STATE OF OHIO v. ISIAH B. HALE
No. 107646
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 15, 2019
[Cite as State v Hale, 2019-Ohio-3276.]
EILEEN A. GALLAGHER, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-16-607517-A
JUDGMENT: AFFIRMED; REMANDED
RELEASED AND JOURNALIZED: August 15, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607517-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Brent C. Kirvel, Assistant Prosecuting Attorney, for appellee.
Thomas A. Rein, for appellant.
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant Isiah Hale appeals his convictions after a jury found him guilty of murder, involuntary manslaughter, aggravated robbery, having a weapon while under disability and perjury. He contends that his convictions were not supported by sufficient evidence and were against the manifest weight of the
Procedural History and Factual Background
{¶ 2} In 2009, Hale was charged in 529253 with murder, aggravated robbery, kidnapping and having a weapon while under disability in connection with the September 11, 2009 shooting death of Montrell Stonewall. Hale pled not guilty to the charges. Hale‘s codefendant, Jermael Burton, was charged with conspiracy to murder, kidnap and rob Stonewall and having a weapon while under disability.
Hale‘s Police Interview
{¶ 3} On April 21, 2010, after Hale and the state reached a plea agreement, but before Hale entered his change of plea, Hale submitted to a video-recorded interview, with counsel present, with the East Cleveland police. East Cleveland police detectives Scott Gardner and Reggie Holcomb conducted the interview. At the outset, one of the detectives informed Hale that the purpose of the interview was
{¶ 4} When Hale arrived at the scene, Burton explained to Hale what was “going on with the situation.” According to Hale, Burton informed him that Stromboli Douglas had arranged a drug deal between Burton and two men from out of town whom Hale did not know, but who were later identified as Stonewall and his half-brother, Luis Santiago. Hale stated that he had seen Douglas before but did not know him. Stonewall and Santiago had allegedly taken some drugs out of the bag Burton had given them and were “trying to negotiate a better price.” Hale stated that he agreed to “go and see and talk to the guys, basically just being a mediator” in an attempt to resolve the issue. Hale stated that he never saw the drugs nor the money that was to be used to purchase the drugs.
{¶ 5} Hale stated that he went to talk to Stonewall and Santiago and got into the backseat of their car. According to Hale, once he was in the car, Stonewall
Hale‘s Guilty Plea
{¶ 6} On the day following his interview with police, Hale pled guilty to an amended count of involuntary manslaughter with a three-year firearm specification. The remaining charges were dismissed. At the time of Hale‘s change of plea, Burton had not yet been apprehended. One of the conditions of Hale‘s plea agreement was that if Burton was apprehended and the case against Burton proceeded to trial, Hale would testify “consistent with [the] apparent truthful statement” he had given during his interview the previous day. The trial court referred Hale to the probation department for a presentence investigation report (“PSI“).
{¶ 7} On May 20, 2010, Hale was sentenced to eight years in prison, i.e., three years on the firearm specification to be served prior to and consecutive to five years on the involuntary manslaughter charge. Hale also received an additional two years in prison in a federal case due to his violation of supervised release.
{¶ 8} Burton was ultimately apprehended and the case against him proceeded to trial in January 2011. During the middle of Burton‘s trial, the state disclosed that a gunshot residue test performed on Stonewall‘s hands revealed gunshot primer residue on Stonewall‘s right hand. Hale‘s attorneys had requested the results of any gun residue testing performed on Stonewall during pretrial discovery. Although the Cuyahoga County Coroner‘s Office issued a report with the test results on March 5, 2010, the test results were not disclosed to Hale‘s attorneys until January 4, 2011. See State v. Hale, 8th Dist. Cuyahoga No. 100447, 2014-Ohio-3322, ¶ 4.
{¶ 9} On January 5, 2011, Hale filed a motion to withdraw his guilty plea in 529253 based on the state‘s failure to disclose the results of the gunshot residue test performed on Stonewall. Hale argued that the test results were material to his claim, which he had asserted throughout the case, that he had shot Stonewall in self-defense. The state opposed the motion.
{¶ 10} When the state called Hale to testify at Burton‘s trial, as contemplated by the plea agreement, Hale asserted his Fifth Amendment right against self-incrimination.
{¶ 11} Burton was acquitted of the charges against him relating to Stonewall‘s death. At the close of the state‘s case, the trial court granted Burton‘s
{¶ 12} At the time he entered his guilty plea, Hale was represented by Attorneys Edward LaRue and Anthony Lonardo. After filing his motion to withdraw his guilty plea, Hale hired Attorney Michael Cheselka to represent him. Attorney Cheselka had represented Burton in Burton‘s trial on the charges relating to Stonewall‘s death.
