State v. GlennState v. Glenn
Please note: This case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Antwan Glenn appeals from the judgment of the Hamilton County Court of Common Pleas convicting him of murder and aggravated robbery. For the reasons that follow, we affirm.
{¶2} Glenn’s convictions arose out of the robbery and death of Reginald Rolland in the early morning hours of June 18, 2008. Glenn had been indicted for aggravated murder, murder, and aggravated robbery, with accompanying gun specifications. The state proceeded against him as a principal or complicitor. Jovon Davis, Nikkia Sullivan, and James Johnson were also charged with the same crimes. Sullivan and Johnson agreed to testify truthfully for the state in exchange for a plea bargain that provided incarceration for ten to 15 years.
{¶3} At trial, the state presented evidence that on the night of June 17, 2008, Glenn had developed a plan with Sullivan and Davis to rob people in the Avondale neighborhood of Cincinnati. The plan involved Sullivan using her cellular phone to call or send a text message to men whom she knew and enticing them to meet her with the promise of sex. When the men arrived to meet her, Glenn and Davis would rob them at gunpoint.
{¶4} Sullivan testified that a man named Chris became the group’s first victim. Sullivan called Chris and lured him to the Commodore Apartments on Reading Road, and in response to Davis’s text messages, she led him up a dark stairwell where Glenn and Davis were waiting. Glenn and Davis robbed Chris at gunpoint.
{¶5} Next, Sullivan testified, the group attempted to rob a man who met her near Lexington Park. When the man refused to walk to the park with her,
{¶6} But the group reunited, and after scanning through Sullivan’s cellular phone directory, they chose Reginald Rolland as their next victim. Either Glenn or Davis chose a house at 878 Hutchins Street as the location for the robbery. Sullivan recalled that she had accompanied Glenn and Davis there in the past when they had sold drugs to the occupants. Sullivan contacted Rolland, and he agreed to meet her at the Hutchins Street address.
{¶7} Before going to Hutchins Street, Glenn, Davis, and Sullivan met with Johnson, whom Davis had called and asked if he wanted to “hit a lick.” Johnson agreed to participate, and the four drove to Hutchins Street in the car that Johnson had been driving, an “[un]noticeable” Ford Contour that belonged to Jasmain Grier, the girlfriend of one of Johnson’s friends. Davis drove the Contour, Glenn sat in the front passenger seat, and Sullivan and Johnson sat in the back of the car. On the way to Hutchins Street, Glenn removed and smoked a cigarette from a pack of Newport cigarettes that Sullivan had brought into the Contour.
{¶8} Davis first parked the car in front of the house chosen for the robbery but later moved it down the street. Sullivan received a call on her cellular phone from Rolland and confirmed that he was on his way to meet her. Then all three men exited from the car armed with guns that Davis had distributed and hid, waiting for Rolland’s arrival. Sullivan stood in front of the house to greet Rolland.
{¶9} When Rolland arrived, Sullivan led him to the back porch. As planned, Johnson first approached Rolland, pointed his gun at him, and told him to “lay it down.” But Rolland pulled a 9-mm handgun out of his waistband and shot at Johnson. Johnson fired back with a .40-caliber Smith & Wesson handgun and then
{¶10} Rolland was shot twice and left dying from these wounds on top of Sullivan on the porch. Sullivan, who had also been shot, grabbed Rolland’s gun, moved out from underneath him, and left the porch. She then realized that Glenn, Davis, and Johnson had fled. She testified that at 3:15 a.m., she texted Davis, “Im hit,” and then “Come and get me.” After receiving no response, she attempted to walk away from the house, collapsed from her gunshot injuries, and called 911. She threw Rolland’s gun in an attempt to “ditch it” before the police arrived.
{¶11} Responding officers, including one who had actually heard six or seven gunshots, found Rolland’s gun in the neighboring yard. They also discovered Rolland, who soon died, and Sullivan, whom they transported to the hospital.
