State v. JacksonState v. Jackson
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Gregory M. Paul, Assistant Prosecuting Attorney, for appellee.
Harris Law Firm, LLC, and Felice L. Harris, for appellant.
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, James Jackson (“Jackson“), appeals his convictions for murder, felonious assault, and having weapons while under disability (“HWWUD“) following a bench trial. Jackson raises eight assignments of error. For the reasons set forth below, we affirm.
{¶ 2} This appeal stems from the death of Omar Crosby (“Crosby“) and the felonious assault of Earl Franklin (“Franklin“). The incident occurred on November 14, 2020, at Regency Park Place Apartments (“Apartment Complex“) in Cleveland, Ohio. Jackson was arrested on December 2, 2020, for his alleged involvement and, on December 9, 2020, Jackson was indicted in a five-count indictment. Count 1 charged Jackson with murder of Crosby under
{¶ 3} On December 13, 2020, defense counsel was appointed, Jackson waived the reading of the indictment and pled not guilty, and the trial court set bond. Prior to the bench trial on June 23, 2022, numerous pretrials and trial dates were continued, new defense counsel was appointed on two separate occasions, and Jackson filed a number of pro se motions. The procedural history relevant to Jackson‘s speedy trial challenge is discussed in detail in our analysis of Jackson‘s sixth assignment of error. Other relevant events leading up to trial are as follows.
{¶ 5} At a pretrial held that month, arguments were made on the record regarding Jackson‘s pending motion for bond reduction. In its argument, the state discussed Jackson‘s prior criminal history and Jackson‘s calls “urging, insisting, pleading with [a] material witness to go talk to the detective and recant [her] story [and] version of the events that [she] gave to the police three days after the homicide.” (05/19/21, tr. 9-10.) Ultimately, Jackson‘s motion to reduce bond was denied and Jackson‘s phone privileges were revoked.
{¶ 7} Before the bench trial resumed, the trial court judge inquired whether the state had any objection to proceeding in light of a character reference letter that was written by defense counsel on the trial court judge‘s behalf:
THE COURT: As many in the legal profession know, the Office of Disciplinary Counsel has seen fit to file a formal complaint against me. My attorney at Gallagher Sharp sent letters to a number of attorneys asking for character references. I found out last week that [defense counsel] was kind enough to write a letter on my behalf. So I just want to place that upon the record to determine if there is any objection on behalf of the State of Ohio.
[STATE]: Not at all, your Honor. Thank you.
THE COURT: Thank you very much * * *, I appreciate that.
{¶ 8} Dystine Allen (“Allen“), who was the only eyewitness of Crosby‘s murder to testify at trial, explained that she hosted a party at her apartment on the night of the shooting. She invited family and friends, including Crosby and Franklin. Allen recalled that Crosby arrived around 6:00 or 7:00 p.m. and Franklin arrived around 9:00 p.m. Allen testified that she and Jackson, who goes by the nickname Cube, dated for two years but were broken up by the time of her party. Allen stated that Jackson was not invited to the party and she did not want him there. However, Jackson showed up anyway around 10:00 or 11:00 p.m. Jackson was accompanied by two other men that Allen knew to be his friends. Allen testified that “he just came in, seen who was all there, and then left” with his two friends after about 15 or 20 minutes. (06/27/22, tr. 107.) Allen testified that everyone was having a good time at the party and there were not “any beefs.” (06/27/22, tr. 80.) Allen further testified that Jackson did not “act angry” or “cuss at anybody.” (06/27/22, tr. 107.)
{¶ 9} Allen explained that Jackson was later dropped off by his friends when the party was ending around midnight. Allen recalled that her two sisters, her sister‘s best friend, two other females, Crosby, and Franklin were still there when Jackson returned. Allen‘s child, nieces, and nephews were also there in the back room of Allen‘s apartment. Allen was cooking for the children when Crosby and Franklin left the party and went into the hallway. Several minutes later, Jackson‘s
{¶ 10} After a few minutes, Allen‘s sister‘s best friend said “they was out there fighting [in the hallway]” and Allen opened the door to see what was going on. (06/27/22, tr. 82.) Allen testified that Crosby and Jackson were “tussling” in the hallway right outside her door (06/27/22, tr. 82, 137.) Allen did not observe anyone else in the hallway, including Franklin. Allen testified that after she opened the door, Jackson and Crosby came into her apartment and she saw Jackson shoot Crosby in her living room. (06/27/22, tr. 82-83.) Allen said that her two sisters, her sister‘s best friend, and two other females were also there. Allen believed one shot was fired but did not know if anyone was shot at that time because “we grabbed the kids and ran out the back [door].” (06/27/22, tr. 83-84.)
