STATE OF OHIO v. TREAL WHITE
No. 110452
Eighth Appellate District, County of Cuyahoga
June 23, 2022
2022-Ohio-2130
EMANUELLA D. GROVES, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-19-646377-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 23, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione, Assisting Prosecuting Attorney, for appellee.
Robert A. Dixon, for appellant.
EMANUELLA D. GROVES, J.:
{¶ 1} Defendant-appellant, Treal White (“White“), appeals his conviction following a bench trial. For the reasons set forth below, we affirm.
{¶ 2} In December 2019, a grand jury indicted White on one count of aggravated murder, one count of murder, one count of attempted murder, two counts of felonious assault, and one count of discharge of a firearm on or near prohibited premises. All counts contained one-year and three-year firearm specifications. White elected to waive his right to a jury trial and a bench trial commenced on March 22, 2021, where the facts elicited are as follows.
{¶ 3} On September 21, 2019, White shot 25-year-old Tauvarsion “Shon” Waller (“Waller“) five times with an AR-15 assault rifle, killing him. Further, Tyrone Laney (“Laney“) sustained shots to the buttocks and hand during the shooting. White justified his actions by claiming he acted in self-defense.
{¶ 4} White, Waller, and several other friends were hanging out, drinking and smoking marijuana in a vacant lot on Alhambra in the city of Cleveland. The vacant lot was next door to the house where Alisha Ashford (“Ashford“) was staying at the time. Although Ashford had concerns about the gathering of people next to her house, she described the group as laughing and having fun.
{¶ 5} According to White, things took a turn when someone who had stolen from him the week before showed up. Waller kept goading White to fight this person, to show he could stand up for himself. Nonetheless, White refused to fight. Waller punched White in the chest when he refused. According to White, this was the first time he and Waller fought in any way despite knowing each other since 2017. The punch knocked the wind out of White. White punched back once in retaliation. Waller punched White again, then White backed away, saying he did not
{¶ 6} Ashford heard a verbal confrontation between White and Waller about “slap-boxing.” At that time, they were in front of her house, and she could see them outside of her front window. Ashford saw Waller start to walk away from White. As Waller was walking away, Ashford saw White go to the back of a nearby car, grab a gun, and start shooting at Waller. Once the shooting started, Ashford threw herself to the floor, presumably to avoid being in the line of fire. After things appeared to settle down, Ashford got up and saw Waller lying on the ground and saw a car drive over his body.
{¶ 7} White presented a different version of what occurred. According to White, he walked away from Waller intending to walk home. He saw a friend sitting in a parked car nearby and stopped to ask for a ride. It was at that point that he noticed Waller approaching him. Waller was about 10-12 feet away. White did not remember how it happened, but he grabbed an AR-15 that was in the back seat of the car and told Waller to back up. Waller was unarmed. According to White, Waller became mad when White pulled out the rifle and kept coming closer. White told Waller to back up and started backing up himself. Waller kept coming, and White fired the first shot toward Waller‘s leg. He shot two more times because Waller kept coming. White shot a fourth time and saw Waller‘s arm move. Finally, he shot Waller in the face because he felt he had to do it to stop Waller from advancing. At
{¶ 8} When police arrived on Alhambra, everyone had gone from the vacant lot except Laney who was seated beside Waller‘s body. Laney had sustained shots to his buttocks and hand. Police attempted to administer first aid until EMS arrived. Laney refused to give more than basic information and refused multiple requests to be interviewed.
{¶ 9} Five large caliber bullet casings were found on both sides of the street, in front of and near Ashford‘s home. All of the casings were fired from the AR-15. There was also evidence that another weapon had been fired. Waller was shot five times, in no particular order, once in the face, once in the chest, once in each arm, and once in one of his toes. Further, Waller had a tire mark on his left arm.
{¶ 10} It is unclear how White was identified as a suspect, but Ashford picked him out of a photo array shortly after the shooting. White was subsequently interviewed by police, where he denied being on Alhambra on the date of the shooting, and denied any knowledge of the shooting. However, DNA evidence collected from the AR-15 also linked White to the shooting.
{¶ 11} Approximately six months before trial, the state produced an expert report regarding trace evidence pursuant to discovery. Among other things, it addressed the expert‘s analysis of the muzzle-to-target distance involved in Waller‘s
{¶ 12} At the bench trial, the state‘s trace evidence witness testified in agreement with the trace evidence report that the evidence suggested an intermediate muzzle-to-target distance. Although not included in the report given in discovery, the expert opined that for a long gun, e.g., a rifle, like the one used in this case, he would estimate the distance to be around ten feet. White‘s counsel did not object to this testimony, nor did he cross-examine the witness.
{¶ 13} Subsequently, the state used the expert‘s testimony to challenge White‘s claim of self-defense. The state also highlighted the ten-foot distance in closing arguments.
