State v. Brooks , 2012 Ohio 5235 ( 2012 )

[Cite as State v. Brooks, 2012-Ohio-5235.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-11-11
v.
MACK E. BROOKS, III, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009 CR 105
Judgment Affirmed
Date of Decision: November 13, 2012
APPEARANCES:
Dennis C. Belli and Joseph E. Scott for Appellant
Mark C. Miller and Alex K. Treece for Appellee
Case No. 5-11-11
WILLAMOWSKI, J.
{¶1} Plaintiff-Appellant, Mack E. Brooks III (“Brooks”), appeals the
judgment of the Hancock County Court of Common Pleas sentencing him to seven
years in prison after a jury found him guilty of aggravated possession of drugs.
On appeal, Brooks contends that many of his constitutional rights were violated
because of numerous errors by the trial court including the denial of his motion to
suppress, the denial of his right to effective assistance of counsel, the
consolidation of his trial with that of his co-defendant, and joint representation by
the same attorney as his co-defendant. He also claims that the jury’s decision was
not supported by sufficient evidence and was against the manifest weight of the
evidence. For the reasons set forth below, the judgment is affirmed.
{¶2} On June 2, 2009, the Hancock County Grand Jury returned an
indictment against Brooks, charging him with aggravated possession of drugs
(oxycodone pills)1 in violation of R.C. 2925.11(A), in an amount equal to or
exceeding five times the bulk amount, but less than fifty times the bulk amount, a
felony of the second degree. The Grand Jury also returned a separate indictment
against Brooks’ co-defendant, Jamila Smith (“Smith”; Brooks and Smith together,
“Defendants”), also for aggravated possession of drugs.
1
The original indictment stated that the drugs were Oxycontin. However, the laboratory report indicated
that they were oxycodone. Both drugs are Schedule II controlled substances, and the difference in the type
of drug did not change the quantification that the drugs were five to fifty times bulk amount. The
prosecution moved to have the indictment amended, and the defense did not have any objection. (1/3/11
2011 Hrg. Tr. 28)
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{¶3} The charges arose after State Highway Patrol Trooper Kurt
Beidelschies stopped Brooks for a marked lanes violation shortly before midnight
on May 22, 2009. (Trial Tr. 253) Brooks and his passenger, Smith, were unable
to provide a valid copy of the rental agreement for the vehicle he was driving, and
they gave inconsistent stories about their travel plans. (Trial Tr. 256; 260-61)
While waiting to obtain verification of Brooks’ driver’s license and a valid rental
agreement, the trooper called for assistance from a canine unit. (Trial Tr. 261)
Deputy Frederick Smith of the Hancock County Sheriff’s Department, and his
trained dog, “Becky,” arrived at the scene. When Becky alerted on the vehicle, the
trooper placed Brooks and Smith in investigative detention in the rear of his
cruiser and conducted a search of the vehicle. (Trial Tr. 262-64) A second
trooper, Matthew Geer, arrived to assist. (Trial Tr. 464)
{¶4} During the search, the officers found marijuana, pictures of Brooks
holding large sums of money, an empty prescription pill bottle for oxycontin,
money ledgers and seven cell phones. (Trial Tr. 266) The search by the side of
the interstate lasted approximately thirty minutes after which time the vehicle was
driven to the Ohio State Highway Patrol Findlay Post, approximately seven miles
from the stop point, to continue the search. (Trial Tr. 273-74) Once back at the
station, all three officers continued to search the vehicle. Within the first 5-10
minutes, Trooper Geer noticed that the “B-Pillar” on the driver’s side of the
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vehicle was loose, and they discovered a large quantity of pills hidden inside.2
(Trial Tr. 275-76)
{¶5} After discovering the pills, Trooper Beidelschies asked if either of the
Defendants would like to talk with him. Smith indicated that she would be willing
to talk, so Trooper Beidelschies informed Smith of her Miranda rights and began
to question her. Smith confessed to the trooper that they were driving to West
Virginia to drop-off and pick up money, and that Brooks had agreed to pay her
$500 to accompany him. (Trial Tr. 295; 301-2, Exhibit 6) She admitted that this
was the second time she had made this trip down to West Virginia with Brooks.
Smith signed the confession form, handwritten in part by the trooper,
acknowledging their involvement in transporting the pills. (Trial Tr. 302, Ex. 6)
{¶6} Gene Murray, an Ohio attorney, was retained by Brooks and entered
his appearance for both Brooks and Smith on June 10, 2009. Brooks and Smith
entered pleas of “not guilty” and were released on bond. In July 2009, Mr. Murray
filed a Motion to Suppress, citing multiple grounds. After several continuances,
suppression hearings were held in September 2009 and March 2010. The trial
court denied the motion to suppress on June 21, 2010.
{¶7} On September 13, 2010, Mary Hickey, an attorney licensed in
Michigan, filed a motion to appear pro hac vice as counsel for both Defendants.
2
The “B-pillar” is the vertical support post on the driver’s side between the floor and the roof, separating
the front and rear passenger compartments.
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Her motion represented that Mr. Murray would remain as local counsel to assist
and advise her with respect to Ohio practice and procedure. On September 28,
2009, Mr. Murray filed a motion to withdraw as counsel indicating that Brooks
and Smith had “employed newly retained counsel, Mary S. Hickey, esq., as * * *
defense attorney, to replace the undersigned movant counsel Murray.” The trial
court granted Mr. Murray’s motion the same day. The following day, the trial
court granted Ms. Hickey’s motion to appear pro hac vice.
{¶8} During an October 8, 2010 status conference, the trial court ordered
the scheduling of separate trial dates for each defendant to avoid constitutional
violations under Bruton v. United States, 391 U.S. 123 (1968).3 (10/8/10 Hrg. Tr.
40-42). However, for reasons not evident in the record, both cases were combined
and consolidated for trial on January 3, 2011. As they were waiting for the jurors
to arrive for orientation on the day scheduled for trial, the trial court and attorneys
discussed some preliminary matters on the record.
{¶9} First, the trial court questioned Ms. Hickey concerning her decision,
and her clients’ decision, to allow Ms. Hickey to jointly represent them. (1/3/11
Hrg. Tr. 4) Ms. Hickey stated that she had found a waiver of potential conflicts
signed by both Defendants in the file she “inherited” from Mr. Murray, and that
she had talked with both Defendants about the conflict and informed them it was a
3
In Bruton, the United States Supreme Court held that a co-defendant's statement implicating a defendant
cannot be used in a joint trial unless the co-defendant is available for cross-examination. Bruton, 391 U.S.
at 127-128.
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waiveable matter. And, the retainer agreement they both signed with her had
stated that they both had the right to separate counsel and that their interests would
be better served if they were represented by separate counsel. (Id. at 5) Ms.
Hickey also stated that she met separately with Smith to make sure that she wanted
to go forward with her as their joint attorney, “particularly in light of the State’s
offer to allow [Smith] to plead to a reduced charge if she would testify against Mr.
Brooks.” (Id.) Ms. Hickey stated that she was satisfied that the waivers were
knowing and voluntary. (Id.)
{¶10} The trial court also addressed the potential problem of having a joint
trial and whether the admission of Smith’s statement would violate any
constitutional rights under Bruton and Crawford v. Washington, 541 U .S. 36
(2004).4 Ms. Hickey indicated that her clients would be willing to waive any
Bruton issues and the prosecution prepared a waiver for the Defendants to sign.
(1/3/11 Hrg. Tr. 5-6) The trial court then granted Ms. Hickey’s request for a
continuance, due to the prosecution’s failure to timely provide requested discovery
materials that Ms. Hickey claimed she needed for trial.
{¶11} The joint trial was finally held on February 7, 8, and 9, 2011, nearly
two years after the initial traffic stop. Trooper Beidelschies, Trooper Geer, and
4
In Crawford, the United States Supreme Court held that a defendant's federal confrontational
constitutional rights are violated by the admission of “testimonial” statements of witnesses absent from trial
unless the witness is unavailable to testify and when the defendant had a prior opportunity to cross-examine
the witness.
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Deputy Smith testified as witnesses for the State, describing what occurred when
Trooper Beidelschies made the initial traffic stop, when Deputy Smith arrived and
Becky alerted on the vehicle, and how they conducted the initial search of the
vehicle beside the interstate. After finding the marijuana, photos of Brooks with
quantities of money, the ledgers, an empty pill container, a plastic baggie, and
multiple cell phones, the officers testified that the finding of these “criminal
indicators” led them to believe that there might be a significant amount of drugs in
the vehicle. (Trial Tr. 476) It was then decided to move the vehicle back to the
station for purposes of the officers’ safety and so that they could conduct the
search with better lighting and the availability of tools to facilitate searching the
vehicle, especially given that they had found evidence of tampering with the seat
bolts, which could indicate the presence of a hidden compartment. (Id. at 274;
457, 463) All three of the officers were present when Trooper Geer found several
bags containing over one-thousand pills hidden in the B-Pillar. (Id. at 492) The
officers recognized the pills to be narcotics because of their markings, and divided
the tablets between the three of them for counting, in order to facilitate the
counting process. (Id. at 342-46) The testimony from all three of the officers as to
what occurred was consistent with each of the other’s testimony.
{¶12} The video record of the traffic stop and initial search from Trooper
Beidelschies’ vehicle’s video camera was also played for the jury. (State’s Exhibit
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7) However, this video recording was incomplete and ended before the search was
concluded. Trooper Beidelschies testified that he did not realize that the video
card was almost full when he began his shift that evening and that it had stopped
recording because it had run out of memory space. (Trial Tr. 431-35) They did
not record the search of the vehicle back at the Highway Patrol Post because it was
not typical to do so, there was no recording equipment in the area where they
conducted the search, and there was no reason to record the search because there
were three officers present to witness what was occurring. (Trial Tr. 492)
Trooper Geer testified that the Defendants also witnessed the search. (3/25/10
Suppression Hrg. Tr. 25)
{¶13} Heather Sheskey, a forensic chemist and experienced criminologist
with the Ohio State Highway Patrol Crime Laboratory, testified as to the process
of analyzing the drugs, the chain of custody, the quantity of pills that she tested,
and the fact that the pills were various strengths of Oxycontin, which was a
proprietary name for these pills, which contained the drug oxycodone. (Trial Tr.
384-409.) Trooper Beidelschies had testified that he was “embarrassed” because
there was a discrepancy between the amount of pills that he had reported as being
found (1,152), the amount of pills he testified to at the suppression hearing
(1,159), the amount of pills in his property report (1,418); and the amount of pills
in Ms. Sheskey’s laboratory report (1,132). However, he indicated that the
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discrepancy had probably occurred because they had divided the drugs up to be
counted between the three officers, with each officer counting either the 40 mg.,
60 mg., or 80 mg. pills. (Trial Tr. 372) Trooper Beidelschies testified that their
initial count was more of a “rough count” on the date of the traffic stop; that their
counts definitely revealed that they had over one-thousand pills; and, that the final
official tally would be what the crime lab determined because it would have the
machinery to do a more accurate count. (Id. at 348)
{¶14} In any case, Ms. Sheskey confirmed that she had no doubt that the
pills contained in State’s Exhibit 8 were Oxycontin 80 mg. pills containing
oxycodone; that that there were 390 tablets of this strength in total; that the bulk
amount for the drug in this strength was 6 tablets; that 50 times the bulk amount
would be 300 tablets; and, that there were definitely more than 300 total of these
tablets in the State’s exhibits that contained the 80 mg. pill strength. (Trial Tr.
409-11)
{¶15} The Defendants’ attorney cross-examined the State’s witnesses
extensively and tried to discredit their testimony by suggesting that the records of
the chain of custody were insufficient; that there were discrepancies in the amount
of pills alleged found; that the officers had failed to follow departmental
procedures regarding making video and audio recordings of the events that
transpired that night; that there was something improper in the fact that Trooper
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Beidelschies had written most of Smith’s confession; that there were no witnesses
to Smith’s statement; and, that it was improper to detain the Defendants for as
long as they did and then to drive the vehicle back to the post to continue to the
search. Ms. Hickey suggested that “evidence has been, if not manufactured, that it
was actively misrepresented in the official record.” (Trial Tr. 776-77, Defendants’
Closing Argument)
{¶16} The defense also offered the testimony of a video forensic expert
witness, Edward Primeau, who testified that it was his opinion that there were
three possible reasons why the video terminated before the end of the search: the
equipment malfunctioned, the storage device was full, or it was turned off or
tampered with. (Trial Tr. 708-12) He believed this video had been turned off.
