State v. FitzgeraldState v. Fitzgerald
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Antonio D. Fitzgerald, appeals from his conviction in the Summit County Court of Common Pleas for one count each of conspiracy to commit aggravated burglary, conspiracy to commit aggravated robbery, and conspiracy to commit kidnapping, all felonies of the second degree. We affirm.
I.
{¶ 2} Appellant met Hani Faris sometime in 2005 at a game room in Summit County. Both men were frequent patrons of several game rooms, where they played electronic slot machines. Faris was also an acquaintance of Detective William Pelfrey of the Akron Police Department. From time to time, Faris acted
{¶ 3} On September 12, 2005, Faris went to a game room intending to tamper with one of the machines to improve his chances of winning. Appellant, who had been banned from that particular game room by the management, waited outside. He had previously shown Appellant how to make the adjustments to the machine, and the men had intended to split Faris’ winnings from this machine. Faris was unsuccessful, and while he was driving Appellant home, Appellant began to devise a plan to rob Michael Moneypenny, an acquaintance of Faris who owned a large number of slot machines. Appellant told Faris that he and at least one other person would take Moneypenny hostage in his home, threatening Moneypenny with a gun and pistol-whipping him if necessary. Appellant also said that he would give Faris a one-third share of the money from the robbery if Faris would show Appellant where Moneypenny lived.
{¶ 4} The morning after this conversation, Faris called Pelfrey several times, leaving a number of urgent-sounding voicemails asking Pelfrey to call him back. Pelfrey returned the call later in the day, and Faris asked to meet with Pelfrey. During the meeting, Faris reported what Appellant had told him. Pelfrey put together a team of officers and a plan of operation and instructed Faris to report back if Appellant attempted to contact him.
{¶ 5} On September 16, 2005, Appellant left a voicemail for Faris, who then contacted Pelfrey. Pelfrey began to assemble his team of officers and met with Faris to fit him with a listening device and transmitter. Faris and Appellant arranged to meet in a parking lot. Appellant believed that Faris was going to show him the location of Moneypenny‘s house, although the officers instructed Faris not to take Appellant to the actual location of the house. While en route, Faris engaged Appellant in conversation, inducing Appellant to discuss the plans for the robbery, as Akron Police Detective Adam Wahl listened to the transmissions from the listening device in his office and relayed information by radio to the team of officers preparing to pursue the vehicle. Wahl also tape recorded the contents of the transmissions. Eventually, police officers stopped the vehicle and Appellant was arrested. He was indicted on six second-degree felony charges: one count of conspiracy to commit kidnapping against Moneypenny, in violation of
{¶ 6} A jury trial was held, and the State‘s first witness was a police officer from the University of Akron Police Department, Cpl. Robert Stachowiak. Because of the poor audio quality of the 11 minute taped conversation between Faris and Appellant, Stachowiak re-recorded the contents of the tape onto a computer. He then digitally filtered out some of the background noise from the tape and added a video track containing a transcript of the discussion synchronized with the audio. A DVD of the conversation, consisting of the video transcript and the filtered audio, was admitted into evidence as State‘s Exhibit B and played at the trial, but the original cassette tape was not played and the trial judge overruled Appellant‘s motion to admit the tape as evidence. Stachowiak testified that as he prepared the video transcript from the filtered audio recording, if he had any uncertainty about a word that Faris or Appellant had used, he inserted a notation into the transcript that the word was unintelligible. Stachowiak also received a transcript prepared by Pelfrey at the same time that he received the tape, but Stachowiak‘s testimony indicated that when he prepared his own transcript, he relied on the filtered recording rather than on Pelfrey‘s transcript. He also testified that he would “guarantee * * * 90 to 95 percent accuracy” in the transcript. Appellant was found guilty on the charge of conspiracy to commit aggravated burglary and on the charges of conspiracy to commit robbery and kidnapping against Moneypenny only. He was sentenced to four years in prison on each count, running concurrently, plus six months for a probation violation, for a total
II.
A.
First Assignment of Error
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE TRIAL TO GO FORWARD DESPITE THE COURT‘S AWARENESS THAT A JUROR HAD FALLEN ASLEEP DURING TESTIMONY.”
{¶ 7} When Appellant was permitted to speak during his sentencing hearing, he told the judge that he did not believe he had received a fair trial, in part because one of the jurors had fallen asleep during the testimony. Appellant now asserts that the trial court should have attempted to determine whether the remainder of the jurors had been affected and either declared a mistrial or dismissed the offending juror and instructed the other jurors accordingly. Appellant further claims that the trial court‘s failure to take action constitutes plain error, and that the issue may therefore be raised on appeal even though Appellant did not raise an objection when the juror fell asleep.
