Case Information
*1
[Cite as
State v. Hollins
,
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107642 v. :
ANITA HOLLINS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 3, 2020 Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-616120-E
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Daniel Cleary and Katherine Mullin, Assistant Prosecuting Attorneys, for appellee .
The Law Office of Jaye M. Schlachet and Eric M. Levy, for appellant .
PATRICIA ANN BLACKMON, P.J.:
Defendant-appellant, Anita Hollins, appeals from her convictions for aggravated murder and other offenses. She assigns the following errors for our review:
I. The trial court erred when it accepted jury verdicts with internal inconsistencies within the same counts for complicity requiring that this reviewing court must enter an acquittal for inconsistent verdicts in each count of the indictment where [Hollins] was found guilty of aiding and abetting the underlying offense but not guilty of aiding and abetting the firearm specifications. This court must reconsider its prior holdings regarding inconsistent verdicts based upon applicable changes to the law and also upon the issue of a complicit conviction.
II. [Hollins] was denied a fair trial and due process of law and the trial court erred when it failed to grant [her] request for a mistrial by reasoning that if it did not grant the mistrial a new trial would be ordered on appeal when counsel for [a] co-defendant * * * stated in his closing argument that non-testifying co-defendant * * * entered a plea mid-trial in direct conflict with the trial court’s prior curative instruction given to the jury.
III. [Hollins’s] convictions must be vacated where she was not found guilty of each and every element of the offenses charged where the jury verdict form(s) fail to indicate the offenses took place in Cuyahoga County, Ohio or otherwise indicate any finding as to venue.
IV. [Hollins’s] convictions were not supported by sufficient evidence.
V. [Hollins’s] convictions were against the manifest weight of the evidence.
VI. The trial court erred when it prohibited [Hollins] from using
fraudulent statements of [a co-defendant] where he was encouraged to lie [in order] to cross-examine him for purposes of impeachment. *3 VII. [Hollins’s] trial counsel was ineffective in failing to directly appeal the trial court’s suppression of fraud and statements of [a co-defendant] from being introduced at trial as privileged communications.
VIII. [Hollins’s] trial counsel was ineffective in requesting a single instruction on aiding and abetting be inserted before count one and for failing to have [Hollins] evaluated for her mental health. Having reviewed the record and the pertinent law, we affirm the decision of the trial court.
Hollins, together with Dana Thomas (“Thomas”), Dwayne Sims (“Sims”), Nigel Brunson (“Brunson”), and Garry Lake (“Lake”), were indicted for aggravated murder, murder, aggravated robbery, kidnapping, felonious assault, and aggravated burglary in connection with the October 24, 2016 killing of Cooley Lounge bartender Melissa Brinker (“Brinker”), and the robbery of patrons at the bar. As is relevant herein, Hollins was charged with aggravated murder in violation of R.C. 2903.01(A), three counts of aggravated murder in violation of R.C. 2903.01(B), six counts of aggravated robbery in violation of R.C. 2911.01(A)(1), aggravated
robbery in violation of R.C. 2911.01(A)(3), kidnapping in violation of R.C. 2905.01(A)(3), six counts of kidnapping in violation of R.C. 2905.01(A)(2),
aggravated burglary in violation of R.C. 2911.11(A)(1), aggravated burglary in violation of R.C. 2911.11(A)(2), felonious assault in violation of R.C. 2903.11(A)(1), five counts of felonious assault in violation of R.C. 2903.11(A)(2), and murder in violation of R.C. 2903.02(B), all with one-year and three-year firearm specifications.
Lake subsequently entered into a plea agreement with the state that included the requirement that he testify at trial. Thomas waived a jury trial, asking *4 the court to decide the charges against him. The charges against the remaining
defendants, Hollins, Brunson, and Sims, proceeded to trial in June 2018. As the matter commenced, Hollins moved to introduce evidence of statements made by Lake, with his attorney and investigator, that unbeknownst to Lake’s counsel, were recorded during a break in a meeting with the police. Hollins argued that the statements were exculpatory as to her and were also admissible under the crime- fraud exception to the attorney-client privilege. In opposition, the state maintained that the statements were privileged and that the content did not show evidence of a crime or fraud. After reviewing the recording and suppression hearing testimony
from Lake, his trial counsel, and Cleveland Police Detective Kathleen Carlin (“Det. Carlin”), the trial court ruled that the statements remained privileged and could not be used to cross-examine Lake.