{¶ 14} Ultimately, the trial court found that the state proved beyond a reasonable doubt that White did not use deadly force in self-defense. The court found White not guilty of aggravated murder but guilty of the lesser included offense of murder under
{¶ 15} On March 31, 2021, the trial court sentenced White to a total prison term of life imprisonment with the possibility of parole in 27 to 28.5 years.
{¶ 16} On April 13, 2021, White filed a motion for new trial. On April 23, 2021, while the motion for new trial was still pending, White filed a notice of appeal. On June 21, the trial court denied the motion for new trial.
{¶ 17} On December 10, 2021, White filed a motion for limited remand in this court in order to allow the trial court to appropriately address the motion for new trial, assuming the trial court did not have jurisdiction to rule. This court granted the motion. White‘s trial counsel moved for the appointment of new counsel. New counsel was appointed for White and a hearing was scheduled for January 20, 2022. However, at that hearing, White indicated that he had concerns about his appointed counsel‘s representation.1 The trial court allowed appointed counsel to withdraw. The trial court then ruled on the motions filed by counsel. The trial court denied the motion for a new trial.
{¶ 18} White appeals and assigns the following errors for our review.
The defendant was denied due process of law and a fair trial due to violation of
Assignment of Error No. 2
The appellant was denied his Sixth Amendment right to effective assistance of counsel due to the action or inaction of counsel below.
Assignment of Error No. 3
The lower court erred and abused its discretion in overruling the defense motion for new trial.
Assignment of Error No. 4
The verdict and judgment below must be vacated due to prosecutorial misconduct violation of Mr. White‘s rights pursuant to the Sixth Amendment to the Constitution of the United States.
Assignment of Error No. 5
The verdict and judgment below finding the appellant guilty of murder pursuant to
Assignment of Error No. 6
The verdict and judgment below finding the appellant guilty of murder pursuant to
Law and Analysis
{¶ 19} For ease of analysis, we will address the assignments of error out of order.
Sufficiency of the Evidence
{¶ 20} In the fifth assignment of error, White argues that his conviction for murder pursuant to
{¶ 21} “A challenge to the sufficiency of the evidence supporting a conviction requires a determination of whether the state met its burden of production.” State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). Sufficiency of the evidence involves a review of the evidence admitted at trial and a determination of “‘whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.‘” State v. Goins, 8th Dist. Cuyahoga No. 109497, 2021-Ohio-1299, ¶ 13, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. We must determine, “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. The question is not “whether the state‘s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction.” Id., quoting Thompkins at 390.
{¶ 22} In order for the appellant to be convicted of murder under
{¶ 24} In order to demonstrate the inapplicability of self-defense, the state must prove beyond a reasonable doubt any one of the following,
(1) that the defendant was at fault in creating the situation giving rise to the affray; (2) that the defendant lacked a bona fide belief that he was in imminent danger of death or great bodily harm or that another means of escape from such danger existed negating the need for the use of deadly force; or (3) that the defendant violated a duty to retreat or avoid the danger.
(Emphasis sic.) State v. Walker, 8th Dist. Cuyahoga No. 109328, 2021-Ohio-2037, ¶ 14.
{¶ 25} Sufficiency is a test of adequacy. Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 38, citing Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. When looking at the adequacy of the evidence to support a criminal conviction, we construe the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Id., citing Jenks, 61 Ohio St.3d at 574, N.E.2d 492, paragraph two of the syllabus. In analyzing
{¶ 26} In the instant case, there was overwhelming evidence of White‘s guilt. It is undisputed that White shot Waller killing him, meeting the elements of
{¶ 27} Additionally, White‘s testimony disproved his self-defense claim. Even if White‘s testimony were believed and Waller was advancing on him, there was no evidence that placed White in fear of imminent danger of death or great bodily harm. According to White, he and Waller had been friends and never fought until the day of the shooting. If we believe White, Waller punched White because he felt that White should stand up for himself. At most, White painted a picture of someone who was trying to, although misguidedly, toughen him up, not someone intent on killing White. White‘s response to pick up an assault rifle and shoot the unarmed man five times far exceeded a defensive response to his perceived danger.
{¶ 28} Accordingly, we overrule the fifth assignment of error.
Weight of the Evidence
{¶ 29} In the sixth assignment of error, White argues that his conviction for murder under
{¶ 30} “[W]eight of the evidence involves the inclination of the greater amount of credible evidence.” State v. Harris, 8th Dist. Cuyahoga No. 109060, 2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Weight of the evidence relates to “the evidence‘s effect of inducing belief.” Id., quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. The reviewing court must consider all of the evidence in the record, the reasonable inferences to made from it, and the credibility of the witnesses to determine “whether in resolving conflicts in the evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice * * *.” Id., citing Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Furthermore, in examining the manifest weight of the evidence, “the weight to be given the evidence and the credibility of the witnesses
{¶ 31} Clearly, White shot Waller and killed him meeting the elements of
{¶ 32} Again, the evidence establishes that Waller was unarmed when White shot him five times with an assault rifle. Even if Waller was advancing on White when he was shot, the evidence established that at most, Waller intended to finish the earlier fight, not that Waller intended to kill him or do great bodily harm. Further, Ashford‘s testimony placed the rifle in White‘s hand as Waller was walking away.
