State v. MorrisState v. Morris
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Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Dennis C. Belli, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Lawrence Morris, Jr., appeals the judgment of the Lucas County Court of Common Pleas, following a jury trial, convicting him of one count of possession of cocaine. For the reasons that follow, we affirm.
{¶ 2} On October 9, 2019, the Lucas County Grand Jury returned a four-count indictment against appellant, charging him with one count of trafficking in cocaine, one count of possession of cocaine, one count of receiving stolen property, and one count of misdemeanor endangering children. The charges arose following the July 12, 2019 execution of a search warrant that uncovered two bags of cocaine inside the residence located at 2110 Airport Highway, Toledo, Ohio.
{¶ 3} Following an initial plea of not guilty, appellant moved to suppress the evidence seized from the residence. Appellant argued that the affidavit supporting the search warrant failed to establish probable cause to believe that evidence would be found at the residence.
{¶ 4} Toledo Police Detective Ryan Klump submitted the affidavit, in which he detailed appellant‘s history of drug encounters, including a traffic stop that Klump participated in on October 23, 2018. During that stop, the vehicle appellant was driving was discovered to have approximately 44 grams of cocaine. The affidavit further detailed information from three confidential sources who observed appellant make hand to hand transactions, and meet with people for short amounts of time, which Klump stated was consistent with drug trafficking. Klump stated in the affidavit that the sources have assisted him in criminal investigations for between one and four years, have provided information that has led to the seizure of contraband, have provided information that has
{¶ 5} The sources identified appellant and his silver Dodge Ram truck, and provided information that appellant resided at 2110 Airport Highway. The observations from the confidential sources occurred between January and July 2019. Some of the specific observations included source three informing Klump on June 11, 2019, that appellant was observed trafficking cocaine; source one informing Klump on June 20, 2019, that appellant had just received 10 pounds of marijuana; and source three informing Klump on July 5, 2019, that appellant had just sold two “zips” (ounces) of cocaine from 2110 Airport Highway. Klump also stated in his affidavit that during this time, surveillance was conducted on 2110 Airport Highway, and appellant was observed frequently entering and exiting the property, using his key to lock and unlock the property, and parking his silver Dodge Ram truck in the garage.
{¶ 6} Following a hearing on the motion to suppress, the trial court denied appellant‘s motion, finding that there was “more than a substantial basis for a conclusion of probable cause.”
{¶ 7} Thereafter, the matter proceeded to a three-day jury trial at which the state called five witnesses. The first witness was Toledo Police Detective Robert Tyburski. Tyburski assisted with the execution of the search warrant on July 12, 2019. Tyburski
{¶ 8} The next witness to testify was appellant‘s probation officer, Dave Schultz. Schultz authenticated records from the probation department in which appellant reported his residence as 2110 Airport Highway on monthly forms from May 2019 through February 2020.
{¶ 9} The third witness to testify was Chadwyck Douglas, who works at the Toledo Police Crime Lab. Douglas testified as an expert witness in the field of drug analysis. Douglas testified that he tested two substances. One he identified as marijuana, weighing 11.91 grams. The other substance he identified as cocaine hydrochloride weighing 37.14 grams.
{¶ 10} The fourth witness was Kaitlyn Porter, who works at the Toledo Police Forensic Lab. Porter testified that she test-fired the revolver, as well as a rifle recovered from the scene, and both weapons were found to be operable.
{¶ 11} The last witness to testify for the state was Detective Klump. Klump testified that he conducted surveillance on 2110 Airport Highway over 20 times as part of a narcotics and drug trafficking investigation. Klump often observed appellant arrive at the location, park his silver Dodge Ram truck in the garage, walk to the front door, and unlock the front door with a key. In addition to appellant, Klump observed 10 to 20 other
{¶ 12} Klump also participated in a “trash pull” from the residence, and discovered mail addressed to appellant at 2110 Airport Highway. Klump also discovered a “ripped baggy,” which he testified was associated with drug trafficking.
{¶ 13} Klump then testified to the execution of the search warrant. Klump testified that appellant was named in the warrant based upon Klump‘s observation of him, as well as the fact that Klump “received a lot of information that he was using 2110 to traffic narcotics, and all my information was corroborated with my surveillance of the location and Lawrence Morris throughout the City of Toledo.”
