State v. Moore , 2021 Ohio 2128 ( 2021 )

[Cite as State v. Moore, 2021-Ohio-2128.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28969
:
v. : Trial Court Case No. 2018-CR-1292
:
JOHNNIE LEE MOORE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 25th day of June, 2021.
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MATHIAS H. HECK, JR. by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
JOHNNIE LEE MOORE, #A768-256, P.O. Box 740, London, Ohio 43140
Defendant-Appellant, Pro Se
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EPLEY, J.
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{¶ 1} Johnnie Lee Moore appeals from a judgment of the Montgomery County
Court of Common Pleas, which denied his petition for postconviction relief without a
hearing. For the following reasons, the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} In December 2019, Moore was convicted of aggravated vehicular homicide,
in violation of R.C. 2903.06(A)(1)(a) (proximate result of OVI). In his direct appeal, State
v. Moore, 2d Dist. Montgomery No. 28640, 2021-Ohio-1114, we detailed the evidence
from the suppression hearing relevant to Moore’s blood sample, and we summarize it
here.
{¶ 3} At approximately 7:14 p.m. on November 14, 2017, Moore was driving at a
speed of approximately 120 mph when he collided with the rear of another vehicle,
causing the death of the driver. His vehicle then crossed the center of the roadway, hit
a third vehicle head-on, and ended up in an embankment. Moore was seriously injured.
{¶ 4} Responding medics extricated Moore from his vehicle and placed him an
ambulance. Prior to his transport to the hospital, Officer Sherri Robinson checked on
Moore’s condition and noticed a moderate odor of alcohol emanating from him. The
officer also learned from Moore’s wife that Moore had been driving home from a bar.
Based on the collision, the odor of alcohol, and the fact that Moore had left a bar,
Robinson suspected that Moore had been driving under the influence of alcohol. She
followed the ambulance to the hospital to seek Moore’s consent for a blood sample.
{¶ 5} Robinson was unable to speak with Moore upon arrival at the hospital,
because Moore was taken for CAT scans and emergency treatment; hospital staff later
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informed Robinson that Moore had been sedated after his CAT scans due to his being
uncooperative. At 9:34 p.m., Robinson apprised her supervisor, Sergeant Joseph
McCrary, of the situation, and he told her that they needed to obtain a search warrant for
a blood sample from Moore. McCrary drove to the police station to begin preparing a
warrant. A search warrant ultimately was signed by a judge at 11:46 p.m. The warrant
permitted the drawing of Moore’s blood “any time day or night; as soon as possible (within
3 hours of operation of vehicle).”
{¶ 6} McCrary drove to the hospital with the signed warrant. While on the way,
he called Robinson and told her to inform medical staff that there was a search warrant
to obtain Moore’s blood sample. McCrary arrived at the hospital at 12:05 a.m. and gave
the search warrant to Robinson, who presented it to a phlebotomist. The phlebotomist
then used a standard “DUI kit” to obtain Moore’s blood sample. It is undisputed that
there was an approximate five-hour delay in taking Moore’s blood sample.
{¶ 7} On November 21, 2017, Brian Simons, a forensic toxicologist with the Miami
Valley Regional Crime Lab (MVRCL), performed an initial screen of Moore’s blood
sample. The screen was positive for ethanol at a concentration of .114, plus or minus
.011 gram per cent. One week later, on November 28, 2017, Simons used another
approved testing method to perform a confirmation analysis. The confirmation analysis
was positive for ethanol at a concentration of .117, plus or minus .011 gram per cent. All
of the data, including Simons’s data, was reviewed and used by forensic toxicologist
Kialee Bowles to author a report. Pursuant to MVRCL’s policy, the lower concentration
of .114, plus or minus .011 gram per cent, was reported.
{¶ 8} On April 27, 2018, Moore was indicted on two counts of aggravated vehicular
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homicide – one count in violation of R.C. 2903.06(A)(1)(a) (proximate result of OVI), a
felony of the second degree, and the other count in violation of R.C. 2903.06(A)(2)(a)
(recklessly), a felony of the third degree. Moore moved to suppress all evidence
obtained by the police, including the blood test results. He contended that the State
could not establish that his blood was drawn and tested pursuant to the requirements in
R.C. 4511.19(D) and Chapter 3701-53 of the Ohio Administrative Code. In a
supplemental motion to suppress filed on June 26, 2018, he raised three specific
violations: (1) his blood was not drawn within three hours of the automobile accident, (2)
his blood sample was not properly refrigerated, and (3) the chain of custody for the blood
sample was not maintained. Moore also claimed that the untimely drawing of his blood
was contrary to the search warrant and thus violated his Fourth Amendment rights.
