State v. Kerr ( 2016 )

[Cite as State v. Kerr, 2016-Ohio-8479.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 15 MA 0083
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
PAUL LEE KERR, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 14 CR 1033
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Edward Czopur
DeGenova & Yarwood, Ltd.
42 North Phelps Street
Youngstown, OH 44503
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: December 28, 2016
[Cite as State v. Kerr, 2016-Ohio-8479.]
ROBB, J.
{¶1} Defendant-Appellant Paul Lee Kerr appeals his conviction entered in
the Mahoning County Common Pleas Court. A jury found him guilty of aggravated
murder with a firearm specification, after which the trial court found him guilty of
having a weapon under disability. Appellant contends there was insufficient evidence
of the prior calculation and design element of aggravated murder. Next, he contests
the jury instruction provided after the jury asked for clarification of a prior charge
(which prior charge was given after the jury advised it was deadlocked). Lastly,
Appellant believes his attorney provided ineffective assistance of counsel by focusing
on his interpretation of a comment made by the victim’s wife during her recorded
interview. For the following reasons, Appellant’s assignments of error are overruled,
and the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On September 30, 2014, Lenzie Morgan Jr. was shot in the side of the
head while sitting in his living room chair. The victim died from the gunshot wound
two weeks later. Appellant was indicted for aggravated murder with a firearm
specification and having a weapon under disability. Appellant elected to have the
court hear the charge of having a weapon under disability while the jury heard the
aggravated murder case.
{¶3} The trial testimony established the victim permitted Appellant to stay at
his house in Youngstown, Ohio. A few days prior to the shooting, Appellant arrived
with his clothes in a plastic grocery bag. (Tr. 194). The victim’s wife had never met
Appellant, but the victim knew Appellant through boxing and a landscaping job. (Tr.
192). The night before the shooting, the victim went to bed while his wife and
Appellant stayed up all night. (Tr. 197-198). At some point, the victim’s wife sat on
the bed in the room where Appellant was staying. (Tr. 201, 261). At another point,
Appellant cut the finger of the victim’s wife with a knife. She testified Appellant
mentioned being “blood sisters” and “said something about Aryan Brothers, KKK.”
(Tr. 211, 230-231).
{¶4} After the victim woke up, he accused his wife of being unfaithful to him
with Appellant. (Tr. 243). The victim’s wife testified she drove Appellant to a store in
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the morning to purchase cigarettes and a lighter; she purchased the items for him.
(Tr. 198-199, 243). When they returned home, an argument started. (Tr. 244). The
victim’s wife and Appellant both told the victim nothing happened between them. (Tr.
202, 266). The victim sat in the living room chair while calling his wife names. (Tr.
202, 220, 227). The victim told Appellant he had to pay for his wife stating, “she’s not
a cheap ho.” (Tr. 220). The victim voiced his opinion to some of his wife’s family
members through texts and a call. (Tr. 202, 227, 272).
{¶5} The victim’s wife testified the victim was upset but did not yell. (Tr. 201-
202, 212, 262). She said the victim instructed Appellant to leave his house, but
Appellant did not leave the house right away. (Tr. 201-202, 270). He packed some
of his belongings into his plastic grocery bag. (Tr. 201). He used her phone to call
someone for a ride. (Tr. 203). Appellant left the living room, went to the kitchen, and
returned after approximately three minutes with a gun. (Tr. 204, 233). According to
the victim’s wife, Appellant walked up to and shot the victim in the side of the head as
he was sitting in his chair. (Tr. 204, 233). She described the gun as old-fashioned,
wooden, and short-barreled. (Tr. 238, 241).
{¶6} After the shooting, Appellant ran out of the house. The victim’s wife
watched through a window as Appellant fled to a waiting blue truck. (Tr. 207, 244,
246-247). She then left the house screaming; she approached her neighbors who
were exiting their house. (Tr. 252, 320). They called 911 at 8:02 a.m. (Tr. 434). One
of the neighbor’s testified he saw Appellant at the house in the days prior to the
shooting. (Tr. 324). He did not hear a gunshot before seeing the victim’s wife run
toward him. (Tr. 320). He and his father approached the house and prevented the
victim’s wife from re-entering as they were concerned the shooter could still be there.
(Tr. 321, 323). From the doorway, the victim could be seen trying get up from his
chair. His wife was crying, calling his name, and saying, “hold on, baby.” (Tr. 320,
322).
{¶7} The first responding officer arrived within minutes. A neighbor in the
crowd said he saw a bald white male run toward a side street and enter a blue and
white truck. (Tr. 378). The victim’s wife reported the victim was shot by Paul, a bald
white man who had been living with them for a couple days. She identified Appellant
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from a photograph he left in the house with his belongings. (Tr. 376). He also left his
grocery bag of clothes and a bag of pills. (Tr. 263-264, 402, 412, 475).
