State of Ohio, Plaintiff-Appellee, v. Mario M. Harris, Defendant-Appellant.
No. 15AP-683 (C.P.C. No. 13CR-6289)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 14, 2016
2016-Ohio-3424
(REGULAR CALENDAR)
Rendered on June 14, 2016
On brief: Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.
On brief: Clark Law Office and Toki Michelle Clark, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{1} Defendant-appellant, Mario M. Harris, appeals from a judgment entry of the Franklin County Court of Common Pleas finding him guilty of one count of aggravated robbery, one count of aggravated murder, and one count of having a weapon while under disability, all with firearm specifications. For the following reasons, we affirm.
I. Facts and Procedural History
{2} By indictment filed November 26, 2013, plaintiff-appellee, State of Ohio, charged Harris with one count of aggravated robbery in violation of
{3} A jury trial on the aggravated robbery and aggravated murder charges commenced on November 18, 2014. Kyle Shipley, a firefighter paramedic with the Truro Township Fire Department in Reynoldsburg, testified that around 3:00 a.m. on November 7, 2013, he responded to a dispatch at the East Side Lounge, a night club located at 6115 E. Livingston Avenue. Upon arrival, Shipley found Monger lying on his side on the floor near the bar. Monger was unconscious and had no pulse, and Shipley testified he observed two gunshot wounds on Monger‘s chest and a third on Monger‘s upper thigh. Paramedics transported Monger to Grant Medical Center, where he later died.
{4} Tobias Collins, who worked as a club promoter at the East Side Lounge, testified that on the night of November 6, 2013 he was working with Monger to promote an event featuring an adult entertainer. The event attracted a large crowd, and Collins testified the night club had armed security guards present and officers from the Columbus Division of Police‘s gang unit were on the scene, which Collins characterized as typical for a large event at that particular club. Collins testified that Monger was responsible for collecting money from the dancers to turn in to his supervisors.
{5} Collins said the event was wrapping up and the crowd was dispersing around 2:50 a.m. on November 7, 2013, so the officers from the gang unit left the East Side Lounge, and Collins and Monger remained to close the club. A short time later, Collins exited the club with Monger and walked toward Monger‘s car. Collins testified that as Monger approached his driver‘s side door, a man emerged from behind the vehicle dressed in all black. Collins said the man had a tattoo on the left side of his face. Collins said the man approached Monger, said “give me everything you got,” and then started shooting. (Tr. Vol. II at 132.) Collins testified he heard three or four gunshots. After the gunshots, Collins said he and Monger ran back inside the club. When Monger got inside, he said “I am hit” before falling on the floor. (Tr. Vol. II at 137.) Collins testified he saw
{6} About one week after the shooting, police asked Collins to look at a photo array of possible suspects, and Collins identified Harris as the man he saw shoot Monger. Collins agreed that he testified at a prior hearing that he was 65 percent sure the person in the photo he identified was the shooter. At trial, however, Collins said he was 85 or 90 percent sure Harris was the shooter. Over Harris’ objection, the trial court allowed the state to introduce an audio recording of Collins’ photo array interview. On the audio recording, Collins said he identified Harris’ photo because he “remember[s] that face” and he “remember[s] it clearly.” (Tr. Vol. II at 222.)
{7} Nadine McClasky, a photographer hired to cover the event at the East Side Lounge on the November 6 and 7, 2013, testified that she waited until after closing time to leave the event that night. McClasky testified she exited the club at the same time as Monger and Collins and within ten seconds she heard three gun shots. McClasky said the shooter took off running, and she saw that he was wearing black sweat pants, a black hooded sweatshirt with the hood up, and a black knit cap. She thought the shooter had scratches or something “uneven” on his face, saying “it didn‘t seem like his face was of no disruptions.” (Tr. Vol. II at 276.) McClasky described the shooter as “a black male of average height and weight, which would be about five eight to five ten-ish, and roughly 165 to 185-ish.” (Tr. Vol. II at 286.) She also estimated he was younger than 30 years old. When police eventually obtained a warrant for Harris’ arrest, the warrant described Harris as a “[m]ale black” with the height and weight “[f]ive nine, 150,” and a date of birth of November 14, 1991. (Tr. Vol. III at 406-07.)
