STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO PLAINTIFF-APPELLEE VS. HATTIE GILBERT DEFENDANT-APPELLANT
CASE NO. 08 MA 206
SEVENTH DISTRICT
March 20, 2012
[Cite as State v. Gilbert, 2012-Ohio-1165.]
Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 08 CR 382 A. JUDGMENT: Affirmed in Part. Reversed in Part. Remanded.
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor; Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503.
For Defendant-Appellant: Atty. Timothy Young, Ohio Public Defender; Atty. Kristopher A. Haines, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215.
{1} Appellant Hattie Gilbert appeals her convictions on complicity to attempted murder, complicity to felonious assault, complicity to aggravated robbery, and complicity to kidnapping, along with four corresponding gun specifications. She received a combined sentence of fifty years in prison. Appellant raises eight assignments of error in this appeal. The state has conceded that the trial court should have merged the gun specification sentences, and we correct this error herein. Appellant also argues that there were allied offenses that should have merged at sentencing. The analysis for appellate review of allied offenses was recently changed in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Under the Johnson analysis, and based on the specific facts of this case, aggravated robbery and kidnapping are not allied offenses and the sentences should not have merged. Similarly, under the facts of this case, attempted murder and felonious assault are not allied offenses and the trial court properly imposed sentences for both crimes. Appellant raises an error regarding jury instructions, but Appellant did not object to the jury instructions and the caselaw cited in support is not relevant to the issue raised. Appellant argues that there was insufficient evidence of complicity to robbery, but the record does not support the argument. Her Fourth Amendment arguments likewise are not persuasive. She raises a Sixth Amendment Confrontation Clause issue regarding a hearsay statement attributed to her codefendant Taran Helms, but any error is harmless in light of the otherwise overwhelming evidence of her guilt. She further argues that there should have been a change of venue due to pretrial publicity, but the record does not show jury bias as
{2} All of Appellant‘s arguments, except those related to her first assignment of error, are overruled. The sentences for the firearm specifications are hereby merged. Appellant‘s convictions and the remaining aspects of her sentence are hereby affirmed.
Facts and Procedural History
{3} On April 3, 2008, Taran Helms and Hattie Gilbert were indicted by a Mahoning County Grand Jury on counts of attempted murder, felonious assault, aggravated robbery, and kidnapping, as well as four accompanying firearm specifications. The charges arose from a series of events that occurred on March 24, 2008, wherein the victim, Joseph Kaluza, was robbed and shot while on the way to make a bank deposit for his employer, a Kentucky Fried Chicken restaurant. As he headed for the bank, a blue-gray Saturn vehicle pulled up and suddenly stopped in front of him, causing an accident with Kaluza‘s vehicle. Kaluza called his district manager to report the accident, then called the police. Immediately following the accident, a man came up from behind Kaluza‘s vehicle and shot Kaluza in the neck. The man took the deposit money, pushed Kaluza‘s car to a more secluded spot, and threatened to shoot Kaluza again. The man then fled on foot. Police investigations eventually led to the arrests of Appellant and Helms.
{5} Co-defendant Helms filed a motion for change of venue on September 3, 2008, arguing that extensive pretrial publicity about the case necessitated a change of venue. Helms attached approximately 35 articles from newspaper and internet sources, ranging from lengthy detailed articles to single-line references, regarding the robbery, the investigation and legal proceedings, and the medical recovery of the victim. Helms later supplemented his motion for change of venue, attaching a DVD of television news coverage of the incident. Appellant joined Helm‘s motion on September 15, 2008. The motion was denied on September 15, 2008.
{6} The joint trial for Helms and Appellant commenced on September 15, 2008. Joseph Kaluza testified that he was a manager for a Kentucky Fried Chicken restaurant. One of his duties was to take the restaurant‘s deposits to the bank. While he was driving to the bank on March 24, 2008, a car decelerated suddenly in front of Kaluza, causing him to hit the rear of her vehicle. Appellant was the driver of that vehicle. Kaluza immediately called the police and the area manager for his restaurant. Appellant got out of her car and asked to use Kaluza‘s cellular phone. She used the phone and returned it to Kaluza. She then returned to her car. Shortly thereafter, codefendant Taran Helms appeared at the driver‘s side of Kaluza‘s car and shot Kaluza in the neck, instantly paralyzing him. Helms walked to Gilbert‘s car, motioned for her to leave, then returned to Kaluza‘s car and pushed it off of the main road and onto a side street in front of an abandoned house. Helms then looked in
{7} Kaluza further testified that Kimberly Helms, the defendant‘s mother, used to work at Kaluza‘s restaurant and knew the deposit procedure, but she was fired the prior spring for theft.
{8} Kandace Johnson testified that she lived in a house a short distance away from where the incident occurred. Johnson stated that she saw the car accident occur, and saw Appellant exit her car, speak to Kaluza, and return to her car. Johnson testified that Appellant was wearing a pink coat. Johnson saw Helms walk from Ravenwood Street onto South Avenue, the main street where the accident occurred. Helms walked up to Kaluza‘s car, fired a shot into the car without breaking his stride, and continued to Gilbert‘s car. Helms and Appellant spoke together for a minute. Johnson then saw Helms point for Appellant to leave, which she did. Johnson saw Helms immediately return to Kaluza‘s car and start “fumbling around,” by reaching into the car through the driver‘s side window. (Tr., p. 1611.) Johnson saw Helms push the car, turn the car off, fumble around a bit more, then pull the car off of South Avenue and onto a side street, Hilton. Johnson estimated that 90 seconds elapsed between the gunshot and moving the car. Johnson saw Helms
{9} Jeremy Vignon, a passerby, testified that he saw Kaluza in his car shortly after the accident had occurred. As he drove by, Vignon noticed that Kaluza was slumped over and bleeding. Vignon decided to turn around and go back to the scene as Helms was finishing pushing the car onto Hilton. Vignon asked Helms if he needed any help, and Helms responded that he only had a flat tire. Vignon drove off again, but noticed that the car did not have a flat tire, and called the police. Vignon circled around again, and when he returned to the scene, Helms was running through the yard and tow trucks were arriving.
