State v. Powell , 2019 Ohio 4345 ( 2019 )

[Cite as State v. Powell, 2019-Ohio-4345.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107276
v. :
CARLIN POWELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 24, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-598275-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting
Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Erika Cunliffe, Assistant Public Defender, for appellant.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant, Carlin Powell, appeals from his convictions
following a jury trial. He raises the following assignments of error for review:
1. Tina Stewart’s testimony detailing evidence collection by a forensic
scientist who has since been fired for misconduct violated Powell’s right
to confrontation and the state rules of evidence which bar such hearsay.
2. Powell’s rights to due process and a fundamentally fair trial were
compromised by the jury’s improper exposure to evidence of a third
victim who the state did not call as a witness.
3. Powell was deprived of his Sixth Amendment right to the effective
assistance of counsel.
After careful review of the record and relevant case law, we affirm
Powell’s convictions.
I. Procedural and Factual History
In August 2015, Powell was named in a seven-count indictment,
charging him with rape in violation of R.C. 2907.02(A)(2) (Count 1); kidnapping in
violation of R.C. 2905.01(A)(4) (Count 2); rape in violation of R.C. 2907.02(A)(2),
with a sexually violent predator specification (Count 3); kidnapping in violation of
R.C. 2905.01(A)(4), with sexual motivation and sexually violent predator
specifications (Count 4); rape in violation of R.C. 2907.02(A)(2), with a sexually
violent predator specification (Count 5); corruption of a minor in violation of R.C.
2907.04(A) (Count 6); and kidnapping in violation of R.C. 2905.01(A)(4), with
sexual motivation and sexually violent predator specifications (Count 7). The
indictment stemmed from allegations that Powell sexually assaulted three victims:
(1) M.S., with the offenses occurring on or about September 20, 1997 (Counts 1 and
2); (2) D.E., with the offenses occurring on or about January 15, 1997 (Counts 3 and
4); and (3) A.W., with the offenses occurring on or about November 16, 1998 (Counts
5-7).
In November 2016, Powell filed a motion to dismiss for preindictment
delay, arguing that he was prejudiced by the unjustifiable delay between the alleged
commission of the offenses and the time he was indicted. Following a hearing, the
trial court denied Powell’s motion to dismiss. In January 2018, the matter
proceeded to a jury trial.1
At trial, A.W. testified that when she was 15 years old, she was walking
to school on the morning of November 16, 1998. As she was walking, a vehicle
containing two men pulled up next to her. A.W. testified that she knew the driver of
the vehicle from the neighborhood. A.W. described the driver as a bald man with
brown hair and a beard. She described the passenger as being a dark-skinned man
with dreadlocks. A.W. stated that she was speaking with the driver when she was
suddenly pulled inside the vehicle by the man in the passenger’s seat. A.W. testified
that she was scared and did not feel free to leave the vehicle.
At some point, A.W. fell asleep while she was inside the vehicle. When
she woke up, A.W. was at an unfamiliar house. A.W. testified that she could not
remember specific details about the house, but recalled seeing people inside who
seemed “drugged up.” A.W. believed that she may have been drugged herself, and
that she remained in the house for “maybe three days.” While inside the home, A.W.
alleged that she was forced to have nonconsensual vaginal sex with the bearded man,
who she identified at trial as being Powell. When A.W. was eventually able to leave
1 The sexually violent predator specifications associated with Counts 3, 4, 5, and 7
were tried to the bench.
the house, she went to the nearest payphone and called her grandfather. She was
subsequently taken to the hospital where a sexual assault kit was collected. A.W.
recalled the police retrieving her clothing as potential evidence. However, A.W.
could not remember whether she spoke to a police officer about the incident.
In 2015, A.W. was contacted by Investigator Nicole DiSanto to discuss
the November 1998 incident. During this meeting, A.W. was shown a photo array
by a blind administrator. A.W. testified that she identified Powell’s photograph from
the photo array and wrote that she was “a hundred percent sure” he was the person
who sexually assaulted her.
During her cross-examination, defense counsel thoroughly
questioned A.W. about perceived inconsistencies between her trial testimony and
the statements she initially made to law enforcement and medical personnel. A.W.
was shown a copy of her police report, marked defendant’s Exhibit A. The relevant
inconsistencies between A.W.’s testimony and the information contained in the
police report included (1) A.W.’s description of the vehicle that pulled up beside her,
(2) A.W.’s accounting of the number of individuals inside the vehicle, (3) A.W.’s
description of the vehicle, (4) A.W.’s physical description of the perpetrators (5) the
location of the alleged sexual assault, (6) A.W.’s description of the assault, (7) A.W.’s
accounting of the number of individuals who perpetrated the alleged sexual assault,
and (8) the actions A.W. took before returning home. A.W. testified that she
disagreed with many of the statements contained in the police report, but qualified
her testimony, stating “then again, it happened 20 years ago.”
Captain Renee Kane of the Cleveland Police Department testified that
at approximately 1:30 a.m. on November 17, 1998, she responded to a missing
persons report filed by A.W.’s mother. Captain Kane stated that she generated a
missing persons report and initiated an investigation to locate A.W., which proved
unsuccessful. However, the Cleveland police were notified on November 19, 1998,
that A.W. was located by her family.
Retired Cleveland police officer, Matthew Stepic, testified that he
responded to MetroHealth Medical Center for the reported rape of A.W. Officer
Stepic testified that he interviewed A.W. about the incident and collected her sexual
assault kit, which he transported to the police department’s property room. Officer
Stepic then completed a written police report.
D.E. testified that in January 1997, she met Powell at a convenient
store near the apartment she shared with her sister. After having a conversation and
smoking marijuana together, D.E. and Powell exchanged phone numbers and
agreed to meet up again. Approximately one week later, Powell picked D.E. up in
his vehicle. D.E. stated that Powell had a friend with him in the car. She described
the friend as a white man with curly blonde hair. Powell then drove to a home
located in Cleveland, Ohio. Powell and D.E. went inside the home, while Powell’s
friend remained in the car.
Once inside the home, D.E. and Powell began smoking marijuana.
