State v. WatsonState v. Watson
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 25, 2020
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Andrew Rogalski, Assistant Prosecuting Attorney, for appellee.
Buckeye Law Office and P. Andrew Baker, for appellant.
MARY EILEEN KILBANE, J.:
{¶ 1} Defendant-appellant, Maurice Watson (“Watson“), appeals his conviction. He presents four assignments of error for our review. For the following reasons, we affirm the decision of the trial court.
{¶ 2} Watson was indicted on November 30, 2018, along with his codefendants Steve Stewart (“Stewart“), Eddie Johnson (“Johnson“), and Stefone Black (“Black“) for their purported roles in a shootout and robbery involving Clarence Moore (“Moore“) and Deandre Billingsley (“Billingsley“).
{¶ 3} Watson faced the following charges: Count 1, aggravated robbery, a first-degree felony pursuant to
{¶ 4} Counts 11 and 12 only applied to Watson‘s codefendants.
{¶ 5} On December 5, 2018, Watson pled not guilty. He waived his right to a jury trial and proceeded to a bench trial on April 15, 2019.
{¶ 6} Following his trial, Watson was convicted of Counts 1-4, Counts 6-10, and Count 13. Counts 3 and 4 merged with Counts 1 and 2. Count 9 merged with Count 6. Watson was sentenced to nine years on Counts 1 and 2 — with an additional mandatory three-year consecutive term for the firearm specification — with Counts 1 and 2 to be served concurrently. Watson was sentenced to seven years for Counts 6, 7, 8, and 10 — with an additional mandatory three-year consecutive term for the firearm specification — with Counts 6, 7, and 8 to be served concurrently to each other but consecutively to Counts 1 and 2. Finally, Watson was sentenced to 36 months on Count 13 to be served concurrently with all other sentences.
{¶ 7} Watson‘s total sentence is 22 years with 5 years of postrelease control.
Statement of the facts
{¶ 8} On December 19, 2017, several men, including Watson, Black, and Johnson ambushed Moore and Billingsley at a Collinwood Sunoco, on the corner of East 156th and Waterloo. All the individuals were armed with pistols except for
{¶ 9} In the video, Moore and Billingsley arrived at the Sunoco in Billingsley‘s vehicle. Prior to Billingsley‘s arrival, the cameras show one individual driving a red Pontiac and parking across from the Sunoco. The driver exited the Pontiac and positioned himself in a house directly across from the Sunoco, on East 156th. The video shows that the driver was wearing distinctive grey Nike tennis shoes. The state of Ohio (“the state“) alleged that the driver of the Pontiac was Watson. Billingsley entered the Sunoco store; at this point Watson, Johnson, and an unknown individual crossed the street and hid on the side of the building. The video shows that Watson is distinctly shorter than the other two individuals.
{¶ 10} As Billingsley exited, the three men showed themselves and pointed guns at Billingsley. Black ran across the street towards the vehicle where Moore was seated, opened the vehicle and shot at Moore, missing. Moore returned fire, shooting Black in the midsection, before attempting to flee the Sunoco. At this point Watson, Johnson, and the unknown defendant began shooting at Billingsley and Moore.
{¶ 11} As Moore was running he was shot in the back, neck, and mouth. He managed to escape the Sunoco and was later found at a nearby store by emergency medical personnel, who stabilized him.
{¶ 12} Billingsley returned fire while fleeing the scene. He managed to escape unharmed. During the shootout, a seven-year-old girl was struck by a stray
{¶ 13} After Billingsley fled, the unknown individual grabbed a bag from Billingsley‘s vehicle and fled behind the East 156th home — he had not yet been apprehended as of the trial in this case. During the execution of the search warrant for the East 156th home, detectives recovered a matching bag that contained cash and a firearm.
{¶ 14} Johnson was arrested shortly after the shootout began. Black was arrested at a hospital receiving treatment for his gun wound. Watson initially escaped; footage from the Sunoco shows him walking down East 156th, and then driving away from the scene in a red Pontiac.
{¶ 15} Watson was subsequently arrested months later through analysis of the Sunoco video and various social media posts. Whether Watson was actually one of the shooters at the scene was a central issue of the bench trial.
Trial
{¶ 16} At trial, the state presented video from two different camera angles that captured the events from beginning to end. The state also presented testimony from two detectives assigned to the investigation; they testified that Watson was a “person of interest from the early stages of the investigation” because he frequently associated with the other codefendants. The detectives testified that Watson appeared in dozens of Instagram photos with Johnson, and in many of the photos,
{¶ 17} The state also called an expert forensic video analyst, who estimated the height of the shooters at the Sunoco. Watson is approximately 5‘2‘‘, and the analyst was able to identify one shooter as being between 4‘9.5‘’ and 5‘5.5‘‘. The analyst also presented evidence regarding Watson‘s clothing and how the clothes and shoes matched the appearance of the Pontiac driver. As a result, the analyst noted that Watson shared major characteristics with the shorter shooter.
{¶ 18} The state also presented evidence that Watson owned a red Pontiac, and that a vehicle registered to Watson had the same features as the red Pontiac seen on video.