{¶ 11} Allen recalled that Jackson ran out with them and identified him at trial on video surveillance footage as he was leaving out of the back door before the group of witnesses and kids. Allen testified that this footage captured the moments immediately after Jackson shot Crosby. Allen also identified Jackson in a compilation of surveillance video footage from different locations outside of the Apartment Complex. Allen recognized Jackson in some portions of the footage and was able to identify him in others based on the clothes he was wearing that evening: a black jacket with a red hoodie and fanny pack strapped across him. Allen further testified that the video surveillance footage captured Franklin laying on the sidewalk after he was injured, Jackson checking on Franklin, and Allen calling the police after
{¶ 12} Franklin also testified about the facts and circumstances surrounding the shooting. Franklin testified that he and Crosby were childhood friends. Franklin believed he arrived at Allen‘s party after Crosby between 10:00 and 11:00 p.m. Franklin testified that Allen left to go do something outside or get some cooking grease and, when she returned, “the dude with the red jacket came in after her,” “stared at everybody, [and] sat down.” (06/27/22, tr. 183.) Franklin testified that the man in the red jacket was wearing a “red coat with a hoodie, with brown fur around it.” (06/27/22, tr. 205.) Franklin testified that “[d]ude was looking at [Allen‘s sister and Crosby] all strange” and “didn‘t say a word to anyone.” (06/27/22, tr. 184, 201.) Franklin explained:
[The dude] got to looking at her — I mean [Crosby], all strange or whatever. He end up getting up, stepping by the door. He get on his phone. After that he leaves out.
My dude [Crosby] get up, ask me to step a little by the kitchen. He ask me do I know the dude, why the dude staring at him, know what I‘m saying, like, what‘s going on.
By the time we get through talking, he‘s like, man, we just going to go on outside. Because we live in the building, we just gonna go outside —
* * *
By the time we go out the door, all I know I flash, light, and a sound, and I was going down the stairs.
(06/27/22, tr. 184-185.) Franklin explained that Crosby was behind him and he “didn‘t even know nothing happened to [Crosby].” (06/27/22, tr. 185.) Franklin
[STATE]: Did you think you got shot?
[FRANKLIN]: I thought I was dead, actually. I couldn‘t really see nothing. Ears ringing. Cloud of smoke. And blood was just coming down my face.
(06/27/22, tr. 188.) Franklin identified himself on surveillance video footage stumbling and falling on the sidewalk outside of the Apartment Complex. Franklin testified that he was “grazed” in the head and only remembered being in the ambulance and waking up in the hospital where he received seven or eight stitches (06/27/22, tr. 187.) Franklin did not know what happened to Crosby until he went home the next day and “just broke down and started crying.” (06/27/22, tr. 187.)
{¶ 13} Cleveland Police Sergeant Andre Bays (“Sgt. Bays“) was a patrol officer at the time of the shooting. He responded to the scene late at night after receiving “a call for male shot.” (06/27/22, tr. 59.) Once Sgt. Bays arrived, he observed an officer assisting a “male who was shot” on the sidewalk outside of the Apartment Complex. (06/27/22, tr. 59-60.) Sgt. Bays began assisting the officer and the man outside, who was identified as Franklin. Sgt. Bays testified that Franklin suffered a laceration to his forehead but did not have gunshot wound. Franklin was not able to provide any information about what happened while Sgt. Bays assisted him.
{¶ 14} Sgt. Bays was told another person was shot inside the Apartment Complex. He went up to the unit where the shooting allegedly took place and
{¶ 15} Sgt. Bays testified that EMS arrived and transported Crosby to the hospital. He stayed on scene to try to gather information and learned some details about the events that transpired from one of the witnesses inside:
[I learned t]hat it was a card game that was going on inside the apartment, and during the card game someone knocked at the door, and there were males at the door who got into some kind of verbal argument with some of the people who opened the door. It was a fight that started, and a gunshot went off that struck * * * Crosby.
(06/27/22, tr. 68.) No one provided Sgt. Bays with the identification of the shooter, and Sgt. Bays was not further involved in the investigation after that day.
{¶ 16} Cleveland Patrol Officer Nicole Tango (“Officer Tango“) was training on the day of the incident. She received a call “[f]or two males shot” and responded to the Apartment Complex after midnight. While retrieving a witness from across the Apartment Complex‘s courtyard, Officer Tango was handed a note by an unknown older female believed to be a resident of the Apartment Complex (“Unknown Author“). Officer Tango testified: “I was walking up a stairwell to that
{¶ 17} Cleveland Police Detective Robby Prock (“Det. Prock“) was working in the Crime Scene Unit and processed the scene on the night of shooting along with another detective. He testified, “We were called out for a felonious assault shooting. And then once we arrived and met with the officers and sergeant on scene, we were notified that it was now a homicide, and we were there to * * * process the scene.” (06/27/22, tr. 144.) Det. Prock testified that photographs of the scene showed blood on the wall and floor by the doorway of Allen‘s apartment and a trail of blood coming down the stairs, through the Apartment Complex‘s Lobby, and onto the sidewalk outside. Det. Prock further testified that other photographs depicted the condition of the unit: the table was overturned, “cards and stuff” were on the ground, bloodstains were on the carpet, blood was suspected on a green blanket, and a blood smear was found on the wall above it.