Hale‘s Testimony at the Hearing on the Motion to Withdraw His Guilty Plea
{¶ 13} On May 6, 2011, the trial court commenced a hearing on Hale‘s motion to withdraw his guilty plea. The hearing continued on May 11, 2011. At the hearing, Hale testified regarding his discussions with Attorneys LaRue and Lonardo about what happened the night Stonewall was shot.1 Hale testified that when he first met with Attorneys LaRue and Lonardo, he told them “the truth” about what had happened that night, as follows: On the evening of September 11, 2009, Hale received a call from Burton, who asked him “to come up there” to “Middle Street,”2 around the corner from Hale‘s house. When he arrived, Hale was flagged down by Douglas, who asked him “about some marijuana” and told him that “they wanted to talk over there in the car.” Hale parked his car, then walked over to the other car in
{¶ 14} Hale testified that Attorneys LaRue and Lonardo initially told him that they had “a good case” and that they were “going to win this” at trial but that when he could not come up with the additional money they said they needed to prepare for trial, they told him that he would not likely prevail at trial and that it would be in his “best interest to take the [plea] deal.” Hale testified that he never wavered in the version of events he told his attorneys but that his attorneys told him that his “story” was “not going to fly” and that he could either “go in there with that story and get life if you want to or[,] go with the flow, take [the] deal, and come home in six years.” Hale testified that his attorneys told him that, to get the plea deal, he needed to “just go with” what everyone else was saying, i.e., to say that he had come to the scene to “mediate” a drug deal and had used his own gun to shoot Stonewall
{¶ 15} On August 26, 2013, the trial court granted Hale‘s motion to withdraw his guilty plea. The trial court found that the delayed disclosure of the gunshot residue test results was a Brady violation, was “material to the issue of guilt” because it substantiated Hale‘s claim that he had acted in self-defense and was “tantamount to a manifest injustice mandating the granting [of Hale‘s motion].” The state appealed. This court affirmed the trial court‘s decision.3 State v. Hale, 8th Dist. Cuyahoga No. 100447, 2014-Ohio-3322.
{¶ 16} On remand, the case was scheduled for trial. On June 6, 2016, the date the trial was scheduled to begin, the trial court dismissed the charges against Hale in 529253 without prejudice, at the state‘s request.
{¶ 17} On July 28, 2016, a Cuyahoga County Grand Jury reindicted Hale on counts of murder, aggravated robbery, kidnapping and having a weapon while under disability in connection with the September 11, 2009 shooting death of Stonewall. The murder, aggravated robbery and kidnapping counts included one-year and three-year firearm specifications. Hale was also indicted on one count of perjury in violation of
Hale‘s Trial
The State‘s Witnesses
{¶ 18} Ten witnesses testified on behalf of the state at trial, including Burton, Douglas, Santiago, Detective Holcomb, Attorney Lonardo, Kahdawna Garrison (a friend Stonewall had planned to meet in Cleveland), Erica Armstrong (deputy medical examiner at the Cuyahoga County Medical Examiner‘s Office), Curtiss Jones (supervisor of the trace evidence department of the Cuyahoga County Medical Examiner‘s Office), Mark Kollar (a special agent supervisor for the Ohio Attorney
{¶ 19} Santiago testified that he and Stonewall, both of whom lived in Erie, Pennsylvania, had traveled to Cleveland to “chill” with a female friend of Stonewall‘s, i.e., Garrison, and one of her “cousins.” Santiago testified that when they first got to Cleveland, they went to a gas station and met Douglas. He stated that Douglas got into the car with them and the three men got something to eat, then proceeded on their way to meet Garrison. While they were on their way to Garrison‘s house, Stonewall made a stop. Santiago testified that Stonewall and Douglas stepped out of the car and were “talking or something,” then got back into the car. Santiago stated that he had not been aware of any plan to get drugs while they were in Cleveland but that if Stonewall had had such plans, he would not have told Santiago because Santiago did not “live none of that at all.”
{¶ 20} They drove around for a bit then stopped and parked at a street on a hill. Santiago testified that a car pulled up, that Stonewall and Douglas had a discussion, that Stonewall gave Douglas “some money or something” and that Douglas then ran out of the car.
{¶ 21} Santiago testified that a male he did not recognize then came out of an alleyway, opened the unlocked car door and got into the car with them. He testified that the man (later identified as Hale) said, “give it up,” and pulled out a gun. Stonewall put the car in drive and sped off. Santiago testified that Hale was sitting behind the driver‘s seat with the gun pointed toward the front of the vehicle
{¶ 22} Santiago testified that after the shots were fired, Stonewall did a U-turn back toward the gas station where Douglas was waiting. They located Douglas, and Douglas drove them to the hospital. When they arrived at the hospital, Santiago and Douglas were immediately detained. Santiago later learned that Stonewall had died in surgery. Santiago identified Hale as the perpetrator in a photo array on September 21, 2009, and again in court during his trial testimony.
{¶ 23} Douglas testified that Stonewall was a “friend” he had known for approximately a year prior to the shooting and that he had not previously met Santiago. Douglas testified that Stonewall had come into town to visit him, that Stonewall had wanted to buy an ounce of powder cocaine and that Douglas had agreed to be the “middle man” for the drug transaction.