{¶ 14} When entry was made into the residence, no one was inside. Klump testified that two large baggies of cocaine were found in the dining room, along with a bowl containing cocaine residue, two scales, and some spoons for mixing drugs. Specifically, the items were found in the center drawer of a built-in cabinet located under a window. Klump identified the baggies of cocaine as the same cocaine that was tested by Douglas. In the living room, in addition to appellant‘s bank card and expired driver‘s license, the detectives found approximately $7,000 and a digital video recording system used for surveillance. The $7,000 was found in a drawer below an armrest of the sectional sofa, and was located next to a piece of mail addressed to L. Thomas, LLC, at
{¶ 15} As the last part of his direct testimony, Klump testified regarding the contents of the digital video recording system that was seized. The recording showed appellant coming and going from the house on multiple occasions and at varying times between May 26 and June 2, 2019. On a few occasions, appellant was carrying a package, and on at least one occasion, appellant appeared to be carrying a firearm. In addition to appellant‘s coming and going, the recording showed several other adults, and some children, entering and exiting the house.
{¶ 16} On cross-examination, Klump was asked about a shooting that occurred at 2110 Airport Highway on May 21, 2019, which Klump alluded to in his direct testimony. The police report from that shooting listed appellant as a victim, but also listed Marcus Matlock as a second victim and a resident of 2110 Airport Highway.
{¶ 17} Klump also testified on cross-examination that the digital video recording showed another individual, not appellant, coming and going from the residence and using a key to enter the house. In addition, the video showed at least one other individual
{¶ 18} On the subject of confidential informants, Klump confirmed that he used confidential informants as part of his investigation, but testified that none of the confidential informants ever participated in a controlled buy or purchased cocaine from appellant, and none of them purchased cocaine from 2110 Airport Highway. Klump also agreed that the search warrant affidavit does not state that any of the confidential informants had ever been inside 2110 Airport Highway or witnessed appellant conducting a drug transaction inside 2110 Airport Highway.
{¶ 19} On redirect examination, Klump was asked about his use of confidential informants in the following exchange:
Q. And in relation to this case did you use one confidential informant or multiple?
A. Multiple.
Q. And in general, do you recall what if any information they provided you?
A. They provided me with observing Lawrence Morris making drug deals and giving me information about when he received drugs or cocaine from other drug dealers.
Q. Now, the information that you received from these confidential informants, did you talk to them individually or together?
A. Individually.
Q. Did their information that one informant provide you match or consistent with the information that another informant provided you?
A. Yes.
Q. And then that information that they provided you was that consistent with the investigation that you conducted?
A. Yes.
Q. And that would be both surveillance that you conducted as well as surveillance by other officers?
A. Yes.
Q. And the trash pull that was conducted on May 17th, 2019?
A. Yes.
Q. You also indicated that you had reviewed previous histories or previous contacts, correct?
A. Yes.
Q. Was the information that the confidential informants provided you consistent with prior contact, police contact with Mr. Morris?
A. Yes.
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Q. Now, [defense counsel] also asked you if there was any information that a confidential informant had been inside of 2110 Airport Highway included in your warrant, correct?
A. Correct.
Q. Phil, I‘m going to hand you Defendant‘s Exhibit B which again is a copy of your search warrant. Detective, do you recall if prior to executing the warrant on June -- I apologize, July 12th of 2020 -- 2019, did you receive any information about what the contents inside of that home would have been approximately around July 5th of 2019?
A. July 5th I received information from a CI about Lawrence Morris receiving two zips or two ounces of cocaine.
Q. And was it receiving or does it say sold two zips?
A. I‘m sorry, sold two zips or two ounces of cocaine out of 2110 Airport Highway.
At no time did appellant object to the above testimony.
{¶ 21} Following its presentation of evidence, the state of Ohio rested. Appellant moved for an acquittal pursuant to
{¶ 22} Appellant then called one witness in his defense. Marcus Matlock testified that he is appellant‘s brother, and that he lived with appellant at 2110 Airport Highway in the spring and summer of 2019. Matlock testified that his cousin also lived with them during that time. Matlock moved out of the house in July 2019, before the search warrant was executed. Matlock testified that while he lived at 2110 Airport Highway, he received mail there. Matlock also testified that he had an old Ohio driver‘s license listing his address as 2110 Airport Highway. Matlock testified that after he moved out, there were still other individuals other than appellant that lived at the residence and that had keys for the residence.
