State v. Smith , 2011 Ohio 3581 ( 2011 )

[Cite as State v. Smith, 2011-Ohio-3581.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95541
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STANLEY SMITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-532637
BEFORE: Rocco, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: July 21, 2011
-i-
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Denise J. Salerno
Andrew J. Santoli
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant Stanley Smith appeals from his convictions
for aggravated burglary, aggravated robbery, and kidnapping, all with
firearm specifications, for theft, and for having a weapon while under
disability (“HWD”), and from the sentence imposed for those convictions.
{¶ 2} Appellant presents six assignments of error. He argues the
lower court erred in failing to either declare a mistrial or order a continuance
when, during trial, the prosecution revealed it possessed information not
previously disclosed to the defense. He further argues the trial court
violated his constitutional right to confront witnesses when it permitted
certain testimony into evidence. He argues the trial court erred when it
denied his motions for acquittal and in imposing sentences on all counts.
Finally, he claims his trial counsel rendered ineffective assistance.
{¶ 3} Upon a review of the record, this court cannot find any reversible
error occurred. Consequently, appellant’s convictions and sentences are
affirmed.
{¶ 4} Appellant’s convictions result from an incident that occurred
during a poker game. The host, Matthew Shultz, called some of his regular
players for a game to be held at his Lake Road apartment on the evening of
October 26, 2009.
{¶ 5} Six people eventually arrived, viz., Christopher Foertch, Thomas
Gross, Charlie Ha, Khai Nguyen, Simon Moujsa, and, lastly, Jonathan
Powell. As the evening progressed, Shultz noticed that Powell’s behavior
seemed unusual. Powell was using his cell phone, “texting” extensively on it
rather than playing poker, drinking beers at a fast rate, and “wandering
around” the apartment.
{¶ 6} Powell also left the apartment twice. The first time, Shultz
thought Powell went to smoke; however, the second time, Powell left his
“black and mild cigar” at the table when he left. About thirty minutes later,
Shultz heard a knock at his door. Foertch walked over to open it.
{¶ 7} When he pulled, Powell “came flying through” and fell to the
floor. Two men holding guns stood at the threshold. The first man, later
identified as appellant’s cousin, Duane Smith, ordered everyone to get on the
floor and to stay quiet. All the players obeyed.
{¶ 8} Duane demanded that everyone remove their pants and empty
their pockets as he and his accomplice, later identified as appellant, each
opened a plastic trash bag. Duane then proceeded directly to Shultz, who
had fallen backward from his chair.
{¶ 9} As the host of the game, Shultz acted as the “bank”; he held all
the money the players traded for betting chips. Duane put the gun to
Shultz’s head and asked him where the money was. Shultz handed it over.
{¶ 10} Duane and appellant both collected items from the other players,
placing “pants, cell phones and belongings” into the bags. They then herded
all the players into the kitchen. When the victims were thus “packed”
together, one of the assailants began to spray a burning substance at them.
With the victims agitated and confounded by this assault, the assailants
made their escape.
{¶ 11} The victims waited until they were certain they were alone to act.
They found a cell phone misplaced beneath the furniture and called the
police. Shultz watched Powell, whose behavior seemed suspicious; Shultz
believed Powell’s demeanor during the incident “looked fake.” Shultz
reported his suspicions to the police.
{¶ 12} The case was assigned to Cleveland police detective Tom Lynch.
After speaking with Shultz and some of the other victims, Lynch learned
Powell had left the area. Lynch nevertheless investigated Powell’s cell phone
records; Lynch discovered many of Powell’s messages that night were to and
from his then-girlfriend, Reba Smith. When Lynch questioned Reba, she
provided an oral statement.
{¶ 13} Reba admitted Powell asked her to help him on the night of the
incident. She claimed Powell asked her only to drive his truck for him.
Reba identified her two cousins, Duane Smith and appellant, as the men who
followed Powell into the apartment building and returned ten minutes later
with full trash bags. Reba’s information led Lynch to show photo arrays to
Shultz. Shultz positively identified Duane as one of the assailants.
