STATE OF OHIO, Plaintiff-Appellee, - vs - TYREE LEE JUAN JOHNSON, Defendant-Appellant.
CASE NO. CA2011-09-169
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
3/11/2013
[Cite as State v. Johnson, 2013-Ohio-856.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2010-11-1867
John J. Scaccia, 1814 East Third Street, Dayton, Ohio 45403, for defendant-appellant
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Tyree Lee Juan Johnson, appeals from his conviction in the Butler County Court of Common Pleas for aggravated robbery and felonious assault.
{¶ 2} On October 4, 2010, Hamilton police filed a delinquency complaint against appellant, aged 17, in the Butler County Juvenile Court, charging him with three counts of aggravated robbery and three counts of felonious assault. Appellant was held in detention from that point onward. On October 18, 2010, the state filed a “Notice of Intent to
{¶ 3} On December 21, 2010, a Butler County Grand Jury returned a five-count indictment against appellant for two counts of aggravated robbery, both first-degree felonies in violation of
{¶ 4} On December 29, 2010, counsel of record for appellant moved to withdraw, citing his inexperience with felony cases. During appellant‘s arraignment on January 5, 2011, the trial court granted counsel‘s motion to withdraw and appointed new counsel for appellant. On January 11, 2011, appellant‘s new counsel filed motions for discovery and a bill of particulars, and also requested court-ordered funds for a private investigator.
{¶ 5} On January 12, 2011, the parties appeared before the court for a plea or trial setting. In order to comply with appellant‘s speedy-trial rights, the court scheduled a jury trial for February 7, 2011.
{¶ 6} On January 20, 2011, the trial court granted appellant‘s motion for funds for a private investigator, and on January 24, 2011, the state responded to appellant‘s discovery request and furnished a bill of particulars.
{¶ 7} On January 27, 2011, appellant moved to continue the February 7, 2011 trial in order to have additional time to prepare for trial and to complete discovery.
{¶ 8} On February 2, 2011, the trial court granted appellant‘s request for a continuance and reset trial for April 18, 2011. Also on February 2, 2011, appellant executed
{¶ 9} On March 30, 2011, the state filed a superseding indictment, charging appellant for the same five counts as the original indictment. The superseding indictment was issued as a result of allegations that the former assistant prosecutor had added firearm specifications to appellant‘s original indictment that were not considered by the grand jury.
{¶ 10} On April 4, 2011, appellant moved to dismiss the original and superseding indictments and requested a hearing on the motion. However, on April 12, 2011, before any hearing on the matter, appellant‘s counsel moved to withdraw, citing a breakdown in communication stemming from a disagreement with appellant regarding the trial judge‘s impartiality over the matter.1 At appellant‘s request, counsel also filed an affidavit to disqualify the trial judge, as well as a motion to continue the April 18, 2011 trial. The motion to continue stated that “[appellant] has executed a general time waiver. Thus, time is not of the essence.” On April 15, 2011, the trial court granted appellant‘s motion for a continuance, but did not immediately set a new trial date.
{¶ 11} On April 21, 2011, the trial court filed an entry staying the case, pending the Ohio Supreme Court‘s resolution of appellant‘s affidavit to disqualify the trial judge. On May 13, 2011, the Court denied appellant‘s affidavit of disqualification. Thus, the trial court resumed the case and held a scheduling hearing on May 25, 2011, at which time appellant‘s counsel agreed to reschedule the trial for August 22, 2011.
{¶ 13} On August 12, 2011, the trial court granted appellant‘s request, but scheduled the hearing on appellant‘s motion to dismiss for August 25, 2011, rather than August 22, 2011. After the hearing, the trial court overruled appellant‘s motion to dismiss, and the case proceeded to trial on August 29, 2011.