{¶ 24} Douglas stated that when Stonewall and Santiago arrived in Cleveland, they picked up Douglas, got food and hung out together “for some hours,” “riding around” and “stop[ping] at a few places.” Douglas testified that he called Burton, who was to supply the cocaine, and they made arrangements to meet on Noble Road in Cleveland Heights, Ohio, in between a gas station and the Columbo
{¶ 25} Douglas stated that when he gave the bag back to Burton, Burton “reacted like * * * we did something to it.” Douglas denied that they did anything to the drugs. Douglas testified that Burton then made a telephone call. Douglas stated that he did not know whom Burton called but that Burton told the person on the other line “to get something from the house and bring it to where we was at.” Ten or 15 minutes later, Hale appeared in an old Ford truck.
{¶ 26} Douglas identified Hale in the courtroom. He described Hale as an “associate” he knew from having attended Shaw High School together. Douglas testified that after Hale got out of the truck, he walked towards Douglas and Burton. Hale and Burton greeted one another, then Burton told Hale to “go to that car.” Douglas testified that Hale walked over to Stonewall‘s car, opened the door and spoke briefly with Stonewall and Santiago. Douglas could not hear what was said. Douglas testified that Hale then “helped himself” into the back seat of Stonewall‘s car and it “drove off real fast.”
{¶ 28} Douglas testified that neither Stonewall nor Santiago had a gun that evening. Douglas stated that he had set up drug deals for Stonewall “a lot of times” and that Stonewall “don‘t ride like that.”
{¶ 29} Burton offered a slightly different version of events. He stated that he had known Hale for “roughly about 17 years” and that he knew Douglas from school. Burton testified that he had “a situation” with Douglas, i.e., that Douglas called him and said he wanted to meet Burton, so Burton agreed to meet Douglas at Nelamere Road off Noble Road in East Cleveland. Burton testified that Douglas was with two men he did not know. Burton testified that Douglas came over to talk to him, went back to the vehicle to talk to the two men he was with, then came back to talk to Burton again. After talking with Douglas, Burton told Douglas “that‘s not going to
{¶ 30} Garrison testified that she had met Stonewall at the Presque Isle Casino in Erie, Pennsylvania, about four months earlier. She stated that Stonewall was supposed to pick her up that evening and take her back with him to Erie for the weekend. She testified that she had been communicating with Stonewall regularly as he was driving from Erie to Cleveland and that he told her he was going to stop and see a friend before getting her. He later called her and told her he was on his way, and Garrison went outside to smoke a cigarette and wait for him. While she was outside waiting for Stonewall, she heard a gunshot. When Stonewall did not pick her up as planned, Garrison called Santiago, who informed her that Stonewall had been shot. Garrison testified that she had never seen Stonewall carry a firearm and that she did not know Hale, Burton or Douglas.
{¶ 32} Armstrong performed an autopsy on Stonewall. She testified that Stonewall died from a gunshot wound to the left chest, i.e., that a bullet had entered Stonewall‘s chest at the left nipple and travelled horizontally across his body, passing through the lungs and heart, into the right side of his back.
{¶ 33} Jones testified regarding the results of the gunshot primer residue testing conducted on Stonewall‘s hands. He indicated that Stonewall‘s right hand tested positive for gunshot primer residue, but his left hand did not. Jones explained that when a gun is shot, gunshot primer residue escapes through gaps on the sides of the weapon. He stated that if gunshot primer residue is found on a person‘s hand, one of three things has occurred: (1) the individual shot a gun, (2) the individual was in close proximity to the discharge of a gun or (3) the individual came into contact with a surface that had gunshot primer residue on it and there was a transfer of gunshot primer residue from that surface to the person‘s hand. He could not state which occurred here.
{¶ 35} Sergeant Holcomb testified regarding additional aspects of the East Cleveland Police Department‘s investigation of the incident, including the crime scene photographs, efforts to apprehend Burton and the April 2010 interview of Hale. Sergeant Holcomb testified that all of the blood samples collected from the car were Stonewall‘s blood, that a partial palm print on the back of Stonewall‘s vehicle belonged to Douglas and that a hair found was from a Caucasian female and did not relate to the case. He testified that the gun used in the shooting was never recovered.
{¶ 36} Attorney Lonardo testified regarding Hale‘s claim that he and Attorney LaRue told Hale to lie about what had occurred leading up to the shooting of Stonewall. Attorney Lonardo denied that he told Hale to lie “in any way, shape,
{¶ 37} The state played the recording of the April 2010 interview for the jury. Excerpts of Hale‘s testimony at the May 6 and May 11, 2011 hearing on Hale‘s motion to withdraw his guilty plea were also read to the jury. The parties stipulated to a certified journal entry reflecting Hale‘s prior conviction for drug trafficking in violation of
{¶ 38} After the state rested, Hale moved for an acquittal under
Hale‘s Trial Testimony
{¶ 39} Hale was the sole witness to testify on behalf of the defense. Hale admitted that he fired two shots into the back of Stonewall‘s car on the evening of September 11, 2009 but claimed that he did it in self-defense, i.e., that when he got out of Stonewall‘s car that evening, Stonewall fired at him first and Hale fired back.
