State v. Taylor , 2013 Ohio 186 ( 2013 )

[Cite as State v. Taylor, 2013-Ohio-186.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 23990
v. : T.C. NO. 08CR1087
GUDONAVON J. TAYLOR : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 25th day of January , 2013.
..........
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, 765 Troy Street, Dayton, Ohio
45404
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Gudonavon
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Taylor. Taylor’s appeal was originally filed by counsel for Taylor on April 19, 2010.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967),
original appellate counsel for Taylor asserted that there were no meritorious issues for
review. Taylor then filed a pro se brief, asserting nine assignments of error, and an amended
brief, asserting one additional assignment of error, and this Court concluded that six of
Taylor’s assigned errors had arguable merit. This Court appointed new counsel for Taylor,
who asserts three assigned errors herein.
{¶ 2} On April 7, 2008, Taylor was indicted on three counts of murder, two counts
of felonious assault, and one count of having weapons while under disability, each with a
three-year firearm specification. On April 18, 2008, Taylor was charged by indictment with
an additional charge of discharging a firearm on or near prohibited premises, with a
three-year firearm specification. On May 6, 2008, Taylor filed a Motion to Suppress
Pretrial Photographic Identification, and a hearing was held on October 14, 2008. On
January 29, 2009, Taylor filed a second motion to suppress. On September 9, 2009, the
State filed a motion requesting that the court rule on Taylor’s motions to suppress along with
a memorandum in opposition to the motions. On October 2, 2009, the trial court overruled
Taylor’s motions, except that it withheld its ruling relating to one witness, Iletha Veney,
until the witness could be produced by either party.
{¶ 3} On January 5, 2010, Taylor filed a motion to suppress all records relating to
a specific cell phone number, and on January 20, 2010, he filed a supporting memorandum,
which the State opposed. On February 2, 2010, the trial court overruled the motion.
{¶ 4} On March 9, 2010, the State filed a motion to exclude evidence. On March
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19, 2010, Taylor filed a motion in limine, and he filed a second liminal motion on March 22,
2010. The State filed a motion in limine on March 22, 2010.
{¶ 5} Following a jury trial on all charges except having weapons while under
disability, Taylor was found guilty of each offense and specification. Following a bench trial,
Taylor was found guilty of having weapons while under disability. The court sentenced
Taylor to an aggregate term of 41 years to life.
{¶ 6} The events giving rise to this matter occurred on December 7, 2007, when
Taylor, also known as DonDon, shot and killed Jerod Bryson, also known as JB, after an
argument over drugs and money that began at 116 East Lincoln Street, a boarding house in
Dayton, and ended with Bryson’s death on nearby Warren Street. Taylor was 18 years old
at the time of the shooting.
{¶ 7} At trial, Susan Allen, a forensic pathologist from the Miami County
Coroner’s Office, who performed an autopsy on Bryson, testified that she recovered seven
bullets from Bryson’s body, namely two from his back, one from his right hand, one from
the left side of his chest, one from the right side of his head, one from his pelvis, and one
from his neck. She stated that she found 14 separate and distinct entrance wounds to
Bryson’s body, and she testified that Bryson died of “multiple gunshot wounds of the head
and torso.”
{¶ 8} On cross-examination, defense counsel asked Allen if, “in part of your
training and your experience you do and have learned and analyzed the effects that certain
drugs can have on the body?” Allen answered affirmatively and then stated, “my area of
focus is on the presence or absence of drugs after death and not particularly what the effects
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are while the person is living. A toxicologist would perhaps be able to address behavior, for
example, while the person is alive.” The following exchange occurred:
Q. Doctor, I had asked you whether or not cocaine * * * affects the
brain * * * when you ingest the cocaine * * *. What does it affect within the
body. You’re aware that it affects the brain, are you not, Doctor?
A. Well, the drug is going to go through your bloodstream, so it will
have an effect on, you know, many different areas of your body. During the
autopsy looking at the brain and - - you know, grossly, just with your eye,
and then later looking at the brain underneath the microscope, you cannot see
an effect of cocaine use. If there is something that is happening during life,
that is possible, but again, a toxicologist would better be able to address that
question.
Q. * * * are you aware of any studies or articles that have indicated
that cocaine constricts the blood vessels within the brain?
***
A. I’m sure that cocaine does constrict blood vessels. If you’re
specifically talking about the brain and specific articles, no, I’m not aware of
a specific article.
***
Q. And as part of your work at the Coroner’s Office and part of your
scientific background and your education and your experience, you are aware,
are you not, Doctor, that the constriction of blood vessels within the brain
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affects your memory?
A. I - - I’m not going to address a question about behavior and
memory. A toxicologist could better answer that question.
{¶ 9} Defense counsel then inquired whether Allen was familiar with two
articles involving the physiological effect of crack cocaine on an individual’s memory.
