State v. StoutamireState v. Stoutamire
Lynn Maro, Maro and Schoenike Co., 7081 West Boulevard, #4, Youngstown, OH 44512 (For Defendant-Appellant).
MARY JANE TRAPP, P.J.
{¶1} Dwayne A. Stoutamire appeals from the judgment of the Trumbull County Court of Common Pleas, which denied his petition for postconviction relief and granted the state‘s motion for summary judgment.
{¶2} Mr. Stoutamire argues on appeal that the trial court erred in awarding summary judgment to the state and dismissing his postconviction petition because he introduced evidence of prosecutorial misconduct and alleged operative facts of a
{¶3} Specifically, the trial court found that Mr. Stoutamire failed to set forth specific facts which demonstrate a genuine issue of material fact as to whether the state “withheld” the criminal records of four of the state‘s 28 witnesses prior to trial. The trial court found no
{¶4} Nor did the court find Mr. Stoutamire‘s counsel was ineffective, as even without the criminal histories available for impeachment purposes, trial counsel engaged in aggressive cross-examination of all the witnesses, and actively participated in voir dire, opening statements, and closing arguments. Thus, the court concluded that there was no reasonable probability that cross-examination as to the witnesses’ convictions in this case would have undermined the confidence of the outcome of his trial.
{¶5} We find Mr. Stoutamire‘s arguments are without merit because he did not allege any substantive grounds for relief that would warrant an evidentiary hearing. We agree with the trial court that Mr. Stoutamire failed to allege any prosecutorial
{¶6} Substantive and Procedural Facts
{¶7} This appeal stems from two separate incidents that occurred on January 9, 2007 and February 19, 2007. The first concerned a shooting, and the second, a domestic dispute. The domestic dispute between Mr. Stoutamire and Ms. Jessica Gordon, the only witness to testify to both incidents, produced a lead in the shooting investigation, eventually leading to Mr. Stoutamire‘s arrest and conviction for both incidents.1
{¶8} Both incidents were tried before one jury, who found Mr. Stoutamire guilty of felonious assault with a firearm specification, a second degree felony in violation of
{¶9} On direct appeal, Mr. Stoutamire challenged the joinder of the two incidents in one trial, the jury instruction on complicity after jury deliberations had already begun, the refusal of the trial court to give the jury an instruction on the lesser included offense of abduction, unlawful restraint; as well as raising arguments that the jury verdict was against the manifest weight of the evidence and that he was denied his right to a fair trial due to the cumulative errors that occurred during trial. We found Mr. Stoutamire‘s appeal to be without merit and affirmed the trial court.
{¶10} While his direct appeal was pending, Mr. Stoutamire filed a petition for postconviction relief pursuant to
{¶11} The state responded with a motion for summary judgment, offering evidentiary material rebutting the assertion that the nondisclosure was a result of prosecutorial misconduct. The state also offered evidence that the one criminal history that was known, that of Ms. Gordon, was disclosed to Mr. Stoutamire‘s trial counsel.
{¶12} Mr. Stoutamire then filed a motion for leave to amend his petition to include a fourth claim of ineffective assistance of counsel in response to the submission by the state with its motion for summary judgment that it had indeed revealed Ms. Gordon‘s criminal history to defense counsel during discovery and prior to trial. The court denied Mr. Stoutamire‘s motion to amend, finding his claim to be without merit because the issue was already raised in the second claim of his initial petition.
{¶13} In awarding summary judgment to the state, the trial court found that Mr. Stoutamire failed to allege any substantive grounds for relief that would warrant an evidentiary hearing. The court found that no prosecutorial misconduct occurred, that Mr. Stoutamire‘s counsel was not ineffective in his defense, and finally, that the complicity instruction argument was addressed and dismissed upon direct appeal. The trial court concluded that in light of the overwhelming evidence presented against Mr. Stoutamire, there was no reasonable probability that the use of the criminal histories for impeachment purposes during the cross-examination of the four witnesses at issue would have undermined confidence in the outcome of the trial.
{¶14} Mr. Stoutamire now timely appeals, raising the following three assignments of error for our review:
{¶15} “[1.] The trial court erred in granting summary judgment and denying Appellant an evidentiary hearing on his petition for post-conviction relief, thus depriving Appellant of liberties secured by U.S. CONST. amend. VI and XIV and OHIO CONST. art. I., sec. 1,2,10, and 16, including meaningful access to the courts of this State.
{¶17} “[3.] The Trial Court Erred When it Denied Appellant‘s Motions for Leave to Amend His Post-conviction Petition, Denying Him Due Process of Law and a Fair Trial in Violation of His Rights under the Fifth, Sixth, Ninth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution.”
