STATE OF OHIO, PLAINTIFF-APPELLEE, v. JAMES R. REAM, DEFENDANT-APPELLANT.
CASE NO. 1-12-39
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
September 30, 2013
2013-Ohio-4319
Michael J. Short for Appellant
Jana E. Emerick for Appellee
{1} Defendant-Appellant, James R. Ream (Ream), appeals the judgment of the Court of Common Pleas of Allen County, finding him guilty of murder with a firearm specification and sentencing him to 18 years to life in prison. On appeal, Ream contends the trial court erred by: (1) failing to suppress statements made during police interviews after he purportedly invoked his Fifth Amendment Right to counsel; (2) disallowing the testimony of his expert witness; (3) failing to give proper jury instructions; (4) denying his motion for new counsel; and (5) permitting the introduction of prejudicial photographs. Ream also claims that he was denied the effective assistance of counsel. For the reasons that follow, we affirm the trial court‘s judgment.
{2} On November 17, 2011, the Allen County Grand Jury indicted Ream on one count of murder in violation of
{3} This matter has five relevant stages: (1) the pre-trial proceedings relating to Ream‘s motion to suppress; (2) the pre-trial proceedings relating to the Daubert hearing of Ream‘s expert witness; (3) the pre-trial proceedings relating to Ream‘s motion for new counsel; (4) the pre-trial proceedings to suppress
Ream‘s Motion to Suppress
{4} On February 6, 2011, Ream filed a motion to suppress his statements made during two police interrogations that occurred on October 18, 2011 and October 20, 2011. He argued that the statements were taken after he invoked his Fifth Amendment right to counsel. The trial court conducted a suppression hearing on March 2, 2011. At the hearing, the following relevant evidence was adduced.
{5} Detective Mark Baker, from the Allen County Sheriff‘s Office, testified regarding his role in interviewing Ream. On October 18, 2011, Detective Baker learned that Ream had approached another deputy and stated that he was involved in the murder of Ron. Detective Baker was assigned to speak with Ream while other officers investigated the potential crime scene. Prior to the interrogation, Detective Baker read Ream an advice of rights form, which Ream subsequently signed at 12:52 p.m. After signing the form, Ream agreed to talk with Detective Baker.
{6} Two days later, on October 20, 2011, Detective Baker had another interview with Ream. Once again, Detective Baker read the advice of rights form to Ream, which Ream signed at 2:20 p.m. Subsequently, Detective Baker began
{7} The advice of rights form contained the following language:
YOUR RIGHTS
BEFORE YOU ARE ASKED ANY QUESTIONS, YOU MUST UNDERSTAND YOUR RIGHTS.
- You have the right to remain silent.
- Anything you say can be used against you in court.
- You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning.
- If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.
- If you decide to answer questions now without a lawyer present, you still have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer.
WAIVER OF RIGHTS
I have read this statement of my rights, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
(Suppression Hearing, State‘s Exhibit 1, 2).
{8} On cross examination, Ream‘s trial counsel elicited the following testimony:
Q: Do you remember immediately in the beginning of [the second interview] approximately three and a half (3 1/2) minutes in, Mr. Ream saying to you that you‘re going to have to provide me with a counsel?
A: Yes.
Q: And what was your response?
A: I told him we could talk if we if he wanted to talk. If he wanted counsel I would get him counsel and I think through that whole interview I I [sic] probably brought that up a half a dozen times.
* * *
Q: Do you remember at approximately three (3) minutes later approximately 6:50 into the statement where [Ream] said to you that he was willing to cooperate but he wanted to have s- [sic] an attorney appointed there so he could talk to him so that he knew how [to] answer the questions?
A: No, he never he never directly asked for an attorney I would have stopped the interview right away.
Q: So, he never stated to you that he wanted an attorney there to assist him in how to answer the questions?
A: No, he said he was willing to talk to me about things that he could remember and he didn‘t want to talk about things he couldn‘t remember without an attorney. I told him I understood that. You can answer any question you want and you can refuse to answer anything you want or just can just simply refuse to talk to me altogether.
Suppression Hearing Tr., p. 17-19.
{10} The recordings reveal the following relevant evidence. Once Detective Baker entered the interview room, he introduced himself, gave Ream cigarettes and obtained general information about Ream. Ream was then read his advice of rights form, which led Ream and Detective Baker to have the following exchange:
Baker: First thing I wanna do though, you are not arrested at this moment, okay? Not technically in custody. I‘m going to read you your rights, these items here, one through five are your Miranda rights, I‘m going to read them out loud for you. You can follow along with this paper. [Reads Miranda rights out loud]. Do you understand what those rights mean?
Ream: Yeah. I can give you some basics, but I do need a public defender or somebody to tell me what I should be saying, what I shouldn‘t.
Baker: Okay, alright. What I am going to do is go through this [form] and have you sign it, that I presented you with your rights.
Ream: [inaudible]
Baker: Hang on a second, one step at a time. Just slow down a bit, now I am going to ask you to sign these consent to search forms okay? This waiver of rights down here this paragraph, will you read that out loud?
[Ream begins to read the waiver paragraph out loud]
Ream: Uhh it says, I do not want an attorney.
Baker: Yeah, you don‘t have to agree to that.
[Ream finishes reading the waiver out loud]
Baker: Do you understand what that means?
Ream: Yeah.
Baker: That means you have been provided with your rights and you understand what they are. And if you decide to talk to me now and answer any questions you can stop answering questions at any time, okay?
Ream: Yeah, I‘m just going to give you the basics. Because I can‘t can‘t [sic] even piece it all together.
(Suppression Hearing, State‘s Exhibit 3). At this point, Ream signed the advice of rights form.
{11} The interview continued with Ream telling Detective Baker about the shooting. About 26 minutes into the interview, the following exchange occurred regarding the assignment of a public defender:
Ream: I will make you a deal. Give me some time to recount what happened. Get a public defender here with me so he can tell me what I am allowed to tell you because it‘s your job to provide the prosecutor with information and I can‘t give you information right now, my mind in spinning right now * * *. So please, I provided you with the basics right now, let me rethink what actually happened. Right now I am running a fever. Thank you for the cigarettes * * * that ain‘t right, I flipped out on him. I sat there for hours not realizing –
Baker: That you shot your brother?
Ream: Yeah, it didn‘t seem real, so unrealistic.
{12} The second interview of Ream occurred on October 20, 2011. Detective Baker again conducted the interview. Before asking any questions concerning the investigation, Detective Baker asked Ream to once again read and sign the advice of rights form. The following conversation then took place:
Ream: They‘re gonna have to provide me with some counsel. I‘ll be happy to talk to you and fill in the gaps, but right now I‘m still trying to remember what the gaps are.
Baker: You are in custody and I do have to read you your rights and we will talk about them. The reason I brought you up today because the prosecutor called me * * * they have, obviously, completed the process of the crime scene * * * there are some questions about certain things that happened based on what you told me yesterday.
Ream: You know what, I‘m still drawing blanks.
Baker: Let me ask you this question. I don‘t want to get into it, without being legal. It is for your protection. If I go over the waiver of rights form with you and go through that process like we did on day one, when we first sat down, can we talk about some of the things that happened?
Ream: I‘ll tell you this. Let‘s rehash the last two weeks.