D.E. stated that there were two other individuals with them at the time. However,
after a period of time, the other two individuals went upstairs, leaving D.E. and
appellant alone. D.E. testified that Powell suddenly reached over and grabbed her
by the neck. D.E. described the incident as follows:
I was startled, because I really didn’t know what was going on. And I
was trying to push him away to stop and he pushed me down. He had
me by my neck and he had my arms. He was quite bigger than me. And
I started to try to scream for the other people who were in the house to
come down and help me. So I began to yell for some help, like “Please
help me,” you know, “I need help, I need help, I need help.” Nobody
came. I started to fight with him to try to get him off of me and he just
kept squeezing harder, and he said that if I kept fighting that he was
going to hurt me, he was going to beat me up, and he wasn’t going to
stop. So I kind of relaxed and he started to undress me and also, you
know, himself, and he began to penetrate me.
***
He had me, he was holding me tightly, and, you know, he told me, “You
shut the fuck up. You’re not leaving here.” I did not feel that I had a
choice. So after that had happened and I kept asking him to please stop
and he told me to shut the fuck up, he hit me in the face and it was done.
He just got up off of me. And I was sobbing and crying and — I don’t
really know what I thought was going to happen next. I got up and I
moved away from him.
D.E. clarified that Powell held her down and penetrated her vagina
with his penis. When she returned home, D.E. immediately told her sister that she
had been raped and went to the hospital for medical examination, where a sexual
assault kit was completed.
D.E. testified that a Cleveland police detective arrived at her home the
next day to take a statement. D.E. admitted that she initially told detectives that the
rape occurred inside Powell’s vehicle. D.E. further conceded that she did not tell
detectives about smoking marijuana with Powell. She explained that she did not tell
the police the complete truth because she blamed herself for what happened, did not
want her father to know she was smoking marijuana, and did not want to be “looked
at differently” for going to a place she did not know with a person she had just met.
Years later, D.E. was contacted by Investigator Nicole DiSanto to
discuss the January 1997 incident. During this meeting, D.E. was shown a photo
array by a blind administrator. D.E. testified that she identified Powell as the person
who sexually assaulted her. D.E. stated that she knew it was Powell “immediately
when [she] saw [the photo array].”
During her cross-examination, D.E. was confronted with
inconsistencies between her trial testimony and her initial statement to the police
and medical personnel. In relevant part, the records indicated that (1) D.E. stated
that she met Powell at a K-Mart, rather than a local convenience store; (2) D.E.
described the passenger in Powell’s vehicle as a black male; (3) Powell kissed her in
the back seat of the vehicle; and (4) that the sexual assault occurred inside the
vehicle. Defense counsel also referenced D.E.’s criminal history and police records
indicating that D.E. failed to appear for an appointment to further discuss the
incident.
Retired sex-crimes detective, Sgt. Michael Kmiecik of the Cleveland
Police Department, testified that he conducted a field interview of D.E. in 1997. He
testified that he had no independent recollection of the conversation. However,
having reviewed the police report, Sgt. Kmiecik testified that when the information
gathered from the interview with D.E. was presented to the prosecutor, it was
determined that there was “insufficient evidence to sustain a charge or to have
probable cause to charge anyone at that time.” Accordingly, the file pertaining to
D.E. was marked as “no further investigation leads at this time.” During his cross-
examination, Sgt. Kmiecik testified that in 2007, a follow-up detective reached out
to D.E. “after getting a hit on DNA.” Sgt. Kmiecik stated that the follow-up detective
made contact with D.E. and scheduled an appointment to further discuss her case.
However, D.E. was “a no-show for the appointment” and her case was closed
following a consultation with the prosecutor.
Nicole DiSanto is employed as an investigator by the Cuyahoga
County Prosecutor’s Office. DiSanto testified that she began investigating the sexual
assault of A.W. after the prosecutor’s office received information linking Powell’s
DNA to the DNA recovered from A.W.’s sexual assault kit. Upon receiving this
information, DiSanto reviewed the original police report and contacted A.W. about
the incident. DiSanto testified that, before discussing the facts and circumstances
of the incident with A.W., a blind administrator presented A.W. with a photo array.
DiSanto stated that A.W. identified Powell as her attacker and confirmed that the
incident was not a consensual encounter.
DiSanto testified that she also travelled to North Carolina to conduct
a recorded interview with Powell regarding his recollection of A.W. According to
DiSanto, Powell admitted that he “[knew] her from the neighborhood.” However,
he denied having sex with A.W. and stated that he would not have been having sex
with a 15-year old when he was 21-years old.
DiSanto also testified at trial regarding her investigation of the sexual
assault committed against D.E. She stated that she began investigating the case after
the prosecutor’s office received a DNA hit linking Powell’s DNA to the DNA
recovered from D.E.’s sexual assault kit. Upon receiving this information, DiSanto
interviewed D.E. in April 2015. During the interview, D.E. was forthright,
emotional, and told DiSanto right away that she had originally lied to the police
about the circumstances of the sexual assault when she was 16-years old. DiSanto
stated that a blind administrator presented D.E. with a photo array and that D.E.
“was able to identify Carlin Powell as her attacker.” DiSanto testified that she also
conducted an interview with Powell regarding his interactions with D.E. DiSanto
testified that Powell stated that he could not remember D.E.’s face. He further
denied having intercourse with D.E.
When confronted with the DNA evidence obtained from A.W.’s and
D.E.’s sexual assault kits, Powell denied ever raping anyone. However, Powell also
testified that “he was doing drugs and everything and doesn’t remember anything”
from the relevant time period. DiSanto further testified that “as soon as DNA was
brought up, he said, ‘Well, it was on her panties.’” When DiSanto asked why he
would be specific about panties, Powell stated, “Well, because that’s where it would
leak out and that’s where someone’s semen would go if they had sex.” At the
conclusion of the interview, Powell consented to a buccal swab, which was submitted
to the Ohio Bureau of Criminal Investigation for comparison to the evidence
contained in A.W.’s and D.E.’s sexual assault kits.
Tina Stewart testified that she was formerly employed as a scientific
examiner with the Cleveland Police forensics laboratory. Stewart worked in the
serology section of the forensic laboratory during the time period when D.E.’s and
A.W.’s sexual assault kits and clothing were first analyzed. Stewart provided
extensive testimony regarding the chain of custody protocol and procedures utilized
by the forensic laboratory.
Stewart explained that when evidence was delivered to the laboratory
for testing, the evidence was assigned a six-digit number that was unique to that
piece of evidence. A forensic analyst would then generate a “matching [laboratory]
card with the same laboratory number, and on that card would have information
about that evidence.” Stewart testified that when the forensic analysis was
completed, the results of the testing would be written on the front side of the
corresponding laboratory card. If evidence submitted to the laboratory tested
positive for blood or semen, the evidence would be placed in an individually sealed
envelope, marked with the unique six-digit number previously assigned to that
evidence, and stored in the laboratory in case further testing was required. The
remaining evidence was transported to the Cleveland Police property room.