{8} After the shooting, McClasky ran back into the East Side Lounge with Monger. McClasky said she, along with two other people, performed CPR on Monger, and McClasky called 911. Defense counsel objected to the playing of portions of the 911 call it deemed hearsay, but the trial court overruled the objection and allowed the state to play the entire recording of the call. On the audio recording, McClasky tells the operator someone had been shot, the shooter was wearing a black hoodie, and he left in a four-door white Chevy Impala.
{10} Detective David Dennison of the Columbus Division of Police testified that in the course of his investigation of Monger‘s death, he directed other officers to collect evidence, process the scene, and take photographs. Detective Dennison obtained surveillance footage of the parking lot of the East Side Lounge, and the footage showed a man shoot Monger. During the course of the investigation, Detective Dennison said he received anonymous telephone tips in which the callers gave police Harris’ name as the shooter. The anonymous tips led police to create a photo array containing Harris’ picture. Detective Dennison testified he also used eyewitness descriptions of a white Chevy Impala leaving the scene to aid his investigation. Police received another anonymous phone tip that Harris’ girlfriend, Shamiqua Gordon, owned a white Chevy Impala.
{11} Detective Robert Vass of the Columbus Division of Police testified he works in the police department‘s gang unit. Detective Vass was patrolling the East Side Lounge during the early morning hours of November 7, 2013. He testified he saw Harris there during the promoted event, initially in the parking lot and then inside the club. Detective Vass testified Harris is a documented member of a gang known as the Deuce Deuce Bloods, also commonly known as the 22nd Street Bloods.
{12} Additionally, the state certified Detective Vass as an expert in gang and gang identification. The state played recordings of phone calls Harris made from jail while he was awaiting trial. Over defense counsel‘s objection, the state asked Detective Vass whether he could determine what the conversations generally were about. The state would play a portion of the phone call, and then Detective Vass would offer a summary of the conversation. In one of the phone calls, Harris tells the other person on the phone to tell “Meagan [to] come say she is a hundred percent sure that I did not have on all black and I left when she left.” (Tr. Vol. III at 513.) Harris further instructs the other caller to
{13} Meagan Sparks, a friend of Harris, testified she was at the East Side Lounge on November 6 and 7, 2013, and she saw Harris there wearing a Chicago Bulls jacket, a red and black scarf, and a red and black hat.
{14} At the conclusion of the trial, the jury returned guilty verdicts on the charges of aggravated robbery and aggravated murder, along with the accompanying specifications. The trial court, pursuant to bench trial, found Harris guilty of having a weapon while under disability with accompanying specification.
{15} On January 8, 2015, Harris filed a motion for new trial on the basis of newly discovered evidence. Harris argued he had evidence showing the identity of “the true assailant.” (Jan. 8, 2015 Def.‘s Mot. for New Trial.) The state filed a memorandum contra on February 5, 2015 opposing Harris’ motion for new trial. Following an evidentiary hearing, the trial court denied Harris’ motion for new trial in a June 4, 2015 decision and entry. The trial court then conducted a sentencing hearing on June 18, 2015 and sentenced Harris to an aggregate prison term of life without the possibility of parole. The trial court journalized Harris’ convictions and sentence in a June 19, 2015 judgment entry. Harris timely appeals.
II. Assignments of Error
{16} Harris assigns the following errors for our review:
- The verdict of guilty is not supported by legally sufficient evidence and is against the manifest weight of evidence.
- The trial court erred by imposing consecutive sentences pursuant to
R.C. 2929.14 . Also, the trial court issued a void and abusive sentence. - Trial counsel rendered ineffective assistance of counsel in violation of the 6th Amendment to the U.S. Constitution and Article I, Sections 10 & 16 of the Ohio Constitution.
A trial court errs when it allows the government to play an audio/video recording of a photo array. - A trial court commits error when it allows a testifying police officer to interpret an audio tape.
- The gang specification in the criminal indictment and sentencing is a first amendment constitutional right of assembly violation.
- The trial court erred in denying defendant-appellant‘s right for a new trial based on the discovery of new evidence.
III. First Assignment of Error – Sufficiency and Manifest Weight of the Evidence
{17} In his first assignment of error, Harris argues his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence.
A. Sufficiency of the Evidence
{18} Whether there is legally sufficient evidence to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy. Id. The relevant inquiry for an appellate court is whether the evidence presented, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime proven beyond a reasonable doubt. State v. Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37.
