State v. Morrissette ( 2018 )

[Cite as State v. Morrissette, 2018-Ohio-3917.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170426
TRIAL NO. B-1605788
Plaintiff-Appellee, :
O P I N I O N.
vs. :
JOSHUA MORRISSETTE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 28, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Law Office of John D. Hill, LLC, and John D. Hill, Jr., for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} After a jury trial, Joshua Morrissette was convicted of murder and
having weapons while under disability, based on the shooting death of Gregory “G
Baby” Tremble, and drug and weapons offenses, based on contraband the police
found on Morrissette when he was apprehended for Tremble’s murder six months
later. Morrissette now appeals, claiming that his murder conviction was against the
manifest weight of the evidence, and that all of his convictions must be reversed due
to misconduct by the prosecutor, an erroneous jury instruction on flight, defense
counsel’s deficient performance, and the cumulative effect of these alleged errors.
Because we find no reversible error in the proceedings below, we affirm.
Shooting Death of Gregory Tremble
{¶2} Tremble was shot around 4:45 p.m. on April 16, 2016, in front of his
sister Naicha’s apartment building located at the corner of Vine and Green Streets in
Cincinnati. Forensic evidence from the crime scene demonstrated that the shooting
began when Tremble was on the 1700 block of Vine Street and continued as Tremble
ran in a southwestern direction away from his shooter and to Green Street, where he
succumbed to the injuries sustained from nine gunshot wounds. The forensic
evidence also showed that the bullets were all fired from the same .40-caliber firearm
of an undetermined make and model. Although the police recovered 13 spent
casings at the scene and several bullets, the murder weapon was never recovered.
{¶3} Tremble was a known street-level drug dealer in the area. At the time
of his death, he had on his person a baggie of marijuana and three white “rocks”
wrapped in plastic that looked like illegal drugs, but tested negative for a drug of
abuse. The police did not recover any weapons on Tremble.
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Morrissette Identified as the suspect “Psycho”
{¶4} As part of the investigation, Detective Bill Hilbert of the Cincinnati
Police Department recovered surveillance video from several cameras set up in the
area, including footage from a “panning” camera focused on the 17oo block of Vine
Street. That camera showed the area in front of Naicha’s apartment and Bill’s
Supermarket next door. The footage captured at 4:44:50 showed a black man
wearing a short sleeved collared red shirt, a black baseball cap, and white athletic
shoes, who was reaching for something near his right hip while looking at and
walking towards Tremble. Tremble was standing close to where the police recovered
most of the spent casings at the crime scene. The camera panned away from the
scene before the shooting, but another camera showing people running from the area
indicated that the shooting had begun a few seconds after 4:45 p.m. Police cruisers
began arriving on the scene at 4:47 p.m.
{¶5} Detective Hilbert later showed the surveillance videos to Chenice
Miller who, at an earlier police interview, had implicated a black male she had seen
on the day of the shooting wearing a red shirt and a baseball cap and whom she had
known for several years by the name “Psycho.” Although the images on the
surveillance video were blurry, Miller identified the man in the short sleeved collared
red shirt with the black cap and white shoes as Psycho. At trial, she identified
Morrissette as that individual.
{¶6} According to Miller, shortly before the shooting, she and her
boyfriend Dante Cody had been with Morrissette and a tall black male wearing prom
attire at the apartment she and Cody shared on East McMicken Street, a few blocks
away from Vine and Green Streets. Morrissette, whose niece lived in the same
building, had washed their dog for $10. When Miller spoke with Morrissette during
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that time, he showed her and Cody a gun and said he was going to “confront”
Tremble, a.k.a. “G Baby.” Morrissette told them he was upset with Tremble because
Tremble had “robbed” someone, either Morrissette or his brother. Morrissette then
left the apartment with “Prom Boy,” later identified as Melvin Summers, to get
“weed.”
