STATE OF OHIO v. CHRISTOPHER HUGHKEITH, JR.
No. 111647
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 13, 2023
[Cite as State v. Hughkeith, 2023-Ohio-1217.]
EILEEN T. GALLAGHER, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-652331-A. JUDGMENT: AFFIRMED.
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut, Assistant Prosecuting Attorney, for appellee.
Kimberly Kendall Corral and Gabrielle M. Ploplis, for appellant.
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Christopher Hughkeith (“Hughkeith“), appeals from his convictions following a bifurcated trial. He raises the following assignments of error for review:
The trial court erred in denying appellant‘s motion for jury view. - The trial court erred in permitting the charges to go to the jury as the state failed to produce sufficient evidence to prove beyond reasonable doubt that appellant was not acting in self-defense and further failed to prove the elements of felonious assault of James White.
- The trial court erred in failing to create a record instructing appellant of his right to remain silent.
- The trial court erred in displaying judicial bias against the defendant.
- The trial court erred when it instructed on the duty to retreat.
- Appellant was denied the effective assistance of counsel where trial counsel failed to object to improper jury instruction.
- Appellant was denied the effective assistance of counsel where trial counsel failed to request that the jury be instructed as to lesser included offenses.
- The trial court erred in prohibiting appellant from providing complete trial testimony in his defense, thereby infringing on his Fifth and 14th Amendment right to due process.
- The state engaged in prosecutorial misconduct which materially infected the trial with unfairness.
{¶ 2} After careful review of the record and relevant case law, we affirm Hughkeith‘s convictions and sentence.
I. Procedural and Factual History
{¶ 3} In August 2020, Hughkeith was named in an eight-count indictment, charging him with aggravated murder in violation of
{¶ 4} The indictment stemmed from allegations that Hughkeith fired gunshots at the victims, Michael Powell (“Powell“), James White (“White“), and Romeo Robinson (“Robinson“), resulting in the death of Powell. Counts 1, 2, and 3 of the indictment pertained to Powell. Counts 4 and 5 pertained to White. Counts 6 and 7 pertained to Robinson.
{¶ 5} The matter proceeded to a bifurcated trial in May 2022. Upon the agreement of the parties, Counts 1-7 were tried to a jury and the having weapons while under disability charge was tried to the bench. Relevant to this appeal, the following facts were adduced at trial.
{¶ 6} On August 8, 2020, Hughkeith and his codefendant, Charles Caldwell (“Caldwell“), arrived at the Buckeye Plaza shopping center located in Cleveland, Ohio. Hughkeith, who was wearing a white t-shirt and a Cincinnati Reds baseball hat, exited the driver‘s side of his silver sedan at approximately 2:33 p.m. He and Caldwell walked up and down the plaza sidewalk while Caldwell spoke on his cell phone.
{¶ 7} Shortly after Hughkeith exited his vehicle, Powell, Robinson, and White arrived at the shopping center in a black SUV and parked next to Hughkeith‘s silver
{¶ 8} Hughkeith entered the Mr. Hero approximately one minute after Powell. Caldwell remained outside the restaurant and continued to speak on his cell phone. Surveillance-video footage from the interior of the Mr. Hero captured Hughkeith and Powell‘s movements inside the restaurant. Therein, Hughkeith walked to the food counter and stood in line behind Powell. When Powell completed his food order, he walked to the beverage station and Hughkeith moved to the front of the counter to place his order. At this time, Powell began exchanging words with Hughkeith.
{¶ 9} During the verbal altercation, Powell lifted his t-shirt to reveal a firearm in his waistband. He then brandished the firearm and took several steps towards Hughkeith. Powell held the firearm in his right hand for approximately 40 seconds before placing the weapon back in his waistband. Shortly thereafter, Powell brandished the firearm a second time. On this occasion, Hughkeith turned his back to Powell and walked towards the restaurant‘s exit door. Although the surveillance cameras inside the Mr. Hero contained audio, it is difficult to interpret the specific nature of the initial exchange of words. However, at approximately 2:38:38 p.m.,
{¶ 10} The interaction between Hughkeith and Powell inside Mr. Hero lasted less than three minutes. Hughkeith stood at the counter with his hands behind his back during the entirety of the exchange. Hughkeith exited the restaurant before getting his food at approximately 2:39:32 p.m. Initially, Powell remained inside the restaurant. He was visibly agitated, continued to curse, and carefully watched Hughkeith‘s movements through the restaurant windows.
{¶ 11} When Hughkeith exited the restaurant, he stood near the front entrance for approximately 20 seconds before he and Caldwell began walking towards Hughkeith‘s silver sedan. Near the same time Hughkeith arrived at his vehicle, Powell exited the Mr. Hero‘s restaurant and immediately headed towards his black SUV, which was parked directly next to Hughkeith‘s vehicle. As Powell was walking in Hughkeith‘s direction, he motioned towards White, who had just exited the Little Caesar‘s pizzeria, and began pointing at Hughkeith. Powell reached the vicinity of his black SUV at approximately 2:40:30 p.m. At that time, Hughkeith suddenly fired a handgun at Powell.
{¶ 12} Once the first shot was fired, Hughkeith came around the back of the black SUV and fired successive shots at Powell. Powell immediately fell to the ground and did not return fire. In the midst of the shooting, White removed a
{¶ 13} Hughkeith and Caldwell fled the scene on foot once Robinson began firing his weapon. When Hughkeith and Caldwell were no longer in sight, Robinson entered the driver‘s side of the black SUV and began pursuing Hughkeith in the vehicle. Thereafter, Caldwell returned to the silver sedan and left the parking lot before the authorities arrived. Powell remained motionless on the ground.
