State v. HaynesState v. Haynes
Porter Wright Morris & Arthur L.L.P., W. Kelly Johnson, 250 East Fifth Street, Suite 2200, Cincinnati, Ohio 45202, for defendant-appellant
RINGLAND, J.
{¶1} Defendant-appellant, Courtney Haynes, appeals from his conviction in the Butler County Court of Common Pleas for one count of aggravated burglary and one count of rape. For the reasons outlined below, we affirm appellant‘s conviction, but reverse the sentence and remand for the limited purpose of resentencing.
{¶2} On the evening of May 20, 2010, L.P., a single mother living with her four-year old daughter in a Butler County apartment complex, awoke to find her bedroom lights on and
{¶3} Upon exiting her bedroom and noticing her daughter‘s bedroom door was closed, L.P. turned down the hallway when she was confronted by what she described as a “very large man, African American, close cropped hair wearing a dark t-shirt and very large, just large” who asked her if she was “Angela” and “if this was apartment number 304.” After telling the man that he was in the wrong apartment and demanding for him to leave, the man began to walk towards the open back patio door when he suddenly turned around, threw L.P. to the floor, and raped her. After the attack was complete, during which time L.P. struggled mightily, the man fled from the apartment through the back patio door and L.P. called the police.
{¶4} Once the police arrived, and after she was able to compose herself, L.P. informed the police that she “was very, very sure” her attacker was “the man [she] was having problems with previously,” which included, among other things, several confrontations regarding loud noise coming from his nearby apartment. Approximately 30 minutes later, after a police K-9 unit traced a recent scent from L.P.‘s back patio door to the front of appellant‘s apartment building, L.P. positively identified appellant, an African American male standing approximately six feet two inches tall and weighing 280 pounds, as the man who attacked her. Thereafter, appellant, who had a fresh scratch on his arm, was arrested and charged with one count of aggravated burglary and one count of rape, both first-degree felonies.
{¶5} On September 2, 2010, following a three-day jury trial, appellant was found guilty of both offenses. On October 18, 2010, the trial court held a sentencing hearing during
{¶6} Appellant now appeals from his conviction and sentence, raising three assignments of error for review.
{¶7} Assignment of Error No. 1:
{¶8} “THE DISTRICT [sic] COURT ERRED IN PERMITTING THE INTRODUCTION OF SUBSTANTIVE EVIDENCE THROUGH IMPEACHMENT.”
{¶9} In his first assignment of error, appellant initially argues that the trial court erred by permitting the state to introduce a prior inconsistent statement of its own witness, Rhonda Schmidt, appellant‘s girlfriend, “as substantive evidence of [his] guilt.” However, while he did object to the introduction of the prior inconsistent statement under
{¶10} Appellant also argues under his first assignment of error that the trial court erred by failing to provide the jury with a limiting instruction “on how they could use” Schmidt‘s prior inconsistent statement. Stated differently, appellant argues the trial court erred by not instructing the jury that Schmidt‘s prior inconsistent statement could be used only for impeachment purposes. Appellant, however, did not request the trial court to provide the jury with such an instruction, and therefore, he has waived this error on appeal. See
{¶11} That said, while appellant did not allege plain error, we nonetheless find that even if appellant had not waived these issues on appeal, neither of the alleged errors would constitute plain error. As this court has stated previously, “[n]otice of plain error must be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” State v. Clements, Butler App. No. CA2009-11-277, 2010-Ohio-4801, ¶7, citing State v. Long (1978), 53 Ohio St.2d 91, 95. An error does not rise to the level of plain error unless, but for the error, the outcome of the trial would have been different. State v. Krull, 154 Ohio App.3d 219, 2003-Ohio-4611, ¶38. A finding of harmless error, however, is appropriate where there is “overwhelming evidence of guilt” or “some other indicia that the error did not contribute to the conviction.” State v. Sims, Butler App. No. CA2007-11-300, 2009-Ohio-550, ¶34, quoting State v. Ferguson (1983), 5 Ohio St.3d 160, 166, fn. 5.