Allen viewed the articles, namely Defendant’s Exhibits A and B, and then stated that she
was unfamiliar with them. Exhibit A is an article entitled “How Does Cocaine Affect the
Body?” by Traci Vandermark, a “student of health, fitness and nutrition at the International
Institute of Holistic Healing,” which was published at Livestrong.com, and Exhibit B is
entitled, “Researchers See how Cocaine Affects The Brain,” by William Cromie, which was
published in the Harvard University Gazette in 1998. After viewing the articles, Allen
stated, “If you would like for me to review the articles, I would be happy to review and give
an opinion if I can. I would have to read the articles in order to render an opinion.”
Defense counsel asked her to “take the time now to review” the articles, and the court
instructed, “[w]e’re not going to take the time to review that. The witness has testified
she’s not familiar with it.”
{¶ 10} On redirect examination, the following exchange occurred:
Q. You don’t have specific expertise on how drugs, albeit cocaine or other drugs,
affect a living person’s behavior?
A. That’s right.
{¶ 11} Louise Tamlyn, who was the only resident of 116 Lincoln Street, testified
that she allowed Taylor and Bryson to sell drugs from the common area of the home in
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exchange for crack cocaine. According to Tamlyn, on the evening of December 7, 2007,
around 8:00 p.m., Taylor, Bryson, another man named “V,” and his girlfriend, Brittany, were
drinking and “shooting crap” in the common area of the home when they “commenced
arguing.” At the time, Tamlyn was in her bedroom, which was adjacent to the common
area, with her door open. She stated that “[m]ainly DonDon and JB” were arguing about
“[m]oney and territory.” Tamlyn stated that she asked them to “quiet down,” and when the
arguing “erupted louder again,” she told everyone to leave. Tamlyn stated that everyone left
through the front door, and that Taylor and Bryson continued arguing for 10 or 20 minutes.
Tamlyn testified that she went upstairs to use the bathroom, at which time the arguing
“seemed to quiet down.”
{¶ 12} When Tamlyn returned to the first floor, she testified that she heard two
gunshots. Tamlyn stated that she looked out of the side window of the home toward the
intersection of Lincoln and Warren Streets, and she observed “JB dancing from foot to foot
out in the middle of the street,” and no one else. Tamlyn stated that she proceeded to her
front door, which she opened. Tamlyn stated that she observed “a man in black slacks or
jeans and a black parka coat with a fur hood running across the field” across the street from
her home. Tamlyn testified that she observed “JB fall to the ground” at 238 Warren Street.
Tamlyn stated that she heard “five to seven shots,” and that she “see the man run back
through here. And there happens to be a streetlight there and I had my porch light on. I see
the side of the face and I see the orange lining and I see DonDon come back through the
field.” Tamlyn stated that she did not see anyone else besides Taylor and Bryson. Tamlyn
stated that the five to seven shots she heard were subsequent to the two she initially heard,
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and that at the time they were fired, Bryson was on the ground and Taylor was “standing in
front of JB.” Tamlyn stated that her porch light was on at the time, and that a streetlight
also illuminated the area. Tamlyn stated that she was wearing her glasses when she opened
her front door.
{¶ 13} Tamlyn stated that on the evening of the incident, Taylor was wearing a
parka with a fur-trimmed hood and an orange lining, “V” was wearing a “black jacket”
without fur around the hood, and Bryson was wearing a “Carhart” jacket that was beige in
color. Tamlyn stated that she did not observe a gun in Taylor’s possession. She stated that
after Taylor ran back across the field, she heard a car door slam “further down Lincoln past
my house on the opposite side of the street, and it sounded like it proceeded down toward
Main Street.”
{¶ 14} According to Tamlyn, she bought or was given crack cocaine by both Taylor
and Bryson on the date of the incident, and she smoked crack cocaine twice that day at about
4:30 and 8:00 p.m. Tamlyn stated that a “crack high” lasts about “a half an hour.” Tamlyn
stated that she was “not at all” high when she heard the gunshots and observed Taylor
running across the field. After she heard the car leave the scene, Tamlyn stated that she put
her boots on, left her home and approached Bryson, who was “laying on his back” in the area
of 238 Warren Street. Tamlyn stated that before she reached Bryson, she observed the
owner of a nearby “catering place,” known as Benham’s, and she asked him to call 911.
Tamlyn stated that she then observed a police cruiser, which she flagged down, and she
stated that she showed the officer Bryson’s body, which had holes “in his head, shoulder and
his chest.” Tamlyn stated that Bryson was “barely breathing at the time.”
[Cite as State v. Taylor, 2013-Ohio-186.]
{¶ 15} According to Tamlyn, Chris Brown approached the scene, and the officers
asked her if he was the man who shot Taylor, and Tamlyn responded negatively. Tamlyn
stated that she did not observe Brown at the shooting. In speaking with the responding
officer on the night of the shooting, Tamlyn testified that she did not tell them everything
that she had observed or identify Taylor or Bryson because she was scared. Tamlyn stated
that she subsequently provided Taylor’s name to police on December 10, 2007, and she
identified Taylor in a photo spread at the Safety Building on December 17, 2007. Tamlyn
identified State’s Exhibit 46 as the coat worn by Taylor on the night of the shooting.