Proceeding to the trial on the merits, the evidence presented by the state indicated that in December 2015, Hollins and her then-boyfriend, Marcus Williams (“Williams”) were involved in an argument at the Cooley Lounge. As the fight escalated, Hollins was struck in the head with a beer bottle and required medical attention. Hollins accused bartender Jane Svec (“Svec”) of setting up the incident, and Hollins was banned from the bar after that incident. The individuals who struck Hollins were charged with felonies. Svec testified at their trial, and the assailants were subsequently acquitted.
By the fall of 2016, Hollins was dating Brunson. Brunson, Sims, and Thomas were friends, and Lake and Thomas were raised together. Approximately *5 one week before the murder, Holly Smith (“Smith”), a friend of Hollins, received a Facebook post asking who was working at Cooley Lounge. Smith did not know who posted the question but believed it might have been Hollins. Additionally, Svec changed her work schedule shortly before this posting.
On the night of October 24, 2016, Lake needed a ride home from a party. Hollins picked him up. Brunson, Thomas, Sims, and Hollins’s two children were in the car. Lake testified that he fell asleep during the car ride. When he awoke, Hollins had parked the car at a playground in the area of West 132nd Street in Cleveland, in the vicinity of the Cooley Lounge. Brunson, Thomas, and Sims were no longer in the car. Meanwhile, Patrick Lorden (“Lorden”), Melissa Morton (“Morton”), James Fox (“Fox”), and Thomas Bernard (“Bernard”) were patrons at the bar, and Brinker was bartending. Patron Thomas Platt, a.k.a. “Andy,” was assisting Brinker by emptying the garbage and performing other tasks in exchange for free drinks. The evidence presented at trial indicated that two other individuals subsequently entered the bar, sat together, and ordered a drink. The two requested a cup to share it, and both men drank from the cup. A third man entered the bar. He later threw
the cup away, the cup that the other two men drank from, placing it in a receptacle that Andy had recently emptied. The third man joined the first two men at the bar. All three men suddenly produced weapons. The men began robbing and assaulting the patrons. Morton attempted to call the police, but one of the assailants pistol- whipped her. During the attack, Brinker was forced to the rear of the bar and shot *6 by one of the men who requested a drink. The other man who requested a drink also went to this area and shot her.
After the gunmen fled, the patrons discovered Brinker dead in the back of the bar. The police subsequently retrieved video surveillance evidence and
also retrieved the cup that the men drank from before the attack. DNA analysis of the cup established two profiles. Analysis showed that Thomas is 4.44 million times more likely than a coincidental match to an unrelated African-American, and Brunson is 130 million times more likely than a coincidental match to an unrelated
African-American person. Police also linked Sims to the attack.
According to Lake, when the three men returned to Hollins’s car, Thomas said that he had to shoot the bartender in the face because she saw him. Brunson laughed about having to “finish her off,” and Hollins said “that’s what she
get,” before driving them away from the scene.
Police recovered .380- and .45-caliber casings from this area. Lorden’s partially burned wallet and Brinker’s partially burned purse were recovered from East 80th Street in Cleveland, near the homes of Brunson, Sims, and Lake.
Cell phone records indicated that Hollins and Brunson were together at approximately 11:15 p.m., prior to the murder. Thomas’s phone was also in this
same area. Brunson’s phone made three *67 calls to the Cooley Lounge, ostensibly to conceal the identity of the caller from the recipient of the call. By 11:38 p.m., cell phone location data shows Thomas, Brunson, and Sims near the Cooley Lounge.
After the attack, Thomas confronted Hollins and said that she told him that there were no cameras at the bar. At that point, Hollins said that she was going to sue them civilly in connection with the December 2015 incident when she was attacked.
The state also presented evidence that prior to trial, Hollins had a conversation with Williams in which she discusses “blow[ing] down on” Smith prior
to her testimony, and Williams later responds that “blew down on her like you told me to.” According to Det. Carlin, this phrase conveys a threat or intimidation short of physical violence.