Baker: Ok we can do that. Let‘s do this [pointing to the waiver] then we‘ll do that. * * * I don‘t want you to go through anything without acknowledging that [referring to the waiver].
* * *
[Detective Baker reads the waiver out loud for Ream].
Ream: Before I sign this, I am more than willing to cooperate, I need to have whoever they assigned [to] me present for any pertinent questions.
Baker: That‘s fair. We can do this, if you want to talk about certain things that‘s fine with me.
Ream: I‘m gonna help you piece together what led up to all this. That I can do and I know I am in the clear.
Baker: Let me cover my butt here. If you don‘t want to talk to me without a lawyer we don‘t have to talk at all.
Ream: Well I can say things up to the incident but I‘m still trying to figure out how the incident got started to be honest with you.
Baker: If we come across something that you want to talk to me and we come across something that you don‘t want to talk about, we don‘t have to.
* * *
Ream: We‘ll go ahead and I will sign these papers for you. And we‘ll start from a couple of weeks ago, and I will tell you what led up to that point, but I am not going to answer anything that I don‘t know what to tell you.
(Suppression Hearing, State‘s Exhibit 4). At this point, Ream read the waiver statement out loud and subsequently signed the form.
{13} Detective Baker then asked Ream questions regarding what led up to the shooting. Throughout the questioning, Ream answered Detective Baker‘s questions. However, Ream mentioned a public defender a few times. Nevertheless, after these isolated statements, Ream offered more information
Baker: Let me ask you something here. This isn‘t even about your case, it ain‘t about what you did. A couple of times now you‘ve brought up the fact, let me talk to the, whoever my public defender will be, do you think your public defender, is it because you don‘t want to talk to me about it without counsel? If that‘s the case, all you have to do it tell me that. Or do you think that, in your mind, that talking to the public defender is gonna help you remember some things. I am confused now.
Ream: No. So he can tell me what I am allowed to say.
Baker: Are you afraid to tell me some things? Is that it?
Ream: You know what, I can‘t remember a lot of what actually took place right there, because my mind was going about 15 different directions before that happened, trying to remember what I couldn‘t take what I needed to do before. And out of the blue, he got really, I mean he just he was almost like the devil came over him or something you know, that‘s what I remember * * *.
Baker: You talk a lot and I listen * * * I don‘t want to sit here and I‘m not gonna play a tricking game with you. When I read you your Miranda rights, it‘s for a reason, and I have to abide by it. If you don‘t, I have some questions that pertain directly to –
Ream: I don‘t trust me.
* * *
Baker: I guess in my world, most of the time anyway, things are black and white. A guy either wants to talk to me or he doesn‘t.
Ream: I want to, I just can‘t.
Baker: Or you feel like legally you don‘t want to talk to me because you want to talk to your attorney.
Ream: Well that‘s part of it, that‘s part of it. But the part of it, is I‘m blanked out * * *1
Baker: I just kinda wanna distinguish which one of the two it is. Because, if it‘s Rick legally James R. Ream wants to not talk to me because he wants his attorney, I want to leave the room.
Ream: No, that‘s not it. Look I know you are a good guy okay, I know what your position is here. I wanna fill in the gaps, I wanna clarify that right here and now. But I can‘t remember exactly what took place other than him lunging * * *.
Baker: I would never be upset with you, I would never be mad, I would never call you a a a liar or a deceiver for the simple fact you can‘t remember what happened because so much happened. Like I said, I am just trying to distinguish between whether or not you wanna talk to me about it, about what you can remember, and the gaps you can fill in or if you just don‘t want to. That‘s what I am trying to get at.
Ream: The only reason I said that about the legal counsel, is because I think having a mediator here, okay, will help out a little bit. That‘s what I am saying.
Baker: I am not pressuring you or anything.
Ream: No you‘re not. No no no no please don‘t put that on yourself.
Baker: I am not trying to make you talk about anything you don‘t want to talk about.
(Suppression Hearing, State‘s Exhibit 4).
{14} On April 2, 2011, the trial court denied Ream‘s motion to suppress. The trial court found that Ream was properly advised of his Miranda rights, he
Daubert Hearing
{15} On July 9, 2012, Ream disclosed that he intended to call Dr. Matthew Ziccardi as an expert witness at trial. On July 19, 2012, the State filed a Motion in Limine to prohibit Dr. Ziccardi from testifying at trial regarding his July 5, 2012 report. Dr. Ziccardi‘s report, in relevant part, stated the following:
After reviewing the records and interviewing Mr. Ream for over four hours, I submit my clinical opinion that he was in a state of shock after the alleged offense and did not act in a rational manner. His actions in the many hours after the alleged offense, including leaving to get gas, money, and breakfast, are inconsistent with an individual trying to elude capture and/or punishment. His mind set was that an individual who was overwhelmed by the event and stricken with grief, shame, and fear. His actions on the following morning, including giving possessions to family members and approaching police, are again consistent with a person who feels he is facing punishment for the situation.
In delving into Mr. Ream‘s background, he has suffered from mental illness for much of his adult life. He has been hospitalized on two occasions for suicidal ideation and depression and battled substance abuse. He also has a history of poor judgment and decision making, such as living at a homeless shelter despite having the means to support himself. His relationship with his brother was both close and tortured, wherein he idolized his brother but was also bullied by him. This is why he reacted in such an illogical manner after the alleged offense. He simply could not believe his actions, the outcome, or the fact that he was no longer going to be with his brother. Rather than fleeing, he was unable to see any action other than to deal with realities as they presented themselves.
(Docket No. 147, State‘s Exhibit 1).
{17} On August 1, 2012, the trial court held a Daubert Hearing to determine whether Dr. Ziccardi would qualify as an expert witness under
{18} Dr. Ziccardi was asked to do an evaluation and analysis of Ream‘s actions during the alleged incident and afterwards. Dr. Ziccardi testified that in determining his opinion, he reviewed a psychological evaluation which looked at the questions of competency to stand trial and Ream‘s mental state at the time of the offense. Dr. Ziccardi also reviewed the several hours of interview conducted by Detective Baker, police reports, and also met with Ream on two occasions for a total of four hours. During his interview with Ream, Dr. Ziccardi gathered historical information about Ream‘s life and conducted a mental status examination and an objective personality test (MMPI-2).
{20} Dr. Ziccardi‘s diagnosis was that Ream was suffering from a condition known as acute stress disorder. Dr. Ziccardi stated that it is necessary to conduct a two-step analysis to determine whether someone suffers from acute stress disorder. The first step requires that (1) the person experienced, witnessed or was confronted with an event that involved actual threat and death or serious injury or threat to the physical integrity of self or others[; and (2)] the person‘s response involved intense fear, helplessness or horror. Id. at 19-20. The second step requires a person to have at least three symptoms present. In Ream‘s case,
{21} Further, on cross-examination, Dr. Ziccardi admitted he was unable to determine whether the acute stress disorder Ream exhibited was due to Ream shooting Ron in self-defense or from purposefully shooting his brother. Dr. Ziccardi also admitted that there are no published peer reviewed articles that would allow him to draw that distinction because doctors are unable to cause trauma to study the reaction to people. Id. at 26.
