STATE OF OHIO, PLAINTIFF-APPELLEE, v. DEVONNE J. WILSON, DEFENDANT-APPELLANT.
CASE NO. 1-09-53
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
June 28, 2010
[Cite as State v. Wilson, 2010-Ohio-2947.]
WILLAMOWSKI, P.J.
Appeal from Allen County Common Pleas Court, Trial Court No. CR 2009 0101. Judgment Affirmed.
APPEARANCES:
Michael J. Short, for Appellant
Jana E. Emerick, for Appellee
{1} Defendant-Appellant, Devonne Wilson, (“Wilson“), appeals the judgment of the Allen County Court of Common Pleas finding him guilty of two counts of aggravated robbery. Wilson contends that he was denied effective assistance of counsel; that the trial court should have allowed his appointed counsel to withdraw; and that the jury verdict forms contained an error. For the reasons set forth below, the judgment is affirmed.
{2} On May 9, 2009, two masked men robbed a Chase Bank at gunpoint, escaping with almost three thousand dollars. Eleven days later, three masked men robbed a Superior Federal Credit Union branch, brandishing guns and ordering the customers to get down on the ground. The robbers escaped with nearly sixteen thousand dollars in cash but, as they were leaving, they were spotted by two customers outside the bank who realized what was happening and attempted to pursue the robbers. The customers phоned the police and provided the license plate number of the escape vehicle.
{3} The police found the abandoned vehicle nearby and were able to trace the rented car to Wilson‘s girlfriend. The girlfriend originally stated the vehicle had been stolen. However, after further questioning, she admitted that her car had not been stolen, but that Wilson had been driving it all day and had ordered her to report it as stolen. The police also searched Wilson‘s mother‘s
{4} The police were able to apprehend Wilson and the others implicated in the two robberies. On May 14, 2009, the Allen County Grand Jury returned a five count indictment charging Wilson with two counts of aggravated robbery, two counts of abduction, and one count of kidnapping, all with a firearm specification. Wilson entered a plea of not guilty and the trial was set for August 31, 2009. Prior to trial, the prosecution dismissed three of the counts, leaving the two aggravated robbery offenses, in violation of
{5} On August 13, 2009, Wilson‘s court-appointed counsel filed a motion asking for the trial court‘s permission to withdraw from the case due to “a serious conflict of personalities.” After a hearing on the matter, the trial court denied the motion.
{6} On August 24, 2009, defense counsel filed a nоtice of alibi, which included the names of three potential alibi witnesses who would allegedly testify that Wilson was somewhere else at the time of the robberies. The State objected to their testimony, claiming that it had not received the alibi notice until August 27, 2009, in violation of
{7} At trial, the jury heard testimony from numerous witnesses, including Wilson‘s girlfriend, Raelishia McWay, who testified in detail how Wilson had gone to check out the bank beforehand; had left with his gun on the day of the robbery and returned to the apartment with a large amount of money in a plastic bag matching the one used in the robbery; that he had borrowed the getaway car used in the second robbery and then instructed her to report it stolen; that Wilson‘s cell phone number matched that of the phone found in that car; that Wilson‘s gun was the same as the gun used in both of the robberies; and that he had admitted to her that he had robbed the banks.
{8} Raylon Hardy testified that he had assisted Wilson and Maurice Graves in robbing the Superior Federal Credit Union; that each of them was assigned a role in the robbery; that Graves was to hop the counter just as he had done the “last time” (referring to the robbery of the Chase Bank); that Gravеs had borrowed Hardy‘s gun to use in the Chase robbery; and that the three of them, plus
{9} Phone records and computer records further corroborated the communication between the participants concerning the robberies, and police officers testified to finding Wilson‘s cell phone in the getaway car and to finding the guns and other evidence at Wilson‘s mother‘s home. After a three-day trial, the jurors found Wilson guilty of both counts of aggravated robbery, with the firearm specifications.
{10} On September 8, 2009, the trial court sentenced Wilson to ten years in prison for each of the two robberies, which were first-degree felonies, and three years for each of the firearm specifications, with all sentences to be served consecutively, for a total of twenty-six years in prison. It is from this judgmеnt that Wilson appeals, raising the following three assignments of error for our review.
First Assignment of Error
The Defendant was denied effective assistance of Counsel.
Second Assignment of Error
The trial court erred in not permitting the withdraw[al] of court appointed counsel.
Third Assignment of Error
The trial court erred in providing an erroneous verdict form to the jury.
