STATE OF OHIO, Plаintiff-Appellee, vs. NATHANIEL ROBINSON, Defendant-Appellant.
APPEAL NO. C-140043 | TRIAL NO. B-1306382B
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 6, 2015
[Cite as State v. Robinson, 2015-Ohio-773.]
SYLVIA S. HENDON, Presiding Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bryan R. Perkins, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Nathaniel Robinson has appealed frоm the trial court’s entry convicting him of aggravated robbery and sentencing him to a term of 11 years’ imprisonment. He contends in seven assignments of error that the trial court erred by permitting the prosecutor to use a peremptory challenge to dismiss a prospective African-American juror; that the trial court erred by admitting into evidence statements attributable to Robinson that had not been disclosed prior to trial; that the trial court erred by failing to grant a mistrial and order separate trials for Robinson and his codefendant; that he was prejudiced by numerous instances of prosecutorial misconduct; that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence; and that the trial court erred by imposing a maximum sentence.
{¶2} Finding his arguments to be without merit, we affirm the trial court’s judgment.
Facts and Procedure
{¶3} On October 20, 2013, Adam Brinkman was accosted by two assailants, Robinson and his codefendant Kenny Powe, as he walked home from a bar in Corryville at approximately 3:00 a.m.
{¶4} Just before his encounter with Robinson and Powe, Brinkman had passed a group of rowdy college students that had gathered on the balcony of a nearby condominium. As he walked past, Brinkman shouted at the group of students to “shut up.” Robinson immediately approached Brinkman аsking, “What did you say?” As Brinkman attempted to explain that his comments had not been directed at
{¶5} Lieutenant Steven Kathmann, with the Cincinnati Fire Department’s Corryville station, called dispatch to report the incident, and stayed with Brinkman until the police arrivеd. Cincinnati Police Specialists Michael Harper and Jeremy Howard responded to the dispatch, which included a description of Robinson and Powe and referenced that a knife had been involved. As Specialists Harper and Howard canvassed nearby streets in their cruiser, they saw two subjects matching the broadcast description. The spotted subjects, Robinson and Powe, were stopped by the officers. Robinson and Powe initially refused to stop and were visibly nervous. A pat-down of the two did not reveal any weapons. Robinson and Powe were transported back to where Brinkman waited with the fire engine. Brinkman identified them as his attackers. They were then transported to the Corryville Fire Station and identified by Lieutenant Kathmann and fireman Aaron Turner, who had also witnessed the incident from the fire engine.
{¶6} After transporting Robinson and Powe to the justice center, Specialists Harper and Howard canvassed for the knife that had been used in the attack on Brinkman. They found it between two vacant houses near where Robinson and Powe
{¶7} Robinson and Powe were indicted for aggravated robbery pursuant to
{¶8} Powe testified that he had witnessed Robinson and Brinkman arguing as he was walking home on October 20, 2013, and he approached to see if he could help. According to Powe, Brinkman became very confrontational and threatened to harm Robinson, so he and Robinson ran off. Powe never saw a knife throughout the confrontation.
Batson Challenge
{¶10} In his first assignment of error, Robinson contends that the trial court erred by permitting the prosecutor to use a peremptory challenge to dismiss a prospective African-American juror in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
{¶11} Batson reaffirmed the principle that the Equal Protection Clause prohibits a prosecutor from exercising a peremptory challenge to excuse a potential juror solely on the basis of the juror’s race. Id. at 89. In Batson, the United States Supreme Court established a three-step procedure to review a claim that a peremptory challenge was motivated by racial discrimination. Id. at 97-98. First, the opponent of the peremptory strike must make a prima facie showing of raciаl discrimination. Next, the proponent of the peremptory strike must provide a race-neutral explanation for the strike. Last, the trial court must evaluate the explanation provided and determine if the opponent of the strike proved purposeful discrimination. Id.; See State v. Sweeting, 1st Dist. Hamilton No. C-120733, 2013-Ohio-5097, ¶ 10, citing State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61. A reviewing court will only reverse a trial court’s finding that no discriminatory intent existed if that finding is clearly erroneous. Sweeting at ¶ 10.
