STATE OF OHIO v. DESHANON HAYWOOD
C.A. No. 28040
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Dated: October 25, 2017
2017-Ohio-8299
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nо. CR 2013 05 1404 (A)
CARR, Judge.
{¶1} Defendant-Appellant, Deshanon Haywood, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} During the early morning hours of April 18, 2013, four people were murdered in the basement of an apartment on Kimlyn Circle in Akron. R.R., one of the victims, resided at the apartment and had received a sizeable amount of heroin the night before his murder. The three other victims found alongside him were K.W., his girlfriend; M.N., a female friend of K.W.; and K.D., a male friend of R.R.’s. The police found the apartment in disarray when they arrived on scene and suspected that the victims were killed during the course of a robbery and/or burglary. When the police obtained R.R.’s cell phone records, they learned that Haywood was the last person to call R.R. and brought him in for questioning. The police then later examined Haywood’s cell phone records and learned that Haywood had received incriminating messages
{¶3} A grand jury indicted Haywoоd on: (1) four counts of aggravated murder; (2) four counts of aggravated felony murder with aggravated robbery as the predicate offense; (3) four counts of aggravated felony murder with kidnapping as the predicate offense; (4) one count of aggravated felony murder with aggravated burglary as the predicate offense; (5) four counts of aggravated robbery; (6) four counts of kidnapping; (7) one count of aggravated burglary; and (8) one count of having a weapon under disability. With the exception of the having a weapon under disability count, each of Haywood’s counts also contained an attendant firearm specification. Additionally, all of his aggravated murder and aggravated felony murder counts contained four attendant capital specifications. Following a lengthy period of motion practice, the matter was set for trial.
{¶4} The same trial judge initially presided over Haywood’s and Brantley’s cases. Brantley’s trial occurred first, and a jury found him guilty. The mitigation phase of his trial ended a few weeks before Haywood’s trial was set to begin, and his jury recommended life without the possibility of parole. Follоwing that recommendation, the trial judge questioned whether the State ought to pursue the death penalty against Haywood. The judge spoke with the victims’ families about the death penalty and then spoke with several prosecutors in chambers, wherein she asked them to dismiss the capital specifications. She also later contacted the Chief Counsel of the prosecutor’s office and encouraged him to dismiss the capital specifications. Nevertheless, the State decided to pursue the death penalty against Haywood.
{¶6} Once the panel was selected, the State asked the trial judge not to swear in the jury. The State requested a brief delay to research its options and, possibly, to file an affidavit of disqualification. Although the trial judge strongly opposed a delay in the proceedings, she agreed to the delay after the State expressed its concern that swearing in the jury would cause jeopardy to attach. She concluded the day’s proceedings without swearing in the jury, and, the following day, the State filed an affidavit of disqualification. The trial judge then sent the jury home until the issue of her disqualification could be resolved.
{¶7} The trial judge ultimately recused herself from the proceedings, and a new trial judge was appointed. The State then filed a motion to quash the jury venire based on the fact that the first judge’s biased rulings had tainted the selection process. Haywood responded in opposition, but the court later granted the Stаte’s request to quash the venire. Consequently, jury selection began anew.
{¶8} Haywood’s trial went forward with a new jury and resulted in guilty verdicts. Sentencing did not occur, however, because Haywood filed a motion for a new trial. It was his
{¶9} There is no dispute that the State prosecuted Haywood based on a theory of complicity. At the conclusion of his retrial, the jury found him guilty of (1) complicity to commit the aggravated felony murders of M.N. and K.W., based on the predicate offenses of aggravated robbery, kidnapping, and aggravated burglary; (2) complicity to commit the aggravated robbery of R.R.; (3) complicity to commit the kidnappings of M.N. and K.W.;1 and (4) five capital specifications pеrtaining to M.N. and K.W. Haywood was found not guilty on each of his remaining counts and specifications, and the jury later recommended that he receive life in prison with the possibility of parole. The court sentenced him to life in prison with the possibility of parole after 35 years.
{¶10} Haywood now appeals from his convictions and raises ten assignments of error for our review. For ease of analysis, we rearrange and consolidate several of the assignments of error.
II.
ASSIGNMENT OF ERROR I
PROSECUTORIAL MISCONDUCT DEPRIVED DESHANON HAYWOOD OF HIS DUE-PROCESS, FAIR-TRIAL, AND DOUBLE-JEOPARDY RIGHTS.
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT QUASHED THE FIRST DEATH-QUALIFIED AND LAWFULLY-SELECTED JURY.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DELAYED IMPANELING THE FIRST DEATH-QUALIFIED AND LAWFULLY-SELECTED JURY.