{22} The trial court granted the State‘s Motion in Limine and prohibited the testimony of Dr. Ziccardi at Ream‘s trial. In its order, the trial court stated that Dr. Ziccardi‘s methodology was unreliable and his proposed testimony was irrelevant. Specifically, the trial court stated that because Dr. Ziccardi mainly relied on Ream‘s own self-reporting in making his diagnosis, it was not sufficiently reliable to present to a jury at trial. (Docket No. 223, p. 7). Further, the trial court found that even if the methodology proved to be reliable, it was irrelevant under
Motion for New Counsel
{23} On August 7, 2012 a motion hearing was held to determine whether Ream should be given another court appointed attorney. This motion hearing was held six days before Ream‘s trial began, and this was the first time Ream had complained to the trial court about his trial counsel. When asked why he wanted new trial counsel, Ream replied:
A: I also I believe [I] told [the trial court] that I haven‘t been able to see [trial counsel] as much as I‘d like to and we needed to cover an awful lot of material. I haven‘t seen hardly anything. When I do see [trial counsel] it‘s usually to imply things of plea bargaining and [those] types of issues which I‘m not interested in and haven‘t been and I‘ve tried to tell [trial counsel that]. Okay, that‘s just one –
Q: That‘s that‘s fine.
A: One (1) one (1) one (1) one (1) of the particulars that will come up. But, based on what I‘ve seen and involving [trial counsel] –
Q: When – how long as this been going on?
A: Quite some time.
Q: I‘m sorry?
A: Quite some time, when I – the times I‘ve have seen –
Q: And you bring it to the court‘s attention less than a week before trial?
* * *
Q: Do you have any information that [trial counsel] hasn‘t investigated all the facts and knows all the possible defenses in this case?
A: Being that [trial counsel] didn‘t sit down with me and discuss a lot of pertinent information I was for – [trial counsel] told me don‘t write him, but because of the lack of communication between [trial counsel] and I, I was forced to write to him letters in the mail which I don‘t like doing. [Trial counsel] didn‘t want to receive them but I had no choice but to supply him what information I could through the mail. I received no acknowledgement that [trial counsel] was going to use any of that information.
Pre-Trial/Motion Hearing Tr., p. 3-6.
{24} The trial court then proceeded to ask trial counsel questions. Trial counsel explained:
A: I have received the letters from [Ream] and have read them. I have told [Ream] to be very careful what he puts in those letters because of the correctional officers or law enforcement officers. I- it‘s my belief that they do review the correspondence that go[es] out and I just told him to be very careful and I did not recall anything that really needed to be [in] detail gone over with him. I have sat down and gone over with him – this matter has been going on for sometime [sic] and I cannot sit there everyday [sic] or every other day, every week sittin there ho- providing him with all of the discovery that has been pr-provided to me by the State. I made copies of the audio and video recordings, I made copies of the approp- applicable law in areas that are of interest and of particular relevant [sic] in these cases. I had some more to give [Ream] today too.
Q: Let me ask you this [trial counsel]. Do you feel as far as your representation of the Defendant, James R. Ream, is there any conflict of interest in you representing him?
A: I- Well my discussions with him I have informed [him] that I did know some of the people that are involved in this instance and –
Q: But is there any conflict as far as your representing him to the enth degree?
A: There‘s no – I D- I have not represented any of the witnesses or anything like that. There‘s not that type of a conflict. But, if –
Q: That‘s what I am asking.
A: But, if Mr. Ream feels that I have misrepresented myself to him and he‘s lost all trust in my representation and he refuses to discuss matters and with me and to review –
Q: Up until today he has done that?
A: One time I think. I can‘t recall it was four, five, six, seven weeks ago we had a bit of a disagreement and he got upset and walked [a]way, but, we continued the conversation. I thought the matter was resolved.
Q: Alright. Have you always given him an honest appraisal of the case?
A: Yes, I believe I have.
Id. at p. 6-8.
{25} The trial court then asked the State for its opinion of the trial counsel‘s representation of Ream. The prosecuting attorney responded as follows:
A: As much as it pains me to admit this and say nice things about [trial counsel], [trial counsel] we‘ve exchanged discovery. [Trial counsel‘s] made several calls with respect to particular items of of of evidence and exhibits. As a matter of fact [trial counsel] called me yesterday to set up a time when he can physically take a look at all the evidence which we‘ve scheduled for tomorrow morning. We‘ve had communications directly on several occasions and I have – I
think he fully understands the case, he knows the facts of the case. Nothing in [trial counsel‘s] conduct has led me to believe that he‘s anything but competent to handle this matter.
Id. at 11.
{26} Trial court then denied Ream‘s motion for new counsel.
Motion in Limine to Exclude Prejudicial Photographs
{27} On August 9, 2012, Ream filed a Motion in Limine to exclude certain photographs as they were irrelevant and prejudicial. The trial court held a hearing on Ream‘s Motion in Limine on August 13, 2012, after jury selection, but before the trial began.
{28} At the hearing, Ream specifically objected to State‘s Exhibit 84 which was a picture of Ron before he was cleaned up. Trial Tr., p. 278. Ream argued that the picture was very bloody and was not needed. Id. at p. 279. Ream also objected to State Exhibits 87, 88, 89, 90, 93, 94, 98, and 99 as cumulative, repetitive, and unnecessary. The trial court denied Ream‘s motion because it found that the photographs could corroborate the coroner‘s testimony and were not overly prejudicial. Further, the court found that the photographs were not cumulative in nature.
{29} Ream also argued that State‘s Exhibit 2 should be excluded as it was irrelevant and would elicit an emotional response from the jury. Exhibit 2 was a pre-death photograph of Ron. The State argued that the photograph was necessary
{30} Further, Ream attempted to exclude State‘s Exhibits 40, 41, and 42, arguing that they were irrelevant and that any probative value would have been greatly outweighed by its prejudicial effect. Exhibit 40 showed Ron after the shooting on his side; Exhibit 41 was a photograph of a bullet hole in Ron‘s chest; and Exhibit 42 was an up-close photograph of Ron‘s torso. The State argued that the three photographs were necessary as it showed the position of the body as police found it, it showed evidence underneath Ron‘s body, and showed evidence on top of Ron‘s body. The trial court again ruled that the photographs were relevant and did not prejudice Ream.
Trial Proceedings
{31} The trial of this matter commenced on August 12, 2012 and ended on August 15, 2012. The State‘s first witness was Rex Whetstone, Ron‘s former neighbor and good friend. On direct examination, Whetstone testified that Ron was recently retired and that before his retirement he had suffered from health problems. Specifically, Ron had been diagnosed with prostate cancer and had to have a surgery to remove his cancer. Despite having this surgery, Ron would still golf with Whetstone one to two times a week.
{¶32} Whetstone testified as to Ream‘s and Ron‘s relationship over the past six years. According to Whetstone, Ream lived with Ron, and Ream would occasionally mow the yard and do landscaping. But, Ream did not contribute to the household expenses and rarely was able to keep a job while living with Ron. Whetstone further testified that Ron owned two cars and let Ream drive one of them. Whetstone was also able to comment on Ream‘s spending habits and revealed that Ream spent much of his money on lottery tickets. Whetstone stated that in his six years of knowing the two brothers, he never saw them get in a physical confrontation.