1. Aggravated Robbery and Aggravated Murder
{19} Harris was convicted of aggravated robbery in violation of
{20} Harris was also convicted of aggravated murder. Pursuant to
{21} The state presented testimony at trial from witnesses identifying Harris as the person who shot Monger while committing or attempting to commit an aggravated robbery against him. The witnesses described Harris as saying “give me everything you got” prior to opening fire. Both Collins and McClasky identified Harris from a photo array as the man they saw approach Monger in the parking lot, demand money from him, and then shoot him. There was no dispute that Monger died as a result of the gunshot wounds he sustained in the parking lot of the East Side Lounge. Collins and McClasky both testified to hearing several gunshots. The jury could conclude that, based on the witnesses’ testimony and from the surveillance footage of the incident, Harris acted purposely in causing Monger‘s death. A jury may consider the entire set of circumstances surrounding the shooting and infer the defendant‘s intent based on those facts. State v. Loughman, 10th Dist. No. 10AP-636, 2011-Ohio-1893, ¶ 47, citing State v. Grant, 67 Ohio St.3d 465, 478 (1993.) Therefore, there was sufficient evidence to support Harris’ convictions for aggravated robbery and aggravated murder.
2. Having a Weapon While Under Disability
{22} Additionally, Harris was convicted of having a weapon while under disability.
3. Specifications
{24} Harris’ convictions for aggravated robbery and aggravated murder also contained accompanying repeat violent offender specifications, gang specifications, and firearm specifications. Further, his having a weapon while under disability conviction contained a firearm specification. Again, Harris does not develop any argument with respect to the sufficiency of the evidence presented to find the specifications.
{25} Pursuant to
{26} “[T]his court has stated that ‘[i]f an indictment contains a repeat violent offender specification, it is the court that shall determine the issue of whether the offender is a [repeat violent offender].’ ” (Emphasis omitted.) State v. Samuel, 10th Dist. No. 11AP-158, 2011-Ohio-6821, ¶ 42, quoting State v. Brown, 10th Dist. No. 10AP-836, 2011-Ohio-3159, ¶ 16, citing
{28} Finally, the firearm specification in
{29} As the state notes, Harris does not challenge the sufficiency of the evidence with respect to any specific element of any of the charged offenses or specifications. Instead, Harris argues, without citation to authority, that the fact that detectives focused their investigation on Harris only after receiving an anonymous tip renders the evidence uncovered in the ensuing investigation insufficient to convict him of these crimes. We agree with the state that Harris’ argument is properly construed as a challenge to the weight of the evidence, and we will analyze it accordingly.
B. Manifest Weight of the Evidence
{30} When presented with a manifest weight argument, an appellate court engages in a limited weighing of the evidence to determine whether sufficient competent, credible evidence supports the jury‘s verdict. State v. Salinas, 10th Dist. No. 09AP-1201, 2010-Ohio-4738, ¶ 32, citing Thompkins at 387. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ’ “thirteenth juror” ’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). Determinations of credibility and weight of the testimony are
{31} An appellate court considering a manifest weight challenge “may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing Thompkins at 387. Appellate courts should reverse a conviction as being against the manifest weight of the evidence only in the most ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{32} As we noted above, Harris’ manifest weight argument centers on the anonymous tips that detectives initially relied on to build their case against Harris. Harris argues these tips somehow tainted the rest of the procedures used to gather evidence against him. However, Harris does not identify any authority indicating that an anonymous tip somehow renders subsequently gathered evidence invalid. Detective Dennison testified that police received anonymous tips regarding Harris’ involvement, and the jury was free to weigh that evidence in assessing the overall strength of the evidence presented by the state.
{33} Harris next argues the evidence identifying him as the perpetrator was against the manifest weight of the evidence. Specifically, Harris notes the lack of physical evidence connecting him to the crime, and he argues the witnesses who identified him in a photo array lacked credibility.
