STATE OF OHIO v. HERMAN L. JENNINGS
No. 104626
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 19, 2017
[Cite as State v. Jennings, 2017-Ohio-8224.]
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-580703-A
BEFORE: S. Gallagher, J., Keough, A.J., and Stewart, J.
John P. Parker
988 East 185th Street
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Blaise D. Thomas
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{|1} Herman Jennings appeals his convictions for murder, one count of aggravated robbery, and three counts of robbery, each with a repeat violent offender specification. We affirm.
{|2} In December 2013, Jennings was named in a 16-count indictment charging him with aggravated murder, murder, two counts of kidnapping, two counts of aggravated robbery, four counts of robbery, two counts of felonious assault, two counts of theft, petty theft, and having weapons while under disаbility, along with the associated specifications, including one- and three-year firearm specifications, repeat violent offender specifications, and notice of prior conviction.
{|3} The case proceeded to trial, and the jury heard evidence and testimony about a robbery gone wrong where Jennings‘s accomplice was shot and killed by the one of the victims. The two attackers, dressed in black with their hands and heads covered, attempted to rob two victims in the driveway of their house. As the victims sat in a vehicle about tо leave, the driver-side door was opened by one of the assailants. One victim was dragged from the driver‘s seat and struck on the head with a metal object. During the attack, that victim was able to retrieve a legally possessed firearm from the driver-side door and shoot one of the masked assailants, later identified as Waymone Williams. Williams died from the wounds.
{|5} The police also discovered a vehicle in the area that was titled to Williams‘s mother. The keys found on Williams‘s body belonged to the vehicle. Inside the vehicle was a cell phone, that also belonged to Williams‘s mother. According to the police, the last call made was approximately 90 minutes before the attack, the call being made to a contact named “HERM.”
{|6} The jury found Jennings not guilty of aggravated murder, two counts of felonious assault, and one count each of aggravated robbery, robbery, and having weapons while under disability. However, the jury found Jennings guilty of murder, one count of aggravated robbery, and three counts of robbery, each with the repeat violent offender specification.
{|7} Jennings was sentenced to 15 years to life on the murder count. Two of the robbery counts merged with the aggravated robbery, with the state electing that he be sentenced on the aggravated robbery charge. The court imposed a ten-year sentence on the aggravated robbery count. The aggravated robbery and murder sentences were ordered to run concurrently. The court imposed a seven-year sentence on the remaining
{|8} Jennings appeals, raising seven assignments of error.1
{|9} In Jennings‘s first assignment of error, he claims the trial court created a structural error by replacing a juror during deliberations, or in the alternative, that the court was required to conduct a hearing to ascertain the reason for the juror‘s disappearance. According to Jennings, the replaced juror refused to convict him and that was the reason for the juror‘s refusal to continue deliberations. He bases his argument on the fact that, at one point in the deliberations, the jury asked the trial court: “What happens if we‘re in disagreement about all of the counts, because we are in disagreement as to whether the defendant was even proven to be on the scene that night.” The trial court answered tersely, with the consent of all parties, telling the jury to “keep deliberating.” Jennings‘s argument is entirely based on federal law and mere speculation.
{|10} Under Ohio law, “a trial judge is empowered to exercise ‘sound discretion to remove a juror and replace him with an alternate juror whenever facts are presented which convince the trial judge that the juror‘s ability to perform his duty is impaired.‘” State v. Brown, 2d Dist. Montgomery No. 24541, 2012-Ohio-1848, 46, quoting State v. Hopkins, 27 Ohio App.3d 196, 198, 500 N.E.2d 323 (11th Dist.1985). (Other citations
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{|13} Tellingly, Jennings‘s entire argument is based on the proposition of federal law that erroneously removing a juror is structural error that requires a new triаl. In support, Jennings cites federal cases that interpret
alone is dispositive; any attempt on our part to reverse would require us to create and support arguments not advanced by Jennings.
{|14} Even if we considered Jennings‘s arguments under
{|15} Nothing in the record indicates that any one juror, much less the juror actually replaced, prevented the jury from reaching a decision. Although there were several questions asked, none indicated that the jury was actually deadlocked and unable to resolve the disagreement. See State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989), paragraph two of the syllabus. Jennings‘s claim that the replaced juror was a holdоut is mere speculation.