{¶33} Whetstone then testified in regard to events he witnessed on October 17, 2011. Whetstone stated he was having relationship troubles with his significant other and decided to go to Ron‘s for the night. Around 10:00 p.m., Whetstone arrived at 1240 Fairgreen and noticed that all the lights were off, and the only light coming from the house was from the TV. Whetstone also observed that only Ron‘s car was in the driveway, and that the car Ream usually drove was not there.
{¶34} As Whetstone approached the door he saw Ron lying on the floor with a blanket on top of him. Whetstone testified that he knocked on the door, but Ron did not wake up. Whetstone did not think this was unusual as Ron was hard of hearing. Whetstone then proceeded to call both Ron‘s and Ream‘s cell phones,
{¶35} On cross-examination, Whetstone testified that after Ron‘s prostate surgery, Ron experienced discomfort and some pain. Ron also could not complete many of the chores around the house. Ream helped Ron with these chores for the time he was recovering from his surgery. Whetstone also testified that Ream always did the landscaping and yard work for Ron. Further, Whetstone admitted that Ron liked to drink beer and smoke marijuana on a daily basis.
{¶36} The State then called Megan Mays, an employee of a local gas station, to testify. Megan testified that Ream often came to the gas station to buy lottery tickets. According to Megan, she learned that Ream was accused of killing Ron the day after the shooting occurred. Megan thought this was strange, as Ream had come into the gas station the previous evening. Megan testified she left work about 10:10 p.m. on October 17, 2011 and saw Ream come into the station as she was leaving.
{¶37} Deputy Jerry Cress of the Allen County Sheriff‘s Office was the next witness to testify. Deputy Cress testified that he was on duty on October 18, 2011. Around noon, Deputy Cress was in the parking lot of the Sheriff‘s Office, placing
{¶38} According to Deputy Cress, Ream‘s demeanor was calm but upset. Deputy Cress took Ream down to the booking area where he met with his supervisor and spoke with the Shawnee Township Police Department. Ream gave Deputy Cress his keys and gave him verbal permission to enter 1240 Fairgreen. When Deputy Cress arrived at the crime scene, Shawnee Township police officers were already there2 and told Deputy Cress that they found a deceased body in a bedroom.
{¶39} On cross-examination Deputy Cress admitted that Ream was very cooperative throughout the booking process. Deputy Cress also stated that the officers kept a close eye on Ream because they were unsure of his mental health.
{¶40} Sergeant Gregory Crites of the Allen County Sheriff‘s Office then testified as to his role in the investigation. Sergeant Crites testified that he was on duty on October 18, 2011. Around noon that day, Sergeant Crites met with
{¶41} Sergeant Fred Depalma of the Allen County Sheriff‘s Office was the next witness to testify. Sergeant Depalma was called to respond to 1240 Fairgreen and assisted with the scene‘s processing. Sergeant Depalma took various pictures of the crime scene, which were subsequently offered into evidence. After taking pictures of the crime scene, Sergeant Depalma testified that he examined a recliner chair, which had blood spatters on it but found no bullet holes in the recliner. He then went to the bedroom where Ron‘s body was located. Sergeant Depalma testified that there were smear patterns on the floor from where the deceased body was dragged to the bedroom. He then testified that he found the body, faced down, with a multicolored blanket over him and a kitchen knife on top of the blanket. Further, Sergeant Depalma stated that he found Ron with cloth material tied around his wrist, and a rope tied around the cloth material.
{¶42} Sergeant Depalma then testified that he collected a total of five shell casings from inside 1240 Fairgreen. Once the coroner arrived on scene, Ron‘s body was examined further. Sergeant Depalma noticed a bullet hole in Ron‘s chest and a remote control underneath his body that appeared to have been dragged with the body.
{¶43} Ashley Magrum, Ron‘s next door neighbor, was the next witness to testify. Magrum testified that around 9:20 p.m., on October 17, 2011, she was outside her house smoking a cigarette. At that time she heard loud, multiple “bangs.” Trial Tr., p. 478. Magrum testified that these loud bangs were not in sequence, rather they were in groups. According to Magrum, she heard at least five bangs coming from 1240 Fairgreen. Magrum thought that somebody was working on their house, and at first, did not believe they were gun shots.
{¶44} On cross-examination, Magrum testified that it all happened very quickly, and from hearing the first sound to the last sound was about two minutes. She testified that 60 to 90 seconds elapsed from hearing the first group of shots to the second group of shots. Further, Magrum testified that she does not know for sure whether the noises were gunshots, but assumed that they were.
{¶45} Next to testify was Todd Wharton, a forensic scientist for the Bureau of Criminal Identification and Investigation (“BCI“). Wharton testified that the gun, which Ream handed over to police, was a .45 caliber Smith and Wesson
{¶46} Wharton also testified that he tested casing and bullet fragments that police officers recovered from a fire ring at 1240 Fairgreen. These bullets and casings were damaged after being placed in a fire. Wharton testified that he compared the tested bullets and casings to the damaged bullets and casings discovered in the fire ring and found that there were some matching individual barrel engraved striations, but not enough for a positive identification. Wharton elaborated on how the bullets and casings were damaged. Wharton stated that some of the bullets were missing its core so only the jacket was intact. Further, the jacket was a darker color which is consistent with the bullet being placed in a fire.
{¶47} The next witness to testify was Daniel Davison, another forensic scientist for BCI, who works in the Trace Evidence Section. Davison explained that trace evidence includes, among other things, fiber analysis. When dealing
{¶48} Detective Baker was the next witness to testify. Detective Baker testified that Ream never stated he sustained injuries on October 17, 2011. Further Detective Baker testified that he read Ream his Miranda rights, and Ream chose to waive those rights. Detective Baker played Ream‘s two police interviews for the jury. The two police interviews produced the following relevant evidence.
{¶49} Throughout the two interviews, Ream criticized Ron, calling him lazy, an ex-con, Dr. Jekyll and Mr. Hyde, and gross. Ream also described Ron as having a violent temper and always picking fights with Ream.
{¶50} Ream described what happened on October 17, 2011. According to Ream, he had an argument with Ron and Ron decided to kick Ream out of 1240 Fairgreen. As Ream was leaving with a pile of his clothes and his gun case, Ron
{¶51} Ream mentioned that he went to McDonalds around 5 or 6 a.m. on October 18, 2011. Ream contacted his son and daughter that morning, giving them some of his possessions. When asked why Ream did not call 911 immediately after the shooting, Ream replied that he was in shock and assumed the neighbors had already called 911. Ream also told Detective Baker that he has suffered from mental problems and had been admitted to a psychiatric hospital twice before the shooting. Ream never mentioned going to BP the night of October 17, 2011.
{¶52} The next witness to testify for the State was Angie Jenkins, Ron‘s daughter. Jenkins testified that Ron and Ream had a troubled relationship. Ron financially supported Ream and his gambling habits. Jenkins also testified that the
{¶53} Dr. Diane Scala-Barnett, a deputy coroner3 at the Lucas County Corners’ Office, then testified to the wounds Ron received on October 17, 2011. She described seven gunshot wounds in the order in which she examined them, but did not suggest that the wounds occurred in the order she described. She indicated that the first gunshot wound was to the left side of the neck. Dr. Scala-Barnett further testified that there was a downward trajectory for this wound, which would be consistent with the shooter standing and the victim sitting in a chair. The second gunshot wound was to Ron‘s left chest. The third gunshot wound was to Ron‘s left flank, while the fourth gunshot wound was to Ron‘s upper right arm. Dr. Scala-Barnett testified that the fourth gunshot wound was consistent with the victim on the ground and the shooter standing over the body. The fifth gunshot wound was also to the left flank. The sixth gunshot wound entered Ron‘s back. Dr. Scala-Barnett explained that this gunshot wound was made while the shooter was higher than the victim. Finally, the seventh gunshot wound grazed Ron‘s neck.