{¶11} Haywood’s first three assignments of error all stem from his assertion that this matter ought to have been heard by the first jury that the parties selected. He argues that the first trial judge abused her discretion when she agreed to delay impaneling that jury. He also argues that the second trial judge abused his discretion when he quashed the first jury without a sound reason for doing so and without considering reasonable alternatives. Finally, he argues that the State engaged in misconduct when it raised unsupported claims of judicial bias and secured the first jury’s dismissal. Haywood asks this Court to vacate his convictions and bar his retrial based on violations of his due process and double jeopаrdy rights. For the reasons that follow, we reject Haywood’s arguments.
{¶12} “A trial court may order a mistrial where some intervening error prejudicially affects the merits of the case and the substantive rights of one or both of the parties.” State v. Sutton, 9th Dist. Medina Nos. 2066, 2067, 1992 Ohio App. LEXIS 2916, *6 (June 3, 1992). Mistrials may be declared during trial or during jury selection, prior to the jury being sworn in. Id. at *5, fn.1. See also State v. Stambaugh, 2d Dist. Miami No. 2008 CA 42, 2009-Ohio-7050, ¶ 7-46.
[A] trial judge is in the best position to determine whether the situation in [the] courtroom warrants the declaration of a mistrial. In examining the trial judge’s exercise of discretion in declaring a mistrial, a balancing test is utilized, in which the defendant’s right to have the charges decided by a particular tribunal is weighed against society’s interest in the efficient dispatch of justice. “[A]
defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 (1949). Where the facts of the case do not reflect unfairness to the accused, the public interest in insuring that justice is served may take precedence.
(Internal citations and ellipses omitted.) State v. Glover, 35 Ohio St.3d 18, 19 (1988). Because the decision to grant or deny a mistrial lies in a trial court’s sound discretion, this Court reviews that decision for an abuse of discretiоn. State v. Dickerson, 9th Dist. Summit No. 22536, 2005-Ohio-5499, ¶ 6.
{¶13} When a trial court acts within its discretion in declaring a mistrial, the Double Jeopardy Clause generally will not bar a retrial. Glover at 21. An exception exists and retrial is barred where “the judge’s action was instigated by prosecutorial misconduct designed to provoke [the] mistrial * * *.” Id. In those instances, the Double Jeopardy Clause will not permit a retrial. State v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, ¶ 32, quoting Glover at syllabus. Yet, jeopardy does not attach in a jury trial “until the jury is impaneled and sworn.” State v. Gustafson, 76 Ohio St.3d 425, 435 (1996).
{¶14} The record reflects that Haywood’s first jury was not impaneled after voir dire because the first trial judge granted the State’s request for a delay in the proceedings. The first trial judge did not declare a mistrial at that point, but simply agreed to preserve the status quo for an evening while the State conducted research and decided whether to file an affidavit of disqualification. In essence, the trial court granted the State’s motion for a brief continuance. Haywood argues that it was unreasonable for the court to do so because the State did not have a legitimate basis to request the delay.
the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case.
State v. Unger, 67 Ohio St.2d 65, 67-68 (1981). The court must balance “‘any potential prejudice to a [party against] concerns such as a court’s right to control its own docket and the public’s interest in the prompt and efficient dispatch of justice.‘” (Alteration sic.) State v. Sauto, 9th Dist. Summit No. 26404, 2013-Ohio-1320, ¶ 17, quoting In re C. G., 9th Dist. Summit No. 26506, 2012-Ohio-5999, ¶ 8, quoting Unger at 67.
{¶16} Upon review, we cannot conclude that the first trial judge abused her discretion when she granted the State’s request for a continuance. The record reflects that the State sought one very brief delay for the purpose of deciding whether to file an affidavit of disqualification. As support for its request, the State specifically noted its concern that the judge (1) had not allowed it to strike a juror who was morally opposed the death penalty, and (2) had encouraged prosecutors, on two separate occasions, to dismiss the capital specifications against Haywood. The State also specifically noted its concern that its options for redress might be limited if the jury was sworn in and jeopardy was allowed to attach. By affording the State a continuance, the first trial judge gave the State an opportunity to file its affidavit and stay the proceedings so that its concerns could be addressed before the matter proceeded any further. See
{¶17} Because the first trial court judge recused herself before the Chief Justice ruled on the State’s affidavit of disqualification, there was never a determination made regarding her alleged bias. Following her recusal, however, the State maintained that her bias had tainted the jury selection process. The State asked the second trial judge to quash the jury that had been selected, and Haywood opposed the State’s motion. The second trial judge did not adopt the State’s rationale, but ultimately agreed to quash the jury based on the “untenable position” in which he had been placed. The second trial judge found that he lacked jurisdiction to decide his colleague’s alleged bias and, likewise, to judge “as an appellate reviewer” whether she had made appropriate decisions during the jury selection process. Nevertheless, he found that “the integrity of the judicial system” would be placed in jeopardy if he were to proceed with the trial when the case was “so potentially clouded in error.” He decided “under these extraordinary circumstances” to err on the side of caution and order the jury selection process to start anew.