Stewart also testified regarding the procedure that was utilized for
testing evidence, including the steps taken to prevent the contamination of evidence.
She explained, in relevant part:
The analysts changed their gloves between different evidence, and then
when the evidence was finished being analyzed it would be sealed with
evidence tape. And also, on the back of the [laboratory] cards we have
the chain of custody listed where the evidence has been, so we have a
written copy of where all the evidence has gone.
If evidence came into the laboratory unsealed or with a broken seal, that information
would be noted by the analyst on the laboratory card.
Regarding D.E.’s case, the state presented Stewart with D.E.’s
forensic laboratory report, marked state’s exhibit No. 25. Stewart testified that
D.E.’s sexual assault kit and clothing were submitted to the laboratory on
January 17, 1998. The evidence was assigned a unique six-digit number. Stewart
testified that state’s exhibit No. 25 is a copy of the laboratory card used by the
analysts to record all pertinent information about the tested evidence. Stewart
explained that the front side of the laboratory card contained the results of the
serology testing and the initials of the analysts who performed the serology testing.
In turn, the back of the card listed the evidence submitted to the laboratory and the
chain of custody log. Stewart then identified each piece of evidence submitted to the
laboratory for testing in D.E.’s case. She also discussed the custodial history of the
relevant evidence by referencing the chain of custody information delineated on the
back of the laboratory card. Stewart clarified that she was not the primary analyst
assigned to conduct the forensic analysis in D.E.’s case.
Regarding the serology testing performed on the evidence submitted
in A.W.’s case, the state presented Stewart with A.W.’s forensic laboratory report,
marked state’s exhibit No. 26. Stewart testified the A.W.’s rape kit and clothing were
submitted to the laboratory on November 23, 1998. The evidence was assigned a
unique six-digit number. Stewart testified that state’s exhibit No. 26 is a copy of the
laboratory card, which also listed the evidence tested, the results of the serology
testing, and the relevant chain of custody information. Stewart identified the
evidence that was submitted to the laboratory for testing and discussed the custodial
history of the relevant evidence by referencing the chain of custody information
delineated on the back of the laboratory card. Stewart confirmed that she did not
perform the serology testing in A.W.’s case.
During her cross-examination, Stewart was questioned extensively
about the possibility of evidence being contaminated due to the procedures used in
1998 that are no longer standard practice. For instance, Stewart conceded that the
laboratory received most of D.E.’s hospital clothing in a single bag. While Stewart
indicated that D.E.’s underwear was stored separately, she agreed that placing all of
D.E. remaining clothing in one bag would not comply with current standard
procedures. In addition, Stewart admitted that the laboratory reports did not
specify the tests that were performed on the evidence collected. Stewart was also
questioned at length about the primary analyst who worked on both D.E. and A.W.’s
cases. Stewart testified that the analyst, J.M.S., was subsequently fired, then
reinstated, by the laboratory “because they thought he did an error with one of his
statistics,” resulting in the reversal of a criminal conviction in an unrelated case.
During her direct examination, Stewart did not provide any testimony
regarding the results of the serology testing that was performed in each case.
However, during her cross-examination, Stewart was asked for the first time to
discuss the results of the testing in D.E.’s case. Relevant to this appeal, Stewart
confirmed that D.E.’s vaginal swabs tested negative for semen and blood; her vaginal
smear slides tested negative for spermatozoa; the “outside area of rear of blue and
black panties” tested positive for seminal fluid; and the “seat area of jeans, stain on
right front leg of jeans” tested positive for seminal fluid. On redirect examination,
Stewart reiterated the results of D.E.’s serology tests and explained the nature of the
forensic tests that were performed in each case.
Heather Bizub, a DNA analyst for the Bureau of Criminal
Identification, testified that she compared the DNA derived from Powell’s buccal
swab to the biological evidence extracted from D.E.’s sexual assault kit and the
clothing collected from her at the hospital. Her findings were reduced to a DNA
report, dated September 11, 2015. Bizub testified that D.E.’s vaginal swab contained
a mixture of DNA, with D.E. being a major contributor, as well as male DNA.
However, Bizub explained that the data was insufficient for her to make a
comparison or draw a conclusion regarding the male contributor. Thus, Bizub
stated that she could not provide an opinion as to whether Powell was the minor
contributor. Regarding bodily fluid extracted from a cutting of D.E.’s underwear,
Bizub testified that Powell was identified as the sole contributor. She stated, to a
reasonable degree of scientific certainty, that the frequency of a similar DNA
appearing was one in 27 quadrillion-60 trillion unrelated individuals.
Bizub testified that she was also involved in the DNA testing
performed on the evidence submitted in A.W.’s case. Bizub stated that she
compared the DNA derived from Powell’s buccal swab to the biological evidence
extracted from A.W.’s sexual assault kit. Her findings were reduced to a DNA report,
dated September 14, 2015. Bizub testified that an anal sample taken from A.W.
contained a mixture of DNA, with A.W. being a major contributor. The sample
contained male DNA, but the profile was insufficient for Bizub to render a
conclusion about the source of the minor contributor. However, Bizub testified that
she identified Powell as a contributor to the seminal fluid mixture extracted from
A.W.’s pubic hair combings, a vaginal swab, and two separate skin swabs. Bizub
stated, to a reasonable degree of scientific certainty, that for the pubic hair combings
the frequency of a similar DNA appearing was one in 533 trillion unrelated
individuals. For the vaginal swab, the frequency was one in 36 quintillion-310
quadrillion unrelated individuals. For the first skin swab, the frequency was one in
36 quintillion unrelated individuals. Finally, for the second skin swab, the frequency
was one in 36 quintillion-310 quadrillion unrelated individuals.
M.S. did not appear for trial. Accordingly, the trial court granted the
state’s motion to dismiss Counts 1 and 2 of the indictment, which correlated to the
conduct alleged to have been committed against M.S. Defense counsel rested
without presenting any witnesses.
At the conclusion of trial, the jury found Powell guilty of Count 3, the
rape of D.E.; Count 4, the kidnapping of D.E., with the sexual motivation
specification; and Count 6, corruption of a minor involving A.W. Powell was found
not guilty of the rape and kidnapping offenses alleged to have been committed
against A.W. The trial court further found Powell not guilty of the sexually violent
predator specifications that were attached to Counts 3 and 4.