{¶8} A detective arrived and took the wife’s statement. He also took her to
the police station and conducted a video recorded interview. On cross-examination
of the victim’s wife, defense counsel questioned her as to various statements made in
the interview. Counsel asked if she recalled talking to herself after the detective left
the interview room; the witness did not recall this. Defense counsel then asked, “Do
you recall saying in the room by yourself: It’s like that they don’t know why I shot
Lenzie?” She immediately answered this was not true. (Tr. 257). An objection was
occurring at the time, after which counsel asked the question again. The witness
denied she made this statement. (Tr. 258).
{¶9} During the detective’s testimony, the prosecution referred him to the
portion of the interview where he left the interview room and asked him if he had
reviewed the video. He said he had. The prosecution asked if, at any time, the
victim’s wife made a statement that she was the killer; he responded in the negative.
(Tr. 483). On cross-examination, defense counsel noted the prosecution asked the
detective if the victim’s wife said she was the killer and inquired “But she does say,
it’s like they don’t know why I killed Lenzie; right?” The detective responded, “No.”
(Tr. 527).
{¶10} During the interview, the victim’s wife disclosed Appellant’s use of her
phone. The detective called the number Appellant dialed that morning. The woman
who answered was Appellant’s mother. (Tr. 485). The detective testified Appellant’s
mother said she had a bolt-action .22 rifle in her home but it was gone. (Tr. 485-
486). Appellant’s mother testified she did not tell the detective that her .22 caliber
long rifle was missing. (Tr. 446, 448-449, 451, 453). She told him her son said he
lived in the woods. (Tr. 447). She directed the detective to Appellant’s employer,
who owned a blue pickup truck. (Tr. 486). Appellant’s employer testified her
company owned a “mousy purple, blue” truck with a logo on the side, which her
husband drove. (Tr. 365). She witnessed no animosity between Appellant and the
victim when they were at her house the day before the shooting. (Tr. 370).
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{¶11} On the same day as the shooting, Appellant was arrested while lying
behind a pile of brush in a park in New Castle, Pennsylvania. (Tr. 457-459). There
was gunshot residue on his shirt and a mixture of blood on his shorts, but the blood
was insufficient to compare to the victim’s DNA. (Tr. 286, 293, 307). A gunshot
residue test was also performed on the victim’s wife soon after the shooting. There
was gunshot residue on her left hand but not on her right hand; she testified she was
right-handed. (Tr. 261, 308, 314). The projectile recovered from the victim was of a
small caliber and consistent with ammunition used in a .22 caliber weapon. (Tr. 414-
415).
{¶12} The victim’s step-son (the son of the victim’s wife) testified to meeting
Appellant the day before the shooting. His parents were not home, and Appellant
answered their door. (Tr. 337-338). Appellant offered to sell the son a gun for $50,
which Appellant described as a .22 caliber, single-shot long rifle that had been sawed
off. (Tr. 340-341). The son returned later to tell the victim about Appellant’s offer and
to say he was concerned about Appellant staying with them. (Tr. 342-343). On the
morning of the shooting, the son received a text message from the victim at 7:30 a.m.
which stated, “just caught D and that dude in the bed. He got to go.” (Tr. 345). The
son responded, to which the victim replied at 7:45 a.m., “We’re not doing nothing.
We’re just laying here.” (Tr. 346). The son provided these texts to the police.
{¶13} Besides receiving an instruction on aggravated murder, the jury was
also instructed on the lesser included offense of murder. The jury found Appellant
guilty of aggravated murder with a firearm specification, and the court found
Appellant guilty of having a weapon under disability. In a May 12, 2015 entry, the
court imposed a sentence of three years of actual incarceration on the firearm
specification followed by life without parole on the aggravated murder. The court also
imposed a consecutive sentence of thirty-six months for having a weapon under
disability. On appeal, Appellant sets forth three assignments of error.
ASSIGNMENT OF ERROR ONE: PRIOR CALCULATION & DESIGN
{¶14} Appellant’s first assignment of error provides:
“The State presented insufficient evidence to obtain a conviction for
aggravated murder as the evidence did not establish prior calculation and design.”
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{¶15} Whether the evidence is sufficient to sustain a conviction is a question
of law dealing with adequacy. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678
N.E.2d 541 (1997). An evaluation of a witness’s credibility is not involved in a
sufficiency review. State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, 767
N.E.2d 216, ¶ 79. Rather, the question is whether the evidence, if believed, is
sufficient to sustain the conviction. See id. at ¶ 82; State v. Murphy, 91 Ohio St. 3d
516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency involves the state’s
burden of production rather than its burden of persuasion. See, e.g., Thompkins, 78
Ohio St. 3d at 390 (Cook, J., concurring).
