2008 Ohio 1856 | Ohio Ct. App. | 2008
{¶ 2} On appeal, appellant sets forth the following assignments of error:
{¶ 3} "Assignment of Error I: Gaston's sentence was unconstitutional because the trial court made findings of fact in order to support a sentence that was consecutive and not the shortest available. And, it was not supported by clear and convincing evidence. And the sentence violated the Ex Post Facto Clause of the U.S. Constitution.
{¶ 4} "Assignment of Error II: The verdict was against the manifest weight of the evidence due to the highly intoxicated state of the witnesses and other irregularities.
{¶ 5} "Assignment of Error III: Gaston's trial counsel provided ineffective assistance of counsel by failing to fail [sic] a suppression motion, seek expert testimony and other errors which were highly prejudicial.
{¶ 6} "Assignment of Error IV: The trial court erred by failing to grant Gaston's motion to suppress a statement he made at the time of his arrest. *3
{¶ 7} "Assignment of Error V: The trial court erred and abused its discretion by rulings it made during the trial."
{¶ 8} Appellant's convictions arose as a result of a robbery and shooting which took place on August 19, 2005, at the Dog House Bar and Grill, in Toledo, Ohio. The following relevant evidence was adduced at trial.
{¶ 9} At approximately one or two o'clock in the morning, prior to closing, appellant walked into the bar with an acquaintance, David Meeker. At the time that appellant and Meeker entered the bar, only a small group of patrons and the bartender, Dolly Bonconski, were present. The patrons were Douglas DeVaughn, Gerald Stein, Wanda Johnson, and Michelle Baumia.
{¶ 10} According to the witnesses, appellant played pool for a few minutes with Meeker; Bonconski served Meeker a beer and appellant a cola, due to his being under the age of 21; and appellant struck up a conversation with some of the other customers, including Johnson. Then, appellant abruptly exited the bar with Meeker. After approximately five minutes, appellant and Meeker returned to the bar, brandishing handguns, announcing that they were conducting a robbery. Witnesses testified that Meeker took the lead in the robbery, and he forced Bonconski toward the cash register to retrieve the cash. Witnesses also described Meeker as the assailant who screamed for everybody to get on the ground, and who pointed his gun in the faces of the bar patrons. Witnesses testified that, during this time, appellant quietly stood blocking the exit with a gun. *4
{¶ 11} Although there was conflicting testimony as to certain details, all of the witnesses essentially testified to the following. Johnson got up from the ground and hurried toward the exit. A struggle ensued between her and appellant, resulting in appellant shooting several rounds from his gun. Johnson was shot at least three times in her arm, chest, and neck, causing severe injuries. She fell to the ground and lay in a pool of her own blood as appellant and Meeker exited the building, warning the remaining people not to follow, or risk being shot themselves.
{¶ 12} When appellant and Meeker left, the bar patrons and bartender immediately locked the door and called the police. As police arrived, investigators collected evidence and took witness statements. One of the drinking glasses collected contained a partial fingerprint that was later identified at trial as belonging to appellant. Emergency medical crews took Johnson to a nearby hospital for treatment. She eventually recovered and was released, but one of the bullets remains lodged in her chest cavity.
{¶ 13} Detective Bart Beavers of the Toledo Police Department arrived at the scene. All of the witnesses gave descriptions of the perpetrators. It was apparent to Beavers that all of the witnesses had been consuming alcoholic beverages and were intoxicated. Based on his professional opinion, Beavers determined that Baumia was the least intoxicated and chose to give her a photo array. Baumia positively identified appellant from the photo array as one of the perpetrators of the robbery and as the individual who shot Johnson. *5
{¶ 14} Appellant was arrested based upon his fingerprint being on the glass found at the bar that night, witness descriptions, and the photo array identification by Baumia. Beavers interviewed appellant on the evening of August 23, 2005. After being given his Miranda warnings, appellant signed a waiver of rights form and spoke with the detective. Initially, appellant denied even being at the Dog House Bar; however, upon confronting appellant with the evidence of his fingerprint and the witness identification, appellant eventually admitted that he robbed the bar and shot Johnson. The interrogation continued as officers attempted to ascertain who his accomplice was, but appellant refused to indicate who was with him. Finally, after appellant was interrogated by several officers, with several breaks in between sessions, the interrogation ended after approximately two hours.
{¶ 15} Appellant's attorney pointed out several minor inconsistencies in some of the witnesses' testimony on cross-examination. For example, one witness pointed out that the gunshots went off in rapid succession while another witness testified that the gunshots occurred over the period of a minute. Also, appellant's trial counsel pointed out that a few witnesses had not actually seen appellant shoot the gun because they were looking directly at Meeker. Instead, those witnesses only heard gunshots. Appellant's attorney also made it a point to emphasize that all of the witnesses had consumed alcohol and all were intoxicated to varying degrees. In fact, appellant's attorney submitted hospital records which clearly indicated that Wanda Johnson was legally intoxicated. *6
{¶ 16} Appellant argues in his first assignment of error that the trial court made a "plethora of factual findings" during sentencing which was unconstitutional under State v. Foster,
{¶ 17} In Foster, the Ohio Supreme Court found that various sections of the Ohio Revised Code, including R.C.