{¶ 40} Hale denied that anyone had called him to come to the scene that evening. He stated that he came to the scene because he “live[d] up there.” Hale
{¶ 41} Hale testified that Santiago “pulled a gun on me” and that Hale “went for it.” Hale stated that he and Santiago “wrestled over” the gun and that once Hale obtained control of Santiago‘s gun, Stonewall stopped the car. Hale testified that as he attempted to get out of the car and get away, Stonewall, still sitting in the driver‘s seat, turned around and fired at him. Hale then fired back with Santiago‘s gun. Hale testified that after he fired back, he saw the car “do a U-turn” and come back up the hill towards him. Hale stated that he thought they were coming back to “finish me off.” He ran home, dropping the gun as he ran “up through the woods” behind the back of a nearby building. Hale testified that he did not realize he had shot Stonewall because “when the shot was fired at me and the bullet whizzed past me and I fired back, I wasn‘t taking aim at anything.” Hale stated that he “just pointed and ran and shot.”
{¶ 42} Hale testified that he was arrested while working at his brother‘s “car lot” a week later. Hale testified that when he spoke with Attorneys LaRue and
{¶ 43} Hale stated that initially, his attorneys told him that that they could win the case and “everything‘s fine.” However, as they got closer to trial, Attorneys LaRue and Lonardo told him that there was no way to prove Hale‘s “theory of what had happened” and that he “wouldn‘t win at trial” because there was no evidence that Stonewall had fired a weapon. Hale testified that his attorneys told him that he could “take a deal” or “go to trial and lose and get life.” Although Hale acknowledged that his attorneys never explicitly told him to “lie,” he said that they told him what he would have to do in order to get the plea deal, which included “changing his story” regarding what had happened. Hale testified that his attorneys told him what changes needed to be made to his story in order to get the plea deal and that he then “changed his story” as directed by his attorneys. Hale stated that, although what he told police was not the truth, he did not consider himself as having “lied” in the April 2010 interview because he simply said “what was expected for me to say” in order to get the plea deal.
{¶ 44} Hale testified that the interview he gave police in April 2010 was not enough to get the plea deal. He stated that he also had to “[g]ive a report [for] the PSI5 and * * * go in at sentencing and pretty much continue to admit guilt.”
{46} Hale testified that after he learned that the state had “the evidence and proof that would have been needed * * * to prove my theory of what I was saying all along had happened” and had failed to produce it, he immediately asked his attorneys to file a motion to withdraw his guilty plea. Hale stated that he wanted to prove his innocence because he was the one who had actually been the victim, i.e., that he had been “kidnapped,” “almost robbed” and shot at that evening by Stonewall.
{47} After the defense rested, Hale renewed his
{48} The jury found Hale not guilty of murder in violation of
{49} Hale was sentenced on August 9, 2018. The trial court merged the murder, involuntary manslaughter and aggravated robbery counts for sentencing and the state elected to have Hale sentenced on the murder count. The court sentenced Hale to an aggregate sentence of 21 years to life - i.e., 3 years on the firearm specification to be served prior to and consecutive to 15 years to life on the underlying murder charge, 3 years on the having weapons while under disability
{50} In imposing consecutive sentences the trial court stated:
I find that consecutive sentences are necessary in this particular case because, of course, in this particular instance consecutive sentences is necessary to protect the public from future crime and, of course, to punish this offender.
The consecutive sentences are not disproportionate to the seriousness of this offender‘s conduct and to the danger that this offender poses to the public.
I also find additionally that the offender‘s history and criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by this offender.
Additionally, I‘m going to note for the record the defendant has, of course, a criminal history. He was on Federal Parole at the time that he committed these offenses.
{51} In its August 15, 2018 sentencing journal entry, the trial court made the following findings with respect to the imposition of consecutive sentences:
The court imposes prison terms consecutively finding that consecutive service is necessary to protect the public from future crime or to punish defendant; that the consecutive sentences are not disproportionate to the seriousness of defendant‘s conduct and to the danger defendant poses to the public; and that, at least two of the multiple offenses were committed in this case as part of one or more courses of conduct, and that harm caused by said multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of defendant‘s conduct.
FIRST ASSIGNMENT OF ERROR
The trial court erred by failing to grant a judgment of acquittal, pursuant toCrim.R. 29(A) , on the charges, and thereafter entering a judgment of conviction of that offense as those charges were not supported by sufficient evidence, in violation of defendant‘s right to due process of law, as guaranteed by theFourteenth Amendment to the United States Constitution .SECOND ASSIGNMENT OF ERROR
Appellant‘s convictions are against the manifest weight of the evidence.THIRD ASSIGNMENT OF ERROR
Appellant was denied his rights against Double Jeopardy when he was tried a second time for the same charges after the prosecutor failed to disclose exculpatory evidence.FOURTH ASSIGNMENT OF ERROR
The trial court erred by allowing Appellant‘s former attorney to testify against him in violation of attorney-client privilege.FIFTH ASSIGNMENT OF ERROR
Appellant was denied effective assistance of counsel as guaranteed bySection 10, Article I of the Ohio Constitution and theSixth andFourteenth Amendments .SIXTH ASSIGNMENT OF ERROR
The trial court erred by ordering Appellant to serve a consecutive sentence without making the appropriate findings required byR.C. 2929.14 and HB 86.