{¶ 9} On June 28 and August 3, 2018, the trial court conducted hearings on
Moore’s motions to suppress related to the blood sample, during which it heard testimony
from Robinson, McCrary, the phlebotomist, and Simons. The parties submitted post-
hearing memoranda.
{¶ 10} On April 10, 2019, the trial court concluded that the approximate five-hour
delay in taking Moore’s blood did not require suppression. The court relied on State v.
Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, 875 N.E.2d 46, which held that “[a] blood
sample taken outside the time frame set out in R.C. 4511.19(D) is admissible to prove
that a person is under the influence of alcohol as proscribed by R.C. 4511.19(A)(1)(a) in
the prosecution for a violation of R.C. 2903.06, provided that the administrative
requirements of R.C. 4511.19(D) are substantially complied with and expert testimony is
offered.” Id. at syllabus (blood sample drawn approximately seven hours after accident
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was admissible).
{¶ 11} On May 23, 2019, the prosecutor sent an email to Matthew Juhascik of the
MVRCL, stating:
I have [an] Agg. Vehicular Homicide case that is set for trial in August. The
defendant is accused of driving while intoxicated and striking and killing a
lady (while she was driving) in Trotwood. Unfortunately, the police didn’t
get the search warrant until outside the 3 hour limit. We had a mts [motion
to suppress] and the Court will allow the BAC [blood alcohol concentration]
results to come into evidence but only if we have “expert” testimony to
accompany it on how it would affect the body. Kialee Bowles did the
testing on his blood. He had a 0.114 gm% bac. (her report dated 12-13-
17)[.] I know you can’t give specifics on how this level of alcohol would
effect [sic] Johnnie Moore personally but would you be willing to do a report
for us like you have in the past about generally what you would expect to
see how alcohol effects [sic] the body at this limit. We would greatly
appreciate it. This defendant has already killed one person before this
incident and we really need to get him off the streets. Let me know if you
need anything further. Thanks a lot.
(Emphasis added.) The same day, Juhascik replied that Bowles could provide an expert
report, and that he would review the report before she issued it. Juhascik copied Bowles
on his response to the prosecutor. The email response did not acknowledge the
potentially offending language.
{¶ 12} On May 31, Bowles emailed a report and her curriculum vitae to the
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prosecutor, who forwarded the email to defense counsel. The report, dated May 29,
2019, stated that she had been asked to describe “the possible effects of ethanol for a
subject with a measured blood concentration of 0.114 gm%.” Bowles reported that, “[f]or
most people, there are states of ethanol’s influence that they could be experiencing at a
blood concentration of 0.114 gm%” – euphoria and excitement, which she described.
The report did not address how alcohol would affect Moore personally.
{¶ 13} The matter then proceeded to a jury trial in November 2019, during which
Bowles testified, among several other witnesses. Bowles described her education and
experience in forensic toxicology, including the specific training she received regarding
the effects of alcohol on the human body. She testified that she authored the report
following her review of Simons’s testing, and she described how .114 grams per milliliter
of alcohol affects the average person. Bowles acknowledged that she could not offer
specifics about how that level of alcohol may have affected Moore on November 14, 2017.
Defense counsel’s cross-examination of Bowles emphasized that she did not know
whether Moore was impaired on November 14, 2017, and that alcohol could have
different effects depending on individual’s specific physical characteristics. On redirect
examination, Bowles expanded on her assessment that she would not have expected
Moore’s BAC to be lower if his blood had been drawn earlier.
{¶ 14} After deliberations, the jury found Moore guilty of both counts of aggravated
vehicular homicide. On December 12, 2019, the court merged the offenses and
sentenced Moore to a mandatory eight years in prison, suspended his driver’s license for
life, and ordered him to pay restitution of $4,337.07 and court costs. Moore appealed
from his conviction, challenging the trial court’s ruling on his motion to suppress. We
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recently held that the trial court did not err in overruling the motion to suppress and
affirmed the trial court’s judgment. Moore, 2d Dist. Montgomery No. 28640, 2021-Ohio-
1114.