{¶12} Here, the state presented overwhelming evidence of appellant‘s guilt including, among other things, uncontroverted evidence that appellant sent L.P. an anonymous internet message containing a link to a lewd pornographic video showcasing a large African-American male engaged in sexual acts with a woman vaguely resembling the victim, that L.P. had specifically identified appellant as her attacker shortly after the rape and again at trial, and that appellant, who had a fresh scratch on his arm, left his apartment around the time of the attack only to hurriedly return and wash his hands, change his clothes, and leave with what appeared to be a trash bag containing clothing. The state also provided evidence indicating a K-9 unit tracked a recent scent from L.P.‘s back patio door to the front of appellant‘s nearby
{¶13} Assignment of Error No. 2:
{¶14} “APPELLANT HAYNES WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY THE FAILURE TO FILE A MOTION TO SUPPRESS AND REQUEST A LIMITING INSTRUCTION.”
{¶15} In his second assignment of error, appellant argues that he received ineffective assistance of trial counsel. In support of this claim, appellant raises two issues for review. For ease of discussion, we will address each issue separately.
{¶16} To prevail on his ineffective assistance of counsel claim, appellant must show that his trial counsel‘s performance fell below an objective standard of reasonableness and that he was prejudiced as a result. State v. Jones, 193 Ohio App.3d 400, 2011-Ohio-1717, ¶35; Strickland v. Washington (1984), 466 U.S. 668, 687-688, 693, 104 S.Ct. 2052. In order to demonstrate prejudice, appellant must establish, but for counsel‘s errors, a reasonable probability exists that the result of his trial would have been different. State v. Ritchie, Butler App. No. CA2008-12-304, 2009-Ohio-5280, ¶21, citing Strickland at 694. The failure to make an adequate showing on either prong is fatal to appellant‘s ineffective assistance of counsel claim. State v. Bell, Clermont App. No. CA2008-05-044, 2009-Ohio-2335, ¶77, citing Strickland at 697.
{¶17} Initially, appellant argues that he received ineffective assistance of trial counsel “when his trial counsel failed to move to suppress the improper and overly suggestive
{¶18} It is well-established that the “[f]ailure to file a suppression motion does not constitute per se ineffective assistance of counsel.” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, ¶208, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448. Rather, the failure to file a motion to suppress amounts to ineffective assistance of counsel “only when the record demonstrates that the motion would have been successful if made.” State v. Bullock, Clermont App. No. CA2005-04-031, 2006-Ohio-598, ¶19, citing State v. Robinson (1996), 108 Ohio App.3d 428, 433. In turn, even when some evidence in the record supports a motion to suppress, we presume trial counsel was effective if “the defense counsel could reasonably have decided that the filing of a motion to suppress would have been a futile act.” State v. Lamb, Butler App. Nos. CA2002-07-171, CA2002-08-192, 2003-Ohio-3870, ¶45, quoting State v. Martin (1983), 20 Ohio App.3d 172, 174.
{¶19} When a witness confronts a suspect before trial, such as the case here, due process requires a court to suppress the witness’ identification of the suspect where (1) the confrontation was unnecessarily suggestive of the suspect‘s guilt, and (2) the identification was unreliable under the totality of the circumstances. State v. Robinson, Fayette App. No. CA2009-02-004, 2009-Ohio-4937, ¶11; State v. Waddy (1992), 63 Ohio St.3d 424, 438. Generally, a confrontation is unnecessarily or unduly suggestive when the witness has been shown only one subject. Robinson, 2009-Ohio-4937 at ¶12, citing Manson v. Brathwaite (1977), 432 U.S. 98, 116, 97 S.Ct. 2243; State v. Hillman, Franklin App. Nos. 06AP-1230, 07AP-728, 2008-Ohio-2341, ¶47. However, because reliability is the linchpin in determining the admissibility of identification testimony, even if the identification procedures used were unnecessarily or unduly suggestive, there is no due process violation where the identification itself possesses sufficient aspects of reliability. State v. McDonald, Butler App. No. CA2009-09-240, 2010-Ohio-1521, ¶8; State v. Grays, Madison App. No. CA2001-02-007, at 5, 2001- Ohio-8679; State v. Sawyer (May 17, 1999), Butler App. No. CA98-07-140, at 3.