{53} For ease of discussion, we address Hale‘s assignments of error out of order and together where appropriate.
Double Jeopardy
{54} We address Hale‘s third assignment of error first. In his third assignment of error, Hale contends that his convictions should be reversed on double jeopardy grounds because “he was tried a second time for the same charges” and was reindicted on an additional charge of perjury after he “exercised his right to withdraw his guilty plea.”
{55} Hale did not raise a double jeopardy issue below. Because no objection was raised in the trial court, we review this assignment of error for plain error. See, e.g., In re J.T., 2017-Ohio-7723, 85 N.E.3d 763, ¶ 15 (8th Dist.) (“When a defendant fails to object or raise the issue of double jeopardy at trial * * * an appellate court reviews the issue for plain error.“). Under
{56} The Double Jeopardy Clause of the
{57} The prohibition against double jeopardy clause “protects against three abuses“: (1) “a second prosecution for the same offense after acquittal,” (2) “a second prosecution for the same offense after conviction” and (3) “multiple punishments for the same offense.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). None of these “abuses” is implicated in this case.
{58} Despite his assertions to the contrary, Hale was tried only once for the offenses at issue. Once a guilty plea is withdrawn, the case goes back to where it was before the defendant entered the guilty plea and proceeds as if the guilty plea was never entered. In this case, after Hale withdrew his guilty plea in 529253, the case was set for a jury trial.
{59} Jeopardy attaches in a jury trial when “the jury is impaneled and sworn.” State v. Gustafson, 76 Ohio St.3d 425, 435, 668 N.E.2d 435 (1996); see also State v. Martin, 8th Dist. Cuyahoga No. 87618, 2007-Ohio-1833, ¶ 18, citing Dowling v. United States, 493 U.S. 342, 348, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).
{60} On June 6, 2016, the date trial was scheduled to begin in 529253 but before jury selection began, the trial court granted the state‘s request to dismiss the case without prejudice.
{62} Because jeopardy never attached before the jury was empaneled and sworn in the instant case, the state was permitted to dismiss the charges against Hale in 529253 and he could be reindicted on the charges in this case. Hale‘s convictions did not violate double jeopardy, and no plain error is found to exist. Hale‘s third assignment of error is overruled.
{63} In his fifth assignment of error, Hale contends that he was denied effective assistance of counsel in violation of
{64} The
{65} However, where a defendant raises no objection at trial, the defendant must demonstrate that an actual conflict of interest adversely affected defense counsel‘s performance to establish a violation of his
{66} In this case, before trial began, the trial court, sua sponte, raised the issue of whether a possible conflict of interest existed given that (1) Attorney Cheselka had previously represented Burton on charges relating Stonewall‘s death and (2) Burton was a potential witness for the state in Hale‘s trial, where he could be subject to cross-examination by Attorney Cheselka. The record reflects that the trial court delayed the trial so that Attorney Cheselka could consult with ethics counsel regarding the potential conflict of interest. Although Attorney Cheselka reported that ethics counsel had advised him that there was no actual conflict of interest, the trial court nevertheless proceeded to have a lengthy discussion with Hale on the record regarding the potential conflict of interest, ensuring that Hale understood the potential conflict of interest and the possible “pitfalls” associated
{67} In this case, not only did Hale raise no objection to Attorney Cheselka‘s successive representation of Burton and Hale, it was precisely because Attorney Cheselka had successfully represented Burton on the charges relating to Stonewall‘s death that Hale chose to retain Attorney Cheselka as his counsel in this case. Hale has not shown that Attorney Cheselka, in fact, had an actual conflict of interest as a result of his prior representation of Burton or that Attorney Cheselka‘s performance or the result of the trial was adversely affected in any way by any conflict of interest. The record reflects that Attorney Cheselka actively pursued Hale‘s desired defense strategy.
{68} Furthermore, the record reflects that Hale knowingly and expressly waived any potential conflict of interest arising from Attorney Cheselka‘s successive representation of Burton and Hale. Although Hale asserts in his brief that “[t]here is nothing to indicate in the record or otherwise that Attorney Michael Cheselka received informed consent, from either Jermael Burton [or] Isiah Hale, which has to be in writing[,] regarding these issues,” this is not correct. After confirming with the trial court that he understood the potential conflict of interest and still wanted Attorney Cheselka to represent him, Hale executed a written waiver, waiving any potential conflicts of interest associated with Attorney Cheselka‘s continued
{69} Accordingly, Hale‘s fifth assignment of error is meritless and is overruled.
Testimony by Hale‘s Former Defense Attorney
{70} In his fourth assignment of error, Hale contends that the trial court erred by allowing the state to call his former defense counsel, Attorney Lonardo, to testify at trial regarding Hale‘s claim that his prior lawyers had told him to lie and “change his story.” According to Hale, because he did not waive the privilege or give informed consent to the disclosure of his communications with counsel, Attorney Lonardo‘s testimony violated the attorney-client privilege and
{71} In Ohio, the attorney-client privilege is governed by statute,
{72} A client may waive this testimonial privilege by voluntarily revealing the substance of attorney-client communications. If a client “voluntarily reveals the substance of attorney-client communications in a nonprivileged context * * *, the attorney may be compelled to testify on the same subject.”