{10} David White, a tow truck driver for Ludt‘s Towing, arrived on the scene as Helms was rummaging through Kaluza‘s vehicle. He and Mr. Vignon both observed Helms get out of Kaluza‘s vehicle and run through a backyard heading north, carrying an object in his hand.
{11} Law enforcement officers testified regarding their investigation of the incident. Police arrived on the scene shortly after the accident and realized that a potential homicide had taken place. Officer Justin Coulter and a K-9 unit were called to the scene to search the area. Coulter started the search near the spot where Kaluza‘s vehicle had come to rest. The dog immediately began to track a scent. His tracking first led to a firearm. Next, the dog led Officer Coulter around a fence to a black and orange jacket laying on the ground. The dog followed the scent to a footprint behind a garage, but lost the track soon after that.
{13} Detective Sergeant John Kelty testified that he interviewed Appellant and later interviewed Helms, after Helms‘s wallet was found in her car and after Helms‘s mother‘s prior employment at the Kentucky Fried Chicken had been discovered. Appellant admitted she staged the accident so that the robbery could take place. She watched from her rearview mirror as Kaluza was shot. She heard the gun go off, and saw Kaluza‘s head slump forward. After speaking with Helms, she drove away.
{14} Various items of physical and scientific evidence were admitted during trial, including a video of the accident captured by a WRTA bus; a spent shell casing
{15} Neither Helms nor Gilbert presented a defense. The jury was charged on September 18, 2008, and on the same day it returned a verdict of guilty against both defendants. The jury convicted Appellant Gilbert on four counts of complicity corresponding to the four counts in the indictment: complicity to attempted murder,
{16} A sentencing hearing was held on September 23, 2008, and a sentencing judgment entry was filed the same day. The court imposed the maximum prison terms on each count. Appellant received ten years in prison for count one, eight years for count two, ten years for count three and ten years for count four, along with three years in prison for each of the four firearm specifications. The sentences were ordered to be served consecutively, for a total of fifty years in prison. The court filed a corrected nunc pro tunc sentencing entry on September 26, 2008. This appeal followed.
{17} “The trial court committed reversible error when it sentenced Ms. Gilbert to multiple sentences for allied offenses of similar import committed with a single animus, and failed to merge the firearm specifications regarding all counts in the indictment, in violation of
{18} In this assignment of error Appellant challenges three aspects of sentencing. First, Appellant contends that her sentences for complicity to aggravated robbery and kidnapping should have merged because they are allied offenses under the new standard established in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Second, Appellant contends that her sentences for complicity to attempted murder and complicity to felonious assault should also have merged as allied offenses under Johnson. Third, Appellant argues that the sentences for the four firearm specifications should have merged. The state has already conceded that the firearm specifications should have merged. The only remaining issue is whether Appellant was convicted and sentenced for allied offenses.
{19} We first examine whether complicity to attempted murder and complicity to felonious assault are allied offenses. The question as to whether crimes are allied offenses arises from the Double Jeopardy Clause of the Fifth Amendment, which protects individuals from multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Ohio
{20} In State v. Johnson, supra, the Ohio Supreme Court overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), to the extent that Rance called for a comparison of multiple offenses “solely in the abstract.” Johnson at ¶44. Rance had attempted to create an objective standard for determining allied offenses based on comparing the statutory elements of the crimes rather than looking at the conduct of the accused. The Rance formula, though, sometimes led to absurd results and became unworkable. Johnson returned a subjective element to the review of allied offenses: “the statute instructs courts to examine a defendant‘s conduct—an inherently subjective determination.” Johnson at ¶52. Pursuant to the plurality opinion in Johnson:
{21} “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J., dissenting).
{22} “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
{23} “Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{25} Johnson recognized that, due to the subjective nature of the analysis based on the facts of each case, some crimes may be allied offenses in certain cases, but not in another case under different facts. Id. at ¶52.
{26} The Johnson plurality holding has been followed in eleven of the twelve appellate districts. State v. McClendon, 2d Dist. No. 23558, 2011-Ohio-5067; State v. Taylor, 3d Dist. No. 12-10-49, 2011-Ohio-5080; State v. Humphrey, 4th Dist. No. 10CA3150, 2011-Ohio-5238; State v. Hight, 5th Dist. No. 2011CA0056, 2011-Ohio-5013; State v. Nickel, 6th Dist. No. OT-10-004, 2011-Ohio-1550; State v. Stoffer, 7th Dist. No. 09-CO-1, 2011-Ohio-5133; State. Adkins, 8th Dist. No. 95279, 2011-Ohio-5149; State v. McDaniel, 9th Dist. No. 25492, 2011-Ohio-5001; State v. Mason, 10th Dist. Nos. 10AP-337, 10AP-342, 2011-Ohio-3301; State v. May, 11th Dist. No. 2010-L-131, 2011-Ohio-5233; State v. Crosby, 12th Dist. Nos. CA2010-10-081, CA2011-02-013, 2011-Ohio-4907. The First District seems to follow a different standard based on the general notion that a trial court must simply look at the facts of the case
{27} We now turn to the first set of alleged allied offenses: complicity to attempted murder and complicity to felonious assault. To establish the elements of attempted murder, the state must prove that the defendant engaged in conduct that, if successful, would have resulted in purposely causing the death of another.