{¶ 14} After arresting Duane Smith, Lynch interviewed him. Duane
also provided an oral statement. Duane indicated Powell planned the
robbery, and claimed Reba understood what was occurring. Duane admitted
taking part in the incident, but he refused to identify the other man involved
with Powell’s plan; Duane referred to him only as “the other dude.”
{¶ 15} As a result of Lynch’s investigation, appellant was charged in this
case along with Powell, Duane, and Reba in a twenty-one count indictment.
Appellant was charged on twenty of the counts, as follows: Count 1,
aggravated burglary; Counts 2 through 6, aggravated robbery; Counts 7
through 12, kidnapping; Counts 13 through 19, theft; and Count 21, HWD.
Counts 1 through 12 each contained both one- and three-year firearm
specifications.
{¶ 16} Appellant’s case proceeded to a jury trial. The state presented
the testimony of three of the victims, Reba, Powell, and Lynch. After the
trial court denied his motions for acquittal, appellant presented two witnesses
in his defense. Appellant’s witnesses asserted he was in their company at
the time of the incident.
{¶ 17} The jury ultimately convicted appellant on all of the charges
against him. In sentencing appellant, the trial court imposed a prison term
that totaled ten years.
{¶ 18} Appellant challenges his convictions and sentence with the
following six assignments of error.
“I. Defendant was denied due process of law when the Court failed to
grant a mistrial when the prosecutor had failed to provide timely
discovery.
“II. Defendant was denied due process [of] law and a fair trial [w]here
the Court denied a continuance to defendant where there was a failure
to timely disclose potential exculpatory material prior to trial.
“III. Defendant was denied his Sixth Amendment right to
confrontation and cross-examination when the Court allowed the
investigating detective to relate a statement by a non-testifying
co-defendant.
“IV. Defendant was denied due process of law when the Court
overruled his motion for judgment of acquittal.
“V. Defendant was denied effective assistance of counsel.
“VI. Defendant was denied due process of law and subjected to
unconstitutional multiple punishments when he was separately
sentenced for merged offenses.”
{¶ 19} Appellant’s first and second assignments of error are related and
will be addressed together. In them, appellant argues that he was entitled to
either a mistrial or a continuance because the prosecution committed a
discovery violation by withholding potentially exculpatory information until
his trial was well underway. This argument lacks merit.
{¶ 20} A lower court has discretion in deciding whether to grant either a
mistrial or a continuance of trial proceedings. State v. Sage (1987), 31 Ohio
St.3d 173, 182, 510 N.E.2d 343; State v. Unger (1981), 67 Ohio St.2d 65, 67,
423 N.E.2d 1078, syllabus. A reviewing court will not reverse the decision
unless the trial court abused its discretion. Id. “Abuse of discretion
connotes more than an error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 21} A mistrial should not be ordered in a criminal case merely
because some error or irregularity has occurred, unless the substantial rights
of the accused adversely are affected; this determination primarily is left to
the trial court. State v. Reynolds (1988), 49 Ohio App.3d 27, 33, 550 N.E.2d
490. A mistrial is necessary only when a fair trial no longer is possible.
State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1, citing Illinois
v. Somerville (1973), 410 U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425.
Thus, the essential inquiry on a motion for mistrial is whether the
substantial rights of the accused were adversely or materially affected. State
v. Goerndt, Cuyahoga App. No. 88892, 2007-Ohio-4067, ¶21.
{¶ 22} In considering whether the trial court abused its discretion in
denying a continuance, this court considers the options available to the trial
court under Crim.R. 16(E)(3). The rule provides:
{¶ 23} “If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply with this
[discovery] rule * * * , the court may order such party to permit the discovery
or inspection, grant a continuance, or prohibit the party from introducing in
evidence the material not disclosed, or it may make such other order as it
deems just under the circumstances.”