{¶ 14} Surveillance-video footage obtained from a grocery store and a plasma center located near the Buckeye Plaza captured Hughkeith‘s movements as he attempted to flee on foot. Hughkeith attempted to run inside the grocery store but was prevented from doing so by a store employee. He then ran through the parking lot towards the plasma center, which is located on East 116th Street. When Hughkeith emerged from the plasma center at approximately 2:42 p.m., the black SUV pulled up beside him and fired additional gunshots from the passenger‘s side window. Hughkeith dove to the ground but sustained additional gunshot wounds. Hughkeith then retreated to a nearby home, where he was picked up by Caldwell in the silver sedan.
{¶ 16} Paramedics arrived at the scene at approximately 2:47 p.m. While Powell was being attended to by EMS personnel, an EMS worker removed a firearm from Powell‘s waistband and placed it next to Powell‘s body. (Tr. 1044.) Ultimately, Powell was pronounced dead as a result of his gunshot injuries.
{¶ 17} At approximately 3:56 p.m. on August 8, 2020, Hughkeith arrived at Fairview Hospital in a black Jeep SUV. He checked into the hospital using a false name and was treated for various gunshot wounds.
{¶ 18} Detective David Borden (“Det. Borden“) of the Cleveland Police Department was assigned as the lead investigator into the shooting. In the course of his investigation, Det. Borden participated in the collection of evidence at the scene of the shooting, submitted evidence for forensic and ballistics testing, and obtained DNA samples from Hughkeith, White, Robinson, and Caldwell. Det. Borden also reviewed surveillance footage from various businesses located near the scene of the shooting. Det. Borden testified that the surveillance footage was critical to his investigation because it confirmed that (1) Hughkeith was the first person to
{¶ 19} Luciano Miranda (“Miranda“) testified that he was formally employed by Signal 88 Security, a private security company that patrols the Buckeye Plaza shopping center. On August 8, 2020, Miranda was patrolling the parking lot in a marked vehicle when he heard “a series of six or seven [gun] shots.” (Tr. 643.) Miranda immediately got on his radio and reported the shots fired. During the shooting, Miranda observed a male, later identified as Powell, fall to one knee in the parking lot. When the shooting stopped, Miranda approached Powell, who was now lying motionless on the ground, and waited with him until the ambulance arrived. Miranda confirmed that when Powell was turned over, there was a 9 mm handgun tucked in his waistband. A dash-camera attached to Miranda‘s patrol vehicle captured the incident as it transpired in front of Miranda. Relevant portions of the video were played for the jury.
{¶ 20} Dr. David Dolinak (“Dr. Dolinak“), a deputy medical examiner, performed the autopsy on Powell. Dr. Dolinak testified that Powell was shot a total of five times. He sustained gunshot wounds to his upper back, right upper arm, left upper arm, mid-chest, and left hip. Dr. Dolinak opined that the gunshot wound to Powell‘s back was fatal based on the substantial damage caused to his aorta and lungs. Dr. Dolinak testified that Powell‘s toxicology report showed the presence of marijuana and a blood-alcohol level of .127. Dr. Dolinak concluded, to a reasonable degree of scientific certainty, that Powell‘s manner of death was a homicide based
{¶ 21} Detective Troy Edge (“Det. Edge“) of the Cleveland Police Department testified that he was assigned to investigate the scene of the shooing. In the course of his investigation, Det. Edge collected and photographed the evidence recovered from the Buckeye Plaza parking lot, including a Taurus 9 mm handgun, a FHN 9 mm handgun, spent 7.62 x 39 cartridge casings, spent 9 mm cartridge cases, and items of clothing. Additional items were recovered near the roadway, including four spent 9 mm casings, a Glock 9 mm handgun, a magazine with ten live rounds, and a face mask. Det. Edge also observed blood spatter at various locations on the scene. In total, the investigators recovered three firearms and more than 40 spent casings. During an unrelated investigation involving Robinson, the police seized a Draco arms rifle that was believed to have fired the 7.62 x 39 casings found at the scene of the shooting.
{¶ 22} Lisa Moore (“Moore“), a forensic analyst employed by the Cuyahoga County Regional Forensic Science Laboratory, testified that she performed DNA testing on various items found at the scene of the shooting. In relevant part, Moore confirmed that Hughkeith‘s DNA was consistent with samples taken from (1) the Cincinnati Reds baseball hat recovered from the parking lot, (2) swabs of blood discovered in the lobby of Simon‘s Supermarket, (3) swabs of blood discovered on the sidewalk near the roadway, (4) the FHN 9 mm handgun recovered from the parking lot, and (5) the magazine from the FHN 9 mm handgun. In turn, White‘s
{¶ 23} James Kooser (“Kooser“), a firearm and toolmark expert employed by the Cuyahoga County Regional Forensic Science Laboratory, testified that he performed ballistic testing on the firearms and spent casings recovered from the scene of the shooting. Kooser testified that the FHN 9 mm containing Hughkeith‘s DNA fired 14 of the spent casings; the Glock 9 mm handgun containing White‘s DNA fired five casings; the Draco rifle recovered from Romeo Robinson fired 20 spent casings, and four spent casings were fired from an unknown 9 mm handgun. (Tr. 972-974, 990.) With respect to Powell‘s firearm, Kooser confirmed that the Taurus 9 mm handgun did not fire any of the spent casings recovered from the scene. Kooser further indicated that the Taurus handgun was rendered inoperable during the incident because it was struck by a bullet.