{¶18} Haywоod argues that the State engaged in misconduct by essentially goading the trial court into declaring a mistrial and quashing the first jury. He argues that the bias claims the State raised were meritless and were asserted strictly to avoid trying the case before a jury it found unfavorable. On a related note, he argues that the second trial judge abused his discretion when he quashed the first jury based on the State’s meritless allegations. He asserts that the court failed to undertake a sound reasoning process or to consider reasonable alternatives such as reconfirming the jury in question or replacing Juror 18 with an alternate juror.
{¶20} Much of Haywood’s argument is premised on his assertion that the State “fabricated” allegations of judicial bias in this matter. We note that our review of his argument is somewhat hampered because we lack jurisdiction “‘to determine a claim that a common pleas judge is biased or prejudiced.‘” Wilburn v. Wilburn, 169 Ohio App.3d 415, 2006-Ohio-5820, ¶ 10 (9th Dist.), quoting Jones v. Billingham, 105 Ohio App.3d 8, 11 (2d Dist.1995). As noted below, the authority to make that determination rests exclusively with the Chief Justice. See State v. O’Neal, 9th Dist. Medina No. 06CA0056-M, 2008-Ohio-1325, ¶ 15. This Court, therefore, cannot determine whether the first trial judge in this matter was, in fact, biased. Our review is limited to a determination of whether the State engaged in misconduct when it asked the first trial judge not to impanel the jury, filed an affidavit of disqualification, and later moved to quash the jury.
{¶21} The record does not support Haywood’s assertion that the State’s actions amounted to an attempt to manipulate the proceedings. Regardless of whether the first trial judge was actually biased, the conduct underlying the State’s allegations against her is a matter of record. There is no evidence that the State accused the first trial judge of conduct that she did not, in fact, commit. Nor is there evidence that the State’s actions amounted to tactical scheming. For instance, the State did not seek repeated continuances, wait until the trial had
{¶22} Finally, we cannot conclude that the second trial judge abused his discretion when he quashed the first jury and essentially entered a mistrial in this matter. See Sutton, 1992 Ohio App. LEXIS 2916, at *6. As noted, “‘[a] defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.‘” Glover, 35 Ohio St.3d at 19, quoting Wade, 336 U.S. at 689. The second trial judge was in the best position to determine that these proceedings were “so potentially clouded in error” that a fair trial before the first jury would have been impossible. See Glover at 19. Although Haywood claims that the second trial judge failed to consider reasonable alternatives before announcing his decision, the record reflects that the judge spoke with the parties about other alternatives before issuing his ruling. Indeed, the judge specifically inquired why it would not be sufficient to simply strike Juror 18 from the panel and replace him with one of the alternates. The State responded in writing and explained in detail how the first judge’s ruling affected the use of its peremptory challenges and caused it to augment its strategy in the selection process. In choosing not to either reconfirm Juror 18 or replace him with an alternate, the second trial judge avoided serious questions about the effects of the first trial judge’s rulings. “The trial court, in its discretion, could properly dismiss the venire and, on the
ASSIGNMENT OF ERROR IV
THE VOLUNTARY JUDICIAL RECUSAL WAS AN ABUSE OF DISCRETION.
{¶23} In his fourth assignmеnt of error, Haywood argues that the first trial judge in this matter abused her discretion when she voluntarily recused herself from the proceedings following allegations of bias. This Court, however, “is without authority to review a matter involving the disqualification of a judge.” O’Neal, 2008-Ohio-1325, at ¶ 15. “Matters of disqualification of trial judges lie within the exclusive jurisdiction of the chief justice of the Supreme Court of Ohio and [her] designees.” Id. Accord Dennie v. Hurst Const., Inc., 9th Dist. Lorain No. 06CA009055, 2008-Ohio-6350, ¶ 15-16; State v. Smith, 9th Dist. Lorain No. 98CA007169, 2000 Ohio App. LEXIS, *7 (Mar. 15, 2000) (court of appeals lacks authority to review recusal decisions). Consequently, this Court cannot address the merits of Haywood’s fourth assignment of error.
