answered the phone identified herself as Sapphire, and stated that Olivia was currently unavailable. Sapphire provided a physical description of herself and asked Lazar if he would be interested in meeting her instead of Olivia. When Lazar agreed, Sapphire stated that the cost “to meet her” was $100 for one hour and $80 for one-half an hour. (Tr. 278.) When Lazar asked what those prices covered, Sapphire replied that she did not describe specific acts over the telephone.
{¶4} Sapphire instructed Lazar to go to a convenient store on the west side and call the number again for further directions. Lazar asked if he could bring his “girlfriend” (CPD Vice Squad Officer Heidi Malone (“Malone“)) with him. (Tr. 278.) Sapphire agreed, and scheduled Lazar for an 11:30 p.m. appointment. At 11:30 p.m., Lazar called Sapphire from the convenient store. Sapphire provided directions to 418 South Terrace Avenue. Sapphire met Lazar and Malone at the door and led them to an upstairs
{¶5} Shortly thereafter, Jones knocked on the door again; Lazar let her into the bedroom. Lazar asked Jones and Sapphire if anyone else was in the house. Jones reported that appellant and his son were asleep in another bedroom. Lazar and CPD Detective Mike Perrigo (“Perrigo“) woke appellant and handcuffed him; Perrigo searched him and recovered a bag of crack cocaine from his pants pocket. A subsequent search of appellant‘s bedroom uncovered a bag containing 190 prophylactics. No other persons were present in the house.
{¶6} Appellant agreed to a police interview. During the interview, which was recorded, appellant admitted that he lived at 418 South Terrace, that his home telephone number was 614-279-3651, and that he paid the telephone bill each month. He described himself as the “head of the household.” (Tr. 378.) He stated that for the past three or four months he had rented one of the three bedrooms to several different women, including Jones and Sapphire, at a cost of $100 per week. He further stated that he was aware that the women ran an “escort” service out of the house, and that they had their own “personal clientele.” (Tr. 379.) However, he denied any involvement in the
{¶7} Several months later, appellant again became the subject of a police investigation. On August 23, 2007, CPD Detective William Best (“Best“) was working undercover when a female, later identified as Jones, approached his unmarked police vehicle and requested a ride. Believing Jones to be a prostitute, Best drove her around for ten minutes or so. When she did not say the words necessary to arrest her for solicitation, he identified himself as a police officer. Best told Jones he would not charge her with a crime if she agreed to provide information about drug trаfficking and prostitution. Jones told Best she would show him some houses where those crimes routinely occurred. To that end, she directed Best to a house located at 418 South Terrace, where she averred that a person named “J.B.” whom she described as her “pimp” and “drug supplier,” sold drugs. (Tr. 220, 232.) Jones then directed Best to a house in the south end where, according to Jones, her “connection,” J.B., picked up his
{¶8} At approximately 9:47 p.m., Best received a call from a telephone number he did not recognize – 614-376-9067. The caller, Jones, reported that drugs had already been retrieved from the south end location and that J.B. was willing to sell half of an ounce of crack cocaine for $1,200. Approximately 20 minutes later, Best received a second call from Jones, from the same telephone number, confirming the price and estаblishing the location (a bank parking lot) for the drug transaction. Based upon this conversation, Best assumed that J.B. would be present at the drug transaction, as it involved a sizable amount of cash and crack cocaine. Best, together with several other police officers, coordinated a plan to effectuate the drug transaction and subsequent arrest of J.B.
{¶9} Best drove to the pre-arranged location and waited. Shortly thereafter, a car pulled into the parking lot. Jones exited the passenger seat and ran to Best‘s vehicle, handed him a baggie of crack cocaine, and said “here‘s your dope.” (Tr. 107.) Best signaled the other officers to arrest the driver, assuming it to be J.B. J.B. was not the driver; rather, the driver was a woman named Cricket.
