State v. HendricksState v. Hendricks
Dated: August 3, 2011
MOORE, Judge.
{¶1} Appellant, Michael W. Hendricks, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} On February 26, 2009, several members of the Akron Police Department visited Hendricks’ home to investigate drug complaints regarding a meth lab. Detective Ted Male and Officer David Crockett, members of the clandestine laboratory enforcement team, each testified to extensive training and experience related to methamphetamine lab investigation. Officer Crockett has actually manufactured methamphetamine as part of his training. When the officers approached Joseph Logan, a co-defendant, walking down the driveway of Hendricks’ home, they noticed a distinct chemical odor that they associated with the production of methamphetamine. Several other officers remained with Logan while Detective Male and Officer Crockett approached the home and knocked on the door. Through a window in the door they observed
{¶3} On March 16, 2009, the Summit County Grand Jury indicted Hendricks on one count of illegal manufacture of drugs in violation of
{¶4} The charges were tried to a jury from September 28, 2009, through October 1, 2009. The court declared a mistrial and dismissed count one, illegal manufacture of drugs. On October 5, 2009, the jury returned guilty verdicts on each remaining charge. The court sentenced Hendricks to five years of incarceration for illegal possession of chemicals for the manufacture of drugs, one year of incarceration for possessing criminal tools, one year of incarceration for aggravated possession of drugs, and two years of incarceration for each charge of endangering children. The court ordered the sentences for illegal possession of chemicals for the manufacture
{¶5} Hendricks timely filed a notice of appeal. He raises two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR AS A MATTER OF LAW AND/OR COMMITTED PLAIN ERROR IN DENYING [HENDRICKS‘] MOTION TO EXCLUDE ANY EVIDENCE THAT WAS DESTROYED BY THE STATE AND THUS NOT PRESERVED NOR MADE AVAILABLE TO THE DEFENSE FOR INDEPENDENT TESTING, AND TO PROHIBIT ANY TESTIMONY OF POLICE OFFICERS REGARDING THE IDENTITY OF THE CHEMICALS SEIZED BUT UNTESTED.”
{¶6} In his first assignment of error, Hendricks contends that the trial court committed error or plain error in denying his motion to exclude any evidence that was destroyed by the State during testing and thereby not preserved for, or available to, the defense for independent testing. He also contends that the trial court should have prohibited the testimony of police officers regarding the identity of the chemicals seized but untested. We do not agree.
{¶7} The Ohio Revised Code provides a mechanism whereby the accused in a drug case may request in writing that a sample of the chemical be preserved for testing.
{¶8} In State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, the Supreme Court of Ohio analyzed a similar subsection of
{¶9} The Supreme Court went on to distinguish Confrontation Clause rights from those that a defendant must waive personally. Id. at ¶23. The Court favorably cited United States v. Plitman (C.A.2, 1999), 194 F.3d 59, 63, for the proposition that “the rights that defense counsel may waive on a defendant‘s behalf because they concern strategic and tactical matters include selective introduction of evidence, stipulations, objections, and pretrial motions.” (Internal quotations omitted.) Pasqualone at ¶25. The conclusion that Hendricks waived his right to independent analysis of the substances follows logically from Pasqualone.
{¶10} In this case, a different subsection of
{¶12} In so holding, we observe that this right is exclusively statutory, embodied only in
{¶13} Waiver, “the intentional relinquishment or abandonment of a known right[,]” Pasqualone at ¶13, is particularly applicable in this case because Hendricks’ actions demonstrated knowledge of the related provisions found in
{¶14} With respect to Hendricks’ further contention that the court should have excluded the testimony of officers regarding the identity of chemicals seized but untested, he has failed to direct this Court to any instance of such testimony from the transcript of trial.
{¶15} Because Hendricks waived his right to independent testing under
ASSIGNMENT OF ERROR II
“APPELLANT HENDRICKS WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.”
{¶16} In his second assignment of error, Hendricks contends that he was denied the effective assistance of counsel. We do not agree.
{¶17} In order to show ineffective assistance of counsel, Hendricks must satisfy a two-prong test. Strickland v. Washington (1984), 466 U.S. 668, 669. First, he must show that his trial counsel engaged in a “‘substantial violation of any * * * essential duties to his client.‘” State v. Bradley (1989), 42 Ohio St.3d 136, 141, quoting State v. Lytle (1976), 48 Ohio St.2d 391, 396. Second, he must show that his trial counsel‘s ineffectiveness resulted in prejudice. Bradley, 42 Ohio St.3d at 141-142, quoting Lytle, 48 Ohio St.2d at 396-397. “Prejudice exists where there is a reasonable probability that the trial result would have been different but for the alleged deficiencies of counsel.” State v. Velez, 9th Dist. No. 06CA008997, 2007-Ohio-5122, at ¶37, citing Bradley, 42 Ohio St.3d at paragraph three of the syllabus. This Court need not
{¶18} Hendricks contends that he was denied the effective assistance of counsel because none of his counsel in the court below served a request for independent testing of the chemicals found in his home. He did not, however, cite any authority in support of this contention.
{¶19} Prior to retaining his trial counsel, Hendricks was represented by three separate attorneys, none of whom served on the prosecutor a request for independent testing. If the BCI analyst‘s testimony had been the only evidence presented on the identity of the chemicals, it is possible that Hendricks could show that the outcome of the trial might be different due to independent testing. At trial, however, the State introduced crystal iodine and four separate exhibits of actual methamphetamine. These substances were not consumed during the testing process. Because the existence and identity of these substances alone could form the basis for Hendricks’ convictions, he is unable to demonstrate prejudice flowing from counsel‘s failure to demand independent testing.
{¶20} Relevant to the tested substances, Hendricks was convicted of illegal assembly or possession of chemicals for the manufacture of drugs, possessing criminal tools, and aggravated possession of drugs.
{¶21} Hendricks was also convicted of aggravated possession of drugs in violation of
{¶22} With respect to each of his three convictions that were supported by materials that could have been destroyed during the chemical-analysis process, substances were introduced at trial that would support each conviction. These substances were not consumed during testing and Hendricks has made no attempt to have an independent analyst test these substances. Therefore, Hendricks cannot demonstrate that the outcome would likely be different had his counsel not failed to request the preservation of any substances for independent testing under
{¶23} Accordingly, Hendricks’ second assignment of error is overruled.
{¶24} We decline to address the merits of Hendricks’ first assignment of error. Hendricks’ second assignment of error is 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
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, J. CONCURS
{¶25} With respect to the majority‘s resolution of the first assignment of error, I concur in its judgment. I do so, though, solely because Mr. Hendricks failed to avail himself of the procedures outlined in
APPEARANCES:
NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.