{¶ 14} Following trial, appellant was convicted of all charges and was sentenced to an aggregate prison term of 21 years. Appellant timely appeals, raising two assignments of error for review.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE DEFENDANT‘S STATUTORY AND CONSTITUTIONAL SPEEDY TRIAL RIGHTS HAVE BEEN VIOLATED TO HIS PREJUDICE.
{¶ 17} In his first assignment of error, appellant maintains that the charges against him should have been dismissed because his rights to a speedy trial were violated.
{¶ 18} Ohio recognizes both a constitutional and a statutory right to a speedy trial.
{¶ 19} According to
{¶ 20} Here, the juvenile court relinquished jurisdiction over appellant and transferred him to the general division of the common pleas court by judgment entry on November 17, 2010. See State v. Steele, 8 Ohio App.3d 137 (10th Dist.1982), paragraph two of the syllabus (“[f]or purposes of
{¶ 21} Appellant, however, contends that the rule established in Williams is obsolete and should not apply to him because his bindover was mandatory pursuant to
{¶ 22} Thus far, a juvenile‘s speedy-trial right is purely a creature of statute, and the statutes do not make the notice of intent the starting point for the speedy-trial clock. We decline to add words to the statute or interpret legislative silence as authorization to commence the speedy-trial clock for mandatory juvenile transfers at the notice of intent, particularly when the Williams court has clearly spoken on the matter, and it is our duty to abide by that interpretation. See Harvey, 2010-Ohio-1627 (“[t]he Ohio Supreme Court has held that the speedy trial time does not begin to run until the juvenile court relinquishes jurisdiction and we are bound to follow the law and decisions of the Ohio Supreme Court“). See also State v. Taylor, 2nd Dist. No. 14456, 1995 WL 680052, * 10 (Nov. 17, 1995).
{¶ 23} Moreover, we do not agree with appellant that the notice of intent is tantamount to a “charging instrument” sufficient to trigger
{¶ 24} Based upon the foregoing, we reject appellant‘s contention that the speedy-trial
{¶ 25} Appellant next argues that even “[a]ssuming, arquendo, the Clock began to run with the Bind-Over Preliminary Hearing,” the trial court misapplied
{¶ 26} However, appellant claims that his waiver was not knowingly and intelligently made, since he signed it without knowing that the former assistant prosecutor had tampered with his original indictment by adding firearm specifications without a review by the grand jury. Conversely, the state claims that appellant‘s waiver was valid, and that it also applied to the corrected set of charges subsequently set forth in the superseding indictment. In this regard, the state claims that our case is distinguishable from the rule set forth in State v. Adams, 43 Ohio St.3d 67 (1989), wherein the Ohio Supreme Court held that “[w]hen an accused waives the right to a speedy trial as to an initial charge, this waiver is not applicable to additional charges arising from the same set of circumstances that are brought subsequent to the execution of the waiver.” Id. at syllabus. We agree with the state.
{¶ 27} The defendant in Adams was initially charged with a violation of
{¶ 28} Our facts are distinguishable from Adams. Here, the charges in the original indictment and the superseding indictment were identical. Thus, there is no question that appellant was fully aware of the charges against him, and that the superseding indictment did not require a different defense at trial. Further, the superseding indictment did not expose appellant to a different level of punishment. Thus, any waiver that was executed knowingly, voluntarily, and intelligently as to the original indictment would be equally applicable to the superseding indictment. See State v. Dobbins, 9th Dist. No. 08CA009498, 2009-Ohio-2079; State v. Clark, 7th Dist. No. 04 MA 246, 2006-Ohio-1155 (waiver of speedy trial rights extended to superseding indictment, where superseding indictment did not change or add offenses); State v. Sain, 2nd Dist. No. 13493, 1993 WL 323539, * 5 (a “fitting corollary” to the Adams rule “is that where the charges in the second indictment are identical to *** the initial indictment, then it is not unfair to apply a defendant‘s waiver of his speedy trial rights in the initial indictment to the subsequent indictment“); State v. Luff, 85 Ohio App.3d 785 (6th Dist.1993) (distinguishing Adams because both indictments contained the same charges).