{34} “[A] lack of physical evidence, standing alone, does not render [a defendant‘s] conviction against the manifest weight of the evidence.” State v. Peeples, 10th Dist. No. 13AP-1026, 2014-Ohio-4064, ¶ 21, citing State v. Conner, 10th Dist. No. 12AP-698, 2013-Ohio-2773, ¶ 12, citing State v. Shedwick, 10th Dist. No. 11AP-709, 2012-Ohio-2270, ¶ 32. ” ‘If [witness] testimony is believed then the lack of fingerprints, DNA,
{35} Harris argues the witness identifications of his picture in the photo array lacked credibility, thus rendering his convictions against the manifest weight of the evidence. Though Collins testified at trial he was 85 or 90 percent certain Harris was the shooter, Collins also agreed he had testified in a previous proceeding that he was only 65 percent certain Harris was the shooter. Though Harris describes this as a reversal rendering Collins’ testimony lacking in credibility, Collins offered an explanation for his change, stating he has not been able to get the shooter‘s face out of his mind. Additionally, the state introduced the audio recording of Collins’ initial photo array interview in which he selected Harris’ photograph and stated he remembered Harris’ face clearly. As we noted above, the jury may take note of inconsistencies in a witness’ testimony and resolve them accordingly. Raver at ¶ 21. Additionally, McClasky separately identified Harris in a photo array and gave police a physical description of the shooter that matched Harris’ height, weight, and age. Detective Vass also testified he was at the East Side Lounge the evening of the shooting and that he saw Harris there.
{36} In addition to the eyewitness testimony identifying Harris, there was also evidence that the shooter fled the scene in a white Chevy Impala. Police learned through their investigation that Harris’ girlfriend drove a white Chevy Impala. This is circumstantial evidence corroborating the identification of Harris as the shooter. See State v. Diggs, 10th Dist. No. 14AP-18, 2014-Ohio-3340, ¶ 20 (noting circumstantial evidence can have the same probative value as direct evidence).
{37} Though Harris argues the jury should have placed more weight on Sparks’ testimony that Harris was wearing a red and black Chicago Bulls jacket on the night of the shooting, the jury also heard the jailhouse phone calls in which Harris repeatedly reminds the other caller that Sparks needed to testify that he was wearing red and black, thereby undermining the strength of Sparks’ testimony. Additionally, by Sparks’ own admission, she last saw Harris around 2:30 a.m. and the shooting did not occur until 3:00 a.m.,
{38} Considering all of this evidence together, we cannot say the jury clearly lost its way in concluding Harris was the individual who attempted to rob, and then shot and killed, Monger. After an independent review of the record, we find sufficient evidence to support Harris’ convictions, and Harris’ convictions are not against the manifest weight of the evidence. We overrule Harris’ first assignment of error.
IV. Second Assignment of Error – Sentencing
{39} In his second assignment of error, Harris argues the trial court erred in imposing consecutive sentences. Additionally, Harris asserts his sentence was void and abusive. We address each of these issues separately.
{40} An appellate court will not reverse a trial court‘s sentencing decision unless the evidence is clear and convincing that either the record does not support the sentence or that the sentence is contrary to law. State v. Chandler, 10th Dist. No. 04AP-895, 2005-Ohio-1961, ¶ 10, citing State v. Maxwell, 10th Dist. No. 02AP-1271, 2004-Ohio-5660, ¶ 27, citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, ¶ 10. See also State v. Marcum, Ohio St.3d __, 2016-Ohio-1002, ¶ 1 (“an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court‘s findings under relevant statutes or that the sentence is otherwise contrary to law“). ” ‘In determining whether a sentence is contrary to law, an appellate court reviews the record to determine whether the trial court considered the appropriate factors, made the required findings, gave the necessary reasons for its findings, and properly applied the statutory guidelines.’ ” Chandler at ¶ 10, quoting Maxwell at ¶ 27, citing State v. Altalla, 10th Dist. No. 03AP-1127, 2004-Ohio-4226, ¶ 7.
A. Merger for Purposes of Sentencing
{41} Harris first argues the trial court erred when it imposed consecutive sentences for his aggravated murder and aggravated robbery convictions. Harris argues those offenses should have merged for purposes of sentencing. “When the defendant‘s
{42} To determine whether two offenses are allied offenses that merge into a single conviction, a court must evaluate three separate factors: the conduct, the animus, and the import. Id. at paragraph one of the syllabus. “If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance – in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation.” Id. at ¶ 25. Ultimately, when the defendant‘s conduct constitutes offenses involving separate victims or if the harm resulting from each offense is separate and identifiable, the offenses are of dissimilar import and do not merge. Id.
