State v. Griffith , 2012 Ohio 2628 ( 2012 )

[Cite as State v. Griffith, 2012-Ohio-2628.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97366
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICKY C. GRIFFITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-549701
BEFORE: Stewart, P.J., Boyle, J., and Rocco, J.
RELEASED AND JOURNALIZED: June 14, 2012
ATTORNEY FOR APPELLANT
Matthew J. King
1280 West Third Street, 1st Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: John P. Colan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} Defendant-appellant Ricky C. Griffith appeals from his conviction for
felonious assault in connection with an incident in which he backed his pickup truck at a
victim but did not hit her. He argues that the state failed to offer sufficient evidence that
he acted knowingly, that the jury’s verdict is against the manifest weight of the evidence,
and that trial counsel was ineffective in several respects, but notably for failing to seek
suppression of statements he made to the police.
I
{¶2} Griffith first argues that the state failed to show that he acted knowingly as a
predicate for a conviction on felonious assault.
{¶3} We determine whether the evidence is sufficient to sustain a verdict by
examining the evidence in the light most favorable to the prosecution and determining
whether any rational trier of fact could have found that the prosecution proved the
essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio
St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 78, quoting Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶4} The state charged Griffith under R.C. 2903.11(A)(2): that he knowingly
caused or attempted to cause physical harm to the victim by means of a deadly weapon —
a motor vehicle.
{¶5} The evidence showed that the victim had parked her car in the parking lot of a
post office. She entered the post office, completed her business, and returned to her
parking space. A pickup truck was parked next to her car and she noticed a new paint
mark on the side of her car. The victim was trying to rub out the mark when Griffith
approached. She was apparently blocking his access to the door of his truck, so he told
her to “move out of the way, bitch.” She replied that he had hit her car and that she was
trying to rub out the mark he left. He said that he did not hit her car and called her a
“spic.” In light of this response, the victim asked Griffith to supply her with his
insurance information. He refused and tried to get her to move out of the way. When
she continued to block him, he pushed her, causing her to bounce off her car and into his
open truck door. The truck door slammed against Griffith’s finger. He screamed in
pain and said, “now I’m going to hit your car dumb spic bitch.” He then slammed his
truck door against her car, leaving a noticeable dent. Realizing that Griffith was leaving
the scene, the victim moved behind and just to the side of the truck to take a photograph
of his license plate. Griffith told her, “[g]o ahead, get a good picture, get it good, bitch.”
He then put the truck into reverse and backed up. She testified that she had to move out
of the truck’s way because she thought it was going to hit her.
{¶6} The victim called her father, an off-duty police officer who lived nearby, and
described the truck that Griffith drove. The father quickly located the parked truck and
waited for the police to arrive. The police questioned Griffith, who admitted that he had
an altercation with the victim, although he denied that he had left a paint mark on her car.
He said that the victim had gone “crazy” and slammed a door on his finger, so he left the
scene. He told the police that “he looked up in the rearview mirror, saw her behind the
car” and “gunned it to get out of there.”
{¶7} Griffith does not dispute that his truck could constitute a deadly weapon,
State v. Tate, 8th Dist. No. 87008, 2006-Ohio-3722, ¶ 23, so his argument is limited to the
question of whether he acted knowingly in attempting to cause the victim physical harm.
{¶8} R.C. 2901.22(B) defines the mental state of “knowingly” as:
A person acts knowingly, regardless of his purpose, when he is aware that
his conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when he is aware
that such circumstances probably exist.
{¶9} “The mental state of the offender is a part of every criminal offense in Ohio
except for those plainly imposing strict liability.” State v. Lozier, 101 Ohio St.3d 161,
2004-Ohio-732, 803 N.E.2d 770, ¶ 18.
{¶10} Because a person’s subjective mental state is not often proved by direct
evidence, “[i]t must ordinarily be proven by reference to the surrounding facts and
circumstances.” State v. Clark, 101 Ohio App.3d 389, 405, 655 N.E.2d 795 (8th
Dist.1995). The jury may thus presume the requisite intent when the natural and
probable consequences of a defendant’s action is to produce a result. State v. Caldwell,
79 Ohio App.3d 667, 678, 607 N.E.2d 1096 (4th Dist.1992).
{¶11} The state argues that the very broad appellate standard of review for the
sufficiency of evidence requires us to uphold the jury’s verdict because it was possible
that a rational trier of fact could have concluded that Griffith’s act of gunning his engine
as he reversed out of his parking space, despite knowing that the victim was behind the
truck, showed that he acted with an intent to injure her.
{¶12} Although we think the facts offered at trial tended to show more so that
Griffith acted recklessly (that is, he acted with heedless indifference to the consequences),
we are unable to say that no rational trier of fact could have concluded from the evidence
that Griffith acted knowingly. Griffith was angry because he had his finger smashed by a
car door. Being in that state of mind, he confirmed to a police sergeant that “he looked
up in the rearview mirror, saw her behind the car.” The victim likewise testified that
although she was standing slightly off to the side, she was “standing right behind the car,
like he moved while I was still standing there.” With knowledge that the victim was
standing behind his truck, he gunned the engine as he put the truck in reverse gear, saying
that he wished to “get out of there.” The large size of the truck made it almost certain
that the victim would have been injured had she not jumped out the way. The standard
of review we use for questions concerning the sufficiency of the evidence is such that we
are compelled to find that the state offered sufficient evidence to prove the felonious
assault count.