{¶ 29} To this end, appellant argues that the time waiver he signed on February 2, 2011 as to the original indictment was not knowingly, voluntarily, and intelligently made, because he signed it without knowing that the former prosecutor had tampered with his indictment. Appellant claims that he never would have signed the waiver if he had known this information.
{¶ 31} Even if appellant‘s speedy-trial time waiver was somehow ineffectual, we would find that delays occasioned by appellant tolled the speedy trial limits of
{¶ 32} As discussed earlier, appellant‘s speedy-trial time clock began to run the day after the juvenile court relinquished jurisdiction and transferred the matter to adult court, or on November 18, 2010. Bickerstaff, 10 Ohio St.3d at 67. Because appellant was held in jail in lieu of bail from that point onward, the triple-count provision of
The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:
***
(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
***
(H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion ***.
See State v. Butcher, 27 Ohio St.3d 28, 30-31 (1986).
{¶ 33} The relevant speedy-trial time is as follows. From November 18, 2010 until January 11, 2011, no events occurred that tolled the running of the speedy-trial clock. Thus, 54 days of actual time passed, which would count as 165 days using the triple-count calculation.
{¶ 34} However, appellant argues that his motions for discovery and a bill of particulars were not tolling events, because they did not cause the trial date to be extended. However, the Ohio Supreme Court has held that the state need not prove that a defendant‘s motion causes a delay in order for speedy-trial time to be tolled pursuant to
{¶ 35} Then, on January 27, 2011, 57 days into appellant‘s 90 days, appellant moved for a continuance, so that defense counsel could complete discovery and prepare for trial. The trial court granted appellant‘s motion on February 2, 2011, and set a new trial date for April 18, 2011. Based on the general theory that a defendant‘s request for a continuance tolls the speedy-trial time, we would typically find that appellant‘s motion tolled the time between the date of filing the motion and the new trial date of April 18, 2011.
{¶ 36} We next address appellant‘s contention that the state violated his constitutional right to a speedy trial.
{¶ 37} When determining whether an accused was denied the right to a speedy trial as guaranteed by the
{¶ 38} The first of the Barker factors, the length of delay, “is to some extent a triggering mechanism.” Id. at 530. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. If the defendant makes the initial threshold showing of presumptive prejudice, we must then consider the length of the delay with the other Barker factors. Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686 (1992), citing Barker at 553-534.
{¶ 39} Initially, we note that the Ohio Supreme Court has not addressed whether these factors apply to those proceedings that occur in the juvenile court. We do not purport to decide this issue now. However, even giving appellant the benefit of the doubt, we are not
{¶ 40} However, even if we assume, arguendo, that the delay in appellant‘s case was presumptively prejudicial, we do not find that the other Barker factors weigh in appellant‘s favor. Appellant did meet the third factor, a timely assertion of his rights, as evidenced by his motion to dismiss. However, the other factors militate against him.
{¶ 41} First, the delay in this case was not inordinately long, given that appellant‘s own motions necessitated the majority of the delay. Secondly, appellant was unable to establish any prejudice resulting from the delay. As mentioned earlier, appellant waived his right to a speedy trial on three separate occasions. See Terry, 2002-Ohio-4378 at ¶ 35 (“[w]here a defendant signs a waiver of speedy trial rights *** defendant‘s statutory and constitutional rights to a speedy trial are not violated so long as he is tried within a reasonable time“).
{¶ 42} In sum, we find that the delay in appellant‘s trial was reasonable with no resulting prejudice, and therefore appellant was not deprived of his constitutional right to a speedy trial.
{¶ 43} As a final matter, appellant claims that the trial court erred in failing to consider the “Barko v. Wingo” factors during the hearing on appellant‘s motion to dismiss. [sic] Presumably, appellant means that the trial court did not consider the Barker v. Wingo factors. While the trial court did not specifically cite all four Barker factors during the hearing, it did find that appellant did not suffer prejudice as a result of the delay, and, as discussed above, the record supports the trial court‘s finding.