{¶12} Johnson’s aunt and cousin drove him to the hospital. On the way there, he gave to his cousin the .40-caliber Smith & Wesson that he had used to shoot at Rolland. The police recovered the gun from Johnson’s cousin when she was detained at the hospital as part of a protocol for those who transported gunshot victims.
{¶13} The police searched the Ford Contour that had been left at the scene unlocked and with the keys in the ignition. They found a pack of Newport cigarettes containing Glenn’s fingerprint, Sullivan’s purse, Johnson’s red cellular phone, and two other cellular phones located in the console between the driver’s seat and the passenger’s seat. One of the phones had a photograph of Davis and Sullivan as the screen saver, and the other phone’s screen saver had written on it Davis’s nickname. Those two phones had been subscribed to by the mother of Jovon Davis, and someone named “Jovan” [sic] had called the cellular service provider, Verizon, hours
{¶14} Cellular phone records were located for a subscriber named “Antwoan Glenn.” These records showed the signal from that phone pinging off cell towers near Hutchins Road around 3:00 a.m., and that the phone had later been used to call Sullivan’s cellular phone at 3:50 a.m. and Johnson’s cellular phone at 4:10 a.m. Further, the records showed communication between that phone and Davis’s phone at 6:00 a.m.
{¶15} Importantly, at trial, the state presented evidence of the call and text history of the cellular phones, which demonstrated Sullivan’s communication with Chris and Rolland and the communication between Davis, Sullivan, Glenn, and Johnson in the early morning hours of June 18, 2008.
{¶16} Ballistic evidence demonstrated that the two bullets found in Rolland’s body were from a .40-caliber Smith & Wesson handgun. But the bullets could not be tied specifically to Johnson’s handgun, and Glenn’s and Davis’s guns were never located. An expert was able to determine, however, that Rolland had shot Johnson and that Johnson had shot Sullivan.
{¶17} Although Sullivan and Johnson first lied about their parts in the robbery and murder of Rolland, they eventually confessed. Their prior statements were admitted into evidence for the jury’s consideration, and they testified fully about the details of the plea agreements that they had entered into.
{¶18} The jury found Glenn and Davis guilty of murder and aggravated robbery, but acquitted both of them of aggravated murder and Glenn of all firearm specifications. Glenn filed post-verdict motions for an acquittal, a new trial, and a
Batson Challenge
{¶19} In his first assignment of error, Glenn argues that the state peremptorily challenged an African-American prospective juror because of his race, in violation of his equal-protection rights under Batson v. Kentucky.1 A Batson claim is adjudicated in three steps. If the opponent of the peremptory challenge makes a prima facie case of racial discrimination, then the proponent of the challenge must provide a racially neutral explanation for the challenge.2 Finally, the trial court must determine based on all the circumstances if the opponent has proved purposeful discrimination.3 A trial court’s conclusion that the proponent did not possess a discriminatory intent will not be reversed on appeal unless it is clearly erroneous.4
{¶20} During voir dire, prospective juror Randolph Bennett, an African American, was asked a series of questions about his background and his ability to be a juror. Bennett repeatedly had difficulty hearing and at one point asked the prospective juror next to him what the court was asking. Bennett also repeatedly qualified his answers with “hopefully” and gave confusing answers, as demonstrated by excerpts from the voir dire colloquy:
{¶21} “Prosecutor: * * * I talked yesterday to [a] lot of jurors about case consideration, using co-defendants to testify about what they had done and what
{¶22} “Bennett: Yeah. You said some people bargain.
{¶23} “Prosecutor: And I guess my question is: Do you feel that you would be, like, competent or able to really give the case, like, everything that you should, and make a fair decision, be able to process all the information that’s coming in, that you would have to like listen to and figure it out where it all fits?
{¶24} “Bennett: Hopefully I won’t have a problem.
{¶25} “Prosecutor: And, again, there’s only one person that can answer that, which would be you. Could there be a problem that—again, not a problem, but just a concern that you might have that you might miss something or not understand it the way that it really deserves to be understood?
{¶26} “Bennett: It’s hard to say because I don’t know the other side.