At the sentencing hearing, the trial court found that the rape and
kidnapping offenses committed against D.E. were allied offenses of similar import.
The state elected to proceed with sentencing on the rape offense, and the trial court
imposed a nine-year term of imprisonment. The trial court then imposed an 18-
month term of imprisonment on the corruption of a minor offense, to run
consecutively to the rape offense, for an aggregate prison term of 10 years and six
months.
Powell now appeals from his convictions.
II. Law and Analysis
A. Hearsay and the Confrontation Clause
In his first assignment of error, Powell argues Tina Stewart’s
testimony relied on hearsay statements and violated his right to confrontation. He
contends that Stewart’s testimony was not based on her own personal knowledge,
and relied on reports that “lacked the trustworthiness required for admissibility
under Evid.R. 803(6).”
Powell did not object to Stewart’s testimony or the admission of the
forensic lab records, marked state’s exhibits Nos. 25 and 26. He has therefore
waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.” “Plain error exists when it can be said that but for the error, the outcome
of the trial would clearly have been otherwise.” State v. Issa, 93 Ohio St. 3d 49, 56,
752 N.E.2d 904 (2001), citing State v. Moreland, 50 Ohio St. 3d 58, 62, 552 N.E.2d
894 (1990).
The Confrontation Clause of the Sixth Amendment to the United
States Constitution, made applicable to the states through the Fourteenth
Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right * * * to be confronted with the witnesses against him.” Further, Section 10,
Article I of the Ohio Constitution provides that “[i]n any trial, in any court, the party
accused shall be allowed * * * to meet the witnesses face to face * * *.”
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless
it falls within one of the exceptions listed in Evid.R. 803. Whenever the state seeks
to introduce hearsay into a criminal proceeding, the court must determine not only
whether the evidence fits within an exception, but also whether the introduction of
such evidence offends an accused’s right to confront witnesses against him. State v.
Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 29.
The Confrontation Clause prohibits the admission of an out-of-court
statement of a witness who does not appear at trial if the statement is testimonial,
unless the defendant has had an opportunity to cross-examine the witness.
Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004). “Testimonial” statements generally include hearsay statements “‘made
under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.’” Id. at 52, quoting the
amicus brief of the National Association of Criminal Defense Lawyers. In
determining whether a statement is testimonial for purposes of the Confrontation
Clause, “‘courts should focus on the expectation of the declarant at the time of
making the statement; the intent of a questioner is relevant only if it could affect a
reasonable declarant’s expectations.’” State v. Thomas, 8th Dist. Cuyahoga No.
101202, 2015-Ohio-415, ¶ 21, quoting State v. Stahl, 111 Ohio St. 3d 186, 2006-Ohio-
5482, 855 N.E.2d 834, paragraph two of the syllabus.
The Confrontation Clause does not bar the admission of hearsay
statements that are not testimonial. State v. Siler, 116 Ohio St. 3d 39, 2007-Ohio-
5637, 876 N.E.2d 534, ¶ 21. Indeed, where nontestimonial hearsay is at issue, the
Confrontation Clause is not implicated and need not be considered. Whorton v.
Bockting, 549 U.S. 406, 420, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007).
In this case, the challenged testimony concerns Stewart’s references
to the forensic laboratory reports generated in each case. The exhibits contain a
photocopy of the front and back of the laboratory cards described by Stewart during
her direct examination. The front side of the card, labeled “Forensic Laboratory
Report,” lists, in relevant part (1) the name of the victim, (2) a general description of
the evidence submitted for testing, (3) the six-digit number assigned to the evidence,
(4) the date the evidence was submitted to the laboratory, (5) the results of the
forensic testing, and (6) the initials of the analyst or analysts who performed the
forensic testing. In turn, the back side of the card provides a detailed description of
each piece of evidence submitted for testing, and lists the chain of custody history of
the evidence, including dates and signatures that correspond to when, where, and
by whom the evidence was moved. Significantly, the forensic laboratory report was
generated before Powell was identified as a suspect. Thus, the report does not
identify Powell as the source of the seminal fluid discovered in each case.
On appeal, Powell asserts that Stewart “did not personally examine
any of the physical evidence, nor did she come to any independent conclusion
therefrom.” Referencing the scientific conclusions reached in each laboratory
report, Powell contends he was unconstitutionally prevented from cross-examining
the lead analyst, J.M.S., about the testimonial “analyses and conclusions he
reached” in each case. Thus, Powell argues the trial court circumvented his
constitutional right to confrontation by permitting Stewart to authenticate the
laboratory records.
For the purposes of clarity, we begin our analysis by addressing the
admissibility of the information contained on the front side of each forensic
laboratory card, including the results of the serology tests performed in each case.
Relevant to this issue are several decisions rendered by the United States Supreme
Court.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174
L. Ed. 2d 314 (2009), the trial court admitted into evidence three “certificates of
analysis” setting forth “the results of forensic analysis which showed that material
seized by the police and connected to the defendant was cocaine.” Melendez-Diaz,
557 U.S. at 307, 308. The trial court admitted the notarized certificates, without live
testimony, “pursuant to state law as prima facie evidence of the composition, quality,
and the net weight of the narcotic analyzed.” Id. at 309. After he was convicted, the
defendant appealed, arguing “that admission of the certificates violated his Sixth
Amendment right to be confronted with the witnesses against him.” Id.
In a five-to-four decision, the United States Supreme Court reversed
the defendant’s conviction, holding that the notarized certificates fell “within the
core class of testimonial statements” because they were “quite plainly affidavits:
declarations of facts written down and sworn to by the declarant before an officer
authorized to administer oaths.” Id. at 310 The court explained that the analysts’
affidavits were introduced into evidence for the purpose of proving the truth of what
they asserted, specifically that the substance in question contained cocaine:
The fact in question is that the substance found in the possession of
Melendez-Diaz * * * was, as the prosecution claimed, cocaine — the
precise testimony the analysts would be expected to provide if called at
trial. The “certificates” are functionally identical to live, in-court
testimony, doing “precisely what a witness does on direct
examination.”