{¶ 44} Having considered and rejected each of appellant‘s arguments, appellant‘s first assignment of error is overruled.
{¶ 45} Assignment of Error No. 2:
{¶ 46} TRIAL COUNSEL‘S FAILURE TO FILE A MOTION TO SUPPRESS AND/OR NOTICE OF ALIBI AND/OR BRADY MOTION WAS INEFFECTIVE REPRESENTATION ALTERNATIVELY THE COURT HEARING THE MOTION TO DISMISS SHOULD HAVE ENGAGED IN FURTHER INQUIRY TO DETERMINE IF A BRADY VIOLATION OCCURRED IN THIS INSTANCE[.]
{¶ 48} To demonstrate ineffective assistance of counsel, a two-prong test is employed. First, a defendant must establish that counsel‘s representation fell below an objective standard of reasonableness, and second, that the defendant was prejudiced as a result of counsel‘s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989). While the appropriate test has two prongs, “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland at 697.
{¶ 49} Under the first prong, reversal “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
{¶ 50} Appellant first contends that his trial counsel was ineffective for failing to file a notice of alibi. However, counsel did file a notice of alibi on April 8, 2011, which stated that “on October 3, 2010, at all relevant times *** [appellant] was located at, or in en route to or from, either the Zettler Funeral Home and Cremation Service property *** or the Burger King
{¶ 51} Appellant next argues that trial counsel was deficient for failing to file a motion to suppress evidence elicited during trial.
{¶ 52} “Counsel is not per se ineffective for failing to file a suppression motion.” State v. Tibbetts, 92 Ohio St.3d 146, 166 (2001). One who asserts a claim of ineffective assistance on the basis of trial counsel‘s failure to file a motion to suppress must show that the failure to file the motion caused him prejudice. State v. Hamilton, 12th Dist. No. CA2001-04-044, 2002 WL 205489, * 3 (Feb. 11, 2002). Moreover, where the failure to file a motion to suppress represents a reasonable trial strategy or a “tactical judgment,” a claim of ineffective assistance must fail. State v. Rodriguez, 12th Dist. No. CA2009-09-024, 2010-Ohio-1944, ¶ 43, quoting State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, ¶ 31-33.
{¶ 53} Appellant first claims that his trial counsel should have filed a motion to suppress his written statement to the police. Appellant contends that the statement was either coerced or forged, as evidenced by “suspicious” initials on the second page of the statement, which appellant claims are not his own. First, the record shows that trial counsel‘s decision not to file a motion to suppress appellant‘s written statement was a matter of trial strategy, where the statement contained exculpatory evidence that counsel may have wanted to present to the jury, namely, appellant‘s alibi. Moreover, we do not see any evidence of prejudice, where there is no indication that appellant‘s written statement was critical to his conviction, or that it would have been suppressed had a motion been filed. See State v. Layne, 12th Dist. No. CA2010-09-073, 2011-Ohio-3763, ¶ 46 (“[e]ven if the record contains some support for a motion to suppress, we presume that trial counsel was effective if counsel could reasonably have decided that the filing of a motion to suppress would have been a futile act“).
{¶ 55} Appellant also claims that his trial counsel was deficient for failing to move to suppress evidence obtained from appellant‘s cell phone. While it is not entirely clear, appellant appears to argue that the police conducted an invalid warrantless search on his phone. Even debatable trial strategies and tactics do not constitute ineffective assistance of counsel. State v. Gleckler, 12th Dist. No. CA2009-03-021, 2010-Ohio-496, ¶ 10. However, even assuming, arguendo, that appellant‘s trial counsel should have filed a motion to suppress appellant‘s phone records, we find that appellant cannot meet the prejudice prong of Strickland. That is, there is no reasonable probability that counsel‘s alleged error affected the jury‘s finding of appellant‘s guilt beyond a reasonable doubt. See Strickland, 466 U.S. at 695. Even without the phone records, the evidence against appellant was compelling. Trial counsel was therefore not ineffective for failing to file a motion to suppress.