{¶27} “* * *
{¶28} “The Court: All right. Mr. Bennett, can you sit and listen to the case and evaluate the evidence and make a decision on the case whether the State’s proven their case beyond a reasonable doubt or not?
{¶29} “Bennett: I feel I could.
{¶30} “The Court: You think you can?
{¶31} “Bennett: Hopefully.
{¶32} “* * *
{¶33} “Attorney [for Davis]: Are you comfortable with that instruction, that the testimony of an accomplice should be viewed with grave suspicion and weighed with great caution?
{¶34} “Bennett: Please repeat that.
{¶35} “Attorney [for Davis]: Are you comfortable with the rule: the testimony of a person who you find to be an accomplice—there will be people who are accomplices, people who said, I was involved in the robbery and killing of Reginald Rolland. And they are going to point a finger at my client, okay? That is an accomplice testifying. Are you going to weigh his or her testimony with grave suspicion and with great caution?
{¶36} “Bennett: No, I wouldn’t.”
{¶37} The state used a peremptory challenge to excuse Bennett. Davis’s counsel objected to the state’s peremptory challenge as a Batson violation. In explaining its use of a peremptory challenge to dismiss Bennett, the state said that “[i]t’s obvious he has no clue as to what’s going on. He * * * cannot hear. He said hopefully a number of times.” The court determined that the state had asserted several nonrace-related reasons for the exercise of the peremptory challenge, and that those reasons were supported by the record, and it rejected the Batson challenge.
{¶38} We agree with the trial court that a juror’s inability to understand and inability to hear the trial proceedings are race-neutral reasons for exercising a peremptory challenge against him. The trial court, which was able to observe Bennett’s reaction to the questioning in addition to listening to Bennett’s answers, found the state’s reasons supported by the record. On this record, we cannot say that the trial court’s finding of no discriminatory intent was clearly erroneous. Accordingly, we overrule the first assignment of error.
Other Bad Acts Evidence
{¶40} Other-acts evidence is generally inadmissible against a defendant in recognition of the substantial danger that a jury will find the defendant guilty because he has committed the other acts.5
{¶41}
{¶42} First Glenn challenges the trial court’s admission, over his objection, of the testimony concerning the prior alleged aggravated robbery and attempted aggravated robbery that had occurred just hours before Rolland was robbed and murdered. Sullivan testified that she, Glenn, and Davis had lured a man named Chris to an apartment to rob him at gunpoint, and Sullivan also testified about an
{¶43} This court addressed and rejected a similar argument raised by Davis in his appeal.10 We held that Sullivan’s testimony on the other planned armed robberies that had occurred just hours before Rolland’s armed robbery and murder was probative of Davis’s preparation and planning involved in the charged offenses and tended to show that all the robberies were part of a common scheme or plan among the defendants. Sullivan’s cellular phone records corroborated her testimony. We conclude that this same testimony was also probative of Glenn’s preparation and planning for the charged offenses and Glenn’s role in the common scheme. Therefore, we hold that the trial court did not abuse its discretion in admitting this testimony for those proper purposes.
{¶44} Glenn contends also that Sullivan was permitted to testify that he had been involved in drug dealing. The record confirms that Sullivan did testify that Glenn had previously sold drugs to the residents of the house where she had lured Rolland. But Glenn did not object to this testimony, and any error in its admission does not rise to the level of plain error in light of the other evidence of guilt in the case.
{¶45} Finally, Glenn argues that the trial court erred by allowing into evidence testimony indicating that he had been previously incarcerated in the Hamilton County Justice Center. Glenn claims that this testimony was provided by both Sullivan and William Hillard, a senior criminalist for the Cincinnati Police Department who performed the fingerprint analysis in the case.
{¶46} The record does not demonstrate that Sullivan made any reference to or implication about a prior incarceration, outside of her unobjected-to comments about Glenn’s drug dealing, which we have already determined to be insufficient to support a reversal.