{73} In this case, Hale testified at length during the May 2011 hearing as to his communications with Attorneys LaRue and Lonardo regarding “the truth” of what had happened and the false “story” he claimed counsel told him he needed to tell police and others in order to obtain the plea deal. Hale claimed that he knowingly made false statements during his April 2010 police interview, on the
{74} In Houck, the defendant pled guilty while she was represented by a public defender and then retained private counsel who moved to withdraw her guilty plea prior to sentencing. Houck at ¶ 5-6. At the hearing on the motion to withdraw guilty plea, the defendant testified on her own behalf, claiming that her former attorney told her that she had to plead guilty in order to “stay out of jail.” Id. at ¶ 14-17, 24. The state then called the public defender to testify regarding his representation of the defendant. Id. at ¶ 6. He testified that he had not told the defendant that she would likely go to prison if she did not plead guilty, but rather, that she would likely have an opportunity for community control even if she went to
{75} On appeal, the Second District held that the defendant had “unequivocally waived the confidential, privileged nature of her communication with [her former attorney] concerning whether she should plead guilty to the charged offense, when she testified concerning the communication, including what [her attorney] had advised her.” Id. at ¶ 37. As the court explained:
[A defendant] may not publish to the world her attorney‘s advice to her and expect that it will thereafter remain privileged.
A ruling to the contrary would permit anyone, in either criminal or civil litigation, to claim with impunity that she was acting on advice of counsel, without permitting her former counsel to be asked, by adverse parties, whether that was, in fact, counsel‘s advice. The attorney-client privilege is a shield, to protect the confidentiality of a client‘s consultation with her attorney, not a sword to facilitate perjury concerning the substance of counsel‘s advice.
Id. at 37-38.
{76} Hale also contends that Attorney Lonardo‘s testimony violated
{77} “[V]iolations of the Rules of Professional Conduct,” however, “have no bearing on the admissibility of evidence.” (Emphasis deleted.) Montgomery, 2013-Ohio-4193, 997 N.E.2d 579, at ¶ 36. Furthermore, under
{78} Accordingly, the trial court did not err in allowing Attorney Lonardo to testify regarding Hale‘s claim that Attorney Lonardo had told him to lie to police and the court regarding the events leading up to the shooting. Hale‘s fourth assignment of error is overruled.
Sufficiency of the Evidence and Manifest Weight of the Evidence
{79} In his first and second assignments of error, Hale contends that the trial court erred in denying his
{80} A
{82} In contrast to a challenge based on sufficiency of the evidence, a manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. When considering an appellant‘s claim that a conviction is against the manifest weight of the evidence, the court of appeals sits as a “thirteenth juror” and may disagree “with the factfinder‘s resolution of * * * conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1977), citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The reviewing court must examine the entire record, weigh the evidence and all reasonable inferences, consider the witnesses’ credibility and determine
Murder, Aggravated Robbery and Having a Weapon While Under Disability7
{83} Hale was convicted of murder in violation of
{84} Hale contends that his conviction for murder lacked sufficient evidence and was against the manifest weight of the evidence because Hale proved that he was acting in self-defense when shooting Stonewall. Hale argues that the fact that gunshot primer was found on Stonewall‘s right hand means that Hale “was clearly shot at first” and that Hale “acted only after his own life was put in jeopardy.” Hale further contends that there is “no credible, reliable evidence” that Hale “ever intended to cause the death of another short of acting in self-defense.”
{85} Hale argues that the jury‘s guilty finding on the aggravated robbery charge was not supported by sufficient evidence and was against the manifest weight of the evidence because “Santiago‘s story is flawed.” Hale argues that Santiago‘s testimony that he “just sits there” while Hale “jumps in the back seat of their car and tries to rob [Santiago and Stonewall]” is “not credible” and “of no value” because “if he or Stonewall [did] not have a gun as he claims,” there is no explanation for “how * * * gunshot residue end[ed] up on Stonewall‘s hand.”
{86} Hale contends that his conviction for having a weapon while under disability was not supported by sufficient evidence and was against the manifest weight of the evidence because “the only reason [he] had a gun that night was that
{87} As an initial matter we note that Hale‘s self-defense argument goes to the manifest weight of the evidence rather than sufficiency of the evidence. See, e.g., State v. Colon, 8th Dist. Cuyahoga No. 106031, 2018-Ohio-1507, ¶ 16 (“When reviewing a claim by a defendant that evidence supports his claim of self-defense, the manifest-weight standard is the proper standard of review because a defendant claiming self-defense does not seek to negate an element of the offense charged but rather seeks to relieve himself from culpability.“); see also State v. Dykas, 185 Ohio App.3d 763, 2010-Ohio-359, 925 N.E.2d 685, ¶ 18 (8th Dist.). Self-defense is an affirmative defense that a defendant must prove by a preponderance of the evidence.