{|16} Further, the reason for the juror‘s inability to complete her service was known: the replaced juror was unable to continue her service because of work
{|17} Most important, and contrary to Jennings‘s argument, jurors are not precluded from communicating with each other in general; they are only precluded from discussing the case outside the deliberation at the close of all evidence. As the trial court unambiguously instructed the jury in this case, “[m]ost important, ladies аnd gentlemen, you may not discuss the case among yourselves or with anyone else until all of the evidence has been presented and I‘ve instructed you on the law and ordered you to begin your deliberations.” Tr. 503:21-504:1. The fact that the jurors had a permissible conversation is not in and of itself error as Jennings suggests.
{|18} To follow Jennings‘s logic, trial courts would have to conduct an inquisition into each and every conversation had by the jurors upon returning to court. Courts are not required to undergo such an inquiry. Jennings is asking us to presume that an irregularity occurred based on the faсt of a permissible conversation having occurred presumably encouraged by the state‘s improvident accusation that the jurors’ conversation about attendance somehow violated the trial court‘s instruction not to discuss the case.
{|19} Regardless, the black letter law in Ohio is unambiguous. A trial court does not abuse its discretion by replacing a juror who is unable to complete her service in order to avoid a delay in the trial process. Gleason, 65 Ohio App.3d 206, 210, 583 N.E.2d 975; Sales-Hinton, 9th Dist. Summit No. 26351, 2012-Ohio-5651, 15. Further, there is no requirement under
{|20} In his third assignment of error, Jennings claims that the death of the co-conspirator cannot be the basis of the felony murder. According to Jennings, the victim‘s first shot did not kill the attacker; it was the subsequent shots that did, and therefore the death was not proximately caused by the aggravated robbery. Although Jennings mentioned the manifest weight of the evidence standard of review, in light of the
{|21} The felony murder statute provides that “[n]o person shall cause the death of another as a proximate result of the offender‘s” committing an offense of violence.
{|22} Jennings and his co-conspirator attempted to rob the victims while armed with a handgun.
The natural inclination of persons рresent during a robbery to forcibly defend themselves, their family and friends, and their property from theft and criminal aggression is a primal human instinct. Every robber or burglar knows when he attempts his crime that he is inviting dangerous resistance. Add to this highly charged atmosphere the use of a firearm to facilitate the robbery, and the risk of serious physical harm or death to any person present, be it the intended victims, bystanders, or the wrongdoers themselves, becomes highly foreseeable.
Dixon at 18; see also State v. Burt, 8th Dist. Cuyahoga No. 99097, 2013-Ohio-3525 ¶ 25 (death would not have occurred but for defendant‘s acting in concert with the decedеnt in robbing the victim at gunpoint, who caused the death by defending himself). In this case,
{|23} In his fourth assignment of error, in reliance on State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 21, Jennings claims that cell phone records, admitted as business records, were actually prepared in anticipation of litigation because the cell-phone company only releases the records upon receiving a court order and not all employees have access to the private information. According to Jennings, if a business record is prepared in anticipation of litigation, the hearsay exception under
[e]ven when cell-phone companies, in response to a subpoena, prepare types of records that are not normally prepared for their customers, those records still contain information that cell-phone companies keep in the ordinary course of their business.
(Emphasis added.) Id. at 36, citing United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir. 2011). Hood resolved the conflict between what is admissible in general versus that which is admissible under the Confrontation Clause. Hood is inapplicable to Jennings‘s argument. He is not claiming any Confrontation Clause violation, and he has not otherwise provided authority in support of a claimed error as required by
{|24} In the fifth assignment of error, Jennings argues that the trial court erred in denying a challenge under Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). “In Batson, the United States Supreme Court established a three-step inquiry for trial courts to adjudicate claims оf race-based challenges to jurors.” State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 21, citing Batson at 96. The three steps are (1) “a defendant must make a prima facie case that the prosecutor is engaged in racial discrimination“; (2) “if the defendant satisfies that burden, the prosecutor must provide a racially neutral explanation for the challenge“; and (3) “the court must decide, based on all the circumstances, whether the defendant has proved purposeful racial discrimination.” Id., citing Batson at 98.
