State v. KileyState v. Kiley
INTRODUCTION
{¶1} Thomas Kiley met his wife, Y.P. through a Florida escort service. After a brief courtship, the couple married and Y.P. moved to Ohio. Because of her employment history, Mr. Kiley was suspicious of Y.P.’s communications, monitoring her telephone and online activities. When he found a racy photograph of Y.P. with a previous boyfriend, Mr. Kiley became angry and assaulted her. He also threw her telephone in a lake. After settling down, Mr. Kiley planned a vacation for the two of them for the following day to try to work out their issues. They missed their flight, however, and returned home. When they got home, Mr. Kiley began rifling through Y.P.’s possessions, looking for evidence that she had been unfaithful to him. He also demanded her car keys. When Y.P. refused to give him her spare keys, Mr. Kiley told her that, if she did not give them to him, he would have anal sex with her. When Y.P. still refused, Mr. Kiley followed through on his threat. He pinned Y.P. down on their bed, ripped off her pants, and
INEFFECTIVE ASSISTANCE
{¶2} Mr. Kiley’s first assignment of error is that his trial lawyer was ineffective in violation of his constitutional rights. He has argued that his lawyer failed to object to a number of the prosecutor’s leading and hearsay-eliciting questions, and that the cumulative effect of the errors deprived him of a fair trial.
{¶3} To establish that his lawyer was ineffective, Mr. Kiley “must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable
{¶4} Regarding the prosecutor’s use of leading questions, in State v. Jackson, 92 Ohio St. 3d 436, 449 (2001), the Ohio Supreme Court held that, because “it is within the trial court’s discretion to allow leading questions[,] . . . the failure to object to аny leading questions [does not] constitute[ ] ineffective assistance of counsel.” Accordingly, Mr. Kiley’s lawyer was not ineffective for not objecting to the prosecutor’s leading questions. State v. Fisher, 9th Dist. No. 24116, 2009-Ohio-332, at ¶25.
{¶5} Regarding the prosecutor’s hearsay-eliciting questions, Mr. Kiley has argued that his lawyer should have objected to questions the prosecutor asked a sheriff’s deputy about what he learned during the course of his investigation. The prosecutor asked: “Deputy, did you learn during the course of your investigation that there was a struggle between [Mr. Kiley] and [Y.P.]?” The deputy responded “[y]es, sir.” The prosecutor then asked: “Did you learn in the course of your investigation that the Defendant hit and choked [Y.P.]?” The deputy responded “[a]bsolutely. That is what she advised.” The prosecutor later asked the deputy if he had learned through the course of his investigation that Mr. Kiley had raped Y.P. The deputy answered “[y]es.”
{¶6} “‘Hearsay’ is a statement, other than one made by thе declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{¶7} The deputy’s answers to the struggle and rape questions were not hearsay because “[h]e related no statement made to him and . . . did not state how he learned” that Mr. Kiley and Y.P. had struggled or that Mr. Kiley raped Y.P. State v. Neal, 2d Dist. Nos. 2000-CA-16, 2000-CA-18, 2002-Ohio-6786, at ¶51. Although the deputy said that he learned that Mr. Kiley had hit and chоked Y.P. because that is what Y.P. told him, Y.P., herself, testified that Mr. Kiley “locked his hands around my throat. He was choking me and banging my head at the wall.” Accordingly, Mr. Kiley has not demonstrated that he was prejudiced by his lawyer’s failure to object to the question.
{¶8} Mr. Kiley has also argued that his lawyer failed to object after a deputy improperly gave his personal opinion that Y.P. “is a very naïve girl.” See
{¶10} The Ohio Supreme Court has held that a lawyer may waive a defendant’s presence during a jury question, which is what Mr. Kiley’s lawyer did. State v. Frazier, 115 Ohio St. 3d 139, 2007-Ohio-5048, at ¶148. Mr. Kiley has not demonstrated that he was prejudiced by the waiver. Regarding a curative instruction, the trial court specifically asked Mr. Kiley’s lawyer whether he “would like for me to instruct them not to take anything from [Mr. Kiley] not being present?” After a conversation off the record, the trial court did not give such an instruction. We infer that the court did not give an instruction about Mr. Kiley’s absence because it was a tactical decision by his lawyer. It would be reasonable for the lawyer not to want to draw attention to the fact that Mr. Kiley was absent. Accordingly, we conclude that Mr. Kiley has not established that his lawyer’s performance was deficient or that he suffered any prejudice because of it. Mr. Kiley’s first assignment of error is overruled.
PRESENT DURING TRIAL
{¶11} Mr. Kiley’s second assignment of error is that the trial court incorrectly denied him the right to be present during all stages of his trial. He has argued that the court incorrectly answered a question that the jury asked during its deliberations without him being present in the courtroom.
