State v. PalmerState v. Palmer
{¶ 1} Defendant-appellant, Reginald Palmer, appeals his conviction in the Butler County Court of Common Pleas for aggravated robbery, felonious assault, and grand theft.
{¶ 2} Appellant was indicted in October 2013 on one count each of aggravated robbery with a firearm specification, felonious assault, and grand theft. The state alleged that on September 24, 2013, appellant struck Jamey Arnold in the head with a handgun, then stole Arnold‘s cellphone and car and fled the scene in Arnold‘s car. A jury trial was held in November 2013.
{¶ 4} On September 24, 2013, Arnold and Katie Henry, his estranged wife, drove to an abandoned house on South 12th Street, in Hamilton, Ohio to buy a laptop from a man known to Henry as “Reggie.” Although Henry knew Reggie from a homeless shelter, he was then living in the abandoned house on South 12th Street. Henry had been to the house before and believed no other person lived or stayed there other than Reggie. Once they arrived at the house, Arnold stayed in his car; Henry met Reggie on the side of the house and they entered the house through a back door.
{¶ 5} After Reggie refused to sell the laptop to Arnold, Henry left the house and returned to Arnold‘s car. As they were about to leave, Reggie came out of the house and approached the car, was given a few cigarettes by Henry, and told them he wanted to talk about the laptop. Arnold let him in the car. Reggie entered the car through the rear passenger door, sat on the backseat slightly behind Henry, began talking about the laptop, and asked for and was given a lighter. Arnold and Henry both testified that Reggie then suddenly pulled out a gun and struck Arnold once in the head with the gun. Arnold testified the gun was a chrome-colored revolver. Henry testified the gun was silver.
{¶ 6} Reggie ordered Arnold to get out of the car. By then, Arnold was bleeding a lot. Arnold crawled out of the car through the driver‘s door. As he was crawling to the back of the
{¶ 7} Arnold was taken to the hospital, was admitted, and remained there one and one-half days. His head wound required seven staples. Arnold also sustained a chipped tooth and experienced severe headaches resulting in subsequent visits to the hospital. At some point after the incident, Arnold realized his cellphone was missing. It was recovered in a parking lot at Second Street and Ludlow Street and eventually returned to Arnold.
{¶ 8} Arnold was unable to identify his assailant in a photo lineup and could not identify appellant at trial as his assailant. By contrast, Henry identified appellant as the man who assaulted Arnold, both in a photo lineup after the incident and in the courtroom at trial. The revolver used by appellant was never recovered.
{¶ 9} Tim Klein lives on South 12th Street. At the time of the incident, Klein was standing outside on the street talking to his friend Tabitha McKeehan who was in her car. McKeehan testified she could not see the incident as her view was blocked by a parked car; she could however hear the incident. By contrast, Klein witnessed part of the incident.
{¶ 10} McKeehan testified she heard what sounded like a one-sided argument, with someone repeatedly stating, “You think you‘re going to rob me, bitch. You can‘t effing rob me. I‘m the mothereffing robber.” McKeehan then heard a gunshot, a car door slam, and tires squeal as a car was pulling off. Klein testified he heard screaming and then saw Arnold being pushed out of a car. Subsequently, appellant got out of the car and hit Arnold three or
{¶ 11} Hatcher testified that his law office in Hamilton, Ohio was burglarized in September 2013, and that a loaded revolver and two or three prescription bottles with his name on them were stolen. Hatcher described the stolen revolver as a shiny black revolver with a brown wooden handle. Hatcher testified that no one was charged in that incident.
{¶ 12} Several law enforcement officers testified. Their testimony revealed that (1) the day after the incident, Arnold‘s car was found behind a building on Ludlow Street, (2) a police search of the area yielded the vehicle‘s keys, a shirt appellant was wearing when he assaulted Arnold, Henry‘s identification card, and a white cellphone Henry had loaned to appellant, (3) a shoeprint found at the scene of the incident matched the distinctive diamond pattern of the shoes appellant was wearing when he was arrested, (4) a laptop was found in the abandoned house occupied by appellant, (5) prescription bottles belonging to Hatcher were found hidden under a blanket on a cot in the abandoned house, and (6) with the exception of the bed, there was no evidence anyone else was living in the house.
{¶ 13} Appellant turned himself in at the Hamilton Police Department on September 25, 2013. During his interview with appellant, Detective Frank Botts noticed a red spot on top of appellant‘s right shoe. Because the red spot looked like blood, the shoes were sent to BCI&I for testing. At trial, Katherine Hall, a forensic scientist at BCI&I, testified that (1) several items were tested for DNA, including appellant‘s shoes, (2) the red substance on appellant‘s shoes tested “presumptive positive for blood,” and (3) the DNA profile on
{¶ 14} On November 19, 2013, the jury found appellant guilty as charged. Appellant was subsequently sentenced to 12 years in prison.
{¶ 15} Appellant appeals, raising three assignments of error.
