STATE OF OHIO, PLAINTIFF-APPELLEE, v. GORDON W. DIGGLE, III, DEFENDANT-APPELLANT.
CASE NO. 2-11-19
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
April 9, 2012
[Cite as State v. Diggle, 2012-Ohio-1583.]
Judgment Affirmed
Date of Decision: April 9, 2012
APPEARANCES:
Katherine A. Szudy for Appellant
Edwin A. Pierce and Amy Otley Beckett for Appellee
{1} Defendant-appellant, Gordon W. Diggle, III (“Diggle“), appeals the Auglaize County Court of Common Pleas’ judgment of conviction and sentence entered against him following a jury trial where Diggle was found guilty of one count of murder and one count of aggravated robbery. For the reasons that follow, we affirm.
{2} In February of 2010, Steven Casad (“Casad“) was at home with his girlfriend, Brenda Fischer (“Fischer“), and two friends, Larry Thomas (“Thomas“) and Diggle. (Trial Tr. at 351). Thomas and Diggle began fighting in Casad‘s kitchen. (Id. at 352). Casad called the police on the two men. (Id.). Diggle did not return to Casad‘s house in the months following the incident. (Id. at 358).
{3} On September 8, 2010, Casad went to happy hour at the Friendly Tavern around 3 p.m. (Id. at 325-328). Diggle arrived at the Friendly Tavern between 5 and 6 p.m. (Id. at 274). Diggle sat near Casad and Casad bought them each a couple of beers. (Id. at 288). After finishing the drinks, Casad and Diggle left the Friendly Tavern and went into the alley next to the building. (Id. at 281-282). While in the alley, Diggle beat Casad and robbed him of roughly $750, telling Casad, “call the cops now” during the beating. (Id. at 350); (Ex. H). Diggle then walked across the street from the Friendly Tavern, got in his car, and left. (Trial Tr. at 282).
{5} Following the craniotomy, Casad was sedated to reduce the swelling in his brain. (Id. at 770). On September 12, 2010, Casad developed a pulmonary embolism as a result of his immobility. (Id. at 771-773). Casad died an hour and ten minutes after the pulmonary embolism was detected. (Id. at 797).
{6} The coroner determined that Casad died as a result of blunt force trauma to the head. (Id. at 847). During the trial, the coroner testified that the craniotomy and sedation were necessary to treat the blunt force trauma, and the pulmonary embolism was a result of the sedation. (Id. at 846-847). Consequently, the coroner determined that Casad‘s death was a homicide caused by a blunt force trauma. (Id. at 847).
{7} On December 22, 2010, Diggle was indicted on one count of felonious assault in violation of
{8} Diggle had a jury trial on April 18-21, 25, and 26, 2010. (Trial Tr. at 1). The jury found Diggle guilty on all four counts. (Doc. Nos. 145-148).
{9} The trial court held a sentencing hearing on July 20, 2011 and issued its judgment entry on July 22, 2011. (Doc. No. 209). The trial court determined that murder (count one) and felonious assault (count two) were allied offenses of similar import and should merge. (Id.). The trial court also determined that murder (count three) was pleaded as an alternative to murder (count one), so Diggle could not be sentenced on both counts. (Id.). Consequently, the trial court found that Diggle was convicted of murder (count one) and aggravated robbery (count four). (Id.). The trial court sentenced Diggle to a prison term of 15 years to life and a fine of $2,500 for his murder conviction (count one), and a consecutive prison term of 10 years for his aggravated robbery conviction (count four), for a total sentence of 25 years to life imprisonment and a $2,500 fine. (Id.).
{10} On August 22, 2011, Diggle filed a notice of appeal and now raises three assignments of error for our review.1 (Doc. No. 225).
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED SEPARATE SENTENCES FOR OFFENSES THAT
{11} In his first assignment of error, Diggle argues the trial court abused its discretion when it determined his murder and aggravated robbery convictions were not allied offenses of similar import. Diggle contends that the counts of murder and aggravated robbery were committed with the same conduct and the same animus. As a result, Diggle argues the trial court should have merged the two offenses.