{28} The first question is whether attempted murder and felonious assault can be committed with the same conduct. The answer is yes. The conduct of pointing and shooting a gun at a person or persons can result in the death of one or more individuals, and the same conduct can also fall short of causing death but can cause physical harm. Since the answer to the first question is yes, the second question is whether the two offenses were in fact committed with the same conduct, i.e., was there was a single act committed with a single state of mind? Johnson,
{29} The facts supporting attempted murder are as follows: Helms walked up from behind Kaluza‘s car with a loaded gun intending to rob the victim, pointed the gun at the vicinity of Kaluza‘s head from very close range, and fired the gun, hitting the victim‘s neck and paralyzing him. The facts supporting felonious assault are more complicated. As the dissent pointed out in State v. Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872 (”Helms I“), there are two sets of circumstances in the record in which Helms used or threatened to use a gun against Kaluza. The facts surrounding the attempted murder could be used to describe a felonious assault. Helms walked up to Kaluza‘s car with a deadly weapon and fired the weapon, causing serious physical harm. If we rely on only these facts to support both charges, there is no question the two offenses are allied. This record contains two scenarios involving a gun threat, though. The record also reveals a second, separate, incident establishing that after Helms shot Kaluza, he pushed Kaluza‘s car to a more secluded location, rummaged through the car looking for more money, then threatened to shoot Kaluza in the head. There is evidence showing that Helms continued to possess the gun that he used a few minutes earlier, and Helms’ intent to use the weapon again is certainly established in this record because Kaluza had already been shot by Helms.
{30} Turning to the second set of facts as evidence of felonious assault, this scenario also presents us with a separate crime having a separate animus that is distinct from the other charges brought against Appellant. “There is no statutory or constitutional prohibition against imposing separate punishments for allied offenses
{31} Various cases have upheld the principle that threatening to use a firearm, coupled with the act of pointing or waving a firearm at someone, satisfies the elements of felonious assault. See, e.g., State v. Green, 58 Ohio St.3d 239, 569 N.E.2d 1038 (1991); State v. Seiber, 56 Ohio St.3d 4, 564 N.E.2d 408 (1990); State v. Brooks, 44 Ohio St.3d 185, 542 N.E.2d 636 (1989); State v. Ellington, 2d Dist. No. 23828, 2010-Ohio-5280; State v. Jackson, 8th Dist. No. 93815, 2010-Ohio-4486. “Pointing a firearm, coupled with a threat indicating an intention to use the weapon, is sufficient to establish felonious assault. The defendant‘s intent to cause physical harm may be inferred from his actions under the circumstances.” (Citations omitted.) State v. Alexander, 11th Dist. Nos. C-100593, C-100594, 2011-Ohio-4911, ¶5. In all of these cases, the determinative factor is whether the “defendant‘s actions were strongly corroborative of his intent to cause physical harm * * * by means of his deadly weapon.” Green, supra, at 242.
{32} In the instant case, we have even more conclusive facts to rely on than those involved in Green and its progeny. Regarding the threat element, the record shows that Helms specifically stated he was going to shoot Kaluza in the head. After Helms made this threat, he was interrupted by a passerby, Jeremy Vignon, who asked if everyone was okay or needed help. While Helms fled almost immediately after speaking with Vignon, there is no doubt that Helms’ threat was serious because he had already fired the gun at Kaluza, hitting him in the neck. Helms had not hesitated to use the gun earlier. He walked up behind Kaluza‘s car and fired at him
{33} The main difference between the facts of Green and related cases versus the instant case is that the prior cases rely on evidence that the gun was physically pointed at the intended victim to establish intent, whereas here, we rely on the actual use of the weapon to establish intent. In this case, Kaluza had already been shot and paralyzed when Helms made his threat, so there is no testimony that he saw Helms pointing the gun at him. The evidence of the gun being pointed at the victim, though, is cited in the body of caselaw that follows Green as part of the corroborative evidence to establish the defendant‘s intent to use the weapon. It is not that the weapon was pointed that is determinative in these types of cases, and in fact, that fact alone is not sufficient of itself to establish felonious assault: “The act of pointing a deadly weapon at another, without additional evidence regarding the
{34} The dissent in State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-1147, contends that the facts of this case amount only to aggravated menacing, but this theory was rejected in Green: “Defendant suggests that the only conviction that the evidence could support in this case is aggravated menacing, in violation of
{36} The Helms dissent also contends that there is a due process problem in relying on the evidence of Helms’ threat to kill Kaluza as proof of felonious assault because that set of facts does not correspond to the prosecutor‘s theory of the case set forth in the opening and closing arguments. The issue in a review of allied offenses, though, does not involve due process, but whether double jeopardy occurred in sentencing a person twice based on the same set of facts. Whether or not the prosecutor‘s theory of the case as articulated in its opening and closing remarks corresponds to the actual evidence presented is not under review when examining the record for allied offenses. Obviously, opening and closing statements are not evidence. “It is well settled that statements made by counsel in opening statements and closing arguments are not evidence.” State v. Frazier, 73 Ohio St.3d 323, 338, 652 N.E.2d 1000 (1995). In reviewing a sentence for allied offenses, we normally look at the entire record and review the entire set of facts and circumstances as presented to the trier of fact. We do not exclude particular properly admitted facts from our consideration simply because we believe the jury was paying more attention to the prosecutor‘s opening and closing remarks rather than the actual
{37} Turning now to the counts regarding complicity to aggravated robbery and kidnapping, a similar analysis must be conducted. Aggravated robbery pursuant to
{38} “(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
{[39} “(1) Have a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]”
{40} Kidnapping is defined in
{42} “* * *”
{43} “(2) To facilitate the commission of any felony or flight thereafter[.]”