{¶55} On cross examination, Dr. Scala-Barnett testified she did a toxicology report on Ron and it revealed that he had therapeutic levels of cold medicine in his system.
{¶56} After Dr. Scala-Barnett‘s testimony, the trial court received all of the State‘s exhibits into evidence. The State then rested. Ream moved for an acquittal pursuant to
{¶57} Ream offered the knife found on Ron‘s body into evidence as Exhibit A. Thereafter, the defense rested and Ream renewed his
{¶58} Next, Ream objected to the State‘s proposed jury instructions. Specifically, Ream objected to the absence of the words “even if mistaken” from the Ohio Jury Instructions,
{¶59} Both the State and Ream offered their closing statements and the trial court charged the jury before deliberations.
{¶60} On August 15, 2012, the jury returned a guilty verdict on the murder charge and the firearm specification. This matter then proceeded to sentencing on that same day. After hearing evidence and argument relating to the issue of punishment, the trial court imposed the sentence as follows: (1) 15 years to life in prison for the one murder count; and (2) three years in prison for the firearm specification to be run consecutively. As such, the trial court imposed a total prison term of 18 years to life.
{¶61} Ream timely appealed this judgment, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS STATEMENTS MADE DURING POLICE INTERVIEWS, AS THE DEFENDANT INVOKED HIS FIFTH AMENDMENT RIGHT TO COUNSEL.
Assignment of Error No. II
THE TRIAL COURT ERRED IN DISALLOWING THE TESTIMONY OF THE DEFENSE‘S EXPERT WITNESS.
Assignment of Error No. III
THE TRIAL COURT ERRED IN NOT GIVING JURY INSTRUCTIONS REQUESTED BY THE DEFENDANT.
Assignment of Error No. IV
THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT‘S MOTION FOR NEW COUNSEL.
Assignment of Error No. V
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
Assignment of Error No. VI
THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF GRUESOME PHOTOGRAPHS.
{¶62} Due to the nature of the assignments of error, we elect to address them out of order.
Assignment of Error No. I
{¶63} In his first assignment of error, Ream argues that the trial court erred by failing to suppress his statements made during the police interviews. Specifically, he asserts that the statements were inadmissible because he invoked
Standard of Review
{¶64} “Appellate review of a decision on a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge of the credibility of the witnesses and the weight to be given to the evidence presented. State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000). Therefore, when an appellate court reviews a trial court‘s ruling on a motion to suppress, it must accept the trial court‘s findings of fact so long as they are supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100. The appellate court must then review the application of the law to the facts de novo. Burnside at ¶ 8.
Miranda‘s Protections
{¶65} The
{¶66} A merely “ambiguous or equivocal” invocation of the right to counsel does not dictate that police officers halt their questioning. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350 (1994). As a result, Ohio courts have found that the following statements are insufficient to invoke the right to counsel:
- “[W]hen I talk to my lawyer,” State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, ¶ 95;
- “[D]on‘t [sic] I supposed to have a lawyer present[?]” State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, ¶ 19;
- “I think I need a lawyer,” State v. Henness, 79 Ohio St.3d 53, 62 (1997);
- “I would prefer a lawyer but I want to talk to you now,” State v. Carr, 1st Dist. Hamilton No. C-090109, 2010-Ohio-2764, ¶ 18; and
- “Well, I‘m going to need [an attorney],” State v. Tefft, 3d Dist. Allen No. 1-99-35 (Sept. 2, 1999).
See also State v. Ward, 3d Dist. Marion No. 9-99-39 (Dec. 2, 1999) (collecting cases). Rather, for a proper invocation of rights, “the suspect must unambiguously request counsel.” Davis at 259. This means that a suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. As suggested by the plain terms of the test, this inquiry is objective and does not rely on the subjective beliefs of the defendant or the interrogating officers. State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, ¶ 57 (2d Dist.).
{¶67} Here, Ream argues that he invoked his right to counsel in both of the police interviews conducted on October 18, 2012 and October 20, 2012. In regard to the October 18, 2012 police interview, Ream stated that “I can give you some basics but I do need a public defender to tell me what I should be saying, what I shouldn‘t.” (State‘s Exhibit 82). Detective Mark Baker then asked Ream to read the waiver of rights form and sign it. Later in the interview Ream stated, “get a public defender in here with me so he can tell me what I am allowed to tell you * *
{¶68} In regard to the October 20, 2011 interview, Ream argues that he also invoked his right to counsel. The following conversation took place once the interview began.
Ream: They‘re gonna have to provide me with some counsel. I‘ll be happy to talk to you and fill in the gaps, but right now I‘m still trying to remember what the gaps are.
Baker: You are in custody and I do have to read you your rights and we will talk about them. The reason I brought you up today because the prosecutor called me * * * they have, obviously, completed the process of the crime scene * * * there are some questions about certain things that happened based on what you told me yesterday.
Ream: You know what, I‘m still drawing blanks.
Baker: Let me ask you this question. I don‘t want to get into it, without being legal. It is for your protection. If I go over the waiver of rights form with you and go through that process like we did on day one, when we first sat down, can we talk about some of the things that happened?
Ream: I‘ll tell you this. Let‘s rehash the last two weeks.
Baker: Ok we can do that. Let‘s do this [pointing to waiver] then we‘ll do that. * * * I don‘t want you to go through anything without acknowledging that [referring to the waiver].
[Detective Baker reads the waiver out loud for Ream].
Ream: Before I sign this, I am more than willing to cooperate, I need to have whoever they assigned [to] me present for any pertinent questions.
Baker: That‘s fair. We can do this, if you want to talk about certain things, that‘s fine with me.
Ream: I‘m gonna help you piece together what led up to all this. That I can do and I know I am in the clear.
Baker: Let me cover my butt here. If you don‘t want to talk to me without a lawyer we don‘t have to talk at all.
Ream: Well I can say things up to the incident but I‘m still trying to figure out how the incident got started to be honest with you.
Baker: If we come across something that you want to talk to me and we come across something that you don‘t want to talk about, we don‘t have to.
* * *
Ream: We‘ll go ahead and I will sign these papers for you. And we‘ll start from a couple of weeks ago, and I will tell you what led up to that point, but I am not going to answer anything that I don‘t know what to tell you.
(Id.). About 50 minutes into the October 20, 2012 interview, Detective Baker once again becomes confused as to whether Ream is asking for his attorney and they have the following exchange.
Baker: Let me ask you something here. This isn‘t even about your case, it ain‘t about what you did. A couple of times now you‘ve brought up the fact, let me talk to the, whoever my public defender will be, do you think your public defender, is it because you don‘t want to talk to me about it without counsel? If that‘s the case, all you have to do it tell me that. Or do you think that, in your mind, that talking to the public defender is gonna help you remember some things. I am confused now.
