State of Ohio v. Trevor A. Teets
Case No. 17CA21
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
RELEASED: 12/04/2018
[Cite as State v. Teets, 2018-Ohio-5019.]
Brown, P.J.*
DECISION AND JUDGMENT ENTRY
Kort Gatterdam and Erik P. Henry, CARPENTER LIPPS & LELAND LLP, Columbus, Ohio, for appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain, Pickaway County Assistant Prosecutor, Circleville, Ohio, for appellee.
Brown, P.J.*
{¶ 1} Defendant-appellant, Trevor A. Teets, appeals from a judgment of the Pickaway County Court of Common Pleas denying his petition for post-conviction relief without a hearing. For the reasons that follow, we affirm.
{¶ 2} Following a jury trial, appellant was convicted of one count of murder, in violation of
{¶ 4} The evidence demonstrated the victim, Alicia Salyers, was appellant‘s ex-girlfriend. Salyers had previously lived with appellant at his apartment. On the afternoon of February 1, 2015, Salyers arrived at appellant‘s apartment to “drop[] off rent money because she was still on the lease and giv[e] [appellant] a key back.” (Tr. Vol. I at 130.) Appellant, appellant‘s brother Colin Teets, and appellant‘s friend Ariana Smith, were also present at the apartment when Salyers arrived. Smith testified at trial stating that, when appellant and Salyers began discussing Salyers paying rent and returning her key, Smith went outside to check the oil in her car. About ten minutes after Smith exited the apartment, she saw appellant walk out of the house holding a shotgun. Appellant walked over to Salyers’ car and began striking Salyers’ car window with the butt of the shotgun.
{¶ 5} Salyers came out of the apartment “right after” appellant. (Tr. Vol. I at 135.) Salyers walked past appellant and stood so she was a couple of feet away from appellant, facing both appellant and the apartment. As Smith started to walk toward appellant and Salyers, she “heard the gun go off.” (Tr. Vol. I at 117.) Smith did not see the gun go off and did not see appellant transfer the gun or lift it to shoot. Smith noted appellant “had the gun,” but explained she “didn‘t see his hands.” (Tr. Vol. I at 139.)
{¶ 6} After the gun went off, Smith saw Salyers fall to the ground. Appellant “backed up a little bit and he dropped the gun and he went back into his apartment.” (Tr. Vol. I at 118.) Smith called 911. In response to the 911 operator‘s question of “[w]ho shot
{¶ 7} Following the incident, appellant called the “regular non emergency phone line” for the Pickaway County Communications Center. (Tr. Vol. I at 212.) Appellant informed that dispatcher he had “just killed somebody,” explaining he got into a fight with his ex-girlfriend, she “pushed [him] to the edge and [he] snapped.” (Tr. Vol. I at 213.) Appellant told the dispatcher, “[s]he‘s dead. I shot her in the head.” (Tr. Vol. I at 215.) When the first police officer arrived on the scene, appellant walked up to the officer and “held his hands straight out in front of him, put his wrists together and stated, ‘take me to prison, I killed her.’ ” (Tr. Vol. I at 152.)
{¶ 8} Although the coroner testified during the state‘s case-in-chief, the defense called the coroner to again testify during defendant‘s case-in-chief. The coroner explained that the shotgun pellets “went from the front of [Salyers‘] face out the back, and then left to right” and in an upward direction. The coroner affirmed that such findings were “consistent with a shot from somewhere below.” (Tr. Vol. II at 230.) The coroner further confirmed that Salyers had abrasions, lacerations, and soot deposits on her left hand which were consistent with shotgun pellet damage.
{¶ 9} In closing, defense counsel argued that the “angles, the wound, the closeness of the weapon, the marks on the left hand, the * * * exit from the house, who went out, [and] who followed,” all demonstrated the lack of appellant‘s intent to kill Salyers. (Tr. Vol. II at 248.) Defense counsel noted that “nobody saw the shot,” and argued his belief that Salyers was “reaching for that gun trying to grab the gun away from” appellant when it discharged. (Tr. Vol. II at 246.)