{¶12} Here, Robinson raised a Batson challenge after the state used а peremptory challenge to excuse an African-American juror from the panel over Robinson’s objection. Although Robinson only raised the challenge with respect to
{¶13} The trial court’s finding that the state had not been motivated by a discriminatory intent was not clearly erroneous. Robinson argues that further questioning of the juror showed that she would be a fair and impartial juror. But the explanation provided to justify a peremptory challenge need not rise to the level necessary to justify the exercise of a challenge for cause. State v. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 18. The state’s concern that the juror would not be able to abandon her prior views of police officers when evaluating the state’s case constituted a legitimate race-neutral explanation. The first assignment of error is overruled.
Undisclosed Statements
{¶14} In his second assignment of error, Robinson argues that the trial court erred to his prejudice by admitting into evidence statements attributable to him that had not been disclosed prior to trial. And in his third assignment of error, he contends that the trial court erred by failing to grant a mistrial and order separate
{¶15} Just prior to opening statements, after the jury had been selected, the prosecutor informed all parties that she had just become aware that Robinson and Powe had made statements in the back of the police cruiser following their arrest. The prosecutor indicated that Robinson and Powe had discussed amongst themselves what they were being charged with and how they would beat the chаrge. Counsel for both Robinson and Powe objected to admission of these statements. The trial court determined that the statements were admissible, and it offered Robinson and Powe a continuance until the following day. Both defendants declined the offered continuance. Specialist Harper then explained to all parties the nature of the statements that the defendants had made in the back of the cruiser.
{¶16} During triаl, over the defendants’ renewed objections, the prosecutor questioned both Specialists Harper and Howard on the statements that the defendants had made in the back of the cruiser. Specialist Harper testified that the defendants had first asked him and Specialist Howard what they were going to be charged with. After the officers responded with “aggravated robbery,” the defendants said that they believed they would bеat that charge. The officers overheard the defendants saying to each other that no property had been found on their persons, and that they did not have a weapon. Neither officer could attribute any particular to statement to either Robinson or Powe. They indicated that they had overheard the conversation, but did not know which defendant had made which statement.
{¶18} The trial court has authority to regulate discovery pursuant to
{¶20} We further find that Robinson was not prejudiced by the admission of these statements. The trial court provided Robinson’s counsel an opportunity to hear Specialist Harper explain the statements prior to trial. With respect to the content of the statements, neither officer could attribute any particular statement directly to Robinson. And both Robinson and Powe testified at trial regarding the statements. Robinson testified that he had asked the arresting officer what he was being charged with, but he denied making any of the other statements that the officers had overheard. See State v. Johnson, 134 Ohio App.3d 586, 593, 731 N.E.2d 1149 (1st Dist.1999). Further, Robinson’s and Powe’s testimony eliminated any potentiаl confrontation clause violation. See In re Jones, 1st Dist. Hamilton Nos. C-090497, C-090498 and C-090499, 2010-Ohio-3994, ¶ 22 (explaining that “a defendant is denied his Sixth Amendment right of confrontation when a nontestifying codefendant’s confession that powerfully incriminates the defendant is introduced at their joint trial.“).
{¶22} We now consider Robinson’s third assignment of error, in which hе contends that the trial court erred by failing to grant a mistrial and order separate trials for Powe and him based on the state’s failure to disclose the defendants’ statements prior to trial.
{¶23} Although Powe’s counsel requested a mistrial and separate trials, counsel for Robinson failed to do so. Consequently, Robinson has waived the issue and we review only for plain error. See State v. Crawford, 1st Dist. Hamilton No. C-070816, 2008-Ohio-5764, ¶ 49. Plain error is only established where it is demonstrated that the outcome of the proceedings would have been different but for the trial court’s error. See State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). Robinson has offered no explanation as to why admission of the defendants’ statements would require that the defendants be tried separately, and we have already held that Robinson was not prejudiced by admission of the statements. Consequently, we cannot say that the outcome of the proceedings would hаve been different had the statements not been admitted.