{¶7} In addition to identifying Morrissette as the man in the red shirt
captured by surveillance video at the crime scene on Vine Street just before the
shooting, Miller identified Morrissette as the individual captured by an East
McMicken Street surveillance camera that day. The first video showed the same man
in red exiting from the courtyard of her apartment building and heading in the
direction of the 1700 block of Vine Street at 4:40:38 with Summers. A later video
began at 4:46:10 and showed that same man in red walking back to her building
alone after the shooting and entering the courtyard of the building at 4:46:41. He
was ambling casually, with his hand at his waist and glancing repeatedly over his
shoulder in the direction of Vine Street. A CD containing these video sequences
Miller testified about was admitted as an exhibit at trial.
{¶8} Cody testified, consistent with Miller’s testimony, that on the day of
Tremble’s shooting, a man he knew as “Psycho” had been in their apartment,
beginning around 3 or 4 p.m., wearing a red “polo-type” shirt. Cody identified
Morrissette as Psycho, and stated that, after washing their dog in the courtyard of the
building, Morrissette had shown them a gun and indicated he was “looking for”
Tremble, a.k.a. “G Baby,” whom Morrissette believed had “robbed” his brother. Cody
took photographs of the gun—a .40-caliber Ruger pistol with an extended clip—using
his smart phone, and posted the photographs on his Facebook page. The police
printed the photographs, taken at 3:50 and 3:51 p.m., and they were admitted as
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exhibits at trial, along with a photograph Cody had taken at 4:31 p.m. of Morrissette’s
companion in prom attire.
{¶9} According to Cody, a few minutes before he heard gunshots,
Morrissette had taken the Ruger pistol and left the apartment with Summers to “get
some weed.” Shortly after hearing the gunshots, Cody encountered Morrissette in
the courtyard of the building as Morrissette was returning to his niece’s apartment.
At that time, Morrissette told him that he had shot Tremble.
Morrissette’s Flight, Concealment, and Apprehension
{¶10} Although Morrissette had become a suspect based on the police
investigation, including the interviews of Miller and Cody, the police could not find
him. Records from Morrissette’s former employer, the Society for the Prevention of
Cruelty to Animals, showed that Morrissette had last shown up for his job on April
15, 2016, the day before the shooting.
{¶11} The police learned that Morrissette had left town, but had returned to
the area in August 2016. The Fugitive Apprehension Unit tried several times to
apprehend him after a “secret” warrant for his arrest was issued in August 2016. The
police were not successful until October 5, 2016, when Morrissette was spotted as a
passenger in a vehicle. The driver followed an officer’s instruction to pull over, and
Morrissette cooperated by exiting from the vehicle and falling to his knees, allowing
an officer to handcuff him without incident. When Morrissette was searched, the
police found a loaded .40-caliber Glock pistol in a holster on his right hip and some
drugs in his pants pocket and sock. An extended magazine for the Glock was found
in the vehicle.
{¶12} Subsequent testing excluded the Glock recovered on Morrissette as
the firearm used to shoot Tremble. But the forensic firearms examiner could not rule
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out as the murder weapon the .40-caliber Ruger pistol that Miller and Cody had seen
Morrissette leave their apartment with minutes before the shooting.
Additional Evidence of Guilt
{¶13} Morrissette was ultimately indicted on eight counts, including the
aggravated murder of Tremble. While he was held in the justice center awaiting trial,
Morrissette made several incriminating statements in recorded phone calls that
Detective Hilbert had listened to. In some of these phone calls, Morrissette laughed
about how he had evaded apprehension by the police through various methods,
including once hiding in a tree after fleeing the police and, another time, putting
scented substances on his body to avoid alerting police canines that he knew were
searching for him.
{¶14} During other phone calls, Morrissette discussed his intention to
“plead insanity” as part of the “game,” calling it “the biggest break a mother*ucker
could push.” These statements referenced a prior conversation Morrissette had had
with Detective Hilbert, during which the detective had explained that Morrissette
could not “plead insanity” without admitting that he had shot Tremble. On another
call, Morrissette tried to disassociate himself from his nickname “Psycho.” The jail
call recordings were admitted into evidence at trial.