{¶ 33} The trial court‘s decision finding that the state disproved self-defense was supported by the greater weight of the evidence. As such, the guilty finding for murder was also supported by the greater weight of the evidence.
{¶ 34} Accordingly, we overrule the sixth assignment of error.
{¶ 35} In the first assignment of error, White argues that he was denied due process and the right to a fair trial when the state violated
{¶ 36} As a preliminary matter we note that White did not object to the state‘s expert testimony. “The failure to object to trial testimony forfeits all but plain error.” Awan, 22 Ohio St.3d at 120, 489 N.E.2d 277, ¶ 20, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23.
{¶ 37} Under
{¶ 38} In the instant case, the Supreme Court of Ohio has made clear that under
{¶ 39} In the instant case, the state violated
{¶ 40} Although the state argues that the testimony was hypothetical and therefore permitted, we disagree. The state treated this “hypothetical” as fact by repeatedly referencing it in the cross-examination of White to discredit his testimony:
State: You will agree with me that despite your belief here that your life was in danger that the first time a shot was fired that night was when
you pulled up an AR-15 assault rifle and fired it at your good friend, * * * Waller, correct? White: I was trying to get him to back off and he wouldn‘t. He kept coming. Evidence show that.
State: You indicated to this Court that he was within two or three feet of you, correct?
White: I said I didn‘t know the approximate feet. I said I believe. I don‘t know.
State: What if I told you that trace evidence says, and the coroner says —
White: Five feet.
State: — that the majority of those shots, all but one came from a distance greater than 10 feet, correct?
White: I don‘t — I don‘t think it said that. I remember them saying five.
State: No. They said with an assault rifle it would be up to 10 feet they would expect to see gun powder on the area where it happened. Do you remember that?
White: I don‘t remember, but, yeah.
State: So for four of those five shots you were at least 10 feet away from Shon Waller when you fired the gun, correct?
White: No. He was close to me. He wasn‘t no 10 feet away from me.
(Tr. 562-563.)
{¶ 41} The state further used the “hypothetical” distance in its closing argument, repeatedly asking the court to consider the ten-foot distance in determining whether White acted in self-defense.
{¶ 42} The penalty for a
{¶ 43} The third prong focuses on whether the error affected a substantial right. In the context of a criminal trial, plain error that affects a substantial right is an error that affects the outcome of the trial. Pratts, 8th Dist. Cuyahoga No. 104235, 2016-Ohio-8053, at ¶ 34. The burden is therefore on the appellant to demonstrate that there was a reasonable probability that the error resulted in prejudice. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
{¶ 44} White has not established a reasonable probability that the erroneous admission of evidence affected the result of the trial. Even if the expert testimony had been excluded, there was overwhelming evidence of White‘s guilt. Furthermore, the remaining evidence after we remove the expert‘s testimony disproved White‘s self-defense claim.
{¶ 45} Additionally, this was a bench trial. As such, a trial judge is presumed to know the law and to have applied it accordingly. N. Olmsted v. Rock, 8th Dist. Cuyahoga No. 105566, 2018-Ohio-1084, ¶ 18, citing State v. Waters, 8th Dist.Cuyahoga No. 87431, 2006-Ohio-4895, ¶ 11, citing State v. Eley, 77 Ohio St.3d 174, 180-181, 672 N.E.2d 640 (1996).
{¶ 46} Moreover, there is evidence in the record that the trial court did not consider the expert‘s testimony. In the trial court‘s ruling on White‘s motion for new trial, the trial court noted that “even if a portion of [the trace evidence expert‘s] testimony was excluded it would not have changed the verdict in this case * * * due to the overwhelming evidence presented at trial.” The presumption that a trial court only considered reliable, relevant, and competent evidence remains unless “it affirmatively appears to the contrary.” Waters at ¶ 18, citing State v. Richey, 64 Ohio St.3d 353, 595 N.E.2d 915 (1992). Given the foregoing, we cannot say that the testimony affected the outcome of the trial.
{¶ 47} As there was overwhelming evidence of White‘s guilt and no evidence that the trial court considered improper evidence in making its decision, White has failed to establish plain error.
{¶ 48} Accordingly, we overrule the first assignment of error.