{12} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306, 2001-Ohio-191, 750 N.E.2d 148, citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Moreover, “[j]udicial scrutiny of counsel‘s performance is to be highly deferential, and reviewing courts must refrain from second-guessing the strategic decisions of trial counsel.” State v. Sallie, 81 Ohio St.3d 673, 674, 1998-Ohio-343, 693 N.E.2d 267. “To justify a finding of ineffective assistance of counsel, the appellant must overcome a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. In
{13} Wilson claims that his attorney made errors that resulted in the exclusion of the testimony of witnesses whom he wished to call at trial in an effort to establish an alibi. Although the notice of alibi was not filed until a week before the trial, the record reflects that Wilson did not provide defense counsel with the names until only a week prior to his filing the notice of alibi. Furthermore, there had been a strong difference of opinion between counsel and his client as to whether or not an alibi should be filed. (Trial Tr., pp. 5-6.) Defense counsel issued subpoenas for the witnesses to appear and he instructed the witnesses to appear to meet with the prosecutor at the designated times. There was some discussion on the record that the witnesses had been at the courthouse, but did not stay to meet with the prosecutors.
{14} As noted above, it was Wilson himself who fаiled to express a wish to present alibi witnesses or provide the names of those witnesses to defense counsel until close to trial, despite the fact that the crimes had occurred in March
{15} Based on the above, and the totality of the record showing counsel‘s diligent representation, we do not find that counsel‘s performance was deficient or unreasonable under the circumstances. Wilson‘s first assignment of error is overruled.
{16} In his second assignmеnt of error, Wilson maintains that the trial court erred when it denied defense counsel‘s motion to withdraw. At the hearing on the motion, defense counsel indicated that there was a “strong personality
{17} The Sixth Amendment right to counsel does not guarantee a defendant the right to counsel of his choosing, and there must be good cause to justify a substitution of counsel. State v. Murphy, 91 Ohio St.3d 516, 523, 2001-Ohio-112, 747 N.E.2d 765. In order to remove a court-appointed attorney from a case, there must be “a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant‘s right to effective assistance of counsel.” State v. Hennes, 79 Ohio St.3d 53, 65, 1997-Ohio-405, 679 N.E.2d 686, quoting State v. Coleman (1988), 37 Ohio St.3d 286, 525 N.E.2d 792, paragraph four of the syllabus. The Sixth Amendment does not guarantee “rapport” or a “meaningful relationship” between client and counsel. State v. Hennes, supra, citing Morris v. Slappy (1983), 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610, 621. The decision not to remove court-appointed counsel is reviewed under an abuse of discretion standard. Murphy, 91 Ohio St.3d at 523.
{18} At the hearing on defense counsel‘s motion to withdraw, the trial court did attempt to make further inquiry into the reasons behind the motion, but Wilson did not take the opportunity to elaborate. Defense counsel had stated “my
The Court: Mr. Wilson, what do you have to say about this?
Mr. Wilson: I agree with him.
The Court: Is that all you have to say?
Mr. Wilson: Yes.
(Id., at p. 2.) The trial court concluded that the since the only issue before the court was a personality conflict, that reason did not warrant a change in counsel according to law, citing Morris v. Slappy, and State v. Hennes, supra. The trial court also observed that in order to replace counsel because of a conflict, there must be an actual conflict of interest, not merely a personality conflict. Hennes, 79 Ohio St.3d at 65, citing Strickland v. Washington, supra. Furthermore, there already had been months of discovery, motions, hearings, and trial preparation, and the trial was scheduled to commence within two weeks.
{19} Based on the above, thе trial court did not abuse its discretion in denying counsel‘s motion to withdraw. Wilson‘s second assignment of error is overruled.
{21} The State acknowledges that the wording of the verdict forms could have been more precisely crafted so as to avoid the issue raised here. However, the State contends that the wording of the verdict forms does not amount to reversible error, particularly when considered with the instructions in their entirety that were given to the jury before their deliberations.
{22} In most cases, when a defendant is represented by counsel and is tried by an impartial adjudicator, there is a presumption that any trial errors are not structural errors, but are subject to
In Arizona v. Fulminante (1991), 499 U.S. 279, 306-312, 111 S.Ct. 1246, 113 L.Ed.2d 302, the United States Supreme Court denominated the two types of constitutional errors that may occur in the course of a criminal proceeding “trial errors,” which are reviewable for harmless error, and “structural errors,” which are per se cause for reversal. *** “Trial error” is “error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” *** “Structural errors,” on the other hand, “defy analysis by ‘harmless error’ standards” because they “affect[ ] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.” [Fulminante] at 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. Consequently, a structural error mandates a finding of “per se prejudice.”