{¶10} Cricket was arrested and transported to the police station; Jones remained at the scene. Upon questioning, Jones told Best she sometimes met her prostitution clients at hotels on the west side. Best then devised a рlan to lure appellant to deliver drugs to one of these hotels. To that end, at approximately 11:50 p.m., Best directed Jones to call J.B. and arrange the purchase of one quarter ounce of powder cocaine. Best listened in on the call, and overheard Jones tell J.B. that she and Cricket were
{¶11} SWAT Officer Randolph Rich (“Rich“) was a member of the surveillance team. As part of his duty, Rich prepared a surveillance log (State‘s exhibit No. 1), which demonstrates that at 12:13 a.m. on August 24, 2007, an African-American male, later identified as appellant, exited the rear door of the house, entered the garage while talking on a cell phone, exited the garage in a dark-colored Jaguar, and drove away. Rich remained at the house while other members of the SWAT team followed appellant to the hotel. Upon arrival, appellant was arrested and charged with offering to sell powder cocaine.
{¶12} Best asked CPD Officer Roger Nolan (“Nolan“) to interview appellant at the scene. During the interview, appellant told Nolan he was at the hotel “looking for his girls” in order to retrieve the money they had collected from their “clients.” (Tr. 257-58.) Appellant stated that two of the women often stayed with him and “worked for him.” (Tr. 261.) Appellant also stated that he would supply the women‘s clients with drugs if requested to do so. Nolan assumed these statements meant that appellant and the womеn were engaged in a prostitution ring.
{¶14} On July 12, 2007, a Franklin County grand jury indicted appellant, in case No. 07CR-4951, on one count of promoting prostitution in violation of
{¶15} On October 26, 2007, a Franklin County grand jury indicted appellant, in case No. 07CR-7817, on two counts of trafficking in сrack cocaine in violation of
{¶16} On January 7, 2008, appellee moved, pursuant to
{¶17} On October 1, 2008, a Franklin County grand jury indicted appellant, in case No. 08CR-7248, on one count of trafficking in powder cocaine in violation of
{¶18} Following presentatiоn of appellee‘s case, appellant moved, pursuant to
{¶19} Appellant‘s first assignment of error contends he was denied his right to confrontation in violation of the Sixth and Fourteenth Amendments to the United States Constitution, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), and Section 10, Article I of the Ohio Constitution, when the trial court permitted Lazar and Best to testify as to statements made to them by Jones. Appellant has not referred this court to the specific testimony he now challenges, but, rather, cites the entire direct testimony of both Lazar and Best. An appellate court is not required to comb through the record on appeal to search for error when an appellant fails to specify precisely where error occurred. See
{¶21} As an initial matter, we note that appellant did not object to Lazar‘s testimony, nor did he request that the trial court instruct the jury not to consider the statements for the truth of the matter asserted, but as an explanation for Lazar‘s actions. As such, appellant has forfeited his constitutional argument in the absence of plain error. See State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, citing State v. Allen, 73 Ohio St.3d 626, 634 (1995);
{¶22} Under the plain error standard, we must first find error, i.e., “a deviation from a legal rule.” Barnes at 27, citing State v. Hill, 92 Ohio St.3d 191, 200, 2001-Ohio-141. Sеcond, the error must be “plain,” i.e., an “obvious” defect in the trial proceeding. Barnes at 27, citing State v. Sanders, 92 Ohio St.3d 245, 257, 2001-Ohio-189, citing
{¶23} The Sixth Amendment to the United States Constitution guarantees that a person accused of committing a crime has the right to confront and cross-examine witnesses testifying against him. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065 (1965). Section 10, Article I of the Ohio Constitution contains a similar guarantee of confrontation, and Ohio construes its Confrontation Clause as providing an equal guarantee as that of the federal constitution. See State v. Self (1990), 56 Ohio St.3d 73, 78; State v. McKenzie, 8th Dist. No. 87610, 2006-Ohio-5725, ¶2. (“Although the ‘face to face’ language of the Ohio Constitution would arguably aрpear to grant even greater rights to confrontation, the Ohio Supreme Court has construed Section 10, Article I, to parallel that of the federal constitution, rejecting the argument that the section requires an interpretation as its literal extreme.“)
{¶24} In Crawford, the United States Supreme Court held that the proper analysis for determining whether out-of-court statements violate the Confrontation Clause is not whether they are reliable but, rather, whether they are testimonial. Id. at 61. The court further stated that the Confrontation Clause does not apply to nontestimonial hearsay but
{¶25} In the instant case, Jones made the challenged statements while detained in a police cruiser on a solicitation/prostitution charge, presumably for the purpose of avoiding prosecution. Jones undoubtedly knew that statements made to the police about appellant running a prostitution ring and selling drugs would be used to prosecute appellant. “Statements made to the police describing illegal activities are usually
{¶26} However, the error did not affect the outcome of the trial. Appellant‘s own tape-recorded statement provided independent evidence of his guilt on the promoting prostitution count.