Ream: No. So he can tell me what I am allowed to say.
Baker: Are you afraid to tell me some things? Is that it?
Ream: You know what, I can‘t remember a lot of what actually took place right there, because my mind was going about 15 different directions before that happened, trying to remember what I couldn‘t take what I needed to do before. And out of the blue, he got really, I mean he just he was almost like the devil came over him or something you know, that‘s what I remember * * *.
Baker: You talk a lot and I listen * * * I don‘t want to sit here and I‘m not gonna play a tricking game with you. When I read you your Miranda rights, it‘s for a reason, and I have to abide by it. If you don‘t, I have some questions that pertain directly to –
Ream: I don‘t trust me.
* * *
Baker: I guess in my world, most of the time anyway, things are black and white. A guy either wants to talk to me or he doesn‘t.
Ream: I want to, I just can‘t.
Baker: Or you feel like legally you don‘t want to talk to me because you want to talk to your attorney.
Ream: Well that‘s part of it, that‘s part of it. But the part of it, is I‘m blanked out * * *
Baker: I just kinda wanna distinguish which one of the two it is. Because, if it‘s Rick legally James R. Ream wants to not talk to me because he wants his attorney, I want to leave the room.
Ream: No, that‘s not it. Look I know you are a good guy ok I know what your position is here. I wanna fill in the gaps, I wanna clarify that right here and now. But I can‘t remember exactly what took place other than him lunging * * *
Baker: I would never be upset with you, I would never be mad, I would never call you a a a liar or a deceiver for the simple fact you
can‘t remember what happened because so much happened. Like I said, I am just trying to distinguish between whether or not you wanna talk to me about it, about what you can remember, and the gaps you can fill in or if you just don‘t want to. That‘s what I am trying to get at.
Ream: The only reason I said that about the legal counsel, is because I think having a mediator here, okay, will help out a little bit. That‘s what I am saying.
Baker: I am not pressuring you or anything.
Ream: No you‘re not. No no no no please don‘t put that on yourself.
Baker: I am not trying to make you talk about anything you don‘t want to talk about.
(Emphasis added.) (Id.).
{¶69} Ream never clearly and unequivocally invoked his
{¶70} Even if Ream‘s statements are construed as invoking his right to counsel, we would still find no Miranda violation in this matter. After discussing the possibility of obtaining a public defender, Ream immediately renewed communication with Detective Baker and freely discussed the shooting. These voluntary statements removed any potential constitutional infirmity from the interrogation since Ream himself instigated the discussion. See State v. Williams, 6 Ohio St.3d 281, 290 (1983) (“Once an accused * * * invokes his right to counsel, all further custodial interrogation must cease and may not be resumed in the absence of counsel unless the accused thereafter effects a valid * * * waiver of his right to counsel or himself renews communication with the police.“).
{¶71} Accordingly, we overrule Ream‘s first assignment of error.
Assignment of Error No. II
{¶72} In his second assignment of error, Ream contends that the trial court erred by excluding testimony from his expert witness, Dr. Matthew Ziccardi. We disagree.
{¶73} The admissibility of expert testimony is a matter committed to the sound discretion of the trial court, and the trial court‘s ruling will not be overturned absent an abuse of that discretion. Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 9. A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by the
evidence, or grossly unsound. State v. Boles, 2d Dist. Montgomery No. 23037, 2010-Ohio-278, ¶ 16-18. When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. State v. Slappey, 3d Dist. Marion No. 9-12-58, 2013-Ohio-1939, ¶ 12.{¶74} When assessing the admissibility of expert testimony, the threshold question to determine is whether the testimony was relevant under
{¶75} If the testimony satisfies the threshold determination of relevancy, our inquiry transitions to the dictates of
{¶76} A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony
reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply: (1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
When performing this analysis, we are mindful that “courts should favor the admissibility of expert testimony whenever it is relevant and the criteria of
Relevance of Dr. Ziccardi‘s Expert Opinion
{¶77} Dr. Ziccardi‘s proposed testimony exclusively focused on Ream‘s behavior after the shooting. It was his expert opinion that Ream was in a state of shock and suffered from dissociative amnesia after shooting his brother. According to Ream, this opinion would have explained why he acted in an illogical manner by waiting 15 hours to inform the police and going to a BP gas station and McDonalds after the shooting. He also claims it would have assisted the defense in explaining why Ream could not remember exact details after the
{¶78} The trial court found that Dr. Ziccardi‘s testimony was not relevant because he could not testify as to whether Ream intentionally killed Ron or acted in self-defense. In doing so, it explained that Ream‘s behavior after the shooting was irrelevant to this matter. We find that the trial court erred in this regard.
{¶79} Dr. Ziccardi‘s expert opinion was relevant because it rebutted the State‘s arguments that Ream‘s post-shooting behavior suggested that he had not acted in self-defense when he shot Ron. The State mentioned Ream‘s post-shooting behavior five separate times in its opening statement and ten times during its closing argument. Specifically, the State argued in its closing statement that “I do want to highlight a couple of things that go right to the essence of [Ream‘s] defense[.] * * * Common sense would tell us that [Ream] would have called 911 when he shot his brother * * *.” Trial Tr., p. 689-90. Further, the State argued, “[n]ot calling 911. Watching your brother die and do[ing] nothing. Destroying evidence. And waiting fifteen (15) hours to report, folks. It just isn‘t self-defense.” Id. at 728. Moreover, the State called Mays during its case-in-chief for the sole purpose of eliciting testimony regarding Ream‘s post-shooting trip to a BP Station.
{¶80} Since the State extensively focused on Ream‘s post-shooting behavior in fashioning its arguments, Ream should have had the opportunity to
Reliability of Dr. Ziccardi‘s Expert Opinion
{¶81} Our determination that Dr. Ziccardi‘s proposed testimony was relevant does not end our inquiry, as we must now turn to the testimony‘s admissibility under
{¶82} Although these factors may aid in determining reliability, none of the factors are dispositive as the inquiry is flexible. Id., citing Daubert at 594.
{¶83} At the Daubert Hearing, Dr. Ziccardi explained that the procedure he used to evaluate and diagnose Ream was “generally the accepted methodology and technique in the psychiatric field.” Daubert Hearing Tr., p. 8. Dr. Ziccardi also stated that his report, dated July 5, was “based on valid scientific methodology and procedures accepted by the psychiatric community and profession.” Id. at 13. However, on cross-examination, Dr. Ziccardi admitted that there are no peer reviewed articles which would allow a psychologist to determine what caused the trauma when diagnosing someone with acute stress disorder. At the Daubert Hearing, there was no testimony elicited that talked about whether the technique Dr. Ziccardi used has been tested or whether there is a known or potential rate of error.
{¶84} In finding that Dr. Ziccardi‘s proposed testimony was unreliable, the trial court overly focused on the fact that Dr. Ziccardi‘s opinion derived from Ream‘s own self-reporting. It is reasonable to expect medical professionals to rely on self-reported patient histories. See Walker v. Soo Line R.R. Co., 208 F.3d 581, 586 (7th Cir. 2000); see also Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1019-21 (7th Cir. 2000). “Such histories provide information upon which physicians may, and at times must, rely in their diagnostic work. Of course, it is certainly possible that self-reported histories may be inaccurate.” Walker at 586. However, when a medical expert has relied upon a patient‘s own self-reporting, which is found to be inaccurate, a court should allow these inaccuracies to be examined through cross-examination. Id. Indeed, in Daubert, the Supreme Court “explained that the factual underpinnings of expert testimony may be subject to counter-attack.” Id.; see Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.“).