{¶20} “When determining the reliability of a witness’ identification, a court examines whether the identification was unreliable under the totality of the circumstances.” Lamb, 2003-Ohio-3870 at ¶50, citing State v. Poole (1996), 116 Ohio App.3d 513, 522. The factors considered relevant in making this determination include: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the sighting and the confrontation. State v. Stepp, Butler App. No. CA2007-05-117, 2008-Ohio-4305, ¶22, citing Neil v. Biggers (1972), 409 U.S. 188, 199, 93 S.Ct. 375; State v. Broom (1988), 40 Ohio St.3d 277, 284.
{¶21} In this case, although appellant was the only person presented to L.P. for her to identify, the identification itself shows significant aspects of reliability. Here, L.P. was clearly able to see her attacker as he pinned her down on the floor and raped her. Furthermore, L.P.‘s initial description of her attacker as a “very large” African-American male with “close cropped hair” who she had “problems with previously,” closely matches that of appellant. Moreover, when confronted with appellant a mere 30 minutes after the attack, L.P. immediately identified appellant as her attacker. In fact, when asked “how sure [she] was” when first confronting appellant, L.P. testified that she was “[o]ne hundred percent sure” that appellant was her attacker. Therefore, although the confrontation could be characterized as inherently suggestive, because L.P.‘s identification of appellant as her attacker shows significant aspects of reliability, we cannot say that identification procedure created a substantial likelihood of misidentification such that appellant‘s motion to suppress would have been granted. See, e.g., State v. Adkins, Cuyahoga App. No. 95279, 2011-Ohio-5149, ¶49; State v. Jennings, Mahoning App. No. 08-MA-181, 2009-Ohio-6536, ¶17; State v. Wilkerson, Franklin App. No. 01AP-1127, 2002-Ohio-5416, ¶57. Accordingly, appellant‘s first argument is overruled.
{¶22} Appellant also argues that he received ineffective assistance of trial counsel when his trial counsel “fail[ed] to request a limiting instruction from the court concerning the use of [Schmidt‘s prior inconsistent statement.]” However, similar to our findings under appellant‘s first assignment of error, even if we were to assume deficient performance, based on the overwhelming evidence of his guilt, appellant simply cannot show any resulting prejudice. Appellant‘s second argument, therefore, is overruled.
{¶23} Having found no merit to either argument advanced under this assignment of error, appellant‘s second assignment of error is overruled.
{¶24} Assignment of Error No. 3:
{¶25} “THE TRIAL COURT ERRED IN FAILING TO PROVIDE APPELLANT WITH HIS RIGHT TO ALLOCUTION.”
{¶26} In his third assignment of error, appellant argues that the trial court erred by denying him his right to allocution by “failing to address him personally and by failing to ask if he wished to make a statement on his own behalf or present information in mitigation at sentencing.” We agree.
{¶27} “The purpose of allocution is to permit the defendant to speak on his own behalf or present any information in mitigation of punishment.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, ¶85. Although not considered a constitutional right, “the right of allocution is firmly rooted in the common-law tradition.” State v. Copeland, Butler App. No. CA2007-02-039, 2007-Ohio-6168, ¶6, citing Green v. United States (1961), 365 U.S. 301, 304, 81 S.Ct. 653; State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, ¶100-103. This right is “both absolute and not subject to waiver due to a defendant‘s failure to object.” State v. Collier, Clark App. Nos. 2006 CA 102, 2006 CA 104, 2007-Ohio-6349, ¶92.
{¶29} At appellant‘s October 18, 2010 sentencing hearing, the following exchange occurred:
{¶30} “[THE STATE]: State of Ohio versus [appellant], CR-2010-06-0924. [Appellant] is here for sentencing, Your Honor. The victim and her family are here and do not wish to address the court, but just let the court know that they are here.
{¶31} “THE COURT: This case went to trial in front of a jury who rendered a verdict on the 2nd of September of guilty on count one, rape, F-1 and guilty on count two, aggravated burglary, F-1. I asked that a presentence investigation report be prepared. I have that. What would you like to bring to the court‘s attention?
{¶33} “And I think that – he knows he has to go to prison but we ask the court to take into consideration his lack of history whatsoever. I think he may want to address the court as well. I know he sent you a letter.
{¶34} “THE COURT: Yes, he did.
{¶35} “[APPELLANT‘S TRIAL COUNSEL]: And he would rest on that.”