{¶ 56} Appellant next contends that his trial attorney was ineffective for failing to call an expert witness to testify on the reliability of eyewitness identifications. However, “counsel‘s decision whether to call a witness falls within the rubric of trial strategy and will not be second-guessed by a reviewing court.” State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, ¶ 118, quoting State v. Treesh, 90 Ohio St.3d 460, 490 (2001). Further, “a claim for
{¶ 57} Appellant‘s argument presupposes that testimony from an expert witness would have directly undermined the state‘s witnesses’ abilities to identify appellant as the perpetrator. However, in many criminal cases, trial counsel‘s decision not to call an expert witness is “unquestionably tactical because such an expert might uncover evidence that further inculpates the defendant.” State v. Glover, 12th Dist. No. CA2001-12-102, 2002-Ohio-6392, ¶ 25. Here, counsel‘s decision not to call an expert on eyewitness identification was not flawed or deficient, as appellant has failed to specify what the expert would have said, or how the expert‘s testimony would have aided his defense. See State v. Witherspoon, 8th Dist. No. 94475, 2011-Ohio-704, ¶ 40-41. Additionally, appellant did not show that the result of the proceeding would have been different, had an expert witness been called to testify. See State v. Hayes, 8th Dist. No. 93785, 2010-Ohio-5234, ¶ 32; Strickland, 466 U.S. at 694.
{¶ 58} Appellant also argues that counsel was ineffective for requesting an unnecessary continuance in the trial. Specifically, appellant points to counsel‘s motion filed August 2, 2011, which requested that the court continue trial and utilize the scheduled trial date for a hearing on appellant‘s motion to dismiss. First, we must defer to trial counsel‘s idea that a continuance was necessary. Further, appellant cannot establish that he suffered prejudice as a result of counsel‘s motion, where, even if we were to charge the state with the 17-day delay that appellant asserts, he was still brought to trial within the time required by law.
{¶ 59} Appellant next contends that trial counsel was ineffective in failing to pursue a claim that the former assistant prosecutor committed a Brady violation. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Specifically, appellant believes that counsel should have explored whether the former prosecutor tainted other aspects of his case, aside from the original indictment.
{¶ 60} Appellant‘s claim that the former prosecutor tainted additional aspects of his case is purely speculative, and is not supported by the record. Upon learning about the assistant prosecutor‘s misconduct, the trial court appointed a special prosecutor to the case, which removed any claim that the state was withholding evidence favorable to the defense simply because the previously assigned prosecutor had done so. Thus, appellant cannot show that, but for trial counsel‘s failure to pursue a Brady claim, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
{¶ 61} Because appellant has failed to satisfy one or both prongs of Strickland in each instance, we reject appellant‘s claim that he was denied effective assistance of counsel.
{¶ 62} On a different note, appellant argues that the case must be reversed as a result of “judicial indifference,” where the trial court “refused” to consider evidence of Brady violations offered by the defense during the hearing on appellant‘s motion to dismiss.
{¶ 63} Initially, we find it curious that in his previous argument, appellant claimed that trial counsel was ineffective for failing to pursue a Brady claim, and yet here, he claims that counsel presented ample evidence of Brady violations that the trial court failed to consider. In any event, we find that this argument lacks merit, where the trial court clearly indicated that it had analyzed the Brady evidence offered by the defense, and ruled that the former assistant prosecutor‘s activities in other cases did not result in prejudice to appellant. See Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936 (1999) (a successful Brady claim requires a showing of prejudice).
{¶ 64} Appellant‘s second assignment of error is overruled.
{¶ 65} Judgment affirmed.