{¶16} In viewing a sufficiency of the evidence argument, the evidence and all
rational inferences are evaluated in the light most favorable to the prosecution. See
State v. Filiaggi, 86 Ohio St. 3d 230, 247, 714 N.E.2d 867 (1999). See also State v.
Goff, 82 Ohio St. 3d 123, 138, 694 N.E.2d 916 (1998). Circumstantial evidence
inherently has the same probative value as direct evidence. State v. Treesh, 90 Ohio
St.3d 460, 485, 739 N.E.2d 749 (2000). A conviction cannot be reversed on grounds
of sufficiency unless the reviewing court determines that reasonable minds could not
have found the elements of the offense proven beyond a reasonable doubt. Id. at
484. A reversal on sufficiency bars retrial. Thompkins, 78 Ohio St. 3d at 387, citing
Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982).
{¶17} Appellant was indicted for aggravated murder in violation of R.C.
2903.01(A), which sets forth the following elements: purposely and with prior
calculation and design causing the death of another. A person acts purposely when
it is the person's specific intention to cause a certain result. R.C. 2901.22(A). The
offense of murder involves purposely causing a death, and aggravated murder has
the additional element of prior calculation and design. Compare R.C. 2903.01(A)
with R.C. 2903.02(A).
{¶18} Appellant takes issue with the element of prior calculation and design.
He urges momentary deliberation is insufficient. He notes the alleged shooting
appeared to be a spontaneous eruption of events and was not drawn out. Appellant
points to an Eighth District case modifying an aggravated murder conviction to
murder after finding insufficient evidence of prior calculation and design. See State v.
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Hill, 8th Dist. No. 98366, 2013-Ohio-578, ¶ 1. See also as State v. Woods, 8th Dist.
No. 99630, 2014-Ohio-1722, ¶ 34.
{¶19} “Prior calculation and design” is a single indivisible element. State v.
Taylor, 78 Ohio St. 3d 15, 18, 676 N.E.2d 82 (1997). The legislature employed this
element in 1974 to replace the prior statutory element of “deliberate and
premeditated malice” so as to require more than instantaneous or momentary
deliberation. Id. at 18-19. Prior calculation and design involves “studied care in
planning or analyzing the means of the crime as well as a scheme encompassing the
death of the victim.” State v. Jones, 91 Ohio St. 3d 335, 345, 744 N.E.2d 1163
(2001), quoting Taylor, 78 Ohio St. 3d at 19.
{¶20} The phrase has been interpreted to require evidence of “a scheme
designed to implement the calculated decision to kill” and “more than the few
moments of deliberation permitted in common law interpretations of the former
murder statute.” State v. Conway, 108 Ohio St. 3d 214, 220, 2006-Ohio-791, 842
N.E.2d 996, ¶ 38, quoting State v. Cotton, 56 Ohio St. 2d 8, 11, 381 N.E.2d 190
(1978). Where the evidence “reveals the presence of sufficient time and opportunity
for the planning of an act of homicide to constitute prior calculation, and the
circumstances surrounding the homicide show a scheme designed to implement the
calculated decision to kill, a finding by the trier of fact of prior calculation and design
is justified.” State v. Braden, 98 Ohio St. 3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶
61 (2003), quoting Cotton, 56 Ohio St. 2d 8 at ¶ 3 of syllabus.
{¶21} However, there is no bright-line test; each appeal must be evaluated on
a case-by-case basis under the totality of the evidence presented in a particular case.
Jones, 91 Ohio St. 3d at 345-346, citing Taylor, 78 Ohio St. 3d at 20. The amount of
care and time spent planning and analyzing the crime are not critical factors in
themselves. Taylor, 78 Ohio St. 3d at 20. See also State v. D'Ambrosio, 67 Ohio
St.3d 185, 196, 616 N.E.2d 909 (1993) (neither the degree of care nor the length of
time the offender takes to ponder the crime beforehand are critical factors in
themselves, but momentary deliberation is insufficient). Prior calculation and design
can exist even if the defendant “quickly conceived and executed the plan to kill within
a few minutes.” State v. Coley, 93 Ohio St. 3d 253, 264, 754 N.E.2d 1129 (2001),
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citing, e.g., State v. Palmer, 80 Ohio St. 3d 543, 567-568, 687 N.E.2d 685 (1997)
(double homicide occurring quickly after traffic accident).
{¶22} Although there is no bright-line test, certain questions have been
outlined as pertinent in ascertaining prior calculation and design: did the defendant
and the victim know each other; if so, was the relationship strained; did the defendant
give thought to or evince preparation in choosing the murder weapon or murder site;
and was the act drawn out or was it an almost instantaneous eruption of events.
State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 56-60.
Appellant acknowledges he had a prior relationship with the victim that became
strained. He urges there is no evidence he gave thought to the choice of murder
weapon or the location of the murder. He suggests he would not have shot the victim
in front of an eyewitness if he had time for thought. Appellant also contends the act
was not drawn out but flowed from the argument with the victim.
