STATE OF OHIO v. MICHAEL HAZEL
C.A. CASE NO. 2011 CA 16
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
March 2, 2012
[Cite as State v. Hazel, 2012-Ohio-835.]
FROELICH, J.
T.C. NO. 10CR808, 10CR827, 10CR828, 11CR49; (Criminal appeal from Common Pleas Court)
Rendered on the 2nd day of March, 2012.
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414
Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Michael Hazel was found guilty by a jury of two counts of domestic violence; he was sentenced to two consecutive five-year terms of imprisonment and to five years of postrelease control. He appeals from his conviction.
{¶ 3} After these cases were consolidated, the State reindicted Hazel on three counts of felonious assault related to the events of November 5, 2010. Whereas the November 29, 2010 indictment (Case No. 10CR808) contained one count of felonious assault “by means of a deadly weapon, to wit a knife and a hammer,” the January 31, 2011, indictment (Case No. 11CR49) contained three counts: two counts of felonious assault by means of a deadly weapon, one specifying a knife and the other a hammer, and a third count of felonious assault based on serious physical harm. (Emphasis sic.) Case No. 11CR49 was also consolidated with Case No. 10CR808.
{¶ 4} In February 2011, the State filed a pre-trial motion to call Sheets as a court‘s witness because, in her grand jury testimony and other communications with the prosecutor‘s office, she had changed her story and stated that she did not want to pursue charges. The trial court granted the State‘s motion.
{¶ 6} At trial, the State presented evidence regarding instances of domestic violence between Hazel and Sheets on three dates between September and November 2010.
{¶ 7} In the early morning hours of September 14, 2010, sheriff‘s deputies responded to a 911 call from 119 Dartmouth in Clark County. They found Sheets crying and upset. She reported that her boyfriend had slammed her head into a wall several times and had tried to bite her face. The deputies did not observe any injuries. This incident resulted in the count of domestic violence charged in Case No. 10CR827.
{¶ 8} On the evening of November 4, 2010, deputies were dispatched to an establishment called The Barn due to a domestic altercation at 119 Dartmouth. The victim (Sheets) reported to the dispatcher that her boyfriend punched her several times in the face. Sheets was no longer at The Barn when deputies arrived, but they found her at 119 Dartmouth. Although Sheets was calm when the deputies talked with her, her left cheek and eye were swollen and bruised, such that the left and right sides of her face looked noticeably different. These events gave rise to the count of domestic violence charged in Case No. 10CR828.
{¶ 9} In the early morning hours of November 5, 2010, another 911 call
{¶ 10} Sheets testified at trial that she did not recall most of the events on the dates in question, including why she had called 911, and that she had instigated fights with Hazel on those dates by hitting him, pulling a knife on him, and accusing him of infidelity. She also claimed that she threatened to kill herself and her unborn child on November 5, 2010, which caused Hazel to attempt to break into the bathroom to which she had retreated. She denied having been injured in the alleged altercations and claimed not to recall telling a paramedic that Hazel had hit her. She claimed that her pregnancy had made her very “hormonal” and had been “an emotional roller coaster.” She also testified that she gave birth to her son at full-term on November 18, 2010.
{¶ 12} Hazel raises three assignments of error on appeal.
{¶ 13} Hazel‘s first assignment of error states:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION BY DENYING DEFENSE MOTION TO DISMISS ALL COUNTS OF DOMESTIC VIOLENCE.
{¶ 14} Hazel argues that the counts of domestic violence should have been dismissed, because the State “failed to present a prima facie case that the * * * parties were cohabitating” or otherwise satisfied the definition of “family or household member” for purposes of the domestic violence statute,
{¶ 15}
(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
* * *
(F)(1) “Family or household member” means any of the following:
a) Any of the following who is residing or has resided with the offender: (i) A spouse, a person living as a spouse, or a former spouse of the offender;* * *
(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
(2) “Person living as a spouse” means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.
{¶ 16} “[T]he essential elements of ‘cohabitation’ are (1) sharing of familial or financial responsibilities and (2) consortium.
{¶ 17} The State contends that the evidence established two bases for concluding that Hazel and Sheets were family or household members: they were persons living as spouses and Sheets was pregnant with Hazel‘s child.
