STATE OF OHIO, Plaintiff-Appellee, vs. DERON HOWARD, Defendant-Appellant.
APPEAL NO. C-130058
TRIAL NO. B-1101634
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 26, 2014
[Cite as State v. Howard, 2014-Ohio-655.]
FISCHER, Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 26, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Deron Howard appeals the judgment of the trial court finding him guilty of aggravated murder, attempted murder, and two counts of aggravated robbery, all of which were accompanied by firearm specifications, and sentencing him to an aggregate sentence of life in prison without the possibility of parole, plus six years’ additional confinement. Because we find no merit in Howard’s six assignments of error, we affirm the judgment of the trial court.
Factual and Procedural Background
{¶2} On July 7, 2007, Charles McCray, Jr., his girlfriend, Sarah Griesinger, Michael Tucker, and Kara Brown drove to a home on Yarmouth Street in Bond Hill so that McCray could change out of his work clothes before they all headed to the movies. The women got out of the car and walked toward the house when at least two people confronted McCray and Tucker on the street. McCray told the women to run. Someone hit Tucker in the face with a hard object, knocking him unconscious. When Tucker regained consciousness, he realized he had been shot in the back, and he felt someone going through his pockets. The attackers got away with an iPod, cash, and a Nokia cell phone. Tucker was able to crawl into the house and seek help. McCray, however, had been shot in the torso and died from blood loss.
{¶3} The police recovered hollow-point, .380-caliber bullet casings from the scene on Yarmouth, but did not locate any other physical evidence. Neither of the women, nor Tucker, could make an identification of the suspects at the time. With little evidence at this point and no leads, the case remained unsolved.
{¶4} In December 2010, Martinez Pope, who had been charged with carrying a concealed weapon, approached police through his attorney with
{¶5} Based on the information from Pope, the police assisted Pope in arranging a secretly recorded phone call between Pope and Howard. On the call, Howard discussed the night of July 7, 2007. Howard stated that he had been the only shooter where one guy had been “boxed up,” and that he had used hollow-point bullets. Howard stated that he had been in an earlier shoot-out in Price Hill where he had been the only one shooting as well.
{¶6} The police brought Howard to the station for an interview in January 2011. Two officers conducted the interview and informed Howard of his Miranda rights. Howard initially denied any knowledge of the July 7, 2007 shooting. When Howard realized the police suspected his involvement, Howard told police that he wanted a lawyer, but he also stated that he wanted to be the first one to give police his side of the story. Howard then admitted that he had been involved in the murder, attempted murder, and robbery that night with Buddha and Mike Muscle. He admitted that the three had been in Price Hill earlier in the night looking for people to rob when an unknown person had opened fire on them. The group had left Price Hill and had gone to Yarmouth Street in Bond Hill. Howard stated that he had
{¶7} The state indicted Howard for aggravated robbery, aggravated murder, and murder, accompanied by firearm specifications, with respect to McCray, aggravated robbery and attempted murder, also accompanied by firearm specifications, with respect to Tucker, and having a weapon while under a disability. Howard waived his right to a jury trial and his case was tried to a three-judge panel. At trial, the state presented testimony from Griesinger, Tucker, and Brown, who each recounted the events of July 7, 2007. The state also presented testimony from the responding officer, investigative officer Jennifer Mitsch, and Pope, among others. The state introduced the taped call between Pope and Howard, as well as a recording and transcript of Howard’s interview with police.
{¶8} The trial court found Howard guilty on all counts, except for having a weapon while under a disability, which had been dismissed. Although the state sought a death-penalty sentence, the trial court imposed an aggregate sentence of life without the possibility of parole, plus an additional six-year prison term. Howard now appeals.
Howard’s Motions to Suppress
{¶9} In his first assignment of error, Howard argues that the trial court erred by denying his motions to suppress (1) an identification of Howard made by
{¶10} First, Howard argues that the trial court erred in overruling his motion to suppress a pretrial identification made by Tucker in 2011 from a police photo lineup. Howard argues that the state violated identification procedures laid out in
{¶11} Second, Howard argues that the trial court erred by failing to suppress his interview with police because Howard had made an unambiguous request for counsel during the interview, which the police had ignored in violation of his Miranda rights. Appellate review of a trial court’s ruling on a motion to suppress presents a mixed question of law and fact. State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 40. This court accepts the trial court’s factual findings if they are supported by competent, credible evidence; however, we independently determine, without deference to the trial court, whether the facts satisfy the applicable legal standard. Id.