{¶ 24} At the conclusion of the state‘s case, defense counsel moved for a dismissal of Counts 1-7 pursuant to
{¶ 26} During the confrontation in the parking lot, Hughkeith realized that a second man, later identified as White, was with Powell. Hughkeith testified that the two men were walking towards him, and White started to “reach for his waistband.” (Tr. 1218.) Hughkeith also observed Powell reach for the same gun that was previously brandished inside the restaurant. Hughkeith believed the men were
{¶ 27} Throughout his direct examination, Hughkeith maintained that he acted in self-defense and had no choice but to shoot Powell. Hughkeith explained that he “was in immediate danger” and was certain Powell would have shot and killed him had he not shot Powell first. (Tr. 1219-1220.) Hughkeith asserted that he only had two seconds to make the decision to fire the gun in his possession. Hughkeith maintained that he was attempting to leave the scene to avoid a confrontation but was prevented from doing so because Powell “[came] out right behind me yelling, get the chopper, let‘s get him.” Hughkeith explained that he interpreted Powell‘s statement to “get the chopper” was a reference to “A big gun. Assault rifle. A big gun.” (Tr. 1216.)
{¶ 28} Hughkeith testified that he sustained gunshot wounds to his back, arm, leg, and knee. Hughkeith was later transported to Fairview hospital by his sister. Hughkeith confirmed that he provided a false name at the hospital because he had a warrant out for his arrest. He further admitted that he lied to the police about the source of his gunshot wounds and stated that he was shot during a robbery on the west-side of Cleveland.
{¶ 29} At the conclusion of trial, the jury found Hughkeith guilty of murder, with one- and three-year firearm specifications (Count 2), felonious assault, with one- and three-year firearm specifications (Count 3), and felonious assault, with
{¶ 30} At the time of sentencing, the trial court found Counts 2 and 3 were allied offenses of similar import that merged for the purposes of sentencing. The state elected to proceed with sentencing on Count 2, and the trial court sentenced Hughkeith to 15 years to life on Count 2, to run consecutively to a three-year term of imprisonment on the corresponding firearm specification. Hughkeith was also sentenced to an indefinite prison term of five to seven- and one-half years on Count 5, to run consecutively to a three-year term of imprisonment on the corresponding firearm specification. Finally, the trial court sentenced Hughkeith to two years in prison on Count 8. The sentence imposed on each base offense and firearm specification were ordered to run consecutively, for an aggregate prison term of “life imprisonment with parole eligibility after serving 28 full years of imprisonment.”
{¶ 31} Hughkeith now appeals from his convictions and sentence.
II. Law and Analysis
A. Motion for Jury View
{¶ 32} In the first assignment of error, Hughkeith argues the trial court erred in denying his motion for jury view. Hughkeith contends that viewing the crime scene would have assisted the jury in “understanding and assessing the evidence presented at trial and would have provided clarity as to [his] defense.”
When it is proper for the jurors to have a view of the place at which a material fact occurred, the trial court may order them to be conducted in a body, under the charge of the sheriff or other officer, to such place, which shall be shown to them by a person designated by the court.
{¶ 34} The purpose of a jury view is to assist the trier of fact in understanding and applying the evidence offered at trial. Monus v. Day, 7th Dist. Mahoning No. 10 MA 35, 2011-Ohio-3170, ¶ 47. “The jury view is not part of the presentation of evidence; the jury is not permitted to gather evidence at the jury view, and only a representative of the court may address the jury about the subject of the jury view during the jury view.” Hetzer-Young v. Elano Corp., 2016-Ohio-3356, 66 N.E.3d 234, ¶ 88 (2d Dist.).
{¶ 35} “The granting or denial of a motion for a jury view is within the discretion of the trial court and the court‘s decision will only be reversed when an abuse of that discretion is established.” Mayfield Hts. v. Barry, 8th Dist. Cuyahoga No. 82159, 2003-Ohio-4403, ¶ 27, citing State v. Montalvo, 47 Ohio App.2d 296, 353 N.E.2d 855 (7th Dist.1974).
{¶ 36} An abuse of discretion occurs when a court exercises its judgment in an unwarranted way regarding a matter over which it has discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. In other words, “[a] court abuses its discretion when a legal rule entrusts a decision to a judge‘s discretion and the judge‘s exercise of that discretion is outside of the
{¶ 37} On April 29, 2022, Hughkeith moved the court to order a jury view “of the area encompassing the scene of the alleged criminal conduct.” In the motion, Hughkeith argued that it was “vital for the trier of fact to view these areas to be able to comprehensively evaluate and understand the testimony of the witnesses expected to testify in this trial.” The motion was denied on May 2, 2022.
{¶ 38} Based on the breadth of evidence presented at trial, we find nothing in the record to support Hughkeith‘s assertion that the trial court acted outside the legally permissible range of choices by denying the motion for a jury view. In this case, the state introduced surveillance-video footage from a number of businesses located within the Buckeye Plaza. Collectively, this evidence permitted the jury to view Hughkeith‘s conduct before, during, and after his initial confrontation with Powell inside the Mr. Hero‘s restaurant, as well as the shooting that transpired in the parking lot shortly thereafter. The video footage provided multiple angles of the interaction between Hughkeith and Powell, and select portions contained audio
{¶ 39} The first assignment of error is overruled.
B. Sufficiency of the Evidence
{¶ 40} In the second assignment of error, Hughkeith argues the state failed to produce sufficient evidence to disprove his assertion of self-defense. He further contends that his felonious-assault conviction, as charged in Count 5 of the indictment, is supported by insufficient evidence.
{¶ 41} 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 sustain a conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, 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, 273, 574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
1. Felonious Assault (Count 5)
{¶ 43} We begin by addressing Hughkeith‘s assertion that the state failed to produce sufficient evidence to support the felonious-assault offense pertaining to the victim, James White. As stated, Count 5 of the indictment charged Hughkeith with felonious assault in violation of
{¶ 44} “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such
{¶ 45} On appeal, Hughkeith argues “the state failed to produce any evidence showing that [he] shot and injured White in the first instance.” Hughkeith contends that “the evidence produced at trial merely demonstrates physical harm suffered by White - this is wholly inadequate to support [the felonious assault] conviction.” We find no merit to Hughkeith‘s position.