{43} Here, Harris argues the offenses of aggravated robbery and aggravated murder were so linked as to constitute allied offenses of similar import. However, the Supreme Court of Ohio has concluded “aggravated murder, as defined in
{44} Harris next argues the trial court erred in imposing a sentence that is void and abusive. More specifically, Harris asserts the trial court erred in ordering the sentences for the gang specifications, repeat violent offender specifications, and firearm specifications to run consecutively rather than concurrently.
{45} The trial court sentenced Harris to 11 years on the aggravated robbery count consecutive to 3 years on the firearm specification and consecutive to 10 years on the repeat violent offender specification. On the aggravated murder count, the trial court sentenced Harris to life imprisonment without the possibility of parole consecutive to 3 years on the firearm specification. With respect to the having a weapon while under disability count, the trial court sentenced Harris to three years imprisonment consecutive to an additional 3-year sentence on the firearm specification. Further, the trial court directed the gang specifications attached to the aggravated murder and aggravated robbery counts shall be served concurrently with each other, consecutive to the aggravated murder and aggravated robbery counts, and consecutively to all specifications as to the aggravated robbery and aggravated murder counts. Harris argues the trial court erred in ordering the specifications to run consecutively rather than concurrently.
{46}
{47} Here, the trial court sentenced Harris to 11 years on the aggravated robbery charge, the maximum possible prison term. The trial court exercised its discretion in imposing the additional prison term on the repeat violent offender specification, and Harris does not articulate how the trial court abused its discretion in this regard. Thus, imposition of an additional prison term for the repeat violent offender specification to run
{48}
(a) Except as provided in division (B)(1)(e) of this section, if an offender who is convicted of or pleads guilty to a felony also is convicted of or pleads guilty to a specification of the type described in [R.C. 2941.141, 2941.144, or 2941.145], the court shall impose on the offender one of the following prison terms:
* * *
(ii) A prison term of three years if the specification is of the type described in [R.C. 2941.145] that charges the offender with having a firearm on or about the offender‘s person or under the offender‘s control while committing the offense and displaying the firearm, brandishing the firearm, indicating that the offender possessed the firearm, or using it to facilitate the offense;
* * *
(g) If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder * * * [or] aggravated robbery, * * * and if the offender is convicted of or pleads guilty to a specification of the type described in [R.C. 2929.14(B)(1)(a)] in connection with two or more of the felonies, the sentencing court **shall impose on the offender the prison term specified under [R.C. 2929.14(B)(1)(a)] for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty** and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.
(Emphasis added.)
{49} Here, Harris was convicted of three felonies, two of which were aggravated murder and aggravated robbery, and the firearm specifications were of the type listed in
{50}
{51} Before imposing consecutive sentences, a court must make certain findings.
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the
offender poses to the public, and if the court also finds any of the following: (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.
{52} Thus, pursuant to
{53} A trial court seeking to impose consecutive sentences must make the findings required by
{55} In this appeal, Harris does not allege the trial court did not make the findings required by
{56} Although we conclude the trial court made the necessary findings at the sentencing hearing to impose consecutive sentences, we note the trial court did not include its findings under
{57} Accordingly, the trial court‘s sentence with regard to the specifications was in accordance with law. We overrule Harris’ second assignment of error, but we remand this matter for the trial court to file a nunc pro tunc entry to correct the clerical mistake relating to its
V. Third Assignment of Error – Ineffective Assistance of Counsel
{58} In his third assignment of error, Harris argues he received ineffective assistance of counsel.
{59} In order to prevail on a claim of ineffective assistance of counsel, Harris must satisfy a two-prong test. First, he must demonstrate that his counsel‘s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong requires Harris to show that his counsel committed errors which were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. If Harris can so demonstrate, he must then establish that he was prejudiced by the deficient performance. Id. To show prejudice, Harris must establish there is a reasonable probability that, but for his counsel‘s errors, the result of the trial would have been different. A “reasonable probability” is one sufficient to undermine confidence in the outcome of the trial. Id. at 694.
{60} In considering claims of ineffective assistance of counsel, courts indulge in a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101. Harris contends his counsel was ineffective in failing to call its own expert witness to counter the expert testimony of Detective Vass.
