State v. MyrickState v. Myrick
Rendered on the 21st day of January, 2011.
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
KRISTOPHER A. HAINES, Atty. Reg. #0080558, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
BROGAN, J.
{¶ 1} On the eve of his bench trial John Myrick waived his right to counsel and proceeded to defend himself pro se. Myrick wanted to call favorable witnesses, though he had never in the months leading up to trial mentioned any such witnesses to
{¶ 2} Myrick argues that the trial court‘s refusal to compel his witnesses’ attendance, its denial of a continuance to secure their attendance, its limiting the number of defense witnesses, and its insisting that Myrick testify before his witnesses constituted, individually or together, a violation of due process. Myrick also argues that the evidence supporting the specification is insufficient. We find that the triаl court did not violate due process. But we agree that the evidence is insufficient to support the 3-year specification.
I. FACTS
A. Factual Background
{¶ 3} The events leading to Myrick‘s convictions occurred during the afternoon of June 24, 2009, at an apartment building where Myrick lived with Elizabeth Wynn, his common-law wife. Also living there, in separate apartments, and present that afternoon were Douglas Pittman, Wynn‘s grandson, and Melinda Boykins, Wynn‘s daughter. It is not clear whether Angela Jones, Pittman‘s girlfriend, lived there too, but in any event she was present. Wynn аsked Pittman if he would go over to her apartment (evidently
{¶ 4} Officer Susan Benge was the first to arrive. Benge pulled up roughly thirty feеt away from Myrick, who was in back of the apartment building near the tree- and fence-lined edge of the property. When Myrick saw Benge he stretched out his arm and threw a black object over the fence into the trees. Benge immediately arrested Myrick, placed him in her cruiser, and stood nearby awaiting backup. Within minutes, Officers Herron and Locke arrived. While Locke watched Myrick, Benge and Herron searched the area where Myrick threw the object. They found–and Herron retrievеd–a loaded black revolver.
B. Procedural History
{¶ 5} On July 20, 2009, Myrick was indicted on one count of aggravated menacing,
{¶ 6} At an in-court status conference held the day before trial, Myrick told the trial court that he wanted to defend himself. Myrick had no real complaints about defense counsel; he simply believed that he could defend himself better: “I think I can do that [defend himself] better. I think I can just represent–no offense to him [defense counsel], Your Honor. But, you know, like I‘m dealing with–I mean, you know, I‘m going to be the one locked up not him. So I‘d rather–if something happen. So I‘d rather represent myself.” (Tr. 15).
{¶ 7} The state begаn presenting its case, as scheduled, on December 8. Pittman, Boykins, Jones, and Wynn all testified that they saw a small black revolver in Myrick‘s hand. The next day, Wednesday, December 9, after calling several police officers, the state rested. Myrick then began to argue with the trial judge over the calling of defense witnesses. Myrick eventually identified two police and three non-police witnesses. The court agreed to continue the trial for two days, telling Myrick that he could call the three non-pоlice witnesses on Friday. The court took a brief recess so that Myrick could file the necessary subpoenas. Myrick filed subpoenas for the two police witnesses and one non-police witness. When the trial resumed later that day, the court told Myrick that, in order to make a good use of time, if he planned to testify in his own defense he must do so that day. Myrick refused, saying that he wanted his witnesses to testify first.
{¶ 8} When trial resumed on Friday, December 11, none of Myrick‘s witnesses were present. Service of all thе subpoenas had failed for insufficient time for service. The trial court denied Myrick‘s request to compel the witnesses’ attendance and denied
{¶ 9} The court found Myrick not guilty of aggravated menacing but convicted him of the remaining charges, sentencing Myrick to one year‘s imprisonment for the two offenses аnd to a consecutive three years’ imprisonment for the firearm specification.
II. ANALYSIS
{¶ 10} Myrick assigns five errors to the trial court. The first four, which we will address together, allege due-process violations during the trial. The fifth alleges that there is insufficient evidence to support the 3-year firearm specification.
A. Due process
First Assignment of Error
{¶ 11} “The trial [court] committed reversible error and denied Mr. Myrick‘s rights to compulsory process, a fair trial, and due process of law, in violation of Mr. Myrick‘s rights under the Fifth, Sixth, and Fourteenth Amendments to thе United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.”
Second Assignment of Error
{¶ 12} “The trial court abused its discretion when it denied Mr. Myrick‘s right to present a complete defense to the State‘s charges against him, and exerted excessive
Third Assignment of Error
{¶ 13} “The trial court abused its discretion when it overruled Mr. Myrick‘s multiple motions to continue his trial, in violation of Mr. Myrick‘s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.”
Fourth Assignment of Error
{¶ 14} “The cumulative nature of the trial court‘s errors during Mr. Myrick‘s trial, as presented within the Assignments of Error I, II, and III, denied Mr. Myrick‘s rights to a fair trial and due process of law, in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.”