{¶85} Nevertheless, Ream had the burden to prove that Dr. Ziccardi‘s opinion was reliable. In attempting to carry this burden, Ream only elicited testimony from Dr. Ziccardi that his methodology is widely accepted in the psychiatric community. Ream failed to address any of the other factors listed in
{¶86} Since there was a lack of testimony on the reliability of Dr. Ziccardi‘s methodology, the trial court only had two factors to weigh: (1) the absence of peer reviewed articles; and (2) Dr. Ziccardi‘s methodology has gained general acceptance in the psychiatric community. One factor weighs in favor of the State, while the other factor weighs in favor of Ream. We are unable to say that the trial court abused its discretion in weighing these factors and determining that Ream did not meet his burden. As a result, we cannot find that the trial court erred in finding that Dr. Ziccardi‘s opinion was unreliable.
{¶87} Further, even if Dr. Ziccardi‘s methodology was found to be reliable, Ream, on appeal, failed to state how he was prejudiced by the trial court‘s decision to exclude Dr. Ziccardi‘s testimony. Ream merely mentions how Dr. Ziccardi‘s testimony would have been used to “counteract the [S]tate‘s assertion that [Ream‘s] actions were somehow nefarious.” Appellant‘s Br., p. 10. As such, he has offered no argument, and we are unable to find evidence in the record, suggesting that the exclusion of Dr. Ziccardi‘s testimony somehow reduced the
{¶88} In sum, we find that the trial court improperly determined that Dr. Ziccardi‘s testimony was irrelevant. However, we still find no reversible error since we find no abuse of discretion by the trial court in excluding it as unreliable under
{¶89} Accordingly, we overrule Ream‘s second assignment of error.
Assignment of Error No. IV
{¶90} In his fourth assignment of error, Ream argues that the trial court erred by denying his motion for new counsel. Specifically, Ream contends that the trial court should have granted his request for new trial counsel merely because he had lost confidence in his counsel. Further, he asserts that his trial counsel talked to him about plea bargaining, which Ream was not interested in and also told Ream not to write him letters discussing the case. We disagree.
Standard of Review
{¶91} Substitution of counsel is within the discretion of the trial court. Wheat v. U.S., 486 U.S. 153 (1988); State v. Jones, 91 Ohio St.3d 335, 343-44 (2001). Therefore, we review the trial court‘s decision under the abuse of discretion standard. State v. Murphy, 91 Ohio St.3d 516, 523 (2001).
{¶92} The
{¶93} Ream had many opportunities to discuss his problems with his trial counsel to the trial court long before his trial, but failed to at every opportunity. For instance, at a pre-trial hearing held on April 6, 2012, the trial court had the following exchange with Ream.
Q: Very well and you have had suff- have you had an opportunities [sic] to talk with your attorney?
A: As much as he can afford his time, ya. I I would of course like to see him more than what I have been but you know that‘s – he‘s probably has other clients. I just met one (1) out in the hallway so.
{¶94} Again, at another pre-trial hearing, held on May 18, 2012, the trial court and Ream had the following exchange.
Q: Alright that be [sic] continuing so make sure that they understand that downstairs, okay. And [trial counsel] has been a- in to in to see you at different times?
A: Yes sir he has.
Q: Very well, anything else to be brought to the court‘s attention?
A: No sir.
Final Pre-Trial Tr., p. 5-6.
{¶95} It was not until August 7, 2012, six days before the trial date, that Ream informed the trial court that he was having problems with his trial counsel. Ream claimed that his trial counsel was not visiting him enough, discussed issues of plea bargaining, and also told Ream not to write him letters concerning the case. Trial counsel responded by stating:
A: I have received the letters from [Ream] and have read them. I have told him to be very careful what he puts in those letters because of the correctional officers or law enforcement officers. I – it‘s my belief that they do review the correspondence that go[es] out and I just told him to be very careful and I did not recall anything that really need to be [in] detail gone over with him. I have sat down and gone over with him – this matter has been going on for sometime [sic] I cannot sit there everyday [sic] or every other day, every week sittin there ho- providing him with all the discovery that has been pr- provided to me by the [S]tate. I made copies of the audio and video recordings, I made copies of the approp- of the applicable law in
areas that are of interest and of particular relevant [sic] in these cases. I had some more to give him today.
Pre-Trial/Motion Hearing Tr., p. 6-7.
{¶96} The record indicates that the Appellant and trial counsel had no conflict of interest which would warrant the appointment of a new attorney. Further, the fact that Ream had lost confidence in his trial counsel and wanted to meet with him more, does not amount to a complete breakdown of the attorney client relationship or an irreconcilable conflict. In State v. Kirk, 3d Dist. Union No. 14-06-28, 2007-Ohio-1228, the defendant and his trial counsel had a breakdown of communication, where the defendant refused to assist in preparing for a defense in his upcoming trial. Kirk at ¶ 21. However, the trial court refused to appoint the defendant a new trial counsel and the defendant appealed to this court. Id. at ¶ 16, 32. In affirming the trial court‘s decision not to grant the defendant new counsel, this court stated there was “a breakdown in communication between [the defendant] and his counsel * * *. However, we cannot find the trial court‘s refusal to appoint new counsel was unreasonable, arbitrary, or unconscionable * * *.” Id. at ¶ 59.
{¶97} Here, trial counsel testified he met with Ream over the eight months he spent preparing for Ream‘s trial. Trial counsel also testified that he provided Ream with the State‘s discovery and also applicable case law that pertained to Ream‘s case. Further, Ream‘s trial counsel testified that he did not want Ream to
{¶98} Accordingly, Ream‘s fourth assignment of error is overruled.
Assignment of Error No. VI
{¶99} In his sixth assignment of error, Ream argues that the trial court erred in permitting the introduction of gruesome and prejudicial photographs at trial. We disagree.
{¶100} We preliminarily note that Ream has failed to indicate what specific photographs constitute “gruesome and prejudicial photographs” in his appellate brief. Not knowing what exhibits Ream is objecting to, we are forced to look at all 92 of the photographs the State offered as exhibits, paying closer attention to the photographs that were objected to at the trial level. We find that none of the photographs prejudiced Ream.
Standard of Review
{¶101} “Under
Challenged Photographs
{¶102} On appeal, Ream argues that any admission of a bloody picture of Ron, and any picture taken before the cleaning of Ron‘s body at the autopsy should have been excluded because they were not relevant. Further, Ream also argues that the picture of Ron before his death, also known as State‘s Exhibit 2, was erroneously admitted into evidence because it was not relevant and was only offered into evidence to arouse the passions of the jury. Although we find the admission of 92 photographs excessive, we disagree with Ream‘s contentions.
