2005 Ohio 1606 | Ohio Ct. App. | 2005
{¶ 2} On June 4, 1995, the victim was working as a night desk clerk at a Comfort Inn in Upper Sandusky, Wyandot County, Ohio. At approximately 3:30 a.m., a man entered the hotel and inquired about the availability of a hotel room for him and his family for the night. The victim testified that the man asked her to show him one of the rooms that was available. She stated that at that point she gave him the key to an empty room and told him where the room was, so that he could go look at it by himself. According to the victim, the man then returned and stated that the key was not working. She then gave him the key to a different room. She went on to testify that when he returned with the key he told her that he would have to go check with his wife before getting a room. She stated he then left through the front door of the hotel.
{¶ 3} She then stated that the man came back in and told her that he would take the room. At that point, she stated that she turned around to get some paper work and that the man then jumped through an octagon shaped window on the side of the desk area where she was working. She went on to testify that the man then forced her to the ground and forced her to perform oral sex on him. Finally, she stated that, after he assaulted her, he left her on the ground and left the hotel with her school backpack.
{¶ 4} Following the assault, the victim called the police. At trial, Auxiliary Deputy Sheriff, Rick Hendricks, stated that he arrived on the scene at approximately 3:53 a.m. At that time, several other officers from the Sheriff's department and the Upper Sandusky Police Department were also dispatched to the scene.
{¶ 5} During the initial investigation, the hotel was secured, the victim was interviewed and taken to the hospital, where a swab of her mouth and a blood sample were taken, and the shirt she was wearing at the time of the attack was collected as evidence.
{¶ 6} In July of 2002, Gomez became a suspect in this case. In August of 2002, the victim identified Gomez in a photo line-up, which included six black and white photographs. Subsequently, a DNA sample was taken from Gomez. A DNA analysis was performed on Gomez's DNA along with the samples taken from the victim's mouth and cuttings taken from the shirt collected on the night of the incident. BCI Forensic Scientist, Erika Stone, testified at trial that Gomez's DNA could not be ruled out as a match for the semen found on the victim's shirt.
{¶ 7} In May of 2003, Gomez was indicted for one count of rape in violation of R.C.
{¶ 8} In April of 2004, Gomez was convicted by a jury on both counts of the indictment. Subsequently, he was sentenced upon his convictions. It is from this judgment that Gomez appeals, presenting the following assignments of error for our review.
{¶ 10} A trial court's ruling on a motion for a mistrial due to juror misconduct will not be reversed absent a showing that the trial court abused its discretion. State v. Stallings (2000),
{¶ 11} In the case sub judice, on the morning of the second day of trial, the trial court was made aware that three of the jurors had some level of exposure to a newspaper article, which had appeared in the local newspaper, concerning the trial court proceedings. Based upon the possibility of juror misconduct, the trial court individually voir dired each of the jurors.
{¶ 12} Juror No. 2 indicated that she had read the article and obtained information about Gomez being jailed in Nebraska. Accordingly, Juror No. 2 was excused from the jury. The alternate juror indicated that her husband had started to read the article to her and that she had stopped him. The alternate juror was not excused from the jury. Gomez takes no issue with the trial court's decisions as to Juror No. 2 or the alternate juror.