Hollins was acquitted of aggravated murder in violation of R.C. 2903.01(A), one count of aggravated robbery in violation of R.C. 2911.01(A)(1), and all firearm specifications, but she was convicted of all remaining charges. The court
merged numerous convictions and Hollins was sentenced to life without parole and various concurrent terms. [1]
Inconsistent Verdicts In the first assigned error, Hollins argues that the acquittals for aiding and abetting on the firearm specifications creates a fatal inconsistency with her
convictions for aiding and abetting on the principal offenses. In support of this *8 assigned error, Hollins cites United States v. Randolph , 794 F.3d 602 (6th Cir.2015), State v. Koss , 49 Ohio St.3d 213, 551 N.E.2d 970 (1990), and State v.
Capp
, 8th Dist. Cuyahoga No. 102919,
“The several counts of an indictment containing more than one count
are not interdependent and an inconsistency in a verdict does not arise out of
inconsistent responses to different counts, but only arises out of inconsistent
responses to the same count.”
State v. Lovejoy
,
In State v. Perryman , 49 Ohio St.2d 14, 25-26, 358 N.E.2d 1040 (1976), the jury found the accused guilty of aggravated murder and aggravated robbery, but found the accused not guilty of a specification involving aggravated robbery. In rejecting the claim of a fatal inconsistency, the Ohio Supreme Court stated:
The sentence was not based on an alleged inconsistency. The guilty verdict for count one reflects the jury’s determination that appellant was guilty of the felony-murder. The determinations rendered as to the respective specifications cannot change that finding of guilty. Furthermore, as indicated in R.C. 2929.03(A), one may be convicted of aggravated murder, the principal charge, without a specification. Thus, the conviction of aggravated murder is not dependent upon findings for the specifications thereto. Specifications are considered after, and in addition to, the finding of guilt on the principal charge
Id . at 26.
Later, in
Koss
, the appellant argued the jury’s guilty verdict of
voluntary manslaughter was inconsistent with the not guilty attendant firearm
*9
specification, and the Ohio Supreme Court concluded the verdicts were inconsistent.
Koss
,
However, appellate courts, including this court, have followed the
rationale in
Perryman. See State v. Amey
,
Amey relies on State v. Koss ,49 Ohio St.3d 213 ,551 N.E.2d 970 (1990), in support of his inconsistent-verdicts argument. In that case, the Ohio Supreme Court held that an acquittal on a gun specification but the finding of guilt on the principal offense of voluntary manslaughter for causing the death of a victim with the firearm were inconsistent, and therefore, the voluntary manslaughter conviction was reversed. There was no legal authority or analysis in support of the conclusion reached in that case. Koss , in fact, contradicted the Ohio Supreme Court’s earlier conclusion on inconsistency between the principal charge and the associated specification. State v. Perryman ,49 Ohio St.2d 14 , 25- 26,358 N.E.2d 1040 , paragraph 3 of the syllabus (1976) (“Where a jury convicts a defendant of an aggravated murder committed in the course of an aggravated robbery, and where that defendant is concurrently acquitted of a specification indicting him for identical behavior, the general verdict is not invalid.”).
Although some courts valued Koss based on recency, that support has faded. State v. Given , 7th Dist. Mahoning No. 15 MA 0108, 2016-Ohio- 4746, ¶ 73-75, citing Perryman (noting the conflict created by Koss and deeming the decision in Koss to be of limited value); see also State v. Lee , 1st Dist. Hamilton No. C-160294,2017-Ohio-7377 , ¶ 43; State v. Ayers , 10th Dist. Franklin No. 13AP-18,2013-Ohio-5601 , ¶ 24. It may be time to consider Koss as nothing more than an outlier; however, any such conclusion would be outside the scope of this appeal.
Id . at ¶ 17 -18.
Moreover, this court has consistently held that a not guilty verdict on
firearm specifications does not present a fatal inconsistency with a guilty verdict for
the principal charge.
See, e.g., State v. Jackson
, 8th Dist. Cuyahoga No. 105541,
Other courts have also reached the same conclusion and applied
Perryman. See State v. Smith
, 2d Dist. Montgomery No. 26116, 2015-Ohio-
1328, ¶ 17;
Ayers
,
precedential impact of the
Koss
decision to cases involving voluntary
manslaughter.”);
State v. Davis
, 6th Dist. Lucas No. L-00-1143, 2002-Ohio-
3046, ¶ 29;
State v. Glenn
, 1st Dist. Hamilton No. C-090205,
Hollins insists, however, that her convictions on the principal charges must be reversed due to the acquittals of the specifications in light of language in Capp describing firearm specifications as a “sentencing enhancement.”