{¶23} The state points to evidence the argument immediately prior to the
shooting lasted at least 30 minutes: the victim texted his step-son at 7:30 a.m. to say
he caught his wife and Appellant in bed; the victim texted again at 7:45 a.m. to report
he was not doing anything; the victim’s wife testified she ran out of the house after
Appellant fled to a waiting truck; she also testified she ran to the neighbor’s house;
the neighbor testified he was exiting his house when the victim’s wife ran over
screaming; the neighbor testified his mother immediately called 911; he called 911 as
well; and the first call to 911 occurred at 8:02 a.m. There is also testimony the victim
made an accusation before Appellant and the victim’s wife went to the store and the
victim continued his accusations after he woke up, again.
{¶24} As conceded, Appellant had a newly strained relationship with the
victim. The victim accused Appellant of acting inappropriately with his wife. The
victim was in the process of ejecting Appellant from his home. In addition, Appellant
engaged in behavior suggesting he believed he had a meaningful relationship with
the victim’s wife: he cut her finger with a knife and said they were “blood sisters,”
among other things. The victim was disparaging his wife’s character and making his
opinions known to her family as well.
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{¶25} Additionally, there was testimony Appellant did not immediately leave
the house even though the victim ordered him to leave. The house was not large,
and Appellant did not have many belongings to collect; he carried his belongings into
their house in a plastic grocery bag. Appellant used the phone of the victim’s wife
even though the victim had just accused her of being unfaithful to him with Appellant.
{¶26} Furthermore, Appellant left the room to retrieve the gun. The victim’s
wife testified Appellant returned to the living room after three minutes. The victim
was not looking at Appellant when Appellant entered the room with the gun. The
victim was sitting in a chair. Appellant shot the victim without saying anything. It is
notable Appellant shot the victim in the head. See, e.g., State v. Campbell, 90 Ohio
St.3d 320, 330, 738 N.E.2d 1178 (2000) (firing shots into a victim's head at close
range is crucial evidence related to prior calculation and design). The absence of
multiple shots does not detract from these facts as there was evidence Appellant had
a single-shot gun. Finally, a vehicle was waiting for Appellant. This vehicle was
visible through a window in the house, suggesting Appellant was waiting for his ride
before shooting the victim.
{¶27} Under the totality of the circumstances presented in this particular case,
there is adequate evidence from which to find Appellant engaged in more than
instantaneous or momentary deliberation. After construing the evidence in the light
most favorable to the prosecution, a rational trier of fact could conclude the
circumstances surrounding the murder show a scheme designed to carry out the
calculated decision to cause the victim’s death. This assignment of error is overruled
as there was sufficient evidence of prior calculation and design.
FACTS ON JURY DELIBERATIONS (FOR ASSIGNMENTS 2 & 3)
{¶28} After two days of trial, jury deliberations began on May 6, 2015 at 10:12
a.m. The jury asked to see the video interview of the victim’s wife mentioned during
trial. At 12:20 p.m., the court advised they could not view the interview as it was not
submitted into evidence by either party. The jury went to lunch before 1:00 p.m. and
returned to deliberations at 2:00 p.m.
{¶29} At 2:45 p.m., the jury advised the court it was deadlocked. The jury’s
note revealed, “10 Not Guilty 2 Guilty.” The trial court provided a supplemental jury
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instruction known as a Howard charge. (Tr. 663-665). (Appellant takes no issue with
this instruction. The Ohio Supreme Court’s approved Howard charge is set forth
below under the second assignment of error.)
{¶30} At 3:38 p.m., the court placed two new jury communications on the
record. The jury asked: “The statement from [the victim’s wife] – ‘It’s like they don’t
know why I killed my husband’ was brought up. Are we suppose[d] to disregard
that?” The defense agreed the court would need to instruct the jury that the question
was not evidence as the witness denied making the statement contained in the
defense counsel’s question. (Tr. 672, 674). The court reminded the jury it had
previously been instructed the evidence does not include counsel’s statements. (Tr.
679). The court advised the jury not to draw any inference or speculate on the truth
of any suggestion within a question asked by counsel but not answered. (Tr. 680).
{¶31} The other question submitted by the jury inquired: “In your last
instruction you spoke to the possibility or responsibility(?) of a juror(s) to change his
(her) verdict in deference to the jury’s majoritive opinion with the objective to reach a
unanimous verdict for the sake of the law. Will you re-explain and expound on this?”
Upon reading this question, the judge asked the attorneys, “Did I do that?” Both
sides agreed the judge did not so instruct the jury. (Tr. 672). The court advised it
would correct any misimpression. The court then gave a second supplemental
instruction. (Tr. 675-678). (This second supplemental jury instruction is set forth
below, under the second assignment of error where it is contested.)