{¶18} Postconviction Relief Standard of Review
{¶19}
{¶20} “(A)(1)(a) Any person who has been convicted of a criminal offense *** and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, *** may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
{¶21} “***.
{¶22} “(C) *** Before granting a hearing on a petition ***, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the
{¶23} “The Supreme Court of Ohio explained in State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, that ‘[i]n postconviction cases, a trial court has a gatekeeping role as to whether a defendant will even receive a hearing. In State v. Calhoun (1999), 86 Ohio St.3d 279, paragraph two of the syllabus, this court held that a trial court could dismiss a petition for postconviction relief without a hearing “where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief.” This court reversed the judgment of the appellate court in Calhoun, holding that “the trial court did not abuse its discretion in dismissing the credibility of [the] affidavits,” which served as the basis for his petition. (Emphasis sic.) Id. at ¶51, citing Calhoun at 286.
{¶24} “Thus, the court determined ‘that the trial court‘s gatekeeping function in the postconviction relief process is entitled to deference, including the court‘s decision regarding the sufficiency of the facts set forth by the petitioner and the credibility of the affidavits submitted. We established in Calhoun that a court reviewing the trial court‘s decision in regard to its gatekeeping function should apply an abuse-of-discretion standard. The consistent approach is to grant that same level of deference to the trial court in regard to its post-hearing decision.’ Id. at ¶52.
{¶26} Thus, we review the denial of Mr. Stoutamire‘s postconviction petition for an abuse of discretion. “The term ‘abuse of discretion’ connotes more than error of law or of judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable.” Id. at ¶28, citing Gondor at ¶46, citing State v. Adams (1980), 62 Ohio St.2d 151, 157; State v. Keenen (1998), 81 Ohio St.3d 133, 137. See, also, State v. Hillman, 10th Dist. Nos. 06AP-1230 and 07AP-728, 2008-Ohio-2341, ¶61.
{¶27} Right to an Evidentiary Hearing
{¶28} Although his assignments of error at first blush are styled the same, Mr. Stoutamire raises different issues under each. In each assignment of error, however, he argues he was entitled to an evidentiary hearing. Thus, we must note initially, that “[a] criminal defendant attempting to challenge his conviction through a petition for postconviction relief is not entitled to a hearing simply by filing the petition.” Id. at ¶30, quoting State v. Delmonico, 11th Dist. No. 2004-A-0033, 2005-Ohio-2882, ¶13, citing
{¶29} Thus, in order to be granted a hearing on his petition, Mr. Stoutamire was required to introduce adequate evidence of substantive grounds that would warrant relief.
{¶30} Prosecutorial Misconduct - Alleged Brady Violation
{¶31} In his first assignment of error, Mr. Stoutamire contends the trial court erred in denying his petition and awarding the state summary judgment because he, in sum, alleged a prima facie case of prosecutorial misconduct, by way of a Brady violation. Specifically, he alleges that the state failed to disclose the criminal histories of four witnesses, thus the lack of this impeachment material deprived him of an effective cross-examination. We find this argument to be without merit because not only did the state not withhold this evidence, but the evidence was unknown to the state despite a diligent search, and all of the witnesses’ criminal histories were public records, which the defense could have uncovered in preparation for trial. From the evidence before the trial court, the record of one of the four witnesses was indeed a part of the case file, but was “missed” by defense counsel.
{¶32} “In Brady v. Maryland (1963), 373 U.S. 83, the United States Supreme Court held that ‘the suppression by the prosecution of evidence favorable to an accused
{¶33} The failure of the state in this case, however, to disclose the criminal histories of the four witnesses, three of which were unknown to the state after a diligent search, and one of which was indeed disclosed, does not equate to a Brady violation.
{¶34} Specifically, the state conducted a background check on each of the four witnesses, David Palm, Sally Palm, Samantha Bumbico, and Jessica Gordon, which revealed only that Ms. Gordon had a criminal conviction for a misdemeanor theft. This was admittedly disclosed to defense counsel, who stated he inadvertently “missed” this information or, if he saw it, he failed to copy it, although he was given the state‘s file prior to trial.
{¶35} To conduct criminal background checks, the state used the Ohio Attorney General‘s Ohio Law Enforcement Gateway, or “OHLEG.” The prosecutor averred in his affidavit that it is his custom and practice to use this reliable source, and that none of the three witnesses were listed in the system. The state also provided defense counsel with the city of Warren police histories for these witnesses, which included Ms. Gordon‘s theft conviction. The state then personally questioned each witness. While extremely troubling, but not surprising, each witness denied having a criminal record.