{¶ 24} This court has held that, when the prosecution fails to disclose
potentially exculpatory evidence, the trial court must consider the following
factors in deciding the appropriate way to ensure the fairness of the
proceeding: 1) whether the prosecution’s failure to disclose was a willful
violation of Crim.R. 16; 2) whether foreknowledge of the evidence would have
benefitted the accused in the preparation of his defense; and, 3) whether the
accused is prejudiced by admission of the evidence. State v. Saucedo,
Cuyahoga App. No. 90327, 2008-Ohio-3544, at ¶25, citing State v. Parson
(1983), 6 Ohio St.3d 442, 445, 453 N.E.2d 689.
{¶ 25} The record reflects that when Lynch investigated Powell’s cell
phone records, those records revealed Powell communicated with several
other numbers on the night of the incident. Most of Powell’s outgoing text
messages went to Reba. However, according to the provider, one number
Powell used belonged to a woman named “M.G.”1 whom Lynch could neither
locate nor link to the incident. This number had a “956” prefix.
{¶ 26} Powell sent to the “956” number the following text message at
9:17 p.m.:
{¶ 27} “Its only 8 people here now....So we gonna wait lil bit......”
{¶ 28} Seven minutes later, Powell sent a text message to Reba’s cell
phone number that read as follows:
{¶ 29} “Ask stew2 did he get my text[.]”
1Since this woman was not involved in the incident, this court will refer to
her by initials.
2Reba and Powell both testified that appellant’s nickname was “Stu.”
{¶ 30} Just before returning to the front of the building to let the two
men into the building, Powell sent a text message to Reba that stated, “Tell
them to cum [sic] on .... Remember the [guy] in the red shirt .... He got the
money[.]”
{¶ 31} During Powell’s direct examination, he testified that the “956”
number was appellant’s. On cross-examination, armed with the information
the prosecutor provided in discovery, i.e., that the “956” number belonged to
M.G., the defense used Powell’s cell phone records to challenge his credibility.
However, at that time, Powell suddenly testified that a different number on
his cell phone records belonged to M.G., who was a friend of his.
{¶ 32} The record reflects this testimony surprised the prosecutor and
Lynch. After Lynch requested additional information from the cell phone
provider, the provider admitted it had made a mistake. The “956” number
belonged to a “minute phone” that lacked any “subscriber information”;
therefore, no one could determine who had used it. The prosecutor informed
defense counsel and the trial court of this development.
{¶ 33} Upon obtaining this new information, and realizing Powell’s
credibility could not be challenged on the basis of his failure to recognize the
“956” number as M.G.’s number, defense counsel requested the trial court to
either declare a mistrial or grant a continuance so that he could reconsider
his strategic options. The trial court conducted a lengthy hearing out of the
presence of the jury to ascertain both the circumstances surrounding the
misunderstanding and its effect on appellant’s defense of alibi.
{¶ 34} At the conclusion of this interlude, the trial court denied
appellant’s request. The court found that the prosecution had neither
wilfully committed a discovery violation nor withheld potentially exculpatory
information. However, the trial court decided to provide a jury instruction
explaining the defense had been asking Powell questions based upon a
misunderstanding, and “the fact that [defense counsel] engaged in that line of
cross-examination [wa]s not to be held against the defendant or [defense
counsel] in any way.” The record reflects defense counsel acquiesced in the
trial court’s resolution of the difficulty. State v. Greene, Cuyahoga App. No.
91104, 2009-Ohio-850.
{¶ 35} The record contains no indication that the prosecution’s failure to
disclose the information was willful. Moreover, this court cannot conclude
that appellant was prejudiced. The information, although not exculpatory,
did not actually inculpate appellant, did not affect his defense of alibi, and, at
any event, the record otherwise contains overwhelming evidence against him.
Id.{¶ 36} For the foregoing reasons, appellant’s first and second
assignments of error are overruled.
{¶ 37} Appellant argues in his third assignment of error that the trial
court violated his constitutional right of confrontation when it permitted
Lynch during his direct examination to relate Duane’s oral statement. This
argument is rejected for three reasons.