{¶ 46} Viewing the evidence in the light most favorable to the state, we find any rational trier of fact could have found that the state presented sufficient evidence to satisfy the essential elements of felonious assault beyond a reasonable doubt. It is common knowledge that a firearm is an inherently dangerous instrumentality, use of which is reasonably likely to produce serious injury or death. State v. Widner, 69 Ohio St. 2d 267, 270, 431 N.E.2d 1025 (1982). Thus, this court has consistently held that “shooting a gun in a place where there is risk of injury to one or more persons supports the inference that the offender acted knowingly.” State v. Hunt, 8th Dist. Cuyahoga No. 93080, 2010-Ohio-1419, ¶ 19, citing State v. Brooks, 44 Ohio St.3d 185, 192, 542 N.E.2d 636 (1989); see also State v. Ivory, 8th Dist. Cuyahoga No. 83170, 2004-Ohio-2968, ¶ 6. In this case, the record reflects that Hughkeith brandished his firearm and fired it repeatedly in the direction of Powell and White.
{¶ 47} Under these circumstances, a reasonable juror could conclude that Hughkeith knowingly caused White physical harm by means of a deadly weapon, i.e., an operable firearm. Accordingly, we find the evidence was sufficient to convict Hughkeith of felonious assault (Count 5) in violation of
2. The Affirmative Defense of Self-Defense
{¶ 48} Within this assignment of error, Hughkeith also suggests the state failed to produce sufficient evidence to prove beyond a reasonable doubt that he did not act in self-defense. Apart from the felonious-assault conviction discussed above, Hughkeith does not challenge the sufficiency of the evidence supporting an essential element of his convictions. Rather, he broadly asserts that the state failed to disprove his claim that he fired his gun in self-defense.
{¶ 49} A self-defense claim includes the following elements:
(1) that the defendant was not at fault in creating the situation giving rise to the affray; (2) that the defendant had a bona fide belief that he [or she] was in imminent danger of death or great bodily harm and that
his [or her] only means of escape from such danger was in the use of such force; and (3) that the defendant did not violate any duty to retreat or avoid the danger.
State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).
{¶ 50} In a criminal trial taking place prior to March 28, 2019, the effective date of 2018 Am.Sub.H.B. No. 228 (“H.B. 228“), a defendant claiming the affirmative defense of self-defense had the burden of proving the foregoing elements of the defense by a preponderance of the evidence. See former
A person is allowed to act in self-defense * * *. If, at the trial of a person who is accused of an offense that involved the person‘s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense * * *, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense * * *.
{¶ 51} Contrary to Hughkeith‘s characterization of the applicable standard of review, the Ohio Supreme Court has reiterated that “[t]he plain language of
{¶ 52} Based on the foregoing, we find Hughkeith‘s challenge to the sufficiency of the evidence insofar as it invokes self-defense is inappropriate. See State v. Canankamp, 3d Dist. Auglaize No. 2-22-02, 2023-Ohio-43, ¶ 18, citing State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 10, and State v. Vasquez, 10th Dist. Franklin No. 13AP-366, 2014-Ohio-224, ¶ 52. See also Messenger at ¶ 27 (finding “the Tenth District correctly declined to review the state‘s rebuttal of self-defense for sufficiency of the evidence“); State v. Messenger, 2021-Ohio-2044, 174 N.E.3d 425, ¶ 44 (10th Dist.) (“[S]ufficiency of the evidence is not the proper framework to review whether the state proved the absence of self-defense.“).
{¶ 53} Nevertheless, our conclusion does not leave Hughkeith without an avenue to challenge the state‘s proof relative to his claim of self-defense. Viewed in its entirety, Hughkeith‘s discussion concerning the resolution of his self-defense claim constitutes a challenge to the manifest weight of the evidence. Accordingly, we will consider Hughkeith‘s argument that the state failed to prove he did not act
{¶ 54} In contrast to a sufficiency argument, a manifest-weight challenge questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12, citing Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541 (1997). When considering a defendant‘s claim that a conviction is against the manifest weight of the evidence, the appellate court functions as a “thirteenth juror” and may disagree “with the factfinder‘s resolution of * * * conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The appellate court examines the entire record, weighs the evidence and all reasonable inferences that may be drawn therefrom, considers the witnesses’ credibility and determines whether, in resolving conflicts in the evidence, the trier of fact “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, 175, 485 N.E.2d 717 (1st Dist.1983). Reversal on manifest weight grounds is reserved for the ““exceptional case in which the evidence weighs heavily against the conviction.“” Id. at 387, quoting Martin at 175.
{¶ 55} As previously discussed, the state had the burden of disproving Hughkeith‘s self-defense claim beyond a reasonable doubt. Messenger at ¶ 27. The
{¶ 56} Relevant to the issues presented in this case, the second element of self-defense involves both objective and subjective considerations. State v. Thomas, 77 Ohio St.3d 323, 330, 673 N.E.2d 1339 (1997); Parma v. Treanor, 2018-Ohio-3166, 117 N.E.3d 970, ¶ 25 (8th Dist.); State v. Smith, 1st Dist. Hamilton No. C-190507, 2020-Ohio-4976, ¶ 56, citing State v. Vanover, 1st Dist. Hamilton No. C-990104, 2000 Ohio App. LEXIS 4469, *3 (Sept. 29, 2000). A defendant‘s belief that she was in immediate danger of death or great bodily harm must be objectively reasonable, and the defendant must have an honest belief that she sat in such danger. Id. “[I]f the objective standard is met, the jury must determine if, subjectively, this particular defendant had an honest belief that she was in imminent danger.” Thomas at 326. The state may disprove self-defense by demonstrating that the defendant‘s belief was not objectively reasonable or that he or she did not have an honest subjective belief that she faced imminent death or great bodily harm. Smith at ¶ 56.