{¶ 18} Dr. Erica Armstrong (“Dr. Armstrong“), a Forensic Pathologist Deputy Medical Examiner for the Cuyahoga County Medical Examiner‘s Office, supervised the autopsy of Crosby. Dr. Armstrong testified that Crosby sustained a
{¶ 19} Curtis Jones (“Jones“) was working for the Cuyahoga County Medical Examiner‘s Officer as the supervisor of the Trace Evidence Unit. He collected samples from Crosby‘s hands, fingernails, knuckles, and palms prior to autopsy, examined the items that were delivered to the medical examiner‘s office with Crosby‘s body for trace evidence, and authored the trace evidence report associated with Crosby‘s death. Jones testified that suspected blood and a bullet hole were located on Crosby‘s jacket and each of Crosby‘s shirts. Jones further testified that the bullet hole defect on Crosby‘s jacket was examined and tested; the results suggested an entrance bullet hole with “muzzle to target distance of close proximity” meaning, typically, within one foot. (06/27/22, tr. 163, 167-168, 172.) No testing was performed on the gunshot residue sample collected from the hands of Crosby due to the close proximity of the shooting.
{¶ 21} Det. Hayduk then took Allen and her two sisters to the Homicide Unit for interviews where they were interviewed separately. Det. Hayduk testified that they did not have a suspect after the initial round of separate interviews. Det. Hayduk then spoke with all three sisters together because “[a]ll of their statements were inconsistent, and I believe[d] that they were lying to me. I think they knew more than they were telling. And I told them that very straightforward, that if they wanted to tell me the truth they could call me at a later date.” (06/27/22, 220-221.) Det. Hayduk provided the sisters with his card and cell phone number. Allen
{¶ 22} Det. Hayduk testified that he received a call from Allen the day after the shooting and initial interview. Allen stated that she called Det. Hayduk because she wanted to tell him what really happened. Det. Hayduk explained that they agreed to meet the following day. Allen testified that she told Det. Hayduk that Jackson shot Crosby in this subsequent interview “[b]ecause he did it.” (06/27/22, tr. 98.) Det. Hayduk verified Jackson‘s identity, consulted with city prosecutor, and issued a warrant. During the course of his investigation, Det. Hayduk also learned that Jackson had a brother who went by the nickname of “M.J.” and Jackson‘s street name was “Cube.” (06/27/22, tr. 225-226.)
{¶ 23} Franklin recalled being interviewed by the police and shown a photo array the second or third day after he left the hospital. Franklin identified the person in photo five and remarked that “he looks like that damn dude.” (06/27/22, tr. 190.) According to the photo lineup array and key submitted as a state‘s exhibit, Franklin identified Jackson. Franklin testified that based on what he remembered the night of the shooting the person in the photo “came in, sat down, and was responsible for [his] friend‘s death” and was wearing a “hoodie — coat, red coat rather.” (06/27/22, tr. 190.) However, on cross-examination, Franklin conceded that he had no
{¶ 24} After Jackson‘s arrest at his mother‘s house, Det. Hayduk met with Jackson in jail and video recorded the interview. During Jackson‘s interview, Det. Hayduk showed Jackson portions of the surveillance video footage he obtained from the Apartment Complex‘s management company soon after the shooting. Det. Hayduk also showed Jackson stills from the video surveillance footage. Some of the video footage and stills were in black and white and were grainy. Det. Hayduk testified that Jackson denied he was in portions of the video surveillance footage but confirmed he was pictured in some of the stills during his interview. Jackson also told Det. Hayduk that he checked on Franklin when he was on the ground outside of the Apartment Complex and insisted that he was wearing a red hoodie with a black jacket and blue jeans on the night of the shooting.
{¶ 25} Det. Hayduk testified that in the video footage where Jackson identified himself in a still photograph, “it appears on his right side that he‘s got an object that‘s consistent with a handgun sticking out of his pocket.” (06/27/22, tr. 235.) Det. Hayduk believed Jackson could be identified throughout the surveillance videos because he was wearing a black jacket with a red hoodie and blue jeans. Det. Hayduk further believed the compilation of surveillance video footage showed
{¶ 26} Allen mentioned that Jackson called her “[a] lot probably” from jail and she hung up on him. (06/27/22, 124.) The parties stipulated that Allen and Jackson communicated after he was arrested. During discussions regarding this stipulation defense counsel noted that “[Allen] did have communication * * * with James Jackson after he was arrested and he would call from the jail. It wasn‘t [Allen] just hanging up; they did talk a lot. We would agree, we‘re talking 43 calls?” (06/28/22, tr. 275.) Det. Hayduk testified that he listened to “a few calls between [Allen] and James Jackson.” (06/28/22, tr. 276.) Det. Hayduk further testified that in those calls, Jackson asked Allen to recant the statement she made to Det. Hayduk. On cross-examination, Det. Hayduk advised that these calls came from another inmate‘s PIN number and that often times inmates will use different PIN numbers “[t]o try to have conversations that that [he] or the Prosecutor‘s Office won‘t be able to track.” (06/28/22, tr. 304.)