{¶13} In Kottner, this court cited several examples where courts have held that an accused’s request for counsel was too ambiguous. See Kottner at ¶ 30-31. In one of those examples, this court held that the following statement was not an unambiguous and clear request for counsel: “I would prefer a lawyer but I want to talk to you now[.]” See id. at ¶ 31, quoting State v. Carr, 1st Dist. Hamilton No. C-090109, 2010-Ohio-2764, ¶ 18.
{¶14} At the beginning of Howard’s police interview, the police informed Howard of his Miranda rights, including his right to have a lawyer present. The officers told Howard that this was his opportunity to tell his side of the story, and that he was the first person with whom they had talked. Howard told the officers, “I would like to talk to a lawyer, I also want to talk to you, but like you say, I’m first * * * always good to be first.” Later on, Howard stated, “But it’s like – I want a lawyer, but then I know I have to wait and you might talk to [the other suspects] and whoever else you all got.” Then, Howard said, “If I did want a lawyer, I mean I do, but I don’t want – I guess I want an opportunity to be first.”
{¶16} We, therefore, overrule Howard’s first assignment of error.
Other-Acts Evidence
{¶17} In his second assignment of error, Howard argues that the trial court erred by permitting evidence of Howard’s other bad acts to be introduced at trial; specifically, that Howard was involved in a shoot-out in Price Hill earlier the same night of the murder, attempted murder, and robbery of McCray and Tucker.
{¶18}
{¶19} A trial court should conduct a three-part analysis when evaluating other-acts evidence. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19. First, a trial court should “consider whether the other act
{¶20} The admission of other-acts evidence under
{¶21} The evidence regarding Howard’s earlier shoot-out in Price Hill is relevant to show Howard’s plan and intent to use a firearm during the course of the Yarmouth Street robbery. Howard claimed in his interview with police that the shooter had panicked during the robbery and had just started shooting. The evidence that Howard, Buddha, and Mike Muscle had been involved in an earlier shoot-out that same night as they were driving around looking for people to rob tends to disprove Howard’s own version of events that the murder, attempted murder, and aggravated robbery were the result of panic. Therefore, we determine that the Price Hill shoot-out was both relevant and admissible for a legitimate purpose under
{¶22} Finally, we cannot determine that the admission of the evidence of the Price Hill shoot-out was unduly prejudicial. Howard was tried before a three-judge panel, thus we can presume that the court “considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.” State v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 91, quoting State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968). Therefore, the trial court did not abuse its discretion in admitting the evidence regarding the Price Hill shoot-out.
{¶23} We, therefore, overrule Howard’s second assignment of error.
Motions for Mistrial
{¶24} We address Howard’s fourth assignment of error next, in which he argues that the trial court erred by overruling his motions for a mistrial. Howard moved for a mistrial when the trial court allowed the state to recall Officer Mitsch to correct her earlier testimony regarding the caliber of the firearm found in Buddha’s possession just days after the murder. Howard also moved for a mistrial when the trial court permitted a firearm expert to testify that the murder weapon, although a .380, was not the same .380 police found in Buddha’s possession.
{¶25} We review a trial court’s decision to deny a motion for a mistrial for an abuse of discretion. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). “Mistrials need only be declared when a fair trial is no longer possible.” State v. Houston, 1st Dist. Hamilton No. C-090536, 2010-Ohio-2367, ¶ 13, citing State v. Herring, 94 Ohio St.3d 246, 254, 762 N.E.2d 940 (2002).