Id
.,
Robinson argues that based upon the Ohio Supreme Court’s holding in State v. Evans , 113 Ohio St.3d 100,2007-Ohio-861 , 863 N.E.2d 113, [stating that completely dependent upon, the existence of the underlying criminal charge] a firearm specification is considered dependent on the underlying charge, and thus the two should be considered the same count. This court, however, has consistently rejected this argument. * * *.
Here, the evidence supported the felony murder, felonious assault, and the discharge of a firearm on or near a prohibited place, the court instructed on the specifications independently and separately, and the convictions on these counts were not dependent upon a finding on the specifications. Accordingly, consistent with this court's precedent, we overrule the tenth assignment of error.
Robinson
,
Here, it is not inconsistent for the jury to conclude that Hollins
participated in the offenses for which she was convicted, and also conclude that she
did not possess the firearm.
Accord Smith
,
Similarly, Randolph is inapposite. In that case in which the jury verdict determined both that the defendant engaged in drug conspiracy yet found that none of the charged drugs were “involved in” the conspiracy.” Id ., 794 F.3d at 607. In vacating this conviction, the court remarked that because the jury found that none of the charged drugs were “involved in” the conspiracy, it necessarily followed that Randolph could not be guilty of the charged conspiracy. Id . at 611.
Here, however, the acquittal is not inconsistent with the jury’s finding that Hollins aided and abetted the commission of the aggravated murder and other offenses. It is entirely consistent for the jury to conclude both that Hollins aided and abetted in the murder but did not possess the firearm. The evidence indicated that Hollins put the plan in motion following the unsuccessful prosecution of her assailants during the prior attack at the Cooley Lounge, that she drove them to the
bar, led them to believe there were no cameras, waited for them nearby and drove them from the scene, but did not personally possess the firearms.
In accordance with all of the foregoing, the first assigned error lacks merit.
Motion for a Mistrial In the second assigned error, Hollins argues that the trial court erred and deprived her of due process of law when it denied her motion for a mistrial after
Brunson’s counsel informed the jury during his closing argument that Sims had entered into a plea agreement.
A mistrial can be declared only when the ends of justice require it,
and a fair trial is no longer possible.
State v. Franklin
,
Here, the record indicates that, earlier in the record, i.e., the time that Sims actually exited the case, the trial court instructed the jury as follows:
Members of the jury, I am withdrawing from your consideration the case against Dwayne Sims. That case has been disposed of and is no longer before you for decision. You are to deliberate in this case only concerning the complaints pending against Nigel Brunson and Anita Hollins. You are not to speculate about why the case against Dwayne Sims has been withdrawn from your consideration, and it is not to influence your verdicts concerning Nigel Brunson and/or Anita Hollins in any way.
Your responsibility now is to decide the charges that remain pending against Nigel Brunson and Anita Hollins based solely on the evidence against him and her.
Later, after counsel for Brunson referenced Sims and the plea during
his closing argument, the trial court gave a curative instruction. The court stated,
“Ladies and gentlemen of the jury, you are to wholly disregard the last statement
that was made by Mr. Williams with regard to a co-defendant.”
In accordance with the foregoing, we conclude that the trial court did
not err in denying the motion for a mistrial. The court’s two instructions to the jury,
including the instruction when Sims exited the case and the instruction following
*14
Brunson’s counsel’s remark were sufficient to ameliorate any risk of prejudice to
Hollins.
Accord Davis
,
This assignment of error is without merit. Venue
In the third assigned error, Hollins argues that the state failed to establish that the offenses occurred in Cuyahoga County.
The state must prove that venue is proper beyond a reasonable doubt.
State v. Hampton
, 134 Ohio St.3d 447,
145, 150,
In this matter, the evidence indicated that the offenses occurred within Cleveland’s first police district, in the area of Cooley Avenue and West 130th
Street. The state also presented evidence that this area is within Cuyahoga County, Ohio. Moreover, all of the instructions for the offenses included the following provision, “you must find beyond a reasonable doubt that on or about the 24th day *15 of October, 2016 and in Cuyahoga County, Ohio, the defendants did * * *.” Thus, insofar as the offenses occurred in Cuyahoga County and the defendants were convicted of the offenses, the facts and circumstances established venue herein.
Insofar as Hollins complains that the verdict forms to not reference venue or require a finding as to venue, the record does not reveal an objection.