{¶27} Similarly, evidence independent of Jones’ statements to Lazar regarding appellant‘s possessing drugs at his house established that he possessed crack cocaine.
{¶28} We now turn to Best‘s testimony as to the statements Jones made to him. As noted, Best testified that Jones told him that appellant, her “pimp” and “drug supplier,” ran a prostitution and drug trafficking enterprise at 418 South Terrace. Best asked Jones to call him if she became aware of any future drug trafficking. Jones eventually called Best and told him that appellant was willing to sell half of an ounce of crack cocaine for $1,200 at a bank parking lot. When appellant did not show up at the prearranged location, Best questioned Jones about the prostitution ring. Jones told Best where she took her clients. Best had Jones call appellant and arrange the purchase of powder cocaine at the place Jones took her clients. Best listened in on the call and overheard Jones tell appellant that the client she was with needed more drugs and that appellant would have to deliver them because they were too high to drive.
{¶30} Preliminarily, we note that during Best‘s testimony about the sale of the crack cocaine, he opined that $1,200 was too high a price to pay for half of an ounce. At that point, appellant raised a general hearsay objection to Best‘s previous testimony about what Jones had told him. Appellee argued that such testimony was not hearsay because it was not being offered for the truth of the matter asserted; rather, it was offered to demonstrate why Best took the actions he did. The trial court overruled appellant‘s objection, noting that the testimony offered by Best immediately preceding appellant‘s objection related only to Best‘s opinion about the price of the drugs, which was not hearsay. The court acknowledged that while some of Best‘s previous testimony concerning what Jones had told him may have been hearsay, the court was not going to rule on those matters because appellant had not objected to any of that testimony. The court stated that it would rule only on future hearsay objections. Later, aрpellant objected to Best‘s testimony about what Jones said to appellant when she called him to set up the powder cocaine sale. Appellant did not specify any grounds for the objection, and the trial court overruled it.
{¶31} Though defendant now maintains that Best‘s testimony about Jones’ statements was inadmissible hearsay that violated his constitutional right of confrontation, he did not timely object to Best‘s testimony, nor did he assert a constitutional violation as
{¶32} In this case, Jones told Best that appellant engaged in drug trafficking and prostitution after Best told her he would not charge her with a crime if she agreed to provide information about that type of criminal activity. Jones later told Best that appellant would sell him drugs and she arranged a time and place for those transactions. Jones was certainly aware that her statements to Best about appellant‘s criminal enterprises would be used to prosecute appellant. As previously noted, statements made to police that describe illegal activities are considered to be testimonial. Hart at ¶22. Best‘s testimony about what Jones told him directly linked appellant to drug trafficking – the very thing appellee set out to prove. Jones’ out-of-court statements named appellant directly as the person conducting the illegal activity, and appellant was denied the opportunity to cross-examine her. The testimony thus violated appellant‘s Sixth Amendment right to confront her accusers.
