State v. HoughState v. Hough
JUDGMENT: AFFIRMED
BEFORE: Celebrezze, J., McMonagle, P.J., and Dyke, J.
RELEASED: June 17, 2010
JOURNALIZED:
David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: John R. Kosko
Katherine Mullin
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court’s decision. See
{¶ 1} Appellant, Terrance Hough, appeals his convictions for aggravated murder and attempted murder claiming the state did not show that he acted with prior calculation and design, that the state introduced improper “other acts” and victim-impact evidence, and that his counsel was ineffective. After a thorough review of the record and based on the following case law, we affirm appellant’s convictions.
{¶ 2} On July 4, 2007, a group of friends were watching the city of Cleveland’s fireworks display. Following the display, Jacob Feichtner, Katherine Rosby, Bruce Anderson, Donald Walsh, Katherine Nicholas, Mary Ellen Skora, and Valorie Skora went to the home of Jacob Feichtner’s father on Sky Lane Drive in Cleveland. They arrived at approximately 11:00 p.m., and Jacob and Donald began to light off a few fireworks of their own. The rest of the group watched from the front lawn and driveway. Neighbors in at least two houses across the street were outside to watch the fireworks display as well. Sometime before midnight, after the display had wound down, Valorie went inside the Feichtners’ home, the neighbors went inside their homes, and Mary Ellen left to go home.
{¶ 3} Appellant lived next door to the Feichtners. Just after midnight, he left his home with a .40 caliber Beretta semiautomatic handgun loaded
{¶ 4} Katherine Rosby was seated next to where Jacob was standing. Mistaking the gunshots for firecrackers, she tucked her head down by her legs and asked if Jacob was setting off firecrackers behind her back. Appellant shot her twice in the back, killing her. Bruce Anderson, who was seated next to Ms. Rosby, tried to roll out of the way, but appellant shot him twice in the back, killing him.
{¶ 5} With every shot, appellant shouted “yeah.” Within moments, three people had been shot and killed in the Feichtners’ driveway. Appellant then turned and began walking back toward his home.
{¶ 6} Katherine Nicholas, who was on the Feichtners’ front lawn, began screaming. Appellant turned and took aim at Ms. Nicholas. Her fiancé, Donald Walsh, ran to her and pushed her out of the way. Walsh was hit in
{¶ 7} Down the street on Sky Lane Drive, off-duty Cleveland police detective Joseph Bovenzi heard what he knew to be gunshots. He retrieved a gun from inside his home and headed toward the area where he thought the shots had originated. Det. Bovenzi arrived in the front yard of the Feichtners’ home and was directed to appellant’s house next door in his search for the gunman. He found appellant seated at the kitchen table. Det. Bovenzi asked appellant what had happened and appellant responded, “I snapped. I snapped. I shot those people. Did I kill them?” Appellant was arrested.
{¶ 8} A Cuyahoga County grand jury returned a capital indictment against appellant charging him with three counts of aggravated murder with prior calculation and design in violation of
{¶ 10} Appellant appeals from his convictions assigning four errors for our review.
Law and Analysis
Prior Calculation and Design
{¶ 11} Appellant first argues that “[t]he evidence cannot sustain the element of prior calculation and design for the three convictions of aggravated murder,
{¶ 12} In State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence: “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
{¶ 13} Aggravated murder as set forth in
{¶ 15} In Jenkins, a major factor to the finding that the state did not offer sufficient evidence of prior calculation and design was that “the defendant did not know the victim, that there had been no previous disagreement, and that the meeting was at random.” Id. at 103, 355 N.E.2d 825. Here, appellant knew the victims. He had expressed his displeasure with the gatherings that took place at the Feichtners’ home over the years. He had a strained relationship with the Feichtners spanning some five years and included 12 complaints to the police.
{¶ 17} Testimony was adduced that showed appellant exited his house after the small fireworks display was over and after the neighbors across the street, who had been watching the display, all returned to their homes. He then walked across his yard and confronted Jacob, a person with whom he had a strained relationship over the years, and stated something to the effect of “You fucking kids won’t be doing this shit anymore.” His actions took only a short amount of time, but, on the whole, the evidence shows a plan where appellant intended to kill those making noise in the yard next to his house and anyone who could identify him as the gunman.
{¶ 18} “[P]rior calculation and design can be found even when the killer quickly conceived and executed the plan to kill within a few minutes.” State v. Coley, 93 Ohio St.3d 253, 264, 2001-Ohio-1340, 754 N.E.2d 1129. In State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, the Ohio Supreme Court held that one’s actions could display a plan to kill. In Conway, upon hearing that his brother had been stabbed, Conway retrieved a gun from his car and began shooting at the alleged perpetrator. The Court held that “[a]lthough they took only a few minutes, Conway’s actions went beyond a momentary impulse and show that he was determined to complete a specific course of action. Such facts show that he had adopted a plan to kill.” Id. at ¶46. In the instant case, appellant conceived a plan to kill and acted on that plan with brutal composure.