{¶15} In January 2017, about six months before Morrissette’s trial, Andre
Taylor, then an inmate at the Hamilton County Justice Center, contacted Detective
Hilbert and told him that he had seen a man he knew as “Psycho” shoot Tremble,
a.k.a. “G Baby,” on April 16. At trial, Taylor identified Morrissette as the shooter,
and recalled that at the time of the shooting, Tremble had looked like he was
reaching for something or pulling up his pants. Taylor stated that he had also seen
Morrissette before the shooting, early in the morning of April 16. At that time,
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Morrissette had shown him a .40-caliber handgun and indicated that he was having a
“dispute” with Tremble involving the sale of drugs. Morrissette was angry and said
that if Tremble did not pay him, he would shoot him.
{¶16} Taylor further testified that he had seen Morrissette early the next
morning. At that time, Morrissette had told him that he had shot Tremble and that
Tremble had been “reaching” for a gun. Morrissette also had asked for Taylor’s help
locating someone to sell his gun.
{¶17} Taylor explained that he was reluctant to come forward because he
had been shot five times after testifying in another case. He decided, however, that
“it was the right thing to do” for Tremble and his family. He admitted that he had
talked to Detective Hilbert about his own case, but made it clear that the state had
made “no promises” to obtain his cooperation.
{¶18} Two additional witnesses, Derrel Anderson and Addi Inman, testified
at trial that Morrissette had threatened to harm Tremble, a.k.a. “G Baby,” before the
shooting and had later admitted to shooting him. Anderson contacted Detective
Hilbert with information about the shooting in November 2016, when he was locked
up in the Hamilton County Justice Center on a “parole holder.” Anderson testified
that he had seen Morrissette, whom he knew as “Poppy,” around 4:00 p.m. at a park
on Vine Street about 20 minutes before the shooting. At that time, Morrissette, who
was dressed in black, told him he was going to “kill” Tremble, and Anderson
observed the outline of what appeared to be a “kind of long” gun tucked into
Morrissette’s pants. Anderson also testified that when he saw Morrissette in jail
after being locked up for a probation violation, Morrissette admitted that he had shot
Tremble.
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{¶19} Addi Inman was called as a witness by the court after being declared a
hostile witness for the state. She had contacted crime stoppers and had given
statements to Detective Hilbert implicating Morrissette at some point during the
investigation, but prior to trial she filed an affidavit with the court indicating that she
had been coerced and had no first-hand knowledge relating to Morrissette’s criminal
proceedings. Inman testified, however, that in April 2016, she had been living with
Morrissette’s fraternal twin brother, Josiah, who is the father of her children. She
recalled that a day or two before the shooting, Josiah and Morrissette had awakened
her when they angrily complained, after arriving home, about how Tremble had
shorted them $15 when they had purchased “weed” from him. Josiah had said he
wanted to “cripple” him, and Morrissette had pledged to “to box” him. After the
shooting, Morrissette admitted to her and Josiah, along with several others, that he
had shot and killed Tremble. Inman also testified that Morrissette left town after the
shooting.
{¶20} Tremble’s sister Naicha testified at trial, too, recalling that she had
been in her upstairs apartment on Vine Street at the time of the shooting. After
someone shouted that her brother had been shot, she had looked out her window to
the street below her and had seen three individuals, including a man wearing an
“orange” shirt. At trial, she identified that man as Morrissette.
{¶21} At the conclusion of the evidence, the trial court gave the jury an
instruction on flight, over the objection of defense counsel. Ultimately, the jury
acquitted Morrissette of aggravated murder, but found him guilty of murder and all
other counts, including the drug-and-weapons charges stemming from the date of
Morrissette’s arrest. The trial court merged some of the offenses and sentenced
Morrissette to an aggregate term of 27 years to life in prison.