{¶ 19} Finally, the state presented evidence of a jail telephone call. A sergeant of the Cuyahoga County Sheriff‘s Department authenticated the call as coming from Watson‘s unique pin. Part of the call was played for the court; on the call Watson can be heard speculating as to how he got arrested. He explains to his friend that he was identified because of footage of his red Pontiac on East 156th street.
{¶ 20} Now, Watson appeals his conviction; he presents four assignments of error for our review.
Assignment of Error No. 1
The trial court erred when it permitted the introduction of a “jail call” allegedly made by Defendant-Appellant into evidence.
Defendant-Appellant‘s conviction must be reversed due to improper admission of evidence regarding pre-arrest silence.
Assignment of Error No. 3
Defendant Appellant‘s convictions must be reversed due to ineffective assistance of counsel.
Assignment of Error No. 4
Defendant-Appellant‘s convictions must be reversed as they were against the manifest weight of the evidence.
{¶ 21} We will address them in turn. For the following reasons, this court finds no merit to Watson‘s arguments and affirms the judgment of the trial court.
The Jail Call
{¶ 22} Watson argues that the state failed to authenticate the jail call recording played at trial and that the trial court‘s decision to allow the recording over the objection of trial counsel was in error. This court disagrees.
{¶ 23} “The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Hamilton, 8th Dist. Cuyahoga No. 86520, 2006-Ohio-1949. An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 24}
{¶ 26} It follows that “[t]elephone conversations are admitted where the identity of the parties is satisfactorily explained.” Pruitt at ¶ 11, citing State v. Williams, 64 Ohio App.2d 271, 274, 413 N.E.2d 1212 (8th Dist.1979).
{¶ 27} In Pruitt, a Cuyahoga County Sheriff sergeant testified that jail calls are made and recorded using “a system called Global Telelink.” Id. at ¶ 12. The sergeant also testified that inmates have unique pins they input to make a call, and that recordings made of those calls can be found later by searching for the individual pin. We found that this was sufficient to explain the identity of the caller and authenticate the evidence.
{¶ 28} The facts in this case are nearly identical; the only difference of note is that Cuyahoga County used a different software system to make and record the phone call. Here, the state also authenticated the evidence by having a Cuyahoga County Sheriff sergeant testify as to how calls are made, recorded, and then accessed later by using the inmate‘s unique pin.
{¶ 29} In his argument, Watson asks that we rely on a case where we found the state did not properly authenticate a jail call. State v. Gordon, 8th Dist. Cuyahoga No. 106923, 2018-Ohio-2292. In Gordon, unlike Pruitt and the present
{¶ 30} Our precedent in Pruitt is clear; the trial court did not abuse its discretion in this case and the first assignment of error is overruled.
Prearrest Silence
{¶ 31} In Watson‘s second assignment of error, he argues that plain error resulted when the state‘s witness testified that Watson had not kept his appointment to speak with investigators prior to his arrest. Watson argues that the inclusion of this testimony violated his right against self-incrimination. His arguments are without merit.
{¶ 32} The detective in question testified as follows in response to a question about whether he ever contacted Watson:
Q. Can you talk about how that came about?
A. There [were] two occasions where I made contact at Mr. Watson‘s home. I left my -- the first time I left my CPD business card and asked Mr. Watson to call me for an interview in connection with a shooting. The second time I went to the house I left my ATF business card with my cell phone number on it.
Shortly after that time, Mr. Watson contacted me and I spoke with him on the phone and we set up an interview.
Q. And did you coordinate a place and date and time to meet with Mr. Watson?
A. Yes.
Q. And did that interview occur?
A. No, it did not. Q. How many times did you attempt to set up an interview with Mr. Watson?
A. I called him numerous times after he didn‘t show up to the interview. I was then contacted by his former lawyer who set up another interview, and after waiting around for several hours the lawyer contacted me and said, “Mr. Watson is not showing up.”
{¶ 33} Watson‘s argument is that the reference to his having an attorney is a violation of his right against self-incrimination because the state used his “pre-arrest silence” as substantive evidence of his guilt. He relies on the Ohio Supreme Court‘s decision in State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335. His reliance is misplaced.
{¶ 34} In Leach, the court explained that the Fifth Amendment right against self-incrimination prohibits the introduction of evidence of prearrest silence where that silence is used by the state without a legitimate purpose. It is improper for the State to use prearrest silence — often through evidence of the defendant invoking his right to counsel before he is mirandized — as evidence of guilt.
{¶ 35} Leach differs from the present case in many ways. In Leach, the defendant was accused of rape. There was no physical evidence and the case “rested solely on the credibility of the state‘s witnesses.” Id. at ¶ 29. In its opening argument, the prosecution stated that Leach agreed to talk to the police but that “[he] then calls back and says he wants an attorney.” Id. at ¶ 4. Later, a detective testified that Leach left the detective a message saying “he wanted to talk to an attorney before speaking to police.” Id. at ¶ 5. And again in its closing argument,
{¶ 36} This case is different.