Id. at 310-311, quoting Davis v. Washington, 547 U.S. 813, 830, 126 S. Ct. 2266, 165
L. Ed. 2d 224 (2006). Thus, “[a]bsent a showing that the analysts were unavailable
to testify at trial and that [the defendant] had a prior opportunity to cross-examine
them, [he] was entitled to ‘be confronted with’ the analysts at trial.” Id. at 311,
quoting Crawford, 541 U.S. 36, at 54, 124 S. Ct. 1354, 158 L. Ed. 2d 177. The court
further rejected the respondent’s argument that the analysts’ affidavits are
admissible without confrontation because they are “akin to the types of official and
business records admissible at common law.” The court stated, in relevant part:
Whether or not [the affidavits] qualify as business or official records,
the analysts’ statements here — prepared specifically for use at
petitioner’s trial — were testimony against petitioner, and the analysts
were subject to confrontation under the Sixth Amendment.
Id. at 324.
In Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180
L. Ed. 2d 610 (2011), the Supreme Court was confronted with a situation where one
forensic analyst prepared and certified a report determining the defendant’s blood-
alcohol concentration, but another analyst, who was not involved in the analysis of
the defendant’s blood, introduced the report at trial. Although the witness was a
“knowledgeable representative of the laboratory” who could “explain the lab’s
processes and the details of the report,” id. at 2723 (Kennedy, J., dissenting), the
majority held that the surrogate witness was not a proper substitute for the analyst
who had conducted the test. Thus, the Supreme Court found the admission of the
evidence to be a violation of the confrontation clause, stating:
The question presented is whether the Confrontation Clause permits
the prosecution to introduce a forensic laboratory report containing a
testimonial certification — made for the purpose of proving a particular
fact — through the in-court testimony of a scientist who did not sign
the certification or perform or observe the test reported in the
certification. We hold that surrogate testimony of that order does not
meet the constitutional requirement. The accused’s right is to be
confronted with the analyst who made the certification, unless that
analyst is unavailable at trial, and the accused had an opportunity,
pretrial, to cross-examine that particular scientist.
Id. at 2710.
Shortly after Bullcoming, the Supreme Court decided Williams v.
Illinois, 567 US. 50, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012), a divided opinion that
involved a rape prosecution. At trial, an expert testified she obtained a DNA profile
report from an independent lab based on a semen specimen taken from a vaginal
swab of the victim. The lab report was not introduced into evidence, but the expert
testified she compared the DNA profile contained in the lab report to the defendant’s
recorded DNA profile and concluded it was a match. The defendant challenged the
expert’s testimony that relied upon the lab report on the basis the report’s admission
without testimony from its author violated the Confrontation Clause.
The plurality opinion relied in part on Federal Rule of Evidence 703
and held, “[o]ut-of-court statements that are related by the expert solely for the
purpose of explaining the assumptions on which that opinion rests are not offered
for their truth and thus fall outside the scope of the Confrontation Clause.” Id. at
58. Alternatively, the plurality applied the primary purpose test to conclude the
underlying lab report was itself nontestimonial, and thus beyond the reach of the
Confrontation Clause, because the report did not identify the defendant, was not
inherently inculpatory, and was created “before any suspect was identified.” Id. The
report “was sought not for the purpose of obtaining evidence to be used against
petitioner, who was not even under suspicion at the time, but for the purpose of
finding a rapist who was on the loose.” Id. The plurality thus opined the lab report
differed from the certificates of analysis and reports disputed in Melendez-Diaz and
Bullcoming, which were created for the sole purpose of providing evidence against
a particular defendant and were used to establish the truth of the matter asserted.
Id. at 2242.
In this case, it is undisputed that Stewart was not the primary analyst
in either case and, in fact, had no involvement in the forensic analysis performed in
A.W.’s case. With that said, however, we find the nature and scope of Stewart’s
testimony to be distinguishable from evidence challenged in Melendez-Diaz and
Bullcoming. As noted in Melendez-Diaz, “it is the obligation of the prosecution to
establish the chain of custody for evidence sent to testing laboratories — that is, to
establish ‘the identity and integrity of physical evidence by tracing its continuous
whereabouts.’” Id., 557 U.S. 305, at 335, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (Kennedy,
J., dissenting). Here, the state’s sole purpose of presenting Stewart as a prosecution
witness was to authenticate the laboratory’s chain of custody records. Significantly,
Stewart provided no testimony during her direct examination regarding the nature
of the serology tests performed or the scientific conclusions reached by the lead
forensic analyst in each case.
Under these circumstances, we find Stewart’s testimony, and her
reliance on the challenged forensic reports, was not offered for the truth of the
scientific conclusions reached by other analysts in the forensic laboratory. As stated,
Stewart provided no testimony during her direct examination regarding the results
of the serology tests performed in each case, nor did she offer an opinion regarding
the scientific accuracy of those results. In addition, there is no indication in this
record to suggest the challenged forensic laboratory reports were published to the
jury during Stewart’s testimony. Thus, information concerning the presence of
seminal fluid on clothing submitted in D.E.’s case had not been provided to the jury
until defense counsel questioned Stewart about the specific results of the forensic
testing during her cross-examination. Defense counsel thus invited the testimony
now complained of on appeal. State v. Seiber, 56 Ohio St. 3d 4, 17, 564 N.E.2d 408
(1990) (“A party cannot take advantage of an error he invited or induced.”).
It is evident that defense counsel questioned Stewart about the
results of the serology testing in an effort to (1) challenge the reliability of J.M.S.’s
laboratory work, and (2) suggest the seminal fluid discovered on D.E.’s clothing was
caused by cross-contamination and/or inadequate testing procedures. This was a
strategic decision by defense counsel that intended to challenge the weight of the
subsequent DNA evidence. Nevertheless, any potential hearsay or confrontation
arguments concerning Stewart’s testimony about the nature of the serology tests
performed, or the scientific conclusions rendered in the forensic laboratory reports,
was invited error. The challenged exhibits were only offered into evidence after
defense counsel opened the door, thereby permitting the state to further develop the
record about the results of the serology testing performed by Stewart’s colleagues.
Moreover, even if we were to conclude that the trial court’s admission
of the serology results violated Evid.R. 803 and/or the Confrontation Clause, Powell
has not demonstrated plain error. The results of the serology testing were minimally
probative when compared to the subsequent DNA testing that identified Powell as a
contributor to the DNA profiles discovered in the victim’s biological evidence.
Notwithstanding his references to the lead analysts’ past misconduct in an unrelated
case, Powell has provided no basis to conclude that the laboratory’s custodial and
testing procedures compromised the integrity or accuracy of the subsequent DNA
analysis.