{¶ 18} Appellant failed to object to the constitutionality of his sentence even though his sentencing hearing occurred on May 4, 2006, almost two years after the Blakely decision was handed down. Pursuant toPayne, we find that appellant forfeited the Blakely issue on appeal. We further find that no plain error occurred in this case because appellant simply cannot establish that but for the Blakely error, he would have received a more lenient sentence. Payne at ¶ 25.
{¶ 19} Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." In this case, appellant brings no plain errors to our attention, and we notice no defects which might affect any of his substantial rights. The Ohio Supreme Court held that even when remanding a defendant's sentence under Foster, nothing would prevent "the trial court from considering the same factors it previously had been required to consider and imposing the same sentence or even a more stringent one." Id. at ¶ 26. In this case, appellant's sentence was within the statutory parameters. The sentencing judge considered the record, oral statements during the hearing, the victim impact statement, and presentence investigation report, as well as the principles and purposes of sentencing under R.C.
{¶ 20} Appellant also argues that his sentence was unduly harsh and not supported by the facts. Before the Foster decision, R.C.
{¶ 21} We find that appellant has not shown by clear and convincing evidence that appellant's sentence was contrary to law or unsupported by the record. As stated above, the trial court properly balanced the seriousness of appellant's crime and the likeliness of recidivism. The sentence was within the statutory parameters. "[T]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences."Foster at ¶ 100.
{¶ 22} Appellant argues that his sentence was not supported by the record "especially when compared to [his co-defendant] Meeker's sentence." However, nothing in the record indicates what sentence Meeker actually received. In any event, appellant's *9
culpability in the crime bears no consideration when comparing his sentence with that of an allegedly more culpable co-defendant. SeeState v. Tewolde, 10th Dist. No. 06AP-764,
{¶ 23} We also find no merit in appellant's argument that his sentence violated the Ex Post Facto Clause of the United States Constitution. First, as this argument was not raised at sentencing, it is waived for purposes of appeal. See State v. Awan (1986),
{¶ 24} Even if he had not waived the argument, this court has repeatedly rejected it on prior occasions. See, e.g., State v.O'Neill, 6th Dist. No. WD-06-055,
{¶ 25} Based on the record, we find that appellant's sentence was supported by the record and was not contrary to law. Appellant's first assignment of error is therefore found not well-taken.
{¶ 26} In his second assignment of error, appellant states that his conviction was against the manifest weight of the evidence. In particular, appellant argues that based on the evidence adduced at trial, the following factors created reasonable doubt as to his guilt: (1) incomplete memory of some witnesses; (2) generic initial descriptions of the perpetrators by witnesses at the scene of the crime; (3) Meeker's more active involvement in the robbery, and (4) the witnesses' varying degrees of intoxication.
{¶ 27} In determining whether a verdict is against the manifest weight of the evidence, this court sits as a "thirteenth juror." State v.Thompkins (1997),
{¶ 28} In the case at hand and after a thorough review of the record, the weight of the evidence in favor of conviction was substantial. In addition to appellant's confession, every witness identified appellant at trial as the perpetrator of these crimes. A witness also identified appellant through a photo array just after the incident. There was even a partial fingerprint of appellant at the scene of the crime. Accordingly, we find that the jury did not clearly lose its way and create such a manifest miscarriage of justice that appellant's conviction should be reversed and a new trial ordered. Appellant's second assignment of error, therefore, is found not well-taken.
{¶ 29} In his third assignment of error, appellant states that he was represented by ineffective trial counsel. Specifically, appellant argues that his trial counsel: (1) failed to challenge the witnesses' identifications of appellant; (2) did not call an expert witness to rebut the state's expert testimony regarding the partial fingerprint and to question the state witnesses' ability to recall events; (3) did not vigorously cross-examine the shooting victim; and (4) did not request a jury view.