{¶ 19} In addition to Sheets‘s testimony, one of the sheriff‘s deputies who responded to Sheets‘s home on November 5, 2010, testified that he observed “male clothing” in an “adult bedroom” of the house. Another deputy testified that Sheets referred to Hazel as her “live-in boyfriend.”
{¶ 20} Considering all of the evidence presented, the jury could have reasonably concluded that Hazel lived with Sheets and thus was a family or household member for purposes of the domestic violence statute.
{¶ 21} The State also argues that Hazel was Sheets’ “family or household member” by virtue of the fact that she was pregnant with his child. We need not address whether a woman‘s pregnancy makes a couple the “natural parent[s] of any child” prior to the child‘s birth for purposes of this statute, because there was sufficient evidence from which the jury could have concluded that Hazel and Sheets were family or household members by virtue of their living arrangements, as discussed above.
{¶ 23} Hazel‘s second assignment of error states:
THE TRIAL COURT‘S EVIDENTIAL [SIC] RULINGS, CUMULATIVELY, EFFECTED AN ABUSE OF DISCRETION AND A DENIAL OF DUE PROCESS TO APPELLANT.
{¶ 24} Hazel argues that various instances of prosecutorial misconduct and decisions by the court that were an abuse of its discretion deprived him of a fair trial.
{¶ 25} First, Hazel contends that the prosecutor improperly used hypotheticals during voir dire to get the potential jurors to commit to a particular view of the events relevant to his case.
{¶ 26} The prosecutor presented two hypothetical situations to potential jurors during voir dire, over Hazel‘s objections; both involved situations in which the victim of a crime did not want to prosecute. The first hypothetical involved a burglary: a homeowner reported a burglary to the police but, after the police investigation identified the burglar as someone known to the homeowner, the homeowner did not want to press charges. The prosecutor asked the potential jurors whether a burglary had still occurred in this situation and whether the State should still be able to pursue the charges. The jurors answered affirmatively.
{¶ 27} The prosecutor then turned to the second hypothetical: a domestic violence victim reported a crime to the police, but later decided that she did not want to pursue charges. As with the first hypothetical, the prosecutor asked the jurors whether, in that situation, the crime of domestic violence had occurred and whether the State should be
{¶ 28} In response to these hypotheticals, defense counsel talked with the jurors about the reasons someone might not want to pursue charges after reporting an offense to the police. Defense counsel suggested some possibilities, including that the initial report to the police was untrue or that a victim or witness was a reluctant to testify under oath in court if the initial information provided to the police was not entirely true, for fear of getting in trouble. He also discussed at length the need for the jurors to determine the credibility of witnesses who have told more than one version of the same events.
{¶ 29} The Eighth District has discussed the purpose of voir dire, as follows:
The purpose of the examination of a prospective juror upon his voir dire is to determine whether he has both the statutory qualification of a juror and is free from bias or prejudice for or against either litigant. In order to ensure that result, counsel is afforded reasonable latitude on the voir dire examination. The scope of the inquiry will not be confined strictly to the subjects which constitute grounds for the sustaining of a challenge for cause; but if it extends
beyond such subjects it must be conducted in good faith with the object of obtaining a fair and impartial jury and must not go so far beyond the parties and the issues directly involved that it is likely to create a bias, a prejudice, or an unfair attitude toward any litigant. It is neither wise nor desirable for this court to prescribe the specific form such interrogatories are to take, or the manner of their presentation. That is a matter wholly for the trial court to determine in the exercise of its sound discretion and in the light of all the facts and surrounding circumstances.
(Citations omitted.) State v. Walton, 8th Dist. No. 90140, 2008-Ohio-3550, ¶ 85-87.
{¶ 30} The prosecutor posed hypotheticals containing circumstances similar to those in this case, where the State sought to press charges although the victim of a crime preferred not to do so. The hypotheticals posed to the jurors indicate that the State sought to ensure that the potential jurors did not think that the victim should have the final say over whether a case was filed and that the potential jurors would be able to convict - if the evidence supported a conviction - where the victim was uncooperative. The hypotheticals did not require potential jurors to commit during voir dire to the guilt of the perpetrator in the hypotheticals or to Hazel‘s guilt. The trial court did not abuse its discretion in allowing the prosecutor‘s use of hypotheticals for this purpose.
