State v. WinsteadState v. Winstead
For Plaintiff-Appellee
GREGG MARX PROSECUTING ATTORNEY JOSHUA S. HORACEK ASSISTANT PROSECUTOR 239 West Main Street, Suite 101 Lancaster, Ohio 43130
For Defendant-Appellant
THOMAS S. GORDON Post Office Box 207 Pickerington, Ohio 43147
Wise, J.
{¶1}. Appellant Michael A. Winstead appeals his conviction, in the Court of Common Pleas, Fairfield County, for aggravated burglary and felonious assault. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2}. In 2013, Carey Nichols was in a romantic relationship with appellant. Tr. at 62. On or about July 26, 2013, Nichols ended the relationship with appellant, and she requested that he leave her alone. Id.
{¶3}. Two days later, on the afternoon of July 28, 2013, appellant sent a text to Nichols asking to come to her house, located on Washington Avenue in Lancaster, Ohio. Tr. at 64. Nichols lived there with Gerald Brunton, the father of her three children. She was trying to “work things out” with Brunton, including possibly getting married. Tr. at 68, 212. Appellant eventually walked to Nichols’ house, appearing intoxicated when he arrived. Nichols asked him to go home. Tr. at 64. Appellant left, but he continued to place unwanted texts and calls to Nichols. Tr. at 65-66.
{¶4}. Eventually, Ms. Nichols and Mr. Brunton went back inside their residence, and shortly thereafter, Robyn Saunders and Tonya Whipps arrived and hurriedly went into Nichols’ house. Tr. at 76, 213. They informed Nichols and Brunton that appellant was heading back to their residence, and that he had a butcher‘s knife. Id. Shortly thereafter, Nichols saw appellant walking through the front yard with a butcher knife in one hand and a beer in the other. Tr. at 77-79.
{¶5}. Nichols rushed to the then-open front door to secure it. Tr. at 80. She placed her body weight against the door as appellant started kicking the door, trying to get in. Id. Appellant was yelling threats, mostly directed at Brunton. He claimed he
{¶6}. Appellant then went to the side door and forcibly opened it in order to get into the house. Tr. p. 85. Appellant came through the doorway, “swinging his knife” at Brunton. In response, Brunton used a broom to fend off appellant‘s “slashing” motions. Tr. at 219-220. Once inside, appellant continued waving his knife at Brunton, who maintained his defense with the broom. Tr. at 86-88. Nichols noticed a police officer arriving, and told appellant to get out. Tr. at 224. Appellant yelled: “I don‘t give a fuck about no cops.” Tr. at 91-92. He then turned to walk out the door and stated that “it‘s time to die, he‘s going to shoot me.” Id.
{¶7}. Officer Alex Sinewe of the Lancaster Police Department was on patrol on the afternoon of July 28, 2013. He obtained a call from a dispatcher, who had heard “a female screaming and *** the words ‘Michael has a knife.’ ” Tr. at 247. Officer Sinewe responded to Nichols’ residence, and was on the scene very briefly when he observed appellant step out on the porch with a knife in his hand. Tr. at 249. Sinewe immediately drew his firearm, pointed it at appellant, and started yelling verbal commands to drop the knife. Id. Appellant did not comply, but instead came off the porch and walked towards Sinewe. Tr. at 249-250. He did not stop until he was “within five to six feet” of the officer. Id. Sinewe recalled that appellant “kept screaming at me just kill me, just shoot me ***.” Tr. at 250. During the standoff, appellant had one hand holding the butcher knife and the other holding a beer can, from which he continued to drink. Tr. at 253.
{¶9}. On August 2, 2013, the Fairfield County Grand Jury indicted appellant on one count of aggravated burglary, a felony of the first degree, and one count of felonious assault, a felony of the second degree.
{¶10}. A jury trial was conducted on November 19-20, 2013. After hearing the evidence, which included the testimony of Ms. Nichols, Mr. Brunton, Ms. Whipps, Ms. Saunders, Officer Sinewe, and Detective Thomas, the jury found appellant guilty on both counts as set forth in the indictment.
{¶11}. Following a sentencing hearing on November 27, 2013, appellant was sentenced to six years on each count, to be served consecutively.