{¶ 11} On December 4, 2017, the trial court issued a decision and entry denying appellant‘s petition for post-conviction relief. The court concluded that the issues surrounding the firearm expert were res judicata, as appellant had argued ineffective assistance of counsel based on his trial counsel‘s failure to call a firearm expert in his direct appeal. The court found the credibility of Colin‘s affidavit questionable, noting that “family members often have a vested interest in a trial outcome.” (Dec. 4, 2017 Decision & Entry at 2.) The court concluded trial counsel‘s exclusion of Colin‘s testimony was a tactical decision.
{¶ 12} Appellant appeals, assigning the following two assignments of error for our review:
- [I.] THE TRIAL COURT ABUSED ITS DISCRETION IN APPLYING RES JUDICATA TO APPELLANT‘S FIRST GROUND FOR RELIEF IN HIS POST-CONVICTION PETITION AS APPELLANT PRESENTED EVIDENCE DEHORS THE RECORD CONTAINING SUFFICIENT OPERATIVE FACTS TO DEMONSTRATE THAT TRIAL
COUNSEL WAS INEFFECTIVE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUION, AND R.C. 2953.21 . - [II.] THE TRIAL COURT ABUSED ITS DISCRETION IN MAKING A MERITS DETERMINATION WITHOUT HOLDING A HEARING BECAUSE APPELLANT‘S SECOND GROUND FOR RELIEF IN HIS POST-CONVICTION PETITION PROVIDED SUFFICIENT OPERATIVE FACTS TO DEMONSTRATE THAT TRIAL COUNSEL WAS INEFFECTIVE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUION; AND
R.C. 2953.21 .
{¶ 13} For ease of discussion, we address appellant‘s second assignment of error first. Appellant‘s second assignment of error asserts the trial court erred in making a merits determination regarding the credibility of Colin‘s affidavit without holding a hearing on appellant‘s petition.
{¶ 14} The post-conviction relief process is a collateral civil attack on a criminal judgment rather than an appeal of the judgment. State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). The post-conviction relief proceeding is designed to determine whether “there
{¶ 15} “[A] trial court‘s decision granting or denying a postconviction relief petition filed pursuant to
{¶ 16} A criminal defendant seeking to challenge a conviction through a petition for post-conviction relief is not automatically entitled to an evidentiary hearing. Calhoun at 282, citing State v. Cole, 2 Ohio St.3d 112 (1982). Before granting an evidentiary hearing, the trial court must determine whether substantive grounds for relief exist.
{¶ 18} The Sixth Amendment to the United States Constitution and Article I, Section 10, of the Ohio Constitution provide that defendants in all criminal proceedings shall have the assistance of counsel for their defense. The Supreme Court of the United States has interpreted this provision to mean a criminal defendant is entitled to the “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish a claim of constitutionally ineffective assistance of counsel, appellant must satisfy a two-prong test. Id. Appellant must show that: (1) defense counsel‘s performance was so deficient that she was not functioning as the counsel guaranteed under the Sixth Amendment to the United States Constitution, and (2) that defense counsel‘s errors prejudiced appellant so as to deprive him of a fair trial. Id. To show prejudice, a defendant must establish a reasonable probability that, but for counsel‘s errors, the result of the trial would have been different. id. at 694. A reasonable probability
{¶ 19} When considering whether trial counsel‘s representation was deficient, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id., quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). See also State v. Bradley, 42 Ohio St.3d 136, 144 (1989) (holding that counsel‘s “tactical decisions” do not “rise to the level of ineffective assistance“); State v. Keck, 4th Dist. No. 09CA50, 2011-Ohio-1643, ¶ 67 (noting that “appellate courts will not review, for purposes of ineffective assistance claims, trial ‘strategy,’ even if that trial strategy proves to be ultimately unsuccessful“).
{¶ 20} Generally, the decision whether to call a witness “falls within the rubric of trial strategy and will not be second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490 (2001). See also State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, ¶ 127 (noting that decision about “which witnesses to call * * * are committed to counsel‘s professional judgment“); State v. Betts, 4th Dist. No. 03CA25, 2005-Ohio-2913, ¶ 18.