{¶ 38} First, the record reflects Duane was available to testify. Indeed,
he professed a desire to aid in appellant’s defense, but appellant did not want
him to. Thus, appellant simply refused to exercise his right of confrontation.
See, e.g., State v. Lynch, Cuyahoga App. No. 84637, 2005-Ohio-3392. He
cannot now claim on appeal that the trial court denied him his right.
{¶ 39} Second, Duane’s statement neither named nor, in itself,
reasonably implicated appellant as one of the participants in the robbery. In
re Watson (1989), 47 Ohio St.3d 86, 91, 548 N.E.2d 210.
{¶ 40} In addition, the trial court properly determined Duane’s
extrajudicial statement was admissible pursuant to Evid.R. 804(B)(3).
Lynch, ¶24. Duane’s statement was contrary to his interest, and
corroborating circumstances clearly indicated the statement’s
trustworthiness, since the details of the incident Duane described in his
statement already had been outlined by the other witnesses to the incident.
{¶ 41} Appellant’s third assignment of error, accordingly, is overruled.
{¶ 42} Appellant argues in his fourth assignment of error that his
convictions are not supported by sufficient evidence and are against the
manifest weight of the evidence. This assignment of error also is overruled.
{¶ 43} Whether the evidence is legally sufficient to sustain a verdict is a
question of law. State v. Robinson (1955), 162 Ohio St. 486, 124 N.E.2d 148.
A conviction based on legally insufficient evidence constitutes a denial of due
process. Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d
652, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560.
{¶ 44} On review, the appellate court must determine, after viewing the
evidence in a light most favorable to the prosecution, whether any rational
trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574
N.E.2d 492; Jackson v. Virginia.
{¶ 45} A review of the manifest weight of the evidence is subjected to a
different standard. Article IV, Section 3(B)(3) of the Ohio Constitution
authorizes appellate courts to assess the weight of the evidence
independently of the fact-finder. Thus, when a claim is assigned concerning
the manifest weight of the evidence, an appellate court “has the authority and
duty to weigh the evidence and to determine whether the findings of * * * the
trier of fact were so against the weight of the evidence as to require a reversal
and a remanding of the case for retrial.” State v. Greene, Cuyahoga App. No.
91104, 2009-Ohio-850, ¶38, citing State ex rel. Squire v. Cleveland (1948), 150
Ohio St. 303, 345, 82 N.E.2d 709.
{¶ 46} The court in State v. Martin (1983), 20 Ohio App.3d 172 at 175,
485 N.E.2d 717, set forth the proper test to be utilized when addressing the
issue of manifest weight of the evidence as follows:
{¶ 47} “The court, reviewing the entire record, weighs the evidence and
all reasonable inferences, considers the credibility of the witnesses and
determines whether in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.”
{¶ 48} However, this court must remain mindful that the weight to be
given the evidence and the credibility of the witnesses are matters left
primarily to the jury. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d
212.
{¶ 49} In this case, appellant’s convictions are supported by both
sufficient evidence and the manifest weight of the evidence. Both Reba and
Powell identified appellant as the other gunman, and testified appellant
aided Duane in committing the home invasion and the robbery of the men
present in Shultz’s apartment. Reba admitted that she received numerous
text messages from Powell that day regarding his idea to “make some money,”
and that she drove Powell to the west side in his truck. Reba testified that
Duane and appellant were already at the apartment building in another car
and were waiting for them when they arrived.
{¶ 50} Reba testified that she, Duane, and appellant remained outside
the building in Powell’s truck, and she acknowledged Powell kept them
informed by way of his text messages. In one of Powell’s messages, he
instructed them to focus on the man in the red shirt when they entered the
apartment, because he held the money. Shultz testified he wore a red shirt
that night.
{¶ 51} Powell testified that Duane and appellant both took part in the
crimes committed; they both followed Powell into the building, and both
entered Shultz’s apartment behind him with guns drawn. Powell testified
that both Duane and appellant gathered everyone’s valuables before herding
them into the kitchen area.