(Id.) However, on cross examination, he acknowledged that he could not state
how much recording time may have been left on the memory at the time the
recording commenced. (Id. at 714)
{¶17} After considering all of the testimony and the exhibits that were
admitted, the jury found both Brooks and Smith guilty of aggravated possession of
drugs, a felony of the second degree. The matter was set for sentencing.
{¶18} At the March 2, 2011, sentencing hearing, Brooks and Smith
appeared with new defense counsel and indicated that they no longer wished to
have Ms. Hickey represent them. Ms. Hickey was then discharged as defense
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counsel, and Stephanie Lape and Adam Bleile commenced representation of the
Defendants.
{¶19} The new defense counsel had filed a motion for a mistrial pursuant to
Crim.R. 33(A)(1), claiming that the Defendants were denied a fair trial due to an
irregularity in the proceedings, namely the fact that they were represented by Ms.
Hickey, who they claim was not properly admitted pro hoc vice to practice law in
the State of Ohio. (Sentencing Tr. 52) After considering the arguments of the
parties, the trial court found that there was no evidence that the Defendants did not
receive a fair trial and denied the motion for a new trial. (Sent. Tr. 55; Mar. 22,
2011 Decision)
{¶20} The trial court then proceeded to separately sentence the Defendants.
The State requested the maximum 8-year sentence and the maximum $15,000 fine
for Brooks, based upon Brooks’ significant criminal history. The trial court
sentenced Brooks to a mandatory 7-year prison term and a $10,000 fine.5 (Mar.
24, 2011 J.E.)
{¶21} It is from this judgment that Brooks now appeals, raising the
following eight assignments of error for our review.
5
The trial court sentenced Smith to two years in prison. (May 12, 2012 Nunc Pro Tunc J.E.). The trial
court stated that it believed that, based upon the evidence in the record, Brooks’ role was considerably more
significant than Smith’s. (Sent. Tr. 82)
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First Assignment of Error
[Brooks’] conviction for aggravated possession of drugs is not
supported by evidence sufficient to satisfy the requirements of
the Due Process Clauses of the Fifth and Fourteenth
Amendments to the United States Constitution; or alternatively,
is against the manifest weight of the evidence.
Second Assignment of Error
The court of common pleas committed reversible error when it
denied [Brooks’] motion to suppress the oxycodone that was
seized by the highway patrol during a warrantless search of his
rental vehicle in violation of his rights under the Fourth and
Fourteenth Amendments to the United States Constitution and
Article I, Section 14 of the Ohio Constitution.
Third Assignment of Error
The existence of an actual conflict of interest arising from
defense counsel’s simultaneous representation of [Brooks] and
his Co-Defendant adversely affected counsel’s performance and
deprived him of his right to the assistance of unconflicted
counsel under the Sixth and Fourteenth Amendments to the
United States Constitution.
Fourth Assignment of Error
The common pleas court’s failure to conduct an adequate rights
waiver colloquy, its perfunctory acceptance of a defectively-
worded “Bruton waiver,” and its consolidation of [Brooks’] jury
trial with the trial of his Co-Defendant constituted plain error
and violated his right of confrontation and right to due process
under the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Sections 10 and 16 of
the Ohio Constitution.
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Fifth Assignment of Error
The admission of the “criminal indicators” testimony of the state
trooper and the oxycodone pills without an adequate chain of
custody violated the Rules of Evidence and deprived [Brooks] of
his due process right to a fundamentally fair jury trial in
violation of Fifth, Sixth and Fourteenth Amendments to the
United States Constitution.
Sixth Assignment of Error
The prosecutor’s improper remarks regarding the accusatory
statements of the Co-Defendant and [Brooks’] post-Miranda
silence, coupled with the failure of the trial court to give limiting
or corrective instructions to the jury, constituted plain error and
violated [Brook’s] right of confrontation and due process right
to a fundamentally fair jury trial under the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution and
Article I, Sections 10 and 16 of the Ohio Constitution.
Seventh Assignment of Error
The common pleas court’s failure to conduct proceedings in
[Brooks’] presence regarding local counsel’s motion to
withdraw, and its subsequent denial of his motion for a new trial
for irregularity in the proceedings, was error and violated his
right to an Ohio-licensed attorney and right to be present during
all critical stages of the prosecution under Crim.R. 43 and the
Fifth, Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 10 and 16 of the Ohio
Constitution.
Eighth Assignment of Error
[Brooks] was denied his right to the effective assistance of
counsel as guaranteed by the Sixth and Fourteenth Amendments
to the United States Constitution and Article I, Section 10 of the
Ohio Constitution.
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{¶22} Because several of Brooks’ assignments of error deal with similar
and over-lapping issues, we shall combine our discussion of some of the
assignments of error and address some of the issues out of order.
Second Assignment of Error – Denial of Motion to Suppress
{¶23} The second assignment of error asserts that the trial court erred when
it denied Brooks’ pretrial motion to suppress evidence seized from the rental
vehicle. Brooks maintains that under the Exclusionary Rule, the State should have
been prohibited from using the evidence obtained through what he characterizes to
be an illegal search. Brooks has not challenged the probable cause for the original
traffic stop but he contests (1) the length of the initial detention of the vehicle until
the arrival of the canine unit; (2) the search of the passenger compartment, when
the canine alerted only on the trunk; and, (3) moving the vehicle to the patrol post
for a more extensive search.
{¶24} The United States Supreme Court has held that “[t]he Fourth
Amendment [of the United States Constitution] provides that ‘the right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated * * *.’ This inestimable
right of personal security belongs as much to the citizen on the streets of our cities
as to the homeowner closeted in his study to dispose of his secret affairs.”
(Emphasis added.) Terry v. Ohio, 392 U.S. 1, 8–9 (1968). Similar protection
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exists pursuant to Section 14, Article I of the Ohio Constitution. See State v.
Wilson, 3d Dist. No. 5–07–47, 2008–Ohio–2742, ¶ 16. When evidence is obtained
as a result of an unlawful search and seizure, it must be suppressed. Id., citing
Mapp v. Ohio, 367 U.S. 643 (1961).
{¶25} Our review of a trial court’s ruling on a motion to suppress presents a
mixed question of fact and law. State v. Burnside, 100 Ohio St.3d 152, 2003–
Ohio–5372, ¶ 8, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). At a
suppression hearing, the trial court assumes the role of trier of fact and, as such, is
in the best position to evaluate the evidence and the credibility of witnesses. Id.Therefore, deference is given to the trial court's findings of fact so long as they are
supported by competent, credible evidence. Id. However, with respect to the trial
court's conclusions of law, our standard of review is de novo and we must decide
whether the facts satisfy the applicable legal standard. Id., citing State v.
McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).
{¶26} When an individual has been detained so that the police may
investigate a traffic violation, the police may detain that person for the length of
time necessary to check the driver's license, vehicle's registration, and the vehicle's
license plate. State v. Batchili, 113 Ohio St.3d 403, 2007–Ohio–2204, ¶ 12. “In
determining if an officer completed these tasks within a reasonable length of time,
the court must evaluate the duration of the stop in light of the totality of the
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circumstances and consider whether the officer diligently conducted the
investigation.” Id., quoting State v. Carlson, 102 Ohio App.3d 585, 598 (9th
Dist.1995).
{¶27} If, during the investigation of the events that gave rise to the initial
stop, the officer discovers additional facts from which it is reasonable to infer
additional criminal activity, the officer is permitted to lengthen the duration of the
stop to investigate such suspicions. State v. Williams, 9th Dist. No. 09CA009679,
2010–Ohio–3667, ¶ 15, citing Batchili, 113 Ohio St.3d 403 at ¶ 15; State v.
Robinette, 80 Ohio St.3d 234, 241, 1997–Ohio–343. However, a law enforcement
officer needs no suspicion to request a canine sniff nor does the officer need
suspicion to conduct an exterior canine sniff of the vehicle as long as it is done
contemporaneously with the legitimate activities associated with the traffic
violation. State v. Hollins, 3d Dist. No. 5-10-41, 2011-Ohio-5588, ¶ 32.
{¶28} After hearing the testimony and reviewing the video of the traffic
stop, the trial court found that the Defendants had not been detained for an
unreasonable amount of time before the dog alerted on the vehicle, and that their
detention during that time was proper according to the law. The traffic stop
occurred at approximately 11:15 p.m. (6/21/10 Hrg. Tr. 10) Trooper Beidelschies
asked Brooks to exit his vehicle and sit in the patrol car while the trooper initiated
a LEADS check to determine both the driver’s and passenger’s driving status and
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the status of the rental vehicle, since the rental agreement they presented was not
valid. (Id.) At approximately 11:23, the trooper returned to the vehicle to
determine if another rental agreement existed which would provide verification of
Brooks’ ability to operate the car. (Id. at 11) The trooper became suspicious due
to the inconsistent stories given by the Defendants as to why they were traveling,
and he summoned the canine unit to assist. Deputy Smith and canine Becky
arrived at 11:34, and the canine alerted to the vehicle within the first few minutes.
{¶29} The time from the initial traffic stop until Becky alerted was only
about thirty minutes. (Id.) More importantly, the trooper still had not yet
received verification that Brooks had renewed the rental agreement and was in
lawful possession of the vehicle until after Becky hit on the vehicle. Based on
these circumstances, the time spent to conduct the stop and background check was
not excessive. “A traffic stop is not unconstitutionally prolonged when
permissible background checks have been diligently undertaken and not yet
completed at the time a drug dog alerts on the vehicle. Batchili, 113 Ohio St. 3d
403, ¶ 14. There is no evidence that the traffic stop was prolonged beyond
legitimate purposes. The trooper had to wait until he received verification that
Brooks was authorized to operate the vehicle before he could allow him to drive
away. An officer may review a rental agreement in addition to conducting
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background checks of the driver's license and the vehicle's registration. State v.
Hollins, 3d. Dist. No. 5-10-41, 2011-Ohio-5588, ¶¶ 34-35.
{¶30} Next, Brooks claims that because the canine alerted on the trunk
area, and they found Smith’s purse containing a small amount of marijuana in the
trunk, the officers had no reason or right to continue searching the passenger
compartment. Smith acknowledged that she had a small amount of marijuana for
personal use in her purse that was located in the trunk. Brooks argues that the
trooper should have issued a misdemeanor citation for the marijuana and
concluded the traffic stop.
{¶31} Brooks’ argument fails for several reasons. Ohio courts have
consistently held that once a certified drug sniffing dog alerts to a vehicle, officers
have probable cause to search the entire vehicle. See e.g. State v. Chambers, 3d
Dist. 5-10-29, 2011-Ohio-1305, ¶ 17; State v. Nguyen, 157 Ohio App.3d 482,
2004-Ohio-2879 (6th Dist.), ¶ 22; State v. Buckner, 2d Dist. No. 21892, 2007-
Ohio-4329, ¶ 19; State v. Almanzan, 9th Dist. No. 05CA0098-M, 2006-Ohio-5047,
¶15. Deputy Smith also testified that the location where the canine alerts is the
location where the scent escapes the vehicle and may not necessarily be the actual
location of the of the drugs. (Trial Tr. 597) And, once the officers found the
marijuana in Smith’s purse, they had no way of knowing that there was not more
marijuana located elsewhere unless they searched the entire vehicle. Furthermore,
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when the officers searched the trunk of the car, they found more items that they
considered indicators of possible criminal activity that caused them to have
probable cause to believe that the vehicle’s occupants were engaged in drug-
related activities.