{¶ 28} Thereafter, the defense rested. The parties agreed that there was no relevant DNA evidence in Jackson‘s case. The trial court advised that he was “going to withhold judgment until [he] had an opportunity to review portions of the transcript” and certain exhibits and the parties would “reconvene once the Court has arrived at a determination of the ultimate issue of guilt or innocence.” (06/29/22, tr. 412-413.)
{¶ 29} On August 4, 2022, the trial court found Jackson guilty of all counts and specifications as charged in the indictment. The trial court judge explained that
{¶ 30} In reaching its decision, the trial court judge stated:
In terms of other evidence that was adduced in this case, there was testimony from the witnesses, [Allen] and the detective in this case, that during the pendency of the case, James Jackson made numerous calls to [Allen] to try to get her to recant. He may have made as many as 34 phone calls, sometimes using another defendant‘s PIN to make those calls.
The motion filed by the State of Ohio says he made 34 separate phone calls, and then directed his brother * * * to confront the same witness to force her to recant her previous statements.
Additionally, it should be noted that when the defendant was arrested on December 2nd by officers of the Northern Ohio Violent Fugitive Task Force, he was arrested, I believe, inside his mother‘s home with a 9mm pistol and 19 live rounds.
The defendant‘s DNA had been determined to be present on the grip, the trigger, the barrel and the magazine of the pistol.
This weapon has been determined to be a ballistic match to an unsolved shooting, improperly discharging of a firearm outside the very same apartment complex at 1560 Ansel Road on August 15th of 2020.
So these are the many of the facts and circumstances that lead to the verdict in this case.
{¶ 31} The matter proceeded to sentencing on August 30, 2022.
{¶ 32} The court sentenced Jackson as follows: Count 2 (murder under
Assignment of Error I: Jackson was denied his fundamental right to a fair trial and Sixth Amendment right to the effective assistance of conflict-free counsel.
Assignment of Error II: The trial court erred and violated James Jackson‘s constitutional rights to due process of law and a fair trial by taking judicial notice of “evidence” not properly admitted at trial.
Assignment of Error III: The trial court erred and violated James Jackson‘s constitutional right to confront the witness against him by improperly admitting and relying on hearsay in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution and Ohio Evid.R. 801.
Assignment of Error IV: James Jackson‘s conviction for the felonious assault of Earl Franklin is in violation of his right to due process of law guaranteed by Article I, Section 10 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution.
Assignment of Error V: James Jackson‘s convictions are against the manifest weight of the evidence.
Assignment of Error VI: The trial court erred in denying [Jackson‘s] Motion to Dismiss Due to Speedy Trial Provisions of
R.C. 2945.71 .Assignment of Error VII: The Reagan Tokes Act is unconstitutional as it impermissibly violates the Separation of Powers doctrine and the Due Process Clauses of the United States and Ohio Constitutions.
Assignment of Error VIII: James Jackson was denied his constitutional right to a fair trial as a result of cumulative errors at trial.
A. Alleged Conflict of Interest
{¶ 34} In his first assignment of error, Jackson argues that the trial court erred when it failed to inquire or recuse itself when it knew a potential conflict existed. Jackson asserts that the trial court judge had an affirmative duty to do so and believes, at minimum, the case must be remanded with instructions for the trial court to conduct a hearing to determine whether an actual conflict of interest existed. Alternatively, Jackson claims recusal of the trial court judge or defense counsel was required and the trial court‘s failure to inquire resulted in structural error, requiring a finding of per se prejudice and reversal of his convictions.
{¶ 35} The state argues that the record does not indicate any special circumstances by which the trial court knew or reasonably should have known that particular conflict existed of which it had a duty to inquire. The state further argues that no actual conflict occurred that adversely affected defense counsel‘s ability to represent Jackson and Jackson failed to make the requisite showing that there was some plausible alternative strategy or tactic that defense counsel could have pursued. The state also claims this court is without jurisdiction to consider whether the trial judge erred by failing to recuse or disqualify himself.