{¶ 16} On cross-examination, Tamlyn stated that in the six months prior to the
shooting, she used crack cocaine two or three times a month, and she did not consider her
usage to be “regular.” She stated that she suffers from bipolar disorder, anxiety and post
traumatic stress disorder and takes medication prescribed by a psychiatrist.
{¶ 17} Tamlyn stated that she met Brown “through JB and DonDon,” and that
Brown “had been in and out of the house bringing DonDon and JB customers” on the day of
the shooting, and that he had been there “after dark.” She stated that Brown arrived on the
scene approximately eight minutes after she flagged down the police officer, and that he was
alone. Tamlyn stated that Brown asked her what had happened, and that she told him “JB
had got shot” while out of the earshot of the police officers. Tamlyn stated that when
Taylor ran back across the field, she observed the orange lining of his parka, as well as the
side of his face.
{¶ 18} On redirect examination, Tamlyn stated that on the night of the shooting,
“V” and Brown wore jackets that came to their waists, and that Taylor’s jacket was below
the waist. Tamlyn acknowledged that at a probable cause hearing on March 11, 2008, she
9
described Taylor’s coat as “‘a black thigh-waist hooded parka.’”
{¶ 19} On recross-examination, Tamlyn stated that she closed her front door when
Taylor ran back across the field after shooting Bryson, because he would have been able to
see her face since the area was illuminated by the streetlight and porch light. She stated that
the crack cocaine that she smoked on the day of the incident in combination with her
prescription medication did not affect her ability to perceive, understand and remember the
events of the evening.
{¶ 20} Chris Brown testified that he witnessed the shooting. At the time of trial,
he was incarcerated at the Montgomery County Jail. He testified that on the night of the
shooting, in exchange for crack cocaine, he was acting as a “runner,” bringing customers to
Bryson and Taylor to purchase crack cocaine. Brown stated that he smoked some crack that
night which Bryson and Taylor gave him, and that at that time he was smoking crack every
day. On December 7, 2007, Brown stated that Taylor was dropped off by his step-father at
the Lincoln Street address. Brown testified that on that date he was present inside the
Lincoln Street address with Taylor, Bryson, “V,” and his girlfriend, Brittany. Regarding the
argument that preceded the shooting, Brown testified that “JB break up V and his girl from
fighting. And then he start getting at DonDon and everything, and then he threaten
DonDon, said he was going to get his gun and bring it down there and do something.”
Brown stated that Bryson and Taylor argued about money from the drug sales. After Tamlyn
told them to leave, Brown stated that Taylor, “V” and his girlfriend got into a car and left
“for like six minutes.” Brown stated that when the vehicle returned, Taylor got out of the
car, and Brown stated that he walked towards Taylor and said “‘Man, you need to let
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everything go.’” Brown stated that Taylor “kept walking, and JB was standing right there,”
and Taylor shot Bryson. According to Brown, Bryson “get back up and cross the street.
He was on his cell phone. And I seen DonDon went back across following behind him and
pushed him down to shoot him some more.” Brown stated that he heard a total of eight
shots. Brown stated that he “went towards like the Gospel Mission. I went up a little more
till I seen [Taylor] run back across field and get in the car and they took off.”
{¶ 21} Brown testified that after Taylor drove away, he “went back slowly to the
corner. Then I crossed over and went checking on him. And I was scared like walking up
on him and I was - - just started crying. And the police pulled up, told me to put my hands
up.” Brown stated that he did not see Tamlyn as he approached Bryson. Brown stated that
he was placed in a cruiser and was not truthful to officers about what he had seen. Brown
stated that he observed Tamlyn when he was in the back of the cruiser. He stated that he
was arrested on an outstanding warrant, and that he later told the police that Taylor killed
Bryson. Brown stated that Taylor wore dark clothes and a “jacket with a hoodie with fur
around it “ on the date of the shooting. Brown identified Exhibit 46 as Taylor’s jacket.
Brown stated that the crack cocaine he smoked did not affect his ability to perceive and
remember the shooting.
{¶ 22} Finally, Brown testified that he had contact with Taylor in the Montgomery
County Jail within the last two weeks before trial, and Brown stated that Taylor told him,
“‘Don’t testify’ - - he said my name was in his discovery packet. He said don’t testify
against him because his life is on the line. And he said if I - - if I don’t testify against him
he’ll have his girl put $40 on my books.”
[Cite as State v. Taylor, 2013-Ohio-186.]