{12} Whether offenses are allied offenses of similar import is a question of law that this Court reviews de novo. State v. Stall, 3d Dist. No. 3-10-12, 2011-Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. No. 1-10-31, 2011-Ohio-1461, ¶ 36.
{13}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{14} In State v. Johnson, the Supreme Court of Ohio modified the analysis for determining whether offenses are allied offenses of similar import under
{16} In regards to the first prong of the Johnson test, it is possible to commit murder under
{17} The evidence presented at trial demonstrated that Diggle had a separate animus for each offense. According to the trial testimony, Casad had previously reported Diggle to the police when Diggle began fighting in Casad‘s home. (Trial Tr. at 352). Diggle and Casad no longer spent time with one another following that episode as they had before. (Id. at 358). On the afternoon of the incident that resulted in this case, Diggle asked a mutual friend, Thomas, where he could find Casad. (Id. at 445). That same afternoon, Diggle went to the Friendly Tavern, a bar where Casad frequently attended happy hour. (Id. at 274). Diggle beat Casad in the alley next to the Friendly Tavern, telling Casad during the beating, “[c]all the cops now.” (Id. at 350). Diggle also reached into Casad‘s pocket and took roughly $750. (Id.); (Ex. H). These facts show that Diggle had the intent to beat Casad as revenge for calling law enforcement on Diggle, which is a separate animus from his intent to steal his money. Since Diggle had a separate animus for the felonious assault that resulted in his murder conviction from his animus for the aggravated robbery, the murder and aggravated robbery offenses are not allied offenses of similar import. This conclusion is consistent with determinations made by other Ohio courts of appeals concluding that murder and aggravated robbery offenses can be committed with a separate animus, and
{18} Additionally, the extent of Casad‘s injuries provides further support for this Court‘s conclusion that the two offenses are not allied offenses of similar import. Casad‘s injuries included lacerations to his face, swelling to his face and arms, a hairline fracture in his orbit (eye socket), bruising and swelling in his brain, and an epidural hematoma (bleeding in the brain) requiring a craniotomy. (Trial Tr. at 718-725). These multiple, serious injuries show Diggle used greater force than necessary to complete the aggravated robbery. Thus, the extent of Casad‘s injuries are further evidence that Diggle had the animus to beat Casad as revenge for calling the police on him in addition to his animus to steal Casad‘s money. This conclusion is also consistent with other Ohio courts of appeals that have determined a defendant‘s excessive use of force is an indication of a separate animus. State v. Ruby, 6th Dist. No. S-10-028, 2011-Ohio-4864, ¶ 61 (Extent of beating demonstrated a separate animus for the attempted murder and theft offenses); Tibbs at ¶ 43 (Manner in which defendant killed the victim showed a separate intent for the murder from the aggravated robbery).
ASSIGNMENT OF ERROR NO. II
GORDON DIGGLE, III‘S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE STATE INTRODUCED TESTIMONIAL HEARSAY STATEMENTS FROM THE VICTIM-DECEDENT DURING MR. DIGGLE‘S TRIAL. SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION; SECTION 10, ARTICLE I OF THE CONSTITUTION; CRAWFORD V. WASHINGTON (2004), 541 U.S. 36, 124 S.CT. 1354. (APRIL 16, 2011 JOURNAL ENTRY; VOLUME II, T. PP 376, 389-392, 413, 555-556, 602-603)
{20} In his second assignment of error, Diggle argues that the trial court violated his Sixth Amendment rights by admitting Casad‘s testimonial hearsay statements. Specifically, Diggle points to the testimony of Officer Turpin, Captain Kramer, Nicholas Scott, Captain Sweigart, and Sergeant Eberle. Diggle contends that the statements Casad made to these men when they arrived at his house in response to Fischer‘s 911 call were testimonial in nature. Diggle argues that the admission of these statements during the trial was a violation of his right to confront the witnesses presented against him.