ASSIGNMENT OF ERROR VI
DESHANON HAYWOOD’S CONSTITUTIONAL RIGHTS TO COUNSEL AND AGAINST SELF-INCRIMINATION WERE VIOLATED WHEN THE TRIAL COURT ADMITTED HIS IN CUSTODY, NON-MIRANDIZED STATEMENTS.
{¶25} It is undisputed that, early in their investigation, the police identified Haywood as a person of interest and interviewed him while he was in jail on an unrelated matter. At no point during the interview did the police Mirandize him. According to Haywood, his rights were violated when the trial court admitted his “in custody, non-Mirandized statements.” Yet, he “has not identified the statements which he beliеves were obtained in violation of his rights and has not pointed to the portions of the record on which [his] assignment of error is based.” State v. Tuck, 146 Ohio App.3d 505, 510 (9th Dist.2001). His brief only addresses the question of custodial interrogation; not any prejudice that ensued as a result of his having made certain, inculpatory statements. Because Haywood has not pointed this Court to any inculpatory statements or explained how the court’s ruling prejudiced him, this Court will not address his argument that he was subjected to custodial interrogation. See State v. Jenkins, 9th Dist. Lorain No. 15CA010826, 2016-Ohio-5190, ¶ 14; Tuck at 510. Haywood’s sixth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED IN DENYING DESHANON HAYWOOD’S CRIM.R. 29 MOTION FOR ACQUITTAL, AND VIOLATED HIS DUE-PROCESS AND FAIR-TRIAL RIGHTS WHEN IT ENTERED CONVICTIONS IN THE ABSENCE OF SUFFICIENT EVIDENCE.
{¶26} In his fifth assignment of error, Haywood argues that the trial court erred by denying his
{¶27}
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment * * * if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case.
When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus.
{¶28} Relevant to this appeal, a person commits aggravated felony murder when he “purposely cause[s] the death of another * * * while committing or attempting to commit, or while fleeing immediately after committing or attеmpting to commit, kidnapping, * * * aggravated robbery, * * * [or] aggravated burglary * * *.”
by force, stealth, or deception, [] trespass[es] in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another; [or] * * * has a deadly weapon or dangerous ordnance on or about [his] pеrson or under [his] control.
{¶29} “[A] defendant charged with an offense may be convicted of that offense upon proof that he was complicit in its commission * * *.” State v. Herring, 94 Ohio St.3d 246, 251 (2002). For a person to be convicted of complicity by aiding and abetting another in a crime, “the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime * * *.” State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. “The criminal intent of the aider and abettor ‘can be inferred from the presence, companionship, and conduct of the defendant before and after the offense is committed.‘” State v. Smith, 9th Dist. Summit No. 25650, 2012-Ohio-794, ¶ 7, quoting In re T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, ¶ 13. “As with proof of any element of an offense, complicity may be proved by circumstantial evidence, which has the same probative value as direct evidence.” Smith at ¶ 7.
{¶30} I.L. testified that he was good friends with R.R., one of the victims in this matter, and that R.R. went by the nickname “Dutch.” R.R. lived in a townhouse-style apartment on Kimlyn Circle along with his girlfriend K.W., another one of the victims in this matter. I.L. testified that he went to the apartment on the evening of April 17, 2013, to spend time with R.R.
{¶31} I.L. testified that R.R. was enjoying increasing success as a dealer around the time of his murder. Though I.L. supplied R.R. with a sizeable amount of heroin, he stated that R.R.’s increasing success caused him concern because he feared that someone might try to rob R.R. I.L. testified that, a few days before the murders, he gave R.R. a .40 caliber handgun for protection. Not until after R.R.’s murder did I.L. learn that R.R. was touting his success on social media. The pictures R.R. posted showed him holding substantial amounts of money, and at least one depicted him with I.L.’s handgun tucked into his waistband.
{¶32} I.L. testified that he and R.R. spoke to each other daily. When he tried to call R.R. the next day, however, someone else answered R.R.’s cell phone. I.L. then hung up and tried again, but another stranger answered. At that point, I.L. became concerned and askеd his wife to drive him over to R.R.’s apartment. Once there, he found the front door to the apartment open and items strewn about inside. He stated that there were “[c]lothes, shoes, shoeboxes, [and] things everywhere” and that the apartment had not looked that way when he was there the previous evening. I.L. found a bullet casing on the floor in the living room and continued to walk around the apartment until he noticed that the door to the basement was open. He then peeked down the stairs and saw someone’s leg at the bottom. In the basement, I.L. found R.R.’s body along with three other bodies. He testified that he recognized K.W. and K.D., a friend of
{¶33} A.T. testified that he was at R.R.’s apartment on the evening of April 17th, along with I.L. and several other individuals. He acknowledged that he was a drug dealer at the time and knew that R.R. sold drugs out of his apartment. He maintained, however, that he did not see any drug transactions that evening and, at the time, did not know about the 100 grams of herоin that I.L. bought. A.T. estimated that he spent about an hour or less at R.R.’s apartment before he decided to drive to a nearby dancing club for a few drinks. He testified that he went by himself and stayed for a drink or two before leaving and driving to a different dancing club down the street. He stated that both K.W. and M.N. worked as dancers at the second club and happened to be there that evening.