{¶12}. On December 13, 2013, appellant filed a notice of appeal. He herein raises the following two Assignments of Error:
{¶14}. “II. THE TRIAL COURT ERRED BY NOT ALLOWING DEFENSE COUNSEL TO IMPEACH THE WITNESS’ TESTIMONY VIA A PRIOR CONVICTION PURSUANT TO OHIO RULES OF EVIDENCE RULE 609.”
I.
{¶15}. In his First Assignment of Error, appellant contends the trial court erred in declining to suppress or exclude an audio recording of a telephone call made by appellant from the jail. We disagree.
{¶16}.
{¶17}. In State v. Parson (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 487, 453 N.E.2d 689, the Ohio Supreme Court noted: “The court is not bound to exclude [nondisclosed discoverable] material at trial although it may do so at its option.” In Parson, the Court established three factors that should govern a trial court‘s exercise of
{¶18}. In addition, “[p]aragraph two of the syllabus in Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), provides that when deciding whether to impose a sanction, the court must impose the least severe sanction that is consistent with the purpose of the rules of discovery. The rule applies equally to discovery violations committed by the state or by a criminal defendant.” State v. Dillard, 4th Dist. Meigs No. 13CA9, 2014-Ohio-4974, ¶ 14, citing State v. Darmond, 135 Ohio St.3d 343, 2013–Ohio–966, 986 N.E.2d 971, syllabus.
{¶19}. The evidentiary item at issue in the case sub judice is a CD recording of a telephone call made by appellant to Nichols while he was being held at the jail. Just before the commencement of proceedings on the day of trial, appellant had filed a motion in limine to preclude the State from using several recordings of such phone calls, which had been disclosed to appellant‘s defense counsel a few days before the trial. The trial court heard from the attorneys on the case on the morning of trial, outside the presence of the jury. See Tr. at 14-30. Appellant‘s defense counsel sought to exclude the State‘s use of the CD recordings as evidence, but we note he did not request a continuance of the trial as a sanction. See Tr. at 28. It appears undisputed that the CD in question was sent to appellant‘s trial counsel by regular mail, arriving the Monday
{¶20}. The trial court made the following pre-trial ruling on the matter from the bench:
{¶21}. “The Court is required to attempt to serve the purposes of
{¶22}. Tr. at 28-29.
{¶23}. In regard to the three Parson factors, supra, we note Assistant Prosecutor Meade claimed that although the State was aware of the recordings and they were referenced in a prior hearing for purposes of setting bond, the “actual content” of the calls was not known until a staff investigator had listened to them on the Friday before trial as part of a group trial preparation in the office. See Tr. at 27. Meade also indicated that the State was “under the guns” upon realization that the trial commencement would have to be expedited due to looming speedy trial deadlines. Id.
{¶25}. Accordingly, we find no abuse of discretion under the circumstances in the trial court‘s remedy of directing the State to delay presentation of the phone call CD in question until the final phase of its case, in lieu of the more severe sanction of completely excluding the evidence. See State v. Curry, 5th Dist. Licking No. 99CA40, 1999 WL 770673 (stating “[w]hile we certainly do not encourage sluggish discovery tactics by any litigant, the trial court has discretion to determine what sanction is appropriate when the state fails to disclose discoverable material“).
{¶26}. Appellant‘s First Assignment of Error is therefore overruled.
II.
{¶27}. In his Second Assignment of Error, appellant contends the trial court erred in preventing defense counsel from impeaching the victim/witness, Ms. Nichols, via questioning her about a prior drug-related crime. We disagree.
{¶28}. The admission or exclusion of relevant evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343.
{¶29}. Appellant recites
{¶30}. “(A) * * * For the purpose of attacking the credibility of a witness:
{¶31}. “(1) subject to
{¶32}. “(2) notwithstanding
{¶33}. “(3) notwithstanding
{¶35}.
{¶37}. Appellant‘s Second Assignment of Error is therefore overruled.
{¶38}. For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Fairfield County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., concurs separately.
JWW/d 0323
{¶39} I concur in the majority‘s analysis and disposition of Appellant‘s first assignment of error.
{¶40} I further concur in the disposition of Appellant‘s second assignment of error. My only divergence from the majority‘s analysis is that I find the standard of review of the issue presented involves a legal question - not one involving discretion.
{¶41} That being said, I agree with the majority the trial court did not commit error in excluding the evidence.