{¶32} Lastly, Brooks maintains that the trial court erred in concluding that
probable cause justified removing the vehicle to the post in order to search for
hidden compartments. Brooks acknowledges that the “automobile exception”
allows a police officer to conduct a warrantless search of portions of a motor
vehicle provided he has probable cause to believe it contains evidence of a crime.”
See Carroll v. United States, 267 U.S. 132, 158-59 (1925). However, he again
argues that once the marijuana in Smith’s purse was found, the probable cause
dissipated. And, he contends that the officers’ statements that they moved the
vehicle to the station was for their safety was merely a pretext because they had
already searched the vehicle by the side of the road for thirty minutes.
{¶33} The United States Supreme Court has held that there is no
prohibition in moving a car to the station in order to conduct a probable cause
search under more practical, and perhaps safer, conditions. Chambers v. Maroney,
399 U.S. 42, 52 (1970) (“It was not unreasonable in this case to take the car to the
station house. * * * A careful search at that point was impractical and perhaps not
safe for the officers, and it would serve the owner's convenience and the safety of
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his car to have the vehicle and the keys together at the station house.”). The
probable cause factor that was present at the scene is “still obtained at the station
house.” Id. This logic has been followed by Ohio courts. See e.g. State v.
Carpenter, 9th Dist. No. 2667-M, 1998 WL 161289 (believing that they had
probable cause to search the trunk, and having no other way to enter it, the officers
towed the vehicle to the Medina Highway Patrol Post, where they could, if
necessary, employ a locksmith to open the trunk); State v. Jones, 1st Dist. No. C-
75272, 1976 WL 189698 (troopers moved the vehicle three miles to the patrol post
where the lighting conditions were better and the troopers could conduct the
search without the fear of being struck by the turnpike traffic).
{¶34} The trial court did question the officers’ claim about the necessity of
moving the vehicle for officer safety, since they had already been searching it by
the side of the highway for thirty minutes. However, when they began the search,
they had no idea how long it might take, and it is understandable that concerns
about safety may have increased the longer they were there and at risk. However,
their testimony indicates that their primary reason was to have access to better
lighting, and tools, if necessary, since their initial search showed signs of
tampering with the seat bolts that may have meant there was a secret compartment
in the vehicle. We find no error in the trial court’s determination that once the
existence of probable cause was established though the drug dog, there was no
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constitutional impediment to moving the vehicle to finalize the search. (6/21/10
Hrg. Tr. 21-22)
{¶35} Based on all of the above, the trial court’s decision to deny the
motion to suppress was consistent with the facts in the record and the applicable
law. Brooks’ second assignment of error is overruled.
Fifth Assignment of Error – Improper Admission of Evidence at Trial
{¶36} In the fifth assignment of error, Brooks maintains that evidence
concerning the so-called “criminal indicators” was irrelevant and inflammatory,
and that its probative value was substantially outweighed by its prejudicial effect.
Furthermore, he claims that the pills should have been excluded due to the State’s
failure to establish a satisfactory chain of custody or an accurate count.
{¶37} Evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury. Evid.R. 403(A). It is well established that the decision to
admit or exclude evidence is within the sound discretion of the trial court and that
an appellate court will not disturb that decision absent an abuse of discretion.
State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus; State v.
Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, ¶ 33. The trial court is vested with
this discretion because it is in a much better position than we are to evaluate the
authenticity of evidence and assess the credibility and veracity of witnesses. State
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v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160 ¶ 129. “Abuse of discretion”
implies that the trial court's decision was arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Furthermore, because there was no objection raised to this testimony, Brooks has
waived all but plain error. In order to find plain error, Crim.R. 52(B) requires that
there must be a deviation from a legal rule, the error must be an “obvious” defect
in the trial proceedings, and the error must have affected a defendant's “substantial
rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68. An alleged error
constitutes plain error only if the error is obvious and, but for the error, the
outcome of the trial clearly would have been different. State v. Yarbrough, 95
Ohio St.3d 227, 2002-Ohio-2126, ¶ 108. Plain error is to be used “with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” Barnes, 94 Ohio St.3d at 27.
{¶38} The officers testified that the photos of Brooks holding quantities of
money, the money ledgers, the empty pill bottle, the plastic bag, multiple cell
phones, multiple car rental agreements, and inconsistent stories indicated to them,
based upon their professional experience, that such items and occurrences were
often associated with criminal activity. The “criminal indicators” as Trooper
Beidelschies called them, provided the officers with probable cause to continue
searching the vehicle. These were simple facts that were necessary to describe
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what occurred. It was also appropriate for the jury to consider the testimony
concerning these items, along with the other evidence that was presented, and to
decide for themselves whether this gave rise to an inference of drug activity in this
case. We do not find that the admission of this testimony was an abuse of
discretion, and it certainly did not affect Brooks’ substantial rights or create a
manifest miscarriage of justice.
{¶39} As to the “chain of custody” of the pills, the State has the burden of
establishing the chain of custody of a specific piece of evidence but the State's
burden is not absolute; “[t]he state need only establish that it is reasonably certain
that substitution, alteration or tampering did not occur.” State v. Barzacchini, 96
Ohio App.3d 440 (6th Dist.1994). As a general matter, “the state [is] not required
to prove a perfect, unbroken chain of custody.” State v. Gross, 97 Ohio St.3d 121,
2002-Ohio-5524, ¶ 57, citing State v. Keene, 81 Ohio St.3d 646, 662 (1998).
While authentication of evidence is a condition precedent to its admission, the
condition is satisfied when the evidence is “sufficient to support a finding that the
matter in question is what its proponent claims.” Evid.R. 901(A); State v. Hunter,
169 Ohio App.3d 65, 2006–Ohio 5113, ¶ 16. Evidence of a process or system to
produce an accurate result is sufficient to satisfy the rule. Evid.R. 901(B)(9).
Breaks in the chain of custody go to the weight afforded the evidence, not its
admissibility. State v. Blevins, 36 Ohio App.3d 147, 150, (10th Dist.1987).
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{¶40} The testimony of Trooper Beidelschies and the property control
forms indicated a proper chain of custody for the pills. The trial court addressed
this concern and found no faults with the chain of custody. During the instances
that Brooks complains the records did not show the correct person with custody
and control of the pills, Beidelschies explained that he was also with the pills
during the times when multiple people were involved, so it was sufficient to only
list his name; that the pills never left his custody and control during those times;
and that this satisfied the procedures and requirements. Brooks also complains
that the trooper used a gun locker to store and secure the pills at one point.
Trooper Beidelschies explained that he maintained control of the key to that locker
and the fact that it was placed in a “gun locker” rather than an “evidence locker”
did not impair its chain of custody. (Trial Tr. 375-76)
{¶41} As to the inconsistent pill counts, Trooper Beidelschies testified that
it was three or four o’clock in the morning by the time the three officers counted
the pills and they were all tired from the night’s activities involving the search and
arrests. While it was unfortunate that the pill count was not completely accurate,
he explained that it always showed there were over one thousand pills, and that he
depended on the crime lab to establish a perfectly accurate count. Furthermore,
because of the discrepancy, the State only admitted the 390 pills in the 80 mg.
strength. The State only had to prove that there were more than 30 pills of that
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strength to equal five times the bulk amount, so any inaccuracy in the count of
pills over that number was immaterial, as long as it was clearly established that
there were at least 30. (Trial Tr. 744-745)
{¶42} Here, Brooks’ counsel did object to the admission of the pills, but we
find that the trial court did not err in determining that there were no fatal flaws in
the chain of custody. Brooks’ fifth assignment of error is overruled.
First Assignment of Error – Evidence Insufficient and Against Manifest Weight
{¶43} In this assignment of error, Brooks argues that there was insufficient
evidence to tie Brooks to the pills and find him guilty of aggravated possession
because: (1) his mere presence in the rental vehicle was not sufficient to
demonstrate constructive possession of the drugs; (2) Smith’s inconsistent
statements concerning the purpose of their trip and Smith’s confession implicating
Brooks must be disregarded because they are “testimonial” statements under
Crawford v. Washington, 54 U.S. 36 (2004) and he did not have the opportunity to
cross examine Smith; and, (3) the testimony concerning the multiple “criminal
indicators” violated the rule against the impermissible stacking of inferences.
Without this evidence, which Brooks asserts must be disregarded, he maintains
that there was insufficient evidence to support his conviction as a matter of law.
{¶44} When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence
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submitted at trial, if believed, could reasonably support a finding of guilt beyond a
reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–52
(stating, “sufficiency is the test of adequacy”); State v. Jenks, 61 Ohio St.3d 259,
273 (1991). The standard of review is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
all the essential elements of the offense beyond a reasonable doubt. Jenks, supra;
Jackson v. Virginia, 443 U.S. 307 (1979). This test raises a question of law and
does not allow the court to weigh the evidence. State v. Martin, 20 Ohio App.3d
172, 175 (1st. Dist.1983).
{¶45} Brooks was found guilty of violating R.C. 2925.11(A), which
provides “[n]o person shall knowingly obtain, possess, or use a controlled
substance.” “‘Possess’ or ‘possession’ means having control over a thing or
substance, but may not be inferred solely from mere access to the thing or
substance through ownership or occupation of the premises upon which the thing
or substance is found.” R.C. § 2925.01(K). The issue of whether a person charged
with drug possession knowingly possessed a controlled substance “is to be
determined from all the attendant facts and circumstances available.” State v.
Teamer, 82 Ohio St.3d 490, 492, 1998–Ohio–193.
{¶46} Possession may be actual or constructive. State v. Cuffman, 3d Dist.
Nos. 3-11-01, 3-11-02, 2011-Ohio-4324, ¶ 31, citing State v. Worley, 46 Ohio
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St.2d 316, 329 (1976). For constructive possession to exist, the State must
demonstrate that the defendant was able to exercise dominion or control over the
item, even if he/she does not have immediate physical possession of it, and was
conscious of the object's presence. State v. Hankerson, 70 Ohio St.2d 87, 91,
(1982); State v. Messer, 107 Ohio App.3d 51, 56 (9th Dist.1995). See, also, State
v. Cooper, 3d Dist. No. 9–06–49, 2007–Ohio–4937, ¶ 25. The State may prove
the existence of the various elements of constructive possession of contraband by
circumstantial evidence. State v. Jenks, 61 Ohio St.3d at 259, 272–73.
{¶47} We find there was sufficient evidence that, when viewed in a light
most favorable to the State, a rational trier of fact could have found that Brooks
had constructive possession of the drugs. Although the vehicle involved was a
rental vehicle, Brooks was the person listed on the rental agreement and had
recently renewed the rental agreement. The fact that a defendant possesses the
keys to an automobile is a strong indication that he possesses the automobile and
the items inside. State v. Ray, 9th Dist. No. 03CA0062-M, 2004-Ohio-3412, ¶ 23.
Brooks was driving the vehicle at the time and the drugs were located within his
reach, hidden in the column immediately behind and adjacent to the driver’s seat.
He was certainly able to exercise dominion and control over the contraband.
{¶48} In State v. Rodgers, 3d Dist. No. 5-10-35, 2011-Ohio-3003, ¶ 30, this
Court found that there was sufficient evidence to find that the defendant had
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constructive possession of the drugs found in the rental vehicle. Even though the
vehicle was not rented in his name, the defendant was driving the vehicle and
acknowledged that he was the person responsible for returning the vehicle. Id.See also State v. Reed, 10th Dist. No. 09AP-84, 2009-Ohio-6900, ¶ 21 (although
uncertain whether the defendant owned or rented the car, when a person is the
driver or a passenger in a car in which drugs are within easy access, a trier of fact
may find constructive possession).
{¶49} Brooks cites to our decision in State v. Cooper, 3d Dist. No. 9-06-49,
2007-Ohio-4937, and asserts that a defendant’s “mere presence in a non-owned
motor vehicle occupied by more than one person is insufficient to demonstrate
guilty knowledge and constructive possession.” (Appellant’s Brief, p. 6)
However, Cooper is distinguishable from the facts in this case in several ways.