{[44} Once again, first we must question whether these two crimes can be committed by the same conduct. The answer is yes. A robbery of a person, by its very nature, involves, to some degree, holding that person by force to commit a crime. Hence, it constitutes a type of kidnapping. It has been longstanding law in Ohio, both before and after Rance, that the two crimes may be allied offenses. State v. Logan, 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979).
{45} The second question is whether the offenses were committed with the same conduct, i.e., was there was a single act committed with a single state of mind? The answer here is no.
{46} The state established that the movement of Kaluza in his vehicle after he was shot was prolonged, secretive and independent of the other offenses. The kidnapping took place during the few minutes after Kaluza was shot. After the shooting, when Kaluza was paralyzed, Helms went over to talk to Appellant for a period of time. When he returned to Kaluza‘s car, he briefly searched it, then pushed the victim‘s car onto a side street, where he searched for the deposit bag. One witness testified that it took 90 seconds for Helms to push the car down the street. Various witnesses established that Helms left Kaluza in the car, paralyzed, and pushed the car with Kaluza in it to a more secluded area. Any restraint or asportation
{[47} In addition, there also appears to be a separate animus for both crimes, and separate animus is another basis for finding that the crimes are not allied offenses subject to merger. “Animus refers to the defendant‘s immediate criminal motive, intent or state of mind.” Hooper, supra, ¶¶15, citing State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816 (1988). When a kidnapping is committed during another crime, there exists no separate animus “[w]here the restraint or movement of the victim is merely incidental to a separate underlying crime.” Logan, supra, at syllabus. However, “where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense,” there is a separate animus as to each offense. Id. Separate animus also exists if the restraint or movement of the victim substantially increases the risk of harm to the victim. Id. In this case, the movement of Kaluza was prolonged, secretive, substantial, and increased the risk of harm to the victim. Therefore, the record contains evidence of separate animus and the two crimes are not allied offenses subject to merger.
ASSIGNMENT OF ERROR NO. 2
{¶49} “The trial court committed plain error when it failed to provide the jury with an augmented instruction regarding its duty to unanimously find Ms. Gilbert guilty of the offenses alleged in the indictment based on a particular set of facts for each alleged crime, in violation of Ms. Gilbert‘s Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution. (Tr. 2279-2320).”
{¶50} Appellant argues that it was plain error for the trial court to fail to provide a special instruction to the jury that it must unanimously agree to one particular set of facts that constituted each offense in the indictment. Appellant contends that the state presented two different versions of what may constitute an attempted murder. Appellant submits that the initial shot to Kaluza‘s neck could have been an attempted murder, and that the act of moving Kaluza to a more secluded location could also have constituted an attempted murder. Appellant believes the trial judge should have given an instruction that the jurors were required to agree on one set of facts that resulted in the conviction for attempted murder. Appellant did not object to the jury instructions and acknowledges that only plain error may be raised at this point.
{¶51} Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.
{¶52} Appellant cites only one case in support, that of United States v. Gipson, 553 F.2d 453 (5.A.5, 1977). Appellant cites this case as if it were a Sixth Circuit case, which would represent persuasive (but not binding) precedent in this Court, but the case is actually out of the Fifth Circuit. In Gipson, the defendant was convicted under a federal statute that prohibited a person from receiving, concealing, storing, bartering, selling, or disposing of a stolen vehicle or aircraft, known to be stolen, that had moved in interstate commerce. In response to a question from the jury, the trial judge instructed the jurors that they need not agree on which of the acts enumerated in the statute the defendant had violated as long as each juror found that he had committed one of the acts. The jury convicted him and Gipson appealed, arguing that his right to a unanimous verdict had been violated. The Fifth Circuit Court of Appeals concluded that the judge‘s instruction violated the defendant‘s right to have the jury decide unanimously which course of action the defendant had pursued. The court held that the trial judge‘s instruction improperly permitted the jury to convict on a single count without choosing between “two distinct conceptual groupings.” One
{¶53} Both the United States Supreme Court and the Fifth Circuit, itself, have questioned the validity of Gipson. See Schad v. Arizona, 501 U.S. 624, 635, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991); United States v. Bolts, 558 F.2d 316 (C.A.5, 1977) (the Fifth Circuit limited its Gipson holding to cases in which the judge specifically and expressly permitted a nonunanimous verdict in its jury instructions). No other court follows the Gipson holding. This appeal does not involve a challenge to a jury instruction that specifically permitted a nonunanimous verdict, but rather, raises an argument that the facts of the case gave rise to the necessity of further jury instructions. Appellant has no other support for her argument, and, as Gipson does not support Appellant‘s argument, either, this assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
{¶54} “The trial court violated Ms. Gilbert‘s rights to due process and a fair trial when, in the absence of sufficient evidence, the trial court convicted Ms. Gilbert of complicity to attempted murder with firearm specification, and complicity to felonious assault with firearm specification, in violation of Ms. Gilbert‘s Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution. (Sept. 26, 2008, Sentencing Entry; Tr. 1558-59, 1604-17, 1666-67, 1828-33, 2179-83, 2189-90, 2221).”