{¶34} While at the second club, A.T. saw K.R.W., another friend whom he had not seen for some time. He testified that he and K.R.W. shared a few drinks over the course of an hour and that K.W. and M.N. joined them. Eventually, the four decided to go to a restaurant together. A.T. testified that he drove the two women while K.R.W. rode separately in a cab. The group went to a restaurant in Akron where they shared a meal. They paid their bill at 1:40 a.m. on April 18th, as evidenced by a timestamped photograph the State procured from the security footage at the restaurant. After they did so, A.T. drove all four of them to M.N.’s apartment in East Akron.
{¶35} A.T. testified that although K.W. was R.R.’s girlfriend he also had a sexual relationship with her. He testified that, after they arrived at M.N.’s apartment and relaxed a bit, he had sex with K.W. while K.R.W. had sex with M.N. Afterwards, the group relaxed a bit more before A.T. decided to leave. A.T. testified that he offered to drive K.W. home and that she
{¶36} Not long after A.T. arrived home, K.W. called his cell phone. He testified that K.W. wanted him to drive back to R.R.’s apartment because she and M.N. could not get inside. A.T. did not leave his home, but spoke with K.W. twice more on the phone. He testified that K.W. described not being able to get inside because Dutch (i.e., R.R.) was “playing” and “act[ing] like he [could not] open the door.” The State then asked A.T. whether he had previously testified under oath that it was either Dutch or “Dougie” that K.W. said she saw inside. A.T. eventually agreed that he had testified to that effect, and numerous other witnesses identified Haywood as “Dougie.” The State produced evidence that the phone calls between A.T. and K.W. took place at 3:37 a.m., 3:40 a.m., and 3:46 a.m. on April 18th.
{¶37} K.R.W. also testified at trial and confirmed that he spent the evening of April 17th and the early morning hours of April 18th with A.T., K.W., and M.N. Much like A.T., he described how the group unexpectedly met at a dancing club before eating together at a restaurant and going to M.N.’s apartment. He confirmed that he had sex with M.N. at her apartment while A.T. had sex with K.W. He also confirmed that A.T. and the women later dropped him off to meet his cab. K.R.W. testified that he did not speak with A.T. again until the next day when A.T. called. On the phone, A.T. told him that “everybody was dead; they killed the girls and [R.R.] and [K.D.].” A.T. also later told K.R.W. that he had spoken with K.W. after driving her to R.R.’s apartment. According to K.R.W., A.T. told him that K.W. “said she seen either Dutch or Dougie running around” inside the apartment. He specified that he spoke with
{¶38} The State set forth evidence that Haywood called a man named D.W. during the late evening hours of April 17th and the early morning hours of April 18th. D.W. testified that he was very close with Haywood and also a blood relative of Haywood’s significant other. He stated that he was at home when Haywood called and asked him to follow Haywood to an undisclosed location. D.W. acknowledged that he was a drug dealer at the time and that it was not unusual for him to accompany Haywood on trips. He also acknowledged that the car he was driving at the time was not his own, but belonged to a drug user who had loaned it to him in exchange for heroin. D.W. testified that Haywood arrived at his house not long after his phone call and had Brantley in the passenger’s seat of his car. D.W. confirmed that he had known Brantley for a long time and was aware that he had a reputation for being a “hothead” as well as for carrying a gun. After Haywood and Brantley arrived, the three departed, with D.W. following behind Haywood’s car. D.W. testified that he ultimately parked on Gurley Avenue at Brantley’s direction.
