State v. FrazierState v. Frazier
Rendered on the 2nd day of April, 2010.
AMY M. SMITH, Atty. Reg. No. 0081712, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
C. DOUGLAS COPLEY, Atty. Reg. No. 0066825, P. O. Box 13212, Dayton, Ohio 45413 Attorney for Defendant-Appellant
{¶ 1} Following a jury trial, Raymond Frazier was convicted of two counts of felonious assault and one count of having weapons while under disability. These charges stemmed from an incident in which Mr. Frazier purportedly fired shots at a vehicle occupied by his sister, Jasmine Frazier, and her boyfriend, James Swain. Ms. Frazier and Swain suffered no injuries in the incident.
{¶ 2} Initially, Mr. Frazier contends that the trial court erred when it allowed the State to amend the indictment on the day of trial by deleting the word “serious” before the phrase “physical harm” in both felonious assault counts. However, the amendments did not change the name or identity of the offense but instead deleted language irrelevant to an
{¶ 3} Mr. Frazier also implies that the trial court erred by not continuing the trial date after it amended the indictment. Even if we presume the amendments changed the substance of the indictment, Mr. Frazier was entitled to a reasonable continuanсe only if he was misled or prejudiced by the amendments. But he never requested a continuance. And, Mr. Frazier failed to explain with specificity how the surplus language in the original indictment misled him or the amendment prejudiced his defense. Thus, we find no error in the court’s decision to proceed with the trial.
{¶ 4} In addition, Mr. Frazier contends that because the court amended the indictment, he was convicted based on charges essentially different from those returned by the grand jury. However, every instance of serious physical harm by definition includes physical harm. Therefore, in finding probable cause to believe Mr. Frazier attempted to cause
{¶ 5} Mr. Frazier, who is an African-American, also argues that he was denied his right to equal protection under the United States Constitution when the State used a peremptory challenge to strike the only African-American on the panel of prospective jurors. We will assume, without deciding, that Mr. Frazier made a prima facie case of racial discrimination. However, the State offered a race-neutral explanation for its use of the challenge – the prospective juror knew the defendant and alleged victims and worked with the defendant’s father. The trial court’s finding that this explanation was credible is entitled to deference, and Mr. Frazier provides no argument as to how the State’s explanation was a pretext for discrimination. Thus, we conclude that Mr. Frazier failed in his burden to prove purposeful discrimination.
{¶ 6} Next, Mr. Frazier complains that over his objection, the trial court erroneously instructed the jury that it could not consider evidence that Swain had prior misdemeanor convictions for assault and aggravated menacing. Under
{¶ 7} Mr. Frazier also argues that the cоurt erroneously instructed the jury that his failure to testify “must be considered for any purpose.” We agree that the court’s inadvertent
{¶ 8} In addition, Mr. Frazier contends that the court erred in instructing the jury, over his objection, about evidence that he threatened the alleged victims before the shooting occurred, i.e. “other acts” evidence under
{¶ 9} Finally, Mr. Frazier argues that the trial court abused its discretion by allowing the jury to read a partial transcript of trial testimony in response to one of the jury’s questions. However, the partial transcript was responsive to the jury’s question. Moreover, the trial court did not act unreasonably, arbitrarily or unconscionably by refusing to redact information from the end of a sentence in this transcript in light of its concern that the jury might speculatе about the substance of the missing testimony. Accordingly, we affirm the trial court’s judgment.
I. Facts
{¶ 11} After the procedural matters were resolved, the State presented the following version of events. In 2002, Mr. Frazier was convicted of robbery, a second degree felony, in violation of
{¶ 12} At some point after the couple exited the parking lot, officers from the Springfield Police Department pulled them over. Officer Greg Ivory testified that he initiated the traffic stop after hearing multiple shots fired in the area and receiving a call from dispatch that the occupants of a gold or silver Monte Carlo and a green SUV had fired shots back and forth at each other. Swain and Ms. Frazier both implicated Mr. Frazier as the one who initiated the shooting.
II. Assignments of Error
{¶ 14} Mr. Frazier assigns the following error for our review:
{¶ 15} “Assignment of Error I: The trial court erred when it allowed the prosecution to amend the indictment on the first day of trial.