{61} “Tactical or strategic trial decisions, even if ultimately unsuccessful, will not substantiate a claim of ineffective assistance of counsel.” State v. Ryan, 10th Dist. No. 08AP-481, 2009-Ohio-3235, ¶ 77, citing In re M.E.V., 10th Dist. No. 08AP-1097, 2009-Ohio-2408, ¶ 34. Generally, the decision to call a witness is a matter of trial strategy and, absent a showing of prejudice, does not deprive a defendant of the effective assistance of counsel. State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 40, citing State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, ¶ 90 (10th Dist.). “The failure to call an
{62} Harris asserts his own expert could have responded to Detective Vass’ testimony by explaining to the jury “how gang members conduct themselves, * * * how gang members are taught or threatened not to snitch, * * * and provide a host of other notable facts that could have gone a long way in explaining [Harris‘] actions.” (Harris’ Brief at 12.) However, Harris does not identify an actual expert witness by name, nor does he point to an affidavit or other evidence in the record indicating what his expert would have said had he or she testified at trial. Thus, Harris’ argument that his own expert would have helped his case is pure speculation. Roush at ¶ 41, citing State v. Williams, 10th Dist. No. 08AP-719, 2009-Ohio-3237, ¶ 35 (finding no evidence of prejudice resulting from trial counsel‘s failure to call a witness to testify where the defendant “did not submit an affidavit” from the witness, and the court did not know “the substance of [the witness‘] testimony,” thus rendering it “pure speculation to conclude that the result of appellant‘s trial would have been different had [the witness] testified“).
{63} Accordingly, because Harris does not identify an actual expert witness, much less provide an affidavit or other evidence as to what the expert witness would have said if he testified, we cannot find the absence of the hypothetical expert witness’ testimony prejudicially affected the outcome of Harris’ trial. Harris did not receive ineffective assistance of counsel, and we overrule Harris’ third assignment of error.
VI. Fourth Assignment of Error – Recording of Photo Array Identification
{64} In his fourth assignment of error, Harris argues the trial court abused its discretion when it permitted the state to play the recording of Collins’ photo array identification. More specifically, Harris asserts the recording of the photo array identification contained inadmissible hearsay. Generally, the admission or exclusion of evidence lies in the sound discretion of the trial court. State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 33, citing State v. Bartolomeo, 10th Dist. No. 08AP-969, 2009-Ohio-3086, ¶ 24. An abuse of discretion implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{66} Factors to consider in determining whether the circumstances demonstrate the reliability of the prior identification include ” ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.’ ” State v. Ingram, 10th Dist. No. 06AP-984, 2007-Ohio-7136, ¶ 70, quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
{67} Harris argues the recording of the session is unreliable because Collins testified at an earlier proceeding that he was only 65 percent sure he had identified the correct person but, by the time of trial, testified he was 85 or 90 percent positive in his identification of Harris. However, Collins states in the audio recording he “remember[s] that face” and “remember[s] it clearly.” He offered an explanation at trial for his change in certainty, testifying he has replayed the shooting in his mind and has been unable to get the image of Harris’ face out of his thoughts. Collins’ statement in the audio recording is that he remembers Harris’ face clearly, and the trial court did not abuse its discretion in determining the recording of the photo array did not constitute inadmissible hearsay. See Ingram at ¶ 73 (concluding witness’ pre-trial identification of defendant in a photo array did not constitute inadmissible hearsay).
{68} We overrule Harris’ fourth assignment of error.
VII. Fifth Assignment of Error – Interpretation of Audio Recording
{69} In his fifth assignment of error, Harris argues the trial court abused its discretion in allowing Detective Vass to testify regarding the jailhouse phone calls.
{71} Pursuant to Evid.R. 701, opinion testimony by a lay witness is admissible regarding those opinions or inferences which are “(1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Detective Vass testified he was familiar with Harris, his testimony was rationally based on his perception of Harris and the phone calls, and his testimony was helpful to a clear understanding of a determination of the facts regarding the content of the jailhouse phone calls. Thus, though Harris does not articulate a specific legal argument regarding the admissibility of Detective Vass’ testimony other than a broad allegation of the testimony being prejudicial, we conclude the testimony was admissible under Evid.R. 701. See, e.g., State v. Orlandi, 10th Dist. No. 05AP-917, 2006-Ohio-6039, ¶ 20 (concluding a police officer‘s lay opinion that a scar on a face was consistent with being kicked by the heel of a boot was admissible under Evid.R. 701 because it was rationally based on the perception of the witness).