{¶ 23} Larry Harris testified that at the time of the shooting, he resided at the
Marvin Gardens Apartments on Warren Street, on the second floor. Harris stated that he
knew Bryson and Taylor and had bought crack cocaine from them on Lincoln Street. He
testified that Taylor and “V” came to his apartment at about 6:00 p.m. on the date of the
shooting, and that they “started to gamble. Smoking weed, drinking.” Harris stated that
Albert Wynn, who is Bryson’s brother, also came by his apartment. Harris stated that he
owed Wynn five dollars, and that he gave him the money and told him to leave. He stated
that his landlord appeared at about 9:00 p.m., and that she told Taylor and “V” to leave.
Harris stated that he later went to the hospital and was not home when the shooting occurred.
{¶ 24} Robert Hankey testified that he is a director of an alternative education
program called Twilight School at Wayne High School, and that the program is offered from
3:00 to 5:00 p.m. Hankey stated that Taylor was a student in the program, and that on the
date of the shooting, Taylor “took a half-day and he was dismissed early” at 4:00.
{¶ 25} Michael Daborde testified that he is a homicide detective with the Dayton
Police Department, and that he conducted a follow-up investigation of the shooting.
Daborde stated that while he was interviewing Taylor, on December 11, 2007, Taylor’s
mother arrived at the Safety Building “wearing a coat that fit a description that we had had
from the initial scene of the homicide.” He stated that the coat “was black with a fur hood.”
According to Daborde, the coat “didn’t appear to fit her. So we thought that to be strange.”
Daborde testified that he took the coat from Taylor’s mother, and he identified Exhibit 46 as
that coat.
{¶ 26} Albert Wynn testified that Bryson was his younger brother. Wynn testified
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that he went to the home of Larry Harris, “to collect money on a drug debt” on December 7,
2010, at approximately 6:30 p.m. At the time, Wynn stated that he observed Taylor at the
apartment with “V” shooting dice. He further stated Bryson stopped by the apartment while
he was there, and that he and Bryson left the apartment together and then went their separate
ways, with Bryson walking toward Lincoln Street.
{¶ 27} Danyelle Allen, Bryson’s girlfriend, testified that she received a call on her
cell phone from Bryson at around 8:30 p.m on December 7, 2007, and according to her caller
ID, the call was placed from Taylor’s cell phone.
{¶ 28} Adrian Uloho testified that he witnessed a shooting on December 7, 2007,
from his apartment on Warren Street. He stated that he looked out of his window and
observed two men across the street, and that one of the men shot the other one. He stated
that the area where the men stood was well lit. Uloho stated that after the man was shot,
he got up and walked in the direction of Uloho’s apartment. According to Uloho, the
shooter followed the victim, and the “guy that got shot, when he sees him, he falls to the
ground.” Uloho stated that he heard the shooter say, “Did I get you?” and “Why did you try
to play me?” Uloho stated that he did not observe anyone else in the area except the shooter
and the victim. Uloho stated that after the victim fell to the ground, the shooter stood over
him and shot him at least four more times. Uloho then observed the shooter “running across
the street.” On cross-examination, Uloho stated that he had met Bryson once before, but he
did not see his face well enough to identify him on the night of the shooting.
{¶ 29} Dayton Police Detective Michael Galbraith testified that he was dispatched
to the scene of the shooting on December 7, 2007, after 11:00 p.m, and that when he arrived,
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Bryson’s body had already been removed. Galbraith stated that the area was well lit, and he
observed footprints in the snow heading in the direction of Lincoln Street from Warren.
Galbraith testified that the Dayton Police have a policy to not release the name of homicide
victims until after their family is notified, and that Bryson’s family was notified on the 8th of
December, and that the shooting was reported in the Dayton Daily News on the 9th of
December. Galbraith stated that he interviewed Tamlyn on December 10, 2007, and that
she provided Taylor’s name to him. Galbraith stated that he interviewed Taylor on December
11, 2007, after he observed him talking on his cell phone on Warren Street where Galbraith
had returned to continue the investigation. Galbraith stated that when he observed Taylor at
that location, he called for additional officers, and when approached, Taylor identified
himself as Gudonovan Taylor and agreed to go with the uniformed officers to the station.
{¶ 30} After advising Taylor of his Miranda rights, Galbraith questioned Taylor
about his presence at the scene of the crime on December 7, 2007, and his use of the name
DonDon, both of which Taylor denied. Taylor’s mother arrived in the course of the
interview, and Galbraith “immediately noticed that she was wearing an oversize parka” that
was “too big for her and it was dark colored with fur around the collar.” Galbraith stated
that he and Daborde “conferred about it and both thought that it was very like and similar to
one that was described.” Galbraith stated that he advised Taylor’s mother that the coat
“appeared to be evidence at this point and that I needed it.” Galbraith took possession of
the coat, and he identified it as State’s Exhibit 46. Galbraith stated that he interviewed
Tamlyn on December 17, 2007, and that she identified Taylor in a photo spread of six photos
“right away.”