Cooper was merely a passenger in the vehicle, which was driven by and under the
control of a known drug-dealer. There was no evidence that Cooper knew where
the drugs were or that they were within his reach, and there was evidence that he
had never touched the drugs and was not a part of the drug transaction that had
occurred. Id. at ¶ 29. In this case, Brooks was clearly the person in control of this
vehicle, even though it was a rental vehicle. There was no contradictory evidence
that would have indicated the drugs belonged to someone else, like in Cooper.
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{¶50} And, the officers also testified as to finding seven cell phones and
pictures of Brooks holding large amounts of cash. In Westlake v. Wilson, 8th Dist.
No. 96948, 2012-Ohio-2192, ¶ 38, the appellate court heard testimony that drug
dealers often have large amounts of cash and multiple cell phones on them, and
found this to be a factor in finding constructive possession. The court recognized
that merely having a cell phone is ubiquitous and is not ipso facto proof that it was
used in drug trafficking, but the same cannot be said about having multiple cell
phones. Id.; see also State v. Byers, 8th Dist. No. 94922, 2011–Ohio–342, ¶ 9.
{¶51} “Mere presence in the vicinity of drugs, coupled with another factor
probative of dominion or control over the contraband, may establish constructive
possession.” Cooper, at ¶ 26. Here, Brooks was close enough to the drugs to
establish dominion and control over them; he was driving the car; the vehicle had
been rented to him and he had renewed the rental agreement; Brooks and Smith
gave inconsistent stories about what they were doing; there were pictures of
Brooks holding quantities of money, along with ledgers; there was an empty bill
bottle of oxycontin (not in Brooks’ name); and seven cell phones were found in
the vehicle. There were multiple factors present here which would allow a
reasonable jury to find that Brooks possessed the pills that were found in the car
he was driving.
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{¶52} However, Brooks also argues that inferring constructive possession
from the multiple cell phones, inconsistent stories, and other circumstantial
evidence would amount to an improper “stacking” of inferences. Brooks is
mistaken because in this case, the multiple inferences are not “stacked” upon one
another, the multiple inferences all point to the same conclusion – that Brook
possessed the drugs.
Inferences may be drawn from circumstantial evidence so long as
one inference is not drawn wholly from a fact the existence of which
rests solely on another inference. Thus, a jury may base its verdict
partly on reasonable inferences drawn from facts in evidence, and
partly on other inferences drawn from the same facts and common
human experience. Such is not an impermissible stacking of
inferences.
State v. Carver, 3d Dist. No. 11-95-14, 1996 WL 197427, citing Motorists Mut.
Ins. Co. v. Hamilton Township Trustees, 28 Ohio St.3d 13 (1986).
{¶53} And finally, Brooks maintains that Smith’s statement implicating
him must be disregarded in attempting to prove his guilt, because a co-defendant’s
confession or admissions cannot be used as evidence of his guilt, especially when
he did not have the opportunity to confront Smith about the statements. However,
as discussed in our response to the fourth assignment of error below, even if the
statement made by Smith is not considered and is completely disregarded, there
was more than sufficient evidence to support a finding of guilt beyond a
reasonable doubt. The use of Smith’s confession would probably have been
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necessary in order to prove that Brooks was trafficking in drugs, as her statement
constituted the primary evidence that they were making the trip to West Virginia
in order to sell the drugs, and that this was not the first time they had done so.
However, Brooks was not charged with trafficking. Brooks was charged only with
possession of the drugs, and there was ample evidence to support that conviction.
{¶54} Finding that there was sufficient evidence to support Brooks’
conviction, we look at the second part of this assignment of error, claiming that the
decision was against the manifest weight of the evidence. In determining if a
conviction is against the manifest weight of the evidence, an appellate court
“review[s] the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered.” State v. Mendoza, 137 Ohio App.3d 336, 346–347 (3d Dist.2000),
quoting State v. Martin, 20 Ohio App.3d 172, 175, (1st Dist.1983); see, also, State
v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A new trial should be granted only
in the exceptional case in which the evidence weighs heavily against conviction.
Thompkins at 387.
{¶55} Although the appellate court acts as a “thirteenth juror,” it still must
give due deference to the findings made by the fact-finder. State v. Thompson, 127
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Ohio App.3d 511, 529 (8th Dist.1998). The fact-finder, being the jury, occupies a
superior position in determining credibility. Id. When examining witness
credibility, “[t]he choice between credible witnesses and their conflicting
testimony rests solely with the finder of fact and an appellate court may not
substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio
St.3d 120, 123 (1986).
{¶56} Two state troopers and a sheriff’s deputy all presented consistent,
believable, logical, and uncontroverted testimony concerning what occurred the
night that Brooks was stopped and the drugs were found. There was no evidence
or testimony to contradict their testimony, other than Mr. Primeau, who testified
that it was his opinion that the video recording had been turned off. However, he
acknowledged he had no real way to determine if that had occurred. There was no
evidence – or even a theory – offered as to why the officers would have turned off
the video and somehow conspired to misrepresent what occurred that evening.
The portion of the video that was shown to the jury and admitted into evidence
was consistent with the testimony of the officers and would support the testimony
that the video stopped recording because it ran out of memory space. It was up to
the jury to decide the credibility of the witnesses.
{¶57} Brooks also cites legitimate uses for each of the incriminating items
that were found in the vehicle, and claim that they don’t necessarily indicate
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criminal activity. While that may be true for each item individually, it stretches
credibility to infer a completely innocent use for each and every item when they
are all viewed together under the totality of the circumstances. We cannot say that
the jury lost its way or created a miscarriage of justice.
{¶58} We find that there was sufficient competent, credible evidence to
find that Brooks was guilty of aggravated possession of drugs, and that the jury’s
decision was not against the manifest weight of the evidence. The first assignment
of error is overruled.
Fourth Assignment of Error – Joint Trial and Defective Bruton Waiver
Brooks claims that the consolidation of his trial with the trial of his co-defendant
amounted to plain error. If the trials had been held separately, Smith’s statement,
which also implicated Brooks, would not have been admissible and the jury would
not have heard the trooper’s testimony concerning his interview with Smith.
Brooks claims that without the information in Smith’s statement, there would have
been insufficient knowledge to find constructive possession.
{¶59} Brooks acknowledges that he and his co-defendant agreed to waive
any Bruton issues, and signed a waiver provided by the prosecutor. However, he
asserts that his waiver was invalid because the language of his waiver form was
defective and misleading; his counsel’s conflict of interest in representing both co-
defendants precluded him from receiving competent and unbiased advice; and, the
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trial court failed in its duty to engage Brooks in a meaningful colloquy for
purposes of ensuring he was making a knowing intelligent and voluntary waiver.
{¶60} The Sixth Amendment to the United States Constitution guarantees
that a person accused of committing a crime has the right to confront and cross-
examine witnesses testifying against him. Pointer v. Texas, 380 U.S. 400, 406
(1965). Section 10, Article I of the Ohio Constitution contains a similar guarantee
of confrontation. The United States Supreme Court in Bruton v. United States,
391 U.S. 123 (1968), held that an out-of-court statement of a co-defendant cannot
be admitted into evidence against the other defendant because the defendant is
unable to attack the statement by cross-examination (unless the co-defendant
testifies and waives his right against self-incrimination). Thus, the admission of
the co-defendant’s statement violated Bruton’s rights under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. Id. The Ohio
Supreme Court, in State v. Moritz, 63 Ohio St.2d 150 (1980), paragraph one of the
syllabus, followed Bruton and recognized that an accused's right of cross-
examination secured by the Confrontation Clause of the Sixth Amendment is
violated in a joint trial with a non-testifying co-defendant by the admission of the
co-defendant’s extrajudicial statements incriminating the accused.
{¶61} Because there was no objection to the joint trial, Brooks concedes
that review is again under the plain error standard. Crim.R. 52(B) distinguishes
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between errors to which a defendant objected at trial and errors that a defendant
failed to raise at trial. If the defendant failed to raise an error affecting substantial
rights at trial, an appellate court reviews the error under the plain-error standard in
Crim.R. 52(B). Under that rule, the defendant bears the burden of demonstrating
that a plain error affected his substantial rights. State v. Perry, 101 Ohio St.3d
118, 120 (2004).
{¶62} However, the State argues that any evaluation of this alleged error
must begin with the doctrine of “invited error” because both Brooks and his co-
defendant sought joint representation by Ms. Hickey and a joint trial. (1/3/11 Hrg.
Tr. 8) “A party cannot take advantage of an error he invited or induced.” State v.
Seiber, 56 Ohio St.3d 4, 17 (1990). This Court has held that “it is invited error
when a party asks a court to take some action later claimed to be erroneous.” State
v. Harper, 3d Dist. No. 1-05-79, 2007-Ohio-109, ¶ 20, citing State v. Campbell, 90
Ohio St.3d 320, 2000–Ohio–183. Other Ohio courts have upheld the
consolidation of cases and waiver of any rights under Bruton under the theory of
invited error. In State v. Doss, 8th Dist. No. 84433, 2005-Ohio-775, ¶ 5, as in this
case, the defendant was present while trial counsel agreed to waive any Bruton
issues. The Eighth District Court of Appeals held that he could not later claim this
as error because “[t]his is precisely the situation the invited error doctrine seeks to
avert.” Doss at ¶ 7, quoting United States v. Jernigan, 341 F.3d 1273, 1290 (7th
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Cir.2003) (holding a criminal defendant “may not make an affirmative, apparently
strategic decision at trial” regarding its underlying Bruton claim, and “then
complain on appeal that the result of that decision constitutes reversible error”).
Accord State v. Jennings, 10th Dist. No. 09AP-70, 09AP-75, 2009-Ohio-6840, ¶¶
75-76.
{¶63} The trial court discussed this potential conflict, on the record and in
the presence of Brooks multiple times. On October 8, 2010, the trial court warned
against a joint trial, but left the decision as to whether to try the cases together up
to Brooks and his attorney. The trial court proposed holding the trial for Smith in
December 2010, and Brooks’ trial on January 3, 2011, stating:
Obviously, Ms. Hickey, if you don’t object, they could be tried
together, but that’s an issue you need to think about and talk to [the
prosecutor] about. I just don’t want to have anyone’s Constitutional
Rights impaired if there is a joint trial and that was an issue before,
but if, and that could be potentially a Bruton case for Mr. Brooks if
Ms. Smith’s statement is used, and I don’t want to feel like he has to
testify under those circumstances. So, * * * Mr. Murray and I and
[the prosecutor] * * * decided it might be best to try them in separate
order to avoid any such problems. But if you want to consider that
and certainly talk to your clients, that’s fine.
(10/8/10 Hrg. Tr. 42)
{¶64} On January 3, 2011, just prior to the scheduled joint trial, the trial
court again raised the issue of a potential Bruton issue, but Ms. Hickey assured the
trial court that it was Brooks’ desire to go forward with the joint trial.
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The Court: * * * isn’t there also a claim by the State that Ms.
Smith may have made some admission, and Mr. Brooks did not. So
doesn’t that create a Bruton problem potentially?
Ms. Hickey: Yes, there is. And one of the things that we – when we
discussed going to trial jointly, that was a concern raised by both
[the prosecutor] and the Court. My clients understand that –
particularly Mr. Brooks understand that if he were going to trial by
himself – the statement by Ms. Smith probably would not come into
evidence against him * * *. But he understands that. He is willing
to go to trial jointly with her. And as part of our agreement in this
we indicated that we would waive any Bruton problems.
[The prosecutor] has given me a copy this morning of two waivers
of the constitutional rights under Bruton. It actually would only
have to be signed, I think, by Mr. Brooks. And we would be more
than happy to have them sign that. [Mr. Brooks] understands more
than the average client about what’s going on with that. And I
think, again, he – it’s knowing and I think it’s voluntary.
**8
The Court: Very well. Ms. Hickey, you indicated you have
discussed this thoroughly with both your clients and they’re willing
to proceed to trial jointly * * * ?”
Ms. Hickey answered affirmatively, and then the trial court directly addressed
each defendant individually:
The Court: Mr. Brooks, is that correct, you thoroughly discussed
this issue with Ms. Hickey and the other perils of a joint trial?