{¶ 21} Colin was 17 years old when he made the affidavit at issue. In his affidavit, Colin stated that he spoke with appellant‘s attorney prior to trial, and provided her with the following information regarding the events from February 1, 2015:
After Alicia arrived at the apartment, I observed Trevor attempt to obtain the apartment keys from Alicia. When Alicia
refused to give up the keys, Trevor grabbed them from her. Alicia became upset and physically attempted to get the keys back. I attempted to restrain Alicia and she pushed me onto the living room sofa. While Alicia was attempting to regain control of the keys, I heard her tell Trevor that she was going to kill him. After being pushed to the sofa by Alicia, I left the apartment for a brief time in order to calm down. When I reentered the apartment, I observed Alicia and Trevor struggling over Trevor‘s shotgun. Alicia appeared to have control of the shotgun because she had one hand near the trigger and the other hand on the area of the barrel. Trevor meanwhile had one hand on the stock of the shotgun and the other hand on the barrel.
The shotgun at issue was kept by Trevor for self-protection in the corner of his bedroom. I do not know who went upstairs to the bedroom to obtain the shotgun. However, by the way Alicia was holding the shotgun, I believe Alicia must have been the one who went to the bedroom to obtain the shotgun.
I then observed Trevor take the shotgun away from Alicia and exit through the front door. Trevor went to the parking lot and used the shotgun to beat on Alicia‘s vehicle. When Alicia saw what Trevor was doing to her vehicle, I observed her exit the apartment. I then observed her place herself between Trevor and her vehicle. At this point, Trevor stopped striking the vehicle, and Trevor and Alicia were face to face. I was about four to five feet away from them. Trevor was holding the shotgun across his chest so the barrel was pointed upward and the butt was down at an approximate 45 degree angle. The shotgun was not pointed at Alicia.
I observed Trevor turn to go back to the apartment and as he turned, Alicia grabbed the barrel of the shotgun. A brief struggle ensued. As Alicia pushed the shotgun, it accidentally discharged and struck Alicia in the facial area. Trevor immediately went to the apartment and called 9-1-1. Trevor then sat on the steps to await medics and police.
(Colin Aff. at ¶ 6-10.)
{¶ 22} Appellant asserts there was no strategic reason for his trial counsel not to call Colin to testify, as Colin‘s testimony “would have confirmed and explained that Salyers reached for the gun, causing an accidental discharge.” (Appellant‘s Brief at 22.)
{¶ 23} While a trial court should “give due deference to affidavits sworn to under oath and filed in support of the petition,” the court in its discretion may judge the affiant‘s “credibility in determining whether to accept the affidavits as true statements of fact.” Calhoun at 284. Thus, “[t]he trial court may, under appropriate circumstances in postconviction relief proceedings, deem affidavit testimony to lack credibility without first observing or examining the affiant.” Id. In assessing the credibility of affidavit testimony the court should consider the following factors:
- (1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner‘s efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial.
{¶ 24} A trial court may also find affidavit testimony “to be contradicted by evidence in the record by the same witness, or to be internally inconsistent, thereby
{¶ 25} Appellant argues the trial court erred in concluding Colin‘s affidavit lacked credibility solely because Colin is appellant‘s brother. However, “one or more” of the factors listed in Calhoun “may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility.” Id. at 285. See also State v. Wright, 6th Dist. No. E-03-054, 2004-Ohio-5228, ¶ 57 (noting that “[a] trial court, when deciding to hold a hearing on a petition for post-conviction relief, may discount self-serving affidavits from the petitioner or his family members“).
{¶ 26} Moreover, the record presents additional reasons to support the court‘s conclusion that Colin‘s affidavit lacked credibility. Compare Myers v. Garson, 66 Ohio St.3d 610, 615-16 (1993) (noting that “an appellate court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court“). Initially, the judge reviewing appellant‘s petition for post-conviction relief was also the judge who presided at appellant‘s trial. See Calhoun at 286 (noting that the presiding trial judge is “in the best position to observe the defendant and his attorney and therefore assess the credibility of the affidavits” submitted in support of the petition).
{¶ 27} Furthermore, Colin‘s affidavit contains statements which are not based on personal knowledge. “For obvious reasons,” both “affidavits supporting motions for summary judgment” as well as “lay witness testimony in a court of law” must be “made on personal knowledge.” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 26, citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.,
{¶ 28} ” ‘Personal knowledge’ is ‘knowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.’ ” Bonacorsi at ¶ 26, quoting Black‘s Law Dictionary 875 (7th Ed.1999). Thus, ” ‘[t]he subject of a witness‘s testimony must have been perceived through one or more of the senses of the witness,’ ” and a witness is incompetent to testify to any fact ” ‘unless he or she possesses firsthand knowledge of that fact.’ ” Id., quoting Weissenberger‘s Ohio Evidence Treatise, Section 602.1, 213 (2002).