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Assignments of Error
I. Weight-of-the-Evidence Claim
{¶22} In his first assignment of error, Morrissette challenges the weight of
the evidence upon which his murder conviction was based. In reviewing a challenge
to the weight of the evidence, we sit as the thirteenth juror. State v. Thompkins, 78
Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). We must review the entire record,
weigh the evidence, consider the credibility of the witnesses, and determine whether
the trier of fact clearly lost its way and created a manifest miscarriage of justice. Id.
{¶23} In support of his argument that his murder conviction must be
reversed, Morrissette contends that there was a dearth of tangible, physical evidence
connecting him to Tremble’s murder and that the witnesses’ testimony connecting
him to the murder lacked credibility. But our review of the record convinces us that
the evidence in support of guilt was overwhelming. Contrary to Morrissette’s
argument, the surveillance video footage showing him reaching for something at his
hip while looking at and walking towards the victim, in the exact area where the
shooting took place, seconds before the shooting, was substantial physical evidence
connecting him to the murder. And the inference from that footage was
corroborated by testimony from multiple credible witnesses.
{¶24} For instance, Taylor testified that he had seen Morrissette shoot
Tremble and that Morrissette had asked for help in getting rid of his gun after
admitting to shooting Tremble. Admittedly, Taylor had not stepped forward as an
eyewitness until he had been arrested on his own charges. But Taylor’s prior
experience as a witness adequately explained his reluctance to assist the police.
{¶25} Miller and Cody testified that Morrissette had been “looking for”
Tremble when he left their apartment with a gun compatible with the murder
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weapon minutes before Tremble was shot. And Cody further testified that
Morrissette had admitted to shooting Tremble when, as confirmed by the
surveillance video footage, Morrissette returned to Cody’s apartment building shortly
after the shooting.
{¶26} Other testimony supported a finding of guilt. Anderson and Inman
both testified that they had heard Morrissette threaten to kill Tremble and admit to
shooting him. Tremble’s sister Naicha identified Morrissette as the individual she
had seen at the crime scene immediately after the shooting. Finally, Morrissette’s
statements in his recorded phone calls from jail showed a consciousness of guilt. He
admitted that he had fled from and concealed himself from the police to avoid
apprehension, intended to feign insanity to avoid a long prison sentence for murder,
and had tried to distance himself from the nickname Psycho because he knew it
would be connected to the shooter.
{¶27} Admittedly, much of the evidence in support of guilt was
circumstantial. But circumstantial evidence inherently possesses the same probative
value as direct evidence. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991),
paragraph one of the syllabus.
{¶28} Moreover, the weight to be given the evidence and the credibility of
witnesses are primarily for the trier of fact. See State v. DeHass, 10 Ohio St. 2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. This is not an “ ‘exceptional
case in which the evidence weighs heavily against the conviction.’ ” Thompkins, 78
Ohio St. 3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). Consequently, we overrule the first assignment of
error.
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II. Prosecutorial-Misconduct Claim
{¶29} In his second assignment of error, Morrissette contends that he is
entitled to a new trial because of misconduct by the prosecutor. He takes issue with
the prosecutor’s use of his nickname Psycho throughout the trial and with some
comments the prosecutor made during closing argument.
{¶30} The test for prosecutorial misconduct is whether the prosecutor made
improper remarks at trial and, if so, whether those remarks prejudicially affected
substantial rights of the defendant. State v. Smith, 14 Ohio St. 3d 13, 14, 470 N.E.2d
883 (1984). Misconduct does not affect the defendant’s substantial rights unless it
denied the defendant a fair trial. See State v. Diar, 120 Ohio St. 3d 460, 2008-Ohio-
6266, 900 N.E.2d 565, ¶ 140; State v. LeMar, 95 Ohio St. 3d 181, 2002-Ohio-2128,
767 N.E.2d 166, ¶ 121; State v. Neeley, 143 Ohio App. 3d 606, 621, 758 N.E.2d 745
(1st Dist.2001). We will not deem a trial unfair if, in the context of the entire trial, it
appears clear beyond a reasonable doubt that the jury would have found the
defendant guilty even without the improper comments. LeMar at ¶ 121; Smith at 15.