{¶ 59} Based on the foregoing, we find the manifest weight of the evidence support‘s Hughkeith‘s convictions. The second assignment of error is overruled.
C. Right to Remain Silent
{¶ 60} In the third assignment of error, Hughkeith argues the trial court erred by “failing to make a record as to [his] waiver of his constitutional right to remain silent.”
{¶ 61} The right to testify at one‘s own criminal trial is rooted in the Due Process Clause of the
{¶ 62} In this case, Hughkeith exercised his fundamental right to testify on his own behalf at trial. In doing so, he waived his right to remain silent. State v. Belville, 6th Dist. Lucas No. L-96-195, 1997 Ohio App. LEXIS 1267, 6 (Apr. 4, 1997) (A defendant‘s “election to testify on his [or her] own behalf waives his [or her] right to remain silent and any exercises of that right.“), citing Jenkins v. Anderson, 447 U.S. 231, 238, 65 L.Ed.2d 86, 100 S.Ct. 2124 (1980). On appeal, Hughkeith has cited no persuasive authority to suggest that once a defendant exercises his or her right to testify at trial, the trial court has a corresponding duty to ensure that the defendant
{¶ 63} The third assignment of error is overruled.
D. Judicial Bias
{¶ 64} In the fourth assignment of error, Hughkeith argues the trial court failed to maintain impartiality and was biased against him throughout the criminal proceedings. Hughkeith contends the trial court‘s bias and prejudice is reflected by (1) the frequency of the court‘s evidentiary rulings in favor of the state, (2) the court‘s “repeated admonishments” of Hughkeith during his direct examination, (3) the court‘s threat to impose “severe penalties” on Hughkeith if he asked family members to make social-media posts on his behalf, and (4) the court‘s instruction to the state to patrol the defendants’ social media accounts.
{¶ 65} Appellate courts generally “lack the authority to find that a judge was biased against a party or void a trial court‘s judgment on a claim that the trial judge was biased.” State v. Reese, 8th Dist. Cuyahoga No. 107714, 2019-Ohio-4670, ¶ 25, citing State v. Ramos, 88 Ohio App.3d 394, 398, 623 N.E.2d 1336 (9th Dist.1993), citing Beer v. Griffith, 54 Ohio St.2d 440, 377 N.E.2d 775 (1978). Rather, “[t]he Chief Justice of the Supreme Court of Ohio, or his [or her] designee, has exclusive jurisdiction to determine a claim that a common pleas judge is biased or prejudiced.” Jones v. Billingham, 105 Ohio App.3d 8, 11, 663 N.E.2d 657 (2d Dist.1995), citing
Judicial bias has been described by the Supreme Court of Ohio as a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.
State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus. “If the trial judge forms an opinion based on facts introduced or events occurring during the course of the current or prior proceedings, this does not rise to the level of judicial bias, “unless [the opinions] display a deep-seated favoritism or antagonism that would make fair judgment impossible.“” State v. Hough, 2013-Ohio-1543, 990 N.E.2d 653, ¶ 11 (8th Dist.), quoting Dean at ¶ 49, quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
{¶ 68} After careful review of the record, we find Hughkeith has failed to overcome the presumption that the trial court was unbiased and unprejudiced against him. In this case, Hughkeith has cited various portions of the trial transcript, arguing that the record demonstrates that the trial court overwhelmingly ruled in favor of the state while consistently overruling defense counsel‘s evidentiary objections. Hughkeith suggests the trial court‘s pattern of judgment “exhibited judicial bias against the defense, and communicate[d] that bias to the jury.” We disagree. Significantly, Hughkeith‘s position does not consider the propriety of the cited objections or whether the trial court‘s evidentiary rulings were arbitrary or in violation of the Ohio Rules of Evidence. Absent additional indicia of bias, we are unable to conclude that the trial court‘s evidentiary rulings amounted to “deep-seated antagonism” merely because the rulings were unfavorable to Hughkeith.
{¶ 69} We further find no merit to Hughkeith‘s contention that the trial court demonstrated bias against him by “admonishing” him in front of the jury. In this case, the alleged admonishments included the court (1) instructing Hughkeith to
{¶ 70} Finally, the trial court did not exhibit prejudicial bias by ensuring that all parties, including Hughkeith and his codefendant, abided by the court‘s order to refrain from taking photographs inside the courtroom or posting on social media. In this case, the trial court made the following statement on the record:
THE COURT: We‘re back on the record. Your jail calls get listened to every day. Girlfriend‘s prohibited from being in this courtroom again. I‘ve made it very clear there‘s to be no photographs. Don‘t ask anybody else to take a photograph. I‘m asking the prosecutors to search social media every day, and if I find out that somebody in this room is taking a photograph and if I find out you‘re involved in it, you‘re going to face separate penalties. This isn‘t a joke, Mr. Caldwell.
(Tr. 628.)
{¶ 71} The challenged advisement was made after the court learned from a recorded jail-cell phone call that Caldwell asked “somebody” to post a photograph
{¶ 72} Based on the foregoing, we find no merit to Hughkeith‘s claim of judicial bias. The fourth assignment of error is overruled.
E. Duty to Retreat
{¶ 73} In the fifth assignment of error, Hughkeith argues the trial court erred by instructing the jury on the duty to retreat. Hughkeith contends that, at the time of his trial, there was no duty to retreat in the state of Ohio. Thus, Hughkeith asserts that the trial court‘s erroneous instruction on the duty to retreat misled the jury or otherwise prejudiced his right to a fair trial.