{¶32} Thereafter, the jury requested to see the state’s poster outlining the
elements. The court agreed with the request, finding the poster merely reiterated
items included in the jury charge regarding the elements. The court adjourned for the
night at 6:08 p.m. and ordered the jury to resume deliberations at 8:30 a.m. the next
morning. After resuming deliberations on May 7, the jurors asked, at 9:48 a.m., if
they could read the testimony of the victim’s wife. The court denied this request,
instructing the jury to use its collective memory of what was presented. (Tr. 690). At
5:07 p.m., the jury returned with its verdict: guilty of aggravated murder with a
firearm specification as charged in the indictment.
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ASSIGNMENT OF ERROR TWO: SUPPLEMENTAL JURY CHARGE
{¶33} Appellant’s second assignment of error reads:
“Appellant was denied his right to a fair trial and due process as the result of
the trial court’s improper and inaccurate second Howard charge.”
{¶34} Appellant acknowledges he failed to object to the second supplemental
jury instruction and therefore waived all but plain error. See State v. Underwood, 3
Ohio St. 3d 12, 13, 444 N.E.2d 1332 (1983). “On appeal, a party may not assign as
error the giving or the failure to give any instructions unless the party objects before
the jury retires to consider its verdict, stating specifically the matter objected to and
the grounds of the objection.” Crim.R. 30(A). “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.” Crim.R. 52(B).
{¶35} Application of the plain error doctrine in order to reverse a judgment
requires an obvious error affecting substantial rights and the outcome of the trial.
State v. Steele, 138 Ohio St. 3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 30. Even so, the
recognition of plain error is discretionary with the reviewing court. See State v.
Noling, 98 Ohio St. 3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62. See also Crim.R
52(B). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage
of justice.” Steele, 138 Ohio St. 3d 1 at ¶ 30, quoting State v. Long, 53 Ohio St. 2d 91,
94, 372 N.E.2d 804 (1978), ¶ 3 of syllabus.
{¶36} When examining a jury instruction for errors, the reviewing court must
consider the jury charge in its entirety to determine whether the charge probably
misled the jury in a matter materially affecting the defendant’s substantial rights.
State v. Dean, 146 Ohio St. 3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 135. A single
jury instruction shall not be judged in artificial isolation, but rather it must be viewed in
the context of the overall charge. State v. Jones, 91 Ohio St. 3d 335, 348-349, 744
N.E.2d 1163 (2001). Furthermore, when reviewing a jury instruction for plain error,
the totality of the entire record should be considered. Steele, 138 Ohio St. 3d 1 at ¶
33.
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{¶37} In Howard, the Ohio Supreme Court crafted a supplemental jury charge
to avoid problems encompassed in the Allen charge, which singled out jurors in the
minority by urging them to reconsider their position rather than treating all jurors
even-handedly. State v. Howard, 42 Ohio St. 3d 18, 537 N.E.2d 188 (1989), rejecting
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). The charge
approved in Howard reads:
The principal mode, provided by our Constitution and laws, for deciding
questions of fact in criminal cases, is by jury verdict. In a large
proportion of cases, absolute certainty cannot be attained or expected.
Although the verdict must reflect the verdict of each individual juror and
not mere acquiescence in the conclusion of your fellows, each question
submitted to you should be examined with proper regard and deference
to the opinions of others. You should consider it desirable that the case
be decided. You are selected in the same manner, and from the same
source, as any future jury would be. There is no reason to believe the
case will ever be submitted to a jury more capable, impartial, or
intelligent than this one. Likewise, there is no reason to believe that
more or clearer evidence will be produced by either side. It is your duty
to decide the case, if you can conscientiously do so. You should listen
to one another's arguments with a disposition to be persuaded. Do not
hesitate to reexamine your views and change your position if you are
convinced it is erroneous. If there is disagreement, all jurors should
reexamine their positions, given that a unanimous verdict has not been
reached. Jurors for acquittal should consider whether their doubt is
reasonable, considering that it is not shared by others, equally honest,
who have heard the same evidence, with the same desire to arrive at
the truth, and under the same oath. Likewise, jurors for conviction
should ask themselves whether they might not reasonably doubt the
correctness of a judgment not concurred in by all other jurors.
Howard, 42 Ohio St. 3d at 25-26.
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{¶38} Appellant concedes the trial court’s initial supplemental jury instruction
here coincided with this Howard charge, and he takes no issue with this charge.