{¶31} Although Morrissette argues that the prosecutor committed
misconduct, except where noted defense counsel failed to object and thus forfeited
all but plain error. See State v. Slagle, 65 Ohio St. 3d 597, 604, 605 N.E.2d 916
(1992). To prevail on plain-error review, Morrissette must establish that but for the
misconduct, the outcome of the trial clearly would have been otherwise. See Slagle
at 605; State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517 (1st Dist.), ¶ 75, citing
State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph two of the
syllabus.
{¶32} Repeated references to Morrissette as Psycho. We first address the
misconduct claim stemming from the repeated references to Morrissette as Psycho.
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It was well established at trial that Psycho was one of Morrissette’s nicknames. The
prosecutor referred to Morrissette as Psycho when questioning certain witnesses and
occasionally during opening statement and closing argument. According to
Morrissette, the prosecutor referred to him as Psycho at least 54 times and
additionally elicited responses from witnesses establishing the fact that he went by
that nickname. He contends these references were intended by the prosecutor to
“subtly” paint him as person prone to antisocial behavior.
{¶33} It is improper for a prosecutor to use a nickname for the purpose of
impugning the character of the defendant. State v. Gillard, 40 Ohio St. 3d 226, 230,
533 N.E.2d 272 (1988), abrogated on other grounds, State v. McGuire, 80 Ohio
St.3d 390, 686 N.E.2d 1112 (1997), cited in State v. McKelton, 148 Ohio St. 3d 261,
2016-Ohio-5735, 70 N.E.3d 508, ¶ 203. And, in general, an unnecessary use of a
disparaging nickname is improper. See State v. Lang, 129 Ohio St. 3d 512, 2011-
Ohio-4215, 954 N.E.2d 596, ¶ 262. But this misconduct does not result in plain error
if, when weighing the evidence of guilt against the significance of the reference to the
nickname, it is not clear that, had the nickname not been improperly used, the
outcome of the trial would have been different. See Gillard at 230; see generally
Simmons at ¶ 77 (Prosecutor’s improper and repeated reference to the defendant as
the “offender” in closing argument did not affect the outcome of the trial.).
{¶34} Here, the prosecutor at times needed to refer to Morrissette by his
nickname Psycho and to elicit responses establishing the nickname for purposes of
identification and clarity. For instance, several of the state’s witnesses only knew
Morrissette as Psycho, and the nickname was used to tie this testimony to the other
testimony incriminating Morrissette. The prosecutor also referenced the nickname
during closing argument when making a “consciousness of guilt” argument. This
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argument was based on Morrissette’s statement during a recorded phone
conversation directing the other caller who had referred to him as “Psycho” to stop
calling him by that name. Morrissette told her, “That’s what they want to hear, that’s
not my name. Everybody keep calling me that. That ain’t my name, that’s what they
want to hear.” Morrissette’s comments, when read in context, suggest that
Morrissette wanted to distance himself from that nickname because he knew
witnesses would identify the shooter by that name.
{¶35} The prosecutor used the nickname a few times when it was not
required for identification or clarification purposes, such as after a witness who only
knew Morrissette as Psycho had already confirmed Morrissette’s identity as the
defendant. This unnecessary use was improper, but it was not an overt attempt to
impugn Morrissette’s character and any impugning effect was negligible. At no point
did the prosecutor bring up the origin of the nickname or argue that the nickname
reflected on Morrissette’s character. After considering these facts and the state’s
overwhelming evidence of guilt, we conclude that the unnecessary use of the Psycho
nickname by the prosecutor was not outcome determinative and did not result in
plain error.
{¶36} Alleged misconduct during closing argument. Morrissette argues
the prosecutor committed multiple instances of misconduct during closing
argument. A prosecutor is entitled to a certain degree of latitude during summation,
and may comment at that time on reasonable inferences from the evidence. State v.