{¶ 74} Jury instructions are “critically important to assist juries in determining the interplay between the facts of the case before it and the applicable law.” State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, 24 N.E.3d 1147, ¶ 5. Although a trial court has “broad discretion to decide how to fashion jury instructions,” the trial court must “fully and completely give all jury instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Requested jury instructions should
{¶ 75} As a general matter, we review a trial court‘s decision on jury instructions for an abuse of discretion. State v. Daniel, 2016-Ohio-5231, 57 N.E.3d 1203, ¶ 30 (8th Dist.), citing State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 33. However, what law applies and whether a jury instruction correctly states the applicable law are legal issues an appellate court reviews de novo. See, e.g., State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 135. An incorrect or inadequate instruction that misleads the jury or otherwise prejudices the defendant constitutes reversible error. See Simbo Props. v. M8 Realty, L.L.C., 2019-Ohio-4361, 149 N.E.3d 941, ¶ 18 (8th Dist.).
{¶ 76} In this case, the alleged offenses occurred on or about August 8, 2020. Hughkeith was indicted on August 24, 2020, and his jury trial commenced in May 2022. On April 6, 2021, while his case was pending,
For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person‘s residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person‘s residence, and a person who lawfully is an occupant of that person‘s vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.
{¶ 77}
For purposes of any section of the Revised Code that sets forth a criminal offense, a person has no duty to retreat before using force in self-defense, defense of another, or defense of that person‘s residence if that person is in a place in which the person lawfully has a right to be.
{¶ 78} The 2021 amendments also added
{¶ 79} Since the modification of
{¶ 80} In this case, the trial court originally provided a self-defense instruction that did not contemplate the amendments of
In determining whether the defendant, in using force in self-defense, reasonably believed that the force was necessary to prevent injury, loss, or risk to life or safety, you may not consider the possibility of retreat by the defendant.
The defendant had no duty to retreat before using force in self-defense if the defendant was in a place in which he lawfully had a right to be.
Lawfully had a right to be means that the defendant was not trespassing when he used force in self-defense.
{¶ 81} Although the precedent of this court demonstrates that Hughkeith was not entitled to the retroactive application of amended
{¶ 82} The fifth assignment of error is overruled.
F. Failure to Object to Self-Defense Jury Instruction
{¶ 83} In the sixth assignment of error, Hughkeith argues defense counsel rendered ineffective assistance of counsel by failing to object to the trial court‘s jury instruction on self-defense.
{¶ 84} Our review of counsel‘s performance is highly deferential. State v. Korecky, 8th Dist. Cuyahoga No. 108328, 2020-Ohio-797, ¶ 20, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we presume licensed attorneys are competent, the party claiming ineffective assistance of counsel bears the burden of proving that counsel was ineffective. Id., citing State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985).
{¶ 86} Consistent with his previous arguments, Hughkeith argues trial counsel rendered ineffective assistance of counsel by failing to raise a timely objection to the court‘s instruction on self-defense. Specifically, Hughkeith challenges the trial court‘s instruction regarding the first element of a self-defense claim. The challenged instruction, which was made at the time the court reinstructed the jury on self-defense, provided, in relevant part:
The defendant did not act in self-defense if the state proved beyond a reasonable doubt the defendant was at fault in creating the situation that resulted in the death and/or injury. The defendant was at fault if the defendant was the initial aggressor; and A, Michael Powell and/or James White did not escalate the situation by being the first to use or attempt to use deadly force; or B, the defendant provoked Michael Powell and/or James White into using force; or C, the defendant did
not withdraw from the situation; or D, the defendant withdrew from the situation but did not inform Michael Powell and/or James White of his withdrawal.
(Tr. 1543.)
{¶ 87} Relying on the implications of the newly enacted stand-your-ground law, Hughkeith contends that it was misleading for the trial court to instruct the jury that he was at fault in creating the situation that resulted in death or injury if (1) he was the initial aggressor and (2) “did not withdraw from the situation.” (Tr. 1543.) Hughkeith asserts that “there is no tactical basis for failing to object to a jury instruction which is not supported by the facts, is not an accurate statement of current law, and prejudicially effects the outcome of the case.”
{¶ 88} After careful consideration, we cannot say defense counsel rendered ineffective assistance of counsel by failing to object to the cited portion of the trial court‘s self-defense instruction. Initially, we find no merit to Hughkeith‘s assertion that the trial court‘s instruction on the element of fault was “not applicable to the facts.” Hughkeith sought the self-defense instruction, and the trial court was free to instruct the jury on each of the applicable elements of the affirmative defense. Moreover, assuming, for the sake of argument, that the trial court properly instructed the jury on the duty to retreat pursuant to the current version of
{¶ 89} The sixth assignment of error is overruled.
G. Failure to Request Jury Instructions on Lesser-Included of Inferior-Degree Offenses
{¶ 90} In the seventh assignment of error, Hughkeith argues trial counsel rendered ineffective assistance of counsel by failing to request an instruction on the lesser-included offenses of voluntary manslaughter and aggravated assault. Hughkeith contends that “trial counsel‘s failure to request a lesser-included [offense instruction] was not the result of any reasonable trial strategy and fatally prejudiced [him].”
{¶ 91} The Ohio Supreme Court has explained that under
{¶ 92} A lesser-included offense is one in which
(i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.
Deem at paragraph three of the syllabus. By contrast, “an offense is an ‘inferior degree’ of the indicted offense where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements.” Id. at paragraph two of the syllabus.
{¶ 93} Generally, “a charge on a lesser-included or inferior offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser-included or inferior offense.” State v. Carter, 2018-Ohio-3671, 119 N.E.3d 896, ¶ 59 (8th Dist.), citing State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus. In determining whether a lesser-included or inferior-offense instruction is appropriate, the trial court must view the evidence in the light most favorable to the defendant. Id. at ¶ 59, citing State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 37.
{¶ 94} An instruction is not warranted, however, every time “some evidence” is presented on a lesser-included or inferior offense. State v. Smith, 8th Dist. Cuyahoga No. 90478, 2009-Ohio-2244, ¶ 12, citing State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).