{¶39} D.W. testified that he parked his car towards Kimlyn Circle and waited there for a long time while Brantley and Haywood left on foot. During that time, D.W. made and received several phone calls and tеxt messages. The State produced D.W.’s phone records as part of its case-in-chief and the records show that D.W.: (1) received calls from Haywood’s cell phone at 12:11 a.m. and 1:42 a.m.; (2) called Haywood’s cell phone at 1:27 a.m., 2:45 a.m., and 2:47 a.m.; (3) received multiple messages and calls from Haywood’s significant other between 11:47 p.m. and 2:46 a.m.; (4) received phone calls from two different cell phone numbers linked to Brantley
{¶40} D.W. testified that his cousin, Haywood’s significant other, called him several times that evening because she was trying to locate Haywood. He stated that he attempted to call Haywood to tell him that she was looking for him, but never actually succeeded in reaching Haywood when he called. Meanwhile, he indicated that he spoke with Brantley because Brantley called to check that he was still parked outside. D.W. testified that he could not recall speaking with Brantley more than once, although his phone records showed multiple calls between his and Brantley’s cell phones.
{¶41} D.W. stated that he eventually saw Haywood and Brantley making their way back to his car at a “fast pace walk.” He could not recall what time they returned, but stated that the sun had not yet risen. Once they reached D.W.’s car, Brantley sat down in the front passenger’s seat and Haywood sat down in the back. D.W. noticed that Brantley was carrying a bag containing a white substance and was attempting to cover the bag with a t-shirt. The appearance of the substance was consistent with heroin or possibly cocaine, and D.W. estimated that the amount he saw would be worth a few thousand dollars. According to D.W., after Brantley was seated inside the car, he stated that he had “double back[ed]” to “make sure the people was dead” and that he would “take it tо his grave.” D.W. testified that neither he, nor Haywood responded
{¶42} The State produced a significant amount of testimony in this case from analysts who examined the cell phone records of Haywood, the victims, and many of the individuals who testified. Detective Guy Sheffield examined R.R.’s cell phone and testified that Haywood’s cell phone number was saved in its contacts list. He stated that R.R.’s cell phone contained instant messages to and from Haywood’s cell phone, dating from February 2013 through April 2013. Within those messages, the two made plans to meet at R.R.’s apartment on Kimlyn Circle and discussed various drug transactions. Detective Sheffield testified that the last stored contact between the two phones took place on April 18th when Haywood’s phone called R.R.’s phone at 1:10 a.m.
{¶43} Detective Moledor examined Haywood’s cell phone records for content as well as to plot the general location of the phone at the times various calls were either made or received. He testified that сalls Haywood’s phone made at 1:47 a.m. and 5:01 a.m. were routed through a cell phone tower that served the area around R.R.’s apartment. In between that time period, Haywood’s phone received multiple calls and text messages, but the phone was turned off. Detective Moledor was able to conclude the phone was off because it did not download all of the text messages it received during that timeframe until 5:02 a.m., meaning that the device was turned back on at that point. Though Haywood’s phone was turned off during that time frame, Moledor testified that he received two particular messages of interest. The first message, sent at 2:10 a.m. from Brantley’s phone, read: “kill both these n**gas.” The second message, sent at 2:48 a.m. from Brantley’s phone read: “I’m bout to shoot Dutch go get da s*** and then I’m gonna kill both des n**gas but u got to hurry up so we can get up out of here.”
{¶45} Detective Moledor also examined Brantley‘s cell phones as part of his investigation. He testified that calls Brantley‘s phones made between 1:49 a.m. and 4:15 a.m. were routed through a cell phone tower that served the area around R.R.‘s apartment. He confirmed that several of those calls were made to or received from the phone number associated with D.W. He also noted that one of the calls that appeared in Brantley‘s phone records, which occurred at 2:54 a.m., took place between Brantley‘s two cell phones. That is, one of the cell phones called the other cell phone. Detective Moledor testified that Brantley received a call from Haywood‘s cell phone at 5:01 a.m. and that call evidenced the fact that Brantley‘s phone was no longer located in the area of the crime scene. He further testified that, later that same day, Brantley‘s cell phone received a picture message from Haywood‘s cell phone. The picture was a screen shot image of an Akron Beacon Journal article about the murders.
{¶46} Dr. Dorothy Dean, the Deputy Medical Examiner for Summit County, autopsied all four of the victims in this matter. She testified that the victims suffered from a number of gunshot wounds, but did not have any other visible injuries. Dr. Dean estimated that the victims
{¶47} Detective Anna Romito, a member of the crime scene unit, testified regarding certain items that the police found at R.R.‘s apartment. A shoebox that was located near the basement door contained a small baggy with 1.32 grams of heroin inside it. Another shoebox that the police found on the kitchen counter contained a digital scale and small paring knife while a sandwich bag box that the police found nearby contained a small baggy with .98 grams of heroin inside it. Detective Romito testified that the cabinets in the kitchen were found open and the counter was littered with a variety of items. She stated that other items werе also strewn about the apartment and its appearance was consistent with the appearance of burglarized homes she had seen throughout her career. She testified that the police were able to find a fingerprint on the shoebox from the kitchen counter, and a forensic analyst later testified that the fingerprint matched Haywood‘s left thumbprint.