Mr. Brooks: Yes, sir.
(Emphasis added.) (1/3/11 Hrg. Tr. 6-8)
{¶65} The Defendants then signed the Bruton waivers that the prosecutor
had prepared and Ms. Hickey had reviewed. We acknowledge that the wording on
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the waivers was not completely accurate, as it referenced the Defendants’ Fifth
Amendment rights against self-incrimination, rather than Brooks’ Sixth
Amendment right to confrontation.6 However, in State v. Kuhn, 9th Dist. No.
05CA008859, 2006-Ohio-4416, the trial court held that the defendants’ repeated
oral waiver on the record (in proceedings similar to that which occurred in this
case) of any Bruton issues was sufficient indication that they wished to proceed to
trial jointly and that it was “a clear[] case of a voluntary, intelligent, and knowing
wavier of a right.” Id. at ¶ 10. The trial court asked several times if the defendant
wanted to waive his rights and, as in the case before us, it never received any
indication that he did not wish to waive his rights or that he did not understand
them. See Id. at ¶¶ 7-10.
{¶66} Also in Kuhn, the trial court held that the defendant could not claim
ineffective assistance of counsel concerning the waiver, when it was apparent on
the record that he was advised of his rights, knew what statements were going to
be admitted, and then waived said rights. Id. Likewise, in this case, Brooks
claims that his waiver was not valid because of ineffective assistance of counsel
6
The waiver was titled “Waiver of Constitutional Rights under “Bruton v. United States” and stated, “Now
comes the Defendant, Mack E. Brooks, III, represented by Attorney Mary Hickey, and hereby waives any
and all rights against self-incrimination concerning his codefendant, Jamila Smith, associated with Bruton
v. United States (1968), 291 U.S. 123,” and was signed, dated, and witnessed. Smith’s was identical, except
for the reversal of the names of the Defendants. Technically, Ms. Smith’s statement was correct, as her
waiver acknowledged that she would agree to waive her Fifth Amendment rights not to testify and would
potentially agree to testify and face cross-examination concerning her statement. However, Smith was
never called to testify. Brooks’ waiver should have stated that he was waiving his Sixth Amendment rights
to confrontation.
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Case No. 5-11-11
due to Ms. Hickey’s conflict. However, while we do acknowledge that a conflict
existed (see Assignment of Error Three, below), Brooks does not point to any way
in which this conflict actually prejudiced him in regards to his Bruton rights, and
we do not find any such prejudice from the record. It was clear that Ms. Hickey’s
trial strategy was to discredit and cast doubt upon the validity and authenticity of
the signed confession. On cross-examination, she continually challenged Trooper
Beidelschies as to why only the first sentence of Smith’s statement was written by
Smith, and the rest was in his handwriting; why there was no witness signature;
why the interrogation resulting in the statement had not been recorded; and
whether the trooper had followed proper procedures in obtaining the statement.
{¶67} When discussing whether or not it was appropriate to go forward
with a joint trial, while Brooks and Smith were present, the trial court warned
“[t]hat would severely limit your opportunity to present any antagonistic
defenses.” (1/3/11 Hrg. Tr. 6) Ms. Hickey replied that possession was going to be
the focus of the defense and that “there’s nothing that we’ve ever viewed as
antagonistic defenses, and we did discuss that as well.” (Id. at 7) During closing
arguments, Ms. Hickey stated:
The only thing in her handwriting is a totally exculpatory, totally
blameless statement. They were going to [West] Virginia “to drop
off and pick up money.” * * * Every single allegedly – every single
thing that supposedly makes her or Mr. Brooks responsible for
criminal conduct is in [Trooper B.’s] handwriting. All of it. * * *
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Nobody knows what happened after the camera was shut off * * *.
Nobody knows beyond a reasonable doubt what happened that night.
(Trial Tr. 793-94) Based upon the trial strategy that his counsel chose, with the
full knowledge of Brooks, there was no reason to ask for a limiting instruction on
Smith’s confession, or to otherwise exclude it or keep it from being offered. Their
strategy was to imply that Smith’s statement was fabricated or, in some way, not
an authentic rendering of the facts. That strategy did not work and the jury chose
to believe Trooper Beidelschies’s testimony concerning the statement and the
happenings that night. However, Brooks cannot claim error now when it was
evident from the record that he knew exactly what was occurring and knowingly
and intelligently agreed with the decision to hold a joint trial, being fully aware of
the fact that Smith’s statement would be admitted. See State v. Elder, 9th Dist.
No. 25217 and No. 25259, 2011-Ohio-294, ¶¶ 14-19 (finding that the defendant’s
oral waiver of his right to confront and cross-examine was “a knowing, voluntary,
intelligent waiver with regard to any Bruton issues” that the trial court anticipated
were going to arise).
{¶68} Furthermore, even if we were to find that the doctrine of invited error
was not appropriate in this case because of the poorly worded waiver form and
Ms. Hickey’s dual representation, and that the joint trial violated Brooks’ rights of
confrontation, a violation of Bruton does not necessarily require a reversal when
there has been no prejudice. See State v. Moritz, 63 Ohio St.2d 150 (1980). The
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Ohio State Supreme Court, when examining a similar Bruton issue, held that “[a]
violation of an accused’s right to confrontation and cross-examination is not
prejudicial where there is sufficient independent evidence of an accused's guilt to
render improperly admitted statements harmless beyond a reasonable doubt.” Id.,at paragraph two of the syllabus. The Ohio Supreme Court did acknowledge that
in this type of situation it may be advisable for the trial court to grant separate
trials to avoid these confrontation problems.7 Id. at 156. However, the Ohio
Supreme Court found that an error of this sort may be harmless and does not mean
that a conviction must be reversed. Id. at 155-156. In quoting the Supreme Court
of the United States, the Court in Moritz declared:
“The mere finding of a violation of the Bruton rule in the course of
the trial, however, does not automatically require reversal of the
ensuing criminal conviction. In some cases the properly admitted
evidence of guilt is so overwhelming, and the prejudicial effect of
the codefendant's admission is so insignificant by comparison, that it
is clear beyond a reasonable doubt that the improper use of the
admission was harmless error.” (Citations omitted.)
Moritz at 156, quoting Schneble v. Florida, 405 U.S. 427, 430 (1972).
{¶69} The Tenth District Court of Appeals recently addressed this issue and
found that the use of his co-defendant’s statement at their joint trial was harmless
because, even without the co-defendant’s statement to the detective, the remainder
of the evidence overwhelmingly proved that he was guilty beyond a reasonable
7
In Moritz, the appellant had sought to have his trial severed from that of the co-defendant, but the trial
court did not allow the severance.
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doubt. State v. Burney, 10th Dist. No. 06AP-990, 2007-Ohio-7137, ¶ 54. The
Court of Appeals stated:
[E]rrors under Bruton are subject to harmless error review.
Harrington v. California (1969), 395 U.S. 250, 252-254. Courts
need not disturb convictions based on harmless error. State v. Mardis
(1999), 134 Ohio App.3d 6, 22. In regards to constitutional errors,
such as those under Bruton, courts determine whether the error was
harmless beyond a reasonable doubt. Chapman v. California (1967),
386 U.S. 18, 24. Stated another way, the appellate court must be
satisfied beyond a reasonable doubt that the error did not contribute
to the defendant's conviction. State v. Phipps, Franklin App. No.
03AP-533, 2004-Ohio-3226, at ¶ 25. Thus, where evidence against
the accused is “‘overwhelming,’ a reviewing court concludes beyond
a reasonable doubt that the denial of an accused's constitutional
rights was harmless error.” Harrington at 254, quoting Chapman at
23; Phipps at ¶ 25. In doing so, the court does not consider the
erroneous material. Mardis at 22.
Id. at ¶ 53.
{¶70} As stated above in our response to the first assignment of error, there
was overwhelming evidence, other than Smith’s statement, that was more than
sufficient to convict Brooks of possession of drugs. Therefore, any error in the
admission of Smith’s statement, due to the consolidation of their trials, must be
considered harmless beyond a reasonable doubt, and would most certainly not be
considered plain error. See id.; Perry, 101 Ohio St.3d at 120.
{¶71} Brooks, however, points to our decision in State v. [Mary] Dixon, 3d
Dist. No. 8-02-44, 2003-Ohio-2547, in which we reversed Mary Dixon’s
conviction, finding that the decision to grant the State’s motion to consolidate her
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trial with that of her co-defendant/husband, Danny Dixon, Sr., amounted to plain
error. In that case, this Court found that had not the two cases been tried together,
the jury would not have been privy to Danny’s testimony, and without that
testimony, and the resultant impeachment evidence, there was clearly insufficient
evidence to sustain Mary’s conviction. However, that case is distinguishable for
several reasons. First, it did not involve a Bruton confrontation issue because
Mary’s husband/co-defendant did testify. His incriminating testimony, along with
the impeachment evidence that was admitted as a result of his decision to testify
(which had been ruled inadmissible except for impeachment purposes), was the
only competent and credible evidence before the jury.8 Id. at ¶ 14-15. Therefore,
we found that the consolidation of the trials seriously affected her right to be tried
solely on the evidence against her, rather than her co-defendant. Id. at ¶ 16.
{¶72} In contrast, we upheld the conviction against Mary’s co-
defendant/husband, finding that the use of Mary’s statement to police as evidence
against him at trial was a clear violation of the Bruton rule, but that the error was
harmless. See State v. [Danny] Dixon, 152 Ohio App.3d 760, 2003-Ohio-2550, ¶
33. In Danny’s case, the violation of the Bruton rule was not prejudicial because
there was sufficient independent evidence of the accused's guilt to render the
8
There was evidence from a police informant, but this evidence was very weak as he was a convicted felon
cooperating with the police for the purpose of placing himself in a better light.
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improperly admitted statements harmless beyond a reasonable doubt. Id., citing to
Moritz.
{¶73} Based on all of the above, we find that the complaints raised by
Brooks in this assignment of error should not be considered, because they were the
result of invited error. And, even if the circumstances of this case would preclude
the use of the invited error doctrine, there was sufficient independent evidence of
Brooks’ guilt so that any error in the consolidation of the trials and the admission
of his co-defendant’s confession could not be considered plain error, but would be
merely harmless error. The fourth assignment of error is overruled.
Sixth Assignment of Error – Prosecutor’s Alleged Improper Remarks
{¶74} In this assignment of error, Brooks charges that the prosecutor was
guilty of misconduct because of statements he made in his closing argument. He
asserts that improper comments concerning Brooks’ post-Miranda silence and
Smith’s confession, along with the lack of any limiting or corrective instructions,
constituted plain error.
{¶75} “The test regarding prosecutorial misconduct in closing arguments is
whether the remarks were improper and, if so, whether they prejudicially affected
substantial rights of the defendant.” State v. Smith, 14 Ohio St.3d 13, 14, (1984).
Prosecutors are granted wide latitude in closing argument, and the effect of any
conduct of the prosecutor during closing argument must be considered in light of
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the entire case to determine whether the accused was denied a fair trial. State v.
Maurer, 15 Ohio St.3d 239, 266, 269 (1984). The touchstone of the analysis “is
the fairness of the trial, not the culpability of the prosecutor.” State v. Powell, 132
Ohio St.3d 233, 2012-Ohio-2577, ¶ 149, quoting Smith v. Phillips, 455 U.S. 209,
219 (1982).
{¶76} The right of an accused to remain silent, enunciated in Miranda v.