To require an instruction * * * every time some evidence, however minute, is presented going to a lesser-included (or inferior-degree) offense would mean that no trial judge could ever refuse to give an instruction on a lesser-included (or inferior-degree) offense.
Id., quoting Shane at 633. Thus, a court must find there is sufficient evidence to allow a jury to reasonably reject the greater offense and find the defendant guilty on the lesser-included or inferior offense. Shane at 632-633.
{¶ 95} Voluntary manslaughter is defined in
No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another.
{¶ 96} In turn, aggravated assault is codified in
[n]o person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly * * * cause serious physical harm to another.
{¶ 97} Ohio courts have recognized that “aggravated assault is an inferior-degree offense to felonious assault and that voluntary manslaughter is an inferior-degree offense to murder.” State v. Dixon, 2d Dist. Greene No. 2021-CA-29, 2022-Ohio-3157, ¶ 21; see also State v. Wiley, 8th Dist. Cuyahoga No. 110753, 2022-Ohio-2131, ¶ 18 (“Voluntary manslaughter is an inferior degree offense of murder.“); State
v. Martin, 2018-Ohio-1098, 109 N.E.3d 652, ¶ 8 (8th Dist.) (“[A]ggravated assault is an inferior degree of felonious assault[.]”). This is because aggravated assault and voluntary manslaughter both contain an additional mitigating element of “serious provocation.” State v. Rider, 2d Dist. Champaign No. 2021-CA-12, 2022-Ohio-1964, ¶ 39-40. In other words, the greater-degree and inferior-degree offenses are similar except aggravated assault and voluntary manslaughter require proof that a defendant acted under the influence of sudden passion or in a fit of rage brought about by serious provocation. State v. Miller, 2d Dist. Montgomery No. 29099, 2022-Ohio-213, ¶ 16; State v. Robinson, 2d Dist. Clark No. 2021-CA-3, 2021-Ohio-3255, ¶ 11.Provocation, to be serious, must be reasonably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time.
State v. Mabry, 5 Ohio App.3d 13, 449 N.E.2d 16 (8th Dist.1982), paragraph five of the syllabus.
{¶ 98} In Shane, 63 Ohio St.3d 630, 590 N.E.2d 272, the Supreme Court elaborated on what constitutes “reasonably sufficient” provocation. First, an objective standard must be applied to determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage. That is, the provocation must be “sufficient to arouse the passions of an ordinary person beyond the power of his or her control.” Id. at 635. If this objective standard is met, the
{¶ 99} On appeal, Hughkeith has cited no evidence in the record to support his contention that the trial court was obligated to instruct the jury on the inferior offenses of voluntary manslaughter and aggravated assault. Despite Hughkeith’s repeated failure to comply with
{¶ 100} In Ohio, a licensed attorney is presumed to be competent. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial counsel’s performance, appellate review is highly deferential as there is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Strickland at 689. Appellate courts are not permitted to second-guess the strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Even instances of debatable strategy very rarely constitute ineffective assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987).
{¶ 101} Generally, “the decision about which defense or theory to pursue at trial is a matter of trial strategy ‘“within the exclusive province of defense counsel to make after consultation with his [or her] client.”’” State v. Lloyd, 8th Dist. Cuyahoga No. 109128, 2021-Ohio-1808, ¶ 32, quoting State v. Murphy, 91 Ohio St.3d 516, 524, 747 N.E.2d 765 (2001), quoting Lewis v. Alexander, 11 F.3d 1349, 1354 (6th Cir.1993).
{¶ 102} This court has recognized that aggravated assault and voluntary manslaughter are incompatible with a theory of self-defense because self-defense requires proof of fear while aggravated assault and voluntary manslaughter require a showing of a sudden passion or rage. See State v. Bouie, 8th Dist. Cuyahoga No. 108095, 2019-Ohio-4579, ¶ 47 (“it has been held that in most cases, jury instructions on both self-defense and serious provocation are inconsistent” because “the mental states of fear as required for self-defense and rage as required for aggravated assault are incompatible”); State v. Betliskey, 8th Dist. Cuyahoga No. 101330, 2015-Ohio-1821, ¶ 24 (jury instruction on aggravated assault not required where defense theory was self-defense); State v. Loyed, 8th Dist. Cuyahoga No. 83075, 2004-Ohio-3961, ¶ 14 (instruction on voluntary manslaughter not required where defense asserted self-defense because the theories were incompatible and “it must be one or the other”).
{¶ 103} Contrary to, and inconsistent with, defense counsel’s theory and interpretation of the evidence, Hughkeith now argues that a jury instruction on the inferior-degree offenses of voluntary manslaughter and aggravated assault was warranted in this case. As stated, however, defense counsel maintained throughout the entirety of the trial that Hughkeith acted in self-defense and only fired the fatal gunshots because he feared imminent death or great bodily harm. At no point did the defense argue or introduce evidence to insinuate that Hughkeith acted under the
{¶ 104} Accordingly, we find Hughkeith has failed to overcome the presumption that trial counsel’s decision to forego an inferior-degree-offense
{¶ 105} The seventh assignment of error is overruled.
H. Limitations on Hughkeith’s Testimony
{¶ 106} In the eighth assignment of error, Hughkeith argues the trial court violated his constitutional rights to due process and a fair trial by repeatedly interrupting and “excessively inhibiting” his testimony. Hughkeith contends that “because of the continued and excessive interruptions by the trial court, [he] was not afforded the opportunity to tell his story in his own words.”