{¶ 52} Since Reba’s and Powell’s similar descriptions of the
circumstances surrounding the incident were corroborated, not only by the
testimony of Shultz and of the other two victims who appeared for trial, but
also by Duane’s statement, a reasonable juror could have found all the
essential elements of the offenses were proved by the state. Thus,
appellant’s convictions were supported by sufficient evidence.
{¶ 53} Appellant’s convictions also were supported by the manifest
weight of the evidence. Although appellant’s sister testified appellant was
with her playing cards on the east side of town at the time the robbery was in
progress, her credibility was undermined at critical points.
{¶ 54} On direct examination, appellant’s sister gave the impression of
possessing a good memory for telephone numbers, and she acknowledged she
sent appellant text messages often. However, during cross-examination,
she could not remember appellant’s phone number. Moreover, when the
records of the “956” number were shown to her, appellant’s sister also could
not explain why, in the days around the time of the robbery, she sent text
messages to that number, because she asserted she did not know to whom it
belonged.
{¶ 55} In light of the record, this court cannot find the jury lost its way
in determining that appellant was the “other dude” with whom Duane
committed the offenses that night. Consequently, appellant’s fourth
assignment of error also is overruled.
{¶ 56} Appellant argues in his fifth assignment of error that his trial
counsel provided ineffective assistance in several respects. This court
disagrees.
{¶ 57} In order to successfully assert ineffective assistance of counsel
under the Sixth Amendment, a defendant must show not only that the
attorney made errors so serious that he was not functioning as “counsel,” as
guaranteed by the Sixth Amendment, but also that the deficient performance
was so serious as to deprive defendant of a fair and reliable trial. Strickland
v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.
Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶ 58} There are many ways to provide effective assistance in any given
case, therefore, scrutiny of counsel’s performance must be highly deferential,
and there will be a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. Id.; see, also, Vaughn v.
Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164. Counsel will not be
deemed ineffective for failing to make futile motions. State v. Leonard,
Cuyahoga App. No. 93496, 2010-Ohio-3601, ¶27.
{¶ 59} Appellant initially complains that trial counsel failed to object
when Lynch described what each of the victims reported had been taken
during the robbery. Appellant contends the testimony was inadmissible
hearsay.
{¶ 60} In State v. Blevins (1987), 36 Ohio App.3d 147, 521 N.E.2d 1105,
the court held that, under certain circumstances, out-of-court statements
offered to explain a police officer’s conduct during an investigation are
admissible as non-hearsay evidence. Since the potential for abuse is great,
however, the circumstances are limited. Id.{¶ 61} Appellant is correct in asserting that Lynch’s testimony in this
regard was improper. Nevertheless, the error was harmless in light of the
other, overwhelming evidence concerning the specifics of the robbery. State
v. Cochran, Geauga App. No. 2006-G-2697, 2007-Ohio-345, ¶16.
{¶ 62} Shultz’s testimony indicated each participant in the poker game
brought approximately a thousand dollars, and that the robbers took all the
money he held for the players. Gross and Foertch both testified the robbers
took approximately two thousand dollars from them. Under these
circumstances, defense counsel’s omission cannot, by itself, be deemed
ineffective assistance.
{¶ 63} Appellant also complains that defense counsel failed to object to
Lynch’s testimony that Duane’s and Powell’s versions of the incident were
consistent. Appellant contends Lynch thus was improperly permitted to
vouch for their credibility. However, in context, Lynch actually was
explaining the reason he pursued charges against appellant as another
perpetrator of the incident. State v. Steward, Cuyahoga App. No. 80993,
2003-Ohio-1337, ¶28. Counsel would have no reason to object to this
testimony.
{¶ 64} A review of the record demonstrates appellant’s trial counsel
defended the case with vigor and thoroughness. Counsel simply was
unsuccessful; he cannot be faulted for failing either to surmount the
overwhelming evidence of his client’s guilt, or to challenge admissible
evidence.
{¶ 65} Appellant’s fifth assignment of error, accordingly, also is
overruled.