{¶ 15} Justice demands fairness. See U.S. v. Valenzuela-Bernal (1982), 458 U.S. 858, 872, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (saying that “fairness [is] essential to the very concept of justice“). That a criminal defendant will be treated with fairness is guaranteed by the Due Process Clauses of the Ohiо and United States constitutions. Cf. id. The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that “[n]o State shall * * * deprive any person of life, liberty, or property, without due process of law“; the Due Process Clause of the Ohio Constitution
{¶ 16} The matters to which Myrick has assigned error implicate matters within the sound discretion of the trial court. It is clear from the transcript that the trial judge worked hard to treat Myrick fairly and was successful. The judge was commendably patient with Myrick‘s argumentativeness and with Myrick‘s stubborn insistence on the way he believed he “should” be permitted to defend himself. While another court may have determined these matters differently, we see no due-process violation or abuse of discretion in the way this court determined them.
1. Compelling a witness‘s attendance
{¶ 17} The right to present witnesses is guaranteed by the Compulsory Process Clauses of the Ohio and United States constitutions,1 which contain the right to have
{¶ 18} Myrick contends that the trial court deprived him of his due-process right to compulsory process when the court refused to compel the attendance of his witnesses. We disagree. Myrick failed first to exercise his right to present favorable witnesses by failing to subpoena them in a timely manner.
{¶ 19} The right to a fair opportunity to defend is not absolute, and it does not require that all evidence favorable to the defendant be admitted. Swann, at ¶13 (Citations omitted.). When exercising this right, the defendаnt must comply with the rules of procedure. Id. at ¶14 (” ‘In the exercise of this right, the accused * * * must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ “), quoting Chambers, at 302. The defendant is not denied a fair opportunity to defend solely because a rule operates to exclude favorable evidence. Id. at ¶15, quoting U.S. v. Scheffer (1998), 523 U.S. 303, 316, 118 S.Ct. 1261, 140 L.Ed.2d 413.
{¶ 20} In Ohio,
{¶ 21} Here, none of Myrick‘s three witnesses was served with a subpoena. According to the record, on December 11, service on all three failed because the time available for service was insufficient. Indeed, one of the officers was on vacation leave and would not return for over a week. Since none of Myrick‘s witnesses was served, the trial court did not err by refusing to compel their attendance. In addition, Myrick failed to proffer what testimony these witnesses would provide.
2. Limiting the number of defense witnesses
{¶ 22} Myrick contends that the trial court deprived him of due process when it limited to three the number of favorable witnesses that he could call. We disagree.
{¶ 23} As we noted above, the right to present favorable witnesses may be limited. Pertinently, a trial court may limit the number of witness that a defendant may present without violating due process. See State v. Denis (1997), 117 Ohio App.3d 442, 446. This is particularly true when the defendant fails to show that additional
{¶ 24} When the trial court first asked Myrick who he wished to call Myrick replied that he planned on calling “some police officers,” whose names he did not then know. (Tr. 72). Myrick eventually identified fivе potential witnesses, only two of whom he could not have presented–Wayne Harris and Cheryl Jackson. Myrick did not tell the trial court who these two people are, what role they played in the events, or whether they were even present that afternoon. We therefore find no due process violation.
3. Order of testimony
{¶ 25} Myrick contends that the trial court violated his right to due process when the court insisted that he testify before his witnesses did. Myrick is correct, but we find that the matter is moot since no witnesses testified.
{¶ 26} Requiring a defendant to testify before his witnesses violates due process. The United States Supreme Court held in Brooks v. Tennessee (1972), 406 U.S. 605, 612, 92 S.Ct. 1891, 32 L.Ed.2d 358, that a statutory requirement that before presenting other defense witnesses the criminal defendant must first take the stand violated not only a defendant‘s right against self incrimination but also the defendant‘s right to due process. “[T]he accused and his counsel,” said the Court, “may not be restricted in deciding whether, and when in the course of presenting his defense, the
{¶ 27} Here, because it had agreed tо delay the trial for two days, the court wanted “to make the most expeditious use of our time that we can make.” (Tr. 326). To that end, the court insisted that, if he was going to testify, Myrick testify that day before his witnesses did. The court relented somewhat and told Myrick that, if he wished, Myrick could testify again after his witnesses had done so. In any event, since no other witnesses but Myrick testified, he suffered no harm from the trial court‘s ruling.
4. Denying a longer continuance
{¶ 28} Myrick contends that the trial court should have granted him a another continuance, or a longer continuаnce, to secure the appearance of his witnesses. We disagree.
{¶ 29} “The grant or denial of a continuance is a matter that is entrusted
{¶ 30} The question for the reviewing court is whether the trial court‘s denial was so arbitrary as to violate due process. See id. at 589. When deciding this, “[t]here are no mechanical tests.” Id. Rather, the reviewing court must use “a balancing test which
{¶ 31} Here, several factors support the trial court‘s decision. Myrick had already been granted a continuance three months prior, shortly before the case was originally scheduled for trial. Moreover, Myrick never told the court how long of a continuance he needed.2 Importantly, Myrick himself created the need for a delay.