Moreover, the court in Shedwick , rejected the same challenge to the verdict forms and stated:
In this case, the jury verdict forms for the aggravated robbery and aggravated burglary charges contained language specifying that the jury found appellant guilty of each count as it was charged in the indictment. Each count of the indictment specified that the charged crime occurred in Franklin County. Moreover, the jury instructions directed the jurors that, in order to find appellant guilty of the charged crimes, they must find beyond a reasonable doubt that the crimes were committed in Franklin County. The language of the verdict forms, which were signed by all members of the jury, along with the language used in the indictment, establishes that the jury found that the crimes were committed in Franklin County. Thus, there was no error with respect to venue in the jury verdict forms.
Id
.,
Similarly, in this case, each count of the indictment charged that the offenses occurred in Cuyahoga County, and the court’s instructions to the jury
informed them that the state alleged that the offenses occurred in Cuyahoga County. We find no prejudicial error in connection with the verdict forms.
Sufficiency of the Evidence In the fourth assigned error, Hollins argues that there is insufficient evidence to support her convictions for aiding and abetting in the offenses of aggravated murder, aggravated robbery, kidnapping, aggravated burglary, felonious
assault, or murder, because the evidence established only that she drove others to the Cooley Lounge. Hollins states that she did not engage in a plan manifesting the purpose to kill, and the evidence indicated that it was only during the offenses that Brinker learned the identity of the assailants so they shot her.
A sufficiency challenge requires a court to determine whether the
state has met its burden of production at trial and to consider not the credibility of
the evidence but whether, if credible, the evidence presented would support a
conviction.
Thompkins
,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt
. State v. Jenks
, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus following
Jackson v. Virginia
,
“A person aids or abets another when he supports, assists, encourages, cooperates with, advises, or incites the principal in the commission of the crime and shares the criminal intent of the principal.” State v. Langford , 8th
Dist. Cuyahoga No. 83301,
defendant’s intent. Johnson at 245. “Participation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed.” Id . Acts which aided or abetted another include those which “supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime * * *.” Id .
Aggravated murder under R.C. 2903.01(B) provides, in relevant part, that “[n]o person shall purposely cause the death of another * * * while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit * * * aggravated burglary * * *.” R.C. 2903.01(B). Pursuant to R.C. 2901.22(A):
A person acts purposely when it is the person’s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender’s specific intention to engage in conduct of that nature.
Where a defendant enters into a common design with others to
commit armed robbery by the use of force, violence, and a deadly weapon, and all
the participants are aware that an inherently dangerous instrumentality is to be
employed to accomplish the felonious purpose, a homicide that occurs during the
commission of the felony is a natural and probable consequence of the common plan
that is presumed to have been intended.
State v. Thomas
,
Accord Capp
,
In this matter, there was sufficient evidence to demonstrate that a Hollins entered into a common design with others to commit armed robbery by the use of force, violence, and a deadly weapon, and all the participants are aware that an inherently dangerous instrumentality is to be employed to accomplish the felonious purpose. Additionally, a homicide occurred during the commission of the planned offenses and it was a natural and probable consequence of the common plan that is presumed to have been intended. Here, the record shows that in December 2015, Hollins was attacked and injured during a fight at the Cooley Lounge. She accused Svec of setting up the attack. The assailants were acquitted in a trial during which Svec testified. After that, there is some evidence from Smith
that Hollins may have inquired about who was working at the bar. Hollins contacted *19 Williams to “blow down” to Smith prior to her testimony during the instant trial. Svec changed her work schedule shortly before the murders. Hollins was with Brunson, Thomas, and Sims immediately prior to the murders. She drove Brunson, Thomas, and Sims to the bar. Brunson made calls to the bar in which he attempted to conceal the number from which he was calling. Hollins remained parked nearby while the assailants were inside the bar, then drove them from the scene. Brunson, Thomas, and Sims attacked and robbed the patrons. Thomas shot Brinker, then Brunson shot her in the face. Upon learning that Thomas shot the bartender and that Brunson “finished her off,” Hollins said, “that’s what she get.” After the murders, Thomas confronted Hollins about her prior claim that there were no
cameras at the bar.
Viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the offenses proven
beyond a reasonable doubt
.