Appellant argues the trial court subsequently abandoned Howard in its second
supplemental charge. After repeating the jury’s question, which mentioned jurors
changing their verdict in deference to the majority, the trial court instructed:
I apologize if that’s what you think I said. I scrupulously intended
to instruct you [-] not to address the minority in any way. It is an
address to all of you. In fact, in my opinion - - and I told my magistrate
this. This is called the Howard charge (indicating). In the law - - years
ago there was a case called Illinois versus Allen. I think that was the
name of it. When I was a bailiff we used to use it. It did address the
minority jurors and did say to them, you’re probably wrong - - not
necessarily in that language. If you’re the minority you better think this
through because the majority probably knows better than you. That’s
been found to be unconstitutional. That’s bull crap that the minority is
wrong and the majority is right. In fact, in my opinion, this charge
should be modified, the one I gave you, to make it crystal clear that if
you are in the majority you have all the more reason to examine your
position because it’s real easy when there’s a bunch of us and
everybody’s nodding their heads and say, got to be right because there
is more of us, and you could be wrong and need to change your
position.
So I greatly apologize if I gave you that impression at all. Fair
enough. I have read it and read it again and I don’t think it addresses
the minority. All that this charge is trying to say to you is that we’ve put
you together to decide the case and we want you to do that. And if you
can do it, then you got to do it. It is your duty. If you can’t do it, that’s
okay, too. That happens sometimes. But it can’t happen just because
you don’t want to go along or you’re obstinate or you’re unreasonable
or whatever. You got to think this thing through. You don’t decide the
case we’re going to call another jury in and start again and somebody’s
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going to have to decide it. So that’s a lot of time and effort and a lot of
resources wasted if indeed you’re here to decide this; okay? But I would
urge you, no matter what position you are in, you need to reexamine
where you are.
What this instruction says is pretty good stuff, I thought. If
there’s disagreement all jurors should reexamine their positions - - all
jurors - - given that a unanimous verdict has not been reached. Jurors
for acquittal should consider whether their doubt is reasonable, as the
instruction on reasonable doubt says. [The court then defined
reasonable doubt.]
So jurors for acquittal should consider whether their doubt is
reasonable considering that it is not shared by all of the other, equally
honest, who have heard the same evidence with the same desire to
arrive at the truth and under the same oath. Likewise, jurors for
conviction should ask themselves whether they might not reasonably
doubt the correctness of a judgment not concurred in by all other jurors.
That’s what I read to you. So if you’re in the majority you better
take a look and think it through and don’t just rely upon the fact that it’s
a majority. You need to think it through again. If you’re in the minority
you need to think it through again and forget whether you’re majority
and minority. You need to think about what the facts of this case have
proven or failed to prove.
(Emphasis added to two main contested portions.) (Tr. 675-678).
{¶39} Rather than clear up the confusion, Appellant believes the court further
confused the jurors and misled them. He acknowledges the language in the Howard
charge is not an absolute mandate. Howard, 42 Ohio St. 3d at 25 (although opining
the American Bar Association’s suggested instruction was not the preferable
approach, the Court noted it would not disapprove of its use). Appellant urges any
deviation from Howard must: (1) even-handedly call for all jurors to reevaluate their
positions; and (2) encourage a unanimous verdict only when one can conscientiously
be reached, without advising that a verdict must be reached. See id. at 25.
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{¶40} First, the instruction must be balanced and neutral. Id. at 24. Appellant
believes the trial court was so concerned with not coercing the minority to change its
position that it ended up instructing the majority it was probably wrong. However, the
court’s instruction does not suggest the majority was probably wrong. Rather, the
court informed the jury about an old instruction and told the jury the instruction
improperly told the minority they were probably wrong. The court advised the jury
that such instruction was ruled unconstitutional.
{¶41} It may have been preferable for the court to then refrain from opining
the current instruction should be modified to point out to the majority jurors that they
had more reason to reexamine their position (because their position is easier due to
the confidence that comes from being part of a majority). Nevertheless, the
explanation as to which jurors should reexamine their position does not appear
prejudicial, especially when read in context of the entire second supplemental
charge, the original supplemental charge, and all jury instructions as a whole. In the
second supplemental instruction, the court not only instructed those in the majority to
reexamine their position but advised all jurors to engage in a reexamination as per
Howard.
{¶42} After the first contested statement, the court explained, “no matter what
position you are in, you need to reexamine where you are.” (Tr. 677). The court then
reread portions of the prior Howard charge about jurors for acquittal and jurors for
conviction both considering their positions. The court added, “if you’re in the majority
you better take a look and think through and don’t just rely upon the fact that it’s a
majority. You need to think it through again. If you’re in the minority you need to
think it through again and forget whether you’re majority or minority.” (Tr. 678). In
summary, this court concludes the trial court did not overcorrect the jury’s
misinterpretation of the original supplemental charge.