{|25} In order to make a prima facie case of discrimination, the defendant must demonstrate that members of the defendant‘s race were “substantially underrepresented on the venire from which his jury was drawn,” or that the jury venire was “selected under a practice providing the opportunity for discrimination.” Batson at 95.
{|26} In this case, Jennings failed to make a prima facie case of discrimination. The record reflects that the prosecutor struck one juror of the same ethnicity as Jennings, but there is no record as to the racial composition of the venire. Without being able to make a prima facie case of racial discrimination, we need not consider the prosecutor‘s race-neutral explanation or the trial court‘s decision. Accordingly, Jennings‘s fifth assignment of error is overruled.
{|27} In the sixth and seventh assignments of error, Jennings contends that the jury instruction on “confirmation bias” was inadequate, or in the alternative, that his trial counsel was ineffective for failing to seek an instruction on “confirmation bias”
{|28} Finally, in the eighth assignment of error, Jennings claims that his conviction should be reversed because of cumulative error. Having found no error, harmless or otherwise, we overrule the eighth and final assignment of error.
{|29} Jennings‘s convictions are 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 convictions 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.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, J., CONCURS;
KATHLEEN ANN KEOUGH, A.J., DISSENTS WITH SEPARATE DISSENTING OPINION
{|30} I respectfully dissent. I would find merit in Jennings‘s first assignment of error, that the discharge of a juror during deliberations without legal justification and without a hearing violated Mr. Jennings‘s right to a fair trial under the Sixth and Fourteenth Amendments of the U.S. Constitution, the Ohio Constitution, and
{|31} To understand why a minimum inquiry should have been conducted, a more detailed context of the deliberation process in this case must be understood. The jury received the case to begin deliberations on Thursday, August 27, 2015. On Friday, August 28, 2015, the jury resumed deliberations. During the morning deliberаtions, the court was notified that the jury had three questions. After conferring with both parties, the court answered the questions as agreed. Later that morning, the jury again submitted three questions, which the court answered after meeting the parties.
{|32} At 12:30 p.m., the jury again notified the court that it had questions, this time submitting five questions. The second question asked: “What happens if we‘re in disagreement about all of the counts, because we are in disagreement as to whether the
And mostly, ladies and gentlemen, while you‘re on break, you cannot ring one another up and discuss it one on one. It‘s only when all twelve of you are together in that jury room that you can consider that you‘ve been deliberating. Fair enough?
(Tr. 1620.) The jury responded affirmatively, and none of the jurors indicated to the court that they could not return on Monday.
{|33} Nevertheless, on Monday, August 31, the court stated on the record that Juror #1 called another juror and then contacted the court indicating “that she was starting work that day * * * and that she was getting a promotion and she was informed if she failed to show up, her job was in jeopardy.” (Tr. 1621.)4
{|34} The court noted that the jury was from a pool that reported on Wednesday, August 19 and that their service would have terminated on August 26. The court stated, “I don‘t believe that any of us anticipated when this trial began that we would go into yet another week, so I do believe that the — it‘s a legitimate excuse and I‘m comfortable in putting the first аlternate in.” (Tr. 1621-1622.) The state had no objection with
replacing Juror #1 with Alternate #1, but noted that Juror #1 violated the juror conduct rules by contacting another juror.
{|35} The defense objected stating that Juror #1 never indicated that a scheduling conflict could exist and that despite this conflict, she still needed to appear for deliberations. Additionally, the defense requested the court to conduct at the very least a minimal inquiry whether there was a basis independent of her job or whether some other factor was preventing her from being there. The defense suggеsted that it was possible based on a jury question submitted Friday, that there was a divide in the jury. Based on that question, the defense thought it was proper to inquire as to whether or not some sort of coercion or manipulation during deliberations may have been the cause for Juror #1‘s absence.
We would like some minimum inquiry as to whether or not there‘s a basis independent of her job that is keeping her from being here, namely whether or not she was being bullied back there. If she was, that would be a basis for a mistrial.