{¶47} Hillard’s reference to or implication concerning a prior incarceration is more problematic. At trial, Glenn stipulated that his fingerprints were on the fingerprint card that Hillard had used to compare the latent print from the cigarette pack. Despite this stipulation, Hillard testified that, to make his comparison, he had obtained Glenn’s fingerprint card that was “on file at the justice center.” He also explained that when he had entered the latent print from the cigarette pack into the Automatic Fingerprint Investigative System (“AFIS”), the system provided him with a list of candidates identified by a “jacket number,” and that a jacket number was assigned to a particular name and was given to “[a]nybody [who] c[ame] in the justice center.”
{¶48} Glenn objected on the grounds not only that Hillard was exposing the jury to his criminal history, but also that he lacked any reason to do so in light of the stipulation. The trial court overruled the objection, noting that the state had not asked how Glenn had come to be at the justice center, and that while Glenn had stipulated that his fingerprint was on the fingerprint card, he had refused to stipulate that his fingerprint was on the cigarette pack.
{¶49} As we have noted, the state generally may not introduce evidence that tends to show that a defendant committed another crime wholly independent of the offense for which he is on trial. Glenn had stipulated that his fingerprint was on the fingerprint card, rendering Hillard’s testimony outside the exceptions set forth in
{¶50} Accordingly, we overrule the third assignment of error.
Prosecutorial Misconduct
{¶51} In his second and fourth assignments of error, Glenn makes several allegations of prosecutorial misconduct that, he argues, deprived him of a fair trial. In sum, he argues that the state committed prosecutorial misconduct by asking leading questions on direct examination, by eliciting testimony implying that Glenn had a prior criminal record and had committed prior bad acts, and by making improper comments during opening statement and closing argument.
{¶52} The test for prosecutorial misconduct is whether the prosecutor’s questions or remarks were improper and, if so, whether they prejudicially affected the defendant’s substantial rights.12
{¶53} Glenn contends that the state asked leading questions during direct examination of Sullivan and Detective Eric Karaguleff. In a leading question, the examiner suggests to the witness the answer desired.13
{¶54} To obtain a reversal on the basis of improper leading questions by the state, the defendant must demonstrate not only that the questioning was improper, but that it affected the outcome of the trial.20 Where no objection is made at trial, the misconduct must rise to the level of plain error.21 Plain error exists only where it is clear that, but for the error, the outcome of the trial clearly would have been otherwise.22
{¶55} Glenn has not specifically identified the questions that he considers to be outside what is permitted under
{¶56} We conclude that Glenn has failed to demonstrate that the prosecutor’s line of questioning was misconduct that rose to the level of error, much less plain error.
{¶57} Glenn contends also that prosecutorial misconduct occurred when the prosecutor asked Detective Karaguleff, on redirect, “Would it be fair to say defense attorneys can also request and be granted by the Court any expert they want to test anything they want?” According to Glenn, the question was designed to improperly shift the burden of proof to Glenn, and the conduct was prejudicial even though the court sustained defense counsel’s objection to the question, because the jury heard “the response.” While we agree that the prosecutor’s question was improper, Glenn has failed to demonstrate prejudice, as the trial court sustained defense counsel’s objection before any response was given.
{¶58} Glenn argues further that prosecutorial misconduct occurred (1) during opening statement, when the prosecutor referred to Glenn’s alleged participation with Davis and Sullivan in two planned aggravated robberies shortly before committing the offenses against Rolland, and (2) during closing argument, when the prosecutor again referred to Glenn’s participation in the planned robberies, as well as denigrating defense counsel and making inflammatory comments.
{¶59} We have already held that Sullivan’s testimony about Glenn’s alleged participation in two planned armed robberies within hours of Rolland’s attempted robbery and shooting death was admissible. In opening statement and closing argument, the prosecutor referred to this admissible testimony, as corroborated by the cellular-phone records, in the context of demonstrating the planning and preparation for Rolland’s ambush. Under these circumstances, we find no misconduct by the prosecutor.
{¶60} Glenn identifies as improper four other remarks of the prosecutor in closing argument, none of which he objected to at trial. We reviewed these four remarks in Davis’s appeal before holding that Davis had failed to demonstrate a claim for prosecutorial misconduct.23 We hold that Glenn, too, has failed to demonstrate a claim for prosecutorial misconduct based on these remarks.
