State v. YettsState v. Yetts
JUDGMENT:
Affirmed.
Atty. Jane M. Hanlin, Jefferson County Prosecutor and Atty. Samuel A. Pate, Assistant Prosecuting Attorney, Jefferson County Justice Center, 16001 State Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee.
Atty. Eric M. Reszke, Suite 810, Sinclair Building, Steubenville, Ohio 43952, for Defendant-Appellant.
WAITE, P.J.
Factual and Procedural History
{¶2} On June 14, 2017, the Jefferson County Drug Task Force used two confidential informants to purchase cocaine from Appellant. At the time of the transaction, Appellant was sitting in his vehicle in the parking lot outside of his apartment. The drug task force had in place an established protocol for controlled drug buys. Detective Tom Ellis (“Det. Ellis“) of the task force testified that the protocol was followed in this buy. First, a telephone call was made by an informant requesting he meet with Appellant so he could purchase drugs - $40 worth of cocaine. This call was recorded by the task force. At the end of the recording, Det. Ellis noted on the recording the date and time; the name of Appellant; Appellant‘s telephone number; the type of drug being purchased and the dollar amount of the buy. After the buy was set up, Confidential Informant #1 was fitted with an audio and video recording device. Confidential Informant #2 was not. Det. Ellis was stationed in a vehicle across the street from Appellant‘s apartment where the sale took place and took photographs of the transaction. A review of the video reflects that Det.
{¶3} On July 20, 2017, the same two confidential informants arranged a second purchase of cocaine from Appellant at his residence at 730 N. Seventh Street, Apartment 212, Steubenville, Ohio. As with the June 14th buy, a recorded telephone call was made to set up the purchase. After the call, Confidential Informant #1 was again wired with an audio/video device and Confidential Informant #2 was not. The buy is memorialized in three digital video files, each approximately ten minutes in length. A review of the first video file for this buy begins with a short introductory statement by Det. Ellis, reflecting the date and time, and that the buy was for $50 of cocaine from Appellant at his residence in Steubenville. The remainder of this file shows the two confidential informants driving to Appellant‘s apartment building. The second video file begins with the informants exiting their vehicle and standing outside of it awaiting Appellant. The number “730” can clearly be seen on the side of the building, which confirms Appellant‘s address of 730 North Seventh Street in Steubenville. The next six minutes of video is silent and the camera is
{¶4} Later in the day, Det. Ellis drafted an affidavit in support of a search warrant for Appellant‘s residence. In his affidavit, Det. Ellis cites, among other information, the following as probable cause for the warrant:
4. Confidential informant #1 was fitted with an electronic audio and video recording device and provided with prerecorded funds.
5. The confidential informants drove to 730 North Seventh Street in Steubenville, Ohio and parked their vehicle. A short time later Yetts arrived at 730 North Seventh Street driving a maroon Ford Expedition. Yetts exited the vehicle and met with both confidential informants. Both confidential informants and Yetts entered 730 North Seventh Street. Confidential informant #2 and Yetts entered the elevator and went to the second floor of the apartment building. Confidential informant #2 and Yetts exited the elevator and entered apartment 212. While inside apartment 212, Yetts sold confidential informant #2 crack cocaine in exchange for the prerecorded currency. Following the drug transaction between Yetts and confidential informant #2 both exited apartment 212 and proceeded to the first floor of the apartment building and exited the building. Both confidential informants met with detectives at a prearranged location. There confidential informant #1 provided a detective with the purchased crack cocaine.
(State‘s Exh. 1.)
{¶5} The trial court issued the search warrant and it was executed that same day. During the search of the apartment, the officers seized two firearms which had both been reported stolen, approximately 53 grams of cocaine, a digital scale, and a piece of mail addressed to Appellant at that residence.