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{¶ 31} James Wright testified that in November, 2009, while he was incarcerated at
the Montgomery County Jail, he came into contact with Taylor, from whom he had
previously bought drugs. Wright heard Taylor state that he had returned to the Lincoln Street
address after Bryson’s murder, and that “he seen that the detectives were there. So, he
proceeded up the street to the phone, he didn’t say what kind of phone. He just said the
phone. And he said then he seen an unmarked cruiser coming towards him so he got rid of
the weapon that he had.” Wright stated that Taylor indicated that detectives approached
him and questioned him. Wright stated that Taylor also “said he was going to have his
family come in and say he did not have his cell phone with him. He did not have his cell
phone, he loaned it to a friend and that he going to - - that they were going to say he was at
his mother’s house.”
{¶ 32} Taylor, who was nineteen at the time of trial, presented an alibi defense.
Latoya Stewart testified that Taylor is the brother of her boyfriend, Gujaun Payton. She
stated that she saw Taylor on December 7, 2007 at his mother’s house in Huber Heights.
According to Stewart, she went to the home after school to spend the weekend with Payton.
She stated that she arrived “after 6:30, maybe 7:00,” and that Taylor arrived 30 minutes later.
Stewart testified that upon her arrival, Shabrandia Walder, Taylor’s girlfriend, “had did
my hair in the bathroom.” According to Stewart, Taylor’s “mom was cooking dinner,
chicken. We walked to Speedway to get some snacks.” She stated that she, “Gujuan,
Gudonavon, Guquaya, and Shabrandia” walked to Speedway together. Afterward, they
returned home for dinner, and “then my boyfriend and Gudonavon played a game in his
room. We all just played a game and laid down and watched TV.” Stewart stated that they
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stayed up until 12:00, and that Taylor never left the residence.
{¶ 33} Shabrandia Walder testified that she is Taylor’s girlfriend. She stated that
Taylor lives in Huber Heights with his “mother, Gloria Close, Tommy Close, his stepfather,
his little brother, Elsie Lorenzo Close, his sister, Guquaya Payton.” In December, 2007,
Walder stated that she was “staying over there at Gloria Close’s house.” On December 7,
2007, Walder stated that Taylor arrived at the home at “around 8:00" p.m., and that she “was
still doing my hair because I had just finished doing Latoya’s hair. I was doing my hair in
the restroom. He walked in, said, ‘What’s up?’ He went in his room and played the video
game for a while. And then after I finished up a little with my hair, we both walked to
Speedway, all of us.” After returning to the home and having dinner, Walder stated “we
all came in Don-Don’s room and played the game” on Taylor’s “Xbox 360 * * * Something
like that.” Walder stated that she did not leave Taylor’s presence, and that he did not leave
the residence. The following morning, according to Walder, she was in bed with Taylor
when Taylor’s “mama wake him up like, ‘Don-Don, that boy you be with on TV.’ That’s
what she said.”
{¶ 34} Gujuan Payton testified that he is Taylor’s brother. He testified that he saw
Taylor at “[a]round like 9:00, 10:00" on December 7, 2007 at the home of his mother where
both men lived. Gujuan testified that he, Taylor, “LaToya, Guquaya and Shabrandia” went
to Speedway for snacks at 10:00 p.m. Payton stated that he and Taylor then played video
games until midnight.
{¶ 35} Taylor testified that he “started selling dope” in the area of Lincoln and
Warren Streets in August, 2007, and that “at first it was just me and JB.” Taylor stated that
16
he went to school on December 7, 2007, but that he left early because he and Walder had
argued in the morning after she told him that she was pregnant a few days earlier. Taylor
stated that when he left school, he initially “went to another woman’s house that was in the
area, you know, just to chill out for a minute, clear my head,” at “around 4:00.” Taylor
stated that he was “over there for a few hours,” and that he then went to his mother’s
residence. Taylor denied going to the area of Lincoln and Warren Streets on the date of the
shooting. He stated that after he returned to his mother’s home, he did not leave again
except to walk to Speedway, after which he “just came home, played the game.” The
following day, Taylor stated that he “learned it was a shooting down on Lincoln Street” from
his mother, and that she told him, “‘Somebody just got killed down on where you be at.’”
Taylor stated that he learned that the victim was JB “later on that night,” after he called
Danyelle Allen. Taylor testified that he went to the area of the shooting on Monday
“because I wanted answers for real honestly,” and that Bryson was his friend.
{¶ 36} Taylor stated that when he was taken to the Safety Building for questioning,
he denied using the nickname DonDon because he was afraid that “it had to be some type of
secret indictment for selling dope,” since “that’s what all the crackheads call me.” Taylor
stated that from 2007 until the present, he has remained the same size. Taylor denied
talking to Wright about his case. When shown Exhibit 46, the jacket, Taylor denied that it
belonged to him. Defense counsel asked Taylor to try on the parka, and the following
exchange occurred at sidebar:
MR. BRANDT: I’ll object, Your Honor, for the record. First, as to
relevance. We’re talking about almost three years after the fact.