{¶ 16} Assignment of Error No. 1:
{¶ 17} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT ADMITTED EVIDENCE OF AN UNRELATED BURGLARY, CONTRARY TO
{¶ 18} Appellant argues the trial court erred in allowing Hatcher to testify that his law office was burglarized and that a revolver was stolen. Appellant argues such evidence was prohibited other-act evidence under
{¶ 19} As stated earlier, appellant sought to exclude Hatcher‘s testimony through a motion in limine before opening statements. The trial court denied the motion. At trial, defense counsel did not object to the presentation of Hatcher‘s testimony. Rather, during a post cross-examination sidebar conference, defense counsel asked the trial court to give a limiting instruction to the jury. Thereafter, the trial court instructed the jury as follows:
Ladies and gentlemen, you just received testimony * * * that a break-in occurred. You‘re not to consider the fact that a break-in occurred and tie that in any way, shape, or form to this Defendant. That‘s not the purpose of that testimony.
The purpose of the testimony was to show that a revolver gun was taken, along with some prescription pill bottles were taken. And that‘s * * * the purpose and that‘s the limit of that testimony, okay?
{¶ 20} A motion in limine, such as appellant‘s motion to exclude Hatcher‘s testimony, is a “‘tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory
{¶ 21} Because appellant did not object to Hatcher‘s testimony at trial, he waived any error except plain error. See
{¶ 22} It is well-established that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that a person acted in conformity therewith on a particular occasion.
{¶ 23} ”
{¶ 24} We find that Hatcher‘s testimony was properly admitted to show identity under
{¶ 25} We also find that Hatcher‘s testimony was not improperly admitted under
{¶ 26} “Curative instructions are presumed to be an effective way to remedy errors that occur during trial.” State v. Parker, 5th Dist. Stark No. 2013CA00217, 2014-Ohio-3488, ¶ 36, citing State v. Treesh, 90 Ohio St.3d 460 (2001). A jury is presumed to follow and comply with instructions given by the trial court. State v. Carpenter, 12th Dist. Butler No. CA2005-11-494, 2007-Ohio-5790, ¶ 20, citing Pang v. Minch, 53 Ohio St.3d 186 (1990).
{¶ 27} We find that the limiting instruction given by the trial court was appropriate and plainly instructed the jury not to link the fact Hatcher‘s law office was burglarized and prescription bottles and a revolver were stolen to appellant in any way, shape, or form. The purpose of the limiting instruction was to prevent the burglary of Hatcher‘s law office and the theft of prescription pills and a revolver from being unfairly prejudicial. We are confident that the limiting instruction minimized any possible prejudice resulting from the admission of Hatcher‘s testimony. Further, because a jury is presumed to follow instructions by the trial court, we conclude the jury used the testimony at issue only for its specific and limited purpose. See State v. Vega, 9th Dist. Summit No. 19369, 1999 WL 980589 (Oct. 27, 1999).
{¶ 28} In addition, as is fully discussed in appellant‘s third assignment of error, the eyewitnesses’ testimony at trial and the evidence presented by the state clearly identified
{¶ 29} Appellant‘s first assignment of error is overruled.
{¶ 30} Assignment of Error No. 2:
{¶ 31} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT ALLOWED THE STATE TO OFFER EXPERT TESTIMONY IN VIOLATION OF
{¶ 32} Appellant argues the trial court erred by not excluding Hall‘s expert testimony that DNA evidence from Arnold was found on appellant‘s shoes because the state failed to provide appellant with the evidence 21 days prior to trial as mandated by
{¶ 33} As stated earlier, appellant sought to exclude the foregoing expert testimony as a discovery sanction under
{¶ 34} The record shows that the state disclosed its intention to call Hall as a witness at trial when it filed its supplemental discovery on November 12, 2013, six days before the trial. The first day of the trial was November 18, 2013. That day, following defense counsel‘s
With regard to the DNA evidence, I was made aware by Detective Botts, by voice mail last Monday that some DNA testing was available from BCI&I. Obviously, last Monday was Veterans Day. I was not in the office. The next day on Tuesday, I contacted BCI&I, was made aware that they had just completed their testing results but the official report was not yet even sent out to either the prosecutor‘s office or the Hamilton Police Department.
I requested that they scanned [sic] and email me a copy of the report prior to it being sent out in the mail. I was able to obtain a copy of the report and immediately forwarded it to [defense counsel] by email to make him aware of the genetic testing results in an effort to give him as much lead time as possible to be aware of that evidence and to speak with his client about that evidence.
[I] believe, under the circumstances, the State did make every effort to provide timely notice of the report and its contents to defense counsel at the first moment available.
In addition, the State also tried to provide it as quickly as possible to allow the Defendant an opportunity to request a continuance if he wished to do so. As the Court is well aware, we‘re here today because the Defendant wished for a speedy trial and refused to waive time.
Even after receiving the DNA evidence, I believe the position of the Defense did not change.
{¶ 35} The trial court denied the motion in limine on the basis of
{¶ 36} The trial court further stated: “I tried to alleviate this issue. I tried to avoid this
And so for the record, I did make the offer to Defense counsel to allow him to interview this witness prior to testimony since there was an issue earlier about the timing of her report * * * for the DNA. And [defense counsel] declined to exercise that right. I just want to put that on the record.