{¶ 23} Matlock testified that on May 21, 2019, two separate drive-by shootings occurred at the residence. After the shootings, Matlock continued to reside at the
{¶ 24} Matlock lived at 2110 Airport Highway for approximately one year. While he lived there, it was not uncommon for appellant to be gone for a few days or even for a week at a time. Matlock testified that appellant would stay with a female friend. Matlock testified that it was also not uncommon for other individuals to stay the night or for a few days at the house.
{¶ 25} Matlock testified that other than marijuana, he never observed drugs inside of the residence, never observed anyone drop off any quantity of drugs, and never observed appellant sell any type of drugs.
{¶ 26} On cross-examination, Matlock testified that appellant owned the home at 2110 Airport Highway, and maintained that as his legal residence, although he lived there “off and on.” Matlock testified that as of the trial, appellant continued to live at 2110 Airport Highway.
{¶ 27} Following Matlock‘s testimony the defense rested. Appellant again moved for an acquittal pursuant to
{¶ 28} Thereafter, the jury returned with a verdict of not guilty as to the count of trafficking in drugs, and a verdict of guilty as to the count of possession of drugs in violation of
II. Assignments of Error
{¶ 29} Appellant has timely appealed his judgment of conviction, and now asserts five assignments of error for our review:
- The trial court erred when it denied defendant-appellant‘s motion for a judgment of acquittal as to the count of possession of cocaine at the close of the state‘s case.
- Defendant-appellant‘s conviction for possession of cocaine is not supported by sufficient evidence to satisfy the requirements of the due process clause of the Fourteenth Amendment to the United States Constitution.
- The trial court erred in denying defendant-appellant‘s motion to suppress cocaine that was seized by law enforcement officers pursuant to a
search warrant that was issued and executed in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. - The prosecutor violated the Rules of Evidence and deprived defendant-appellant of his rights under the due process and confrontation clauses of the Sixth and Fourteenth Amendments to the United States Constitution by eliciting testimonial statements of absent informants and urging the jury to consider the content of the statements as substantive proof of guilt.
- Defendant-appellant was denied his right to the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, due to the combined prejudicial impact of multiple instances of deficient performance.
III. Analysis
{¶ 30} For ease of discussion, we will address appellant‘s assignments of error out of order, beginning with his third assignment of error.
A. Motion to Suppress
{¶ 31} In his third assignment of error, appellant argues that the trial court erred when it denied his motion to suppress the evidence seized pursuant to the search warrant.
{¶ 32} Appellate review of a trial court‘s denial of a motion to suppress presents mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
{¶ 33} The
In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”
In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant. Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate‘s determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant.
Id. at paragraph two of the syllabus, following Illinois v. Gates.
{¶ 34} Appellant first argues that the search warrant affidavit focuses on allegations that appellant is a drug dealer, but does not provide information establishing that evidence of a crime would be found at 2110 Airport Highway. Appellant relies on the principle that “[t]he critical element in a reasonable search is not that the owner of the
{¶ 35} Appellant next challenges the magistrate‘s reliance on some of the information in the affidavit, specifically the information from source three that appellant had just sold two ounces of cocaine out of the residence. Citing State v. Williams, 173 Ohio App.3d 119, 2007-Ohio-4472, 877 N.E.2d 717 (6th Dist.), appellant argues that the affidavit did not adequately set forth the basis for determining that source three was reliable. In Williams, this court recognized that “Ohio courts have found probable cause to issue a search warrant under a variety of circumstances, but only when they have found
The affidavit contained no statements providing indicia of either the veracity of the informants or the basis of their knowledge. We have no idea how the officer confirmed the drug activity or why the sources have been proven reliable. “Filtering the hearsay statement of an informant through a law enforcement agency establishes neither the truth of the statement nor the reliability of the informant.” State v. Dalpiaz, 151 Ohio App.3d 257, 270, 2002-Ohio-7346, 783 N.E.2d 976, ¶ 43 [(11th Dist.)]. The officer‘s conclusions, not the required indicia of veracity or reliability, were presented to the magistrate.