17
***
MR. BRANDT: And I don’t know what relevance it would be
whether it fits him now versus if it fit him back in 2007.
MR. SKELTON: Your Honor, the relevance is the entire case to some
extent is based on the appearance of this coat on the Defendant. They could
argue on cross-examination anything they want, but I think the rules will
allow this specific type of evidence to come in.
***
MR. BRANDT: He stated that it’s not his coat. * * *He was a juvenile
then. He’s now technically an adult. I just don’t understand the relevance it
has whether the coat fits him here today when he says it wasn’t his.
MR. SKELTON: Okay. Well, Your Honor, I’ve already had him
testify that he was approximately the same height and weight as when he
came in. They can cross on that. There’s testimony all over this record
about the length of the coat.
***
MR. SKELTON: It’s clearly probative.
***
THE COURT: * * *Let me ask this. Has the State had any thoughts
about what rebuttal might be required should the Defendant try it on or
rebuttal evidence, I mean?
MR. BRANDT: You know, I guess the potential slippery slope of
18
evidence in terms of witnesses coming in to testify as to what his physical
stature was back three years ago.
MR. SKELTON: We have jail records for that if you want.
MR. BRANDT: Jail records, you know, there’s an issue of whether
that’s self-reporting or anything else. I’m talking about actual witnesses.
So I didn’t anticipate, quite honestly, that the Court would allow him to try it
on, so.
THE COURT: I’m going to take a break and figure it out.
***
THE COURT: Ladies and gentlemen, the Court has determined that
due to the age of the Defendant at the time of the shooting and the potential
that the size of the Defendant can change in two years. Mine has, for
example, although not in the same direction as we’re concerned about. We’re
not going to allow the Defendant’s last request.
{¶ 37} Defense counsel then requested and received permission to videotape Taylor
trying on the coat outside of the presence of the jury for purposes of appeal.
{¶ 38} On cross-examination, Taylor testified that Brown worked as a “runner” for
him and Bryson. Taylor stated that when the officers approached him on December 11,
2007, near the scene of the shooting, he “was thinking it was for truancy.” Taylor stated
that the officers asked him if his name was DonDon before they told him that they wanted
to interview him about the shooting, and he stated that he lied to get out of trouble for a
drug-related offense.
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{¶ 39} The prosecutor asked Taylor if he had grown in the last three years, and
Taylor stated that he has been “5'11 3/4"” since he was 16 years old. Defense counsel then
asked the court again at sidebar to allow Taylor to try on the coat, and the court declined the
request.
{¶ 40} After the defense rested, Detective Daborde testified on rebuttal that in the
course of an interview with Walder, she identified the coat taken from Taylor’s mother as
Taylor’s coat.
{¶ 41} Immediately before closing statements, the court indicated that upon further
review of the issue, it would permit Taylor to try on the parka in the presence of the jury.
Counsel for Taylor stated, in part, that the defense is not “going to try to reopen their case
and put something into evidence that the Court has already instructed the Jury that they
shouldn’t consider. * * * .”
{¶ 42} Taylor asserts three assignments of error herein. His first assigned error
is as follows:
“TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATED
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION.”
“A. The Trial Counsel failed to acquire an expert witness to testify as to the
possible reliability issues of witnesses that were under the influence of crack-cocaine
during the commission of the crime.”
“B. Trial Counsel failed to state to the members of the jury that Mr. Brown was not
20
seen at the scene of the crime described by the other two State’s eyewitnesses.”
“C. The Trial Counsel failed to obtain and/or request evidence that could have
supported the Defendant’s Alibi.”
{¶ 43} As this Court has previously noted:
We review the alleged instances of ineffective assistance of trial
counsel under the two prong analysis set forth in Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the
Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * *.
Pursuant to those cases, trial counsel is entitled to a strong presumption that
his or her conduct falls within the wide range of reasonable assistance.
Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel’s conduct fell
below an objective standard of reasonableness and that his errors were serious
enough to create a reasonable probability that, but for the errors, the result of
the trial would have been different. Id. Hindsight is not permitted to distort
the assessment of what was reasonable in light of counsel’s perspective at the
time, and a debatable decision concerning trial strategy cannot form the basis
of a finding of ineffective assistance of counsel. (Internal citation omitted).
State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31.
{¶ 44} In his brief, Taylor initially asserts that defense counsel’s performance fell
below an objective standard of reasonableness in that he failed to request funds for an expert
21
witness on the issue of the effect of crack cocaine on memory, and that the “lack of an expert
witness harmed the Defendant because jurors were not able to obtain reliable information on
the effects of recollection for individuals that use crack cocaine.” Further, according to
Taylor, “the fact that both of the State’s main eyewitnesses were using crack-cocaine at the
day of the incident shows the need of obtaining an expert witness to testify on its effects in
(sic) recollection.”