{¶ 30} To establish a claim of ineffective assistance of counsel, an appellant is required to demonstrate that his counsel's actions fell below an objective standard of reasonableness and that such action caused prejudice to appellant's case. Strickland v. Washington (1984),
{¶ 31} Because a court cannot second guess trial strategies and it has the benefit of hindsight, there is a strong presumption that appointed counsel acted in a reasonable and competent manner. State v. Mason
(1998),
{¶ 32} Regarding appellant's first claim that his trial counsel failed to challenge the witnesses' identifications of appellant, we find this claim is unsubstantiated. According to the record, appellant's trial counsel questioned witnesses and attempted to challenge their credibility on the basis of their levels of intoxication. The jury, however, is the sole judge of the weight of the evidence and the credibility of witnesses, and "may believe or disbelieve any witness or accept part of what a witness says and reject the rest." State v.Antill (1964),
{¶ 33} Appellant's second claim of ineffective assistance of counsel is that an expert should have been called by trial counsel to rebut the state's fingerprint testimony *13
and/or the witnesses' levels of intoxication. We have previously held that "the decision whether or not to call an expert witness is solely a matter of trial strategy." State v. Newberry, 6th Dist. No. H-01-020, 2002-Ohio-3972, ¶ 16. A failure by defense counsel to call a witness at trial does not constitute ineffective assistance of counsel absent a showing of specific prejudice. State v. Williams (1991),
{¶ 34} We further find that appellant's third and fourth claims of ineffective assistance of counsel, i.e. counsel's failure to vigorously cross-examine the shooting victim and request a jury view, were matters of trial strategy. There are no obvious deficiencies in counsel's cross-examination of the victim and a jury view was arguably unnecessary since photographs of the crime scene, and drawings laying out the relative positions of the people involved, were provided to the jury. The mere existence of an alternative theory of defense is insufficient to establish ineffective assistance of counsel. State v. Tenace, 6th Dist. No. L-05-1041,
{¶ 35} Accordingly, we find that appellant failed to establish that trial counsel's representation was deficient or that appellant was specifically prejudiced by the alleged deficiencies. Thus, given the strong presumption that appointed counsel acted in a reasonable and competent manner, we find appellant's third assignment of error not well-taken.
{¶ 36} In his fourth assignment of error, appellant states that the trial court improperly denied his motion to suppress evidence concerning his statements to police. He contends that his confession was coerced by police officers and obtained in violation of his constitutional rights. We disagree.
{¶ 37} It is established law that, to protect against self-incrimination, a suspect in police custody must be givenMiranda warnings prior to any police questioning. Miranda v.Arizona (1966),
{¶ 38} Certainly, though, one may waive or relinquish a known right. In Moran v. Burbine (1986),
{¶ 39} If a suspect does validly waive his or her rights, the trial court still has the task of determining whether post-waiver statements were made voluntarily. This should be done by looking to the totality of the circumstances surrounding the statements. In doing so, the court should look to the "age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment, and the existence of threat or inducement." State v. Brewer (1990),
{¶ 40} Under the totality of the circumstances, appellant validly waived his right to remain silent. Appellant was and is a literate, sophisticated individual. He was not under the influence of drugs or alcohol. No threats or inducements were made. He was warned of his rights and the consequences of his option as to whether to speak to the police or not. He then signed a written waiver of rights. We find that appellant's waiver was voluntary and made with full awareness of his rights and the consequences of his decision to speak with the police.
{¶ 41} In addition, the record supports the trial court's conclusion that appellant's post-waiver confession was made voluntarily. Appellant, at the time of his arrest and questioning, was a 19 year-old college student whose mentality is not in issue. He also had a prior criminal history, which suggests he knew what he was doing. His interrogation lasted barely two hours, during which he was given several breaks in the *16 interrogation when the questioning officers left the room. There is no evidence of physical deprivation, mistreatment, threat or inducement.
{¶ 42} The intensity of interrogation is another relevant factor in whether appellant made a voluntary confession. Here, one officer did calmly call appellant expletive-ridden names4 during questioning in response to appellant's initial denials. However, this was mild compared to other non-coercive police tactics. See, e.g., State v. Slaughter
(Apr. 28, 2000), 1st Dist. No. C-980702 (holding that extended combative interrogation where police officers cursed at and threatened a suspect that his "ass would burn" in the courtroom and in hell did not rise to the level of coercion). A suspect's decision to confess is made voluntarily absent evidence that "his will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct." Colorado v. Spring (1987),
{¶ 43} In his fifth assignment of error, appellant states that the trial court abused its discretion in making various evidentiary rulings. Specifically, appellant asserts that the trial court abused its discretion when it allowed the jury to ask questions of witnesses and *17 overruled defense counsel's objections to certain questions which were arguably already asked and answered.
{¶ 44} In State v. Fisher,
{¶ 45} In this case, the trial court followed all of the recommended procedures of the Ohio Supreme Court in permitting juror questions of witnesses. In addition, appellant offers no evidence to support his contention that he was prejudiced. On the contrary, given the abundance of evidence, it appears that clarifying the evidence in the minds of the jurors helped, rather than hindered, appellant. Accordingly, we find that appellant has failed to establish that the trial court abused its discretion in allowing the jury to question witnesses. *18
{¶ 46} The admission of evidence also lies within the broad discretion of a trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion which created material prejudice. State v. Gross (2002),
{¶ 47} Appellant offers no evidence that the decisions of the trial court to overrule defense's objections were unreasonable, arbitrary, or unconscionable. In addition, we find that no prejudice resulted from the trial court overruling defense objections to questions asked and answered. Appellant's fifth assignment of error is found not well-taken.
{¶ 48} The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4. *19
Peter M. Handwork, J., Arlene Singer, J., William J. Skow, J., CONCUR.