{¶12} “An accused has a fundamental right to be present at all critical stages of his criminal trial.” State v. Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, at ¶100. “However, ‘the
{¶13} “[T]he oral delivery of jury instructions in open court is a critical stage of trial[.]” State v. Campbell, 90 Ohio St. 3d 320, 346 (2000). If the jury returns to the courtroom to ask a question about those instructions, howevеr, a defense lawyer may waive his client’s presence. State v. Frazier, 115 Ohio St. 3d 139, 2007-Ohio-5048, at ¶148. Moreover, Mr. Kiley has “failed to allege how he was prejudiced by his absence . . . or how his presence had a reasonably substantial relation to his opportunity to fully defend against the charges.” State v. Nguyen, 9th Dist. No. 22883, 2006-Ohio-5065, at ¶9. Mr. Kiley has not demonstrated that there was any testimony or other evidence presented in his absence. See State v. Hale, 119 Ohio St. 3d 118, 2008-Ohio-3426, at ¶103 (concluding that defendant’s absence from part of proceeding was not prejudicial). Mr. Kiley’s second assignment of error is overruled.
PROSECUTORIAL MISCONDUCT
{¶14} Mr. Kiley’s third assignment of error is that the trial court made improper remarks during voir dire and closing argument that deprived him of his right to a fair trial. He has argued that the prosecutor misstated the definition of reasonable doubt, incorrectly telling the jury that it could find him guilty if it was “firmly convinced of the evidence” or “firmly convinced of the charges” without any reference to their truth.
{¶16} Even assuming the prosecutor misstated the definition of reasonable doubt, the trial court told the jury that it had to apply the law as it was instructed by the court. The trial court defined reasonable doubt for the jury, and Mr. Kiley has not argued that the definition it gave was incorrect. We, therefore, conclude that Mr. Kiley has failed to establish that, but for the prosecutor’s allegedly improper statements, he would not have been convicted. See State v. Johnson, 46 Ohio St. 3d 96, 102 (1989); State v. Boots, 2d Dist. No. 2001 CA 1542, 2001 WL 1388495 at *2 (Nov. 9, 2001) (concluding defendant was not prejudiced by prosecutor’s incorrect definition of reasonable doubt because “[t]he trial court made clear to the jurors that they were required to apply the law as set forth by the court, and the trial court properly defined reasonable doubt and proof beyond a reasonable doubt for the jurors in open court and in its written instructions to the jury.”). Mr. Kiley’s third assignment of error is overruled.
{¶17} Mr. Kiley’s fourth assignment of error is that his convictions are against the manifest weight of the evidence. If a defendant argues that his convictions are against the manifest weight of the evidence, this Court “must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resоlving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction[s] must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App. 3d 339, 340 (1986).
{¶18} The jury found Mr. Kiley guilty of rape and kidnapping. Under
{¶19} Y.P. testified that, after Mr. Kiley and she returned home from the airport, he started “raging,” going around the house pulling things out of drawers and going through her clothes and suitcase. Mr. Kiley went through her purse and found her car keys, then asked her for her spare keys. When Y.P. said she did not know where they were, Mr. Kiley pulled her out of bed and told her to start looking for them. After Mr. Kiley shoved her around the house for a while, Y.P. told him that she had given the keys to a neighbor. Mr. Kiley then told her that, if she did not find the keys within ten minutes, he would have anal sex with her.
{¶20} Y.P. testified that, after counting down to zero, Mr. Kiley pushed her into the bedroom and threw her on the bed. She testified that he got on top of her and yanked her pants
{¶21} According to Y.P., when deputies arrived, they took her back to her house to interview her. While they were there, she noticed that the fitted sheet that had been on their mattress was no longer there. She testified that, after questioning her, a deputy took her to the Nord Center for a sexual assault examination. The nurse who examined Y.P. testified that Y.P. had a couple of marks on her neck and back, but that she did not observe any other injuries, including to her vagina or anus. The nurse testified that the absence of injuries was not unusual in anal rapes, especially since a lubricant had been used. The nurse took swabs of Y.P.’s vagina, anus, chest, hips, and back, which all tested positive for sperm or seminal fluid.
{¶22} Deputy Edward Gawlik testified that, while he was pulling into Y.P.’s development with his cruiser’s emergency lights activated, he saw Mr. Kiley leaving the development in a van. He turned around and briefly attempted to look for Mr. Kiley’s vehicle, then continued to the neighbor’s residence. Deputy Stanley Qualls, who was in a different cruiser behind Deputy Gawlik’s, testified that he also turned around and attempted to stop Mr.
{¶23} Detective Michael Lopez testified that he also responded to Y.P.’s 911 call. Inside the master bedroom of her house, he saw a bottle of KY jelly, an alarm clock on the floor with its cord in loops, women’s pants and underwear that looked like they had been pulled off all at once, and a mattress that was missing a sheet. He testified that he spoke to Mr. Kiley the next day about what had happened. Mr. Kiley told him that his marriage to Y.P. was fine until he discovered that she was a prostitute and had been communicating with about 20 other men. He, therefore, installed software on their laptop that would secretly record her activity on the computer. Mr. Kiley also told him that he had tossed Y.P.’s phone in a nearby lake. Mr. Kiley further told him that, after they got home from the airport, Y.P. got angry when he started going through her things and hit him in the head with the alarm clock.