{¶55} Although Appellant‘s counsel at trial conceded her guilt on the charge of complicity to robbery, counsel raised
{¶56} Sufficiency is a term of art meaning that legal standard which is applied to determine whether a case may go to the jury or whether evidence is legally sufficient to support the jury verdict as a matter of law. Sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). A conviction based on legally insufficient evidence constitutes a denial of due process. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
{¶57} Where there is substantial evidence on which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988). The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Therefore, an appellate court must view the evidence in a light most favorable to the prosecution, and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 547 N.E.2d 492 (1991); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶58} The complicity statute states that: “No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: **
{¶59} “The law is well settled that when two or more people engage in a course of criminal conduct and one does one part and the other another, each is responsible for the acts of the other as though he had personally performed each of the acts.” State v. Wynn, 131 Ohio App.3d 725, 729, 723 N.E.2d 627 (1998), citing State v. Chapman, 21 Ohio St.3d 41, 487 N.E.2d 566 (1986).
{¶60} The facts of this case reveal that the crime was coordinated so that Appellant would cause Kaluza to have an auto accident, after which Helms would then rob him at gunpoint. It can certainly be inferred that Appellant knew a gun or some other deadly weapon would be involved in the crime in order to induce Kaluza into turning over his restaurant deposit. She purchased .380 caliber ammunition prior to the robbery. The receipt for the purchase of the bullets was entered into evidence. The bullets were found in her car after the robbery. Whether or not Appellant specifically knew the gun would actually be fired is not a defense, because she is
ASSIGNMENT OF ERROR NO. 4
{¶61} “The trial court committed reversible error when it admitted Ms. Gilbert‘s statements into evidence against her at trial, in violation of Ms. Gilbert‘s Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution. (Aug. 8, 2008, Motion to Suppress; Aug. 22, 2008, Suppression Hearing Tr.; Aug. 28, 2008, Judgment Entry; Miranda Waiver, Aug. 22, 2008, Suppression Hearing Tr., Ex. 1; Hattie Gilbert Interview DVD, Aug. 22, 2008, Suppression Hearing Tr., Ex. 2; Tr. 1731-45, 1828-33).”
{¶62} Here, Appellant contends that the trial court should have suppressed statements she made to the Youngstown police at her home and further statements she made after she was arrested. Thus, she is challenging the ruling on her motion to suppress.
{¶63} When reviewing a motion to suppress, an appellate court must determine whether the trial court‘s findings are supported by competent, credible evidence. State v. Lloyd, 126 Ohio App.3d 95, 100, 709 N.E.2d 913 (1998). “In a hearing on a motion to suppress evidence, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (1994). A reviewing court must accept the trial court‘s factual findings and the trial court‘s assessment of witness credibility, but must independently determine as a matter of law whether the trial court met the applicable legal standard. State v. Sharpe, 7th Dist. No. 99CA510 (June 30, 2000).
{¶64} Appellant‘s first issue is with the statements she made while in her home. Detective Mark Milstead was conducting a search for automobiles similar to the one used in the crime, and he visited Appellant‘s residence as part of his inquiry. He asked her four questions while at her home: if she knew why he had come to talk to her; if she had worn a pink coat at the time of the accident; if she still had the coat; and if she would give the coat to him. She admitted that she was involved in a car accident with Kaluza. She admitted she had the coat, and she retrieved the coat for Milstead. Appellant states that she was not given Miranda warnings prior to this questioning. There does not seem to be any dispute about this point. Appellant argues that Milstead knew he was going to arrest her when he asked her the questions. Appellant implies that asking questions in her residence with the possible
{¶65} In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court developed procedural safeguards to protect an individual‘s Fifth Amendment right against self-incrimination during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A suspect must be in custody and subject to interrogation before police are required to give Miranda warnings. State v. Gumm, 73 Ohio St.3d 413, 429, 653 N.E.2d 253 (1995). A person is in custody for purposes of a Miranda analysis when there has been a formal arrest or when a person‘s movement is so restrained that a reasonable person would believe that he or she is under arrest. State v. Petitjean, 140 Ohio App.3d 517, 523, 748 N.E.2d 133 (2000); Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). A court must look at the totality of the circumstances in order to determine whether an individual is in custody at any given time. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).
{¶66} This Court has used a ten factor test to help decide whether a suspect is in custody for purposes of a Miranda analysis:
{¶67} “1) What was the location where the questioning took place--i.e., was the defendant comfortable and in a place a person would normally feel free to leave? For example, the defendant might be at home as opposed to being in the more restrictive environment of a police station;
{¶68} “2) Was the defendant a suspect at the time the interview began (bearing in mind that Miranda warnings are not required simply because the investigation has focused);
{¶69} “3) Was the defendant‘s freedom to leave restricted in any way;
{¶70} “4) Was the defendant handcuffed or told he was under arrest;
{¶71} “5) Were threats made during the interrogation;
{¶72} “6) Was the defendant physically intimidated during the interrogation;
{¶73} “7) Did the police verbally dominate the interrogation;
{¶74} “8) What was the defendant‘s purpose for being at the place where questioning took place? For example, the defendant might be at a hospital for treatment instead of being brought to the location for questioning;
{¶75} “9) Were neutral parties present at any point during the questioning;
{¶76} “10) Did police take any action to overpower, trick, or coerce the defendant into making a statement.” State v. Tate, 7th Dist. No. 07 MA 130, 2008-Ohio-3245, ¶46-66.