{¶6} On September 13, 2017, a Jefferson County Grand Jury returned a seven count indictment against Appellant. Count 1 was for possession of cocaine, a fifth degree felony in violation of
{¶7} On January 19, 2018, an amended and superseding indicted was returned against Appellant which added a forfeiture specification to count 2, seeking forfeiture of Appellant‘s vehicle used during the June 14th buy.
{¶8} Appellant filed a motion to suppress on January 4, 2018 in which he sought to bar from trial all evidence obtained as a result of execution of the search warrant. He did not directly attack the confidential informants’ veracity. Instead, he contended that the state lacked probable cause for the warrant because there was no independent corroboration of the statements made by the confidential informants in regard to the buys. A hearing on the motion was held January 16, 2018. Det. Ellis was the only witness to testify at the suppression hearing. He outlined the protocol for controlled buys and discussed to what degree that protocol was followed in making the two buys in Appellant‘s case. No other witnesses testified. Importantly, Appellant never requested to have the identity of the confidential informants made known, nor did he file a motion seeking to
{¶9} The matter was set for a jury trial on January 23, 2018. The day before trial was to commence, at a pretrial hearing, Appellant requested that his appointed counsel be removed and new counsel be appointed. The state objected to the request. A lengthy colloquy occurred concerning Appellant‘s last minute request for new counsel. Appellant stated that he did not like the way counsel was handling his case. He explained that in his view, the text records from his cell phone were necessary to support his defense. As his phone had been seized during the search, he asked counsel to retrieve the records from the telephone company. Counsel had not done as Appellant requested. (1/22/18 Tr., p. 5.) The trial court informed Appellant that new counsel would not be appointed so close to trial. Appellant then made the request to represent himself. (1/22/18 Tr., p. 9.) The trial court discussed at length the problems and issues surrounding self-representation and indicated that it was not inclined to grant Appellant‘s request. Ultimately, the court admonished Appellant to think about it overnight, and told Appellant that if he still wished to represent himself he would be required to sign a waiver. (1/22/18 Tr., p. 12.)
{¶10} The record reflects that the following morning, the trial court again engaged in a discussion about the dangers of self-representation. Appellant insisted on representing himself. While the trial court cautioned against it, Appellant persisted and executed a written waiver. The trial court ultimately granted Appellant‘s request and
{¶11} The matter proceeded to trial that day. The jury found Appellant guilty on all counts. On January 29, 2018 a sentencing hearing was held. Appellant was sentenced to one year in prison each for counts 1, 2, 3, 4 and 7. He was sentenced to a term of eight years on count 5 and three years on count 6. The sentences on counts 5 and 6 were ordered to be served consecutively. The sentences for counts 1, 2, 3, 4 and 7 were ordered to be served concurrently to the other sentences for a total stated prison term of eleven years. Appellant filed this timely appeal.
ASSIGNMENT OF ERROR NO. 1
THE JURY VERDICT OF GUILTY TO ALL COUNTS OF THE INDICTMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶12} Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “Weight is not a question of mathematics, but depends on its effect in inducing belief.” (Emphasis deleted.) Id.
{¶13} When reviewing a manifest weight of the evidence argument, a reviewing court must examine the entire record, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. at 387, 389. Only in exceptional circumstances will a conviction
{¶14} Appellant argues his convictions are against the manifest weight of the evidence due to the state‘s failure to present evidence establishing all of the elements of his charged crimes. He contends the trial court erred in accepting the verdict of the jury as there was “no audio, video or photographic evidence that identified [Appellant] possessing and trafficking crack cocaine to anyone.” Since the informants did not testify at trial, Appellant argues that there was no “chain of custody linkage” from Appellant to the drug task force. (Appellant‘s Brief, p. 7.)