{¶ 37}
An expert witness for either side shall prepare a written report summarizing the expert witness‘s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert‘s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert‘s testimony at trial.
{¶ 38}
The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.
{¶ 39} “Prosecutorial violations of
{¶ 40} There is no doubt that the state‘s failure to provide appellant with the DNA report 21 days before the trial was a violation of
{¶ 41} Appellant has also failed to show that foreknowledge of the DNA report would have benefited him. Appellant asserts he “should have been afforded adequate time to review, prepare his cross-examination, and ask for replicated tests, if necessary, before proceeding to trial.” However, while the evidence was not disclosed to defense counsel 21 days prior to trial, it was disclosed and provided to defense counsel six days prior to trial. In addition, the trial court offered to continue the case a couple of times and allow defense counsel to interview Hall prior to testimony, but appellant declined each time and instead chose to proceed with the trial. See State v. Horton, 8th Dist. Cuyahoga No. 86821, 2006-Ohio-3736 (no abuse of discretion in allowing expert witness to testify at trial even though state did not notify defendant of its intention to call expert witness until the day of trial where defense counsel declined trial court‘s offer for an overnight continuance to prepare questioning on expert‘s testing methodology).
{¶ 42} Although Hall‘s testimony that DNA evidence from Arnold was found on
{¶ 43} Finally, no due process issue exists here. There is no general due process or constitutional right to discovery in a criminal case. See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426; State v. Craft, 149 Ohio App.3d 176, 2002-Ohio-4481 (12th Dist.). In addition, had appellant accepted the trial court‘s offer of a continuance, plainly the continuance and the late discovery violation would have been counted against the state. See State v. Viera, 5th Dist. Delaware No. 11CAA020020, 2011-Ohio-5263.
{¶ 44} Appellant frames this issue as one where he was forced to choose between his right to a speedy trial and his right to the 21-day prior notice of an expert witness report. The record does not support this claim. Appellant was arrested on September 25, 2013, and held in jail until his trial began on November 18, 2013. Even if appellant had remained in jail during any continuance of his trial, he could still have been tried consistent with his statutory right to a speedy trial until December 26, 2013.
{¶ 46} Appellant‘s second assignment of error is overruled.
{¶ 47} Assignment of Error No. 3:
{¶ 48} APPELLANT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 49} Appellant argues that given “the lack of credible evidence offered by the State during the jury trial” and the fact the eyewitnesses’ description of the handgun used by appellant contradicted Hatcher‘s description of his stolen revolver, the jury lost its way in finding appellant guilty of aggravated robbery, felonious assault, and grand theft.
{¶ 50} In determining whether a conviction is against the manifest weight of the evidence, this court, reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 220. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
{¶ 52} Appellant was convicted of aggravated robbery, in violation of
{¶ 53} Appellant was also convicted of felonious assault, in violation of
{¶ 54} After carefully reviewing the record, we find that the jury did not lose its way in convicting appellant of aggravated robbery with a firearm specification, felonious assault, and grand theft. Arnold testified that on September 24, 2013, a man named Reggie struck him once in the head with a revolver, subsequently shot at him, and then fled the scene in Arnold‘s car. As a result of the incident, Arnold was hospitalized, suffered a head wound which required seven staples, sustained a chipped tooth, and has experienced severe headaches resulting in subsequent visits to the hospital.
{¶ 56} The state presented evidence that a shoeprint found at the scene matched the distinctive diamond pattern of the shoes appellant was wearing when he was arrested. The state also presented evidence that after Arnold‘s car was found the day after the incident, the police searched the area where the car was located and found the vehicle‘s keys, a shirt appellant was wearing when he assaulted Arnold, Henry‘s identification card which she had left in Arnold‘s car at the time of the incident, and a white cellphone Henry had loaned to appellant.
{¶ 57} The handgun used by appellant was never found. Hatcher testified that his stolen handgun was a shiny black revolver with a brown wooden handle. Arnold testified he was struck with a chrome-colored revolver. Henry testified appellant struck Arnold with a silver gun. Klein testified that the handgun used by appellant was a revolver with a “greyish” steel tint. The eyewitnesses’ respective description of the handgun used by appellant is not necessarily contradictory as all three essentially described the color of the handgun as being a shade of grey. Hatcher‘s description of his stolen revolver is also not necessarily inconsistent with the eyewitnesses’ description of the handgun used by appellant.
{¶ 58} As the trier of fact in this case, the jury was in the best position to judge the credibility of witnesses and the weight to be given the evidence. Estes, 2014-Ohio-3295 at ¶ 15. In light of all of the foregoing, we find that appellant‘s conviction for aggravated robbery with a firearm specification, felonious assault, and grand theft were not against the manifest weight of the evidence.
{¶ 59} Appellant‘s third assignment of error is overruled.
{¶ 60} Judgment affirmed.
RINGLAND, P.J., and PIPER, J., concur.