{¶13} Griffith argues in his second assignment of error that the jury’s verdict is
against the manifest weight of the evidence. Despite correctly noting that the sufficiency
of the evidence is conceptually distinct from the manifest weight of the evidence (with
appropriate citations to the relevant standard of review), Griffith does not make a separate
argument. Instead, he incorporates the same arguments he made in support of his claim
that the verdict was not supported by sufficient evidence. This fails the App.R. 16(A)(7)
obligation to offer an argument with respect to each assignment of error and “the reasons
in support of the contentions.” We therefore disregard it.
II
{¶14} Griffith next raises a number of arguments concerning trial counsel’s
performance at trial.
A
{¶15} A claim of ineffective assistance of counsel requires a defendant to show
that (1) the performance of defense counsel was seriously flawed and deficient and (2) the
result of the defendant’s trial or legal proceeding would have been different had defense
counsel provided proper representation. Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). This analysis requires two distinct lines of inquiry.
First, we determine “whether there has been a substantial violation of any of defense
counsel’s essential duties to his client.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989), paragraph two of the syllabus. When making this inquiry, we presume that
licensed counsel has performed in an ethical and competent manner. Vaughn v. Maxwell,
2 Ohio St.2d 299, 209 N.E.2d 164 (1965). Second, we determine whether “the defense
was prejudiced by counsel’s ineffectiveness.” Bradley, 42 Ohio St.3d 136, at paragraph
two of the syllabus. Prejudice requires a showing to a reasonable probability that but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Id. at paragraph three of the syllabus.
B
{¶16} Griffith first argues that counsel should have filed a motion to suppress
statements he made to the police in which he confirmed that he saw the victim standing
behind the truck when he “gunned” the engine in reverse gear and left the scene. He
maintains that the conversation took place during a custodial interrogation, but that he had
not been advised of his right to remain silent.
{¶17} In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), the Supreme Court held that custodial interrogations have the potential to
undermine the Fifth Amendment privilege against self-incrimination by possibly exposing
a suspect to physical or psychological coercion. Id. at 436. To guard against such
coercion, the court established a prophylactic procedural mechanism that requires that a
suspect receive a warning before custodial interrogation commences. Id. at 444.
Suspects in custody must be warned, among other things, that they have a right to remain
silent and that their statements may be used against them at trial.
{¶18} The Supreme Court has defined the term “custody” as the deprivation of
“freedom of action in any significant way.” Id. A suspect is in custody if, under the
totality of the circumstances, a reasonable person would not feel free to end the encounter
and leave. Yarborough v. Alvarado, 541 U.S. 652, 663-665, 124 S.Ct. 2140, 158
L.Ed.2d 938 (2004). Although the location of the interrogation is not dispositive, it is a
factor that courts consider when determining whether a suspect is in custody.
{¶19} Questioning by the police is thought to be less likely to rise to the level of a
custodial interrogation when it occurs in a defendant’s home. State v. Petriashvili, 8th
Dist. No. 92851, 2009-Ohio-6466, ¶ 18; State v. Hopfer, 112 Ohio App.3d 521, 546, 679
N.E.2d 321 (2d Dist.1996). This is because a person’s home is a place that “a reasonable
person would have felt free to terminate the interview * * *.” Yarborough, 541 U.S. at
664-665. Although Griffith was at a friend’s house at the time he spoke to the police,
there were no objective indications that he was not free to terminate the interview and
leave.
{¶20} Testimony at trial showed that the police arrived at the friend’s house where
the truck identified by the victim had been parked. At least two officers were admitted
into the house and Griffith was asked to “give his recollection of what happened.” By all
appearances, this questioning had none of the hallmarks of a custodial interrogation —
Griffith was not handcuffed or separated from the owner of the home as he spoke to the
police. By all accounts, he had a conversation with the police that lasted “well under a
half hour.” There was nothing objectively coercive about the atmosphere such that it
turned into a custodial interrogation at which the police were required to give Griffith his
Miranda warnings. Absent affirmative signs of coercion, we have no basis for finding
that counsel’s failure to file a non-meritorious motion to suppress Griffith’s statements
was prejudicial.
C
{¶21} Griffith next argues that trial counsel should have objected to the state’s
“attempts to indoctrinate the jury during voir dire” when the state established its own
version of what constitutes “reasonable doubt” by equating it to “[r]eason and common
sense.” We reject this contention because the state’s reference to reason and common
sense comports with R.C. 2901.05(E), which defines “reasonable doubt” as “a doubt
based on reason and common sense.”