{72} To the extent Harris argues Detective Vass’ testimony was needlessly duplicative of the actual audio recordings, we note Harris does not articulate or demonstrate any prejudice from the admission of the so-called duplicate evidence, nor does he challenge the admissibility of the recordings themselves. See, e.g., State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, ¶ 32 (noting an improper evidentiary admission is harmless error “when, after the tainted evidence is removed, the remaining evidence is overwhelming“).
VIII. Sixth Assignment of Error – Gang Specification
{74} In his sixth assignment of error, Harris argues the gang specification attached to the aggravated robbery and aggravated murder counts violates his First Amendment right to freedom of association. Harris did not raise this issue in the trial court. “A constitutional issue not raised at trial ‘need not be heard for the first time on appeal.’ ” State v. Douglas, 10th Dist. No. 09AP-111, 2009-Ohio-6659, ¶ 61, quoting State v. Awan, 22 Ohio St.3d 120 (1986), syllabus. We decline to address Harris’ constitutional argument regarding the gang specification because he failed to raise it in the trial court. Thus, we overrule Harris’ sixth assignment of error.
IX. Seventh Assignment of Error – Motion for New Trial
{75} In his seventh and final assignment of error, Harris argues the trial court abused its discretion in denying his
{76} The decision of whether to grant a new trial pursuant to
{77} A trial court may grant a new trial under
{78} In order to warrant the granting of a motion for new trial in a criminal case based on newly discovered evidence, the defendant must show that the new evidence “(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due
{79} Harris moved for a new trial on the basis of newly discovered evidence, alleging he had discovered the identity of the “true assailant,” someone he identified as Dino. In denying Harris’ motion for new trial, the trial court concluded Harris could not demonstrate that he could not, in the exercise of due diligence, have obtained this information prior to trial. Harris sought to introduce a recording allegedly of Dino‘s confession, but the trial court determined the recording could not be authenticated and contained inadmissible hearsay. However, even assuming for purposes of argument that the trial court should have considered the recorded confession, the trial court was within its discretion to deny the motion for new trial.
{80} As the trial court noted, even according to the affidavits of Harris’ own witnesses, the recording containing an alleged confession was available as early as April 2014, well before the November 2014 start of Harris’ trial. Though Harris asserts he did not pursue this evidence before trial because he did not want to be deemed a “snitch,” Harris does not point to any authority indicating his fear of being a “snitch” somehow obviates the requirement that he exercise due diligence before trial. (Harris’ Brief at 19.)
{81} Moreover, as the trial court noted, the evidence of a possible lead that Dino was the actual perpetrator is merely cumulative to the other evidence at trial. Detective Dennison testified that police investigated information regarding Dino but that the evidence led him to believe Harris was the correct suspect. The trial court also noted that Harris’ testimony lacked credibility as it largely conflicted with a recorded interview he gave to police regarding whether he was at the scene of the crime and had witnessed another perpetrator. See State v. Phillips, 10th Dist. No. 14AP-362, 2014-Ohio-4947, ¶ 27 (concluding trial court did not abuse its discretion in denying defendant‘s motion for new trial where the trial court gave specific reasons it did not find a witness credible).
{82} The trial court articulated detailed, rational bases for concluding Harris’ new evidence could have been discovered before trial in the exercise of due diligence, that it is merely cumulative, and that Harris lacked credibility as a witness. Having reviewed
X. Disposition
{83} Based on the foregoing reasons, the sufficiency of the evidence and the manifest weight of the evidence support Harris’ convictions, and Harris did not receive ineffective assistance of counsel. Additionally, the trial court did not err in not merging Harris’ convictions of aggravated murder and aggravated robbery, the trial court did not err in imposing consecutive sentences, the trial court did not abuse its discretion in making its evidentiary rulings or in denying Harris’ motion for new trial, and we decline to address Harris’ constitutional argument. However, we must remand this matter for the trial court to correct the clerical error regarding its
**Judgment affirmed; cause remanded with instructions.**
DORRIAN, P.J., and SADLER, J., concur.