{¶15} Appellant‘s manifest weight argument is based solely on issues surrounding the confidential informants. Appellant asserts that at trial the state failed to demonstrate a link between Appellant and the charged offenses because it failed to provide testimony from the confidential informants. Appellant urges this was necessary largely because the informants failed to capture Appellant on audio or video making a sale of drugs during one of the controlled buys. An examination of the manifest weight of the evidence requires an examination of the evidence presented at trial. Thompkins, at 387, 389. However, in a case such as this where Appellant challenged the validity of the search warrant by filing a motion to suppress, the issue of the use of confidential informants to procure the warrant was required to be addressed at the time Appellant sought to suppress the evidence. State v. Truax, 7th Dist. No. 06 BE 66, 2007-Ohio-4993, ¶ 16;
{¶16} In Appellant‘s motion to suppress he argued that the search lacked probable cause because it “does not exist absent independent corroboration of the statements attributed to an unnamed ‘confidential informants.‘” (Motion to Suppress, p. 2.) Appellant contended that in order to ascertain whether the affidavit seeking the warrant was sufficiently supported, the trial court must rely on the veracity of the two informants. He claimed that the search warrant was not issued as “the result of information provided by the confidential informant but as a result of unsubstantiated police activity.” (Motion to Suppress, p. 3.) In essence, Appellant contended that the informants had no independent knowledge of Appellant‘s drug activity. Instead, the police, who had been targeting Appellant for some time, had coached the informants. (Motion to Suppress, p. 4.) Hence, while Appellant‘s motion was based entirely on a theory that could only be proved or disproved by testimony from the informants, at no time did Appellant request their identity be disclosed or that they be brought to testify.
{¶17} A motion for court ordered relief, “shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought.”
{¶18} The general rule in Ohio regarding disclosure of a confidential informant‘s identity is “that the identity of an informant must be revealed to a criminal defendant when the testimony * * * is vital to establishing an element of the crime or would be helpful or beneficial to the accused in preparing or making a defense to criminal charges.” State v. Williams, 4 Ohio St.3d 74, 77, 446 N.E.2d 779 (1983).
{¶19} This Court held in State v. Kelley, 179 Ohio App.3d 666, 2008-Ohio-6598, 903 N.E.2d 365 (7th Dist.2008), that the trial court did not err in failing to reveal the identity of a confidential informant because the informant‘s statement was not vital to establishing an element of the case and that the identity of the informant was not helpful in assisting
{¶20} At the suppression hearing in this matter, Det. Ellis testified regarding the protocol for buys, including recording the telephone call made to arrange the buy, supplying “marked” money, and having confidential informants wired to obtain audio and visual recordings. He testified that the protocol was followed for the June 14th buy and that he took photographs of the parking lot buy from across the street. (1/16/18 Tr., pp. 7-8.) He testified that he personally observed Appellant in his vehicle and selling the cocaine to the informants. (1/16/18 Tr., pp. 7-8.) At the conclusion of this buy, Det. Ellis testified that he met the informants at a separate location, who turned over the drugs purchased from Appellant.
{¶21} Det. Ellis also testified regarding the second buy on July 20th. He noted that initially the protocol was followed. (1/16/18 Tr., p. 10.) He admitted, however, that Confidential Informant #2, who was not wearing video or audio equipment, went up to Appellant‘s apartment and purchased $50 worth of cocaine. The informant who was wired did not participate in the actual buy. Det. Ellis met the informants at a separate location after the transaction concluded, where they turned over the drugs they said they purchased from Appellant. (1/16/18 Tr., p. 11.) Det. Ellis testified that based on the results of the buys, he prepared an affidavit to obtain a search warrant for Appellant‘s apartment. While his application seeking the search warrant was spurred by the July 20th buy, (1/16/18 Tr., p. 12), Det. Ellis testified that he
{¶22} On cross-examination, Det. Ellis confirmed that his basis for seeking the search warrant was the July 20th buy. (1/16/18 Tr., p. 15.) He also testified that the second transaction was not recorded and that he did not maintain visual contact with the confidential informants once they entered Appellant‘s apartment building. (1/16/18 Tr., p. 16.) Det. Ellis testified that after the buy, he retrieved the contraband from the informants at a separate location where they informed him that Confidential Informant #2 had purchased the drugs from Appellant. (1/16/18 Tr., p. 18.) The following exchange also occurred on cross-examination:
[APPELLANT‘S COUNSEL]: Well, what‘s the relationship between the two confidential informants?