{¶ 88} This case came down to which version of events — and which witnesses — the jury found to be more credible: Hale‘s trial testimony and the version of events to which he testified at trial or the testimony and version of events to which other witnesses testified. “The decision whether, and to what extent, to believe the testimony of a witness is ‘within the peculiar competence of the factfinder, who has seen and heard the witness.‘” State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 45 (8th Dist.), quoting State v. Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 54. “When an appellant attacks the credibility of a witness on manifest weight grounds, it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact which accepted the testimony of such witness unless the reviewing court finds that a reasonable [factfinder] could not find the testimony of the witness to be credible.” State v. Brown, 10th Dist. Franklin No. 02AP-11, 2002-Ohio-5345, ¶ 10, quoting State v. Long, 10th Dist. Franklin No. 96APA04-511, 1997 Ohio App. LEXIS 416, 25 (Feb. 6, 1997).
{¶ 89} It is well established that a factfinder may believe and convict a defendant based upon the testimony of a single eyewitness, including a victim. See, e.g., State v. Martin, 8th Dist. Cuyahoga No. 90722, 2008-Ohio-5263, ¶ 32-42 (rejecting argument that convictions were against the manifest weight of the evidence because the victim, who was the sole eyewitness to the events, gave conflicting information to police officers and there was no corroborating evidence, such as other witnesses or physical evidence); see also State v. Payne, 8th Dist. Cuyahoga No. 105965, 2018-Ohio-1399, ¶ 24, 29-30; State v. Mansour, 11th Dist. Trumbull No. 2011-T-0013, 2011-Ohio-5438, ¶ 16-29.
{¶ 90} Hale admitted that he fired the shot that killed Stonewall. He argues that the fact that Stonewall was found to have gunshot primer residue on his right hand compels a finding that Stonewall shot at him first and that Hale acted in self-defense in shooting Stonewall. However, that is not the only reasonable conclusion that could be drawn from that evidence. As Jones testified, when gunshot primer residue is found on an individual‘s hand it could mean that the individual shot a gun; however, it could also mean that the individual was in close proximity to the discharge of a gun or that the individual came into contact with a surface that had gunshot primer residue on it and there was a transfer of gunshot primer residue from that surface to the person‘s hand. In this case, all of the witnesses testified that Hale was getting out of the rear seat of Stonewall‘s vehicle or standing just outside Stonewall‘s vehicle when he shot at Stonewall. Jones testified that one of the bullets went through the driver‘s seat in which Stonewall was sitting at the time of the
{¶ 91} Santiago testified that when Hale got into the backseat of Stonewall‘s car, he said, “give it up,” and pulled out a gun. In the statements Hale made during the April 2010 police interview, to the probation officer for the PSI and to the federal judge during his supervised release violation hearing, Hale admitted that he had a gun when he got into Stonewall‘s car. No witnesses — other than Hale — testified to seeing Stonewall or Santiago with a gun that evening. Bailey, who knew none of the persons involved, testified that she saw someone get out of the car and fire approximately three shots in the direction of the car before running off.
{¶ 92} The evidence presented at trial was sufficient for the jury to find beyond a reasonable doubt that Hale had a prior felony conviction for drug trafficking and had “knowingly acquire[d], ha[d], carr[ied], or use[d] any firearm.”
{¶ 93} Although Hale contends that his trial testimony was more credible than Santiago‘s and that the jury should have, therefore, believed his trial testimony over Santiago‘s trial testimony, the jury was not required to do so. The jury heard multiple different “stories” from Hale regarding what had occurred that evening, including the story he told police in the April 2010 interview, the statements Hale made to the probation officer for the PSI, the statements he made to the federal judge during his supervised release violation hearing, his testimony at the hearing on his motion to withdraw his guilty plea and, finally, his trial testimony. The jury was entitled to disbelieve Hale‘s trial testimony and to believe the testimony of the other witnesses.
Perjury
{¶ 94} Hale also asserts that his conviction for perjury was not supported by sufficient evidence and was against the manifest weight of the evidence. Once again, we disagree.
{¶ 95}
{¶ 96} Contrary to Hale‘s assertions, it was not Hale‘s statements at the change of plea hearing, i.e., his admission that he committed involuntary manslaughter in shooting Stonewall, that gave rise to his perjury conviction. Rather, it was Hale‘s testimony during the May 2011 hearing on his motion to withdraw his guilty plea. The state introduced excerpts of the transcript from that hearing into evidence. At that hearing — an “official” judicial “proceeding” — Hale testified “under oath” that Attorneys LaRue and Lonardo told him to “change his story” regarding what had occurred on the night of Stonewall‘s shooting, including that he should say that the transaction involved cocaine rather than marijuana; that he went to the scene to “mediate a drug deal gone bad” when, in “truth,” he just happened to be flagged down by Douglas when he arrived at the scene; that Hale shot Stonewall with his own weapon he brought to the scene, when in “truth,” he shot Stonewall with a gun he “wrestled” away from Santiago; and that Hale fired the first (and only) shots, when, in “truth,” Stonewall shot first.