{¶ 32} Myrick never mentioned these or any witnesses until the day before trial–not in the months leading up to the original trial date nor in the months leading up to the rescheduled date. As the trial court pointed out, Myrick knew the day the first continuance was granted–three months before–that the trial would be begin the week of December 8. And this date was confirmed at the November 30 hearing, a week before the trial. Yet, in all this time, Myrick never disclosed these witnesses to anyone–not even to defense counsel. The court asked counsel about defense witnesses during a sidebar held at the December 7 status conference:
{¶ 33} “THE COURT: * * * [W]ould you have had any other defense witnesses besides him [Myrick]?
{¶ 34} “[STATE]: No list has been filed.
{¶ 35} “[COUNSEL]: No, nobody beyond what [the state] has listed.
{¶ 36} “* * *”
{¶ 37} “[COUNSEL]: I‘m unaware of any new witnesses as I stand here. I mean
{¶ 38} he may have something else to tell you, but I don‘t know of any such people.
{¶ 39} “THE COURT: Okay. Has he told you I want you to have–I want you to talk to so-and-so?
{¶ 40} “[COUNSEL]: No.
{¶ 41} “THE COURT: I want that person–
{¶ 42} “[COUNSEL]: No.
{¶ 43} “THE COURT: –called as a witness, and that person will say such-and-such?
{¶ 44} “[COUNSEL]: No.”
{¶ 45} We note too that by rule Myrick had the duty to timely disclose any witnesses that he intended to call at trial: “Each party shall provide to opposing counsel a written witness list * * * of any witness it intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal.”
{¶ 46} Myrick had at least three months in which to subpoena witnesses, but he waited until the last minute. The trial court could legitimately consider this factor and weigh it heavily in denying Myrick another continuance. See Parker, at ¶20 (finding that the trial court did not err by denying a continuance where the defendant had sufficient time to cooperate with his attorney and obtain whatever witnesses the defendant believed were necessary). We find no violation of due process in the trial court‘s decision not to delay the case any longer.
5. Cumulative error
{¶ 47} We have observed that “the Supreme Court of Ohio has stated that numerous harmless errors may cumulatively deprive a defendant of a fair trial and thus may warrant the reversal of his conviction.” Mullins, at ¶57, citing State v. DeMarco (1987), 31 Ohio St.3d 191, paragraph two of the syllabus. Since we have found no harmless errors, Myrick‘s contention that the above four errors together constitute reversible error plainly has no merit. Because we find that Myrick was not deprived of due process in any of the particulars alleged in the first four assignments of error, they are all overruled.
B. Sufficiency of the evidence
Fifth Assignment of Error
{¶ 48} “The trial court committed reversible error when it entered a judgment of conviction regarding the firearm specification to Mr. Myrick‘s charge of tampering with evidence, and sentenced Mr. Myrick to a three-year term of incarceration regarding the firearm specification, in violation of Mr. Myrick‘s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.”
{¶ 49} Myrick here contends that the evidence is not sufficient to support the 3-year firearm specification. “The relevant inquiry is whether, аfter viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements * * * proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, at paragraph two of the syllabus.
{¶ 50}
{¶ 51} Officer Benge was the only person to see Myrick toss the gun. Benge testified that, when she first came upon Myrick, she saw him standing beside the fence and tree-lined edge of the property. She continued: “I was to the side of him. I looked
{¶ 52} Myrick concedes that the evidence is sufficient to find that he had a gun. However he contends that he did not display, brandish, indicate he possessed, or use it to facilitаte the underlying offense of tampering with evidence. We agree.
{¶ 53} “We start, as always, with the language of the statute.” Williams v. Taylor (2000), 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435. The test of subsection (ii) provides that a sentencing court shall impose a 3-year prison sentence if an offender is convicted
{¶ 54} of “having a firearm on or about the offender‘s person or under the offender‘s control while committing the felony and displaying the firearm, brandishing the firearm, indicating that the offender possessed the firearm, or using it to facilitate the offense.”
{¶ 55} Here, we do not think that a rational trier of fact could find beyond a reasonable doubt that Myrick engaged in conduct that the General Assembly sought to punish with a 3-year prison term. None of the risk-increasing types of conduct specified in subsection (ii) is defined by the Revised Code, so we follow the Code‘s rule of construсtion that words and phrases without a technical or particular meaning “be read in context and construed according to the rules of grammar and common usage.”
{¶ 56} While we will reverse the 3-year firearm specification conviction, we will also remand so that the trial court may enter a judgment of conviction for a 1-year firearm specification and resentence Myrick accordingly. See State v. Holmes, 181 Ohio App.3d 397, 2009-Ohio-1241, at ¶21 (saying that “in the absence of evidence that defendant did ‘display the weapon, brandish it, indicate that [she possessed] it, or use it,’ there is insufficient evidence to support the three-year firearm specification, and defendant must be resentenced only on the оne-year firearm specification under R.C.
{¶ 57} The fifth assignment of error is sustained.
III.
{¶ 58} We have overruled the first, second, third, and fourth assignments of error, but we have sustained the fifth. Accordingly, the 3-year firearm specification conviction is Reversed, but in all other respects the judgment of the trial court is Affirmed. This matter is Remanded to the trial court so the trial court can impose the one-year sentence provided in
FAIN and GRADY, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Michele D. Phipps
Kristopher A. Haines
Hon. Timothy N. O‘Connell