{¶ 16} “Assignment of Error II: The trial court erred to the prejudice of the defendant when it allowed the prosеcution to remove the only African American juror. Tr. p. 17.
{¶ 17} “Assignment of Error III: The trial court’s jury instructions were incorrect and confusing to the prejudice of appellant.
{¶ 18} “Assignment of Error IV: The trial [court] erred in sending a portion of the trial transcript back to the jury room over the defense objection.”
III. Amendments to Indictment
{¶ 19} In his first assignment of error, Mr. Frazier contends that the trial court erred by allowing the State to amend the felonious assault counts in the indictment on the day trial began.
{¶ 20}
{¶ 21} “The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in rеspect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.” * * * Thus,
{¶ 22} A trial court commits reversible error when it permits an amendment that changes the name or identity of the offense charged, regardless of whether the defendant suffered prejudice. State v. Honeycutt, Montgomery App. No. 19004, 2002-Ohio-3490. “Whether an amendment changes the name or identity of the crime charged is a matter of law.” State v. Kittle, Athens App. No. 04CA41, 2005-Ohio-3198, at ¶ 12, quoting State v. Cooper, (June 25, 1998), Ross App. No. 97CA2326. Hence, we review this question de novo.
{¶ 23} If the amendment does not change the name or identity of the crime charged, then we apply an abuse of discretion standard to review the trial court’s decision to allow a
{¶ 24} The original indictment alleged that Frazier committed two counts of felonious assault, specifically stating that he “did knowingly cause or attempt to cause serious physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordnance, to wit: a firearm, in violation of Section 2903.11(A)(2) of the Ohio Revised Code.” (Emphasis added). However,
{¶ 25} Contrary to Mr. Frazier’s assertion, the amendments did not change the name or identity of the felonious assault offenses. The names of the offenses remained the same after the amendment. Likewise, the identity of the offenses remained the same. The original indictment and its amended version included all the elements required by
{¶ 26} We regard the inclusion of the word “serious” in the indictment as mere surplusage, which is “an averment which may be stricken, leaving sufficient description of the offense.” State v. Berecz, Washington App. No. 08CA48, 2010-Ohio-285, at ¶ 24, quoting Kittle, supra, at ¶ 15, in turn, quoting State v. Bush (1996), 83 Ohio Misc.2d 61, 65. An
{¶ 27} Mr. Frazier also implies that the trial court erred by not granting him a continuance after it allowed the State to amend the indictment because he prepared to defend against felonious assault charges under
{¶ 28} “If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance between the indictment, information, or complaint and the proof, the defendant is entitled to a discharge of the jury on the defendant’s motion, if a jury has been impaneled, and a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant’s rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury.”
* * *
{¶ 29} Here, the indictment was amended before the jury was impaneled. We assume that by striking the word “serious” from the felonious assault counts the trial court amended the substance of the indictment. Thus, Mr. Frazier was entitled to a reasonable continuance unless it is clear that he was not misled or prejudiced by the amendments and his
{¶ 30} However, Mr. Frazier did not request a continuance when the court granted the State’s motion to amend the indictment. In fact, immediately after the jury was impaneled, the trial court offered to grant Mr. Frazier a continuance because of an unrelated discovery matter, and Mr. Frazier rejected that offer. Moreover, Mr. Frazier failed to explain with specificity how the surplus language in the original indictment misled him or prejudiced his defense. Again, the original indictment mirrored the language in and cited to
{¶ 31} Finally, Mr. Frazier’s assertion that he was convicted based on charges essentially different from those returned by the grand jury is meritless. In the original indictment, the grand jury found probable cause to believe Mr. Frazier knowingly caused or attempted to cause “serious physical harm to another * * * by means of a deadly weapon or dangerous ordnance.” When the grand jury made this finding, it necessarily must have found probable cause to believe that he knowingly caused or attempted to cause “physical harm” to
IV. Venire
{¶ 32} In his second assignment of error, Mr. Frazier, who is an African-American, contends that the trial court erred by overruling his objection to the State’s use of a peremptory challenge to excuse the only African-American on the panel of prospective jurors. In Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the United States Supreme Court found that the Equal Protection Clause forbids the State from exercising a peremptory challenge to excuse a juror solely because of that juror’s race. See State v. Murphy, 91 Ohio St.3d 516, 2001-Ohio-112. “The Equal Protection Clause guarantеes the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors[.]” Batson at 86 (citations omitted).
