2006 Ohio 5659 | Ohio Ct. App. | 2006
{¶ 2} On the evening of June 15, 2004, appellant and his girlfriend, Gail Sims, had a confrontation in their Union Township home. Appellant contends that he and Sims were arguing over her infidelity and increasing drug use. The shouting match turned physical when the two began punching each other. According to appellant's police statement, he and Sims eventually had their hands around each others' necks. Appellant admitted to squeezing Sims' neck until she went limp.
{¶ 3} The following morning, Sims' abandoned vehicle was discovered at a gravel quarry in eastern Hamilton County. A police investigation revealed Sims' lifeless body in the trunk of the car. On June 22, 2004, appellant was apprehended by United States Customs agents while reentering the country from Mexico. He was detained by law enforcement authorities in Texas until Ohio officers arrived for questioning. Although appellant initially denied having any knowledge of Sims' death, he eventually confessed to killing Sims and disposing of her body at the quarry.
{¶ 4} On June 30, 2004, appellant was indicted on one count of murder in violation of R.C.
{¶ 5} On May 18, 2005, appellant moved to dismiss the second indictment on speedy trial grounds. The trial court granted appellant's motion as to the forgery and gross abuse counts, but denied the motion as to the murder and tampering counts. Following a four-day trial, the jury returned verdicts on July 22, 2005. Appellant was found guilty on one count of purposeful murder, one count of felony murder, and two counts of tampering with evidence.
{¶ 6} On August 26, 2005, appellant moved for a new trial on the basis of ineffective assistance of counsel. The trial court denied the motion. For sentencing purposes, the murder counts in the two indictments were merged. Appellant received a sentence of 15 years to life for murder and four years on each of the two tampering with evidence counts. The two four-year terms were to be served consecutively to each other and to the murder term. Appellant timely appealed, raising three assignments of error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} "DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS IN VIOLATION OF HIS RIGHTS UNDER THE
{¶ 9} Appellant contends that the trial court erred in overruling his motion for new trial because he received ineffective assistance of counsel.1
{¶ 10} In order to determine that a new trial is warranted due to ineffective assistance, appellant must demonstrate that defense counsel's performance fell below an objective standard of reasonableness and that appellant was prejudiced as a result.Strickland v. Washington (1984),
{¶ 11} A strong presumption exists that a licensed attorney is competent and that the challenged action is the product of sound trial strategy and falls within the wide range of professional assistance. State v. Bradley (1989),
{¶ 12} Appellant raises three issues in support of his ineffective assistance claim. First, appellant faults defense counsel for failing to review certain discovery materials, including post-incarceration telephone conversations and letters, which the prosecution used against him at trial. At the hearing on appellant's motion for new trial, counsel acknowledged that he did not listen to the recordings because he believed they only contained information that the prosecutors were offering in support of the second indictment. Whether or not the information gleaned from the tapes supported the second indictment was, according to counsel, a question of law for the appeals court.
{¶ 13} Counsel also testified that he directed appellant to take the witness stand in the hopes of obtaining a voluntary manslaughter verdict. Appellant argues that counsel was not prepared to mitigate the damages when the prosecution used appellant's statements in the recorded conversations to attack his credibility during cross-examination. Appellant also asserts that counsel's decision to have him testify in an attempt to obtain a manslaughter verdict was not a good strategic choice because it was made without the benefit of full information, i.e., the information on the tapes. Appellant submits that counsel's failure to review the detrimental information contained in the recordings violated counsel's duty to reasonably investigate the facts.
{¶ 14} In overruling appellant's motion for new trial, the trial court deferred to counsel's decision to have appellant testify in pursuit of a manslaughter verdict as a reasonable, strategic choice. The court noted that counsel did not listen to the tapes because his co-counsel reviewed them and counsel believed they were irrelevant to the murder charge. The court conceded that counsel's choice not to listen to the recordings himself "may not have been wise" and "[did] not fall within the `trial strategy' realm[.]" Nonetheless, the court ruled that appellant failed to demonstrate that the result of trial would have been different had counsel listened to the recordings.
{¶ 15} Appellant correctly notes that "[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."Strickland,
{¶ 16} Counsel advised appellant to take the stand because he believed appellant was the only one who could offer testimony to support a voluntary manslaughter jury finding. Key to this approach was proving that appellant lacked the requisite intent for murder. Counsel believed that the only chance to obtain a lesser sentence was to demonstrate appellant's lack of intent to murder his girlfriend by eliciting testimony to that effect. In having appellant testify, counsel sought to exhibit appellant's sorrow and intense emotion in the face of Sims' death. We agree with the trial court that this tactic fell within the sphere of trial strategy. See Hoop at ¶ 20. Furthermore, appellant's insistence that counsel may have been able to lessen the negative impact of the calls and letters amounts to mere speculation and does not support a finding of ineffective assistance. See Id. at ¶ 22. While counsel's failure to review the recordings cannot be commended it does not, by itself, constitute ineffective assistance.
{¶ 17} As stated, co-counsel listened to and informed counsel regarding a good portion of the material on the tapes, and counsel concluded that the recordings had no bearing on the manslaughter defense. Counsel did not entirely fail to consider the materials; instead, he chose to concentrate on ways to further the manslaughter trial strategy. Not only was this objectively reasonable, but appellant failed to prove that the result of trial would have been different had counsel more thoroughly explored the recordings. In addition, we note that appellant was informed that his jailhouse telephone and postal communications would be screened. Appellant was thus aware of the content of the recordings, and cannot claim surprise on the witness stand when confronted by the prosecution.