{¶36} Following this exchange, the trial court, without personally addressing appellant, turned its attention to the state and the previously submitted victim impact statement. Thereafter, still without personally addressing appellant to determine if he wished to make a statement on his own behalf, the trial court classified appellant as a tier three sex offender, indicated that it had considered the necessary sentencing guidelines “and any other pertinent facts that the higher court has instructed the court to consider,” imposed fines of $700, and ordered appellant to serve a total of nine years in prison.
{¶37} After a thorough review of the record, it is clear that the trial court never personally addressed appellant asking if he wished to exercise his right to allocution. “The requirement of allocution is considered fulfilled when the conduct of the court clearly indicates to the defendant that he has a right to make a statement prior to the imposition of sentence.” State v. Harvey, Allen App. No. 1-09-48, 2010-Ohio-1627, ¶15, citing Defiance v. Cannon (1990), 70 Ohio App.3d 821, 828. Such is simply not the case here. The trial court,
{¶38} Despite this, the state claims the trial court‘s failure to personally address appellant at his sentencing hearing “was invited error and also harmless.” For ease of discussion, we will address each of the state‘s arguments separately.
{¶39} Initially, as it relates to its invited error claim, the state argues that the trial court‘s error was invited because “appellant‘s counsel informed the trial court that appellant ‘would rest’ on the letter he submitted to the court.” We disagree.
{¶40} Under the invited error doctrine, which is applied when defense counsel is “actively responsible” for the trial court‘s alleged error, a party is not entitled to take advantage of an error which he himself invited or induced the court to make. State v. Mansour, Butler App. No. CA2010-08-198, 2011-Ohio-4339, ¶33; Banks, 2007-Ohio-4968 at ¶12. In other words, “[t]he rule of invited error prohibits a party who induces error in the trial court from taking advantage of such error on appeal.” State v. Williams, Butler App. No. CA2006-03-067, 2007-Ohio-2699, ¶27.
{¶41} That said, nothing in the record convinces this court that the trial court was invited or induced into disregarding the clear and unambiguous requirements of allocution as mandated by
{¶42} As noted above, the right to allocution created by
{¶43} Next, as it relates to its harmless error claim, the state argues that the trial court‘s failure to personally address appellant prior to sentencing was harmless because “appellant did provide the trial court with an unsworn statement, his letter.” In support of its claim, the state relies on the Ohio Supreme Court‘s decision in State v. Reynolds, 80 Ohio St.3d 670, 1998-Ohio-171.
{¶44} In Reynolds, the Ohio Supreme Court found a trial court‘s failure to address the defendant prior to sentencing him to death was harmless where he had made an unsworn statement to the jury during the penalty phase of his capital murder trial, submitted a letter to the trial court prior to sentencing, and had his defense counsel make a statement on his behalf at the sentencing hearing. Id. at 684. In so holding, the court, after first noting that “the purpose of allocution is to permit the defendant to speak on his own behalf or present any information in mitigation of punishment,” found the defendant “had this opportunity in the penalty phase of the case when he presented evidence and made an unsworn statement.” Id.
{¶45} In this case, however, although he did submit a letter to the trial court prior to his sentencing hearing, and even though his trial counsel did make a statement on his behalf, unlike the defendant in Reynolds, appellant was never afforded the opportunity to “speak on
{¶46} Moreover, while a written statement oftentimes carries significantly more weight than an oral recitation of the same, it is simply “unfair to judge a defendant‘s mitigation plea on paper when he is entitled to make that plea in person to the court that is sentencing him.” Brown, 2006-Ohio-1796 at ¶13, citing State v. Spradin, Pike App. No. 04CA727, 2005-Ohio-4704, ¶10. Therefore, although a trial court‘s failure to personally address a defendant prior to sentencing certainly can amount to harmless error, such is not the case here. Accordingly, the state‘s second argument is overruled.
{¶47} In light of the foregoing, because we find the trial court‘s failure to address appellant personally by asking him if he wished to exercise his right to allocution as mandated by
{¶48} Judgment reversed as to sentencing only and remanded for resentencing. In all other respects, the trial court‘s judgment is affirmed.
POWELL, P.J., and HENDRICKSON, J., concur.