{¶61} Finally, Glenn claims that the prosecutor improperly vouched for his witnesses during the rebuttal portion of closing argument when he stated that “[t]hey [referring to Sullivan and Johnson] are telling the truth about that.” While the comment appears to be improper vouching by the prosecutor, when it is considered in its context, it is clear that the prosecutor was attempting to summarize the defense’s argument to the jurors that they should believe only part of Sullivan’s and Johnson’s testimony.
{¶62} The full comment stated the following: “The argument is believe mostly everything they say, in fact almost everything they say, Ms. Sullivan and Mr. Johnson, except believe the plan, believe they were bait, believe James Johnson is the shooter, believe they were at the scene, believe that it was a planned robbery, believe all that. They are telling the truth about that. What don’t they want you to believe? What is the only thing? That these two were involved also. That’s the only thing. The only thing that is damaging to them is the thing they don’t what you to believe about what they said.” When the comment is viewed in its appropriate context, we conclude that it was clearly not improper.
{¶63} In sum, we conclude that most of Glenn’s claims of prosecutorial misconduct do not involve an error. Where an error occurred, and was objected to, nothing in the record suggests that the error affected Glenn’s substantial rights.
Sufficiency and Weight of the Evidence
{¶64} In his fifth assignment of error, Glenn contends that his convictions for murder and aggravated robbery were not supported by sufficient evidence and were against the manifest weight of the evidence. In addition, he contends that the trial court erred by overruling his
{¶65} The crux of Glenn’s argument is that the state failed to present sufficient evidence linking him to the robbery and death of Rolland, and that the jury was left to rely on the testimony of Sullivan and Johnson, which he describes as incredible. We find Glenn’s argument meritless.
{¶66} First, in the review of a sufficiency-of-the-evidence claim, this court views the evidence in the light most favorable to the state to determine whether any rational trier of fact could have found all the essential elements of the charged offenses beyond a reasonable doubt.25 In this case, Sullivan’s and Johnson’s testimony, as corroborated by the other evidence, including the cellular-phone records of all the defendants and the location of Glenn’s fingerprint on the cigarette pack found in the vehicle used by Rolland’s assailants, amounted to more than sufficient evidence to support Glenn’s convictions as either a principal or a complicitor in the offenses.
{¶68} Further, in his
{¶69} This court reviewed the law on inconsistent verdicts in State v. Hampton.27 First, we noted that “ ‘the several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count.’ ”28 Then we noted, with respect to inconsistent responses within the same count such as a conviction on a principal charge and a concurrent acquittal on a specification for identical behavior, that the Ohio Supreme Court had held that the general verdict is not inconsistent where a conviction on the principal charge is not dependent on a finding of the
{¶70} More recently, this court specifically held in State v. Allen31 that a jury’s general finding of guilty is not invalid where, as in this case, there is a conviction on the principal charge (aggravated burglary) and an acquittal on the accompanying firearm specifications.32
{¶71} We hold in this case that the trial court committed no error in allowing the allegedly inconsistent verdict to stand. The evidence supported the aggravated-robbery conviction, the court instructed on the specifications independently and separately, and the aggravated-robbery conviction was not dependent upon a finding on the specifications. The United States Supreme Court stated in a similar context that “ ‘[t]he most that can be said in such a case is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.’ ”33
{¶72} Accordingly, we overrule the fifth assignment of error.
New-Trial Motions
{¶73} In his final assignment of error, Glenn contends that the trial court erred by overruling his motion for a new trial and his motion for a mistrial. Both
{¶74} The disposition of this assignment of error depends upon the following facts. At the conclusion of the first day of jury deliberations, the jurors asked the bailiff if they could take home the jury instructions to review. The bailiff informed the trial court of the request, and the court, without consulting either the prosecutor or defense counsel, and outside the presence of the accused, approved the jurors’ request.