{¶ 29} Colin admits in his affidavit that he did not know who went upstairs to obtain the shotgun. As such, Colin‘s further statement that he believed Salyers retrieved the shotgun was not a statement based on personal knowledge.
{¶ 30} There is no indication in Colin‘s statement that the shotgun discharged accidentally was based on personal knowledge. Although Colin averred he perceived Salyers grabbed and pushed the barrel of the shotgun, Colin fails to explain how he observed the shotgun discharge accidentally. Colin did not state appellant‘s hands were
{¶ 31} We additionally note Colin‘s averment that appellant “immediately went to the apartment and called 9-1-1” after the shooting. (Colin Aff. at ¶ 10.) This statement contradicts the state‘s evidence from a disinterested county employee who testified that appellant called the regular, non-emergency line to report the shooting; not 911.
{¶ 32} Reviewing Colin‘s affidavit, we find no abuse of discretion in the trial court‘s conclusion that Colin‘s affidavit lacked credibility. Appellant‘s trial attorney met with Colin prior to trial to assess Colin‘s trial testimony. See State v. Jeffers, 10th Dist. No. 10AP-1112, 2011-Ohio-3555, ¶ 12 (observing the defendant‘s trial counsel “performed due diligence by investigating [witness‘s] potential testimony prior to trial“). Accordingly, appellant failed to present sufficient credible evidence demonstrating his trial attorney‘s decision not to call Colin to testify was anything other than a tactical trial decision.
{¶ 33} Appellant‘s second assignment of error is overruled.
{¶ 34} Appellant‘s first assignment of error asserts the trial court erred in concluding appellant‘s ground for relief based on his trial counsel‘s failure to call a firearm expert to testify was barred by res judicata.
{¶ 35} Prior to trial, on November 10, 2015, the defense filed a witness list identifying firearm expert Steve Yuszka as a potential defense witness. On November 12, 2015, the state filed a motion in limine asking the court to preclude any testimony from Yuszka, as appellant failed to comply with
{¶ 36} In his direct appeal, appellant argued his trial counsel rendered ineffective assistance by failing to comply with
{¶ 37} Yuszka averred in his affidavit appellant‘s trial counsel interviewed him prior to trial. Counsel asked Yuszka if a Mossberg 12-gauge semi-automatic shotgun, the type of shotgun at issue in the case, could have accidently discharged during a confrontation between two people. Yuszka “selected the same model Mossberg semi-automatic shotgun” from his stock and “demonstrated to [appellant‘s trial counsel] that the weapon could have the safety disengaged and be fired accidently during a struggle involving two people.” (Yuszka Aff. at ¶ 3.) Yuszka reviewed photos of Salyers from the crime scene, and averred he “felt the injury was consistent with close range shot and could have been caused during a struggle over the shotgun.” (Yuszka Aff. at ¶ 3.) Yuszka additionally stated he provided appellant‘s attorney with a list of his qualifications sometime in October 2015, but never received a subpoena to testify at trial.
{¶ 38} Appellant also submitted identical affidavits from his mother and grandmother in support of his petition, stating his family paid his trial attorney $1,500 for a
{¶ 39} ’ ‘[R]es judicata applies to proceedings involving post-conviction relief,’ ” and bars any issue that was or could have been raised at trial or on direct appeal. State v. Heid, 4th Dist. No. 15CA3710, 2016-Ohio-2756, ¶ 18, citing State v. Burton, 4th Dist. No. 13CA12, 2014-Ohio-2549, ¶ 17. For a petitioner to avoid dismissal of their petition for post-conviction relief due to res judicata, “the evidence supporting the claims in the petition must be competent, relevant, and material evidence outside the trial court record.” B.C.S. at ¶ 14, citing State v. Lawson, 103 Ohio App.3d 307, 315 (12th Dist.1995).