Arizona, 384 U.S. 436 (1966), carries with it an implicit assurance that his silence
will not be used against him. Doyle v. Ohio, 426 U.S. 610, 618 (1976). “A
defendant's decision to exercise his right to remain silent during police
interrogation is generally inadmissible at trial either for purposes of impeachment
or as substantive evidence of guilt.” State v. Perez, 3d Dist. No. 4-03-49, 2004-
Ohio-4007, ¶ 10, citing State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147. Use
of a defendant's silence in the state's case-in-chief puts a defendant in the position
of having to choose between allowing a jury to infer guilt from his silence or being
forced to take the stand to explain his prior silence, thereby surrendering his right
not to testify. Perez, 2004-Ohio-4007, at ¶ 20. However, the introduction of
evidence regarding a defendant's decision to remain silent does not constitute
reversible error if, based on the whole record, the evidence was harmless beyond
any reasonable doubt. State v. Zimmerman, 18 Ohio St.3d 43, 45 (1985). The
Ohio Supreme Court has held that “[a] single comment by a police officer as to a
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suspect's silence without any suggestion that the jury infer guilt from the silence
constitutes harmless error.” State v. Treesh, 90 Ohio St.3d 460, 480 2001-Ohio-4;
State v. Roby, 3d Dist. No. 12-09-09, 2010-Ohio-1498, ¶ 14.
{¶77} Because defense counsel did not object to the statements, we review
the alleged errors under the plain error standard. An alleged error constitutes plain
error only if the error is obvious and, but for the error, the outcome of the trial
clearly would have been different. State v. Yarbrough, 95 Ohio St.3d 227, at ¶
108.
{¶78} Brooks points to only one instance during direct examination and one
during closing where the fact that Brooks did not volunteer to make a statement
was briefly mentioned or indirectly implied. Neither statement referenced any
action or non-action by Brooks, nor did the statements in any way attempt to
suggest any guilt on the part of Brooks because of his silence.
{¶79} Trooper Beidelschies testified that he “asked if either of them wanted
to talk to me,” and then he testified that Smith said she did and he explained how
he again informed Smith of her Miranda rights before he questioned her. (Trial
Tr. 293-94) This statement was made entirely in the context of discussing
Smith’s signed Miranda statement and her confession, and there was no reference
to Brooks.
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{¶80} Later, during closing arguments, the prosecution stated the
following: “Like any good officer [Trooper Beidelschies] kept going. He wanted
to talk to Mack Brooks. He wanted to talk to Jamila Smith. Smith wanted to and
chose to go with Trooper Beidelschies and speak with him about the pills. She
provided him with [what] can only be called a written confession. That would be
State’s Exhibit 6.” (Trial Tr. 752-53) Again, it was the trooper’s actions and
Smith’s actions that were being discussed. While we acknowledge that by reading
between the lines, it is possible to infer that Brooks did not agree to speak with the
trooper, the main thrust of the comment was to explain how the trooper conducted
his investigation. There was no mention as to what Brooks did or did not do, and
there was no implication that any post-Miranda silence should be used as
substantive evidence of guilt.
{¶81} These two statements were so far remotely connected to Brooks’
exercise of his Fifth Amendment rights that it is doubtful that they could even be
considered as any kind of error – and they certainly did not rise to the level of
plain error. There was no mention of Brooks’ refusal to speak with the officers or
his decision to remain silent. At most, it could potentially be implied that he did
not volunteer to make a statement at the time when Smith decided she would talk
with the trooper. If there was any error in the prosecutor’s closing remarks, it was
harmless error. See Treesh.
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{¶82} In the second part of this assignment of error, Brooks asserts that the
prosecutor improperly used his co-defendant’s statements as substantive evidence
of Brooks’ guilt. We have discussed this matter thoroughly above in our response
to Brooks’ fourth assignment of error. Any error involving this was an invited
error and was waived by Brooks. Furthermore, as we found, there was more than
sufficient evidence to find Brooks guilty of possession of drugs without any
reference to Smith’s statements.
{¶83} We do not find any prosecutorial misconduct that would have
prejudicially affected the outcome of the trial. Brooks’ sixth assignment of error is
overruled.
Third Assignment of Error – Attorney Conflict
{¶84} Brooks claims that he was denied his Sixth Amendment guarantee of
assistance of counsel because of the existence of an actual conflict of interest
arising from defense counsel’s simultaneous representation of both Brooks and his
co-defendant, Smith, in a joint jury trial. Brooks contends that the dual
representation prevented his counsel from taking the necessary steps to insure that
Smith’s confession was not admitted and that his interests would have been better
served by having a separate trial wherein the statement would not have been
admissible. Therefore, he contends that his counsel’s conflicting loyalties had an
adverse effect on her representation of Brooks and a new trial is warranted.
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{¶85} The Sixth Amendment right to the effective assistance of counsel
secures to a criminal defendant both the right to competent representation and the
right to representation that is free from conflicts of interest. Wood v. Georgia, 450
U.S. 261, 271 (1981); Glasser v. United States, 315 U.S. 60, 70 (1942). Courts
also have an “independent interest in ensuring that criminal trials are conducted
within the ethical standards of the profession and that legal proceedings appear fair
to all who observe them.” Wheat v. United States, 486 U.S. 153, 160 (1988).
{¶86} A possibility of a conflict exists if the “interests of the defendants
may diverge at some point so as to place the attorney under inconsistent duties.”
State v. Dillon, 74 Ohio St.3d 166, 1995-Ohio-169, quoting Cuyler v. Sullivan,
446 U.S. at 356 (1980), fn. 3. An actual conflict of interest exists if, “‘during the
course of the representation, the defendants' interests do diverge with respect to a
material factual or legal issue or to a course of action.’” (Emphasis added.) Id. at
169, quoting Cuyler. Accord, State v. Gillard, 78 Ohio St.3d 548, 552, 1997-
Ohio-183. The Ohio Supreme Court has held that “a lawyer represents conflicting
interests when, on behalf of one client, it is his duty to contend for that which duty
to another client requires him to oppose.” State v. Manross, 40 Ohio St.3d 180,
182 (1988); Gillard.
{¶87} An “actual conflict of interest,” for purposes of the Sixth
Amendment, is “a conflict of interest that adversely affects counsel's
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performance.” Mickens v. Taylor, 535 U.S. 162, 172, (2002), fn. 5; State v.
Gillard, 78 Ohio St.3d at 552. Thus, to prove an “actual conflict of interest,” the
defendant must show that his counsel “actively represented conflicting interests,”
and that the conflict “actually affected the adequacy of his representation.” Id.,
quoting Cuyler v. Sullivan, 446 U.S. at 349–350. In order to show such a conflict,
a defendant must “‘point to specific instances in the record to suggest an actual
conflict or impairment of [his] interests.’” United States v. Hall, 200 F.3d 962,
965–66 (6th Cir.2000) (quoting Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir.1987)
(internal quotation omitted)); accord Riggs v. United States, 209 F.3d 828, 831–32
(6th Cir.2000). An “adverse effect” is established where the defendant points to
“some plausible alternative defense strategy or tactic [that] could have been
pursued, but was not because of the actual conflict impairing counsel's
performance.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir.2000) (internal
quotation omitted).
{¶88} This Court has recognized the trial court’s duty to conduct an inquiry
into a possible conflict of interest to determine whether a defendant would receive
the right to conflict free counsel guaranteed him by the Sixth Amendment to the
United States Constitution. State v. Johnson, 185 Ohio App.3d 654, 2010-Ohio-
315, ¶¶ 3-4 (3d Dist.), citing to Gillard. See also State v. McDuffie, 3d Dist. No.
9–2000–92, 2001 WL 542114 (May 23, 2001); State v. Myles, 3d Dist. No. 9–
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Case No. 5-11-11
2000–93, 2001 WL 542115 (May 23, 2001). However, we have found that “[i]n
the absence of special circumstances, it seems reasonable for the trial court to
assume that multiple representation entails no conflict or that the lawyer and his
clients knowingly accepted such risk of conflict as may be inherent in such a
representation.” State v. Bradley, 3d Dist. No. 14-08-27, 2008-Ohio-6071, ¶ 13,
citing Cuyler. Requiring or permitting a single attorney to represent co-
defendants “is not per se violative of constitutional guarantees of effective
assistance of counsel.” Holloway v. Arkansas, 435 U.S. 475, 482-483 (1978).
Accord Wheat, 486 U.S. 159-160. “The mere representation by one lawyer of two
defendants charged with the same offenses does not of itself constitute a conflict
of interest; whether a conflict exists must be determined by the facts of each case.”
Columbus Bar Assn. v. Ross, 107 Ohio St.3d 354, 359, 2006-Ohio-5, ¶ 26. In
some cases multiple defendants can appropriately be represented by one attorney,
and it has been observed that “in some cases, certain advantages might accrue
from joint representation.” Holloway v. Arkansas, 435 U.S. at 482-483. “Joint
representation is a means of insuring against reciprocal recrimination. A common
defense often gives strength against a common attack.” Id., quoting Glasser v.
United States, 315 U.S. 60, 92 (1942) (J. Frankfurter, dissenting).
{¶89} Another element of the Sixth Amendment right to counsel is “the
right of a defendant who does not require appointed counsel to choose who will
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represent him.” See U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). “[T]he
Sixth Amendment guarantees a defendant the right to be represented by an
otherwise qualified attorney whom that defendant can afford to hire * * *.” Id.,quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624–625
(1989). In Gonzalez-Lopez, the United States Supreme Court held that a trial
court’s erroneous deprivation of the right to counsel of choice unquestionably
qualifies as a structural error, requiring reversal.9 Id. at 150.
{¶90} Here, Brooks and his co-defendant chose to be represented by the
same attorney two times -- first, when they retained Mr. Murray, and then again,
when they replaced him with Ms. Hickey. Ms. Hickey represented that the
Defendants had signed waivers of any conflict for Mr. Murray and for her, and
that she had explained to the Defendants in detail about the dangers of dual
representation. In the presence of Brooks and his co-defendant, Ms. Hickey
emphatically assured the trial court that Brooks’ waiver of any conflict and his
decision to have a joint trial with joint representation was made knowingly and
voluntarily. (See 1/3/11 Hrg. Tr. 4-6)
9
The Supreme Court made it clear that its decision was not modifying its previous holdings that limit the
right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting
lawyers to argue before them. Gonzales-Lopez at 151. The right to counsel of choice does not extend to
defendants who require counsel to be appointed for them; nor may a defendant insist on representation by a
person who is not a member of the bar; or demand that a court honor his waiver of conflict-free
representation. Id. at 152. The Supreme Court recognized a trial court's wide latitude in balancing the right
to counsel of choice against the needs of fairness, and against the demands of its calendar. Id. The
Supreme Court also recognized the trial court’s “’independent interest in ensuring that criminal trials are
conducted within the ethical standards of the profession and that legal proceedings appear fair to all who
observe them.’” Id., quoting Wheat, supra, at 160.
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{¶91} The trial court explained to counsel and the Defendants how this dual
representation and joint trial would limit the type of defense available. However,
Ms. Hickey assured the trial court that they were aware of this, and that the joint
representation would not be detrimental to their chosen trial strategy.
The Court: That would severely limit your opportunity to present
any antagonistic defenses.
Ms. Hickey: That’s correct.
The Court: Because possession is going to be the focus of this,
correct?
Ms. Hickey: Yes. Although certainly to the extent that a driver of a
car can possess drugs or anything in the car without the passenger’s
knowledge. That still leaves that defense available. Something to
argue to the jury. But there is no other – there’s nothing that we’ve
ever viewed as antagonistic defenses, and we did discuss that as
well.
(Emphasis added.) (1/3/11 Hrg. Tr. 6-7). The trial court then personally
addressed Brooks and Smith individually, and they verbally affirmed that they had
“thoroughly discussed this issue with Ms. Hickey and the other perils of a joint
trial” and that they wished to go forward as represented. Id. at 8. The trial court
had no reason not to believe that this was the knowing choice based upon the
representations of the Defendants’ attorney and their agreement. In Holloway v.
Arkansas, the United States Supreme Court acknowledged that an “attorney
representing two defendants in a criminal matter is in the best position
professionally and ethically to determine when a conflict of interest exists or will
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Case No. 5-11-11
probably develop in the course of a trial.” 435 U.S. at 486. Here, the trial court
was repeatedly assured that the parties did not have opposing interests at trial.