{¶24} Detective Lopez testified that, when he told Mr. Kiley that Y.P. had mentioned sexual conduct, Mr. Kiley told him that they had had consensual vaginal intercourse after coming homе from the airport. Mr. Kiley denied that they had anal intercourse, but after being told that a rape kit had been done, he said that he had inserted his thumb in Y.P.’s rectum because she requested it. When the detective asked Mr. Kiley about the missing sheet, “[t]here was a long pause[,] [t]hen he said, “[w]ell, they got KY spilled on them, and we had to take them off.” When the detective asked Mr. Kiley about Y.P.’s injuries, Mr. Kiley told him that, the previous night, Y.P. had tried to hit him, so he put his arm out and she fell backwards. He said that hе then picked her up off the floor. Finally, Detective Lopez testified that Mr. Kiley told him that he did not know why he left after Y.P. dialed 911.
{¶26} Mr. Kiley has argued that Y.P. was not credible. He has pointed out that she admitted lying to a Florida domestic relations court about how the two of them met. She admitted to engaging in prostitution and underreporting her income on her tax returns. She also admitted trying to take one of her childrеn out of the country, even though she was prohibited from doing so by a court order.
{¶27} Mr. Kiley has further argued that the fact that the swabs the sexual assault nurse took tested positive for sperm or seminal fluid was inconsequential because Y.P. admitted having consensual sex with him the night before the alleged rape. He has noted that the nurse testified that those substances can be present up to 72 hours after a sexual encounter. She also testified that those substances can be transferred from one area of the body to another. According to Mr.
{¶28} Just because the deputies did not observe any evidence of the previous day’s fight does not mean that it did not happen, especially considering that Y.P. and Mr. Kiley would have had an opportunity to clean up afterwards. Nor does the lack of bruises on Y.P.’s body establish that she was not assaulted. In addition, the jury may have reasonably concluded that, just because Y.P. was a prostitute and lied to a court in an attempt to regain custody of her child, it did not mean she was lying about Mr. Kiley’s violent conduct. Furthermore, considering that the State submitted a photograph of an alarm clock cord wrapped in two circles on the floor of the bedroom, the jury could have reasonably found that the fact that Y.P. told the nurse it was a lamp cord was only a minor inconsistency. See State v. Ortiz, 185 Ohio App. 3d 733, 2010-Ohio-38, at ¶23. In determining Y.P.’s credibility, the jury could also have taken into account that the manner in which the deputies found Y.P.’s pants and underwear was consistent with them having been pulled off all at once. The jury was further entitled to consider the fact that Mr. Kiley drove away after his wife called 911, passing multiple cruisers that had their emergency lights activated as he exited the development. See State v. Hand, 107 Ohio St. 3d 378, 2006-Ohio-18, at ¶167 (“flight . . . [is] evidence of cоnsciousness of guilt, and thus of guilt itself.”) (quoting State v. Eaton, 19 Ohio St. 2d 145, 160 (1969), vacated in part on other grounds, 408 U.S. 935 (1972)).
{¶29} We have reviewed the record and conclude that the jury did not lose its way when it found that Mr. Kiley kidnapped and raped Y.P. in violation of
{¶30} Mr. Kiley’s fifth assignment of error is that the trial court incorrectly dismissed his petition for post-conviction relief. The court concluded that, because its original sentencing entry was void, at the time Mr. Kiley filed his petition there was no conviction from which he could petition under
{¶31} Under
{¶32} The trial court sentenced Mr. Kiley on January 14, 2009. Mr. Kiley appealed, but this Court determined that it did not have jurisdiction over the appeal because the trial court had not properly imposed post-release control. See State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, at syllabus; State v. Bedford, 9th Dist. No. 24431, 2009-Ohio-3972, at ¶14. It vacated Mr. Kiley’s sentence and remanded the mattеr to the trial court for a new sentencing hearing. A month later, Mr. Kiley petitioned for post-conviction relief.
{¶33} The Ohio Supreme Court has recently reconsidered its decisions regarding post release control, holding that, if a trial court has not properly imposed post-release control, only that part of the sentence is void. State v. Fischer, ___ Ohio St. 3d ___, 2010-Ohio-6238, at ¶26. Because our decision to vacate Mr. Kiley’s sentence was correct at the time it was made and
{¶34} In retrospect, this Court should not have vacated Mr. Kiley’s sentence. We, therefore, sustain Mr. Kiley’s assignment of error and remand this matter for consideration of his petition for post-conviction relief.
CONCLUSION
{¶35} Mr. Kiley’s trial lawyer was not ineffective, the court did not deprive him of his right to be present during trial, the prosecutor’s remarks during voir dire and closing argument were not prejudicial, and Mr. Kiley’s convictions are not against the manifest weight of the evidence. The judgment of the Lorain County Common Pleas Court is affirmed, and this matter is remanded for consideration of Mr. Kiley’s petition for post-conviction relief.
Judgment affirmed, and cause remanded.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
CLAIR E. DICKINSON
FOR THE COURT
MOORE, J.
BELFANCE, J.
CONCUR
APPEARANCES:
MICHAEL J. DUFF, Attorney at Law, for Appellant.
DANIEL WIGHTMAN, Attorney at Law, for Appellant.
DENNIS WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting Attorney, for Appellee.