STATE OF OHIO Plaintiff-Appellee -vs- ADAM POULTON Defendant-Appellant
Case No. CT2013-0030
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 14, 2014
2014-Ohio-1198
Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2013-0011 JUDGMENT: Affirmed
For Plaintiff-Appellee
D. MICHAEL HADDOX PROSECUTING ATTORNEY RON WELCH ASSISTANT PROSECUTOR 27 North Fifth Street, Suite 201 Zanesville, Ohio 43702-0189
For Defendant-Appellant
JEFFREY M. BRANDT ROBINSON & BRANDT 629 Main Street Suite B Covington KY 41011
Wise, J.
{¶1}. Defendant-Appellant Adam Poulton appeals from his convictions, in the Muskingum County Court of Common Pleas, on several felony offenses, including aggravated robbery. The relevant facts leading to this appeal are as follows.
{¶2}. On January 10, 2013, Dresden Police Officer Scott Caldwell was on routine patrol when he observed an African-American male, later identified as Jeffrey Body, enter a residence at 801 Canal Street, in an area known for illegal drug activity. Officer Caldwell also noticed a Cadillac automobile moving through the area. A few minutes later, he returned to the area of the residence and saw a number of people in the middle of the street. Officer Caldwell then saw Body, with blood on his person, running away from the group of people. The officer notified the Muskingum County Sheriff‘s Office for assistance. Body thereafter told investigators that he had been jumped and robbed by three or four males. During the altercation, Body suffered several broken bones to his face and was robbed of his wallet and automobile.
{¶3}. After appellant was apprehended, he was interviewed by Detective Brady Hittle of the Muskingum County Sheriff‘s Office. The interview was recorded on DVD, as further analyzed infra.
{¶4}. On January 16, 2013, the Muskingum County Grand Jury indicted appellant on the following charges:
{¶5}. 1) Aggravated Robbery with a firearm specification and repeat violent offender specification, a felony of the first degree,
{¶7}. 3) Felonious Assault with a firearm specification and repeat violent offender specification, a felony of the second degree,
{¶8}. 4) Theft (motor vehicle), a felony of the fourth degree,
{¶9}. 5) Having a Weapon While Under Disability, a felony of the third degree,
{¶10}. 6) Having a Weapon While Under Disability, a felony of the third degree,
{¶11}. 7) Theft ($1,000-$7,500), a felony of the fifth degree,
{¶12}. Appellant appeared with his attorney for arraignment on January 23, 2013, at which time he entered pleas of not guilty to all of the aforesaid counts.
{¶13}. On March 26, 2013, appellant‘s trial attorney filed a written motion to withdraw as counsel. The trial court denied said motion via judgment entry the next day.
{¶14}. Prior to trial, the trial court asked the parties to brief whether certain portions of appellant‘s statements, made during his interview with Detective Hittle, were admissible under
{¶16}. At sentencing, the trial court found the following counts would merge: Counts One, Two, and Three; Counts Four and Seven; Counts Five and Six; all firearm specifications; and all repeat violent offender specifications. The court also found that Counts One and Two would merge with Counts Four and Seven. The trial court thereupon sentenced appellant to an aggregate prison term of sixteen years.
{¶17}. Appellant herein raises the following two Assignments of Error:
{¶18}. “I. THE TRIAL COURT ERRED IN ADMITTING STATEMENTS MR. POULTON MADE DURING THE COURSE OF PLEA DISCUSSIONS.
{¶19}. “II. THE TRIAL COURT ERRED IN DENYING COUNSEL‘S MOTION TO WITHDRAW, LEADING TO DENIAL OF MR. POULTON‘S RIGHTS TO COUNSEL OR CHOICE OF COUNSEL.”
I.
{¶20}. In his First Assignment of Error, appellant argues the trial court erred in admitting into evidence certain statements he had previously made during plea negotiations. We disagree.
{¶21}. The admission or exclusion of evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. Our task is to look at the totality of the circumstances in the particular case under appeal, and determine whether the trial court acted unreasonably, arbitrarily or unconscionably in allowing or excluding the disputed evidence. State v. Oman (Feb. 14, 2000), Stark App.
{¶22}.
“(A) Except as provided in division (B) of this rule, evidence of the following is not admissible in any civil or criminal proceeding against the defendant who made the plea or who was a participant personally or through counsel in the plea discussions: *** (5) any statement made in the course of plea discussions in which counsel for the prosecuting authority or for the defendant was a participant and that do not result in a plea of guilty or that result in a plea of guilty later withdrawn.”
{¶24}. In State v. Frazier (1995), 73 Ohio St.3d 323, at the syllabus, the Supreme Court of Ohio held as follows in regard to
{¶25}. “In determining admissibility of statements made during alleged plea discussions, the trial court must first determine whether, at the time of the statements, the accused had a subjective expectation that a plea was being negotiated. The trial court must then determine whether such an expectation was reasonable under the circumstances. *** ”
{¶26}. In making our analysis, the totality of the circumstances must be reviewed. See Frazier at 337.
{¶27}. In the case sub judice, the DVD Exhibit reveals that appellant spoke to Detective Hittle after waiving his Miranda rights. The detective informed appellant of the potential charges, suggesting that appellant was “possibly” looking at facing a
{¶29}. Upon review, we are unable to conclude the trial court abused its discretion in finding appellant did not have a reasonable expectation of a plea deal at the time in question, and thereby declining to strike the DVD of the police interview. We find no basis to vacate appellant‘s convictions and remand the matter for a new trial.
{¶30}. Accordingly, appellant‘s First Assignment of Error is overruled.
{¶31}. In his Second Assignment of Error, appellant contends the trial court erred in denying his trial counsel‘s motion to withdraw from representation.1 We disagree.
{¶32}. The
{¶33}. In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), the United States Supreme Court stated: “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Id. at 589, 84 S.Ct. at 849. In Morris v. Slappy, 461 U.S. 1, 11–12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), the Court stated that a trial court‘s responsibility of assembling witnesses, lawyers and jurors for trial “counsels against continuances except for compelling reasons.”
{¶35}. Appellant‘s Second Assignment of Error is therefore overruled.
{¶36}. For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., concurs separately.
JWW/ 0225
{¶38} I further concur in the majority‘s disposition of Appellant‘s first assignment of error. Unlike the majority, I would find Appellant‘s statements to Hittle as to what Appellant wanted relayed to Haddox (the prosecutor), followed by Hittle leaving the interview room for the purpose of consulting the prosecutor and coupled with Hittle‘s statement upon return of the possibility of a single felonious assault charge, all combined to create a reasonable, subjective expectation on Appellant‘s part a plea was being negotiated with the prosecutor.2 I find such sufficient to render the prosecutor a participant at that point in time for purposes of the rule even if the prosecutor was not actually contacted.
{¶39} However, Appellant‘s incriminating statements concerning his allegedly limited involvement in the underlying crimes were made prior to Hittle‘s first leaving the interview room to purportedly go speak to the prosecutor. At that point in time, the prosecutor was not yet a participant. Accordingly, such statements are admissible.
{¶40} Appellant does not specifically identify in his brief any inculpatory statements made during the video interview in reliance of negotiating a plea. From my review of the video, I find nothing Appellant says upon Hittle‘s return to the interview
HON. WILLIAM B. HOFFMAN