{¶ 19} Evidence of a preconceived plan is not the only way to prove the element of prior calculation and design. The state can also offer “evidence that the murder was executed in such a manner that circumstantially proved the defendant had a preconceived plan to kill. See, e.g., State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81; [State v. Goodwin (1999)], 84 Ohio St.3d 331, 703 N.E.2d 1251; State v. Campbell (2000), 90 Ohio St.3d 320, 738 N.E.2d 1178.” State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218, ¶19. This “allows the state to satisfy its burden by showing that the murder was executed in such a manner that circumstantially proves a preconceived notion that the victim would be killed regardless of the situation. [State v. Taylor (1997)], 78 Ohio St.3d 15, 676
{¶ 20} Here, appellant shot three people multiple times at close range. His statement upon first confronting Jacob can properly be construed by a reasonable trier of fact as evidencing his intent to kill. These execution-style killings bespeak aforethought and provide circumstantial evidence that appellant acted with prior calculation and design.
{¶ 21} Appellant argues that he “just snapped” when he heard Jacob’s comment and made an instantaneous decision to kill. This argument is contradicted by his actions of selecting a gun from inside his home and taking it outside after those watching the fireworks across the street had gone back inside their homes. This argument is also undercut by the comment appellant made before anyone addressed him.
{¶ 22} The evidence in the record could convince a reasonable trier of fact that the element of prior calculation and design had been met by the state. Appellant’s convictions for aggravated murder are supported by sufficient evidence, and therefore, his first assignment of error is overruled.
{¶ 23} Appellant next argues that “[t]he trial court erred by allowing prejudicial other acts evidence to be introduced to the jury.” He would classify testimony and images of other firearms introduced at trial as prejudicial “other acts” evidence. We disagree.
{¶ 24} Appellant argues that the testimony of Cleveland police officer Jeffrey Sampson offered improper evidence of the number and type of firearms found in appellant’s home. Officer Sampson testified that the Cleveland Police recovered several handguns and long-barreled firearms from within appellant’s home. The state offered photographs of those weapons and presented two handguns — which were later withdrawn — in addition to the one used in the killings. Appellant argues this was improper “other acts” evidence and was irrelevant.
{¶ 25} “The admission or exclusion of evidence rests within the sound discretion of the trial court.” State v. Jacks (1989), 63 Ohio App.3d 200, 207, 578 N.E.2d 512. Therefore, “[a]n appellate court which reviews the trial court’s admission or exclusion of evidence must limit its review to whether the lower court abused its discretion.” State v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543 N.E.2d 1233. A trial court abuses its discretion when it acts in an unreasonable, arbitrary, or unconscionable manner. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 27} However, the evidence of other weapons in appellant’s home goes to one of the elements of prior calculation and design; namely, the choice of weapon. Jenkins at 102, 355 N.E.2d 825. The fact that other weapons were located throughout appellant’s home, including his bedroom, speaks to his conscious decision to choose a particular firearm to carry out his plan. This is not “other acts” evidence, but proper, relevant evidence admitted at trial under
{¶ 28} Appellant also complains that the state elicited testimony from his wife that he had been verbally abusive and physically violent toward her. On direct examination, Mrs. Hough testified that she “never thought [appellant] could hurt anybody.” The testimony appellant takes issue with
{¶ 29} In attempting to establish that he was a person incapable of harming another, appellant opened the door to rebut that characterization on cross-examination. See State v. Jalowiec, 91 Ohio St.3d 220, 232, 2001-Ohio-26, 744 N.E.2d 163 (finding that testimony consisting of “‘[h]e is a great guy,‘” could be “rebutted under
{¶ 30} Appellant also failed to object to this testimony at trial and thus has waived all but plain error. “Errors that arise during a trial that are not brought to the attention of the court are ordinarily waived and may not be raised on appeal unless there is plain error, i.e., but for the error, the outcome of the trial clearly would have been otherwise.” State v. McKee, 91 Ohio St.3d 292, 294, 2001-Ohio-41, 744 N.E.2d 737. Applying this standard, it cannot be said that admission of this brief testimony about an instance where appellant grabbed the arm of his wife rises to the level of plain error. Appellant’s second assignment of error is overruled.
{¶ 31} Appellant next argues that “[t]he trial court erred by permitting the jury to consider victim-impact evidence in the culpability phase of trial.” He takes issue with the testimony of Roland Feichtner, Jacob’s father, when he testified about his service in Vietnam and seeing the bodies of his friends killed there, as well as his seeking counseling.