{¶33} However, the error did not affect the outcome of the trial. Best‘s testimony about what he overheard appellant tell Jones on the cell phone provided independent evidence of appellant‘s guilt on the trafficking in crack cocaine count. As pertinent here,
{¶35} In his sеcond assignment of error, appellant argues his conviction for trafficking in crack cocaine is not supported by sufficient evidence and is against the manifest weight of the evidence. We disagree.
{¶36} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. An appellate court examines the evidence in the light most favorable to the state and concludes whether any rational trier of fact could have found that the state proved, beyond a reasonable doubt, all of the essential elements of the crime. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶78.
{¶37} In determining whether a conviction is based on sufficient evidence, we do not assess whether the evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. See Jenks, paragraph two of the syllabus; Thompkins at 390 (Cook, J., concurring); Yarbrough at ¶79 (noting that courts
{¶38} While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence‘s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶25, citing Thompkins at 386. Under the manifest weight standard of the evidence standard, a reviewing court must ask the following question: whose evidence is more persuasive–the state‘s or the defendant‘s? Id. at ¶25. Although there may be legally sufficient evidence to support a judgment, it may nevertheless be against the manifest weight of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95, 2000-Ohio-276.
{¶39} “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” Wilson at ¶25, quoting Thompkins at 387. In determining whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving any conflicts in the evidence, the jury clearly lost its way and thereby created such a manifest miscarriage of justice that the
{¶40} A conviction should be reversed on manifest weight grounds only in the most ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting Martin at 175. Moreover, ” ‘it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.’ ” State v. Brown, 10th Dist. No. 02AP-11, 2002-Ohio-5345, ¶10, quoting State v. Long (Feb. 6, 1997), 10th Dist. No. 96APA04-511.
{¶41} Appellant was convicted of trafficking in crack cocaine in an amount exceeding ten grams but less than 25 grams. As we have alreаdy stated,
{¶42} Appellant does not contend that the substance sold to Best was not crack cocaine, nor does he challenge the amount sold. Rather, appellant maintains that appellee failed to introduce evidence proving that he was the one who actually sold the crack cocaine to Best. Appellant contends that appellee provided no evidence that he delivered or handled the crack cocaine, and that the evidence demonstrated that it was Jones who actually conceived and conducted the drug sale.
{¶44}
{¶45} As noted, for purposes of
{¶47} Appellant makes no additional argument in support of his manifest weight claim. Appellant argues that the evidence suрported a finding that Jones, not he, sold the crack cocaine. For the same reasons his conviction is supported by sufficient evidence, the conviction is not against the manifest weight of the evidence. The jury had the opportunity to hear the direct and cross-examination testimony of each of the witnesses and determine their credibility. The weight to be given the evidence and the determination of witness credibility was within the province of the jury as trier of fact.
{¶48} Appellant‘s third assignment of error argues he was denied the effеctive assistance of counsel at trial. In Ohio, a properly licensed attorney is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301. Accordingly, the burden of demonstrating ineffective assistance of counsel is on the party asserting it. State v. Smith (1985), 17 Ohio St.3d 98, 100. Trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343.
{¶49} “The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 2064. In order to succeed on his claim of ineffective assistance of counsel, appellant must satisfy a two-prong test. First, he must demonstrate that his trial counsel‘s performance was deficient. Id. at 687. This requires a showing that counsel committed errors which were “so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. If appellant can
{¶50} Appellant first contends that defense counsel was ineffective in failing to renew his objection to joinder of the indictments. As noted, appellee filed a pretrial motion to consolidate the indictments for trial. Appellant opposed the motion, arguing that “[t]o lump prostitution, personal drug use, and an undercover sex sting operation with alleged drug offenses that occurred at a later date” was manifestly prejudicial because the charges were not of the same or similar character, were not based on the same act or transaction, and did not constitute parts of a common scheme or plan.