Smith, 14 Ohio St. 3d 13, 13, 470 N.E.2d 883 (1984); State v. Stephens, 24 Ohio St. 2d
76, 82, 263 N.E.2d 773 (1970). We review the state’s closing argument in its entirety
to determine whether the allegedly improper remarks were prejudicial. Slagle, 65
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Ohio St.3d at 607, 605 N.E.2d 916, citing State v. Moritz, 63 Ohio St. 3d 150, 157, 407
N.E.2d 1268 (1980).
{¶37} We first address Morrissette’s complaint that the prosecutor
improperly commented on statements he made during his jail calls indicating that he
would plead insanity so that he could be sent to a mental-health facility for a short
time instead of serving a long prison sentence. The record shows that in the opening
portion of closing argument, the prosecutor mentioned that Morrissette had said
some things during recorded jail calls that “[we]re not good for him.” The prosecutor
then stated:
You hear [Morrissette] talking [in his jail calls] about wanting to be
found not guilty by reason of insanity. To be found not guilty by
reason of insanity, you have to have committed the crime. To be found
not guilty—John Hinkley [sic] was found not guilty by reason of
insanity.
{¶38} Defense counsel objected by stating, “Your Honor, I don’t think there
is evidence.” The court instructed the prosecutor to “move on.” The prosecutor did
not mention Hinckley again, but again referenced Morrissette’s recorded statements
involving his intended insanity defense by reminding the jury, “Defendant was
stating he thinks this way, he can go to Summit. We learned during trial Summit is a
mental health facility in town, and he could be back out in 2021.”
{¶39} The state returned to this line of argument in the rebuttal portion of
its closing argument, when the prosecutor stated:
The next thing you have in your universe [of evidence] is these jail calls
where he talks about this insanity defense. That’s what it is. Insanity
defense is, I did it, but I was crazy. * * * I will plead insanity. I will do
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five or six years. I will get out of here. I will be sitting in Summit. It
will be a piece of cake.
{¶40} Defense counsel objected to this argument and claimed it was
improper because there was “no evidence or testimony or instruction from the court
about what insanity or insanity defenses were.” The court then instructed the jury,
“You have to take the law from me. This is closing argument. This is not evidence.
Ladies and gentleman, this jury will determine what the facts are and apply the law
to that.”
{¶41} The prosecutor then continued:
Are these the statements of an innocent man, I will plead insanity?
You can tell from the conversation he is trying to pull a fast one. I will
plead insanity. I will do five or six years. I will get out of here. I will
be sitting in Summit. It will be a piece of cake. That’s not innocence.
It is a subliminal admission of guilt.
{¶42} Morrissette contends the prosecutor’s comments transcended the
bounds of acceptable argument. Specifically, Morrissette argues the reference to
Hinckley, the “would-be assassin” of former President Ronald Reagan, was improper
and highly inflammatory. We agree that the reference to Hinckley, which defense
counsel objected to, was improper and the prosecutor should not have injected that
name into the trial. But we reject any possibility that the prosecutor’s fleeting
reference to the name denied Morrissette a fair trial. We conclude instead, in the
context of the entire closing argument and the other evidence at trial, that the
reference to Hinckley was harmless.
{¶43} Next, Morrissette contends these remarks on his plan to plead
insanity touched on the issue of punishment, an issue outside the province of the
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jury. The state argues that Morrissette’s statements about pursuing an insanity
defense were evidence of consciousness of guilt and, therefore, the prosecutor’s
statements were a fair comment on the evidence.
{¶44} “Questions of punishment have no place in the trial of guilt or
innocence,” State v. Pickens, 141 Ohio St. 3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶
138, and counsel should not comment on those matters. Here, the state was not
directly commenting on Morrissette’s punishment in this case, but was using
Morrissette’s own words to explain why the jury could infer a tacit admission of guilt
from Morrissette’s intent to feign insanity. Morrissette claims there was an improper
“subtext” to the state’s argument, that he “was a dangerous criminal who could
potentially be back on the streets in as few as five years if the jury didn’t do their civic
duty to convict him of murdering” Tremble. But Morrissette’s reading of the state’s
argument is a stretch. While we do not condone the prosecutor’s comments,
Morrissette did not object in the trial court on the ground that the prosecutor was
touching on punishment, and he has failed to demonstrate that these comments were
outcome determinative.