{¶ 31} Second, Hazel contends that the trial court abused its discretion in calling Sheets as a court‘s witness, thereby permitting the State to question her as if on cross-examination, without demonstrating that she would have been hostile to the State. He asserts that the treatment of Sheets as a court‘s witness was an improper use of
{¶ 32}
{¶ 33} The purpose of calling a witness as a court‘s witness is to allow for a proper determination in a case where a witness is reluctant or unwilling to testify. State v. Curry, 8th Dist. No. 89075, 2007-Ohio-5721, ¶ 18. “A witness whose appearance is important to the proper determination of the case, but who appears to be favorable to the other party, is a principal candidate for application of
{¶ 34} “As a practical matter courts will approach the exercise of the right to call witnesses with some degree of circumspection since merely presenting a person as the
{¶ 35} Before trial, the State filed a motion to call the alleged victim, Monica Sheets, as a court‘s witness. The motion stated:
The State believes that Ms. Sheets is a necessary witness to this action as she is the victim of all the charges. Ms. Sheets, however, has indicated that she is not interested in pursuing criminal charges against the defendant. Furthermore, based on information gathered by deputies, grand jury testimony, and later correspondence, Ms. Sheets has changed her story of the events leading up to the charges. The State does not know what Ms. Sheets will testify to once on the stand. Therefore, the State believes that calling Ms. Sheets as court‘s witness is the best manner in which to elicit the truth related to the charges.
{¶ 36} The trial court granted the State‘s motion to call Sheets as a court‘s witness. In its ruling, the court concluded that Sheets had “provided several conflicting statements about the alleged crime [which] * * * justify making her a Court‘s witness.” The
{¶ 37} Although Hazel argues that the State should have been required to show surprise and affirmative damage before impeaching a witness who might have otherwise been a State‘s witness, it is well-settled that a party is not required to make such a showing before impeaching a court‘s witness. Apanaovich, 33 Ohio St.3d at 22, citing State v. Dacons, 5 Ohio App.3d 112, 449 N.E.2d 507 (10th Dist. 1982); Arnold at ¶ 44; State v. Griffin, 2d Dist. Montgomery No. 20681, 2005-Ohio-3698, ¶ 37. Indeed, a request for designation of a court‘s witness often arises precisely because the State has anticipated an unfavorable change in the witness‘s account of previous events. Under such circumstances, the State should not be required “to take its chances” by calling as a State‘s witness one whose testimony would be beneficial to the jury but who has indicated an intent or motive to testify in a way that would be detrimental to the State‘s case. State v. Adams, 62 Ohio St.2d 151, 158, 404 N.E.2d 144 (1980).
{¶ 38} Based on the State‘s representations that Sheets‘s “grand jury testimony, and later correspondence” indicated a change in her story between the dates of the alleged offenses and the time of trial, appropriate circumstances existed to support the trial court‘s designation of Sheets as a court‘s witness. The trial court did not abuse its discretion.
{¶ 39} Third, Hazel contends that the trial court adopted a “raw prosecutorial position” when it questioned firefighter Michael Myers, outside the presence of the jury, about whether statements made to him by the victim were made for the purpose of medical
{¶ 40} At trial, before he was questioned about the purpose of the victim‘s statements to him, Myers testified on direct examination about the condition of the victim‘s house (“walls were broke with stuff and things thrown everywhere“) and about the information he gathered from the victim. Myers described his usual procedure of documenting identifying information and injuries “for the purpose of treating and diagnosing the person,” and explained that “run sheets” recording such information are kept in the ordinary course of business. Myers further testified that, when he saw Sheets, he did not “personally observe” any injuries on her. He also testified that she denied having any injuries and did not want to go to the hospital. Because of her pregnancy, Myers “told her it would be best for her to go [to the hospital] for the safety of the child to have the child checked out.” According to Myers, Sheets stated that she had been “hit in the head and kicked in the stomach and the lower back; * * * and she was trying to protect her stomach” during the attack. Later, in the ambulance, Myers observed a laceration on Sheets‘s forehead.
{¶ 41} Defense counsel repeatedly objected during Myers‘s testimony, on the bases that the State‘s questions were leading, that there was “no foundation laid,” and that the testimony was hearsay. The objections were overruled. The defense then cross-examined Myers.