{21} The Confrontation Clause of the Sixth Amendment states, “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” This Court reviews de novo the question of whether a defendant‘s constitutional rights under the Confrontation Clause have been
{22} In Crawford v. Washington, the United States Supreme Court determined that “[w]here testimonial evidence is at issue * * * the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 68, 241 S.Ct. 1354 (2004). The Court did not establish a comprehensive definition of “testimonial” but stated that at a minimum, it included prior sworn testimony and police interrogations. Id.
{23} The United States Supreme Court expanded on how courts should determine whether statements are testimonial in Davis v. Washington, stating:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 547 U.S. 813, 822, 126 S.Ct. 2266 (2006).
{24} The United States Supreme Court addressed this issue most recently in Michigan v. Bryant, 131 S.Ct. 1143 (2011). The Court stated that the standard
{25} Courts should look at all of the relevant circumstances when determining whether statements are testimonial. Id. at 1161. Specifically, courts should consider the medical condition of the victim and formality of the encounter between the declarant and police officer. Id. at 1159-1160. The Court explained, “[t]he medical condition of the victim is important to the primary purpose inquiry
{26} In the present case, Diggle contends that statements Casad made in the presence of Officer Turpin, Captain Kramer, Nicholas Scott, Captain Sweigart, and Sergeant Eberle were testimonial because their primary purpose was to investigate a crime, not to deal with an ongoing emergency. Officer Turpin, Captain Kramer, Nicholas Scott, and Captain Sweigart were the first responders who arrived at Casad‘s home in response to Fischer‘s 911 call. (Trial Tr. at 372, 387, 412, 554). Officer Turpin was the police officer first called to the scene, while Captain Kramer, Nicholas Scott, and Captain Sweigart were all paramedics who arrived at the same time as Officer Turpin. (Id.). Sergeant Eberle, another police officer, arrived shortly thereafter. (Id. at 556, 602).
{28} At trial, Officer Turpin, Captain Kramer, Nicholas Scott, Captain Sweigart, and Sergeant Eberle all testified that Casad had been jumped, beaten, and robbed by Diggle based on Casad‘s statements. (Id. at 371-415, 553-608). Specifically, Officer Turpin testified that Casad told him “that he was jumped in
{29} The trial court determined that Casad‘s statements to the emergency personnel were not testimonial and were admissible pursuant to the hearsay exceptions in
{30} Turning first to the question of whether Casad‘s statements were testimonial, the evidence presented at trial established that Officer Turpin arrived on the scene with the paramedics as the first responders to Fischer‘s emergency call. (Id. at 554) At the hearing on Diggle‘s motion in limine to exclude Casad‘s statements, Officer Turpin testified that when he arrived on the scene, he believed Casad may have been part of a bar fight and there could have been other injured individuals. (Motion Hearing Tr. at 63). At the trial, Officer Turpin further testified that when he began interviewing Casad his “principle objective was trying to figure out exactly what happened at that immediate time.” (Trial Tr. at 566). He stated that he did not view the interaction as a criminal investigation while he was at Casad‘s house because he asked very few questions and mainly let the paramedics take care of Casad. (Id.). Officer Turpin testified that his interview of Casad did not become a criminal investigation until he had more details about what had occurred. (Id.). Officer Turpin‘s testimony is supported by an objective view of his questions to Casad, which were limited to asking what had occurred, who else was involved, and clarifying that Casad was referring to Diggle and not Diggle‘s father, who has the same name. (Id. at 405-406). The interview was very brief, taking place while the emergency personnel were evaluating the nature of
{31} Additionally, the formality of the encounter and Casad‘s medical condition are relevant in determining whether the statements were testimonial. Michigan v. Bryant, 131 S.Ct. 1143 at 1159-1160. The United States Supreme Court has concluded that the interview is formal when it occurs at the police station at some point after the event, or if the declarant calmly relates the facts to the officer at the scene of the event after the emergency has ended. Id. at 1153-1155; Davis, 547 U.S. 813. On the other side of the spectrum is the informal interview, which the Court has found includes when the declarant is on the phone with a 911 operator while the emergency is occurring. Bryant at 1159-1160; Davis. The present case falls on the informal side of the spectrum. The first responders arrived at Casad‘s home within minutes of Fischer‘s emergency call. (Trial Tr. at 394). Casad had been recently beaten and robbed, and was suffering from numerous serious injuries. (Id. at 373-376). The paramedics testified that Casad was “upset” and “worried.” (Id. at 373-374, 389). Officer Turpin interviewed Casad at Casad‘s house while paramedics treated him and prepared