With respect to the admission of the remaining portions of the
forensic laboratory report, including the inventory of evidence and chain of custody
log reflected on the back side of the laboratory card, we find no error.
Evid.R. 803(6) creates a hearsay exception for “records of regularly
conducted activity.” This rule excepts business records from exclusion at trial if they
are made in the course of a regularly conducted business activity “because the courts
presume that such records are trustworthy given the self-interest to be served by the
accuracy of such entries.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-
Ohio-4047, ¶ 21, citing Weis v. Weis, 147 Ohio St. 416, 425-426, 72 N.E.2d 245
(1947).
In order to qualify for the business-records exception, a record must
meet the following criteria (1) the record must be one recorded regularly in a
regularly conducted activity; (2) a person with knowledge of the act, event, or
condition recorded must have made the record; (3) it must have been recorded at or
near the time of the act, event, or condition; and (4) the party who seeks to introduce
the record must lay a foundation through testimony of the record custodian or some
other qualified witness. State v. Boiani, 8th Dist. Cuyahoga No. 98314, 2013-Ohio-
1342, ¶ 29, citing State v. Davis, 116 Ohio St. 3d 404, 2008-Ohio-2, 880 N.E.2d 31,
¶ 171.
The phrase “other qualified witness” does not necessarily mean that
the witness must have firsthand knowledge of the transaction giving rise to the
record. State v. Sherrills, 8th Dist. Cuyahoga No. 89844, 2008-Ohio-1950, ¶ 31;
citing State v. Vrona, 47 Ohio App. 3d 145, 547 N.E.2d 1189 (9th Dist.1988).
Rather, it must be demonstrated that the witness is sufficiently familiar
with the operation of the business and with the circumstances of the
record’s preparation, maintenance, and retrieval, that he can
reasonably testify on the basis of this knowledge that the record is what
it purports to be, and that it was made in the ordinary course of
business consistent with the elements of Rule 803(6).
Sherrills at id., citing State v. Shaheen, 3d Dist. Hancock No. 5-97-03, 1997 Ohio
App. LEXIS 3487 (July 29, 1997); State v. Patton, 3d Dist. Allen No. 1-91-12, 1992
Ohio App. LEXIS 997 (Mar. 5, 1992).
Based on Stewart’s experience and knowledge concerning the
procedures and standards followed by the forensic laboratory, we find no abuse of
discretion in allowing her, a qualified witness, to identify and authenticate the
itemized list of submitted evidence and the chain of custody logs. Here, Stewart
provided extensive testimony concerning her employment history in the serology
department of the forensic laboratory. Stewart stated that she worked in the
department at the time the evidence pertaining to the victims was submitted to the
laboratory, and had firsthand knowledge of the laboratory’s custodial procedures
and chain-of-custody protocol. During her direct examination, Stewart explained
how evidence is received, maintained, and cataloged in the laboratory’s ordinary
course of business. Stewart described the methods utilized by the forensic analysts
to prevent evidence contamination, and generally described the type of information
that would be chronicled by the analyst in the laboratory report. Regarding the
reports generated in A.W.’s and D.E.’s cases, Stewart discussed the scope of the
information set forth in each report and stated that the information was
contemporaneously recorded in the laboratory’s regular course of business.
In an effort to challenge the trustworthiness of the relevant records,
Powell again relies on Stewart’s testimony that the primary analyst, J.M.S., was fired
from the laboratory after a rape conviction was reversed due to his statistical error.
However, Evid.R. 803(6) contemplates the trustworthiness of specific exhibits at the
time they were made. Bank of N.Y. Mellon v. Broyles, 7th Dist. Mahoning No. 16-
MA-0093, 2018-Ohio-357, ¶ 16. Here, the circumstances relied upon by Powell
provide no basis to suggest that the itemized list of evidence or the chain-of-custody
logs were inaccurate or fraudulently maintained. A conclusion to the contrary would
require this court to rely on speculative arguments concerning J.M.S.’s character
and past actions in an unrelated case.
Accordingly, we find no error in the acceptance of Stewart’s testimony
or the court’s admission of the corresponding records. The chain of custody logs
constituted reliable, nontestimonial hearsay that qualifies for the business-record
exception under Evid.R. 803(6). In addition, we find no Confrontation Clause
violation. We recognize that whether a business record meets a hearsay exception
is immaterial in regard to the Confrontation Clause; it is the nontestimonial
character of the record that removes it from the purview of the Confrontation
Clause. As the United States Supreme Court has explained:
Business and public records are generally admissible absent
confrontation not because they qualify under an exception to the
hearsay rules, but because — having been created for the
administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial — they are not testimonial.
Melendez-Diaz, 557 U.S. 305, at 324, 129 S. Ct. 2527, 174 L. Ed. 2d 314
(2009). However, in this case, the list of evidence and chain of custody
logs were not prepared for the purpose of proving a fact at trial. Indeed,
the evidence logs do not purport to prove any fact necessary to the
conviction. Rather, the information was documented by the laboratory
in an effort to catalog the evidence in a secure and reliable fashion.
Powell’s first assignment of error is overruled.
B. State’s References to M.S.
In his second assignment of error, Powell argues his “rights to due
process and a fundamentally fair trial were compromised by the jury’s improper
exposure to evidence of a third victim who did not testify at trial.” Powell contends
that the state’s use of evidence relating to M.S. amounted to prosecutorial
misconduct that deprived him of his constitutional right to a fair trial.
In this case, the record reflects that the state alluded to the allegations
of rape and kidnapping committed against M.S. during voir dire, expressing to the
jury that three rapes occurred in three different years. In addition, the prosecution
described the factual circumstances supporting the charges relating to M.S. during
its opening statements and indicated that the jury would be hearing from each of the
three victims during the trial. Finally, the record reflects that the state elicited direct
examination testimony from Tina Stewart regarding her involvement in M.S.’s case.
However, before Stewart was permitted to testify about M.S.’s rape kit, which was
submitted to the forensic laboratory on September 27, 1995, the trial court
prevented further testimony regarding M.S. and her rape kit until “M.S. makes
herself available.”
On appeal, Powell argues the prosecution’s repeated references to
M.S. amounted to prosecutorial misconduct, as the state had reason to believe that
M.S. would not appear as a witness. According to Powell, “the information
surrounding M.S. * * * unjustifiably bolstered the evidence supporting the other
rape allegations,” and “allowed the state to establish a pattern where they otherwise
could not have done so.”