{¶24} The third assignment of error is overruled.
Prosecutorial Misconduct
{¶25} In his fourth assignment of error, Robinson argues that the trial court erred in allowing the state to engage in numerous instances of prosecutorial misconduct. To establish prosecutorial misconduct, Robinson must show that the prosecutor’s remarks were improper and that the comments prejudicially affected his
{¶26} Robinson first argues that the prosecutor improperly commented on his post-arrest silence by questioning him during cross-examination about why he had never informed the police upon his arrest that he had been acting in self-defense. Robinson has mischaracterized the prosecutor’s action. The record reveals that the prosecutor was not commenting on Robinson’s post-arrest silence, but rather was attempting to impeach his testimony that he had acted in self-defense. This was not improper.
{¶27} Robinson next contends that the prosecutor made multiple improper comments during closing argument. We are cognizant that the prosecutor is normally entitled to a certain degree of latitude in closing argument. See State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984). The prosecutor’s statements must not be evaluated in isolation, but in light of the entire closing argument. See State v. Kelly, 1st Dist. Hamilton No. C-010639, 2002-Ohio-6246, ¶ 22.
{¶28} Robinson asserts that the prosecutor improperly referred to Robinson’s knife as a “ginormous Crocodile Dundee type knife.” We do not find this comment to be improper. The jury heard ample testimony about the size of Robinson’s knife, and the jury members were able to view the knife and determine if the prosecutor’s description was accurate.
{¶29} Robinson next takes issue with the prosecutor’s insinuation that he and Powe had committed other robberies around the Corryville areа the evening of their arrest. The prosecutor first stated that “[b]ottom line is these two were out robbing people that night. They found yet another victim.” She followed by stating
Robinson failed to object to either of these comments. As a result, we review for plain error. Id. These comments were clearly improper. Prosecutors “must avoid insinuations and assertions calculated to mislead,” and must not allude to matters outside of the record. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). The record contains absolutely no evidence that Robinson and Powe had committed additional robberies. Specialist Howard testified that there had been another robbery at knife point earlier that same evening, but that the description of the knife used in that crime was in no way similar to the knife used by Robinson. There was no additional testimony about this other robbery, and Specialist Howard never stated or even insinuated that Robinson was a suspect in that crime.
{¶30} Robinson last contends that the prosecutor denigrated defense counsel during closing argument. The prosecutor first discussed the various ways in which defense counsel had challenged the evidence presented, including defense counsel’s extensive questioning of the state’s witnesses regarding the description of the suspects, the description of the knife, and why the knife had not been tested for DNA. The prosecutor then stated that defense counsel had wasted everyone’s time with these questions, and that counsel had raised such issues just to distract the jury.
{¶31} While the prosecutor was entitled to argue flaws in defense counsel’s strategy and to explain how the evidence presented did not support the defense’s
{¶32} While the prosecutor’s comments about Robinson’s commission of other robberies were improper, there was no objection to these comments, and they did not constitute plain error. Overwhelming evidence of Robinson’s guilt was presented at trial, and the outcome of the proсeedings would not have been different but for these comments. See State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996).
{¶33} The fourth assignment of error is overruled.
Sufficiency and Weight
{¶34} In his fifth and sixth assignments of error, Robinson argues that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence.
{¶35} Robinson was convicted of aggravated robbery under
Sentencing
{¶37} In his seventh assignment of error, Robinson contends that the trial court erred by imposing a maximum sentence.
{¶38} Pursuant to
{¶39} Robinson’s assignment of error is overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
CUNNINGHAM and DEWINE, JJ., concur.
The court has recorded its own entry on the date of the release of this opinion.