{¶ 33} “A court adjudicates a Batson claim in three steps.” Murphy at 528. First, the opponent of the peremptory challenge must make a prima facie case of racial discrimination. Id.; see Batson at 93-94. To establish a prima facie case of discrimination, “the defendant must point to facts and other relevant circumstances that are sufficient to raise an inference that the prosecutor used its peremptory challеnge specifically to exclude the prospective juror on account of his race.” State v. Carver, Montgomery App. No. 21328, 2008-Ohio-4631, at ¶ 48, citing Batson at 95. “The trial court should consider all relevant circumstances in determining whether a prima-facie case exists, including statements by counsel exercising the peremptory challenge, counsel’s questions during voir dire, and whether a pattern of strikes against minority venire members is present.” Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95, 98, 1997-Ohio-227, citing Batson at 96-97.
{¶ 34} If the defendant establishes a prima facie case, the proponent of the peremptory challenge must provide a racially neutral explanation for the challenge. Murphy at 528; see Batson at 97. “A simple affirmаtion of general good faith will not suffice.” Hicks at 98. However, the explanation “need not rise to the level justifying exercise of a challenge for cause.” Batson at 97. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Purkett v. Elem (1995), 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (per curiam), quoting Hernandez v. New York (1991), 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (plurality opinion).
{¶ 35} Third, the trial court must determine whether the defendant carried his burden of proving purposeful discrimination. Batson at 98. The trial court must decide whether the prosecutor’s race neutral explanation is credible or is insteаd a pretext for unconstitutional discrimination. Carver at ¶ 50, citing Hernandez at 363. A trial court’s conclusion that the state did not possess discriminatory intent in the exercise of its peremptory challenges will not be reversed on appeal unless clearly erroneous. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, at ¶ 61, citing State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, at ¶ 106. The court’s finding is entitled to deference because it rests largely on the trial court’s evaluation of the prosecutor’s credibility. See Hicks at 102.
{¶ 36} Here, the trial court found that the mere fact that the State exercised a peremptory challenge on the only African-American on the panel of prospective jurors did not establish a prima facie case of race discrimination. We will assume, without deciding, that
V. Jury Instructions
{¶ 37} In his third assignment of error, Mr. Frazier contends that the trial court gave erroneous jury instructions. Generally, a trial court should give a requested jury instruction if it is a correct statement of the law as applied to the facts of the particular case. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591.
A. Witness’s Prior Convictions
{¶ 38} Without objection, both parties elicited testimony from Swain regarding his prior misdemeanor convictions for assault and aggravated menacing. Mr. Frazier challenges the court’s decision to give the jury the following limiting instruction on these convictions, over his objection at the end of the trial: “Evidence was presented that James Swain has prior misdemeanor convictions for assault and aggravated menacing. That evidence is not relevant to any issue in this case. You are to disregard it and you are not to permit it to influence your deliberations.”
{¶ 39}
B. Defendant’s Failure to Testify
{¶ 40} Next, Mr. Frazier contends that the court improperly instructed the jury regarding his failure to testify at trial in violation of his constitutional right against compulsory self-incrimination. The court gave the jury the following oral instruction: “The defendant did not testify in his own defense. He has a constitutional right to not testify. The fact that he did not testify must be considered for any purpose.” Mr. Frazier correctly argues
{¶ 41} Because Mr. Frazier did not object to the erroneous oral instruction, he has waived all but plain error. “Plain errors or defects affecting substantial rights may be noticed although they were nоt brought to the attention of the court.”