{¶43} Next, Appellant takes issues with the portion of the instruction reading:
“You don’t decide the case we’re going to call another jury in and start again and
somebody’s going to have to decide it. So that’s a lot of time and effort and a lot of
resources wasted if indeed you’re here to decide this; okay?” (Tr. 677). The
Supreme Court has ruled: “On the one hand, a supplemental instruction must not be
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coercive by stressing that the jury must reach a verdict, a clear misstatement of the
law.” Howard, 42 Ohio St. 3d at 23-24. “On the other hand, the instruction must allow
the trial judge to remind the jury of the reason a jury is assembled, namely, to reach a
unanimous verdict if each juror can conscientiously agree to a verdict.” Id. at 24.
The Howard Court desired to “more emphatically encourage the jury to reach a
decision, if they can conscientiously do so * * *.” Id. at 25.
{¶44} Appellant complains this portion of the instruction did not encourage a
unanimous verdict only if one can conscientiously be reached. However, the jury had
before it the original (uncontested) Howard charge which did so advise. The trial
court informed the jury the original charge was “pretty good stuff” and was pointing to
the original charge during its second supplemental charge. (Tr. 675, 677).
Moreover, just prior to this contested portion of the instruction, the trial court noted:
“If you can’t do it, that’s okay too.” (Tr. 677).
{¶45} Appellant also believes the court’s charge pressured the jury by
presuming the state would retry the case. However, the Howard charge approved by
the Ohio Supreme Court also alludes to a subsequent jury being seated: “You are
selected in the same manner, and from the same source, as any future jury would be.
There is no reason to believe the case will ever be submitted to a jury more capable,
impartial, or intelligent than this one. Likewise there is no reason to believe that more
or clearer evidence will be produced by either side.” Howard, 42 Ohio St. 3d at 25-26.
{¶46} Lastly, Appellant contests the trial court’s mention of wasted time and
resources. In one case, the court’s supplemental instruction added the following:
“Since the trial of this case means a great deal to the parties and to the public, and
has been expensive in time, effort and money, the Court urges you to make every
reasonable effort to agree upon a verdict.” State v. Williams, 8th Dist. No. 66864
(July 5, 1995). The Eighth District concluded the reference to these items was not
coercive. Id. (refusing to find ineffective assistance of trial counsel for failing to
object). The Second District found a charge which pointed out that a lot of time and
attention was invested in the trial did not improperly coerce jurors to change their
position but merely furthered the purpose of the Howard charge. State v.
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Washington, 126 Ohio App. 3d 264, 283, 710 N.E.2d 307 (2d Dist.1998) (refusing to
find plain error).
{¶47} In reading all of the instructions as a whole and viewing the contested
statements in the context of the entire trial, this court concludes plain error is not
apparent. Notably, the second supplemental instruction was provided on the first day
of deliberations. Supporting a conclusion that the second supplemental instruction
was not coercive, after this instruction the jury deliberated several hours that day and
then for an entire day before reaching its verdict. Compare Howard, 42 Ohio St. 3d at
23 (emphasizing how the jury returned a verdict only one hour after an Allen charge
was given where almost 2.5 days of deliberation had failed to produce agreement).
For all of the foregoing reasons, this assignment of error is overruled.
ASSIGNMENT OF ERROR THREE: ASSISTANCE OF COUNSEL
{¶48} Appellant’s third and final assignment of error provides:
“Appellant was denied effective assistance of counsel as trial counsel’s
defense was predicated on a statement by the victim’s wife that did not exist.”
{¶49} We review a claim of ineffective assistance of counsel under a two-part
test, which requires the defendant to demonstrate: (1) trial counsel’s performance fell
below an objective standard of reasonable representation; and (2) prejudice arose
from the deficient performance. State v. Bradley, 42 Ohio St. 3d 136, 141-143, 538
N.E.2d 373 (1989), citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Both prongs must be established; if the performance was not
deficient, then there is no need to review for prejudice and vice versa. State v.
Madrigal, 87 Ohio St. 3d 378, 389, 721 N.E.2d 52 (2000).
{¶50} In evaluating the alleged deficiency in performance, our review is highly
deferential to counsel's decision as there is a strong presumption counsel's conduct
falls within the wide range of reasonable professional assistance. Bradley, 42 Ohio
St.3d at 142-143, citing Strickland, 466 U.S. at 689. We are to refrain from second-
guessing the strategic decisions of trial counsel. State v. Carter, 72 Ohio St. 3d 545,
558, 651 N.E.2d 965 (1995). There are “countless ways to provide effective
assistance in any given case.” Bradley, 42 Ohio St. 3d at 142, citing Strickland, 466
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U.S. at 689. Debatable trial strategy very rarely constitutes ineffective assistance of
counsel. See State v. Thompson, 33 Ohio St. 3d 1, 10, 514 N.E.2d 407 (1987).