From the evidence presented, a jury could reasonably
conclude that Hollins participated in the crimes at issue and shared criminal intent
in light of her actions and statements both before and after the shooting. Given the
state’s evidence, a jury could reasonably conclude that she aided and abetted in the
planning and commission of the offenses. The jury could conclude that she entered
into a common design with others to commit the offenses which involved weapons,
and that the murder occurred during the commission of the planned offense and
was a natural and probable consequence of the common plan.
Accord Capp
;
State
v. Holbrook
, 6th Dist. Huron No. 14-H-003,
location where the codefendant hit the victim in the head with a crowbar after a social media war.).
The fourth assigned error is without merit.
Manifest Weight of the Evidence
In the fifth assigned error, Hollins argues that her convictions are
against the manifest weight of the evidence. She argues that although there is
evidence that she drove the others to the bar, she did not know what was going to
happen, and Brinker was killed only after she saw Thompson’s face during the
robbery.
“[W]eight of the evidence involves the inclination of the greater
amount of credible evidence.”
State v. Thompkins
, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997). Weight of the evidence concerns “the evidence’s effect of
inducing belief.”
State v. Wilson
,
to determine “‘whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’”
Thompkins
at 387, quoting
State v. Martin
, 20
Ohio App.3d 172,
Here, the record indicates that Hollins’s attackers were acquitted during the December 2015 attack at the Cooley Lounge. Hollins blamed Svec for the *21 incident. Prior to the murders, Smith believed that Hollins attempted to determine who was working at the bar. Hollins and Williams communicated about contacting Smith prior to trial. Hollins drove the assailants to the bar and waited at a nearby park. Upon learning the bartender was killed, Hollins said, “that’s what she get.” Thomas subsequently confronted Hollins about her prior claim that there were no
cameras at the bar, and she stated that she was going to file a civil action against the bar. Cell phone data showed that the assailants were together before during and
after the offenses.
In this matter, we cannot say that in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. A reasonable factfinder could conclude that Hollins planned the offenses after her assailants were acquitted and that she aided and abetted in the commission of the offenses. The
convictions are not against the manifest weight of the evidence
The fifth assignment of error is without merit. Statements Made During Break in Lake’s Meeting with Police In the sixth assigned error, Hollins argues that the trial court erred in concluding that she could not cross-examine Lake regarding his statements to his trial attorney and his investigator that were recorded, unbeknownst to his attorney, during a break in a meeting with the homicide detectives. Hollins maintains that they are exculpatory to her. She also claims that these statements were made in *22 furtherance of a fraud so they come within the crime-fraud exception to the attorney-client privilege and could have been used for impeachment of Lake.
As an initial matter we note that R.C. 2317.02(A) provides that an
attorney “shall not testify * * * concerning a communication made to the attorney by
a client in that relation or the attorney’s advice to a client.” Waiver involves the
client’s relinquishment of the protections of R.C. 2713.02(A) once they have
attached. Further, Ohio recognizes the crime-fraud exception to prevent
concealment of attorney or client wrongdoing.
Squire, Sanders & Dempsey, L.L.P.
v. Givaudan Flavors Corp.
, 127 Ohio St.3d 161,
A party invoking the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a crime or fraud has been committed and that the communications were in furtherance of the crime or fraud. United States v. Jacobs (C.A.2, 1997), 117 F.3d 82, 87. The mere fact that communications may be related to a crime is insufficient to overcome the attorney-client privilege. Id. at 88, quoting United States v. White (C.A.D.C.1989), 281
U.S. App. D.C. 39,
Id . at 384.
“Once there is a showing of a factual basis, the decision whether to engage in an in camera review of the evidence lies in the discretion of the * * * court.” Id .
Under
Brady v. Maryland
,
In this matter, as to waiver, Det. Carlin testified that she learned through Lake’s attorney that he wanted to make a statement and that he would be able to make identification of four individuals. To Hollins, this constituted a waiver of the privilege. Lake’s counsel, on the other hand, stated that he informed Det. Carlin only that Lake wanted to proffer according to his knowledge, thereby leaving the attorney-client privilege intact. He also stated that that he requested the break and asked the detectives to leave the room because he “didn’t feel my client was
clearly explaining[.]” After the detectives left the room, he did not know that they were being recorded. The trial court also heard from Lake about the circumstances of his photo identification of suspects. Lake stated that he told his attorney the names and that he told “them” the names, but this statement lacks clarity in terms
of time and who “them” was. The state strongly opposed the motion and stated that the conversation involved a “back and forth” “about a prior discussion” and information Lake had previously provided to the attorney. The court stated that it
reviewed the tape and had its own conclusion and opinion about what it shows. The *24 court concluded that the facts were insufficient to show that Lake had waived his attorney-client privilege prior to the inadvertent recording. The court ruled that prior to his recorded statement, Lake spoke with his attorney and gave information that was not yet to be divulged until the official statement. We find no abuse of discretion. The privilege belongs to Lake. There is nothing in the record from which we can conclude that it was waived or otherwise vitiated.