{¶ 36} We agree with the state: this court lacks jurisdiction to consider whether disqualification of the trial court judge was appropriate. Jackson never asked the trial court judge to recuse himself, nor was an affidavit of disqualification filed with the Supreme Court of Ohio pursuant to
{¶ 37} Next, we turn to defense counsel‘s purported conflict. Effective assistance of counsel, as guaranteed by the
{¶ 38} In reviewing a conflict-of-interest claim we must first determine whether the trial court had a duty to investigate the potential conflict. “Where a trial court knows or reasonably should know of an attorney‘s possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists.” State v. Gillard, 64 Ohio St.3d 304, 311, 595 N.E.2d 878 (1992) (”Gillard II“). “The possibility of a conflict of interest exists when counsel has reason to further or serve interests that are different from those of his client.” Depew at ¶ 18, citing Ogle at ¶ 23; State v. Gillard, 78 Ohio St.3d 548, 552, 679 N.E.2d 276 (1997) (”Gillard III“) (holding a possible conflict of interest exists in instances of multiple representations where “‘the interests of the defendants may diverge at some point as to place the attorney under inconsistent duties‘“) (emphasis sic), quoting Dillon at 168, and Cuyler at 356, fn. 3. “If the trial court‘s affirmative duty arose but it did not inquire, the case must be remanded to the trial court with instructions to conduct a hearing to determine whether an actual conflict of interest existed.” State v. Williams, 166 Ohio St.3d 159, 2021-Ohio-3152, 184 N.E.3d 29, ¶ 7, citing Gillard II at 311-312.
{¶ 39} Here, the record reflects that the trial judge‘s counsel asked “a number of attorneys” for character references after the Office of Disciplinary Counsel filed a formal complaint against him. Defense counsel was not directly
{¶ 40} “[I]f the reviewing court determines that the trial court‘s affirmative duty to inquire into a possible conflict * * * did not arise, the defendant must show that an actual conflict of interest adversely affected defense counsel‘s performance.” Williams at ¶ 8, citing State v. Manross, 40 Ohio St.3d 180, 182, 532 N.E.2d 735 (1988); accord Dillon, 74 Ohio St.3d at 169, 657 N.E.2d 273. “An actual conflict of interest exists when counsel is actively representing, furthering, or serving interests that are different from those of his client.” Depew, 8th Dist. Cuyahoga No. 111463, 2023-Ohio-304, at ¶ 18, citing Ogle, 167 Ohio St.3d 181, 2021-Ohio-4453, 190
{¶ 41} Based on the record before us, we find that defense counsel‘s writing of a character reference letter on behalf of the trial judge created no actual conflict of interest. As previously discussed, defense counsel was not actively representing, furthering, or serving interests different from those of Jackson. Nor did any divergence of interests occur with respect to a material factual or legal issue or to a course of action. Moreover, Jackson failed to demonstrate any plausible alternative defense strategies or tactics that were inherently in conflict with or not undertaken due to defense counsel‘s alleged other loyalties or interests.
B. Evidence Not Admitted at Trial
{¶ 43} In his second assignment of error, Jackson argues that “‘evidence’ not presented at trial was [im]properly before the court for the purpose of determining James Jackson‘s guilt.” Jackson asserts that when the trial court judge delivered the verdict and presided over Jackson‘s sentencing hearing, he improperly noticed and referred to facts not in evidence or other acts evidence not properly admitted at trial. Jackson claims that testimony was not offered that Jackson made “numerous calls to get [Allen] to recant” and “no evidence was presented to establish James‘s possession of a firearm at his arrest or the firearm‘s prior history.” Jackson argues that the trial court relied on “bare allegations in a prior State‘s motion to convict James Jackson of the indicted offenses.” Jackson also argues the trial court relied on “other acts evidence” to prove Jackson acted in conformity therewith and that there was “a backdrop indicating potential bias.” Because Jackson believes his constitutional rights to due process and a fair trial were violated, he claims his convictions must be reversed.
{¶ 44} The state argues that trial court‘s findings regarding the jail calls between Jackson and Allen were supported by testimony contained within the record and, therefore, the trial court did not err in referencing them at the close of trial. The state “concedes that there was no testimony relating to the details surrounding Jackson‘s arrest presented at trial.” Rather, these facts were asserted
{¶ 45} As conceded by the state, “[c]onsideration of evidence outside the record is inappropriate and can constitute reversible error.” In re Estate of Visnich, 11th Dist. Trumbull No. 2005-T-0128, 2006-Ohio-5499, ¶ 15, citing Boling v. Valecko, 9th Dist. Summit No. 20464, 2002-Ohio-449. “However, where there is ample evidence within the record to uphold the determination by the trial court, the consideration of evidence outside the record is not necessarily prejudicial.” Id., citing Keith v. Keith, 11th Dist. Portage No. 1844, 1988 Ohio App. LEXIS 2308, 3 (June 17, 1988).