{¶ 42} At the end of Myers‘s testimony, defense counsel renewed his objection to the hearsay nature of Myers‘s testimony. The jury was then excused, and the judge stated that he “wanted to ask [Myers] some questions outside the presence of the jury
COURT: * * * You knew why you were going out there, right? You knew what the nature of the call was?
WITNESS: Yes, I did.
COURT: You knew that it was a domestic violence call?
WITNESS: Yes.
COURT: And you were worried about the well-being of this unborn child. Were you concerned that something may have happened to Monica Sheets that could in turn cause problems for the unborn child?
WITNESS: Yes. I mean she told me that she was hit and kicked in the back and head area, and I was concerned maybe some of the blows had struck the child or she possibly had broken ribs or something.
COURT: Is it fair to say that sort of with her injuries, would the injuries of Monica Sheets, would those injuries be sort of intertwined with your concern for the well-being of the unborn child?
WITNESS: Yes, they would. If she is injured, there is a good possibility that the child was injured as well.
COURT: But what you are saying, and correct me if I‘m wrong, Monica Sheets did have some injuries but they didn‘t appear to be injuries that - - They didn‘t appear to be serious injuries to you; is that fair to say?
WITNESS: Yes. I personally, just me, meaning, I think she had more injuries than she was leading on to. I think she hurt but didn‘t want to make, you know, I think her ribs were hurting but she never, you know, she kept saying she was fine.
{¶ 43} On appeal, Hazel claims that the court‘s questioning of Myers was improper. He asserts that the court “repeatedly lead [sic] [Myers] to give answers allowing [the court] to conclude that [Myers‘s] testimony should qualify as an exception to the hearsay rule,” i.e., that his conversation with Sheets related to medical diagnosis and treatment.
{¶ 44} The trial court did handle Hazel‘s objections to Myers‘s testimony in an unorthodox manner, particularly in allowing the jury to hear the testimony that was alleged to be hearsay before questioning the witness to determine whether the statements properly fell within an exception to the hearsay rule. It is also unclear why the court questioned Myers itself about the purpose for which the victim‘s statements were made,
{¶ 45} Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{¶ 46} In this case, however, Sheets repeatedly asserted that she was not injured and did not want treatment. As such, the rationale that her statements were truthful because her treatment depended upon the accuracy of the statements did not apply. In other words, because Sheets repeatedly stated that she did not want to be treated and had not suffered any injury, we cannot conclude that her statements were made for the purpose of medical diagnosis and treatment. It is the declarant‘s belief regarding whether her statement will be used for medical diagnosis or treatment and will affect her well-being that is crucial to the reliability of the statement. State v. Schauer, 4th Dist. Pickaway No. 99CA17, 2000
{¶ 47} Because the record reflects that Sheets did not make her statements to Myers for the purpose of medical diagnosis or treatment, the trial court abused its discretion in permitting Myers to testify about Sheets‘s statements.
{¶ 48} An error in the admission of evidence is not grounds for granting a new trial or for setting aside a verdict unless such action affected the outcome of the case. “An error is harmless where there is no reasonable probability that the error contributed to the outcome of defendant‘s trial.” State v. Holt, 10th Dist. No. 97APA10-1361, 1998 WL 514055, *3 (Aug. 20, 1998), citing State v. Brown, 65 Ohio St.3d 483, 485, 605 N.E.2d 46 (1992). Because there was other evidence consistent with Myers‘s testimony about what transpired between Hazel and Sheets on November 5, 2010 - including the responding deputies’ observations of the attack as it unfolded - we conclude that the improper admission of Myers‘s testimony about what Sheets told him did not affect the outcome of the case and was harmless error.
{¶ 49} The Supreme Court of Ohio has stated that numerous harmless errors may cumulatively deprive a defendant of a fair trial and thus may warrant the reversal of his conviction. (Emphasis added.) State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). The doctrine of cumulative error does not apply in this case because Hazel has not
{¶ 50} The second assignment of error is overruled.
{¶ 51} Hazel‘s third assignment of error states:
APPELLANT WAS DENIED DUE PROCESS BY PROSECUTORIAL MISCONDUCT IN PRESENTING EVIDENCE OF ALLEGED CHARGES THAT SHE KNEW WOULD NOT SUPPORT A CONVICTION.