{32} Finally, the issue of whether the statements are admissible under a hearsay exception is relevant, but not dispositive, to this Court‘s determination of whether the statements were testimonial. Bryant at 1155. Captain Kramer testified that he did not remember what he said on the scene to Casad, but it would be common for him to ask him general questions such as the time of day or if he remembered what had happened. (Id. at 378-379). Captain Kramer testified that the purpose of these questions is to determine “a level of consciousness to see if they are alert.” (Id. at 379). The testimony at trial implied that Officer Turpin, not Captain Kramer, questioned Casad regarding what had occurred. (Id. at 405-406). However, Casad‘s ability to recall what had happened to him was relevant to the paramedics’ ability to determine Casad‘s level of consciousness regardless of which first responder began the interview. Thus, these statements were made for the purpose of medical treatment and were thus admissible under
{33} Even assuming arguendo that the statements were testimonial, their admission would be harmless error in light of the remaining evidence. “A constitutional error can be held harmless if we determine that it was harmless beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶ 78, citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824 (1967).
{34} The cumulative evidence, which Diggle does not contest in the present appeal, demonstrates that any error in admitting the first responders’ testimony is harmless beyond a reasonable doubt. Numerous other witnesses provided the same information as the first responders. At trial, Fischer testified that after he returned to the house, Casad stated that he had been beaten and robbed by Diggle, and that Diggle stole $800. (Trial Tr. at 350). According to Fischer, Diggle told Casad, “call the cops now,” while Diggle was beating Casad. (Id. at 333-350.) Gary Cathcart, a physician‘s assistant at the Joint Township emergency department, testified that
the patient reported to me he was assaulted approximately ten minutes before calling EMS. He was jumped from behind by what he describes as a friend at the Tavern. States he was sucker punched
and he reports that the person that attacked him had an altercation at his house earlier with another man. He called the police to get them out of the house and keep them from breaking up his house. (Id. at 717).
Brenda Warniment, a nurse at the Joint Township emergency department, testified that during her neuro assessment of Casad, he told her that he was kicked, punched, and beat by Diggle. (Id. at 693-694). Brenda Warniment further testified that Casad stated that he had been assaulted because he had previously called the police on Diggle. (Id. at 694-695). Erica Zimpher, a flight nurse that did Casad‘s critical care transport, testified that Casad stated that he “had been stomped in the head by a guy with steel toe boots.” (Id. at 730). Thus, Casad consistently stated that Diggle had robbed and beaten him because Casad had previously called the police on Diggle.
{35} Diggle‘s own actions provide further evidence. Brenda Chaney, the bartender at the Friendly Tavern, testified that Diggle left with Casad, appeared to go into the alley with Casad, and then Diggle walked across the street to his car a few minutes later. (Id. at 282). Shortly thereafter, Brenda Chaney observed an ambulance pull up to Casad‘s house. (Id. at 282-283). Thomas, a mutual friend, testified that he went to breakfast with Diggle the morning of the incident. (Id. at 443). At that time, Diggle had roughly $100. (Id.). Thomas received a phone call
{36} In addition to Casad‘s numerous, consistent statements, Diggle‘s own actions thus establish that he was near the Friendly Tavern at the time that Casad was beaten and left shortly before Casad arrived home seriously injured. Diggle also had a substantially smaller amount of money the morning of the incident than in the evening and days following the incident. Finally, Diggle made incriminating statements to his co-worker, his aunt, and threatened a friend.