{¶ 107} As previously stated, a defendant in a criminal case has the due-process right to take the witness stand and to testify in his or her own defense. Rock, 483 U.S. at 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). “Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right.” Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972). A defendant’s right to testify is not without limitation, however, and “‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ * * * But restrictions of a defendant’s right to testify may not be arbitrary or
{¶ 108} In this case, there is no dispute that Hughkeith exercised his right to testify on his own behalf and was provided ample opportunity on direct examination to articulate his version of events to the trier of fact. Nevertheless, Hughkeith contends that the court unduly interfered with his defense by interrupting his testimony “more than ten times during cross-examination.” (Tr. 1236-1237, 1239, 1273, 1275, 1284, 1288-1289, 1292.) Hughkeith’s citation to these alleged “interruptions” were previously addressed in Hughkeith’s claim of judicial bias. In most part, the trial court’s comments involved instances where Hughkeith was advised to only answer the questions posed on cross-examination and to refrain from testifying in the narrative.
{¶ 109} Consistent with our prior discussion, we cannot say the court prejudicially impaired Hughkeith’s defense by requiring him to limit his answers to those questions posed by the state on cross-examination. Here, the trial court did not offer any commentary reflecting the court’s personal views or the court’s perception of the state’s case against Hughkeith. Rather, the court’s interruptions were isolated and made in accordance with the court’s role as the gatekeeper of evidence.
{¶ 110} The eighth assignment of error is overruled.
I. Prosecutorial Misconduct
{¶ 111} In the ninth assignment of error, Hughkeith argues the state committed prosecutorial misconduct by referring to Powell as “defenseless” and by inferring that Hughkeith could have “diffused the whole situation” by showing Powell that he had a gun inside the restaurant. Hughkeith asserts that the prosecutor’s insinuations “were not made in good faith but are intended to confuse the jury by creating an inference that (1) [Hughkeith] had a duty to threaten Powell prior to his efforts to leave the situation, and (2) that [Hughkeith] was required to warn Powell prior to defending himself.”
{¶ 112} The test for prosecutorial misconduct is whether the prosecutor’s “‘remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.’” State v. Hessler, 90 Ohio St.3d 108, 125, 734 N.E.2d 1237 (2000), quoting State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). An appellate court should only reverse a conviction if the effect of the misconduct “‘permeates the entire atmosphere of the trial.’” State v. Gibson, 8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, ¶ 99, quoting State v. Tumbleson, 105 Ohio App.3d 693, 699, 664 N.E.2d 1318 (12th Dist.1995). “The touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶ 113} In this case, Hughkeith asserts that the following questions during his cross-examination amounted to prosecutorial misconduct:
PROSECUTION: Well, I’m not asking if you’re causing harm with the gun; I asked you why you carried that gun and you said because you live in a dangerous neighborhood. People get shot all the time. So if you carry it around without the intent of using it, what’s the point?
HUGHKEITH: There’s no point.
PROSECUTION: No point. Well, in this situation couldn’t you have shown Mr. Powell you also had a gun and said, hey, let’s not — let’s not shoot each other today. We both have guns. Let’s all just walk away.
HUGHKEITH: No.
* * *
PROSECUTION: Again, if the intent is to not use it, why don’t you show him your gun right now before a shot is ever fired?
HUGHKEITH: I didn’t. I did not.
PROSECUTION: I know. Why not?
HUGHKEITH: I don’t know.
PROSECUTION: You could have diffused this whole situation.
* * *
HUGHKEITH: How can I try to diffuse a situation? The man got a gun, about to aim it at me.
(Tr. 1242-1244.) Hughkeith did not object to this line of questioning and, therefore, has waived all but plain error.
{¶ 114} Cross-examination is entitled to wide latitude, and its scope is within the trial court’s discretion. State v. Garfield, 34 Ohio App.3d 300, 303, 518 N.E.2d 568 (11th Dist.1986), citing State v. Huffman, 86 Ohio St. 229, 99 N.E. 295 (1912). In this case, Hughkeith provided extensive testimony on direct examination
{¶ 115} Hughkeith further argues the state engaged in prosecutorial misconduct by referring to Powell as being “defenseless” during its closing remarks. (Tr. 1399.) Hughkeith contends that the state’s characterization of Powell was misleading and inconsistent with the evidence presented at trial. Again, Hughkeith did not object to the challenged remark.
{¶ 116} Generally, a prosecutor is entitled to wide latitude during closing argument. State v. Harris, 2017-Ohio-2751, 90 N.E.3d 342, ¶ 84 (8th Dist.), citing State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). And the closing argument must be viewed in its entirety to determine whether the disputed remarks were prejudicial. “[I]solated comments by a prosecutor are not to be taken out of context and given their most damaging meaning.” Gapen at ¶ 106, citing Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In
{¶ 117} “The United States Supreme Court has expressly recognized that prosecutors serve a special role in our justice system requiring them to adhere to the highest standards and to avoid improper arguments, insinuations, and assertions calculated to mislead the jury.” State v. Fears, 86 Ohio St.3d 329, 351, 715 N.E.2d 136 (1999) (Moyer, C.J., concurring in part and dissenting in part). Thus, while a prosecutor may strike hard blows, he or she may not strike foul ones. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). As recognized by this court, such “foul blows” include the following:
[P]ersonally vouching for the credibility of a witness, launching ad hominem attacks against the defendant or [defendant’s] lawyer, relying on improper evidence, relying on evidence not in the record, critically commenting on the defendant’s exercise of his [or her] rights such as the right to remain silent or the right to a jury trial, and deliberately misleading the jury.
State v. Hough, 8th Dist. Cuyahoga No. 91691, 2011-Ohio-2656, ¶ 7.
{¶ 118} After careful consideration, we find no merit to Hughkeith’s contention that the state’s comment “was tantamount to misconduct.” It is well settled that the state is permitted to freely comment on “‘“what the evidence has shown and what reasonable inferences may be drawn therefrom.”’” State v. Fudge,
{¶ 119} The ninth assignment of error is overruled.
{¶ 120} 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
EILEEN T. GALLAGHER, JUDGE
LISA B. FORBES, P.J., and
MARY J. BOYLE, J., CONCUR