{¶ 8} Initially, we must note the distinction between the waiver of an objection and the forfeiture of an objection. Although the terms are frequently used interchangeably, a waiver occurs where a party affirmatively relinquishes a right or an objection at trial; a forfeiture occurs where a party fails to assert a right or make an objection before the trial court in a timely fashion. State v. Hairston, 9th Dist. No. 05CA008768, 2006-Ohio-4925, at ¶ 9, quoting United States v. Olano (1993), 507 U.S. 725, 733. Where a party has forfeited an objection by failing to raise it, the objection may still be assigned as error on appeal if a showing of plain error is made. Hairston at ¶ 9, quoting State v. McKee (2001), 93 Ohio St.3d 292, 299 fn. 3 (Cook, J., dissenting);
{¶ 9} Where juror misconduct occurs during the course of a criminal trial, the reviewing court must determine whether the misconduct materially prejudiced the defendant‘s substantial rights. State v. Taylor (1991), 73 Ohio App.3d 827, 832, quoting State v. Hipkins (1982), 69 Ohio St.2d 80, 83. Where the misconduct involves a juror falling asleep during the trial, a showing of prejudice typically requires some indication on the record that the juror missed a large or critical portion of the testimony. See State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, at ¶ 186-187; State v. Sanders (2001), 92 Ohio St.3d 245, 253. “A trial court `has considerable discretion in deciding how to handle a sleeping juror.‘” Sanders, supra at 253, quoting United States v. Freitag (C.A.7, 2000), 230 F.3d 1019, 1023.
{¶ 10} From the trial transcript, it is not clear at what point during the trial the juror fell asleep. During the sentencing hearing, however, in response to Appellant‘s concerns regarding this irregularity, the trial judge stated:
“The Court was aware that we had one juror that was falling asleep. I brought both attorneys side bar [sic], told them about that, asked them what they wanted to do. We all decided we would continue to watch that juror. The juror never fell asleep again.
“She was nodding off. It‘s very common. The Court was very aware that she never did that again. And I was very aware of what that particular juror was doing.”
{¶ 11} Appellant, therefore, did not merely forfeit his objection by failing to object. Rather, he waived the objection by agreeing with the judge and the prosecutor that there was no need to remove the juror at that point in the trial. Because the error was affirmatively waived at the trial level, it may not be raised on appeal even if it was plain error. See Hairston, supra at ¶ 9.
{¶ 12} Even if an argument as to plain error could have been raised in this case, there has been no showing that any prejudice resulted from the error. It is apparent from the trial judge‘s comments that the juror did not fall asleep repeatedly or for an extended period of time, but only “nodd[ed] off at one point during the trial. Thus, the juror did not miss any large portion of the trial, and without some indication as to when during the trial the juror fell asleep, it is unclear whether any portions that the juror might have missed were critical portions. See Sanders, supra at 253; McKnight, supra at ¶ 186-7.
{¶ 13} In Sanders, an attorney noted during an on-the-record sidebar that one juror‘s eyes were closed for an hour and fifteen minutes and the juror was motionless for a half hour. Sanders, supra at 252. There were also indications that one juror — although it is not clear whether it was the same juror or a different one —
B.
Second Assignment of Error
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO DECLARE A MISTRIAL IN THE FACE OF PREJUDICIAL AND MISLEADING STATEMENTS OF A WITNESS.”
{¶ 14} Faris testified that Appellant told him that he had previously participated in similar robberies and that Appellant intended to hold a gun to Moneypenny‘s head and pistol-whip him if Moneypenny would not give his money to Appellant. At two points during his testimony, Faris alluded to this exchange. The first time, Faris testified:
“[Appellant] said he was going to put a gun to Moneypenny‘s head, slap him a couple times with the gun. If he don‘t get the money, he‘ll put it in his wife‘s head. One way or another, he [sic] going to get the money.”
Faris then stated that the police officers wanted him to induce Appellant to repeat those statements on the listening device that Faris wore.
{¶ 15} Later, the prosecutor asked Faris whether there had been any discussion during the first, unrecorded conversation as to what Appellant would do if Moneypenny‘s wife and child were in the house. Faris explained that when he asked Appellant that question, Appellant responded “[A] couple slap[s] and [a] gun in the face, he will give the money. I‘ve done that before. I know how to do it.”
{¶ 16} Appellant now claims that the court erroneously failed to declare a mistrial after the jury heard this testimony. Appellant first argues that the statement “I‘ve done that before” was inadmissible other-acts evidence under
{¶ 17} Appellant did not raise any objection at the trial level and did not move for a mistrial at the conclusion of testimony. An issue that could have been
“I waited because I wanted to see what the transcript said, but two times this witness indicated that he said don‘t you — you don‘t need to worry because I‘ve done this before. There is nothing like that on the transcript, and arguably, you‘ve got a mistrial based on those. * * * If it had been on the transcript, I would have let it slide[,] but two times it was said. That‘s an unbelievable prejudicial statement, as well as other statements that were made by this witness that aren‘t even close to being on this tape.” (Emphasis added.)
{¶ 18} The judge then gave the following cautionary instruction to the jury:
“First of all, I want to make sure that you realize that nowhere on this transcript does it ever indicate this defendant has ever done anything like this before. And, second, nowhere on this transcript does it indicate that the defendant stated he was going to hold a gun to anyone‘s head.
“[The attorneys] can ask some follow-up questions on that, but I think that needs to be clarified.”
C.
Third Assignment of Error
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED THE DEFENDANT-APPELLANT‘S MOTION FOR A JUDGMENT OF ACQUITTAL.”
Fourth Assignment of Error
“DEFENDANT-APPELLANT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 20}
{¶ 21} As a preliminary matter, we observe that sufficiency of the evidence and weight of the evidence are legally distinct issues. State v. Thompkins (1997), 78 Ohio St.3d 380, 386.
{¶ 22}
{¶ 23} “While the test for sufficiency requires a determination of whether the [S]tate has met its burden of production at trial, a manifest weight challenge
“an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339, 340.
This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id.
{¶ 24} Sufficiency of the evidence is required to take a case to the jury; therefore,
“a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency. Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” (Emphasis omitted.) State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462, at *2.
{¶ 25} In the present case, we do not believe that the jury lost its way in finding Appellant guilty of conspiracy. Appellant contends that there is no evidence in the record to support a finding that Faris planned or aided in planning the underlying offenses in this case.
{¶ 26} Appellant also contends that the State presented no evidence of any substantial, overt act in furtherance of the conspiracy. An act in furtherance of a conspiracy is substantial if “it is of a character that manifests a purpose on the part of the actor that the object of the conspiracy should be completed.” State v. McDay (Sept. 20, 2000), 9th Dist. No. CA19610, at *6, quoting
{¶ 27} Appellant committed several substantial, overt acts. Again, some of these were recorded on tape, while Faris testified to others. Appellant discussed compensation with Faris, promising Faris a third of the money from the robbery if Faris would show Appellant where Moneypenny lived. Appellant then got into a car with Faris for the express purpose of locating Moneypenny‘s house and planning his entry into the house. All of these acts, combined with Appellant‘s statements during the course of the acts, demonstrate an intent to commit robbery, burglary, and kidnapping. Based on this evidence, the jury did not lose its way in concluding that these acts were committed in furtherance of the conspiracy and that the acts were substantial and overt. Appellant‘s third and fourth assignments of error are overruled.
D.
Fifth Assignment of Error
“THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE‘S WITNESSES TO TESTIFY ABOUT A WRITTEN TRANSCRIPT OF AN AUDIOTAPE.”
{¶ 28} Although Appellant‘s assignment of error purports to contest the admission of testimony pertaining to the transcript of the audio recording, Appellant‘s entire argument relates to the admissibility of the transcript itself. We will therefore address only the admissibility of the transcript.
{¶ 29} Appellant argues that the trial court‘s decision to admit the video transcript of the audio recording was contrary to
{¶ 30} Appellant cites a case from the Eighth District Court of Appeals, Harleysville Mut. Ins. Co. v. Santora (1982), 3 Ohio App.3d 257, 261, for the proposition that
{¶ 31} The Eighth District has since disapproved Harleysville, holding that
{¶ 32} Two other cases on the topic of transcripts are worth noting, although neither case addresses the issue specifically in the context of
{¶ 33} We find that neither
E.
Sixth Assignment of Error
“THE DEFENDANT-APPELLANT‘S
SIXTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED IN THAT HIS APPOINTED COUNSEL WAS INEFFECTIVE.”
{¶ 34} Appellant finally asserts that his appointed trial counsel was ineffective for two reasons: first, his attorney did not request that the trial judge remove the sleeping juror, and second, his attorney did not move for a mistrial in light of certain statements that Faris made while testifying.
{¶ 35} The
“First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the
Sixth Amendment . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington (1984), 466 U.S. 668, 687.
{¶ 37} As to the issue of the sleeping juror, we note once again that the record contains no indication as to what portions of the trial, if any, the juror missed. Indeed, the trial judge indicated on the record that the juror merely nodded off at one point during the trial. Without any indication that the juror missed a large or critical portion of the trial, Appellant has not met his burden of showing that the juror‘s conduct was prejudicial. See Sanders, supra at 253;
{¶ 38} As to the issue of Faris’ statements, Appellant cites no specific portions of the testimony to show where he believes trial counsel should have objected. Appellant does, however, reference the same sidebar conference discussed in the second assignment of error, in which the trial judge expressed concern as to the potentially prejudicial effect of Faris‘s testimony that Appellant had admitted to similar previous crimes and that Appellant intended to intimidate his victim by pistol-whipping him. Although Appellant‘s argument in the second assignment of error was premised on the admissibility of the statements as other-acts evidence, Appellant here states that trial counsel should have objected to the testimony as inadmissible hearsay evidence. The hearsay rule, however, does not preclude the sort of testimony that Faris gave as to Appellant‘s statements. See
{¶ 39} Furthermore, Appellant has again failed to show that counsel‘s failure to request a mistrial on the basis of Faris’ testimony amounted to anything other than sound trial strategy. We cannot say, based on the record before us, that Appellant‘s counsel failed to act as the counsel guaranteed by the
III.
{¶ 40} All six assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to
Costs taxed to Appellant.
SLABY, P. J. WHITMORE, J. CONCUR
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.)