{¶ 97} Hale‘s testimony at the May 2011 hearing is in direct conflict with Attorney Lonardo‘s testimony that he never told Hale to lie “in any way, shape, or form” or to otherwise “change his story” regarding what had occurred. Hale‘s May 2011 testimony also contradicted his own prior statements regarding the events leading up to Stonewall‘s shooting, including his statements to police in the April
{¶ 98} After reviewing the entire record, weighing the evidence and all reasonable inferences and considering the credibility of the witnesses, we cannot say that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that Hale‘s convictions and guilty findings were against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Hale‘s convictions and guilty findings were both supported by sufficient evidence and were not against the manifest weight of the evidence. Accordingly, Hale‘s first and second assignments of error are overruled.
{¶ 99} In his sixth and final assignment of error, Hale contends that the trial court “did not make the appropriate findings to justify a consecutive sentence.”
{¶ 100} In order to impose consecutive sentences, the trial court must find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public and (3) at least one of the following applies:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 101} The trial court must make the required statutory findings at the sentencing hearing and incorporate those findings into its sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. To make the requisite “findings” under the statute, “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has considered the statutory criteria and
{¶ 102} Hale does not identify the specific finding(s) which he contends the trial court failed to make or whether this alleged error occurred at the sentencing hearing or in the trial court‘s sentencing journal entry. However, the record reflects that the trial court conducted the necessary analysis and made the requisite findings for imposing consecutive sentences at the sentencing hearing. When sentencing Hale, the trial court expressly found that consecutive sentences were “necessary to protect the public from future crime” and “to punish” Hale,
{¶ 103} In its August 15, 2018 sentencing journal entry, however, although the trial court incorporated the findings it made at the sentencing hearing that consecutive sentences were necessary to protect the public from future crime and to
{¶ 104} A trial court cannot make findings in its sentencing journal entry that were not made at the sentencing hearing. However, this failure does not render the consecutive sentences contrary to law. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30 (“A trial court‘s inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making those findings at the sentencing hearing does not render the sentence contrary to law.“). It is simply a clerical mistake that can be corrected through a nunc pro tunc entry to reflect what actually occurred at the sentencing hearing. Id. Hale‘s sixth assignment of error is sustained in part and overruled in part.
{¶ 106} Judgment affirmed; remanded for the issuance of a nunc pro tunc order correcting the trial court‘s August 15, 2018 sentencing journal entry.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry out this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence and for the issuance of a nunc pro tunc sentencing journal entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
Notes
Hale, 2014-Ohio-3322, at ¶ 9.[I]n 2010, a trace evidence report was generated by the coroner‘s office following the examination of the victim. Contained in that report was a finding indicating that gunshot primer residue was detected on the victim‘s right hand. Despite discovery being requested by Hale, the defense did not receive this report. In fact, the record reveals that this report was not released to either the state or the defense until January 2011, the day prior to the start of the trial against Hale‘s codefendant. It is clear that the withholding of the report was inadvertent by the coroner‘s office, and not willful by the state.
Hale testified that this “story,” albeit untrue, was what he had told the probation officer had occurred. He stated that he got the “facts” for this “story,” such as the reference to a “cocaine” deal and a “nine-millimeter” weapon, from the “reports” he had read regarding the evidence the state had uncovered and what other witnesses had said had occurred.The defendant readily admits his guilt in the present offense and stated that he never intended to harm anyone. The defendant stated on the day of the offense, he received a call from co-defendant Jermael Burton. Jermael Burton asked the defendant to meet him, where he was attempting to sell cocaine to several males. The defendant stated Jermael Burton indicated he and the males were unable to agree on a price for the cocaine, and asked the defendant if he could mediate the transaction. The defendant stated he arrived on the scene and entered the back seat of a vehicle. Also inside the vehicle was the victim and two other males. The defendant stated at that point, the victim began to argue and “swear” at the defendant over the drug transaction. The defendant stated at that time, he observed the victim “reach for something.” The defendant stated he told the victim to stop the vehicle[;] however, the victim refused to do so. The defendant stated at that point, he opened the car door, and pulled out his own weapon, which he described as “9 mm.” The defendant stated he repeatedly “stopped the car,” and at that time observed the victim point a weapon at him. The defendant stated, “he panicked,” and fired two shots at the victim. The defendant stated he then exited the vehicle and fled the scene. The defendant stated he did not think he shot the victim, and added he had the weapon for his own protection, since he was employed “repo[‘]ing cars.” The defendant stated he never intended to harm anyone.
Let it be known:
1. Isiah Hale and Jermael Burton do not have adverse interests in this matter.
2. Mr. Burton faces no jeopardy in this matter as he was acquitted by virtue of a Rule 29 motion.
3. Mr. Burton offered no testimony in that trial.
4. I have sought and received legal advice regarding said potential conflict Code of Conduct Rule 1.9 governs and upon advice of counsel I feel confident and obligated to defendant and represent the interests of Mr. Hale.
Finally, 5. [sic] Mr. Hale waives any and all conflict of interest in this matter. Sworn this 31st day of July, 2018.