{¶ 15} On October 1, 2020, while his direct appeal was pending, Moore filed a
petition for postconviction relief. Moore initially stated that his trial counsel acted
deficiently by failing to notify him of exculpatory evidence. In his supporting
memorandum, Moore asserted that the May 2019 email messages between the
prosecutor and MVRCL “show collusion by these two parties to withhold important facts
from the jury to my prejudice.” Moore asserted that the prosecutor’s May 23 email
inaccurately suggested to the crime lab that he was a “serial DUI killer” whom MVRCL
needed to help “get off the streets.” Moore emphasized that the prosecutor committed a
“serious sin of omission,” noting that the prior death involved neither an OVI, alcohol, nor
a vehicle.
{¶ 16} Moore’s petition further contended that the resultant MVRCL report and
blood test results were skewed in the State’s favor as a result, noting that the report did
not acknowledge other reasons why his BAC results may have been high and the report
provided “only a generalized evaluation as to how this BAC might have affected some
imaginary person.” Moore argued that “[d]ue process of law assumes that a trial is free
from any malfeasant act by any court officers,” and he claimed that the alleged conspiracy
between the prosecutor and MVRCL deprived him of due process.
{¶ 17} Four days after Moore filed his petition, the State moved for summary
judgment, asserting that all of Moore’s claims were barred by res judicata. The State
further asserted that Moore had provided “no affidavits or new evidence” to support his
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claim of collusion.
{¶ 18} On October 26, 2020, the trial court overruled Moore’s petition without a
hearing. Viewing Moore’s claim as one of ineffective assistance of trial counsel, the court
found that Moore could have raised his claim on direct appeal and, therefore, his claim
was barred by res judicata. Alternatively, the court found that, even if res judicata did
not apply, Moore’s argument was “utterly without merit.” The court reasoned:
First, Mr. Moore’s trial counsel cross examined the MVRCL forensic
toxicologist, Kialee Bowles (“Ms. Bowles”), at trial. It would have been
highly prejudicial to Mr. Moore had his trial attorney suggested to the jury
that he had killed someone before in an attempt to somehow prove,
somehow, that Ms. Bowles was biased against him. Further, Ms. Bowles
admitted at trial that she did not know the exact effects of ethanol on Mr.
Moore and was only testifying about the effects of ethanol on people
generally. The prosecutor’s subject e-mail is hardly exculpatory evidence
or, frankly, evidence of anything. It certainly does not even suggest
collusion between the State and Ms. Bowles, nor illustrate ineffective
assistance of trial counsel
{¶ 19} Moore appeals from the trial court’s judgment, claiming that the trial court
erred in overruling his petition for postconviction relief without a hearing.
II. Standard of Review for Petition for Postconviction Relief
{¶ 20} Under the postconviction relief statutes, any defendant who has been
convicted of a criminal offense and who claims to have experienced a denial or
infringement of his or her constitutional rights (federal or Ohio) may petition the trial court
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to vacate or set aside the judgment and sentence. R.C. 2953.21(A); e.g., State v. Martin,
2d Dist. Montgomery No. 27844, 2018-Ohio-3505, ¶ 9. A petition for postconviction relief
“is a means by which the petitioner may present constitutional issues to the court that
would otherwise be impossible to review because the evidence supporting those issues
is not contained in the record of the petitioner’s criminal conviction.” State v. Clark, 2017-
Ohio-120, 80 N.E.3d 1251, ¶ 14 (2d Dist.), quoting State v. Monroe, 2015-Ohio-844, 29
N.E.3d 391, ¶ 37 (10th Dist.). A postconviction proceeding is a “civil collateral attack on
a criminal judgment,” not an appeal from the criminal conviction. State v. Wells, 2d Dist.
Montgomery No. 22389, 2008-Ohio-4932, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d
279, 281, 714 N.E.2d 905 (1999).
{¶ 21} R.C. 2953.21(D) provides that, before granting a hearing on a petition for
postconviction relief, the trial court shall determine whether there are substantive grounds
for relief. The petitioner bears the initial burden of submitting evidentiary documents with
sufficient facts to demonstrate a constitutional deprivation, such as ineffective assistance
of counsel, that would merit a hearing. State v. Jackson, 64 Ohio St.2d 107, 111, 413
N.E.2d 819 (1980), syllabus; Martin at ¶ 10. Broad conclusory allegations are
insufficient, as a matter of law, to require a hearing. Id. A petition for postconviction
relief may be properly denied without a hearing where the petition, its supporting
evidence, and the record “do not demonstrate that petitioner set forth sufficient operative
facts to establish substantive grounds for relief.” Calhoun at paragraph two of the
syllabus; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51;
State v. Sellars, 2d Dist. Montgomery No. 28860, 2021-Ohio-1433, ¶ 13.