{¶92} Furthermore, on the record before us, we find no evidence that trial
counsel's basic strategic decisions were influenced by the interests of Smith to the
detriment of Brooks. See State v. Tucker, 1st Dist. No. C-020821, 2003-Ohio-
6056, ¶ 30. In fact, it would appear that Brooks benefitted from the joint
representation, to the detriment of Smith. If Smith had been represented by a
different attorney, it is highly likely that an independent attorney would have
advised her to accept the plea bargain that was offered to her and testify against
Brooks, in exchange for a recommendation of a sentence involving only
community service. See State v. Smith, 3d Dist. No. 5-11-10, 2012-Ohio-5020.
The record contains no indication that Brooks was offered any plea agreement that
would have created a conflict due to joint representation. The prosecutor stated
that, “As to Mr. Brooks, the only negotiations we have is that the State would
remain silent if he pled guilty to the charge as it is set forth.” (3/25/10
Suppression Hrg. Tr. 9-10)
{¶93} It was clear that Brooks, Smith and Ms. Hickey had knowingly and
deliberately chosen a joint strategy that did not involve an antagonistic defense
and that relied upon discrediting Smith’s statement to the police and the results of
the police search. In hindsight, after that trial strategy did not succeed, Brooks
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now wishes to have the opportunity to try a different strategy, complaining that he
was prejudiced because the trial court allowed him to proceed with his chosen
counsel and trial strategy.
{¶94} If the trial court would have decided otherwise and not permitted Ms.
Hickey to represent Brooks, we would probably still be reviewing this matter on
appeal, but instead, Brooks would be complaining that he was convicted because
he was erroneously denied his counsel of choice. See Gonzalez-Lopez, supra. The
United States Supreme Court has acknowledged the dilemma involved in
balancing the sometimes conflicting Sixth Amendment rights.
[T]rial courts confronted with multiple representations face the
prospect of being “whip-sawed” by assertions of error no matter
which way they rule. If a [trial] court agrees to the multiple
representation, and the advocacy of counsel is thereafter impaired as
a result, the defendant may well claim that he did not receive
effective assistance. * * * On the other hand, a [trial] court's refusal
to accede to the multiple representation may result in a challenge
such as petitioner's in this case.
(Citations omitted). Wheat v. U.S., 486 U.S. at 161.
{¶95} Under the facts of this case, and as they apply to Brooks’ defense, we
do not find evidence in the record that trial counsel actively represented
conflicting interests pursuant to the manner in which she chose to defend Brooks,
nor was there evidence that the conflict actually affected the adequacy of Brooks’
representation. See Mickens, 535 U.S. at 172. We do believe that the better
course of action would have been for Brooks to have retained separate counsel
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and have a separate trial. However, those considerations of fairness must be
weighed against Brooks’ right to retain his chosen counsel, and his voluntary
waiver of conflict-free representation. See Gonzalez-Lopez, 548 U.S. at 152. See
also Holloway, 435 U.S. at 482-483, fn. 5 (acknowledging that United States
Supreme Court has confirmed that a defendant may waive his right to the
assistance of an attorney unhindered by a conflict of interests.)
{¶96} A trial court has “wide latitude” in determining whether an actual or
potential conflict exists. State v. Keenan, 81 Ohio St.3d 133, 137, 1998-Ohio-459;
Gonzalez-Lopez, 548 U.S. at 152 (recognizing “a trial court's wide latitude in
balancing the right to counsel of choice against the needs of fairness). We do not
find that the trial court erred when it permitted Brooks to waive any potential
conflict and retain the counsel of his choice, after ascertaining that such dual
representation would not be detrimental to Brooks under the chosen trial strategy.
Therefore, Brooks’ third assignment of error is overruled.
Seventh Assignment of Error – Denial of Motion for New Trial
{¶97} Brooks’ complaints in this assignment of error concern the decision
of the trial court to allow Ms. Hickey to represent the Defendants pro hac vice and
to allow Mr. Murray to withdraw as counsel. Brooks asserts that Ms. Hickey’s
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admission to practice in Ohio was improper and did not comply with the
requirement that she affiliate with local counsel, i.e., Mr. Murray. He also asserts
that the “trial court’s ex parte procedure for removing local counsel deprived him
of his right to an Ohio-licensed attorney and his right to be present at a critical
stage.” (Appellant’s Brief, p. 26) Therefore, given these errors, Brooks argues that
the trial court should have granted his Civ.R. 33(A) motion for a new trial,
claiming that his Sixth Amendment right to counsel was violated because Ms.
Hickey’s pro hac vice admission was invalid, and thus she was not licensed to
practice law in the State of Ohio at the time of the trial. Brooks claims that the
denial of his right to an attorney who meets the qualifications for admission is
prejudicial and is grounds for a mistrial.
{¶98} Attorneys admitted to practice in other states but not admitted to
practice in Ohio do not have a right to practice in courts in Ohio. Royal Indem.
Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 33 (1986). They may, nevertheless, be
permitted to appear in an action by the court pro hac vice, meaning “for this
occasion or particular purpose.” A trial court has wide discretion in the exercise
of its duty to supervise members of the bar appearing before it. Id. at 35; Schmidt
v. Krikorian, 12th Dist. No. CA2011–05–035, 2012-Ohio-683, ¶ 9. Consequently,
a party challenging the trial court's denial of a motion to admit an out-of-state
attorney pro hac vice must demonstrate that the trial court abused its discretion.
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Id. The term abuse of discretion implies that the court's attitude is unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶99} Since an attorney's admission pro hac vice is limited in duration, the
requirements for admission are less stringent than those for permanent admission
to the state bar. See Gov.Bar R. I (general admission to the practice of law); cf.
Gov.Bar R. XII (pro hac vice admission). Davis v. Marcotte, 193 Ohio App.3d
102, 2011-Ohio-1189, ¶ 8 (10th Dist.). In fact, Gov.Bar R. XII, which sets forth
the procedure and requirements governing pro hac vice admission before trial
courts and other tribunals throughout the State of Ohio, did not become effective
until January 1, 2011. The new rule is only applicable to motions for permission
to appear pro hac vice filed after January 1, 2011. At the time Ms. Hickey filed
her motion and was granted pro hac vice admission by the trial court in 2010, there
were no state-wide rules governing the pro hac vice admission of attorneys
wishing to practice before a court of common pleas. That decision was left to the
trial court and any local rules that may have been applicable. “The right to confer
or revoke pro hac vice status is ‘part of the court’s inherent power to regulate the
practice before it and protect the integrity of its proceedings.’” LMC Weight Loss,
Inc. v. Victory Mgt., Inc., 182 Ohio App.3d 228, 2009-Ohio-2287, ¶ 5 (6th Dist.),
quoting Royal Indemnity Co., 27 Ohio St. 3d at 33-34. “The decision of whether
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to permit representation by out-of-state counsel in an Ohio court is a matter within
the discretion of the trial court.” Royal Indemnity Co. at 33.
{¶100} The Sixth District Court of Appeals addressed the balancing act
between the litigant’s interest in obtaining counsel of his own choice and the
state’s interest in regulating attorneys seeking to be admitted to practice pro hac
vice.
“In this period of greater mobility among members of the bar and the
public, and the corresponding growth in interstate business, a court
should reluctantly deny an application to appear pro hac vice. A
litigant's request to be represented by counsel of his choice, when
freely made, should be respected by the court, unless some
legitimate state interest is thwarted by admission of the out-of-state
attorney.”
(Emphasis added.) State v. Roble, 6th Dist. No. L-04-1373, 2006-Ohio-328, ¶ 13,
quoting Enquire Printing and Pub. Co., Inc. v. O'Reilly, 193 Conn. 370, 375, 477
A.2d 648 (1984).
{¶101} In an effort to accommodate Brooks’ right to be represented by the
counsel of his choice, the trial court admitted Ms. Hickey to practice pro hac vice.
The trial court found that Ms. Hickey was a duly licensed attorney in the State of
Michigan, in good standing, and presented herself as a thoroughly qualified and
experienced counsel. She had been an attorney for 27 years, had participated in
over 200 jury trials, and had represented Brooks in previous matters. The trial
court, explained that “[h]aving determined that Ms. Hickey was competent [and]
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guided by a strong sense of justice, [it] endeavored to provide [Brooks] with
counsel of his own choosing.” (Mar. 22, 2011 Decision, p. 10) The trial court
also stated that it had “made numerous observations of Ms. Hickey and found her
to be a zealous and competent advocate. From any objective perspective, it cannot
be said that she provided ineffective assistance of counsel to [Brooks].” (Id. at p.
8)
{¶102} We do not find that the trial court’s decision to admit Ms. Hickey
was an abuse of its discretion. It complied with the rules of the Hancock County
Court of Common Pleas that were in effect at the time she was admitted, and
therefore, she was properly qualified to represent Brooks at the time of his trial.
Although Ms. Hickey represented that she would remain affiliated with local
counsel in her motion, this was not a requirement under the Rules for the
Governance of the Bar that were in effect at the time of her pro hac vice
admission, nor was it a requirement of the local rules. The trial court was aware
that Mr. Murray had resigned, and, based upon Ms. Hickey’s qualifications, did
not feel it was necessary to include the requirement that another local counsel be
retained by the Defendants. Therefore, there was no basis for Brooks’ motion for a
new trial due to Ms. Hickey not being licensed to practice law in Ohio.
{¶103} Brooks also claims that Ms. Hickey’s representation was a violation
of Rule 5.5 of the Rules of Professional Conduct requiring affiliation with local
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counsel under specified circumstances. However, it is uncertain if that rule is
applicable to a situation such as this where the attorney was admitted pro hac vice
by the trial court. And, in any case, a criminal defense counsel’s “breach of an
ethical standard does not necessarily make out a denial of the Sixth Amendment
guarantee of assistance of counsel.” State v. Leonard, 157 Ohio App.3d 653,
2004-Ohio-3323 (1st Dist.) ¶ 32, quoting Nix v. Whiteside, 475 U.S. 157, 1652
(1986).
{¶104} Furthermore, Crim.R. 33 only allows a new trial when an
irregularity “prevented [the movant] from having a fair trial.” Brooks has not
presented any evidence that he was denied a fair trial. The record does not support
the contention that he was harmed by not having local counsel. Many of the issues
involved in a criminal trial are based upon United States Constitutional rights and
decisions of the United States Supreme Court, which apply equally in all fifty
states, regardless as to which state a criminal attorney may hold a license to
practice. Ms. Hickey had worked as an assistant prosecutor for 12 years in Wayne
County, Michigan, and then she had done criminal defense work exclusively since
1997 or 1998; she was knowledgeable in the applicable law. (5/23/11 Sent. Hrg.
39) Any unfamiliarity that she might have had with “local” Hancock County
customs or procedures would have also been applicable if Brooks had hired an
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Ohio-licensed attorney from Cleveland, Columbus or Cincinnati, and would not
have been a cause to grant a mistrial.
{¶105} Brooks’ also claims that he was denied the right to be present when
his first attorney, Mr. Murray, was allowed to resign from the case. However, the
record clearly shows that he knew that Mr. Murray was going to leave, and that it
was Brooks’ own decision to replace Mr. Murray with Ms. Hickey. Mr. Murray’s
motion for withdrawal of counsel stated that “Defendant Brooks has employed
newly retained counsel, Mary S. Hickey, Esq., as his defense attorney, to replace
undersigned movant counsel Murray.” (Sept. 28, 2011 Motion) There was no
“proceeding” at which the trial court “removed” Mr. Murray. It was not the trial
court’s decision to “remove” local counsel; it merely granted Mr. Murray’s
motion, which represented that it was made at the request of the Defendants.
Attorney Hickey discussed on the record that she had multiple conversations with
the Defendants concerning trial strategy and potential issues. Brooks cannot claim
ignorance of who he had hired to represent him when he took such an active role
in his defense. The following exchange took place at the sentencing hearing:
The Court: Ms. Hickey, * * * you applied to represent [the
Defendants] and you showed up in this Court and you applied to
represent them and you represented in your motion that they sought
your assistance in this case. Is that true?
Ms. Hickey: That’s what I represented in my motion, yes.
***
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The court: I granted your request to apply, and then is it your
recollection it was thereafter that Mr. Murray moved to withdraw?