{¶ 46} We note that Jackson does not claim any evidence presented at trial regarding the calls he made to Allen was inadmissible, rather he claims that “these ‘facts’ do not appear in the trial record.” But our review of the record reveals that most of the “other evidence” considered by the trial court was admitted at trial, specifically, that “there was testimony from the witnesses * * * that during the pendency of the case, James Jackson made numerous calls to [Allen] to try to get her to recant. He may have made as many as 34 phone calls, sometimes using another defendant‘s PIN to make those calls.” (08/04/22, tr. 422.) Testimony was, in fact, offered by Allen that Jackson called her “[a] lot probably” while he was incarcerated. Det. Hayduk also testified that he listened to a few of the calls and was
{¶ 47} However, Jackson correctly asserts that the trial court inappropriately considered evidence outside the trial record in making some of its many findings of “facts and circumstances that lead to the verdict in this case.” (08/04/22, tr. 423.) Specifically, we find that no evidence was presented at trial regarding the following facts not in evidence: (1) Jackson “directed his brother * * * to confront [Allen] to force her to recant her previous statements“; (2) “[Jackson] was arrested * * * with a 9mm pistol and 19 live rounds“; (3) “[Jackson‘s] DNA had been determined to be present on the grip, the trigger, the barrel and the magazine of the pistol“; and (4) “the weapon has been determined to be a ballistic match to an unsolved shooting, improperly discharging of a firearm outside the very same apartment complex * * *.” (08/04/22, tr. 423.)
{¶ 48} We agree with the state‘s argument that these errors were harmless. An error is considered harmless when there is remaining overwhelming evidence of the defendant‘s guilt and there is no reasonable possibility that the trier of fact would
{¶ 49} In support of its argument, the state cites Cleveland v. Reynolds, 8th Dist. Cuyahoga No. 105546, 2018-Ohio-97. In Reynolds this court found that the trial court referenced a statement from an affidavit for an arrest warrant that was not put into evidence when it reached its verdict. Id. at ¶ 8-9. This court held, “With there being no testimony concerning this statement, nor the admission of any document containing the statement, the court erred by referencing it when announcing its verdict.” Id. at ¶ 10. However, we found that the error was harmless under
{¶ 50} Jackson asserts that ”Reynolds is inapposite to the instant case as the defendant raised a sufficiency error, not a claim that consideration of evidence outside the record violated the defendant‘s constitutional rights to due process and a fair trial, the error raised herein.” However, the Ohio Supreme Court held:
[T]he Ohio Rules of Criminal Procedure do not specifically use the words “constitutional” or “nonconstitutional” to divide the standard of review in this way.
Crim.R. 52(A) defines harmless error in the context of criminal cases and provides: “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” During a harmless-error inquiry, the state has the burden of proving that the error did not affect the substantial rights of the defendant. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. Furthermore, if there is “a ‘[d]eviation from a legal rule,‘” courts undertake a “‘harmless error’ inquiry — to determine whether the error ‘affect[ed] substantial rights’ of the criminal defendant.” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United States v. Olano, 507 U.S. 725, 732-733, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The term “substantial rights” has been interpreted to require that “‘the error must have been prejudicial.’ (Emphasis added.)” Id., quoting Olano at 734. If a court determines that the error did not affect the defendant‘s substantial rights, then the error is harmless and “‘shall be discarded.‘” Id., quotingCrim.R. 52(A) .Thus
Crim.R. 52(A) , the harmless-error rule, was created in essence to forgive technical mistakes. But rather than distinguish between constitutional and nonconstitutional rights, the rule asks whether the rights affected are “substantial.”
State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23-24.
{¶ 51} Based on the foregoing, we find the trial court‘s errors are harmless because the outcome of the trial would not have been different in their absence. In reaching its verdict, the trial court judge explicitly mentioned the trial notes, testimony, and exhibits he considered before finding Jackson guilty beyond a reasonable doubt. Indeed, overwhelming evidence was presented at trial to support the trial court‘s decision, including eyewitness testimony and Jackson‘s statement to police identifying himself in stills of the surveillance video footage. Therefore, we cannot say Jackson was prejudiced; the trial court‘s reference to “other evidence” not admitted at trial was harmless and did not affect Jackson‘s substantial rights
{¶ 52} Accordingly, Jackson‘s second assignment of error is overruled.
C. Unknown Author‘s Note
{¶ 53} In his third assignment of error, Jackson argues the trial court committed plain error by admitting and relying upon the note received by Officer Tango, which violated the hearsay rule and his right to confront the witnesses against him. Jackson asserts that the note was prejudicial since the trial court relied on its contents to find Jackson guilty of the indicted offenses.
{¶ 54} Our review of the record reveals that Jackson did not object to the state‘s admission of the note into evidence or to any of the testimony offered about the note, some of which was elicited through cross-examination. Therefore, we review for plain error pursuant to
{¶ 55} Even assuming arguendo that Unknown Author‘s note was inadmissible hearsay, Jackson has not demonstrated that but for the error, the outcome of trial would have been different. As discussed above, overwhelming evidence of Jackson‘s guilt was presented, including eyewitness testimony and his self-identification in statements to police. Therefore, admission of the note was not prejudicial.
{¶ 56} Accordingly, we decline to find plain error and overrule Jackson‘s third assignment of error.