{¶ 45} As the State asserts, “the failure to call an expert and instead rely on
cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas,
66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993). Further, the record reflects that defense
counsel filed a “Motion for Funding” on April 16, 2009, in which he requested money for
expert witnesses in the areas “relating to cell phone and /or cell site information and/or DNA
evidence,” and counsel’s decision not to seek authorization for further expenditures to
address the effect of crack cocaine on memory is a matter of trial strategy. Tamlyn and
Brown both indicated that their abilities to perceive and remember the shooting were not
impaired by their drug usage, and the degree of consistency in their testimonies, namely
that Taylor, wearing a dark jacket with a fur trimmed hood, shot Bryson multiple times,
supports their assertions. Their testimony is further consistent with Uloho’s testimony
regarding the shooting. Finally, Taylor does not indicate the substance of the testimony that
an expert on the effect of crack cocaine on memory would have provided, or how the
testimony would have altered the outcome of the trial. See State v. Madrigal, 87 Ohio St.3d
378, 391, 2000-Ohio-448, 721 N.E.2d 52 (holding, in addressing a claim of ineffective
assistance of counsel for failure to obtain expert testimony, that determining what type of
22
testimony an expert witness “could have provided” to the court “would require proof outside
the record, such as affidavits demonstrating the probable testimony,” and that such “a claim
is not appropriately considered on a direct appeal.”) As in Madrigal, “resolving this issue in
[Taylor’s] favor would be purely speculative.” Id., 390. We conclude that Taylor has not
demonstrated ineffective assistance of counsel or prejudice based upon counsel’s failure to
present expert testimony regarding the effect of crack cocaine on memory.
{¶ 46} Taylor next asserts that defense counsel was “ineffective when he failed to
point out major inconsistencies in the testimony of all the eye witnesses.” Specifically,
Taylor directs our attention to Brown’s testimony that he observed Taylor and Bryson
arguing inside Tamlyn’s home, and Tamlyn’s testimony that only Taylor, Bryson, “V” and
his girlfriend were inside the home when the argument began. Taylor further directs our
attention to Tamlyn’s testimony that she did not see anyone other than Taylor and Bryson
outside of her home in the course of the shooting, and Uloho’s testimony that he only
observed the shooter and the victim at the scene. According to Taylor, defense counsel
“should have used this information to either illustrate that Mr. Brown[’s] or Ms. Tamlyn[’s]
memory or recollection were faulty or Mr. Brown was not present at the time of the
shooting.”
{¶ 47} As the State asserts, the record reflects that defense counsel noted the
inconsistency in the evidence regarding Brown’s presence at the shooting in the course of
his opening statement. Defense counsel stated, “first of all, I want you to note that
[Tamlyn] is saying consistently that there were only two males at that time.” Defense
counsel later stated, “Now, I do not believe the State indicated this in their opening, but we
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expect that the evidence may be that a witness - that there was another potential witness by
the name of Chris Brown. * * *.” Later, when mentioning Uloho’s testimony, defense
counsel stated, “What [Uloho] does say is when he looks out - - he only sees two people. * *
* Doesn’t see any more than two people. So to the extent that anybody else testifies that
there was somebody else there, Uloho refutes that.” In the course of his cross-examination
of Tamlyn and Uloho, defense counsel adduced testimony from Tamlyn that she did not see
Brown at the scene of the shooting until after it was over, and he adduced testimony from
Uloho that he only observed the shooter and the victim. Finally, in closing argument,
defense counsel stated “that when [Tamlyn] does go down there to where the deceased was
laying, she testified that Chris, meaning Chris Brown, was not there, that she saw Chris
[later] and he had asked her what had happened, which is inconsistent with what Chris had
said later.” Given the forgoing, we cannot conclude that defense counsel’s performance was
deficient for failing to “point out” inconsistencies in the testimony of the witnesses at the
scene of the shooting such that Taylor was prejudiced.
{¶ 48} Taylor next asserts that defense counsel’s performance was deficient in that
he failed to investigate, by means of a subpoena directed to Microsoft Corporation, whether
Taylor played video games at the time of the shooting on line. Further, he asserts, in the
event that Taylor was not playing on line, defense counsel “should have requested an expert
witness in order to inspect the hard drive of the Xbox 360 in order to determine whether
there were any saved files or auto saves that would corroborate” Taylor’s alibi.
{¶ 49} As the State asserts, there “is nothing in the record to show that Taylor had
an account with Xbox Live, or that he was connected to the internet when he claimed he was
24
playing his Xbox on December 7th.” We note that Taylor did not mention an Xbox 360 in
the course of his testimony, and that the only mention thereof was Walder’s. As the State
asserts, Taylor ostensibly could have been playing a video game without connecting to the
internet. Further, evidence that any Xbox was online or “saving files” at the time of the
shooting would only establish that someone was using the Xbox at that time, not that Taylor
was doing so. Finally, Tamlyn, Brown, Harris, and Wynn all place Taylor at or near the
scene of the shooting on the evening thereof. Also, Danielle Allen received a phone call
from Bryson at around 8:30 on December 7, 2007 that was identified as coming from
Taylor’s phone. Ineffective assistance of counsel for failure to subpoena Microsoft
Corporation and any resulting prejudice therefrom is not demonstrated.