{¶ 13} Juror No. 12 was the third juror who was exposed to the newspaper article. During voir dire on Juror No. 12, she indicated that she may have read an article, but that she did not really remember the article. The following took place on the record:
Court: If — If — I guess you indicated that you read somethingin last night's paper about this case. Juror No. 12: Yeah. Court: What is it that you read? Juror No. 12: I'm not very good rememberer. Uhm, I read where this casewas, there was another case like this or something in Wisconsin or someplace. Court: When you say "another case like this" could you give ussome more details or what your impression was after you were donereading? Juror No. 12: I guess, I just thought that sounds like this one, youknow, but I don't — uhm, I just didn't read it in great detail, but Ithought it was probably related to this one. Court: All right. You related that — I'm having difficulty — you knewyou were reading about this case? Juror No. 12: Not at first, but I think I thought about it, yeah.Court: And — And that some other case was connected to this defendant? Juror No. 12: No, I don't believe so. Court: Okay. So, again, what was your impression of the article youread in the paper? Juror No. 12: Just the same thing that happened before soundedlike this case is what I guess I was thinking. Court: All right. I'm not trying to browbeat you, okay? Juror No. 12: No, No. Court: But what sounded like this case? Juror No. 12: It sounded like that case in Wisconsin was like thiscase? Court: And do you know why that case in Wisconsin was reported? Juror No. 12: No, not really. Court: Our major question is, did anything you read in last night'spaper, would anything you've read in last night's paper affect yourability to be fair and impartial in this case? Juror No. 12: I don't believe so. Court: Mr. Miller? Mr. Miller: [Juror], you don't know what happened in the Wisconsincase, do you? Juror No. 12: No, I just remember that it was a hotel like wasthere, or something. Mr. Miller: [Juror}, you promise to judge this case based on — on theevidence that you heard in this courtroom. Are you gonna do that as ajuror? Juror No. 12: Well — Oh, yes, I believe so. Mr. Miller: Okay. And you understand that every defendant has a rightto be judged on whether or not they committed the specific crime thatthey are charged with, not what happens in their past. Do you agree withthat statement? Juror No. 12: Right. Hm-hmm. Mr. Miller: And whether or not there was something that happened inWisconsin that we don't know about will that affect what you do hear(sic.) as under your oath in this case? Juror No. 12: No I don't believe so. Mr. Miller: And would you promise this Court that you won't readanymore articles in the newspaper. Juror No. 12: Right. I will.
{¶ 14} Subsequently, the trial court declined to disqualify Juror No. 12, finding that the juror "denied any connection to anything that she vaguely remembers reading after being in here all day, going to work at night, as you pointed out, an elderly lady, skimming an article, saw something there was a rape in a hotel * * * in Wisconsin, which was erroneous." (Tr. Transcript 253.) Additionally, the trial court noted that Juror No. 12 made no connection to the defendant and that she stated that she could be fair and impartial.
{¶ 15} Considering the above incident, we cannot find that the trial court abused its discretion. As required, the trial court inquired as to whether there had been juror misconduct. While the reading of an article is potentially misconduct, the trial court as well as trial counsel thoroughly questioned Juror No. 12 on the issue. Upon review, the trial court clearly satisfied its duty to inquire, and its decision was not unreasonable, arbitrary or unconscionable.
{¶ 16} Pursuant to State v. King (1983),
To support his argument, appellant relies on State v. King, for theproposition that any improper juror conduct automatically raises thepresumption of prejudice. On numerous occasions, however, we havereaffirmed a long-standing rule that a court will not reverse a judgmentbased upon juror misconduct unless prejudice to the complaining party isshown. In cases of improper outside juror communication, the defense mustestablish that the communication biased the juror. Furthermore, trialcourts are granted broad discretion in dealing with the outside contactand determining whether to declare a mistrial or replace an affectedjuror.
{¶ 17} Thus, pursuant to Keith, we cannot find that Juror No. 12's exposure to the newspaper article automatically raises a presumption of prejudice. Thus, finding that the trial court did not abuse its discretion, the first assignment of error is overruled.
{¶ 19} A trial court is vested with broad discretion in the admission of evidence. Its evidentiary rulings will not form the basis for a reversal on appeal absent a clear abuse of discretion which is materially prejudicial to the appellant. State v. Maurer (1984),
{¶ 20} Evid.R. 901 provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." A chain of custody is part of the authentication and identification mandate set forth in the rule, and the State has the burden of establishing the chain of custody of a specific piece of evidence before it can be admitted at trial. State v. Brown
(1995),
{¶ 21} In State v. Wilkins (1980),
{¶ 22} At trial, retired Upper Sandusky Police Captain Michael Butte testified that he obtained a shirt from the victim on the night of the incident, June 4, 1995. Additionally, he testified that upon receiving the shirt, he placed it in a brown paper evidence bag and marked the bag, "one maroon shirt from victim." He also stated that the evidence bag also included the victim's name as well as the date and time at which he received the shirt. Finally, Butte testified that he turned the evidence bag over to BCI Agent David Barnes approximately three hours after he received the shirt form the victim.