This assigned error lacks merit.
Ineffective Assistance of Counsel In the seventh assigned error, Hollins argues that her trial counsel was ineffective for failing to take an interlocutory appeal from the trial court’s ruling forbidding the cross-examination of Lake on statements made between Lake, his attorney, and investigator during a break in their meeting with police. In order to establish a claim of ineffective assistance of counsel, a defendant must establish that counsel’s performance fell below an objective standard of reasonable representation. Strickland v. Washington , 466 U.S. 668,
687,
Here, this court determined that no error occurred in connection with the court’s ruling denying Hollins request to cross-examine Lake about the statements Lake, his counsel and investigator made during the break in the meeting with police. Accordingly, a claim of ineffective assistance of counsel based upon the failure to take an interlocutory appeal on this ruling must likewise fail. See State v.
Henderson
,
The seventh assigned error is without merit. Ineffective Assistance as to Charge and Competency / Sanity In the eighth assigned error, Hollins that her trial attorney provided ineffective assistance of counsel by requesting a single aiding and abetting instruction for Count 1, aggravated murder in violation of R.C. 2903.01(B). She also argues that her trial counsel was ineffective for failing to request sanity and competency evaluations because the PSI prepared in this matter indicates that she
“reported that she was diagnosed with Bipolar, Depression, PTSD, Schizophrenia, and Anxiety” and was taking medication while in jail.
1. Aiding and Abetting Instruction
Hollins argues that her trial counsel was ineffective in requesting a single instruction on aiding and abetting was given prior to the instructions on Count 1 and was not repeated throughout the charge. She also complains that in instructing the jury on felony murder in violation of R.C. 2903.01(B), the court did not clearly advise the jury that it was required to find that she had purpose to cause
the murder of Hollins and not just the purpose to engage in the underlying felony.
Generally, “[i]n examining errors in a jury instruction, a reviewing court must consider the jury charge as a whole and ‘must determine whether the
jury charge probably misled the jury in a matter materially affecting the complaining
party’s substantial rights.’”
State v. Wilks
,
4347,
Turning to the first argument raised herein, this court has approved
giving a single aiding and abetting instruction with instructions on other principal
offenses.
See State v. Crump
, 8th Dist. Cuyahoga No. 107460,
¶ 53, citing
State v. Singleton
, 8th Dist. Cuyahoga No. 98301,
With regard to the second argument raised herein, R.C. 2903.01(B) defines aggravated murder as follows:
[N]o person shall purposely cause the death of another or the unlawful termination of another’s pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.
Purpose is defined in R.C. 2901.22(A) as follows: A person acts purposely when it is his specific intention to cause a
certain result, or when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to *27 accomplish thereby, it is his specific intention to engage in conduct of that nature.
Purpose to kill is required in order to establish the offense of
aggravated murder.
State v. Phillips
,
In this matter, the jury instructions provided: The defendants, Nigel J. Brunson and Anita Hollins, are charged with aggravated murder in violation of Revised Code section 2903.01(B) in Counts 2, 3, and 4 of the indictment.
Before you can find one or more of the defendants guilty, you must find beyond a reasonable doubt that on or about the 24th day of October, 2016 and in Cuyahoga County, Ohio, the defendants did purposely cause the death of Melissa A. Brinker while committing or attempting to commit or while fleeing immediately after committing or attempting to commit the offense of aggravated robbery in Count 2, kidnapping in Count 3, and aggravated burglary in Count 4.
The terms purpose and cause have been previously defined, [as follows:]
To do an act purposely is to do it intentionally and not accidentally. Purpose and intent mean the same thing. The purpose with which a person does an act is known only to that person unless they express it to others or indicate it by their conduct.
The purpose with which a person does an act or brings about a result is determined from the manner in which it is done, the means, or weapon used, and all the other facts and circumstances in evidence. You may infer a purpose to cause the death of another when the natural or probable consequence of the defendant’s act is to produce death in light of all the surrounding circumstances. Such circumstances include the weapon used and its capability to destroy life.