{¶ 22} We review a trial court’s denial of a petition for postconviction relief without
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a hearing for an abuse of discretion. State v. Clemmons, 2d Dist. Montgomery No.
28085, 2019-Ohio-2997, ¶ 18; State v. Harden, 2d Dist. Montgomery 23617, 2010-Ohio-
3343, ¶ 10. An abuse of discretion occurs when the trial court’s decision is
unreasonable, arbitrary, or unconscionable. State v. Turner, 2d Dist. Montgomery No.
27350, 2017-Ohio-4101, ¶ 5, citing State v. Jenkins, 2d Dist. Montgomery No. 27173,
2017-Ohio-1073, ¶ 10.
III. Review of the Trial Court’s Denial of Moore’s Petition
{¶ 23} Moore’s petition for postconviction relief raised claims of ineffective
assistance of counsel and a denial of due process. He primarily claimed a due process
violation due to “collusion” between the prosecutor and the crime lab, and he asserted
that Bowles’s supplemental report improperly focused on an “imaginary” person with his
BAC result, not whether he was intoxicated. He further claimed that his counsel
rendered ineffective assistance by failing to notify him of this “exculpatory evidence.”
{¶ 24} The State asserts that Moore’s claims are barred by res judicata, as found
by the trial court. “ ‘Res judicata’ means that a final decision has previously been made;
it serves to preclude a party who had his or her day in court from seeking a second hearing
on the same issue.” Martin at ¶ 12, citing State v. Saxon, 109 Ohio St.3d 176, 2006-
Ohio-1245, 846 N.E.2d 824, ¶ 18. Under the doctrine of res judicata, “any issue that
could have been raised on direct appeal,” but was not, is “not subject to review in
subsequent proceedings.” Saxon at ¶ 16.
{¶ 25} The State focuses on the fact that the admissibility of the blood sample
results was a central issue raised in the trial court. Moore had sought to suppress the
blood sample evidence in a multi-faceted motion to suppress, and the denial of his motion
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to suppress was the focus of his direct appeal. The State emphasizes that the parties
and the trial court knew that the blood draw occurred outside of the three-hour time
window. The State contends that “Moore’s argument must be barred by res judicata, as
he had this information at the time of the motion to suppress, the time of trial, and could
have, and did argue it, on direct appeal.”
{¶ 26} It is clear, as the State asserts, that Moore was aware of the untimeliness
of the blood draw, and his counsel had received both Simons’s blood test results and
Bowles’s report and supplemental report prior to trial. To the limited extent that Moore
asserts that Bowles should not have been able to testify about how an average person
(as opposed to Moore himself) would be affected with a BAC of .114, as a matter of law,
that claim is barred by res judicata. Moore could have objected to that testimony at trial
and challenged the admission of that testimony on direct appeal. Accordingly, this
argument is barred by res judicata.
{¶ 27} Moore’s petition for postconviction relief, however, focused mainly on the
May 23, 2019 email between the prosecutor and MVRCL and Bowles’s May 29, 2019
supplemental report, which he asserts demonstrates “collusion” between the State and
MVRCL to ensure the admissibility of the blood sample evidence and his eventual
conviction. (Collusion has been defined as a “secret agreement or cooperation
especially for an illegal or deceitful purpose.” https://www.merriam-webster.com/
dictionary/collusion). The pivotal question is whether Moore could have raised this
argument on direct appeal.
{¶ 28} It is well established that when a claim relies upon information outside the
record, the issue cannot be addressed on direct appeal. See, e.g., State v. Lawson,
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2020-Ohio-6852, 164 N.E.3d 1130, ¶ 106 (where a claim of lack of communication
between a defendant and trial counsel relies upon evidence outside of the record, it is
“not an issue we can review on direct appeal”); State v. Merrick, 2d Dist. Greene No.
2019-CA-29, 2020-Ohio-3744, ¶ 25 (defendant’s claim regarding his attorney’s conduct
“relies on matters outside the record and, consequently, is not properly raised on direct
appeal”).