{¶49} The State produced evidence that Haywood called his significant other from jail after his interview and that she reached out to Brantley that same afternoon. Haywood‘s significant other sent Brantley several instant messages that read: (1) “Dougie told me to call you. Where my baby?? I DON‘T appreciate you ignoring me“; (2) “We got to talk“; and (3) “Now they got [R.R.‘s] phone?? Your number in there.” When Haywood finally spoke with Brantley later that evening he informed him that he had been interviewed about the murders. During the conversation, Brantley specifically asked Haywood where his cell phone was.
{¶50} Viewing all of the evidence in a light most favorable to the State, we must conclude that the State set forth evidence from which a rational trier of fact could have concluded that Haywood aided and abetted Brantley in the murders of R.R., K.W., and M.N. and in the other charges associated with their murders. Sеe Jenks, 61 Ohio St.3d at 279. The State
ASSIGNMENT OF ERROR IX
THE TRIAL COURT ERRED AND VIOLATED DESHANON HAYWOOD‘S DUE-PROCESS AND FAIR-TRIAL RIGHTS WHEN IT ENTERED CONVICTIONS THAT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶51} In his ninth assignment of error, Haywood argues that his convictions are against the manifest weight of the evidence. His brief cites to the manifest weight standard and then simply asks this Court to review “[t]he framework of the evidence and verdicts described in the [sufficiency] assignment of error” under that standard. Yet, “sufficiency and manifest weight are two separate, legally distinct arguments.” State v. Vicente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20. Beyond making a blanket statement that his convictions
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED INADMISSIBLE HEARSAY TESTIMONY AND PERMITTED IMPROPER IMPEACHMENT RELATED TO THAT TESTIMONY.
{¶52} In his eighth assignment of error, Haywood argues that the trial court abused its discretion when it admitted certain statements that K.W. made while on the phone with A.T. He asserts that the statements were improperly admitted because they amounted to hearsay and were elicited only after the State impeached its own witness. For the reasons that follow, we reject Haywood‘s eighth assignment of error.
{¶53} The decision to admit or exclude evidence lies in the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180 (1987). “Absent an issue of law, this Court, therefore, reviews the trial court‘s decision regarding evidentiary matters under an abuse of discretion standard of review.” State v. Aguirre, 9th Dist. Lorain No. 13CA010418, 2015-Ohio-922, ¶ 6. An abuse of discretion indicates that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶55} The trial court admitted K.W.‘s statements through A.T. as a present sense imрression and allowed the State to confront A.T. with his previous testimony on the basis of surprise. Haywood argues that K.W.‘s statements did not meet the requirements for the present sense impression exception because the circumstances under which they were made “indicate[d] [a] lack of trustworthiness.”
{¶56} We begin by addressing Haywood‘s assertion that the trial court erred when it allowed the State to impeach A.T. with his former testimony.
{¶57} The record reflects that the State asked A.T. about his prior testimony not to impeach his credibility, but to establish its truth. Specifically, the State sought to introduce as substantive evidence that K.W. said she saw either Dutch or Dougie inside R.R.‘s apartment. Haywood has not explained
{¶58} One of the exceptions to the general bar against the admission of hearsay testimony is the present sense impression еxception. That exception permits a party to introduce “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness.”
{¶60} Although the trial court based its decision to admit A.T.‘s prior statement on other grounds, “this Court may affirm [a trial court‘s] ultimate decision on other legally correct grounds.” State v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 42. Upon review, we cannot conclude that the court erred when it admitted the testimony at issue here. Accordingly, Haywood‘s eighth assignment of error is overruled.
ASSIGNMENT OF ERROR VII
PROSECUTORIAL MISCONDUCT DEPRIVED DESHANON HAYWOOD OF HIS DUE-PROCESS AND FAIR-TRIAL RIGHTS.
{¶61} In his seventh assignment of error, Haywood argues that prosecutorial misconduct deprived him of a fair trial. We disagree.
{¶62} As previously noted, in deciding whether a prosecutor‘s conduct rises to the level of prosecutorial misconduct, a court determines if the prosecutor‘s actions were improper, and, if so, whether the defendant‘s substantial rights were actually prejudiced. Smith, 14 Ohio St.3d at
{¶63} Haywood alleges two instances of prosecutorial misconduct. First, he argues that the prosecutor engaged in misconduct when he repeatedly relied on Haywood‘s post-Miranda silence to attack his credibility. Second, he argues that he was denied a fair trial because “this record demonstrates that the final-trial jury observed many indications that there had been previous official proceedings, if not previous trials.” We address Haywood‘s second contention first.