{¶ 66} In his sixth assignment of error, appellant argues that the trial
court wrongly imposed sentence on each of his convictions, because the court
merged many of them pursuant to R.C. 2945.21(A). Appellant’s contention is
rejected.
{¶ 67} In State v. Logan (1979), 60 Ohio St.2d 126, 131, 397 N.E.2d
1345, the supreme court made the following observation:
{¶ 68} “It is apparent that * * * [R.C. 2941.25] has attempted to codify
the judicial doctrine sometimes referred to as the doctrine of merger * * *
which holds that ‘a major crime often includes as inherent therein the
component elements of other crimes and that these component elements, in
legal effect, are merged in the major crime.’ [Footnotes and citation
omitted.]”
{¶ 69} The supreme court later noted:
{¶ 70} “Because R.C. 2941.25(A) protects a defendant only from being
punished for allied offenses, the determination of the defendant’s guilt for
committing allied offenses remains intact, both before and after the merger of
allied offenses for sentencing.” State v. Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2, 922 N.E.2d 182, paragraph three of the syllabus (emphasis
added).
{¶ 71} The foregoing applies because Crim.R. 32(C) states in part that
“[a] judgment of conviction shall set forth the plea, the verdict or findings,
and the sentence.” Moreover, in State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163, the supreme court held that the
requirements of Crim.R. 32(C) are jurisdictional and that absent compliance
with Crim.R. 32(C), there can be no final, appealable order under R.C.
2505.02. Id. at syllabus. Baker adhered to long-standing precedent that a
criminal action is not final for purposes of appeal until the trial court has
separately disposed of each count in the indictment. State v. Waters,
Cuyahoga App. No. 85691, 2005-Ohio-5137; State v. Cooper, Cuyahoga App.
No. 84716, 2005-Ohio-754.
{¶ 72} With the foregoing in mind, this court stated in pertinent as
follows in State v. White, Cuyahoga App. No. 92972, 2010-Ohio-2342, ¶61-62:
{¶ 73} “ * * * Merger thus does not mean that no sentence is announced
for the allied offense — that would violate Crim.R. 32(C). Instead, merger of
sentences implies that a sentence is announced for the allied offense but
literally merged into another offense so that the defendant serves a single term.
This conclusion is consistent with the supreme court’s finding that the
imposition of a concurrent sentence for an allied offense causes prejudice
because it constitutes a second conviction in violation of R.C. 2941.25. See
State v. Underwood, 2010-Ohio-1, at ¶31, [124 Ohio St.3d 365, 922 N.E.2d
923] (citations omitted).
{¶ 74} “When there has been a guilty finding on an allied offense, the
sentencing judge must comply with Crim.R. 32(C) by announcing a sentence
on all counts for which the defendant has been found guilty, including the
allied offense. It must then allow the state to elect on which of the two allied
offenses it wishes to proceed. The court must clearly note the election both
in court at the time of sentencing and in its judgment of conviction. It must
further state that the sentence on the non-elected count has been ‘merged’
into the elected count pursuant to R.C. 2941.25. By announcing a sentence
for the allied offense, the court will comply with Crim.R. 32(C). By merging
the sentence for the non-elected allied offense into the elected offense, the
court will comply with R.C. 2941.25.” (Emphasis added.)
{¶ 75} A review of the record in this case demonstrates the trial court
fully complied with its duties as described in White. Since the trial court
committed no error, appellant’s sixth assignment of error also is overruled.
{¶ 76} Appellant’s convictions and sentence are affirmed.
{¶ 77} It is ordered that appellee recover from appellant costs herein
taxed.
{¶ 78} The court finds there were reasonable grounds for this appeal.
{¶ 79} 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 convictions 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.
________________________________
KENNETH A. ROCCO, JUDGE
JAMES J. SWEENEY, P.J., CONCURS
EILEEN A. GALLAGHER, J., DISSENTS
(SEE ATTACHED DISSENTING OPINION)
EILEEN A. GALLAGHER, J., DISSENTING:
{¶ 80} For the following reasons, I respectfully dissent from the majority
opinion. Because I find that the trial court violated Smith’s Sixth
Amendment right of confrontation, and further, improperly sentenced Smith
to a first-degree felony on all six counts of kidnapping when the verdict forms
did not delineate the degree of felony, I would vacate Smith’s convictions and
sentence.