{¶45} Morrissette also attacks the prosecutor’s contention during the
rebuttal portion of closing argument that the state’s evidence was “completely
unrebutted,” claiming the prosecutor misrepresented the record and improperly
shifted the burden of proof. Morrissette contends the statement was “false” because
defense counsel’s cross-examination of the witnesses exposed “gaps and
inconsistencies” in the evidence and testimony offered by the state. But we conclude
that the prosecutor’s commentary on the evidence, when read in context, falls
squarely within the latitude afforded to counsel.
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{¶46} The prosecutor’s full argument on this issue was that inconsistencies
brought out by the defense were not material. Moreover, the prosecutor’s comment
was permissible comment on the “relative strength” of the state’s case, State v.
Ferguson, 5 Ohio St. 3d 160, 163, 450 N.E.2d 265 (1983), and in no way implied that
the state’s burden of proof had shifted to the defense. See State v. Collins, 89 Ohio
St.3d 524, 527, 733 N.E.2d 1118 (2000).
{¶47} Next we address Morrissette’s contention that the prosecutor
committed prejudicial misconduct by suggesting to the jury that the evidence
contained a “behavioral fingerprint” that tied Morrissette to Tremble’s murder. The
import of the state’s argument was that Morrissette’s possession of a .40-caliber
pistol with an extended magazine at the time of his arrest on October 5, 2016, was
indicative that Morrissette was the person who had shot Tremble with a .40-caliber
pistol with an extended magazine on April 16, 2016.
{¶48} We agree with Morrissette that this “behavioral fingerprint” argument
was improper, as the record did not contain the requisite type of evidence to support
the proof-of-identity argument suggested by the prosecutor. See State v. Echols, 128
Ohio App. 3d 677, 693-694, 716 N.E.2d 728 (1st Dist.1998); State v. King, 1st Dist.
Hamilton No. C-060335, 2007-Ohio-4879, ¶ 40-44. For instance, the Glock pistol
found in Morrissette’s possession six months after the murder indisputably was not
the murder weapon or the same make as the murder weapon, and Morrissette had
not even discharged that pistol when apprehended by the police. Although this
argument was not based on the evidence, Morrissette has failed to show plain error
on this record, which contains overwhelming evidence of his guilt.
{¶49} Ultimately, we conclude that although some of the prosecutor’s
comments were improper, the effect of those improper comments, even when
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combined, was of no significance and did not result in an unfair trial. Accordingly,
we overrule the second assignment of error.
III. Erroneous-Flight-Instruction Claim
{¶50} In his third assignment of error, Morrissette argues the trial court
erred in giving a jury instruction on flight. He argues that the evidence did not show
he fled from justice, rending the instruction improper. We disagree.
{¶51} Evidence of the accused’s flight, concealment, and related conduct is
admissible to show consciousness of guilt. See State v. Taylor, 78 Ohio St. 3d 15, 27,
676 N.E.2d 82 (1997); State v. Eaton, 19 Ohio St. 2d 145, 160, 249 N.E.2d 897 (1969);
State v. Summerlin, 1st Dist. Hamilton No. C-160539, 2017-Ohio-7625, ¶ 21. An
instruction on flight is proper if the record contains sufficient evidence to support the
charge. Summerlin at ¶ 21. “Flight” means some escape or affirmative attempt to
avoid apprehension by the police. Id., citing State v. Brundage, 1st Dist. Hamilton
No. C-030632, 2004-Ohio-6436, ¶ 17. The decision whether to instruct the jury on
flight is a matter within the trial court’s discretion and is reviewed for an abuse of
that discretion. Id.