{¶77} In this case, Appellant was in her own home, she was a suspect in the case, her freedom of movement was not restricted, she was not handcuffed or told she was under arrest, there were no threats made, there was no physical or verbal intimidation, Appellant was not at her house simply to be questioned by the police, Appellant‘s daughter was present during the questioning, and Appellant was not tricked or coerced into making a statement. Other than the fact that she was a suspect while the questioning took place, the overwhelming totality of the circumstances indicates that she was not in custody.
{¶78} As to the statements she gave to police at the station, the record reflects that Appellant did not raise any challenges to those statements in her motion to suppress. The record also shows that she was read her Miranda rights and that she waived those rights in writing prior to making the statements. (Trial Tr., p. 1828; State‘s Exh. 1.) She agreed to any questions from the police. She stated that an unknown person asked her to participate in the crime to run someone off the road so that a robbery could be committed. (Trial Tr., p. 1828.) She subsequently changed her story to admit that she was part of a plan to rob Kaluza of his daily deposit. (Trial Tr., p. 1829.) She said she watched Kaluza for weeks, examining the details of his daily routine in making bank deposits. She admitted that she planned to obtain a gun and that she purchased bullets. (Trial Tr., pp. 1829-1830.)
{¶79} Appellant now raises something she said in her videotaped confession that she believes triggered her Miranda rights even after she signed a waiver of those rights. She argues that she said “I don‘t want to talk about this,” and that this statement was a re-invocation of her right to remain silent. There is no transcription of this confession, but a DVD of the interview is attached to the transcript of the August 22, 2008, motion to suppress hearing. The recording is dated March 28, 2008, and at 10:55:57 in the recording she interrupts a fabricated story she is telling about some unknown person calling her on her cell phone and says very softly “I don‘t want to talk about this.” It is not clear from the DVD whether she is repeating something from the imaginary phone call or whether this is a statement directed to the police officer in the room. A voice is then heard to say, “Hattie, the only thing that is going to save you from years of prison is you being honest.” Appellant then
{¶80} Appellant has waived all but plain error because she did not raise this constitutional issue in a motion to suppress. State v. Roskovich, 7th Dist. No. 04 BE 37, 2005-Ohio-2719, ¶13, citing State v. Peagler, 76 Ohio St.3d 496, 500, 668 N.E.2d 489 (1996).
{¶81} Even though the alleged error has been waived, the state does attempt to explain what happened at the interview in which Appellant confessed to her involvement in the crime. The record contains a signed waiver of her Miranda rights prior to Appellant‘s interview. The error raised for the first time on appeal is that Appellant attempted to cut off questioning while she was being interviewed, but that the police continued to question her. The state accurately responds that any invocation of the right to remain silent must be done unambiguously. State v. Murphy, 91 Ohio St.3d 516 (2001), citing Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The defendant cannot invoke the right to remain silent by simply being silent. Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).
{¶82} Similarly, Appellant‘s statement is ambiguous. It is not clear if she is making a statement at all because she is relating a story (that she admits is completely false a few seconds later) about a phone call with an alleged co-conspirator. Also, it is not clear what “this” refers to when she says “I don‘t want to talk about this.” If she is referring to the fabricated story about the phone call, the police did heed her request and did not continue asking her about the phone call. The First District Court of Appeals recently held that the statement “that‘s all I can let you know right there as far as yesterday” was ambiguous and did not invoke the right to cut off questioning. State v. Strong, 1st Dist. Nos. C-100484, C-100486, 2011-Ohio-4947, ¶48. The Eleventh District Court of Appeals held that the statements “[y]ou got what you wanted. Okay?” and “I‘m done” did not unambiguously invoke the right to stop questioning. State v. Griffith, 11th Dist. No. 2001-T-0136, 2003-Ohio-6980, ¶32-35. Based on these examples, and on the context of the statement made by Appellant, the record does not indicate a clear, unequivocal, unambiguous invocation of her right to end police questioning.
{¶83} Appellant‘s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 5
{¶84} “Ms. Gilbert was denied her right to confront the evidence against her at trial, in violation of her Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution. (Tr. 1936-37, 1945-53).”
{¶85} Appellant argues that the witness Ashlinn Sykes related a statement made by codefendant Helms implicating Appellant in the crimes. Appellant is now raising for the first time a Sixth Amendment claim that she was denied the right to confront the witnesses against her. Appellant failed to object to this testimony at trial. Therefore, it is reviewed only for plain error.
{¶86} The testimony in question is as follows:
{¶87} “Q. Did he at some point describe where he was going after breakfast?
{¶88} “A. No. He said he had to go get Hattie, and there was some things that they had to do. That was it.” (Trial Tr., p. 1952.)