D. Sufficiency of the Evidence
{¶ 57} In the fourth assignment of error, Jackson argues that his conviction for felonious assault was unsupported by legally sufficient evidence. Jackson argues that Franklin “conceded he couldn‘t say from his own personal knowledge who hit him or killed [Crosby]” and “simply identified [Jackson] as the person who wore a red jacket at a party.” Jackson further argues that “[Franklin] was unaware of the manner of injury and no evidence was submitted to establish the injury resulted from a handgun.” Jackson also asserts that Allen did not know what happened to Franklin. Therefore, James claims no competent, credible evidence was introduced to prove he committed felonious assault against Franklin.
{¶ 58} We begin our analysis by discussing the two characterizations of evidence presented at trial: direct evidence and circumstantial evidence. “Direct
{¶ 59} A challenge to the sufficiency of the evidence questions whether the state has met its burden of production. State v. Swanson-Reed, 8th Dist. Cuyahoga No. 110724, 2022-Ohio-1401, ¶ 12, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to support a conviction is a question of law. Thompkins at 386. “[A] conviction based on legally
{¶ 60} A felonious assault conviction under
{¶ 61} Moreover, Jackson told Det. Hayduk he was wearing a red hoodie, black jacket, and blue pants and identified himself in a still photograph of surveillance footage during his interview with police. Det. Hayduk testified that he believed Jackson was carrying “an object that‘s consistent with a handgun sticking out of his pocket” in this footage and theorized that other footage showed him “[getting] rid of the gun most likely” while interacting with a car that pulled into the Apartment Complex‘s parking lot. Allen and Det. Hayduk identified Jackson throughout the surveillance video footage based on what he was admittedly wearing that evening: a red hoodie, black jacket, and blue pants. Franklin also identified Jackson as “the dude with the red jacket.”
{¶ 62} Viewing this circumstantial evidence in a light most favorable to the prosecution, we find that a rational trier of fact could draw reasonable inferences and conclude beyond a reasonable doubt that Jackson caused physical harm to Franklin by means of a deadly weapon.
{¶ 63} Therefore, Jackson‘s felonious assault conviction is supported by sufficient evidence and we overrule Jackson‘s fourth assignment of error.
{¶ 64} In the fifth assignment of error, Jackson argues that the greater weight of the evidence indicates the trier of fact clearly lost its way and created a manifest miscarriage of justice. Jackson claims that his conviction for the felonious assault of Franklin is against the manifest weight of the evidence because only Franklin‘s testimony, which was not based on personal knowledge, links Jackson to the assault. Jackson also argues that his convictions for the murder and felonious assault of Crosby and for HWWUD are against the manifest weight of the evidence because “[g]iven the conflicting stories, the lack of detail for the shooting itself, the dispute over [Jackson‘s] possession of a firearm, and the out-of-order video surveillance, the weight of the evidence favors acquittal.”
{¶ 65} Unlike a sufficiency challenge, which questions whether the state has met its burden of production, a manifest-weight challenge questions whether the state has met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13, citing Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. “‘[W]eight of the evidence involves the inclination of the greater amount of credible evidence.‘” State v. Harris, 8th Dist. Cuyahoga No. 109060, 2021-Ohio-856, ¶ 32, quoting Thompkins at 387. “Under the manifest weight-of-the-evidence standard, a reviewing court must ask the following question: whose evidence is more persuasive — the state‘s or the defendant‘s?” State v. Williams, 8th Dist. Cuyahoga No. 108275, 2020-Ohio-269, ¶ 86, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. A reversal on the basis that a verdict is against
“Accordingly, to warrant reversal from a bench trial under a manifest weight of the evidence claim, this court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in evidence, the trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.”
State v. Ferguson, 8th Dist. Cuyahoga No. 108603, 2020-Ohio-3119, ¶ 22, quoting State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41.
{¶ 66} Here, the state presented direct evidence that Jackson shot and killed Crosby through the testimony of Allen. Allen testified that on the night of the shooting, she did not tell the truth or provide an accurate description of the shooter because she was scared. Allen further testified that she later called Det. Hayduk because she wanted to tell him what really happened. Testimony was offered by Allen and Det. Hayduk that during her subsequent interview, Allen identified Jackson as the shooter. Allen further testified that she told Det. Hayduk that Jackson shot Crosby “[b]ecause he did it.” As discussed above, circumstantial evidence was also introduced that Jackson was in possession of a gun on the night of the shooting and feloniously assaulted Franklin.
{¶ 68} Therefore, Jackson‘s fifth assignment of error is overruled.
E. Speedy Trial
{¶ 69} In his sixth assignment of error, Jackson argues he was not brought to trial within 90 days after his arrest. Jackson claims his accounting of speedy-trial time indicates 128 days passed between his arrest and trial. The state argues 56 days had elapsed. In his reply, Jackson claims, without conceding to the state‘s calculations, that 91 days had passed according to the state‘s theory. In so calculating, Jackson claims he is “entitled to 12 days, from his arrest on December 2, 2020 to the filing of this Motion for Discovery on December 14, 2020” but incorrectly adds 14 days, instead of 12, to reach 91.