{¶ 50} Since Taylor did not receive ineffective assistance of counsel, his first
assigned error is overruled.
{¶ 51} Taylor’s second assigned error is as follows:
“TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT ALLOW THE
DEFENDANT TO TRY ON STATE EXHIBIT 46 WHICH RESULTED IN A
DENIAL OF A FAIR TRIAL.”
{¶ 52} We agree with Taylor that the trial court’s editorial comments that it
“determined that due to the age of the Defendant at the time of the shooting and the potential
that the size of the Defendant can change in two years. Mine has, for example, although not
in the same direction as we’re concerned about,” was improper. The trial court, however,
reconsidered its ruling prior to closing statements, and Taylor was given and refused the
opportunity to try on the jacket in the presence of the jury. Taylor accordingly waived his
25
argument that the trial court abused its discretion when it denied his request to try on the
coat. Finally, we have viewed the video of Taylor trying on Exhibit 46, and the fit of the
jacket is as Tamlyn described and as the State represents. Taylor’s second assigned error is
overruled.
{¶ 53} Taylor’s third assigned error is as follows:
“THE PROSECUTOR AND THE COURT ENGAGED IN IMPROPER
CONDUCT.”
“A. This Court should conclude that the comments regarding sympathy and/or tears
were not proper.”
“B. The Court engaged in improper conduct when it indirectly stated the Defendant
lied.”
{¶ 54} Taylor first directs our attention to the following exchange in the course of
the prosecutor’s closing argument:
MS. CLAYPOOL: * * * Bryson sold drugs. He engaged in illegal
activity. Well, let’s not forget that he was also a brother, a son, a boyfriend,
who was soon to be a father. And there were people in his life who shed
tears over his death. They still shed tears today.
MR. SKELTON: Objection.
THE COURT: Approach.
(At sidebar)
MR. SKELTON: Judge, for purposes of the record, as the Court well
knows, the issues of sympathy or tears is not proper in a criminal case. And
26
ingesting into this record of tears and crying statements by this Prosecutor I
believe is err. (Sic).
THE COURT: * * * Well, we’ll ask the Prosecutor to refrain from it
in the future.
{¶ 55} Taylor asserts that “the Court should have granted a mistrial because it
would be hard to determine the effects the prosecutorial misstatements would have on the
jury.” Taylor asserts that he is entitled to a new trial.
{¶ 56} As this Court has previously noted:
The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether they prejudicially affected the accused’s
substantial rights. * * * The touchstone of the analysis “is the fairness of the
trial, not the culpability of the prosecutor.” * * * To determine whether the
prosecutor’s statements were prejudicial, we must review closing arguments
in their entirety. * * * Prosecutors and defense counsel have a wide degree of
latitude during closing arguments to address what the evidence has shown
and what reasonable inferences may be drawn from that evidence. * * *.
State v. Black, 181 Ohio App.3d 821, 2009-Ohio-1629, 911 N.E.2d 309 (2d
Dist. 2009).
{¶ 57} We agree with Taylor’s assertion that the prosecutor’s comments were
inappropriate. While the comments regarding the shedding of tears were not relevant to his
guilt, we cannot conclude that the comments prejudicially affected Taylor’s substantial
rights. As the State asserts, the comments were brief and isolated. Upon defense counsel’s
27
objection, the court advised the prosecutor to refrain from further invoking the jury’s
sympathy. Further, the record reflects that the court instructed the jury that the closing
arguments were not evidence, and that the jury “must not be influenced by any consideration
of sympathy.” “It is presumed that a jury follows the instructions given to it.” State v.
Winston, 2d Dist. Montgomery No. 16760, 2000 WL 1369946, *3 (Sept. 22, 2000).
Accordingly, we conclude that any error by the prosecutor is harmless.
{¶ 58} Taylor finally asserts that after he testified that his size had not changed
since the shooting, the court improperly suggested to the jury that Taylor was untruthful
when it refused to allow him to try on the jacket in the presence of the jury, “due to the age
of the Defendant at the time of the shooting and the potential that the size of the Defendant
can change in two years.”
{¶ 59} In the course of instructing the jury, the court advised as follows: “If during
the course of the trial, the Court said or did anything you consider an indication of the
Court’s view on the facts, you are instructed to disregard it,” and the jurors are presumed to
follow the instructions given by the court. Given the substantial evidence of Taylor’s guilt,
any error in the court’s remark is harmless.
{¶ 60} There being no merit to the Taylor’s third assigned error, it is overruled.
The judgment of the trial court is affirmed.
..........
FAIN, P.J. and HALL, J., concur.
Copies mailed to:
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Kirsten A. Brandt
Enrique G. Rivera-Cerezo
Hon. Gregory F. Singer