{¶ 23} Agent Barnes testified that he received the victim's shirt, which was in the paper evidence bag, from Captain Butte. He then testified that he transported the evidence to the BCI laboratory in Fremont, Ohio and locked it in the evidence storage room.
{¶ 24} BCI forensic scientist, Jeffrey Williams, testified that in June of 1995 he received the shirt from the evidence storage room for testing purposes. Williams testified that, when he obtained the evidence, he had no concerns that the evidence had been tampered with. Williams then testified that he first performed visual testing on the shirt and found the presence of semen. He then stated that he took three cuttings from the shirt, two of which conclusively tested positive for semen. Williams then stated that he placed the cuttings into an envelope and placed them into the BCI evidence freezer for future analysis. He stated that he placed the shirt, with the holes in it, back into the evidence bag and returned it to the Upper Sandusky Police Department. Finally, he identified the maroon shirt at trial as the shirt which he tested and took cuttings from, based upon the BCI case number, his initials and the holes in the shirt from the cuttings that he took in 1995.
{¶ 25} BCI Agent Michael Gyurko next testified that on June 11, 2002, he picked up the evidence for this case in a sealed container from the BCI's DNA laboratory in Bowling Green, Ohio, and delivered it, also in a sealed container, to BCI's DNA laboratory in London, Ohio on June 12, 2002. On cross-examination, Gyurko stated that he kept the evidence in the trunk of his car at his residence over night, during the delivery from Bowling Green to London.
{¶ 26} BCI Forensic Scientist Erika Stone testified that she picked up the cuttings from the victim's shirt from the DNA vault freezer at the BCI laboratory in London, Ohio on June 17, 2002. She went on to state that when she received the samples they were in sealed evidence containers and that there was no evidence of tampering.
{¶ 27} The State also had admitted into evidence a copy of BCI's internal evidence chain of custody history, which showed that the evidence was dropped off by Agent Gyurko on June 12, 2002 and picked up by Stone on June 17, 2002.
{¶ 28} Based on the above testimony presented by the State, we find that the State established at trial that it was "reasonably certain that substitution, alteration or tampering did not occur." Brown,
{¶ 29} Finally, Gomez argues that the victim's failure to accurately identify the brand name of the shirt introduced at trial supports a finding that the State failed to establish the chain of custody. Upon review of the record, we find that the victim did sufficiently identify the shirt at trial as the shirt she was wearing on the night of the incident. Furthermore, her inability to remember the exact brand name of the shirt would go to the weight of the evidence as opposed to its admissibility.
{¶ 30} Having found that the State presented sufficient evidence to establish the chain of custody, we cannot say that the trial court abused its discretion by allowing the evidence of the victim's shirt as well as the DNA analysis of the shirt to be introduced at trial.
{¶ 31} Accordingly, the second assignment of error is overruled.
{¶ 33} Appellate review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. State v. Long
(1998),
{¶ 34} When a witness has been confronted with a suspect before trial, due process requires a court to suppress the witness's identification of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under the totality of the circumstances. State v. Murphy (2001),
{¶ 35} In the case sub judice, at a pre-trial hearing, Wyandot County Prosecutor's Office investigator, William Latham, testified regarding the victim's identification of Gomez. According to Latham, in August of 2002, he received the six photo line-up photos from the outside law enforcement agency where he had received the lead about Gomez from. He stated that he then presented the six photos to the victim. He stated that while he did receive color photos, he presented the photo line-up in a single six photo line-up in black and white. He then testified that the victim studied the photos for approximately ten seconds before she identified Gomez as the person who had assaulted her in June of 1995.
{¶ 36} Latham testified that he only asked the victim to look at the photos and see if she could identify any of the persons in the photos. He stated he did not give the victim Gomez's name and he did not go over her prior description of the perpetrator before showing her the photos.