{¶ 81} In his third assigned error, Smith argues the trial court violated
his Sixth Amendment right of confrontation when it allowed Detective Lynch
to relate Duane Smith’s out-of-court statement. I disagree with the majority
opinion’s conclusion that this assigned error lacks merit.
{¶ 82} Evid.R. 804 sets forth exceptions to the hearsay rule that apply
when the declarant is unavailable:
(A) Definition of unavailability
‘Unavailability as a witness’ includes any of the following situations in
which the declarant:
***
“(2) persists in refusing to testify concerning the subject matter of his
statement despite an order of the court to do so; * * *
***
“(5) is absent from the hearing and the proponent of the declarant’s
statement has been unable to procure the declarant’s attendance (or in
the case of a hearsay exception under division (B)(2), (3), or (4) of this
rule, the declarant’s attendance or testimony) by process or other
reasonable means. A declarant is not unavailable as a witness if the
declarant’s exemption, refusal, claim of lack of memory, inability, or
absence is due to the procurement or wrongdoing of the proponent of
the declarant’s statement for the purpose of preventing the witness
from attending or testifying.
(B) Hearsay exceptions
{¶ 83} The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing
of the same or a different proceeding, or in a deposition taken in
compliance with law in the course of the same or another proceeding, if
the party against whom the testimony is now offered, or, in a civil
action or proceeding, a predecessor in interest, had an opportunity and
similar motive to develop the testimony by direct, cross, or redirect
examination. Testimony given at a preliminary hearing must satisfy
the right to confrontation and exhibit indicia of reliability.
(3) Statement against interest. A statement that was at the time of its
making so far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarant’s position would not have
made the statement unless the declarant believed it to be true. A
statement tending to expose the declarant to criminal liability, whether
offered to exculpate or inculpate the accused, is not admissible unless
corroborating circumstances clearly indicate the truthworthiness of the
statement.”
{¶ 84} In the present case, the state filed a motion in limine to call
Duane Smith as an adverse or court witness. Smith opposed this motion and
the trial court conducted an extensive hearing on the issue outside of the
presence of the jury. Tr. 363-379, 485-501. After determining that the
state’s ability to call the witness hinged on whether Duane Smith would
refuse to testify based on his Fifth Amendment right against
self-incrimination, the court brought Duane Smith into the courtroom. The
court advised Duane of his Fifth Amendment right not to testify and that his
appellate counsel advised him to refuse to testify. Tr. 488. Nonetheless,
Duane informed the court that he wanted to testify, that he wanted to help
his cousin. Tr. 491. At the end of the hearing, the court denied the state’s
request to call Duane Smith.
{¶ 85} Later, during the direct examination of Detective Lynch, the state
sought to admit Duane’s out-of-court statement to Lynch, based on the
unavailability of Duane Smith. Tr. 610. Specifically, the state sought to
admit the statement pursuant to Evid.R. 804(B)(3), a statement against party
interest. Smith opposed the state’s action. The trial court ultimately
allowed Duane’s out-of-court statement through the testimony of Detective
Lynch.
{¶ 86} The Ohio Supreme Court has held that a two-part test
determines whether admitting hearsay testimony of an unavailable witness
violates the criminal defendant’s right of confrontation. State v. Blakely,
Lucas App. No. L-03-1275, 2006-Ohio-185, citing State v. Smith (1990), 49
Ohio St.3d 137, 144, 551 N.E.2d 190. First, the witness whose testimony is
offered must be unavailable. Id. The second prong of the test requires the
proffered statement to “bear sufficient indicia of reliability.” Id., citing Ohio
v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597.