If you find that the calculated to destroy life, you may but are not required to infer the purpose to cause death from the use of the weapon whether an inference is made rests entirely with you.
In
State v. Whitfield
, 2d Dist. Montgomery No. 22432, 2009-Ohio-
293, the court held that this same instruction did not relieve the state of its burden
of proving that the defendant had a purpose or specific intent to cause the victim’s
death.
Accord State v. Lollis
, 9th Dist. Summit No. 26607,
beyond a reasonable doubt.
In accordance with the foregoing, the first portion of the eighth assignment of error is without merit.
2. No Sanity of Competency Evaluations
Hollins next argues that her trial counsel was ineffective in failing to
seek sanity and competency evaluations in this matter because during her pretrial
investigation report, she stated that she had been seeing a psychiatrist, she indicated
that she suffered from bipolar, depression, post-traumatic stress disorder,
*29
schizophrenia, anxiety, and also reported prior suicide attempts. She was
prescribed medication while in jail.
A person who “lacks the capacity to understand the nature and object
of the proceedings against him, to consult with counsel, and to assist in preparing
his defense” may not stand trial.
State v. Skatzes
,
896,
An adult defendant is presumed competent to stand trial: A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant’s present mental condition, the defendant is
incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant’s defense, the court shall find the defendant incompetent to stand trial * * *.
R.C. 2945.37 (G); Berry at 360.
The defense bears the burden of production to rebut the
presumption of competence.
State v. Williams
,
A defendant has a constitutional right to a competency hearing only when there is sufficient “indicia of incompetence” to alert the court that an inquiry is needed to ensure a fair trial. Berry , 72 Ohio St.3d 354, 359, 650 N.E.2d 433. Considerations in this regard might include supplemental medical reports, specific references by defense counsel to irrational behavior, and the defendant’s demeanor
during trial.
State v. Franklin
, 97 Ohio St.3d 1,
The right to a hearing rises to the level of a constitutional guarantee when the record contains sufficient ‘indicia of incompetency’ to necessitate inquiry to ensure the defendant’s right to a fair trial. Objective indications such as medical reports, specific references by defense counsel to irrational behavior, or the defendant’s demeanor during trial are all relevant in determining whether good cause was shown after the trial had begun.
State v. Thomas
, 97 Ohio St.3d 309,
In this matter, we find no error in the trial court failing to hold a competency hearing after trial had commenced. The record does not contain indicia of incompetency. There is no evidence that Hollins was incapable of understanding the proceedings or of assisting counsel in her defense. At no time did her experienced trial counsel mention any irrational behavior, nor suggest that she was incompetent. As to the claimed diagnoses, Hollins had no information about where she had been evaluated, diagnosed, or treated, and no information about the medication she had previously received. She also had a significant offense history
and involvement in a civil matter involving the improper transfer of real estate, and
there is no indication that she was incapable of understanding the charges against
her or unable to assist in her defense. We find no error in the trial court failing to
hold a competency hearing after obtaining the PSI prior to sentencing.
Accord State
v. Harris
, 8th Dist. Cuyahoga No. 102124,
Moreover, as to the claimed medication and diagnoses, we note that
although Hollins was on Buspar and Visparil while in jail, the “fact that a defendant
is taking antidepressant medication or prescribed psychotropic drugs does not
negate his competence to stand trial.”
State v. Ketterer
, 111 Ohio St.3d 70, 2006-
Ohio-5283, 855 N.E.2d 48, ¶ 71. Furthermore, a defendant is not presumed to be
incompetent solely because he is receiving or has received treatment for mental
illness. The mere fact that appellant was taking these medications does not
necessarily render him incompetent. R.C. 2945.37(F);
Bock
,
The eighth assigned error lacks merit.
Judgment is affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
_____
PATRICIA ANN BLACKMON, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
RAYMOND C. HEADEN, J., CONCUR
Notes
[1] Lake pled guilty to and was sentenced to two years in prison; Thomas was found guilty of aggravated murder and other offenses and was sentenced to life without parole and other concurrent terms; Sims pled guilty to two counts of aggravated robbery with three-year firearm specifications and was sentenced to a total of 17 years of imprisonment; Brunson was found guilty of aggravated murder and other offenses and was sentenced to life without parole and other concurrent and consecutive terms.