{38} Diggle‘s second assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I (VOLUME II, T. PP. 340-344, 575-591, 597-599; APRIL 16, 2011 JOURNAL ENTRY)
{39} In his third assignment of error, Diggle argues his trial counsel was ineffective. Diggle contends that his trial counsel did not understand the trial court‘s ruling on Diggle‘s motion in limine, and committed prejudicial error by admitting statements that had been excluded.
{40} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Prejudice results when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of
{41} In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment. Strickland at 687. 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). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the errors complained of must amount to a substantial violation of counsel‘s essential duties to his client. Bradley at 141-142, citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).
{42} According to Strickland, we must first determine whether counsel‘s performance was deficient or unreasonable under the circumstances. Id. at 687. At issue, in his motion in limine, is testimony Diggle contended was inadmissible. (Doc No. 84). The trial court granted Diggle‘s motion in regards to statements Casad made to Officer Turpin while Casad was at the Joint Township emergency
{43} During his cross examination of Officer Turpin, counsel questioned Officer Turpin at length regarding the scope of his investigation. (Trial Tr. at 572-578). The purpose of this line of questioning was to impeach Officer Turpin‘s credibility regarding the extent of the investigation and demonstrate for the jury that the police focused their investigation solely on Diggle and failed to consider other suspects. (Id.). During defense counsel‘s cross examination, the State objected, stating “[t]his witness is already instructed not to answer that question pursuant to the Motion in Limine.” (Id. at 587). The following exchange then occurred:
Trial Court: Okay. But if the door‘s opened, the door‘s open. He (defense counsel) opened the door. * * * He‘s opened the door by asking what all this officer contemplated and so forth. So if he‘s opened the door, he‘s opened the door.
Defense Counsel: I just want to make sure there‘s no misunderstanding. The Motion in Limine does not take and stop me from doing anything.
Trial Court: That‘s right and if you open the door, you open the door.
Defense Counsel: And the door‘s been opened because the Court has said that all this testimony is admissible.
Trial Court: No, that‘s not true. The Court limited certain testimony. Now you‘ve opened the door to it. But he‘ll answer the questions. I‘ll instruct him to answer the questions. (Id. at 587-588).
This exchange between the trial court and defense counsel indicates that although defense counsel had a tactical purpose for questioning Officer Turpin about his investigation, defense counsel may not have realized the question was opening the door to evidence that had been excluded under the motion in limine. (Id.). Consequently, this Court must now consider whether Diggle was prejudiced by the resulting testimony.
{44} After the trial court ruled defense counsel had opened the door to previously excluded testimony, Officer Turpin testified on cross examination that Casad had told him that Diggle stated, “I‘ll teach you not to call the cops on me again.” (Id. at 591). The trial court also admitted Officer Turpin‘s report, which stated:
Mr. Casad said that he had gone into the Friendly Tavern and had been drinking with Gordon Diggle. He said it was just those two
and the barmaid and that he had purchased a drink or two for Diggle. Casad says he always carries a large quantity of cash that he rolls up in his pocket and estimated it to be $700 to $750. He says that as he walked out of the Friendly Tavern and started to walk through the alley, he was assaulted and beaten by Gordon Diggle who then reached in his pocket, stole his money. Casad said that he thought that Diggle was going to kill him. He said that Diggle‘s [sic] walked across the street and left in his white Cadillac. (Ex. H).
{45} We cannot find that this admitted evidence prejudiced Diggle. Throughout the trial, other witnesses testified to the same facts. Thus, the evidence was cumulative and did not result in prejudice to Diggle. Consequently, we cannot find that there is a reasonable probability that the outcome of the trial would have been different absent this evidence.
{46} Diggle‘s third assignment of error is, therefore, overruled.
{47} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. concurs.
ROGERS, J. concurs; and concurs in Judgment Only as to Assignment of Error No. II.
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