[DET. ELLIS]: I‘m sorry?
THE COURT: Go ahead. You can ask him. We‘re not going to get too particular to the point where it might identify somebody.
[APPELLANT‘S COUNSEL]: Right and I don‘t want that.
(1/16/18 Tr., pp. 18-19.)
{¶23} It is apparent from this exchange that Appellant‘s counsel did not seek to have the identity of the confidential informants disclosed and, in fact, was careful not to do so while cross-examining Det. Ellis even though the purpose of the suppression motion
{¶24} Appellant now argues that his convictions are against the manifest weight of the evidence because the state failed at trial to provide testimony from the confidential informants and failed to present photographic evidence of the buys. Because he failed to timely raise this issue of the identity of the informants to the trial court, Appellant has forfeited the right to raise the issue on appeal. State v. Schindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994). Appellant has waived this issue, and any argument regarding validity of the search warrant based on the information provided by Det. Ellis regarding the controlled buys is also waived. The search undertaken pursuant to the warrant yielded the drugs and firearms found in Appellant‘s apartment. That contraband, taken in conjunction with the controlled buys, led to the charges and subsequent convictions of Appellant.
{¶25} Appellant was charged with trafficking, a violation of
{¶26} At trial, the state presented the testimony of Det. Ellis and of Detective Christopher Vinci, another drug task force detective who assisted in executing the search warrant. Det. Ellis testified about the manner in which the controlled buys were conducted and the details of how the June 14th and July 20th buys occurred. He testified that after the completion of both buys, drugs were recovered from the informants, who said they purchased the drugs from Appellant. A search warrant was obtained which led to the seizure of additional drugs and firearms from Appellant‘s residence. Det. Ellis also testified that the substance seized from Appellant‘s apartment tested positive for cocaine in a field test and that BCI confirmed, after additional testing, that the substance was cocaine.
{¶27} The tapes of the phone calls setting up the buys and the videos from the confidential informants of the two buys were played for the jury. As noted above, the videos do not reveal the details of the transactions, so Det. Ellis testified about what was occurring throughout the tapes, including when the informants arrived at the location, how the building was identified as Appellant‘s residence, and the manner in which Appellant‘s vehicle was identified.
{¶28} Det. Vinci testified about the execution of the search warrant and described where the firearms were found. (1/23/18 Tr., p. 114.) He testified that a check on the firearms was run through a national database. This revealed that both firearms had been reported stolen. The state offered the reports about the firearms into evidence.
{¶30} Based upon the evidence in the record, each element of each offense was proven at trial. We cannot conclude that Appellant‘s convictions were against the manifest weight of the evidence. Appellant‘s first assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SENTENCING THE DEFENDANT TO ELEVEN (11) YEARS IN PRISON.
{¶31} In his second assignment of error, Appellant contends the trial court erred in sentencing him to eleven years in prison. Pursuant to State v. Marcum, 146 Ohio St.3d 516, an appellate court is permitted to review a felony sentence to determine if it is contrary to law. Further, “an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.” Id.
{¶32} At the sentencing hearing on January 29, 2018, the trial court stated that it considered the principles and purposes of sentencing set forth in
{¶33} The court merged counts 1 and 2 and counts 3 and 4 for sentencing purposes. Counts 6 and 7 also merged for sentencing as they were related to the firearms recovered.
{¶34} Regarding consecutive sentencing, the trial court noted both at the sentencing hearing and in the judgment entry of sentence that consecutive sentences were not disproportionate to the seriousness of Appellant‘s conduct, addressed the danger Appellant poses to the public, and that the court sought to protect the public from future crime. (1/29/18 Tr., p. 11.); (2/5/18 J.E.).