{¶ 37} Critical to the court‘s reasoning in Leach is that the prosecution used his silence — his invocation of his right to an attorney — as substantive evidence of guilt. There was nothing passive or casual about the testimony elicited or the arguments made. However, the court did state that testimony about Leach making an appointment, but then not keeping that appointment, to be legitimate. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 32.
{¶ 38} The state in this case did not use the fact that Watson had an attorney as substantive evidence of guilt. The only reference to an attorney is casual and merely about how Watson did not keep his appointment. The detective stated that “I was then contacted by his former lawyer who set up another interview, and after waiting around for several hours the lawyer contacted me and said, ‘Mr. Watson is not showing up.‘” That Watson‘s attorney informed the detectives his client would not be participating in a voluntary interview is not a part of the state‘s argument like it was in Leach — there is more to the case against Watson than the fact that he had
{¶ 39} We find, using the reasoning and explicit conclusions of Leach that this statement was legitimate and not used as substantive evidence. The second assignment of error is overruled.
Ineffective Assistance of Counsel
{¶ 40} In his third assignment of error, Watson argues that counsel was ineffective for his failure to object to the inclusion of the following evidence: 1) the single reference to Watson‘s attorney we discussed above; 2) Instagram photos showing Watson with codefendants; and 3) testimony that a codefendant, Johnson, had pleaded guilty.
{¶ 41} “To gain reversal on a claim of ineffective assistance of counsel, a defendant must show that (1) his ‘counsel‘s performance was deficient,’ and (2) ‘the deficient performance prejudiced the defense.‘” State v. Fisher, 8th Dist. Cuyahoga No. 108494, 2020-Ohio-670, ¶ 18, quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The first prong of Strickland‘s test requires the defendant to show ‘that counsel‘s representation fell below an objective standard of reasonableness.‘” Id., quoting Strickland at 688. ”Strickland‘s second prong requires the defendant to show ‘a reasonable probability that but for counsel‘s
{¶ 42} Our review of counsel‘s performance is highly deferential. State v. Korecky, 8th Dist. Cuyahoga No. 108328, 2020-Ohio-797, ¶ 20, citing Strickland. Because we presume licensed attorneys are competent, the party claiming ineffective assistance of counsel bears the burden of proving that counsel was ineffective. Id., citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Watson cannot meet his burden in this case; counsel was not ineffective for the following reasons.
{¶ 43} First, we again note that this was a bench trial, and in a criminal trial, a presumption exists that the trial court considers only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary. State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017. Second, failure to object to error, alone, is not sufficient to sustain a claim of ineffective assistance. State v. Fears, 86 Ohio St.3d 329, 715 N.E.2d 136 (1999). Finally, the Supreme Court of Ohio has recognized that declining to interrupt the prosecutor‘s argument with objections, or failing to object to certain evidence, is not deficient performance, especially in a bench trial. See State v. Keene, 81 Ohio St.3d 646, 668, 693 N.E.2d 246 (1998).
{¶ 44} As we discussed, when considering the second assignment of error, there was no reason to object to the casual reference to Watson‘s attorney because there was nothing prejudicial about the testimony.
{¶ 46} Finally, counsel was not ineffective for failing to object to codefendant Johnson having pled guilty. As the Supreme Court has made clear, failure to object is not deficient performance, especially during a bench trial. Any prejudicial effects of that testimony were again eliminated by the trial court hearing the facts rather than a jury.
{¶ 47} Watson‘s third assignment of error is overruled.
Manifest Weight
{¶ 48} Finally, Watson argues that the court‘s verdict was against the manifest weight of the evidence. The case against Watson revolved around whether the state met its burden of persuasion as to whether Watson was the shorter shooter seen on the Sunoco surveillance footage. He also argues that no evidence was presented that any robbery actually occurred.
{¶ 49} In contrast to a challenge based on sufficiency of the evidence, a manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion at trial. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v. Thompkins,
{¶ 50} In our manifest weight review of a bench trial verdict, we recognize that the trial court is serving as the factfinder, and not a jury:
Accordingly, to warrant reversal from a bench trial under a manifest weight of the evidence claim, this court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in evidence, the trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.
State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41, citing State v. Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25 (8th Dist.). See also State v. Kessler, 8th Dist. Cuyahoga No. 93340, 2010-Ohio-2094, ¶ 13.
{¶ 51} A conviction should be reversed as against the manifest weight of the evidence only in the most “exceptional case in which the evidence weighs heavily against the conviction.” Thompkins at 387. This is not a case where the evidence weighs heavily against a conviction.
{¶ 52} The surveillance video shows that a shooter of shorter stature wearing distinctive Nike shoes was at the Sunoco in question and participated in the ambush. Further, that shooter was seen driving a red Pontiac, a vehicle Watson owns and later references in his jail call. Later, Watson was identified in Instagram photos wearing the distinctive shoes seen on video. He is also 5‘2‘‘. That Watson was the shooter in question is supported by the weight of the evidence.
{¶ 54} Watson‘s manifest weight challenge in the fourth assignment of error is overruled. For these foregoing reasons, we affirm the trial court‘s decision.
{¶ 55} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and ANITA LASTER MAYS, J., CONCUR