{¶37} Mr. Stoutamire fails to allege how this rises to the level of prosecutorial misconduct. This was information unknown to the state prior to and during trial despite a diligent search. More fundamentally, court records are matters of public record, and were discoverable by the defense in preparation of trial. See Davis at ¶56 (municipal court records are matters of public record); State v. Ross, 9th Dist. No. 23028, 2006-Ohio-4352, ¶27, (”Brady does not require that a party disclose information which is part of a public record“); State v. Clark, 12th Dist. No. CA2008-09-113, 2009-Ohio-2101, ¶15 (the state did not suppress evidence of the civil lawsuit, whether purposefully or inadvertently). Furthermore, “[e]vidence de hors the record must be more than evidence which was in existence and available to the defendant at the time of trial and which could and should have been submitted at trial if the defendant wished to make use of it.” Vinson at ¶37, quoting State v. McCaleb, 11th Dist. No. 2004-L-003, 2005-Ohio-4038, citing State v. Coleman, 1st Dist. No. C-900811, 1993 Ohio App. LEXIS 1485, 22.
{¶38} The state did not “suppress” any evidence, nor did it prevent Mr. Stoutamire from learning of the witnesses’ criminal histories independently prior to trial. There is no evidence that the state even knew of the convictions despite independently
{¶39} Most fundamentally to a petition for postconviction relief, Mr. Stoutamire failed to demonstrate that the evidence in question is material in that it would have probably changed the outcome of the trial.
{¶40} The state presented the testimony of 28 witnesses. The three witnesses present at the shooting of Mr. Peterman, whose criminal convictions were not uncovered by either the state or defense counsel, were David Palm, Mr. Palm‘s mother, Sally Palm, and Samantha Bumbico. The jury was presented with evidence that David Palm had gun residue on his hands and that he, along with Mrs. Palm, went to Mr. Peterman‘s in order to purchase crack cocaine. Mr. Palm further testified that he was the one who informed Mr. Peterman his car window was lowered in the parking lot, which prompted Mr. Peterman to leave the apartment. Mr. Peterman was shot in the parking lot as he was closing his car window. Mr. Palm also testified that when he went inside to purchase the crack cocaine, he left $320 on the kitchen table, even though he only purchased $315. When the police entered the apartment they found the money had vanished. Thus, the jury was presented with overwhelming evidence that both David and Sally Palm were drug users, as well as evidence that could potentially have implicated Mr. Palm instead of Mr. Stoutamire in the shooting, the very evidence defense counsel sought to establish on his cross-examination of these witnesses.
{¶41} Ms. Samantha Bumbico was an eyewitness, among many, at the scene following the shooting. Specifically, Ms. Bumbico testified that she saw two people standing in front of Mr. Peterman‘s vehicle, and then observed each run in a different
{¶42} As found by the trial court, the state introduced ample evidence linking Mr. Stoutamire to the shooting. An “associate” of Mr. Stoutamire, Mr. Joseph Brown, testified that the day before the shooting Mr. Stoutamire informed him that he wanted to commit a robbery. In front of Mr. Brown, Mr. Stoutamire and Mr. Brady began discussing possible victims. Mr. Stoutamire remarked that he was “willing to hit anybody,” and that “he was thirsty to do a lick.”
{¶43} The state also offered physical evidence of the shooting that implicated Mr. Stoutamire as well. Ms. Gordon gave the police five bullets in a brown paper bag, together with a plastic bag of clothes that were supposedly Mr. Brady‘s. The bullets were later identified as fitting a .40 caliber weapon, the weapon used to shoot Mr. Peterman. She also identified the pants Mr. Stoutamire was wearing during the shooting, which had red spots on them.
{¶44} Second, as to the domestic dispute between Mr. Stoutamire and Ms. Gordon, aside from her own testimony, the state presented testimony of several eyewitnesses. The police were actually called to the scene by a neighbor, Ms. Annette Wilson, who heard a girl, later identified as Ms. Gordon, screaming. She observed Ms. Gordon run to the police when they arrived, where she then threw herself on one of the vehicles yelling “Help me! Help me!” Ms. Patrice Rice, another neighbor, saw Mr. Stoutamire pull a gun on Ms. Gordon, which prompted her to immediately call 911. She observed Mr. Stoutamire pulling Ms. Gordon out of the car, and then holding the gun to her head. When searching the vehicle, Officer Jeffrey Miller located a silver revolver, a
{¶45} We agree with the trial court that “[i]n light of the overwhelming evidence presented against Petitioner, the Court agrees that there is no reasonable probability that such cross examination [of the witness’ criminal convictions] would undermine confidence in the outcome of this trial.”
{¶46} Not only was no evidence withheld, but even if it were, “[n]o constitutional violation occurs if the evidence that was allegedly withheld is merely cumulative to evidence presented at trial.” State v. Gillispie, 2d Dist. Nos. 22877 and 22912, 2009-Ohio-3640, ¶50.