{¶35} According to
[T]hat the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶36} Although the trial court initially indicated at the sentencing hearing that consecutive sentencing findings were not necessary because “that only kicks in when you exceed the maximum term of the biggest offense which we‘ve not done,” and noted “[y]ou‘re probably the nicest guy I ever sent to prison but you keep doing bad things,” the court ultimately sentenced Appellant to consecutive sentences. (1/29/18 Tr., p. 11.) While the trial court did not mention
{¶37} Appellant‘s second assignment of error lacks merit and is overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING THE STATE TO PRESENT THE DEFENDANT‘S PLEA OFFER LETTER TO THE JURY.
{¶38} In his third assignment of error Appellant contends the trial court erred in allowing the state to present to the jury the letter he wrote concerning a plea. Pursuant to
{¶39} As noted by the state,
{¶40} Appellant‘s third assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO APPOINT TRIAL COUNSEL FOR THE DEFENDANT.
{¶41} In his fourth assignment of error, Appellant contends the trial court erred in refusing to appoint new trial counsel. Appellant had been represented by counsel throughout the proceedings until the day before trial when he requested new counsel.
{¶42} An indigent defendant‘s right to counsel does not extend to an ability to select the counsel of defendant‘s choice and does not require that the appointed counsel develop “a meaningful relationship” with the defendant. State v. Blankenship, 102 Ohio App.3d 534, 558, 657 N.E.2d 559 (12th Dist.1995). Relevant grounds for determining when new counsel should be appointed exist only after “a showing of good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust result.” Id., citing State v. Pruitt, 18 Ohio App.3d 50, 57, 480 N.E.2d 499 (1984). The defendant bears the burden to demonstrate that new counsel is required. If the defendant alleges facts which, if true, would require relief and the appointment of new counsel, the trial court must inquire into the defendant‘s complaint and make that inquiry part of the record. State v. Deal, 17 Ohio St.2d 17, 20, 244 N.E.2d 742 (1969).
{¶44} The trial court had the duty to inquire on the record as to Appellant‘s concerns. Vague or general objections do not trigger a duty to investigate further. Deal, at 19. This record reveals the trial court inquired as to Appellant‘s decision to seek new counsel and a lengthy discussion was had on the record as to exactly why Appellant thought he needed new counsel. Appellant‘s stated concern about his telephone records was quickly dispensed with and Appellant admitted he simply desired new counsel or, in the alternative, he desired to represent himself. Such vague assertions one day before trial do not trigger the kind of concerns regarding representation set forth in Pruitt, supra. The decision to appoint new trial counsel rests within the sound discretion of the trial judge. State v. Dukes, 34 Ohio App.3d 263, 265, 518 N.E.2d 28 (8th Dist.1986). The facts in the instant case indicate the trial court properly inquired into Appellant‘s last minute request for new counsel. Appellant did not adequately demonstrate why new
{¶45} While Appellant does not raise error in the trial court granting his request to represent himself, this record does not reflect error in this regard. Once the trial court made it clear that no new counsel would be appointed on the eve of trial, Appellant then demanded his right to self-representation. The trial court fully apprised Appellant of the pitfalls involved in such an endeavor and engaged in a dialogue to determine whether Appellant fully understood what he was undertaking. Appellant was allowed a day to reflect and consider. The trial court‘s decision to grant Appellant‘s request is supported in the record, here.
{¶46} Appellant‘s fourth assignment of error is without merit and is overruled.
Conclusion
{¶47} Based on the foregoing, Appellant‘s first assignment of error contending his convictions were against the manifest weight of the evidence is without merit, as the state presented evidence that, if believed, supports his convictions. Appellant‘s second assignment of error regarding sentencing lacks merit, as the record demonstrates the trial court conducted an analysis of the factors relative to consecutive sentencing at the sentencing hearing and in the judgment entry of sentence. Appellant‘s third assignment of error regarding the admission of his letter into evidence is without merit because the letter did not run contrary to the prohibition found in
Donofrio, J., concurs.
D‘Apolito, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.