{¶ 32} Victim-impact evidence is excluded from the guilt phase of a trial because “it is irrelevant and immaterial to the guilt or innocence of the accused; it principally serves to inflame the passion of the jury.” State v. Carlisle, Cuyahoga App. No. 90223, 2008-Ohio-3818, ¶53. “True victim-impact evidence, pursuant to the terms of
{¶ 34} In the present case, this small portion of Mr. Feichtner’s testimony can properly be characterized as victim-impact evidence because it is not “related to the facts attendant to the offense.” Fautenberry at 440, 650 N.E.2d 878. However, this brief testimony did not result in prejudice to appellant. The testimony complained of in Fautenberry regarded the sentence that should be imposed by the court. Here, no statement by Roland Feichtner involved what appellant’s sentence should be, only that Mr. Feichtner had seen dead bodies before while serving his country in Vietnam and that he was seeking counseling. This does not rise to the level of improper victim-impact evidence as that complained of in Fautenberry in light of all the evidence against appellant.
{¶ 35} Overwhelming evidence of appellant’s guilt existed. The jury did not need to resort to sympathy for the victims in order to convict appellant. Eyewitness testimony, ballistics evidence, gunshot residue results, and
{¶ 36} The jury likewise did not use this testimony to appellant’s detriment in the penalty phase of the trial because it recommended that appellant receive life without parole rather than the death penalty. “‘Absent an indication that the panel was influenced by or considered the victim impact evidence in arriving at its sentencing decision,’ the admission of such is not reversible error.” Fautenberry at 439, 650 N.E.2d 878, quoting State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754.
{¶ 37} Even though this brief, unsolicited testimony was made during the guilt phase, it did not result in prejudice to appellant. Appellant’s third assignment of error is overruled.
Ineffective Assistance of Counsel
{¶ 38} Finally, appellant argues that he “was denied effective assistance of counsel at trial.” He claims that trial counsel failed to request a limiting instruction for the other firearms found at his home, that counsel failed to
{¶ 39} In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of appellant’s trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407.
{¶ 40} In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98, 477 N.E.2d 1128; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164.
{¶ 41} The Ohio Supreme Court held in State v. Bradley (1989), 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373, that “‘[w]hen considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel’s essential duties to his client. Next, and analytically separate from the question of whether the defendant’s Sixth Amendment rights were violated, there must be a determination as to
{¶ 42} “Even assuming that counsel’s performance was ineffective, this is not sufficient to warrant reversal of a conviction. ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 [101 S.Ct. 665, 667-68, 66 L.Ed.2d 564] (1981).’ Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066. To warrant reversal, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Strickland, supra, at 694, 104 S.Ct. at 2068.” Bradley at 142.
{¶ 43} Appellant first argues that counsel failed to ask for a limiting instruction for the other firearms recovered from his home. As explained above, this was relevant evidence to show a conscious choice of which firearm appellant chose to use to carry out his plan. A limiting instruction would
{¶ 44} Appellant also argues that trial counsel failed to object to several portions of testimony and a statement by the prosecutor in closing arguments. He alleges that the testimony regarding the injuries and subsequent treatment of Donald Walsh were improper victim-impact evidence presented in the guilt phase of his trial and should have been objected to. However, as previously noted, the Ohio Supreme Court has held that “[e]vidence relating to the facts attendant to the offense is ‘clearly admissible’ during the guilt phase, even though it might be characterized as victim-impact evidence.” State v. McKnight, supra.
{¶ 45} The wounds appellant inflicted on Donald Walsh are facts attendant to the offense that show he was shot and seriously wounded by appellant. See State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶81. While some of the testimony regarding the follow-up care and search for a bone donor may have been beyond the permissible scope, appellant has failed to point to how this testimony prejudiced him in light of the overwhelming evidence of his guilt in the record.
{¶ 46} Appellant also takes issue with counsel’s failure to object to other testimony indicating that he was “such a hot head” and that he “belonged in
{¶ 47} Appellant also argues that the state made inappropriate comments during closing arguments, which his trial counsel failed to object to. In closing arguments, the prosecutor commented on the character of the people appellant had killed. However, “a reasonable attorney may decide not to interrupt his opponent’s closing argument. State v. Keene [], 81 Ohio St.3d 646, 668, [1998-Ohio-342,] 693 N.E.2d 246. Objections can “‘disrupt the flow of a trial‘” and “‘are considered technical and bothersome by the fact-finder.‘” A decision not to interrupt during closing arguments reflects an ‘objective standard of reasonable representation.‘” (Internal citations omitted.) State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶154.
{¶ 48} Finally, appellant complains that trial counsel was ineffective for not properly filing a motion to waive court costs. Appellant’s attorney filed a motion to waive court costs based on appellant’s indigency 16 days after the court imposed costs of $7,741.10. While appellant argues that once court
Judgment 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 appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
CHRISTINE T. McMONAGLE, P.J., and
ANN DYKE, J., CONCUR