{¶89} The Sixth Amendment to the United States Constitution guarantees that a criminal defendant shall have the right to confront the witnesses against him. The admission into evidence of a confession of a codefendant who is not testifying at trial is inadmissible under the Sixth Amendment. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). “In Bruton, the Supreme Court held that in a joint trial of two defendants, a confession of one co-defendant who did not testify could not be admitted into evidence even with a limiting instruction that the confession could only be used against the confessing defendant. The rationale of Bruton was that the introduction of a potentially unreliable confession of one
{¶90} Appellant‘s own attorney admitted in his opening statement to the jury that she was involved in the robbery, that she planned the robbery, and that she was guilty of robbery. (Trial Tr., p. 1558.) Her confessions to the police also confirmed her involvement in the crimes. The physical evidence established her connection to the crimes, including the box of bullets she purchased and Helms’ wallet which were found in her car, and the pink coat she wore which was identified by witness Johnson. She admitted to staking out Kaluza at his restaurant to learn his banking habits. She admitted she caused the car accident with Kaluza. It is difficult to see how Ms. Sykes’ testimony added anything material to the overwhelming evidence establishing Appellant‘s involvement in the crime. This assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 6
{¶91} “The trial court abused its discretion and denied Ms. Gilbert her right to a fair trial by an impartial jury when it overruled her motion for a change of venue, in violation of Ms. Gilbert‘s rights under the Fifth, Sixth, and Fourteenth Amendments to
{¶92} Appellant argues that the court should have granted the joint motion for change of venue due to extensive prejudicial pretrial publicity. She argues that the extensive pretrial publicity of the case made the selection of an impartial jury impossible. A motion for change of venue is governed by
{¶93} Appellant argues that the pretrial publicity in this case is similar to that which occurred in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). In Sheppard, there was extensive pretrial publicity about the defendant‘s refusal to take a lie detector test, and the stories included details about the investigation and opinions as to why the defendant was guilty, the defendant‘s affair with another woman and ensuing theories about the defendant‘s murder motive.
{¶94} Appellant‘s motion for change of venue included approximately 35 articles from newspaper and internet sources regarding the case, ranging from lengthy detailed articles to single-line references. Earlier articles detail the occurrence of the crime, the investigation, and the arrest and bond hearings of both Helms and Appellant, and discussion that a motion to suppress was filed and its outcome. Almost all of the later articles discuss the community support for the victim and fundraising for his medical bills. A supplement to the motion for change of venue included a DVD of television news coverage of the accident from a WRTA bus security camera. It is not clear if this DVD contained material that was broadcast or made available to the general public. Appellant asserts that this extensive pre-trial media coverage of the case prevented her ability to secure a fair trial.
{¶95} The media coverage in this case is not equivalent to that which occurred in Sheppard. The mere existence of pretrial publicity is not a basis for granting a change of venue. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶117. By itself, even pervasive adverse pretrial publicity “does not
{¶96} In order to successfully claim that pretrial publicity has denied a defendant of a fair trial, he must show that one or more jurors were actually biased. Yarbrough at ¶61. Only in rare cases may prejudice be presumed. State v. Lundgren, 73 Ohio St.3d 474, 479, 653 N.E.2d 304 (1995).
{¶97} The record shows that the voir dire on pretrial publicity for this case was comprehensive, and constitutes almost two thirds of the 2333-page trial transcript. First, the trial court asked the prospective jurors whether any of them knew about the case through firsthand information, interactions within the community, or media coverage. Only five of the twelve impaneled jurors fell within this group, and the remaining seven who were eventually impaneled stated that they had no knowledge of the case. The trial court then conducted an extensive sequestered individual voir dire of all prospective jurors who had indicated any familiarity with the case. The prospective jurors were asked about the extent of their knowledge of the case, and asked whether they could set aside what they had heard and decide the case solely on the evidence presented at trial. Counsel was able to question and disqualify prospective jurors regarding their exposure to pretrial publicity. Following this
{¶98} Of the five impaneled jurors who indicated some prior knowledge of the case, none knew or recognized the names of the defendants. They could not name the victim, but four recognized his name when it was told to them. All five heard that the victim worked for or was a manager of a KFC restaurant, and that the victim had been critically injured. Some of the jurors had heard that there was a robbery and an attempted murder by shooting. One juror had heard that a car crash and weapon were used. All five of these jurors stated that they had not formed any opinion as to the guilt or innocence of the defendants, and could be fair and impartial to both sides. They all stated that they could set aside any information about the case that they had previously been exposed to, and would only take into consideration the evidence presented at trial. Appellant‘s counsel passed on all five of these jurors for cause.
{¶99} Appellant argues that there was racial bias in the jury. Appellant points out that there was a discovery during voir dire that someone had written a racial epithet on the men‘s bathroom wall in the courthouse. There was nothing in the record indicating that any of the impaneled jurors wrote or even observed the graffiti in the men‘s restroom. Appellant has not provided any evidence from the record to imply that any one of the jurors who was in fact impaneled was “actually biased” as required by Yarbrough.
{¶100} If the defense does not challenge any of the impaneled jurors for cause due to pretrial publicity, the absence of challenges indicates that the defense “was not particularly troubled by the jury‘s exposure to pretrial publicity.” McKnight,
{¶101} The media‘s presence in this case was not so pervasive as to per se deny Appellant a fair trial, and the comprehensive voir dire process resulted in no example of bias on the part of any juror who was actually impaneled. Appellant‘s sixth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 7
{¶102} “The trial court abused its discretion when it sentenced Ms. Gilbert to maximum, consecutive terms of imprisonment on all counts in the indictment, in violation of Ohio Revised Code Sections 2929.11 and 2929.12, and in violation of Ms. Gilbert‘s rights under the Fourteenth Amendment to the United States Constitution, and Section 16, Article I of the Ohio Constitution. (Sept. 26, 2008, Sentencing Entry; Sentencing Entry Tr. 10-11, 14).”