{¶51} To show prejudice, a defendant must prove his lawyer's errors were so
serious that there is a reasonable probability the result of the proceedings would
have been different. Carter, 72 Ohio St. 3d at 558. Lesser tests of prejudice have
been rejected: “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Bradley, 42 Ohio St. 3d 136 at
fn. 1, quoting Strickland, 466 U.S. at 693. Prejudice from defective representation
justifies reversal only where the results were unreliable or the proceeding
fundamentally unfair due to the performance of trial counsel. Carter, 72 Ohio St. 3d at
558, citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S. Ct. 838, 122 L. Ed. 2d 180
(1993).
{¶52} Appellant asserts counsel rendered ineffective assistance by centering
the defense on a statement counsel believed the victim’s wife made during the video
interview. On cross-examination, defense counsel asked the victim’s wife, “Do you
recall saying in the room by yourself: It’s like that they don’t know why I shot
Lenzie?” She said this was not true and denied making the statement. (Tr. 257-
258). The prosecution subsequently asked the detective if the victim’s wife made a
statement she was the killer, and he answered she did not. (Tr. 483). After noting
the prosecutor asked the detective if the victim’s wife said she was the killer, defense
counsel inquired: “But she does say, it’s like they don’t know why I killed Lenzie;
right?” The detective responded, “No.” (Tr. 527).
{¶53} Appellant suggests counsel should not have relied upon a statement
that was not heard by others who listened to the interview. If the statement could be
heard on the recording, then Appellant urges counsel was ineffective by failing to play
the video for the jury. Appellant asks us to consider the sequence of the jury
deliberations in evaluating the effect of defense counsel’s strategy: the jury asked to
see the video statement; the court denied the request as the statement was not
submitted into evidence; the jury reported it was deadlocked; the court provided a
Howard charge; the jury asked for clarification of the Howard charge; the jury asked if
it was to disregard counsel’s question to the victim’s wife; the court instructed the jury
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not to draw any inference or speculate on the truth of any suggestion included in a
question that was asked by counsel but not answered; the court supplemented the
Howard charge; the jury asked to read the testimony of the victim’s wife, which the
court denied; and the jury returned a verdict finding Appellant guilty as charged.
{¶54} In discussing the matter outside of the presence of the jury, the
prosecutor opined she and the detective believed the victim’s wife said, “it’s like they
think that I killed Lenzie.” (Tr. 669, 671). Defense counsel believed she said, “it’s like
that they don’t know why I shot Lenzie.” Defense counsel explained, “Your Honor,
that’s what I heard on the video. * * * To me, as many times as I played it – although
I had it very clear and very loud right next to the speaker – probably a hundred times
I played that thing and that’s what it sounded like to me.” (Tr. 670-671).
{¶55} It does not appear counsel rendered ineffective assistance by voicing
his interpretation of the statement made by the victim’s wife while she was alone in
the interview room or by asking the victim’s wife if she made such a statement.
There is no indication counsel’s question to the victim’s wife fell below an objective
standard of reasonable representation or was outcome determinative. As the state
points out, this strategy was most likely the reason for the jury’s initial deadlock and
the lengthy deliberations. Moreover, defense counsel’s question prompted the
detective to reexamine the statement provided by the victim’s wife.
{¶56} Regarding the failure to have the video played for the jury, defense
counsel may have refrained from playing the video because it portrayed the victim’s
wife in a sympathetic or favorable light, whereas the defense was suggesting it was
she rather than Appellant who shot the victim. Counsel may have refrained from
playing the video because the disputed portion was not clearly audible. Also, if it was
not a prior inconsistent statement, then it would not be admissible under Evid.R. 613.
{¶57} As the video is not part of the record, we cannot review it. The victim’s
wife denied she made the particular statement attributed to her by counsel; the
detective denied the victim’s wife made the statement; and the prosecutor informed
the court defense counsel misheard the words of the victim’s wife. It is possible
defense counsel changed his mind about his interpretation after learning of the
state’s interpretation, which could be perceived as unfavorable to the doubt he was
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attempting to place in the jurors’ minds. A weighing of the risks may have been
involved. Our review of trial strategy is highly deferential. Even when an attorney’s
trial strategy is questionable, the reviewing court should ordinarily refrain from
second-guessing tactical decisions made during trial. State v. Jackson, 107 Ohio
St.3d 300, 317, 2006-Ohio-1, 839 N.E.2d 362, ¶ 138.
{¶58} Contrary to Appellant’s reasoning, the fact others believed the victim’s
wife did not make the statement fails to support ineffective assistance of counsel by
initially asking the question of the victim’s wife. In addition, it has not been
demonstrated the results were unreliable or the proceeding was fundamentally unfair
due to the performance of trial counsel regarding the statement of the victim’s wife.
Carter, 72 Ohio St. 3d at 558, citing Lockhart, 506 U.S. at 369. This assignment of
error is overruled.
{¶59} For all of the foregoing reasons, Appellant’s conviction is affirmed.
Donofrio, P.J., concurs.
Waite, J., concurs.