{¶51} The trial court held a hearing on appellee‘s motion on March 11, 2008. Appellee argued that the charges stemming from the February and August 2007 incidents constituted parts of a common scheme or plan, or werе part of a course of criminal conduct by appellant, that is, running a prostitution and drug trafficking enterprise. Appellee noted that the incidents were only six months apart, that at least one person (Jones) was involved in both incidents, and that appellant utilized the women who worked as prostitutes for him to traffic drugs. In response, appellant argued that the two cases were not related, as the February case involved allegations related only to prostitution and personal drug possession, whereas the August case involved allegations pertaining solely to drug trafficking. Appellant maintained that he would be prejudiced were the indictments tried together.
{¶52} Following argument, the trial court orally granted appellee‘s motion. In so doing, the court noted the potential for overlapping witnesses, appellee‘s theory that the
{¶53} At trial, defense counsel did not directly renew his objection to the joinder; however, he raised the issue indirectly during appellee‘s response to his
{¶54} We fail to see how defense counsel‘s performance fell below an objective standard of reasonable representation. Counsel filed a response to appellee‘s motion for joinder, setting forth arguments against joinder, and also made arguments at the hearing conducted by the trial court on appellee‘s motion. The trial court denied the motion after hearing arguments presented by appellee and defense counsel, and issued a decision providing its reasons for granting the motion. Even had defense counsel raised the issue more directly, the trial court would presumably have affirmed its prior decision because it had already considered the merits of appellee‘s motion prior to trial and had found joinder to be warranted in this case. The state of the case had not appreciably changed between that ruling and the trial, and therefore, any attempt by defense counsel to revisit the issue would have been futile. ” ‘Failure to do a futile act cannot be the basis for claims of
{¶55} We further note that appellant could not have been prejudiced by counsel‘s failure to renew his objection because the trial court properly granted appellee‘s motion for joinder. Pursuant to
{¶56} If two or more indictments are properly joined pursuant to
{¶58} Appellant contends he was prejudiced because the joinder permitted the jury to simultaneously consider evidence of all the offenses with which he was charged. Appellant argues that the consolidated trial resulted in the admission of other acts evidence that would not have been admissible had the indictments been tried separately, and that the jury used the accumulated evidence to convict him of all the charges. In particular, appellant contends that the jury relied upon evidence that appellant possessed crack cocaine in February 2007 to convict him of trafficking in crack cocaine in August 2007 and that the jury relied upon Nolan‘s testimony that appellant admitted to running a prostitution ring in August 2007 to convict him of promoting prostitution in February 2007.
{¶60} Having determined that the evidence was direct and uncomplicated and capable of being segregated, we conclude there was no ineffective assistance of counsel arising from defense counsel‘s failure to renew his objection to joinder of the cases.
{¶61} Appellant also contends that trial counsel was ineffective in failing to object to testimony regarding the possibility of appellant “working off his charges.” We disagree.
{¶62} Best testified that following appellant‘s arrest, he discussed with appellant the possibility that he would hold off filing charges against appellant if appellant agreed to provide information about his drug suppliers. More specificаlly, Best told appellant that “I‘m the guy you‘re going to be working with * * * so you need to think about this if you want to do this.” (Tr. 138.) Appellant initially indicated his willingness to work with police, and Best gave appellant his cell phone number. Appellant called Best on August 28,
{¶63} Appellant contends that Best‘s testimony was inadmissible as it constituted evidence of an offer to compromise, which is prohibited by
{¶64} As appellee points out,
{¶65}
{¶66} Finally, appellant contends trial counsel was ineffective in failing to object to the hearsay testimony of Lazar and Best regarding what Jones said to them. Assuming, arguendo, that counsel was ineffective in failing to object to the testimony, appellant has failed to prove that he was prejudiced by such ineffectiveness. As we noted previously, evidence other than the detectives’ recitation of Jones’ statements convincingly established appellant‘s guilt on all counts. Thus, no reasonable probability exists that, but for counsel‘s errors, the result of the trial would have been different. The third assignment of error is overruled.
{¶67} Having overruled each of appellant‘s three assignments of error, this court hereby affirms the judgments of the Franklin County Court of Common Pleas.
Judgments affirmed.
TYACK, P.J., and McGRATH, J., concur.
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