Ms. Hickey: Yes. After.
The Court: Did your clients know that Mr. Murray was
withdrawing?
***
Ms. Hickey: Yes.
(5/23/11 Sent. Hrg. Tr. 34-38) The record is clear that Brooks was present at every
hearing and every stage of the proceeding; that it was his choice that Mr. Murray
no longer represent him; and, that he retained Ms. Hickey and sought out her
representation. He cannot now claim ignorance of the proceedings that he caused
to occur.
{¶106} Any error involved in this matter is invited error and, as such,
cannot be grounds for appeal. Furthermore, if Brooks had believed it was
imperative to have local counsel in addition to Ms. Hickey, then he should have
replaced Mr. Murray after he resigned and retained another local counsel. See Hai
v. Flower Hosp., 6th Dist. No. L-07-1423, 2008-Ohio-5295 (case was dismissed
when plaintiff failed to follow court’s order to retain another local counsel to assist
their out-of-state attorney, after the first local counsel resigned.) The trial court’s
judgment entry permitting Ms. Hickey to appear as counsel for the Defendants did
not contain any qualification that she be required to work with local counsel.
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{¶107} In a well-researched and well-reasoned decision, the trial court
provided a detailed analysis of all of the issues raised by Brooks, and explained
why his assertions did not provide any grounds that would entitle him to a new
trial. (See Mar. 22, 2011 Decision) We agree with the trial court’s analysis and
conclusions, and do not find that the trial court abused its discretion in its
decisions pertaining to Ms. Hickey’s pro hac vice admission. The trial court did
everything in its powers to accommodate Brooks’ choice of counsel, including
allowing Ms. Brooks to replace his previously retained counsel only two weeks
before the scheduled trial date, causing further delay in this case. Brooks’ seventh
assignment of error is overruled.
Eighth Assignment of Error – Ineffective Assistance of Counsel
{¶108} In his final assignment of error, Brooks contends that he was denied
his right to effective counsel pursuant to the Sixth Amendment, and raises seven
areas in which he asserts that Ms. Hickey was ineffective. Those claimed
instances of ineffectiveness are: (1) failure to withdraw from dual representation;
(2) failure to know Ohio law/associate with an Ohio attorney/advise client
properly; (3) failure to oppose consolidation of Brooks’ trial with his co-
defendant; (4) failure to request redaction with limiting instruction pertinent to
Smith’s confession; (5) failure to object to prosecutorial misconduct; (6) failure to
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object to damaging testimony and eliciting damaging testimony on cross-
examination; and, (7) failure to strike a juror for cause.
{¶109} To establish ineffective assistance of counsel, a defendant must
show (1) deficient performance by counsel, i.e., performance falling below an
objective standard of reasonable representation; and (2) prejudice -- a reasonable
probability that but for counsel's errors, the proceeding's result would have been
different. Strickland v. Washington, 466 U.S. 668, 687–688 (1984); State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus.
There is a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance and that strategy and tactical decisions
exercised by defense counsel are well within the range of professionally
reasonable judgment and need not be analyzed by a reviewing court. State v.
Robinson, 108 Ohio App.3d 428 (3d Dist.1996).
{¶110} The majority of Brooks’ allegations concerning instances of
ineffectiveness of counsel have already been addressed in previous assignments of
error, and we have concluded that either there was no error on the part of counsel
or there was no evidence that counsel’s actions were prejudicial to Brooks to the
extent that the outcome of the trial would have been different. Therefore, we shall
just briefly summarize our findings pertinent to these claimed errors.
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{¶111} First, Brooks claims that Ms. Hickey erred in failing to withdraw
from dual representation. We did not find evidence in the record that trial counsel
actively represented conflicting interests pursuant to the manner in which she
chose to defend Brooks, nor was there evidence that the conflict actually affected
the adequacy of Brooks’ representation. Brooks did have a right to retain the
counsel of his own choosing, and the record demonstrated that his waiver of
conflict-free counsel was made knowingly and voluntarily. Next, Brooks
complains about counsel’s failure to know Ohio law, to associate with an Ohio
attorney, and to properly advise him. Again, in our analysis of these issues
pertinent to the seventh assignment of error, we did not find any prejudicial error.
{¶112} Brooks also cites as error his counsel’s failure to oppose
consolidation of Brooks’ trial with his co-defendant and her failure to request
redaction with limiting instruction pertinent to Smith’s confession. In the fourth
assignment of error, we thoroughly examined these two issues and found that they
constituted invited error, as Brooks was well aware that this was part of the
defense’s trial strategy and he had waived any error associated with these issues.
And, even if his waiver was not knowingly and intelligently provided, we still did
not find any prejudicial error that would have changed the outcome of the trial.
{¶113} In his fifth and sixth complaints against his retained counsel,
Brooks alleges that she failed to object to prosecutorial misconduct and to
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damaging testimony by the State’s witnesses. He further complains that Ms.
Hickey even elicited damaging testimony on cross-examination. We addressed
these issues in our responses to the fifth and sixth assignments of error, and our
review of the record did not find any conduct constituting a reversible error in this
regard. “The scope of cross-examination falls within the ambit of trial strategy,
and debatable trial tactics do not establish ineffective assistance of counsel.” State
v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, ¶ 101. The failure to make
objections is not alone enough to sustain a claim of ineffective assistance of
counsel and may be justified as a tactical decision. State v. Gumm, 73 Ohio St.3d
413, 428, 1995-Ohio-24.
{¶114} Finally, Brooks’ seventh claim of ineffective assistance of counsel
maintains that Ms. Hickey was ineffective for failing to strike a juror. Juror J.H.
was the first cousin of the trial prosecutor’s father, and she had a cousin who was a
canine deputy working for the sheriff’s office (but he was not Deputy Smith and
was not involved in this case). Brooks asserts that this juror was biased because of
these family relationships and that Ms. Hickey should have sought to have this
juror removed.
{¶115} Both the Sixth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution provide that a criminal defendant is
entitled to a speedy and public trial “by an impartial jury.” The purpose of voir
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dire is to examine prospective jurors to determine whether they have both the
statutory qualification of a juror and are free from bias or prejudice. Pavilonis v.
Valentine, 120 Ohio St. 154 (1929), at paragraph one of the syllabus.
{¶116} Pursuant to R.C. 2313.42, a prospective juror may be challenged for
cause if he “discloses by his answers that he cannot be a fair and impartial juror or
will not follow the law as given to him by the court.” R.C. 2313.42(J). When a
juror's impartiality is at issue, the relevant question is “did a juror swear that he
could set aside any opinion he might hold and decide the case on the evidence, and
should the juror's protestation of impartiality have been believed.” Dennis v.
Mitchell (C.A.6, 2003), 354 F.3d 511, 520, quoting Patton v. Yount, 467 U.S.
1025, 1036 (1984).
{¶117} Although it is true that Juror J.H. was a cousin of a sheriff’s deputy,
she stated rarely spoke with him about his work and did not even know that he had
a certified canine. (Trial Tr. 118) In addition, although she was a distant relative
of the prosecutor, this juror was specifically questioned concerning the influence
of her relationships and indicated that she could be fair and impartial, going so far
as to say that she would have no problem rendering a not guilty verdict in the
matter. (Id. 121) Attorney Hickey questioned this juror extensively, and the juror
responded that she would follow the judge’s instructions and render an impartial
verdict. (Id. 123-26) Although Ms. Hickey did not use all of her peremptory
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challenges, before deciding to waive, she twice left to discuss the matter with
Defendants, and, after discussing the matter with them, stated “I am satisfied with
the process on behalf of both Ms. Smith and Mr. Brooks.” (Trial Tr. 142)
{¶118} The Ohio Supreme Court has held that the use of peremptory
challenges is inherently subjective and intuitive and, as a result, an appellate
record will rarely reveal reversible incompetence in this process. State v. Mundt,
115 Ohio St.3d 22, 2007–Ohio–4836, ¶ 83. Furthermore, decisions on the
exercise of peremptory challenges are a part of trial strategy, and trial counsel,
who observe the jurors firsthand, are in a much better position to determine
whether a prospective juror should be peremptorily challenged. State v. Trimble,
122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 99.
{¶119} To be successful under Strickland, an appellant must demonstrate
that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. 668,
694. When the record is examined in its entirety, it is clear that no bias existed
and the juror indicated she would remain impartial. Therefore, there is no
evidence that Ms. Hickey was ineffective for failing to challenge the juror. And, it
is unlikely that the trial court would have granted a motion to strike the juror for
cause, so counsel was not ineffective for failing to make such a motion.
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{¶120} Our review of this assignment of error demonstrates that most of the
issues raised by Brooks did not amount to any error on the part of his counsel.
And, even where errors existed, we do not find that they were prejudicial because
they would not have affected the outcome of the trial. Nor do we find that the
“cumulative effect” of the trial counsel’s errors was sufficient to undermine our
confidence in the outcome of the proceedings. See State v. Dobson, 8th Dist. No.
92669, 2010-Ohio-2339, ¶ 47. Therefore, the eighth assignment of error is
overruled.
{¶121} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. concurs.
/jlr
ROGERS, J. Dissents.
{¶122} I respectfully dissent from the result reached by the majority in this
case. In the companion case of State v. Smith, 3d Dist. No. 5-11-10, 2012-Ohio-
5020, this court unanimously found that a conflict of interest existed and reversed
the conviction. It is counter-intuitive to suggest that counsel could represent one
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of the two Defendants without a conflict of interest when a clear conflict of
interest exists with the other.
{¶123} In his fourth assignment of error, Brooks argues that consolidation
of his trial with that of Smith was plain error. The majority cites to State v. Kuhn,
9th Dist. No. 05CA008859, 2006-Ohio-4416, to support their theory that this was
invited error. However, while the two defendants in Kuhn (husband and wife)
agreed to joint trials, they were represented by separate counsel, which is a
significant distinction from the case at bar.
{¶124} The majority further relies on invited error in response to Brooks’
complaint that the State used his co-Defendant’s statement as substantive evidence
of Brooks’ guilt. But without a joint trial Smith’s statement would not have been
admitted at Brooks’ trial. The admission of Smith’s statement had the effect of
diminishing her culpability as compared to Brooks and bolstering the credibility of
her defense that she was an innocent passenger. This strategy is inconsistent with
any defense theory for Brooks, and it demonstrates a clear conflict of interest as he
alleged in his third assignment of error.
{¶125} I further note the following concerns:
1. Although counsel verbally represented to the trial court that the
Defendants had signed written waivers of any conflict with prior
counsel, Mr. Murray, there is no written waiver of joint
representation in the record;
2. Trial counsel was not admitted to practice in the State of Ohio;
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3. Counsel was admitted pro hac vice10 in this case on her motion,
which assured the trial court that she would be assisted by Ohio
counsel;
4. Prior Ohio counsel, Mr. Murray, was granted leave to withdraw
and was not replaced; and
5. The trial court’s colloquies on the Bruton issue of joint trial and
as to the issue of joint representation were primarily with trial
counsel and only featured a superficial inquiry of the defendants.
{¶126} Finally, the majority states that the trial court “personally addressed
Brooks and Smith individually, and they affirmed they had ‘thoroughly discussed
this issue [of joint representation] with Ms. Hickey’” and the “trial court had no
reason not to believe that this was the knowing choice based on the representations
of the Defendants’ attorney and their agreement.” Ante at ¶ 91. Yet in the Smith
opinion the inquiry of the Defendants was described as “brief and perfunctory.”
Ante at ¶ 35. I find the difference in description interesting, but unconvincing.
{¶127} I would sustain Brooks’ third and fourth assignments of error and
decline to consider the other assignments as being moot.
10
Although Gov.Bar R. XII Rule on pro hac vice admission (effective Jan. 1, 2011) was not in effect at the
time the trial court ruled on counsel’s motion, it became effective prior to the date of trial, and there was no
compliance with that Rule. I further note that counsel’s joint representation of Brooks and Smith does not
appear to be compliant with Rule 1.7 of the Rules of Professional Conduct.
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