{¶64} There is no evidence in the record that the jury here learned about Haywood‘s prior trial as a result of any misconduct on the part of the State. It is undisputed that Haywood had more than one trial in this matter and that the majority of the witnesses who testified against him testified at his prior trial. The question of how to refer to his prior trial was an issue that the trial court raised before opening statements. When the court proposed referring to the earlier trial as a hearing that occurred under oath, defense counsel resрonded that it was “significant,” for purposes of impeachment, to be able to stress to the jury that certain witnesses had potentially “lie[d] in front of a judge and a jury under oath * * *.” Defense counsel then objected when the court ruled that the first trial should be called a prior hearing under oath rather than a trial. Moreover, defense counsel (1) was the first to broach the subject of the prior trial in opening
{¶65} Next, we address Haywood‘s contention that the prosecutor improperly commented on his right to remain silent. Haywood testified in his own defense at trial. It was his testimony that he was present at R.R.‘s apartment when the murders occurred, but that it was Brantley who committed the murders. While testifying, he admitted that he had an interview with the police a few days after the murders and repeatedly lied and provided the detectives with false leads. He testified that he did not go to the police right after the murders because he was scared and “thinking [he would] get in trouble just for being there * * *.” He also testified that he misled the police during his interview because he was afraid how Brantley might react if he thought he had cooperated.
{¶66} On cross-examination, the State asked Haywood whether, when he testified on direct examination, it was the first time anyone in law enforcement had heard the version of events that he described. Haywood agreed that it was the first time and, while he had the opportunity to tell the police the true story, he did not. The State asked Haywood multiple questions about whether, before testifying, he had the benefit of hearing the testimony in prior proceedings, reading the transcript in Brantley‘s trial, and hearing the State set out its accomplice
{¶67} Even assuming that, at some point, the State‘s questions or argument went beyond proper impeachment and amounted to improper comment on Haywood‘s right to remain silent, the record reflects that the prosecutor‘s improper argument constituted harmless error beyond a reasonable doubt. See State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 162. Haywood was convicted as an accomplice, not the principal offender, and, by his own testimony, he was with Brantley at R.R.‘s apartment when the victims were murdered. Although he claimed that he was merely present at the apartment and not directly involved in the crimes that occurred there, the State produced a significant amount of circumstantial evidence to the contrary. The State produced evidence that the apartment had been ransacked and that Haywood‘s thumbprint was on one of the items strewn about the kitchen counter. The State also produced evidence that, at the estimated time of the murders, Haywood received text messages from Brantley reading: “kill both these n**gas” and “I‘m bout to shoot Dutch go get da s*** and then I‘m gonna kill both des n**gas but u got to hurry up so we can get up out of here.” Having carefully reviewed the record and all of the evidence in this matter, we cannot conclude that Haywood was materially prejudiced by the prosecutor‘s misconduct, if any, as there was overwhelming evidence of his guilt. See, e.g., State v. Dalton, 9th Dist. Summit No. 17659, 1996 Ohio App. LEXIS 5124, *17 (Nov. 20, 1996). As such, his seventh assignment of error is overruled.
THE TRIAL COURT VIOLATED DESHANON HAYWOOD‘S DUE PROCESS AND FAIR-TRIAL RIGHTS THROUGH CUMULATIVE ERROR.
{¶68} In his tenth assignment of error, Haywood argues that cumulative errors deprived him of a fair trial. Yet, cumulative error exists only where the errors during trial actually “deprive[d] a defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus. “‘[T]here can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guaranteе such a trial.‘” State v. Hill, 75 Ohio St.3d 195, 212 (1996), quoting United States v. Hasting, 461 U.S. 499, 508-509 (1983). To support a claim of cumulative error, there must be multiple instances of harmless error. State v. Garner, 74 Ohio St.3d 49, 64 (1995). “Because this Court did not find multiple instances of error, the cumulative error doctrine does not apply.” State v. Jamison, 9th Dist. Summit No. 27664, 2016-Ohio-5122, ¶ 40. Haywood‘s tenth assignment of error is overruled.
III.
{¶69} Haywood‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
TIMOTHY YOUNG, Public Defender, and PETER GALYARDT, Assistant Public Defender, for Appellant.
TIMOTHY J. MCGINTY, Prosecuting Attorney, and MAHMOUD AWADALLAH, BRIAN RADIGAN, and ANTHONY T. MIRANDA, Assistant Prosecuting Attorneys, for Appellee.