{¶ 70}
{¶ 71}
{¶ 72} “A defendant‘s demand for discovery tolls the speedy trial time until the state responds to the discovery or for a reasonable time, whichever is sooner.” State v. Garner, 8th Dist. Cuyahoga No. 102816, 2016-Ohio-2623, ¶ 21, citing State v. Shabazz, 8th Dist. Cuyahoga No. 95021, 2011-Ohio-2260, ¶ 26, 31;
{¶ 73} Speedy-trial time is also tolled by “[a]ny period of delay necessitated by the accused‘s lack of counsel” and “[t]he period of any continuance granted on
{¶ 74} On January 28, 2021, the pretrial was again continued. The docket is silent until February 18, 2021, and does not attribute the continuance to either party. “Where we find ambiguity, we construe the record in favor of the accused.” State v. Stevens, 8th Dist. Cuyahoga No. 87693, 2006-Ohio-5914, ¶ 32, citing State v. Mays, 108 Ohio App.3d 598, 609, 671 N.E.2d 553 (8th Dist.1995); State v. Singer, 50 Ohio St.2d 103, 109, 362 N.E.2d 1216 (1977). Therefore, 21 days of speedy-trial time accrued, bringing the total to 32.
{¶ 75} From February 18, 2021, through December 13, 2021, numerous pretrials were continued at Jackson‘s request due to ongoing discovery and Jackson‘s motion to terminate defense counsel. Trial was also set and rescheduled on four occasions at the request of Jackson. Therefore, no speedy-trial time accrued.
{¶ 76} The docket is silent from December 13, 2021, until January 4, 2022. Because ambiguity is construed in favor of Jackson, 22 days of speedy-trial time accrued, bringing the total to 54 days.
{¶ 77} On January 4, 2022, trial was reset for February 23, 2022, at the request of Jackson due to ongoing discovery. Therefore, speedy-trial time was
{¶ 78} The March 28, 2022 trial was reset on two occasions, once for May 2, 2022, and again for June 13, 2022, both at Jackson‘s request because defense counsel was trying other cases. Consequently, no speedy trial time accrued. The June 13, 2022 trial was continued to June 22, 2022, at the request of the trial court due to its unavailability. “[A] trial court‘s issuance of a sua sponte continuance is a tolling event pursuant to
{¶ 79} All speedy-trial time considered, we calculate 54 days passed between Jackson‘s arrest and trial. Even if we construe the state‘s continuance of trial in Jackson‘s favor, adding 33 days, only 87 days of speedy-trial time accrued. Because Jackson was incarcerated, each day is multiplied by three, calculating to a total of 261 days, at most.
{¶ 80} Because Jackson‘s speedy-trial time is less than the 270 days prescribed by
F. Reagan Tokes
{¶ 81} In his seventh assignment of error, Jackson argues that the Reagan Tokes Law is unconstitutional because it violates the separation-of-powers doctrine and denies him the right to due process. The state argues that this court, and numerous other appellate courts, have found that the Reagan Tokes Law does not violate the Due Process Clause and the separation-of-powers doctrine.
{¶ 82} In State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.), this court, sitting en banc, upheld the constitutionality of the indefinite sentencing provisions of the Reagan Tokes Law under Jackson‘s claimed constitutional challenges. Therein, we found that the Reagan Tokes Law does not violate the separation-of-powers doctrine or a defendant‘s rights to jury trial and due process of law. Therefore, Jackson‘s sixth assignment of error is overruled.
{¶ 83} Finally, in Jackson‘s eighth assignment of error, he argues the cumulative effect of the erroneous admission of evidence resulted in the denial of his right to a fair trial.
{¶ 84} “Under the doctrine of cumulative error, a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of the errors does not individually constitute cause for reversal.” State v. Allen, 8th Dist. Cuyahoga No. 102385, 2016-Ohio-102, ¶ 53, citing State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). “However, the doctrine of cumulative error is inapplicable when the alleged errors are found to be harmless or nonexistent.” Id., citing id., and State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 48. Because our review of Jackson‘s assignments of error resulted in findings of harmless or nonexistent errors, the cumulative-error doctrine does not apply.
{¶ 85} Accordingly, Jackson‘s eighth assignment of error is overruled.
III. Conclusion
{¶ 86} Based on the foregoing, we find that (1) no possible or actual conflict of interest exists; (2) the trial court‘s reference to facts not in evidence when announcing its verdict constitutes harmless error; (3) the admission of Unknown Author‘s note did not amount to plain error; (4) Jackson‘s conviction for the felonious assault of Franklin was supported by sufficient evidence; (5) Jackson‘s convictions for the felonious assault of Franklin, murder and felonious assault of
{¶ 87} Accordingly, 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 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 Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
FRANK DANIEL CELEBREZZE III, P.J., and
SEAN C. GALLAGHER, J., CONCUR