Prosecutorial Misconduct
{¶ 49} In the fourth assignment of error, White argues that the state committed prosecutorial misconduct that was a violation of his constitutional rights when it violated
{¶ 50} In the instant case White has failed to establish prosecutorial misconduct. When an allegation of prosecutorial misconduct relates to
{¶ 51} “‘Willful’ has been defined as ‘intent, purpose or design to injure.‘” State v. Thomas, 7th Dist. Belmont No. 17 BE 0028, 2018-Ohio-3768, ¶ 27, citing State v. Litton, 12th Dist. Preble No. CA2016-04-005, 2016-Ohio-7913, ¶ 11, quoting State v. Bowshier, 2d Dist. Clark No. 06-CA-41, 2007-Ohio-5364, ¶ 31. See also Jackson at ¶ 78-79 (conduct not willful where state thought evidence was irrelevant and therefore it was unnecessary to produce it to defense); Parson at 442 (conduct not willful where state‘s failure to produce evidence was negligent, the record did not reflect willful misconduct, further, prosecutorial misconduct not present since the defendant was not prejudiced by the admission of the testimony on rebuttal). Since defense counsel did not object to the admission of the testimony, the trial court did not have an opportunity to ascertain the reasons for the state‘s
{¶ 52} Accordingly, we overrule the fourth assignment of error.
Ineffective Assistance of Counsel
{¶ 53} In the second assignment of error White argues that he received ineffective assistance of counsel when his lawyer failed to object to the admission of the trace evidence expert‘s testimony.
{¶ 54} In order to establish ineffective assistance of counsel, a defendant must demonstrate that (1) counsel‘s performance was deficient and fell below an objective standard of reasonableness and (2) that, but for counsel‘s unprofessional errors, there is a reasonable probability that the result of the trial would have been different. State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216, ¶ 28 (8th Dist.), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must satisfy both prongs of the test in order to prove ineffective assistance of counsel. Harris, 8th Dist. Cuyahoga No. 109083, 2020-Ohio-4138, at ¶ 28, citing Strickland at 687.
{¶ 55} Under Ohio law, “every properly licensed attorney is presumed to be competent.” State v. Knight, 8th Dist. Cuyahoga No. 109302, 2021-Ohio-3674, ¶ 47,
{¶ 56} In the instant case, White‘s trial counsel acknowledged that he did not object to the trace evidence expert‘s testimony, because he was surprised by it and not prepared to cross-examine the witness as a result. While there is evidence in the record that counsel should have been aware of the issues with the trace evidence report before trial, we need not determine the first prong, since White has failed to establish that he was prejudiced by counsel‘s performance. This case was tried to the bench, and the trial court specifically noted that its verdict was not based on the inadmissible evidence. Additionally, the trial court is presumed not to have been impacted by the admission of improper evidence or the prosecution‘s continued emphasis on it unless the record affirmatively demonstrates otherwise. Rock, 8th Dist. Cuyahoga No. 105566, 2018-Ohio-1084, at ¶ 18, citing Waters, 8th Dist. Cuyahoga No. 87431, 2006-Ohio-4895, at ¶ 11, citing Eley, 77 Ohio St.3d at 180-181, 672 N.E.2d 640.
{¶ 57} Based on the foregoing, White has failed to establish that he was prejudiced by his counsel‘s conduct. Therefore, White has failed to establish that he received ineffective assistance of counsel.
Motion for New Trial
{¶ 59} Finally, in his third assignment of error and in his supplemental brief, White argues that the trial court erred in denying his motion for new trial. Specifically, White argues that it was error for the trial court to deny his motion without a hearing and to proceed after his appointed counsel withdrew from the case. Further, White argues that the trial court did not give due consideration to the state‘s
{¶ 60} With respect to White‘s argument that the trial court was required to hold a hearing, we disagree. Courts have consistently found that the decision to hold a hearing on a motion for new trial lies within the discretion of the trial court. Furthermore,
{¶ 61} White also argues that the trial court erred in considering the motions when White was no longer represented. However, the trial court did not have a hearing after counsel was excused. At no time was White without legal counsel during any significant stages of the proceedings. The court‘s decision was based upon the written motions. Moreover, White has not argued that the motion for new
{¶ 62} The trial court, therefore, did not err in deciding the issue on the motions.
{¶ 63} White raised several issues in his motion for new trial below, however, he has limited his argument on appeal to whether the
{¶ 64} In the instant case, White‘s request for a new trial falls under
(A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: * * *
(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the state;
(3) Accident or surprise which ordinary prudence could not have guarded against; * * *.
{¶ 66} As previously noted, White has failed to establish prosecutorial misconduct, therefore we need not address the second prong of the test. White has therefore failed to establish that he was entitled to a new trial under
{¶ 67} White further alleges that he was blindsided due to the
{¶ 68} However, courts have found that a trial court acts well within its discretion to deny a motion for new trial under
{¶ 69} Accordingly, we overrule the third assignment of error.
{¶ 70} 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 out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
EMANUELLA D. GROVES, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY