State v. FlowersState v. Flowers
JUDGMENT: AFFIRMED
BEFORE: Gallagher, P.J., Dyke, J., and Sweeney, J.
RELEASED: September 17, 2009
ATTORNEY FOR APPELLANT
John T. Castele
1310 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
SEAN C. GALLAGHER, P.J.:
{¶ 2} On November 20, 2007, at approximately 5:40 p.m., in the area of E. 90th Street and Superior Avenue, in Cleveland, Yolanda Cooke and Randall Hardy were out walking. They were on their way to a park to drink the beer that they had just bought at a corner store. While walking on Superior Avenue toward E. 105th Street, they noticed a group of kids hanging out on the sidewalk. In an effort to avoid any potential conflict, they walked across the street. Hardy testified that he heard someone yell “get them,” and then they heard gunshots. Hardy and Cooke ran and hid behind a Catholic school until they felt it was safe to leave. Hardy was headed back toward Superior Avenue when he was approached by three males who asked him if he was okay. One of the males, later identified as Flowers, pulled a gun out and stuck it in Hardy‘s face demanding money, while the other two males went through his pockets. Hardy described the gunman as wearing a hooded sweatshirt with white stripes on the sleeves and a different colored hood. He described the gun as an automatic. Hardy testified that he told them he did not have any money on him, so the assailants pulled a gun on Cooke, who had been walking behind Hardy.
{¶ 4} Jovon Whitfield testified that on the night in question, he was walking in the neighborhood getting exercise when he saw Cooke get robbed at gunpoint. He saw Flowers take Cooke‘s purse and run onto the porch of a vacant home on E. 90th Street. Whitfield and Hardy testified that they observed Flowers going through Cooke‘s purse. Cooke testified that she went back to the store and called police.
{¶ 5} The police arrived within a few minutes. Hardy told the police, “We got robbed and the guys are standing right on the porch.” Hardy, Cooke, and Whitfield described the suspect as a black male in his late teens, who had a beard and mustache and was wearing a black hooded sweatshirt with white stripes. The officers headed toward the vacant house when Flowers, the male matching the victims’ description, and another male ran into the house next door. The officers ordered the males to stop; one stopped and got
{¶ 6} Hardy and Cooke identified Flowers as the male who robbed them. They also identified the sweatshirt as being the one Flowers was wearing during the robbery. Whitfield identified Flowers as the male he saw rob Cooke at gunpoint. Cooke‘s purse was located, emptied out, on the porch of the abandoned house. The gun was never recovered.
{¶ 7} At trial, Hardy, Cooke, and Whitfield identified Flowers as the robber and the sweatshirt as the one worn by Flowers on the night of the robbery.
{¶ 8} Venus Flowers testified on behalf of the defendant, her son. She testified that on the night in question, Flowers was home all day until she sent him to the store to buy her some cigarettes. She said he returned about five or ten minutes later. Then she heard a big bang, and then her house was full of police. She testified that she helped secure the dogs while the police searched for her son. She testified that the sweatshirt belonged to her
{¶ 9} William Woods, Flowers‘s uncle and Venus‘s brother, testified that on the day in question, he was going back and forth to the store all day for his sister while she was preparing for Thanksgiving. He testified that he saw his nephew walking to the store for cigarettes and joined him. He said they picked up beer and cigarettes and headed back to the house.
{¶ 10} Woods testified that as they were walking, the police pulled up with shotguns drawn and ordered him to stop. He said he stopped, but Flowers had already walked into the house. He testified that the sweatshirt was his and he had worn it earlier that day.
{¶ 11} Flowers testified that he woke up around noon that day and played video games and watched TV most of the day until his mother wanted him to get her some cigarettes. He went to the Superior Deli with his uncle. Flowers testified that he was wearing a white T-shirt and jeans. He said that when he returned home, he looked for his mother and then headed up to the attic. He heard the police kick in the front door, and he thought they were coming to arrest him on his outstanding warrant. He denied wearing the sweatshirt and robbing Cooke and Hardy.
{¶ 12} Flowers was found guilty of one count of aggravated robbery with firearm specifications with Yolanda Cooke as the named victim. He was
{¶ 13} Flowers‘s first assignment of error states the following:
{¶ 14} “I. The defendant was denied effective assistance of counsel.”
{¶ 15} In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that (1) the performance of defense counsel was seriously flawed and deficient and (2) the result of the appellant‘s trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St.3d 144. Judicial scrutiny of defense counsel‘s performance must be highly deferential. Strickland, 466 U.S. at 689. In Ohio, there is a presumption that a properly licensed attorney is competent. State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102.
{¶ 16} Flowers claims he was denied effective assistance of counsel because his attorney failed to object to the fact that his client was wearing jail clothing at the start of trial when his attorney knew that family members were to bring clothes for Flowers the following day. Also, Flowers contends that his trial counsel failed to object to leading questions asked on direct and redirect examination by the state.
{¶ 18} However, in Estelle, the Supreme Court refused to establish an across-the-board rule that a conviction must be overturned, under any circumstances, when the accused wore jail clothing at trial. Instead, the inquiry must focus on whether the accused‘s appearance before the jury in jail clothes was compelled. Id. at 507. Though a defendant cannot be compelled to appear at trial in identifiable prison clothes, he may choose to do so. State v. Wigley (Feb. 6, 1997), Cuyahoga App. No. 69920. Also, there may be other circumstances that indicate a lack of compulsion.
{¶ 19} The trial court inquired on the record about Flowers‘s clothing before any prospective jurors were seated, asking why he was not in civilian clothes when the court ordered such. Flowers‘s attorney explained that a month before the trial date, he told the defendant‘s parents to bring clothes for Flowers, but his parents never brought the clothes. The attorney spoke with Flowers‘s parents again that day and told them to bring clothes for the next day.
{¶ 21} We conclude that Flowers was not forced to stand trial in prison clothing. We further find that his attorney was not ineffective. Flowers has not demonstrated that the result of his trial would have been different had he started the trial in civilian clothes.
{¶ 22} Finally, we find no merit to Flowers‘s argument that his attorney was ineffective for failing to object when the prosecutor asked leading questions. It is within the trial court‘s discretion to allow leading questions on direct examination, and therefore, the failure to object to leading questions does not usually constitute ineffective assistance of counsel. State v. Skinner, Licking App. No. 2007CA00024, 2007-Ohio-6793, ¶32, citing State v. Jackson, 92 Ohio St.3d 436, 449, 2001-Ohio-1266. Further, the failure to object is not a per se indicator of ineffective assistance of counsel because sound trial
{¶ 23} A review of the record indicates that the state asked numerous leading questions, particularly with the 15-year-old witness, Jovon Whitfield.
{¶ 24} Flowers‘s second assignment of error states the following:
{¶ 25} “II. The defendant was materially prejudiced by instances of prosecutorial misconduct.”
{¶ 26} A prosecuting attorney‘s conduct during trial does not constitute grounds for error unless the conduct deprives the defendant of a fair trial. State v. Keenan (1993), 66 Ohio St.3d 402, 405; State v. Gest (1995), 108 Ohio App.3d 248, 257. The touchstone of a due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips (1982), 455 U.S. 209. The effect of the prosecutor‘s misconduct must be considered in light of the whole trial. State v. Durr (1991), 58 Ohio St.3d 86, 94; State v. Maurer (1984), 15 Ohio St.3d 239, 266.
{¶ 28}
{¶ 29} There were several instances throughout the trial where the state asked leading questions to its witnesses on direct and redirect examination, again, particularly with the 15-year-old witness, Jovon Whitfield. Having reviewed the record, however, we conclude that the prosecutor resorted to leading questions to move the trial along, not to influence his witnesses’ testimony or to supply them with answers. See State v. Canyon, Hamilton App. Nos. C-070729, C-070730, C-070731, 2009-Ohio-1263 (finding that it was not improper for the prosecutor to resort to leading questions to move the trial along); State v. Poling, Portage App. No. 2004-P-0044, 2006-
{¶ 30} Upon review of the record, we conclude that although the trial court may have improperly admitted the repetitive questions and answers, such error was harmless error. Harmless error is “[a]ny error, defect, irregularity, or variance which does not affect substantial rights.”
{¶ 31} In general, prosecutors are given considerable latitude in opening statement and closing argument. State v. Ballew (1996), 76 Ohio St.3d 244, 255, 1996-Ohio-81. In closing argument, a prosecutor may comment on “‘what the evidence has shown and what reasonable inferences may be drawn
{¶ 32} We agree with Flowers that the prosecutor‘s statements about the gunshot residue results were incorrect and improper. In addition, the prosecutor‘s statements in which he claimed that Jovon Whitfield attended a special needs school was not exactly accurate because the prosecutor was implying that Whitfield was a special needs student when the testimony reflects that he had behavioral problems (i.e., “cussing at people“). Further, the prosecutor‘s personal attack on the defense attorney when he stated, “God bless Mr. Jamison for confusing him. God bless him,” was not proper.
{¶ 33} Although the prosecutor made several improper remarks during closing, we do not find that the comments prejudicially affected the substantial rights of Flowers. When considering the entire record in this case, we cannot say that, absent the improper remarks of the prosecutor, the
{¶ 34} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, PRESIDING JUDGE
ANN DYKE, J., and JAMES J. SWEENEY, J., CONCUR