D
{¶22} During jury selection, defense counsel told the prospective jurors:
[S]ometimes the world is black and white and sometimes the truth is in the
middle[.] * * * [Y]ou’re going to hear from [the victim] * * * and you’re
going to hear from Mr. Griffith. You’re going to hear the two versions of
this event * * *. This isn’t between [the victim] and Mr. Griffith, you are
going to hear two sides.
Griffith did not testify, however, and now complains that defense counsel should not have
created the expectation that he would be testifying when, in fact, he did not testify.
{¶23} The record on appeal suggests that Griffith, not trial counsel, made the
decision that he would not testify. At the close of the state’s evidence, trial counsel
informed the court that “[a]t this time, your honor, throughout the day discussing with Mr.
Griffith whether he was going to testify or not, and at this time he has decided not to.”
{¶24} We are aware of no precedent for the proposition that trial counsel performs
deficiently by following the defendant’s own instructions. “The language and spirit of
the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by
the Amendment, shall be an aid to a willing defendant — not an organ of the State
interposed between an unwilling defendant and his right to defend himself personally.”
Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Where
ethically and legally possible, a lawyer must abide by a client’s decisions regarding the
objectives of the representation. Prof.Cond.R. 1.2(a); State v. Cowans, 87 Ohio St.3d
68, 80-81, 717 N.E.2d 298 (1999). See also Coleman v. Mitchell, 268 F.3d 417, 448, fn.
16 (6th Cir.2001) (“[C]ounsel was not ineffective for following the defendant’s clear and
informed instruction.”).
{¶25} The transcript indicates that the decision to keep Griffith from testifying was
made after discussions “throughout the day” between Griffith and defense counsel. So
this is not a case where a snap decision had been made — the decision was the product of
discussion between attorney and client. In addition, this is not a case where defense
counsel made a unilateral decision without Griffith’s knowledge or over Griffith’s
objections. The record suggests that defense counsel acceded to Griffith’s instructions or
that Griffith agreed with defense counsel’s recommendation that he not testify.
{¶26} Griffith now argues that defense counsel should also have questioned
prospective jurors during voir dire “as to whether or not they could hear no story from the
Appellant and [respect] his right to remain silent.” Counsel’s failure to question jurors
during voir dire concerning their attitude towards a defendant who does not testify is not
an error that changes the outcome of the proceedings. The court instructed the jury that
Griffith had a constitutional right not to testify and that his failure to testify “must not be
considered for any purpose.” We presume that jurors follow the court’s instructions on
the defendant’s right not to testify. State v. Linville, 10th Dist. No. 04AP-917,
2005-Ohio-3150, ¶ 28-29.
{¶27} Additionally, we fail to see how it would be effective trial strategy for
defense counsel to assure the jury that the defendant will testify but ask it not to hold it
against the defendant if he does not. “Voir dire is largely a matter of strategy and
tactics.” State v. Lindsey, 87 Ohio St.3d 479, 489, 721 N.E.2d 995 (2000). Counsel
does not manage the jury’s expectations about the defendant’s possible testimony by
saying: “maybe he will, maybe he won’t.” Defense counsel obviously thought that
Griffith would be testifying at trial and conducted voir dire with that assumption.
Circumstances at trial apparently dictated a change in strategy. But regardless of the
reason for Griffith not testifying, that decision was a matter of trial strategy that we
cannot question after the fact.
E
{¶28} Finally, Griffith complains that trial counsel should have called as a witness
a friend of his who was on the scene at the time the events transpired. Griffith states that
the friend could have testified concerning Griffith’s questioning by the police and
possibly rebut some of the accusations made by the police officers about how Griffith
characterized his departure from the scene.
{¶29} A party seeking to establish ineffective assistance of counsel based on
failure to call a witness must establish that the witness’s testimony “would have
significantly assisted the defense and affected the outcome of the case.” State v. Dennis,
10th Dist. No. 04AP-595, 2005-Ohio-1530, ¶ 22; State v. Pierre, 8th Dist. No. 76228,
2000 WL 739517 (June 8, 2000).
{¶30} Griffith does not say what the witness would have testified to, only that he
“could have testified regarding the questioning of Appellant” and “possibly could have
controverted some of the accusations made by the Cleveland Police officers about how
Appellant characterized his leaving the area and backing up his truck to get away from
[the victim].” With his argument couched only in terms of possibility, it falls far short of
showing that the friend’s testimony would have “signficantly” assisted the defense.
{¶31} What is more, the evidence showed that although the friend was present
during the confrontation between Griffith and the victim, he saw nothing. The victim
said that the friend “walked away” before Griffith gunned the truck and the friend himself
told the police that “he didn’t see most of what happened at the initial incident.” Griffith
confirmed this fact in his recorded statement to the police, saying that after he backed out
from his parking space he went to pick up that same friend, so it is plain that the friend
could not have testified to the way Griffith backed up the truck. The friend’s testimony
would have been pointless.
{¶32} Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas to carry this judgment into execution. The
defendant’s conviction having been affirmed, any bail pending appeal 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.
MELODY J. STEWART, PRESIDING JUDGE
MARY J. BOYLE, J., and
KENNETH A. ROCCO, J., CONCUR