{¶ 29} Here, it is unclear when defense counsel received a copy of the prosecutor’s
May 23, 2019 email. Regardless, even assuming that defense counsel received it during
the pendency of Moore’s case, that email was not in the record on direct appeal. It was
not used for cross-examination or otherwise mentioned at trial. Had Moore attempted to
raise a due process/collusion claim on direct appeal, we would have been compelled to
hold that such a claim was not cognizable on direct appeal as it relied on evidence outside
the record. Accordingly, Moore’s due process/collusion claim based on the May 23,
2019 email is not barred by res judicata.
{¶ 30} Turning to the merits of Moore’s petition, the trial court focused on Moore’s
claim of ineffective assistance of trial counsel. In its appellate brief, the State similarly
discussed defense counsel’s actions at trial. The State contends that Moore’s trial
counsel reasonably failed to cross-examine Bowles with the May 23 email, arguing that
“[i]t would have been highly prejudicial to Moore had his trial attorney suggest[ed] to the
jury that Moore killed someone before to prove that the forensic toxicologist was
prejudiced against him.” The State emphasizes that the toxicologist admitted that she
did not know the effects of alcohol on Moore personally, and that she was only testifying
about the general effects of alcohol on the average person.
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{¶ 31} We agree that evidence of Moore’s involvement in a prior death would have
been prejudicial to Moore, and counsel reasonably avoided making the jury aware of that
prior conduct. To the extent that Moore’s petition for postconviction relief claims that his
counsel rendered ineffective assistance at trial, the trial court reasonably concluded that
defense counsel employed a reasonable trial strategy, which we will not second-guess.
Moreover, to the extent that Moore argues that his counsel failed to make him aware of
the email, we agree that the email was not exculpatory and that there is no evidence that
counsel failed to make him aware of the email prior to trial.
{¶ 32} Moore’s petition primarily concerned “newly discovered evidence that
reveals a conspiracy by the Montgomery County Prosecutor's Office and the Miami Valley
Regional Crime Laboratory (MVRCL) to hide from this Court the facts of how testing my
blood for alcohol content after more than 4.5 hours after this incident in question took
place ma[y] be inaccurate, and, hence, is barred by O.R.C. 4511.19.” He expressly
stated that this “conspiracy” deprived him of due process of law. In short, Moore
contended that the State improperly influenced the forensic toxicologist to produce a
report that was more favorable to the State’s position than it otherwise would have been.
{¶ 33} Moore had the initial burden of submitting evidentiary documents with
sufficient facts to demonstrate a constitutional deprivation (in this case, the denial of due
process) that would merit a hearing. Moore’s “new evidence” took the form of the May
2019 emails between the prosecutor and MVRCL.
{¶ 34} Upon review of the May 2019 emails between the prosecutor and the crime
lab, we cannot conclude that the trial court abused its discretion in denying Moore’s
petition without a hearing. While Moore asserts that the prosecutor’s statements in the
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May 23 email biased the crime lab against him and encouraged the crime lab to help get
him “off the street,” there is nothing in the record to support that the prosecutor intended
or even realized that his email could be interpreted in this manner or that MVRCL
personnel interpreted the May 23 as such a request. The email reflects that the
prosecutor had asked for similar expert reports in the past, and the crime lab’s email
response demonstrated that Bowles could provide a supplemental report. There was no
indication in the crime lab’s response that the lab personnel interpreted the prosecutor’s
statements as anything other than an expression of the importance of receiving a
supplemental report for trial.
{¶ 35} Moreover, nothing in the record suggests that Bowles’s May 29, 2019 report
and her subsequent testimony was influenced, in any respect, by the statements
regarding Moore in the prosecutor’s May 23 email. Bowles’s report provided scientific
evidence about the effect of a particular blood alcohol concentration on an average
person, and Moore provided no evidence to suggest that her report and testimony were
scientifically inaccurate. Because Bowles had no contact with Moore and was not
provided information from which she could have potentially estimated the effect of a .114
gram per cent BAC on Moore personally, we find nothing to suggest that Bowles’s
reference to the effects on an average person was the result of collusion or otherwise
improper.
{¶ 36} Moore’s assignment of error is overruled.
IV. Conclusion
{¶ 37} The trial court did not error in denying Moore’s petition for postconviction
relief without a hearing. The trial court’s judgment will be affirmed.
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TUCKER, P. J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Johnnie Lee Moore
Hon. Steven K. Dankof