{¶75} The trial court informed defense counsel of its action by telephone after the jurors had been discharged for the day. Glenn objected in court the following day. The court, in the presence of counsel, questioned the jurors and determined that no one had discussed the jury instructions or permitted anyone to discuss the case in their presence. Glenn did not ask to question the jurors about any outside influence or move for a mistrial at that time.
{¶76} The jury then rendered its verdict finding Glenn guilty of murder and aggravated robbery. Glenn moved for a new trial, jointly with Davis, on the ground that the court had addressed the jury outside of his presence and had permitted the jury to take home the jury instructions, prompting juror misconduct.
{¶77} Later, the court allowed its bailiff to proffer for the record a statement indicating that after conveying to the jury, at the court’s direction, the court’s decision to allow the jurors to take home a copy of the jury instructions, she had
{¶78} On appeal, Glenn maintains that a new trial was warranted because of irregularities in the proceedings stemming from the court’s decision to address the jury without him or his counsel present, the court’s grant of the jury’s request to take home the instructions, and the bailiff’s “admonition” to the jury, and because these irregularities in the proceedings prompted juror misconduct.
{¶79} We addressed similar issues in Davis’s appeal. Although we found error stemming from the communication with the jury outside Davis’s presence, we determined that the error was harmless because the communication was not of a “substantive nature.”36 We also held that the court’s decision to allow the jury to take home copies of the jury instructions that had previously been approved by both the state and defense counsel had not prompted any juror misconduct, and, therefore, that it was not prejudicial.37
{¶80} The same analysis applies to Glenn’s claims. We conclude that the trial court’s communication with the jury outside the presence of Glenn was an error but that it was harmless error because the communication was not of a substantive nature. The jury instructions were complete copies of the jury instructions that had
{¶81} We also conclude that the court’s communication did not prompt “juror misconduct.” Glenn’s claim is that a juror’s independent consideration of the case outside the jury room when aided by the jury instructions is misconduct. But Glenn has not cited any law to support this argument, which defies common sense.
{¶82} “Juror misconduct” is generally defined as “[a] juror’s violation of the court’s charge or the law, committed either during trial or in deliberations after trial, such as (1) communicating about the case with outsiders, witnesses, attorneys, bailiffs, or judges, (2) bringing into the jury room information relating to the case but not in evidence, and (3) conducting experiments regarding theories of the case outside the court’s presence.”38
{¶83} Although we do not condone the trial court’s action because of the potential for misconduct, we hold that a juror’s independent consideration of the case outside the jury room, especially when aided by jury instructions, does not, without more, amount to misconduct. Further, any misconduct that could have
{¶84} Finally, we address Glenn’s argument that the bailiff’s admonition to the jury during its deliberations was in violation of
{¶85} Communication between a bailiff and jurors in a criminal trial in violation of
{¶86} But a communication outside the bounds of
{¶87} In State v. Lane,45 this court found misconduct by the bailiff that gave rise to a presumption of prejudice. In Lane, the jury had been deliberating for several hours, had voted twice, and was divided, when a juror asked the bailiff, “ ‘What would happen in the event of a hung jury?’ ”46 The bailiff improperly replied that she should “ ‘ just deliberate the evidence,’ ” and not consider that possibility, and, when asked a second time, informed the juror that “she should not consider a hung jury.”47 When the juror asked the bailiff about the possibility of lesser-included offenses, the bailiff “ ‘answered with gestures.’ ”48 The juror felt coerced to come to a verdict and testified accordingly at a hearing on a motion for a new trial.49
{¶88} This case is easily distinguished from Adams and Lane.50 First, there was no dispute that the admonishment would have been proper if it had been given by the court and was essentially a restatement of prior admonishments that the jury
{¶89} Accordingly, we hold that the trial court did not err by denying the motions for a new trial, and we overrule this assignment of error.
{¶90} The judgment of the trial court is affirmed.
Judgment affirmed.
CUNNINGHAM, P.J., HILDEBRANDT, and DINKELACKER, JJ.
Please Note:
The court has recorded its own entry on the date of the release of this decision.