“The test for prosecutorial misconduct is whether the prosecutor’s
remarks were improper and, if so, whether they prejudicially affected the substantial
rights of the accused. The touchstone of analysis is the fairness of the trial, not the
culpability of the prosecutor.” State v. Eisermann, 8th Dist. Cuyahoga No. 100967,
2015-Ohio-591, ¶ 43. Prosecutorial misconduct constitutes reversible error only in
rare cases. State v. Keenan, 66 Ohio St. 3d 402, 405, 613 N.E.2d 203 (1993).
Under the circumstances presented in this case, we find the state’s
references to M.S. during trial did not amount to prosecutorial misconduct that
deprived Powell of his constitutional rights to due process and a fair trial. Following
the state’s attempt to question Stewart about her involvement in M.S.’s case, an
extensive conversation was held outside the presence of the jury. At that time, the
state admitted that M.S. had missed her scheduled flight and was not in Cuyahoga
County. However, the prosecutor indicated that the state intended to work with
M.S. to reschedule her flight before the trial concluded. Thus, at the time the vague
references to M.S. were made, the prosecutor had a good-faith basis to expect M.S.
would appear and testify at trial. Once it became apparent that the victim would not
appear for trial, the state properly dismissed the counts related to M.S. Moreover,
the record reflects that the trial court sufficiently protected Powell’s constitutional
rights and presumption of innocence by preventing the state from developing
specific testimony regarding the allegations of sexual assault committed against
M.S. until she appeared for trial.
Powell’s second assignment of error is overruled.
C. Ineffective Assistance of Counsel
In his third assignment of error, Powell argues defense counsel
rendered ineffective assistance of counsel by (1) failing to seek severance of the three
separate sexual misconduct incidents, and (2) failing to renew or file a motion to
dismiss this prosecution for preindictment delay that more specifically alleges the
evidence lost as a result of the delay.
To establish a claim for ineffective assistance of counsel, Powell must
show that his trial counsel’s performance was deficient and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538
N.E.2d 373 (1989). To establish prejudice, the defendant must demonstrate there
is a “reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland at 694.
In evaluating a claim of ineffective assistance of counsel, a court must
give great deference to counsel’s performance. Id. at 689. “A reviewing court will
strongly presume that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” State v.
Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69. Thus, “[t]rial strategy
or tactical decisions cannot form the basis for a claim of ineffective counsel.” State
v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v.
Clayton, 62 Ohio St. 2d 45, 402 N.E.2d 1189 (1980). Additionally, the failure to do
a futile act cannot be the basis for claims of ineffective assistance of counsel, nor
could such a failure be prejudicial. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-
Ohio-1228, at ¶ 37. We separately address each allegation of ineffective assistance
of counsel.
1. Severance
Initially, Powell argues defense counsel rendered ineffective
assistance of counsel by failing to file a motion to sever the charges involving each
victim so that there would be separate trials. Powell contends that “if counsel had
moved to sever the offenses, the motion would have been granted because he was
prejudiced by the joinder.” He further asserts that “there was a reasonable
probability that the verdict would have been different had a motion to sever been
made.”
To determine whether defense counsel was ineffective for failing to
request severance, we consider whether the failure to file a motion to
sever was deficient and, if so, whether Powell was prejudiced by this
failure. This analysis, in turn, is based on whether joinder was
appropriate in the first place.
State v. Ford, 8th Dist. Cuyahoga No. 106394, 2018-Ohio-5169, ¶ 29.
Crim.R. 8(A) governs the joinder of offenses in a single indictment.
Under Crim.R. 8(A), two or more offenses may be charged together if the offenses
“are of the same or similar character, or are based on the same act or transaction, or
are based on two or more acts or transactions connected together or constituting
parts of a common scheme or plan, or are part of a course of criminal conduct.”
The law favors joining multiple offenses in a single trial if the
requirements of Crim.R. 8(A) are satisfied. State v. Diar, 120 Ohio St. 3d 460, 2008-
Ohio-6266, 900 N.E.2d 565. “[J]oinder and the avoidance of multiple trials [are]
favored for many reasons, among which are conserving time and expense,
diminishing the inconvenience to witnesses and minimizing the possibility of
incongruous results in successive trials before different juries.” State v. Torres, 66
Ohio St. 2d 340, 421 N.E.2d 1288 (1981). See also State v. Schiebel, 55 Ohio St. 3d
71, 86-87, 564 N.E.2d 54 (1990); State v. Schaim, 65 Ohio St. 3d 51, 58, 600 N.E.2d
661 (1992).
Under Crim.R. 14, however, the trial court may grant a severance, if it
appears that the defendant would be prejudiced by the joinder. The defendant bears
the burden of proving prejudice. State v. Brinkley, 105 Ohio St. 3d 231, 2005-Ohio-
1507, 824 N.E.2d 959, ¶ 29.
The state can refute a defendant’s claim of prejudice by joinder of
multiple offenses in two ways (1) a showing that the evidence of each crime is simple
and direct (the “joinder test”) or (2) evidence of the other crimes would be
admissible even if the counts were severed (the “other acts” test). State v. Lott, 51
Ohio St. 3d 160, 163, 555 N.E.2d 293 (1990). When the evidence is “simple and
direct,” an accused is not prejudiced by joinder regardless of the nonadmissibility of
evidence of the crimes as other acts under Evid.R. 404(B). Id. Thus, if the state can
meet the requirements of the “joinder test,” it need not meet the requirements of the
stricter “other acts test.” State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and
100899, 2015-Ohio-1013, ¶ 66, citing State v. Franklin, 62 Ohio St. 3d 118, 122, 580
N.E.2d 1 (1991).
“Simple and direct” evidence means the evidence of each crime is “so
clearly separate and distinct as to prevent the jury from considering evidence of [one
crime] as corroborative as the other.” State v. Belle, 8th Dist. Cuyahoga Nos. 107046
and 107300, 2019-Ohio-787, ¶ 25, citing State v. Quinones, 11th Dist. Lake No.
2003-L-015, 2005-Ohio-6576, ¶ 48. Evidence is “simple and direct” if the trier of
fact is capable of segregating the proof required for each offense. Belle at id., citing
State v. Gravely, 188 Ohio App. 3d 825, 2010-Ohio-3379, 937 N.E.2d 136, ¶ 39 (10th
Dist.).
The object of the “simple and direct” test is to prevent the jury from
improperly considering evidence of various crimes as corroborative of each other.