{¶ 18} Second, appellant claims that he suffered ineffective assistance when counsel neglected to disclose a plea agreement offered by the prosecution. The state offered to reduce appellant's potential sentence by ten years by dropping the two tampering charges if appellant pled guilty to murder.
{¶ 19} "A defense attorney's failure to notify his client of a prosecutor's plea offer constitutes ineffective assistance of counsel * * * and satisfies the deficient performance prong of the Strickland test." State v. Hicks, Butler App. No. CA2002-08-198,
{¶ 20} During the course of the representation, counsel discussed the possibility of a plea with appellant. According to counsel's testimony at the new trial motion hearing, counsel and appellant agreed that "the sentence dictated that the case be tried." Although the state offered a reduced aggregate sentence in exchange for a guilty plea on the murder charge, this did not coincide with counsel's manslaughter strategy. Counsel perceived that the strategy, if successful, would result in a lesser sentence than that offered by the state in its plea deal. Consequently, counsel did not communicate the offer to appellant. The trial court concluded that such a decision fell within the range of reasonable professional assistance.
{¶ 21} While the wisdom of counsel's decision not to convey the plea offer to appellant may be debatable, the record reveals that appellant failed to demonstrate prejudice by showing that he would have accepted the offer. See Hicks at ¶ 15. Counsel testified that when he discussed the charges and potential sentences with appellant, appellant never expressed any reluctance towards taking the risk of proceeding with trial. Appellant has presented no evidence, and in fact does not even allege in his arguments on appeal, that he would have accepted the offer. Therefore, consistent with this court's ruling inState v. Hicks,
{¶ 22} Third, appellant challenges counsel's failure to file a motion to suppress the statements made during his detention in Texas. In an undated letter, appellant expressed his desire for counsel to file a motion to suppress these statements due to alleged coercion. Appellant asserted that he was beaten, tricked into signing a waiver of his rights, threatened, and forced to confess.
{¶ 23} "[F]ailure to file a suppression motion does not constitute per se ineffective assistance of counsel." State v.Madrigal,
{¶ 24} We conclude that the decision not to file a motion to suppress was strategic and falls within the range of effective assistance. Counsel believed the motion would be fruitless, and felt that the content of appellant's statements in Texas would aid in proving manslaughter instead of murder. Furthermore, appellant did not demonstrate prejudice as a result of the failure to file a suppression motion. Given the amount of evidence in favor of appellant's guilt, including DNA evidence, admissions while incarcerated, and witness testimony, appellant did not demonstrate that the result of trial would have been different had the Texas statements been suppressed.
{¶ 25} Appellant's first assignment of error is overruled.
{¶ 26} Assignment of Error No. 2:
{¶ 27} "THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN DENYING HIS MOTION TO DISMISS THE SECOND INDICTMENT WITH THE EXCEPTION OF COUNT THREE BECAUSE THE STATE FAILED TO COMPLY WITH THE TIME LIMITATIONS OUTLINED IN R.C.
{¶ 28} Appellant claims that the trial court was obligated to dismiss the murder count and one of the tampering with evidence counts in the second indictment on speedy trial grounds.2
{¶ 29} R.C. section
{¶ 30} After reviewing the record, we agree with the lower court's conclusion that appellant was not entitled to a dismissal of the charges in question on speedy trial grounds. Regarding the murder count, the trial court found that the state was unable to charge appellant under R.C.
{¶ 31} Regarding the tampering with evidence count at issue, the trial court concluded that the state could not have brought this charge prior to acquiring new information contained in letters written by appellant while incarcerated. At the hearing on appellant's motion to dismiss the second indictment, the prosecution admitted to having knowledge of certain tampering evidence at the time of the first indictment. The state knew that the victim's body had been moved from the murder scene. But, according to the prosecution, the state did not proceed on tampering charges in the initial indictment because it was not confident that there was sufficient evidence to prove the charge beyond a reasonable doubt.
{¶ 32} Subsequently, the state discovered new information from a fellow inmate and from letters written by appellant while in jail that offered support for the tampering charge in question. Appellant admitted to removing evidence in addition to the body, including latex gloves and items of the victim's clothing, and to disposing of these items in a dumpster while en route to Texas. The state explained that these additional facts, combined with the removal of the body, provided further evidence of tampering to form a sound basis for the tampering count at issue. The state maintained that it would not have filed this tampering charge had it not discovered the additional evidence. It is evident that this information was not available to the state at the time of the initial indictment due to the fact that the communications took place after appellant was incarcerated. Therefore, the tampering charge at issue in the second indictment was not subject to the speedy trial timetable of the initial indictment.
{¶ 33} Appellant's second assignment of error is overruled.
{¶ 34} Assignment of Error No. 3:
{¶ 35} "THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE BY IMPOSING CONSECUTIVE SENTENCES FOR TWO COUNTS OF TAMPERING WITH EVIDENCE."
{¶ 36} Appellant insists that the trial court improperly imposed consecutive sentences on the two counts of tampering with evidence because the court relied upon sentencing statutes recently declared unconstitutional by the Ohio Supreme Court.
{¶ 37} In State v. Foster,
{¶ 38} The Foster court instructed that all cases pending on direct review in which the unconstitutional sentencing provisions were applied be remanded for resentencing. Foster at ¶ 104. See, also, State v. Miller, Montgomery App. No. 21054,
{¶ 39} Appellant's third assignment of error is sustained as limited.
{¶ 40} Having reviewed appellant's assignments of error, we reverse the trial court's judgment as to the consecutive sentences imposed for the two counts of tampering with evidence, and remand this matter for resentencing as to those two counts only in accordance with law and consistent with this opinion.
Young and Bressler, JJ., concur.