{¶103} In this assignment of error, Appellant argues that the trial court abused its discretion in imposing maximum consecutive sentences. Appellate courts review felony sentences using a two-fold analysis. “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to
{¶104} A sentencing court must consider the principles and purposes of sentencing in
{¶105} Appellant does not argue that the sentence is contrary to law, but only that it constitutes an abuse of discretion. An abuse of discretion means more than an error of judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Thus, in the felony sentencing context, “[a]n abuse of discretion can be found if the sentencing court unreasonably or arbitrarily weighs the factors in
{¶106} Appellant claims that she played only a limited role in the crime and that she did not know that Helms would actually use the gun. She also states that she had no prior criminal record, had not been previously adjudicated a juvenile delinquent, had no history of drug or alcohol abuse, and showed genuine remorse for her actions. She contends that she in unlikely to reoffend. She believes that these factors should have resulted in less than maximum consecutive sentences.
{¶107} The record reveals that Appellant was extensively involved in the planning of this crime. She observed Kaluza for many weeks to determine how and when to commit the crime. She purchased the bullets for the gun. Helms’ wallet with his driver‘s license and his cell phone were found in her car. She caused the accident that allowed Helms to approach Kaluza and shoot him. She knew the purpose of her causing an accident was to commit an armed robbery. She saw Kaluza get shot. She stayed at the crime scene to talk to Helms while Kaluza sat, bleeding and paralyzed, in his car. This was a cold, calculated crime involving a firearm that was made possible in large part by Appellant‘s actions. The court was within its discretion to treat both Helms and Appellant as equally guilty and equally deserving of punishment in this case. (9/23/08 Tr., p. 12.) The trial judge did not believe that Appellant had any genuine remorse. (9/23/08 Tr., p. 14.) It is true that some of the seriousness factors in
ASSIGNMENT OF ERROR NO. 8
{¶108} “Defense counsel rendered ineffective assistance of counsel in violation of Ms. Gilbert‘s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution. (Hattie Gilbert Interview DVD, Aug. 22, 2008 Suppression Hearing Tr., Ex. 2; Tr. 1828-33, 1947-53, 1976).”
{¶109} Appellant contends that her trial counsel was ineffective for failing to challenge the confession she made to the police on March 28, 2008. During the interview she stated “I don‘t want to talk about this.” Appellant argues that this statement was enough to cut off further questioning, and that her attorney should have tried to exclude the remainder of the confession on that basis. The error is raised in this appeal, but it is raised as plain error rather than preserved error. Appellant also argues that her counsel should have objected to the testimony of Ashlinn Sykes. Ms. Sykes testified regarding a statement made by Helms that inculpated Appellant. This error was also raised on appeal as plain error.
{¶110} We review a claim of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, it must be shown that counsel‘s performance has fallen
{¶111} When considering an ineffective assistance of counsel claim, the reviewing court should not consider what, in hindsight, may have been a more appropriate course of defense. See State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). Our review of counsel‘s action is highly deferential as there is a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance. Id.
{¶112} Trial counsel‘s failure to file a motion to suppress does not necessarily constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). However, the failure to file a motion to suppress may constitute ineffective assistance of counsel when the record demonstrates that the motion would have been granted. State v. Barnett, 7th Dist. No. 06-JE-23, 2008-Ohio-1546, ¶31.
{¶113} Appellant cannot demonstrate that a motion to suppress the confession at the police station would have been granted. As earlier discussed, it is not at all clear that Appellant‘s statement was an attempt to cut off questioning, and
{¶114} Regarding the failure to object to Ms. Sykes’ testimony, once again Appellant cannot show any prejudice. At most, the statement of Ms. Sykes (in which she repeated a statement from Helms that “he had to go get Hattie, and there was some things that they had to do“) showed that Appellant knew Helms and may have had a connection to the crime. Many other aspects of the evidence established these two points as well and did it more effectively. Her own attorney conceded in his opening statement that Appellant was guilty of robbery: “The evidence will show that Hattie Gilbert planned the robbery.” (Trial Tr., p. 1558.) She herself told the police that she was at the crime scene. Ms. Sykes did not add any material evidence to the case when she related the statement made by Helms. Without a showing of
Conclusions
{¶115} The only reversible error in this case is the error that has been conceded by the state. The state agrees that the firearm specifications should have merged, and we hereby remand to the trial court to correct the sentence accordingly. We overrule the remaining assignments of error. Appellant has not shown that there were allied offenses that should have been merged. She did not establish any error in the jury instructions. The evidence establishes her complicity with all aspects of the crime, including the use of the gun. There is no reversible error with respect to statements she made to the police both before and after arrest. A statement made by witness Sykes should likely have been stricken on Sixth Amendment grounds, but there was no prejudice caused by the statement. Appellant did not establish error in the court‘s decision to overrule a motion to change venue. The maximum consecutive sentences were within the discretion of the trial court. Finally, Appellant did not prove ineffective assistance of trial counsel.
{¶116} The judgment of the trial court as to Appellant‘s convictions and sentences for complicity to attempted murder, complicity to felonious assault, complicity to aggravated robbery, complicity to kidnapping, are affirmed. The judgment of the trial court regarding the imposition of four consecutive prison terms for four firearm specifications is reversed. The case is remanded to the trial court to
Donofrio, J., concurs.
Vukovich, J., concurs.