(Tr. 1624.)
{|36} The trial court noted Jennings‘s objection and replaced Jurоr #1 with Alternate #1. The court then instructed the existing jury to share the juror questions and court communications on those questions with Alternate #1. The court also instructed the jury to start their deliberations anew.
{|37} After Alternate #1 was seated, the defense orally moved for a mistrial based on juror removal and the lack of judicial intervention to ensure that it was actually Juror #1 who phoned into the court, and the juror‘s failure to appear was not a result of
{|38} The relevant case law interpreting
{|39} Reviewing the relevant case law where a trial court‘s decision for removing a juror was upheld, the record was clear and established the basis and justification for removal. In those cases, an inquiry was made with the removed juror and other members of the jury.
{|40} In State v. Cunningham, 2d Dist. Clark No. 10-CA-57, 2012-Ohio-2794, the trial court was notified by the jury foreperson during deliberations that one of the jurors was struggling with comprehending the deliberation process. After conferencing with defense counsel, the prosecutor, the jury foreperson, and other members of the court staff, the court decided to remove the juror based on the juror‘s cognitive problems in comprehending the trial process concluding that there could not be a fair and impartial
{|41} In State v. Zaragoza, 2d Dist. Montgomery No. 26706, 2016-Ohio-144, the trial court removed a juror after interviewing the jury foreperson, the bailiff, and the removed juror, finding that the juror was unstable, disruptive to the deliberations, and was a safety threat to the female jurors. The Second District found no abuse of discretion by the trial court based on the well-developed record and that the court was able to personally observe and judge the removed juror‘s demeanor. The appellate court concluded that a fair trial with the continued juror‘s presence was an impossibility.
{|42} In State v. Hunt, 10th Dist. Franklin No. 12AP-1037, 2013-Ohio-5326, the Tenth District found no abuse of discretion in replacing a juror with an alternate after the juror asked to be replaced by the court because she was uncomfortable with evidence dеpicting dead bodies. The juror indicated that she would not be able to look at the evidence.
{|43} In State v. Sales-Hinton, 9th Dist. Summit No. 26351, 2012-Ohio-5651, the trial court replaced a juror with an alternate during deliberations after the juror confirmed with the judge that she would not return to jury service because her doctorate program was scheduled to begin. This scheduling conflict was known to the court during the voir dire process, yet the juror was empaneled. The Ninth District found no abuse of discretion in replacing the juror with an alternate because the juror‘s open refusal to
{|44} In this case and unlike all of the cases cited above, no inquiry was made with the juror or remaining jurors prior to her removal. As the defense pointed out with the trial court,
[t]he fact that the juror was replaced willy-nilly, particularly on the heels of a question provided late last Friday, suggesting that some people — I believe it was said, what do we do if some of us don‘t even believe [Jennings] was there, suggest she could have potentially been within a group that was in the minority on the question and, you know, right now we don‘t have any way of knowing if her failure to show up this morning was a result of how she was treated during deliberations on Friday. It‘s all speculation, and without any input from her, you know, I think it was an error for the Court to simply remove her and replace her with an alternate and for that reason we request a mistrial.
(Tr. 1632.)
{|45} I would find that the trial court at a minimum should have at least contacted Juror #1 to ensure that the juror‘s reasoning was consistent with what was relayed to the court. Although neither
{|46} Additionally and equally problematic, is the fact that after the trial court was made aware that Juror #1 contacted another juror on the panel, no inquiry was made to ensure that the only discussions the two jurors had was about Juror #1‘s decision not to return to jury service. Despite this contact, the trial court did not question the contacted juror, who remained on the panel to continue deliberations, to determine the nаture of the conversation and the circumstances surrounding the contact.
{|47} Based on this out-of-court contact, the sudden unavailability of Juror #1, and the circumstances of the deliberations and questions raised on the prior day during deliberations, I find that it was unreasonable for the trial court to not conduct a minimal inquiry as to Juror #1‘s unavailability prior to removal. I would reverse Jennings‘s conviction on this basis and remand for a new trial.