{23} Both the United States Supreme Court and the Supreme Court of Ohio have rejected the concept that structural error exists in every situation in which even a serious or a constitutional error has occurred. See State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, 18. In fact, the United States Supreme Court and Ohio courts have found structural errors warranting
{24} Wilson argues that an “incorrect reasonable doubt instruction” is one of the limited class of cases which “always requires reversal of the conviction” because it constitutes a structural error, citing to Sullivan v. Louisiana (1993), 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182. However, we find that the incorrect reasonable doubt instruction in Sullivan involved an entirely different issue than the issue that is before us in this case. Sullivan involved a death penalty appeal in which the definition of “reasonable doubt” was identical to one previously held unconstitutional. In Sullivan, because the essential definition of “reasonable doubt” upon which the jury based its decision was wrong, there could be no factual findings made by the jury beyond a reasonable doubt upon which an appellate court could base a harmless-error analysis. Id. at 2082. It would be tantamount to a jury determining that the defendant was probably guilty, and then leaving it up to the judge to determine whether he was guilty beyond a reasonable
{25} A review of the record in Wilson‘s case reveals that the jury was repeatedly instructed that it was mandatory that the defendant be found not guilty unless the State had proven the elements of the crimes beyond a reasonable doubt. None of the instructions implied that Wilson had any burden of proof as to his innocence. To the contrary, the jury was specifically instructed that the defendant was not required to prove his innocence beyond a reasonable doubt. Specifically, the jury was instructed as follows:
The defendant is presumed innocent until his guilt is established beyond a reasonable doubt. The defendant must be acquitted unless the state produces evidence, which convinces you, beyond a reasonable doubt, of every essential element of the crime charged in the indictment.
The defendant in a criminal case is not required to present any evidence, and if he chooses to presеnt evidence, such evidence need not convince you beyond a reasonable doubt of his innocence. Rather it need only raise a reasonable doubt as to his guilt. If, after considering the evidence as a whole you have reasonable doubt as to the defendant‘s guilt, you must acquit him.
(Trial Tr., pp. 506-07, emphasis added.) The trial court then defined “reasonable doubt” for the jury, and further instructed that:
If, after a full and impartial consideration of all the evidence, you are firmly convinced of the truth of the charge, the state has proved its case beyond a reasonable doubt.
If you are not firmly convinced of the truth of the charge or charges, you must find the defendant not guilty.
(Trial Tr., p. 507.) The trial court gave additional instructions relating to the case and further instructed the jury that before the jury could find the defendant guilty, it must find beyond a reasonable doubt that Wilson committed each element of the offense, which the trial court then specified, and further instructed:
If you find as to Count 1 – if you find the state has proved, beyond a reasonable doubt, all the essential elements of aggravated robbery, your verdict must by guilty of aggravated robbery.
If you find the state has failed to prove, beyond a reasonable doubt any one of the essential elements of aggravated robbery, your verdict must be not guilty of aggravated robbery as charged.
(Trial Tr., pp. 512-16.) The trial court then gave an identical instruction as to the second count, except for modifying the date as appropriate. Finally, the jury was instructed that “[i]t is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings, and to render your verdict accordingly“. (Trial Tr., p. 524.)
{26} After reviewing the record, we conclude that the instructions in this case did not render the trial so fundamentally unfair that it could not be a reliable vehicle for the determination of the defendant‘s guilt or innocence. See Rose v. Clark, 478 U.S. at 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460. This case did not rise to a violation of a fundamental constitutional right that would lead to the kind
{27} In a similar case reviewed by the Eleventh District Court of Appeals, an almost identical jury form was used and the reviewing court did not find that the error rose to a level requiring reversal. See State v. Schlee, 11th Dist. No. 1004-L-070, 2005-Ohio-5117, 14. Although the appellate court in Schlee reviewed the jury instruction under a plain error standard, we find their conclusion instructive.
Accordingly, while the jury verdict form itself was flawed, when taken as а whole, the jury instructions were not so tainted as to rise to the level of plain error. The trial court‘s other instructions limited any potential prejudice. There was overwhelming evidence of appellant‘s guilt presented at trial so, but for the flaw in the jury verdict form this court can not conclude that the outcome of the trial would have been different.
Id.
{28} Likewise, in the case before us, in light of the overall instructions of law provided to the jury and also in light of the overwhelming evidence presented
{29} Therefore, having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, J., concurs.
/jnc
ROGERS, J., concurs in part, dissents in part.
{30} I concur fully with the majority‘s disposition of the first and second assignments of error; however, I respectfully dissent from the majority‘s disposition of the third assignment of error. As stated in the majority opinion, the jury verdict form instructed that, to find the defendant “not guilty,” the jury must find him not guilty “beyond a reasonable doubt.” Unlike the majority, I would find that this error in the jury verdict form amounted to a structural error not subject to harmless error analysis. I agree with the majority‘s finding that this factual scenario differs from that in Sullivan v. Louisiana (1993), 508 U.S. 275, in that it did not contain a Sixth Amendment defect; however, I believe that the form was still constitutionally deficient because it did not comport with the Fifth Amendment requirements of presumption of innocence and that a guilty verdict
{31} It is an acceptable practice to use a single verdict form which simply says:
We, the jury, find the defendant, (insert name of defendant), (*) __________________ of (insert name of offense and section number4).
(*) Insert in ink: “Guilty” or “Not Guilty.”
OJI CR 425.33, Verdict.
{32} I believe that a better practice would be to provide two verdict forms for each offense presented to the jury for consideration.
{33} One to say:
We, the jury, find the defendant, (insert name of defendant), guilty beyond a reasоnable doubt of (insert name of offense and section number).
We, the jury, find the defendant, (insert name of defendant), not guilty of (insert name of offense and section number).