{¶103} As to Exhibit 2, the picture of Ron before he was deceased, the trial court ruled that this photograph was admissible to show Ron as a living person before the shooting. It is well settled that pre-death photographs of victims are admissible. See State v. Davie, 80 Ohio St.3d 311 (1997) (finding that pre-death photos of the two murder victims were relevant and probative for identification
{¶104} The photographs concerning the crime scene and the bloody pictures of Ron are somewhat gruesome; however, they accurately depict the crime scene and the state of Ron‘s body after he was shot seven times. The State needed to prove, beyond a reasonable doubt, that Ream purposefully meant to kill Ron. The photographs depicting Ron‘s wounds are relevant since the number of gunshots and the entry of the gunshots are probative as to Ream‘s state of mind in shooting Ron. See State v. Strodes, 48 Ohio St.2d 113, 116 (1976) (“The State must prove, and the jury must find, that the killing was purposely done. The number of shots fired, the places where the bullets entered the body, and the resulting wounds are all probative evidence of a purpose to cause death.“), vacated in part on other grounds, 438 U.S. 911, 98 S.Ct. 3135 (1978). Further, the bloody pictures of Ron at the crime scene are also relevant because it showed how his body had been dragged from the living room where he was shot, to the bedroom where police officers found the body, which suggests that Ream attempted to
{¶105} Accordingly, we overrule Ream‘s sixth assignment of error.
Assignment of Error No. III
{¶106} In his third assignment of error, Ream asserts that the trial court erred by denying his request for jury instructions. Specifically, Ream argues that the trial court erred by refusing to give jury instructions on the lesser included offenses and also by omitting the words “even if mistaken” from the self-defense jury instructions. We disagree.
Standard of Review
{¶107} Jury instructions are within the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is shown. State v. Orians, 179 Ohio App.3d 701, 2008-Ohio-6185, ¶ 10 (3d Dist.). Therefore, “when reviewing a trial court‘s jury instructions, the proper review for an appellate court is whether the trial court‘s refusal to give a requested jury instruction constituted an abuse of discretion under the facts and circumstances of the case.” State v. Dailey, 3d Dist. Hancock No. 5-99-56 (May 9, 2000); see also State v. Wolons, 44 Ohio St.3d 64, 68 (1989).
Jury Instructions – Lesser Included Offenses
{¶108} In regard to the trial court‘s failure to give the jury instructions concerning lesser included offenses, we find that Ream‘s argument lacks merit. Ream contends that the trial court should have included jury instructions for the lesser included offenses of voluntary manslaughter, reckless homicide, and negligent homicide. However, the trial court denied this request and instructed the jury on self-defense. Self-defense is a “‘complete defense to all substantive elements of the crime charged’ (or, consequently, to any lesser included offense).” State v. Shadd, 3d Dist. Marion No. 9-94-5 (Jun. 15, 1994) quoting State v. Nolton, 19 Ohio St.2d 133, 135 (1969). In State v. Briggs, 3d Dist. Allen No. 1-06-27, 2006-Ohio-5144, ¶ 11, we found that a defendant who asserts self-defense “is not entitled under Ohio law to instructions on self-defense and lesser included offenses, but must choose between the two.” (Internal quotations omitted.)
{¶109} Ream argued numerous times that he acted in self-defense. During opening statements, Ream‘s trial counsel stated:
What you‘re going to hear is an altercation between James and Ronald. You‘re going to hear a story that no matter what happened there was going to be one dead Ream. If James would not have done what he did he would be the one that would be deceased and Ronald would be the one sitting over there right now.
You‘re going to hear what took place that evening, an altercation that the younger Ronald Ream went after James, his younger brother, with a knife and threatened him. It was not the first
time he‘d ever threatened him. Not the first time he threatened James or other individuals. It was not the first time he ever assaulted James or – he had a prior history of that.
Trial Tr., p. 297. Since Ream argued at trial that he acted in self-defense when he shot Ron, the trial court did not err in denying Ream‘s request for jury instructions for lesser included offenses.
Jury Instructions – Self-defense
{¶110} As to the trial court‘s failure to include “even if mistaken” as suggested by the Ohio Jury Instructions, we likewise find no error under the facts of this case. In considering this argument, we note that the Ohio Jury Instructions are not mandatory. “Rather, they are recommended instructions * * *. Requiring a trial court to rigidly follow these instructions would remove judicial discretion and control from the trial proceedings and not allow the flexibility necessary to manage the various situations that arise during a jury trial.” State v. Martens, 90 Ohio App.3d 338, 343 (3d Dist. 1993).
{¶111} The trial court found that there was no evidence presented at trial that Ream‘s belief that his life was in danger was mistaken. Upon review of the record, we find that the trial court did not abuse its discretion in excluding the words “even if mistaken” from the self-defense jury instructions. During Ream‘s two interrogations he consistently stated that Ron lunged at him with a knife. Further, Ream offered the knife into evidence as Exhibit A. There was no
{¶112} Accordingly, we overrule Ream‘s third assignment of error.
Assignment of Error No. V
{¶113} In his fifth assignment of error, Ream argues that his counsel was ineffective because he presented no witnesses at trial. Specifically, he claims that his trial counsel was ineffective for not calling any witnesses in his case-in-chief and failing to retain an expert witness who could testify regarding the self-defense issue. We disagree.
Ineffective Assistance of Counsel Standard
{¶114} An ineffective assistance of counsel claim requires proof that trial counsel‘s performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, but for counsel‘s errors, the outcome at trial would have been different. Id. at paragraph three of the syllabus. “Reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. State v. Waddy, 63 Ohio St.3d 424, 433 (1992), superseded by constitutional amendment on other grounds as recognized by State v. Smith, 80 Ohio St.3d 89, 103, 1997-Ohio-355.
Trial Counsel‘s Performance
{¶115} After reviewing the evidence in this case, we believe the decision not to call any witnesses in this matter was a reasonable trial strategy and does not provide grounds for a finding of ineffective assistance of counsel. See State v. Utz, 3d Dist. Crawford No. 3-03-38, 2004-Ohio-2357, ¶ 12 (“The decision whether to call or not call witnesses is generally a matter of trial strategy and, absent a showing of prejudice, does not deprive a defendant of effective assistance of counsel.“); State v. Newsome, 3d Dist. Putnam No. 12-12-03, 2012-Ohio-6119, ¶ 50 (“Debatable trial tactics, without more, will not be grounds for a claim of ineffective assistance of counsel.“); State v. Wells, 11th Dist. Ashtabula No. 2011-A-0073, 2012-Ohio-4459, ¶ 92 (“Strategic and tactical decisions fall squarely within the scope of professionally reasonable judgment.“). Further, Ream‘s trial counsel did secure an expert witness to testify on Ream‘s behalf. However, the State filed a motion to suppress the expert‘s testimony, which the trial court granted. Moreover, Ream has failed to provide a list of any witnesses who his trial counsel should have called at his trial and the potential contents of their
{¶116} Looking at the record as a whole, it is clear that Ream‘s trial counsel advocated competently for his client. The record shows that Ream‘s trial counsel filed a motion to suppress statements Ream made during police interrogations, argued in a Daubert Hearing for his own expert witness, filed a motion in limine in attempt to suppress certain photographs, and adequately cross-examined all of the State‘s witnesses. Therefore, we are unable to find that Ream was provided with ineffective assistance of counsel.
{¶117} Accordingly, we overrule Ream‘s fifth assignment of error.
{¶118} Having found no error prejudicial to Ream in the particulars assigned and argued, we affirm the trial court‘s judgment.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
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