{¶27} The trial court did not abuse its discretion in allowing Officer Mitsch to correct her earlier testimony given that neither party disputed that her former testimony had not been accurate. See
{¶28} Similarly, the trial court did not abuse its discretion in denying Howard’s motion for a mistrial with regard to the firearm expert. Howard moved for a mistrial after the state announced that it intended to present testimony from a firearm expert that the gun used in the murder was not the same gun that had been found on Buddha, although both firearms had been .380s. Howard argues that the “late discovery” of the firearm expert’s testimony substantially prejudiced his defense. The trial court denied Howard’s motion, but allowed him a two-month continuance to consult his own firearms expert. Thus, we fail to see how Howard was prejudiced by the trial court’s decision.
Remarks by the Prosecutor in Closing Argument
{¶30} In his third assignment of error, Howard argues that the prosecutor’s comments regarding Howard’s credibility during closing argument amounted to prosecutorial misconduct. Howard takes issue with two comments by the prosecutor in closing. In the first, the prosecutor stated that, “It’s amazing how often these guys will lie to get out of trouble[.]” In the second, the prosecutor stated, “The defendant wants us to believe Buddha was the shooter * * * and even though they wanted us to believe this was the murder weapon that Buddha had, when we said, fine, we’ll test the thing, if it’s the murder weapon, it’s the murder weapon. Well you can’t do that. [W]e called their bluff.”
{¶31} In determining whether prosecutorial misconduct has occurred, the test is whether (1) the prosecutor’s remarks were improper, and, if so, (2) “whether they prejudicially affected the accused’s substantial rights.” State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 200. Although prosecutors may not state their personal beliefs regarding guilt and credibility, they may characterize a witness as a liar, or a claim as a lie, if the evidence reasonably supports that characterization. State v. Jones, 1st Dist. Hamilton No. C-060512, 2007-Ohio-5458, ¶ 39.
{¶32} We do not find the prosecutor’s remarks to be improper because, taking the prosecutor’s closing argument as a whole, the evidence reasonably supported the prosecutor’s characterization of Howard’s credibility. The evidence presented at trial showed that Howard’s story had changed over time. First, he had
{¶33} Furthermore, the prosecutor’s comments in closing did not affect Howard’s substantial rights, especially in light of the fact that Howard’s case was tried to a three-judge panel. See White, 15 Ohio St.2d at 151, 239 N.E.2d 65. Thus, the prosecutor’s comments did not amount to prosecutorial misconduct.
{¶34} The third assignment of error is overruled.
Sufficiency and Manifest Weight of the Evidence
{¶35} Howard’s fifth assignment of error asserts that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. When reviewing a challenge to the sufficiency of the evidence, we must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the offenses proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. By contrast, when reviewing a challenge to the manifest weight of the evidence, we must determine whether the trier of fact clearly lost its way and created a manifest miscarriage of justice such that we must reverse the convictions and order a new trial. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶37} Howard’s own admissions to police during his interview make him, at a minimum, complicit in the crimes. Although he adamantly denied shooting the victims, he admitted to driving the vehicle that night and to getting out of the car to rob one of the victims. The trial court was free to give little or no weight to Howard’s self-serving statements to police. Instead, the trial court could have found Pope’s testimony to be more credible and could have chosen to believe that Howard was telling the truth when he told Pope on the recorded call that Howard was the only shooter that night. The trial court, as the trier of fact in this case, was in the best position to judge the credibility of the witnesses, including Pope. See State v. Gorrasi, 1st Dist. Hamilton No. C-090292, 2010-Ohio-2875, ¶ 12.
{¶38} Therefore, we determine that Howard’s convictions were supported by sufficient evidence and were not against the manifest weight of the evidence. Accordingly, we overrule his fifth assignment of error.
Sentencing Errors
{¶39} In his sixth assignment of error, Howard argues that the trial court erred in sentencing him.
{¶41} Next, Howard argues that the trial court abused its discretion under
{¶42} Under the standard of review in
{¶43} Howard concedes that his sentence was within the statutory range, and we cannot clearly and convincingly find that his sentence is contrary to law.
{¶45} Because Howard was sentenced to life without the possibility of parole, he will not be eligible to perform community service. Therefore, we cannot determine that the trial court erred in failing to notify him of community service in lieu of paying court costs under former
{¶46} We, therefore, overrule Howard’s sixth assignment of error, and affirm the judgment of the trial court.
Judgment affirmed.
DINKELACKER, P.J., and DEWINE, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.