{¶47} Mr. Stoutamire‘s first assignment of error is without merit.
{¶48} Ineffective Assistance of Counsel
{¶49} In his second assignment of error, Mr. Stoutamire alleges that his counsel was ineffective in failing to discover the witnesses’ criminal histories, especially that of Ms. Gordon. Ms. Gordon was the only witness whose criminal history was uncovered by the state and shared with defense counsel. Both the state and defense counsel agree Ms. Gordon‘s criminal conviction for a misdemeanor theft was shared with defense counsel. Mr. Stoutamire‘s counsel admits he inadvertently overlooked the information. We do not find this error to rise to the level of ineffective assistance of counsel under the circumstances of this case. Thus, we find Mr. Stoutamire‘s second assignment of error is without merit.
{¶51} Mr. Stoutamire failed to demonstrate that the outcome of the trial would have been different if he had knowledge of the criminal convictions of Mr. Palm, Mrs. Palm, Ms. Bumbico, and Ms. Gordon.
{¶52} Moreover, defense counsel stated in his affidavits that although the evidence was “material,” he was not “sure” if he would have used the convictions in his cross-examination in any case. Thus, defense counsel stated in his first affidavit, “[i]n Affiant‘s experience, impeachment by prior conviction can palpably impact upon the jury‘s assessment of credibility of a witness, though the decision as to whether to impeach or not with a prior conviction is a strategic one made by counsel, like all strategic trial decisions after assessment of all the facts and circumstances.” (Emphasis
{¶53} Under the circumstances of this case, we determine that the trial court did not abuse its discretion in finding that defense counsel‘s failure to discover the existence of the criminal convictions at issue did not have a prejudicial effect on the outcome of appellant‘s trial.
{¶54} Mr. Stoutamire‘s second assignment of error is without merit.
{¶55} Motion for Leave to Amend Petition
{¶56} In his third assignment of error, Mr. Stoutamire alleges the trial court erred in denying his motion for leave to amend his petition to add a fourth claim, that of ineffective assistance of counsel. Mr. Stoutamire, however, already raised an ineffective assistance of counsel claim in his original petition. He was merely seeking to add a fourth claim so that he could attach a second affidavit from his trial counsel, where his defense counsel is more direct in his admission that he overlooked Ms. Gordon‘s conviction history given to him by the state. Thus, we find no abuse of discretion in the trial court‘s denial of his motion for leave to amend. Mr. Stoutamire‘s third assignment of error is without merit.
{¶57} “Pursuant to
{¶59} For argument‘s sake, the difference between his defense counsel‘s first and second affidavit is inconsequential, and contained information his defense counsel had at hand in his first affidavit. The slight difference is that in the first affidavit, defense counsel lays the blame more heavily on the state for his own inadvertent oversight of Ms. Gordon‘s criminal record. In the second affidavit, defense counsel directly admits the state provided him with discovery that “exceeded the extremely narrow confines” of
{¶60} We do not find the trial court abused its discretion in denying Mr. Stoutamire leave to amend his petition to add this fourth claim, which is virtually indistinguishable from the second claim of his original petition. Moreover, it would have made no difference in the outcome because it does not change the fact that an evidentiary hearing was not warranted in this case.
{¶62} As Mr. Stoutamire‘s failed to set forth substantive grounds for relief that would warrant an evidentiary hearing, the trial court did not abuse its discretion in dismissing his petition and awarding summary judgment to the state.
{¶63} The judgment of the Trumbull County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with Dissenting Opinion.
{¶64} Finding that appellant has made a prima facie case of a Brady violation, I would reverse and remand on the basis of the first two assignments of error.
{¶65} “The denial of due process may be a sufficient basis for a petition for postconviction relief. See State v. Walden (1984), 19 Ohio App.3d 141, ***, paragraph four of the syllabus. In Brady v. Maryland, 373 U.S. 83, 87, *** (1963), the United States Supreme Court held that ‘the suppression by the prosecution of evidence favorable to the accused upon request violates due process where evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ This rule also applies to impeachment evidence. United States v. Bagley (1985), 473 U.S. 667, ***. Evidence is material under Brady ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ State v. Johnston (1988), 39 Ohio St.3d 48, ***, paragraph five of
{¶66} In this case, the failure by the state to disclose the criminal records of four of its witnesses was clearly inadvertent. However, one of those witnesses was Mr. Palm, who might be considered an alternate suspect. The fact that he has a criminal record might tell with a jury, under skillful examination by defense counsel. Appellant‘s right to confront an important witness was, therefore, violated. Consequently, this evidence was material under Brady/Bagley, since it undermines confidence in the trial‘s outcome. Appellant deserves a hearing.
{¶67} I respectfully dissent.