{¶ 87} The first prong of the test is a rule of necessity. State v. Keairns
(1984), 9 Ohio St.3d 228, 230, 460 N.E.2d 245. Generally, this requires a
showing that the declarant is unavailable to testify. Id., citing Roberts. A
witness is not considered unavailable unless the prosecution has made
reasonable efforts in good faith to secure his presence at trial. Id., citing
Barber v. Page (1968), 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed. 2d 255; Roberts.
This reflects the preference for face-to-face confrontation, which allows
demeanor to be observed and the import of the testimony to be more readily
comprehended. Id. The proponent of the evidence has the burden of
establishing that such efforts have been made. See Keairns, citing Roberts;
State v. Madison (1980), 64 Ohio St.2d 322, 327, 415 N.E.2d 272.
Furthermore, the evidence of unavailability “must be based on the personal
knowledge of witnesses rather than upon hearsay not under oath, at least
when unavailability has not been clearly conceded by defendant.” Keairns,
quoting Smith. See, also, State v. Workman, 171 Ohio App.3d 89,
2007-Ohio-1360, 869 N.E.2d 713.
{¶ 88} Regarding the first prong of the test, the record reveals that
Duane Smith was available and willing to testify at all times. Accordingly,
although the trial court attempted to deem him “unavailable” based on a prior
defense objection, Duane Smith was actually present and available to take
the witness stand. The law requires us to go no further in our analysis.
Duane Smith was present and willing to waive his Fifth Amendment right
against self incrimination and therefore, he cannot be deemed unavailable for
purposes of Evid.R. 804(B)(3).
{¶ 89} Thus, I would conclude that the record in the present case is
insufficient to establish the showing of unavailability required by Evid.R. 804
or the Confrontation Clause. See Keairns; Workman. Furthermore, I do not
find the trial court’s attempt to deem Duane Smith unavailable overcomes the
fact that Duane Smith was in fact present and willing to testify. Because the
state did not meet the first prong of the two-part test set forth in Smith, it is
not necessary for us to address the second prong of the test requiring the
proffered statement to “bear sufficient indicia of reliability.” I would
therefore sustain Smith’s third assignment of error.
{¶ 90} Moreover, although I do not find the error sufficient enough to
warrant reversal, I do find problematic the court’s refusal to grant a
continuance or a mistrial after the state revealed the inaccurate phone
records to the defense and the court. The crux of the state’s case was the
phone records between the various defendants, which they had in their
possession from December 2009. Although the error addressed in
assignments of error one and two was not discovered until the middle of trial,
Smith’s counsel was not even given an opportunity to research the phone
records before trial commenced. The state handed over the records during
trial and the defense did the best it could under the limited time constraints.
Knowing all these facts, I believe that the trial court erred in not granting, at
a minimum, a continuance to allow Smith’s counsel more time to review the
records.
{¶ 91} Lastly, Smith’s sentence on Counts 8 through 13 for kidnapping,
a felony of the first degree, do not comport with the Ohio Supreme Court’s
rule announced in State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860
N.E.2d 735. In Pelfrey, the Supreme Court held that “a verdict form signed
by a jury must include either the degree of the offense of which the defendant
is convicted or a statement that an aggravating element has been found to
justify convicting a defendant of a greater degree of a criminal offense.” Id.at syllabus.
{¶ 92} In the present case, the verdict forms on the charges of
kidnapping do not include either the degree of the felony or a statement that
an aggravating element has been found. Accordingly, the remedy according
to Pelfrey is that Smith can only be convicted of the least degree of the offense
charged. Id.{¶ 93} Pursuant to R.C. 2905.01(C), kidnapping is an aggravated felony
of the first degree; however, if the offender releases the victim in a safe place
unharmed, kidnapping is an aggravated felony of the second degree.
Accordingly, based on the holding of Pelfrey, the maximum charge Smith
could be convicted and sentenced on is a second-degree felony kidnapping
charge. Smith must be resentenced on counts eight through thirteen.
{¶ 94} Based on the foregoing, I would reverse Smith’s conviction and
vacate the judgment entry of sentence of the court of common pleas. I would
then remand the matter for proceedings consistent with this dissent.