State v. Echols, 128 Ohio App. 3d 677, 694, 716 N.E.2d 728 (1st Dist.1998). However,
“[a] trier of fact is believed capable of segregating the proof on multiple charges
when the evidence as to each of the charges is uncomplicated.” State v. Lunder, 8th
Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33. Thus, “Ohio appellate courts
routinely find no prejudicial joinder where the evidence is presented in an orderly
fashion as to the separate offenses or victims without significant overlap or
conflation of proof.” State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-
5138, ¶ 16, citing State v. Lewis, 6th Dist. Lucas Nos. L-09-1224 and L-09-1225,
2010-Ohio-4202, ¶ 33.
After careful consideration, we are unable to conclude that defense
counsel rendered ineffective assistance of counsel by failing to file a motion to sever.
Here, the allegations of sexual assault in each case relied on testimony and DNA
evidence that was simple and direct. See Echols, 8th Dist. Cuyahoga No. 102504,
2015-Ohio-5138, at ¶ 19 (“[DNA] evidence, although scientific in nature and
presented through expert testimony, is simple in its application.”). While the
prosecution introduced extensive testimony regarding the investigation and
forensic analysis performed in each case, the record reflects that the state’s witnesses
discussed the evidence relating to each victim separately, succinctly, and without
significant overlap or conflation of proof.
Viewed collectively, there was little danger that the jury would
confuse the evidence or improperly consider the evidence of each victim’s
accusations as corroborative of the others. Indeed, although Powell was found guilty
for the rape and kidnapping of D.E., the jury found him not guilty of the rape and
kidnapping charges associated with A.W. This reflects the jury’s ability to segregate
the proof required in each case. See State v. Lee, 8th Dist. Cuyahoga No. 104682,
2017-Ohio-1449, ¶ 19 (the evidence was “simple and direct” as reflected by the jury
acquitting the defendant of offenses relating to one of the several shootings); State
v. Bonneau, 8th Dist. Cuyahoga No. 97565, 2012-Ohio-3258, ¶ 22 (the jury’s not
guilty verdict as to the counts relating to one victim and its guilty verdicts as to the
counts relating to another demonstrated that the jury was able to separate the
evidence and considered each victim separately); State v. Nitsche, 2016-Ohio-3170,
66 N.E.3d 135, ¶ 95 (8th Dist.) (defendant could not show prejudice from joinder as
he was acquitted of one charge); and State v. Shivers, 8th Dist. Cuyahoga No.
106601, 2018-Ohio-5174.
Because we find that joinder was appropriate in this case, we reject
Powell’s argument that he was prejudiced by his counsel’s failure to request a
severance.
2. Preindictment Delay
Powell further contends that defense counsel rendered ineffective
assistance of counsel by failing to renew Powell’s motion to dismiss based on
preindictment delay.
Here, Powell must demonstrate that his trial counsel performed
deficiently by failing to raise the issue of preindictment delay, and that there was a
reasonable probability of success had his counsel timely presented that issue to the
trial court. State v. Mack, 101 Ohio St. 3d 397, 2004-Ohio-1526, 805 N.E.2d 1108, ¶
31.
Preindictment delay violates due process only when it is unjustifiable
and causes actual prejudice. State v. Jones, 148 Ohio St. 3d 167, 2016-Ohio-5105, 69
N.E.3d 688, ¶ 12. The Ohio Supreme Court has established a burden-shifting
framework for analyzing preindictment delay due process claims. State v. Whiting,
84 Ohio St. 3d 215, 217, 702 N.E.2d 1199 (1998). Under this framework, a defendant
is first required to present evidence of actual prejudice; if actual prejudice is
established, the burden shifts to the state to produce evidence of a justifiable reason
for the delay. Id.
The mere “possibility that memories will fade, witnesses will become
inaccessible, or evidence will be lost is not sufficient to establish actual prejudice,”
because those are manifestations of the prejudice inherent in any delay. State v.
Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 105, citing United
States v. Marion, 404 U.S. 307, 326, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). However,
the Supreme Court of Ohio has rejected the argument that “any claim of actual
prejudice based on the death of a potential witness is too speculative to succeed
unless the defendant can establish precisely what that witness would testify to and
that the testimony would be directly exculpatory.” State v. Jones, 148 Ohio St. 3d
167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 27. Instead, courts are to undertake a case-
by-case consideration of the relevance of the lost evidence and its purported effect
on the defense. Id., citing State v. Walls, 96 Ohio St. 3d 437, 2002-Ohio-5059, 775
N.E.2d 829, ¶ 52.
“Actual prejudice exists when missing evidence or unavailable
testimony, identified by the defendant and relevant to the defense, would minimize
or eliminate the impact of the state’s evidence and bolster the defense.” Jones at
¶ 28, citing State v. Luck, 15 Ohio St. 3d 150, 157-158, 472 N.E.2d 1097 (1984). The
Luck court found that the grounds set forth by the defense in that case — deaths of
witnesses, the fading of memories, and the loss of evidence — “when balanced
against the other admissible evidence” established that the defendant suffered
actual prejudice. Luck at 157-158.
On appeal, Powell asserts that defense counsel’s motion to dismiss for
preindictment delay was “simply too general” and was premised on a deficient
investigation into “who was present before, during and after the respective incidents
and whether they would be available for trial.” Powell suggests that “had counsel
done even a modicum of leg work in advance,” counsel would have established
actual prejudice and had “a colorable motion to dismiss for preindictment delay.”
After careful consideration of the record and the arguments originally
set forth in counsel’s motion to dismiss for preindictment delay, we find nothing in
this record to support Powell’s position that he was prejudiced by unavailable
testimony. Without identifying specific individuals or the potential nature of their
lost testimony, Powell broadly asks this court to “infer” that there are potentially
exculpatory witnesses who are no longer available due to the delayed indictment.
However, the record is silent on this issue. Thus, this court has no information to
support Powell’s inference that potential defense witnesses have been lost.
Moreover, Powell’s argument concerning the adequacy of counsel’s investigation is
equally speculative. Presuming defense counsel exercised reasonable professional
judgment, we find nothing in this record to suggest defense counsel did not
investigate the availability of all witnesses who might have bolstered Powell’s
defense or minimized the impact of the state’s evidence.
Under the totality of the circumstances presented in this case, we are
unable to conclude that counsel rendered ineffective assistance of counsel by failing
to renew or supplement the motion to dismiss for preindictment delay.
Powell’s third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
RAYMOND C. HEADEN, J., CONCUR