{¶ 37} Upon review of the record, we cannot find that the trial court erred in determining that the identification procedure by which the victim identified Gomez's photograph was not unnecessarily suggestive. While Gomez argues that the he was the only non-Hispanic looking person in the photo line-up, upon review of the photo line-up, we cannot agree with this argument. While three of the men included in photo line-up were Hispanic looking, they nevertheless fit the general description originally given by the victim. According to Latham, in her original description, the victim stated the man had a medium complexion, dark eyes, dark straight brown hair, a round face, was not wearing glasses and had a mustache. Of those men included in the photo line-up, all had dark eyes, dark hair and mustaches. Additionally, three of the six had straight hair and five of the six had medium to dark complexions. Thus, while Gomez argues that the photo line-up was unduly suggestive because he was the only non-Hispanic looking person, we find that the line-up included men that fit within the general description given by the victim only hours after the incident occurred.
{¶ 38} Furthermore, other courts have found that the use of a single distinctive feature does not alone render an array impermissibly suggestive given other physical similarities of the persons photographed. See, Beckham, 2003-Ohio-3837 at ¶ 11, (rejecting Appellant's argument that photo line-up is unduly suggestive because he was the only person among six African-American males depicted who did not have a goatee.); State v. Burrows, 11th Dist. No. 2000-T-0089, 2002-Ohio-1961, (rejecting Appellant's argument that photo line-up was unduly suggestive because he was only one of two individuals without facial hair despite a description by the victim stating that the individual had no facial hair.); State v. Johnson (Sept. 24, 1999), 11th Dist. No. 97-T-0227, unreported, (rejecting Appellant's argument that the photo-line was impermissibly suggestive because he was the only suspect who was clean shaven.)
{¶ 39} Finding that the photo line-up was not unduly suggestive, the third assignment of error is overruled.
{¶ 41} A statute violates Section 28, Article II of the Ohio State Constitution, prohibiting the enactment of retroactive laws, if it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." Van Fossen v.Babcock Wilcox Co. (1988),
{¶ 42} The First District Court of Appeals recently addressed the issue of whether R.C.
Without a "clear indication" of a legislative intent that a statute beapplied retroactively, it may be applied only prospectively. Section 3 ofH.B. 49, effective March 9, 1999, which amended R.C.
{¶ 43} Finding that there was an expressed legislative intent that R.C.
{¶ 44} Additionally, the Crooks Court made the following findings:
Amended R.C.
Id. at ¶ 13 (citations omitted).
{¶ 45} Accordingly, the First District Court of Appeals held that the retroactive application of R.C.
{¶ 46} We agree with and elect to follow the well reasoned opinion inCrooks. As such, we find that because the prior six-year statute of limitations did not bar the prosecution of Gomez for his June 5, 1995 offenses before June 5, 2001, the clearly expressed legislative intent is that amended R.C.
{¶ 47} Accordingly, the fourth assignment of error is overruled.
{¶ 49} An ineffective-assistance-of-counsel claim requires proof that trial counsel's performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result. Statev. Bradley (1989),
{¶ 50} Gomez first argues that his trial counsel failed to adequately question his own DNA expert. However, he fails to include in his argument the name of the DNA expert to which he is referring. Furthermore, upon review of the record, we cannot find that a DNA expert testified on behalf of the defense. While Gomez's trial counsel did offer the testimony of Dr. Fulero, who testified as an expert in eyewitness memory recognition and collection of eyewitness evidence, Gomez did not offer Dr. Fulero's testimony as a DNA expert. However, even if Gomez is referring to his trial counsel's questioning of Dr. Fulero as to the handling of DNA evidence in this case, we find that trial counsel's decision to limit his question of his own witness would be a tactical matter. We note that errors of judgment regarding tactical matters will not substantiate a claim of ineffective assistance of counsel. State v.Garrett (1991),
{¶ 51} Additionally, Gomez argues that his trial counsel was ineffective because he failed to fully argue the issue of the introduction of the victim's shirt and DNA evidence extracted from the shirt. Based on our disposition in the second assignment of error, we cannot find that there is a reasonable probability that Gomez's claimed deficiency of trial counsel's failure to fully argue the issue of the victim's shirt would have change the result of the trial.
{¶ 52} Accordingly, the fifth assignment of error is overruled.
{¶ 53} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed. Cupp, P.J., and Bryant, J., concur.