{¶52} The state’s evidence in this case, if believed, demonstrated that after
the shooting Morrissette left town for some period of time and never showed up for
work again or contacted his employer to terminate his employment. In the recorded
jail calls, Morrissette repeatedly acknowledged that he knew the police had been
looking for him and he laughed about successfully eluding them. He recalled
eluding apprehension by a squad of police officers by hiding in a tree. On another
occasion he had rubbed “hella hair grease,” “seasoning,” and “cologne” on his body to
prevent K-9 police dogs from alerting to his scent. Under these circumstances, we
cannot hold that the trial court’s decision to give a flight instruction was so arbitrary,
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OHIO FIRST DISTRICT COURT OF APPEALS
unreasonable, or unconscionable as to connote an abuse of discretion. See State v.
Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980); Summerlin at ¶ 21.
Consequently, we overrule the third assignment of error.
IV. Ineffective-Assistance-of-Trial-Counsel Claim
{¶53} In his fourth assignment of error, Morrissette contends he was denied
the effective assistance of trial counsel because his attorneys failed to object to the
state’s repeated use and elicitation of the nickname Psycho, and actually joined the
state in making such references.
{¶54} To prevail on an ineffective-assistance-of-counsel claim, Morrissette
must demonstrate that counsel’s performance fell below an objective standard of
reasonableness and he was prejudiced as a result. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). With regard to deficient
performance, “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689. To
demonstrate prejudice, Morrissette must establish that, but for counsels’ errors,
there is a reasonable probability that the result of the trial would have been different.
Strickland at 694; State v. Bradley, 42 Ohio St. 3d 136, 141-142, 538 N.E.2d 373
(1989). The failure to make an adequate showing on either prong is fatal to an
ineffective-assistance-of-counsel claim. See Strickland at 697.
{¶55} Here, Morrissette cannot prevail on his claim. When disposing of the
second assignment of error, we found the prosecutor had acted improperly when he
referred to Morrissette as Psycho in instances where that reference had not been
required for identification purposes, but concluded that any improper use of the
nickname had not affected the outcome of the trial. We determined that any
impugning effect was negligible when weighed against the overwhelming evidence of
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OHIO FIRST DISTRICT COURT OF APPEALS
guilt. For similar reasons, we hold that defense counsels’ failure to object to the
state’s unnecessary use of the name and defense counsels’ own allegedly unnecessary
use of the name at trial was not outcome determinative, either. The jury was not told
the origin of the nickname and it was not used in an impugning manner. Although
the nickname was used a significant number of times, this alone does not
demonstrate the requisite prejudice to establish an ineffective-assistance-of-counsel
claim. The strength of the state’s evidence was such that we are confident the jury
would have found Morrissette guilty of the offenses even absent the allegedly
deficient performance by trial counsel. Accordingly, we overrule the fourth
assignment of error.
V. Cumulative-Error Claim
{¶56} In his final assignment of error, Morrissette argues that the
cumulative effect of the errors at trial deprived him of his right to a fair trial. Under
the cumulative-error doctrine, a conviction may be reversed if the cumulative effect
of errors deemed separately harmless have the collective effect of denying the
defendant a fair trial. See State v. Cook, 1st Dist. Hamilton No. C-140118, 2014-
Ohio-4900, ¶ 15, citing State v. DeMarco, 31 Ohio St. 3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus.
{¶57} Here, we determine that Morrissette was afforded a fair trial,
notwithstanding the cumulative effect of the errors occurring at trial. For this
reason, we overrule the fifth assignment of error.
Conclusion
{¶58} Morrissette has failed to demonstrate reversible error. He was
provided a fair trial, at which the state presented overwhelming evidence of his guilt.
Accordingly, we affirm Morrissette’s convictions for murder, having weapons while
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OHIO FIRST DISTRICT COURT OF APPEALS
under disability on April 16, 2016, and October 5, 2016, aggravated possession of
hydrocodone, and possession of cocaine.
Judgment affirmed.
M OCK , P.J., and M ILLER , J., concur.
Please note:
The court has recorded its own entry this date.
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