{¶ 42} For a reviewing court to find plain error: (1) there must be an error, i.e., “a deviation from a legal rule”; (2) the error must be plain, i.e., “an ‘obvious’ defect in the trial proceedings”; and (3) the error must have affected “substantial rights,” i.e., it “must have affected the outcome of the trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68. Furthermore, the Supreme Court of Ohio has stated that “[n]otice of plain error under
{¶ 43} We find no plain error in this case. As the State points out, the jury received written instructions for use in their deliberations. Those instructions provided that: “The defendant did not testify in his own defense. He has a constitutional right to not testify. The fact that he did not testify must not be considered for any purpose.” (Emphasis added). In
C. “Other Acts” Evidence
{¶ 44} Mr. Frazier also complains that the court erred in instructing the jury on its use of “other acts” evidence under
{¶ 45} “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
{¶ 46} Evidence of other acts is only admissible if “there is substantial proof that the alleged other acts were cоmmitted by the defendant[.]” State v. Lowe, 69 Ohio St.3d 527, 530, 1994-Ohio-345.
{¶ 47} Over Mr. Frazier’s objection, the trial court gave the jury the following instruction regarding evidence that he threatened the alleged victims before the shooting occurred:
{¶ 48} “Evidence was also admitted that the defendant, on or about September 8, 2008, threatened his sister, Jasmine, and her boyfriend, James Swain. If you find that the State failed to produce substantial evidence that these threats occurred, you must disregard this evidence.
{¶ 49} “If, however, you find that the State produced substantial evidence that these
{¶ 50} “If, however, you find that the State produced substantial evidence that thеse threats occurred, you may consider that evidence but only for the limited purpose of determining whether it proves the identity of the defendant with respect to the crimes with which he’s charged and/or his intent, plan, and/or motive to commit those crimes.
{¶ 51} “That evidence was not admitted, and you may not consider it, to prove the character of the defendant in order to show that he acted in conformity with that character on the date in question, September 9, 2008.”
{¶ 52} Mr. Frazier argues that because the trial court repeatedly referred to the State’s obligation to producе “substantial evidence” that these threats occurred, the jury was confused about the State’s obligation to establish his guilt beyond a reasonable doubt. However, the court correctly instructed the jury on the standard for admissibility of “other acts” evidence. See Lowe at 530. We find no abuse of discretion in the court’s wording of the instruction. The court clearly confined its “substantial evidence” references to the State’s evidence of Mr. Frazier’s alleged threats to the victims. And throughout the jury instructions, the court reminded the jury of the State’s burden to prove guilt beyond a reasonable doubt. Mr. Frazier’s contention thаt the jurors were confused by the wording and format of the “other acts” instruction amounts to nothing more than mere speculation. Accordingly, we also reject this argument and overrule Mr. Frazier’s third assignment of error.
VI. Providing Jury a Partial Transcript
{¶ 54} Here the jurors posed the following question, titled “Officer Ivory’s Testimony,” to the trial court: “Was there mention of dispatch telling Officer Ivory that there was a green SUV & gold Monte Carlo involved?” Mr. Frazier objected to the court giving any response to this question except to instruct the jurors to rely on their collective memories. However, the trial court opted to sеnd four lines from one page of the transcript back to the jury. According to this portion of the transcript, Officer Ivory testified that “dispatch put out there was two groups of cars shooting back and forth. One was a Monte Carlo and I can’t remember if they said it was gold or silver and the other was a green SUV.”3 Mr. Frazier asked the court to excise the statement “there was two groups of cars shooting back and forth,”
{¶ 55} We find that the trial court did not abuse its discretion by giving the jury a copy of the above-quoted portion of the transcript. The partial transcript was responsive to the jury’s question about the physical description dispatch gave Officer Ivory on the involved vehicles. While the fact that dispatch told the officer that “there was two groups of cars shooting back and forth” is not particularly relevant to this inquiry, the court’s decision to not redact this phrase was not unreasonable, arbitrary or unconscionable. First, there was abundant other testimony to establish the “shooting back and forth.” Thus, we reject any contention that this reference overemphasized selected facts, i.e., the shooting. Moreover, the court feared the omission of the end of a sentence could impact the jury’s interpretation of the testimony. Therefore, we overrule his fourth assignment of error.
VII. Conclusion
{¶ 56} Having overruled each of the assignments of error, we affirm the trial court’s judgment.
. . . . . . . . . .
DONOVAN, P.J. and GRADY, J., concur.
(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Amy M. Smith
C. Douglas Copley
Hon. Douglas M. Rastatter
Case Name: State of Ohio v. Raymond Frazier
Panel: Donovan, Grady, Harsha
Author: William H. Harsha