{¶ 40} A petition for post-conviction relief, rather than a direct appeal, is the proper vehicle to raise an ineffective assistance of counsel claim premised on evidence outside the record. State v. Williams, 4th Dist. No. 15CA3, 2016-Ohio-733, ¶ 37. See also State v. Madrigal, 87 Ohio St.3d 378, 390-91 (2000) (observing that where “[n]othing in the record indicates what kind of testimony an * * * expert could have provided” such a “claim is not appropriately considered on a direct appeal“). Thus, “even if the issue of ineffective assistance of counsel is raised on direct appeal, that issue will not be barred by res judicata in a postconviction relief proceeding if the issue could not have been determined without resort to evidence dehors the record.” B.C.S. at ¶ 15, citing State v. Walker, 6th Dist. No. L-99-1383 (Dec. 29, 2000). See also State v. Smith, 17 Ohio St.3d 98, 101 (1985) fn. 1.
{¶ 42} The decision of whether or not to call an expert is generally considered a matter of trial strategy. State v. Akers, 4th Dist. No. 98 CA 33 (Sept. 9, 1999), citing State v. Coleman, 45 Ohio St.3d 298, 308 (1989). Indeed, “the failure to call an expert and instead rely on cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436 (1993), citing State v. Thompson, 33 Ohio St.3d 1, 10-11 (1987). See also State v. Delawder, 4th Dist. No. 14CA12, 2015-Ohio-1857, ¶ 34, quoting State v. Goza, 8th Dist. No. 89032, 2007-Ohio-6837, ¶ 58 (noting that ” ‘[b]ecause calling witnesses is within the realm of trial tactics, defense counsel did not have a duty to call an expert witness’ “); State v. Hartman, 93 Ohio St.3d 274, 299 (2001).
{¶ 43} Appellant continues to speculate that it was “[d]ue to the failure by counsel to comply with
{¶ 44} Appellant asserts that Yuszka‘s testimony would have supported the defense‘s theory that Salyers “reached for the gun thereby causing it to fire.” (Appellant‘s Brief at 11.) In the absence of Colin‘s affidavit stating that Salyers reached for the gun, however, Yuszka‘s affidavit establishes only that the firearm could have discharged accidentally during a struggle between two people. As such, Yuszka‘s affidavit testimony leaves intact the possibility that appellant purposefully fired the shotgun.
{¶ 45} As the decision of whether to call an expert witness is considered a matter of trial strategy, and Yuszka‘s potential testimony could have supported the state‘s case as much as the defense‘s case, the record fails to demonstrate that appellant‘s trial counsel acted deficiently in failing to call Yuszka to testify. See Calhoun at 284 (noting that “where a petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief, and the information in the affidavit, even if true, does not rise to the level of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is inconsequential“). Moreover, we note counsel‘s pre-trial meeting with Yuszka might have been beneficial in and of itself, as it could have helped to prepare counsel for cross-examination.
{¶ 46} Appellant also fails to demonstrate prejudice resulting from his attorney‘s failure to call Yuszka to testify. Immediately following the shooting, appellant told the
{¶ 47} Appellant additionally argues that testimony from both Colin and Yuszka would have allowed the jury to believe “that Salyers was the aggressor and grabbed the weapon, causing it to fire, which may have supported an instruction and possible conviction on voluntary manslaughter.” (Appellant‘s Brief at 13.) As noted above, however, the trial court did not err in finding Colin‘s affidavit lacked credibility. As Yuszka‘s affidavit does not contain any personal observations of Salyers’ conduct, there is no indication Yuszka‘s testimony would have supported a voluntary manslaughter instruction.
{¶ 48} Appellant failed to present sufficient credible evidence demonstrating he suffered a violation of his constitutional rights based on his trial counsel‘s failure to call a firearms expert to testify.
{¶ 49} Based on the foregoing, appellant‘s first assignment of error is overruled.
{¶ 51} Having overruled appellant‘s two assignments of error, we affirm the judgment of the Pickaway County Court of Common Pleas.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Tyack, J.*, and Luper Schuster, J.*,: Concur in Judgment and Opinion.
For the Court
BY: ______________________________
Susan D. Brown, Presiding Judge*
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
*Susan D. Brown, G. Gary Tyack, and Betsy Luper Schuster, Judges of the Tenth Appellate District, sitting by assignment of the Supreme Court of Ohio in the Fourth Appellate District.