{¶ 52} Hazel contends that the State filed some of the charges against him - felonious assault, abduction, and kidnapping - knowing that it could not convict him of those offenses, with the purpose to “incite” the jury against him and make the jury believe that he “had already ‘caught a break’ by the dismissal” of those charges when it deliberated on the charges of domestic violence. The State responds that it could not have known before trial whether these charges could not be proven, because it did not know what the content of Sheets‘s testimony would be.
{¶ 53} The standard of review for grand jury indictments is far less stringent than the beyond a reasonable doubt burden on criminal trial prosecutions; the potential for inordinate delay or for abuse by overzealous counsel militates against stricter review of these proceedings. State v. Marich, 6th Dist. Erie No. E-85-53, 1986 WL 14816 (Dec. 19, 1986), citing Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L.Ed. 397 (1956). Furthermore, because of the secrecy with which grand jury proceedings are shrouded, it is impossible for this court to stringently review the sufficiency of the indictment. Id.
{¶ 55} With respect to abduction and kidnapping, Sheets testified that, on November 5, 2010, she called 911 from the bathroom, that she was blocking the door, and that Hazel was trying to break into the bathroom. At various times, she gave differing accounts of why he was trying to break into the bathroom. The deputies who responded to the house found the bathroom door broken off its hinges. They also observed Hazel “fighting” and “tussling” with Sheets in the doorway to the bathroom, while he was standing and she was on the floor. Based on this evidence and Sheets‘s initial account of the events, the State could have reasonably believed that Sheets had been cornered by Hazel in the bathroom by force or threat of force for some period of time and had been unable to escape. Such conduct would have supported the counts of abduction and kidnapping, especially if Sheets had testified, consistent with her statements to deputies at the time of the incident, that Hazel refused to let her leave the house and threatened her.
{¶ 56} After the court dismissed the counts of felonious assault, abduction, and kidnapping, the prosecutor explained to the jury in closing argument that the evidence had “not established” those charges and that they would not be addressed further. The trial
{¶ 57} Hazel‘s suggestion that the jury viewed the dismissal of some counts as a windfall for him and held it against him in its deliberations of the domestic violence charges is speculative and unsupported by the record. We cannot conclude that Hazel was prejudiced by the dismissal of some counts in the indictment.
{¶ 58} The third assignment of error is overruled.
{¶ 59} Although this issue was not raised on appeal, we have noted during our review of this case that the term of post-release control imposed by the trial court was not authorized by law.
{¶ 60} A sentence that is contrary to law is void and amounts to plain error. State v. Schneider, 8th Dist. Cuyahoga No. 93128, 2010-Ohio-2089, ¶ 14, citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 14. Where a sentencing entry incorrectly imposes post-release control, that portion of the judgment which improperly imposes post-release control is void, but the entire sentence is not void. State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332, 2010-Ohio-6238, ¶ 26; State v. Evans, 8th Dist. No.
{¶ 61} Finally, we note that Hazel sent a letter to this court while this appeal was pending; Hazel apparently sought to bring to our attention a “Notice of Legal Instruction” that he previously had sent to his attorney and had attempted to file with the Clark County Clerk of Courts. In the Notice of Legal Instruction, which was attached to the letter, Hazel asked his attorney to explore alleged deficiencies in the indictments and verdict forms in his cases, because they did not include “any specific statutory subsection.” Hazel‘s other attachments included letters he sent to the Clerk requesting file-stamped copies of his filings and a letter sent to him by his appellate attorney. We note that Hazel‘s appellate brief was filed in September 2011, and that his letter to the attorney and his attorney‘s response were sent in December 2011.
{¶ 62} The letter from Hazel‘s attorney informed Hazel that the attorney had considered Hazel‘s contention that his indictments were defective for failure to include statutory subsections (“parenthesis or subparents“). It further stated:
I do not believe that this is a reversible error since the indictment does contain the language of the specification plus the possible penalties therefore. If I am wrong and if your current appeal is unsuccessful, you may move the Court of Appeals to advance this argument.
{¶ 63} In Ohio, a criminal defendant has the right to representation by
{¶ 64} As modified, the judgment of the trial court will be affirmed.
. . . . . . . . . .
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Lisa M. Fannin
J. Allen Wilmes
Hon. Douglas M. Rastatter