State v. White , 2019 Ohio 4562 ( 2019 )

[Cite as State v. White, 2019-Ohio-4562.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
VINTON COUNTY
STATE OF OHIO, :
: Case No. 19CA715
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
KEITH A. WHITE, :
:
Defendant-Appellant. : Released: 11/01/19
_____________________________________________________________
APPEARANCES:
Timothy P. Gleeson, Logan, Ohio, for Appellant.
Trecia Kimes-Brown, Vinton County Prosecutor, and William L. Archer, Jr.,
Assistant Vinton County Prosecutor, McArthur, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Vinton County Court of Common Pleas
judgment entry convicting Appellant, Keith White, of felonious assault,
disrupting public services, and domestic violence.
{¶2} On appeal, Appellant asserts (1) “[he] was denied his right to due
process and his right to compulsory attendance of a witness when the trial
court ruled he could not call the assistant prosecuting attorney as a witness,”
and (2) “[he] was denied his right to due process when his trial attorney
Vinton App. No. 19CA715 2
provided ineffective assistance of counsel by failing to move the trial court
for White to appear before the jury in clothing other than a jail uniform.”
{¶3} Based upon our review of the law and the record, we overrule
Appellant’s assignments of error and affirm the judgment of the trial court.
PROCEDURAL HISTORY
{¶4} The State charged Appellant with attempted murder, felonious
assault, domestic violence, disrupting public service, and aggravated
menacing. Appellant pleaded not guilty to all charges. The case proceeded
to trial on all charges, except aggravated menacing.
{¶5} Prior to Appellant’s trial, the court addressed Appellant’s
subpoena to compel the assistant prosecutor in this case to appear and bring
all notes and mental recollections from his conversation with Crystal Arthur
(“Ms. Arthur”), the victim in this case, regarding her purported claim that
Appellant took video/pictures of his attack.
{¶6} Appellant argued that the assistant prosecutor’s testimony would
provide “Brady material. It’s constitutional.” Appellant’s counsel asserted
that the assistant prosecutor informed him that Ms. Arthur alleged Appellant
had recorded the assault of her with his cell phone. However, Appellant
claimed that the State had never produced video of the attack during
discovery. Therefore, Appellant argued, the only way to determine the
Vinton App. No. 19CA715 3
content of that recording was through the testimony of the assistant
prosecutor.
{¶7} In response, the State admitted that it had disclosed to
Appellant’s counsel that Ms. Arthur claimed there was a cell phone video of
Appellant’s assault of Ms. Arthur. The State further asserted that they
recovered the phone and shipped it off for review, but “[n]othing
materialized.” And, the State argued that it was nearly certain that it
informed defense counsel that the phone contained no video of the attack.
Finally, the prosecutor also argued that he had disclosed this information to
Appellant’s counsel in April, more than six months before the trial in
November, and yet Appellant did not raise this issue until trial.
{¶8} Appellant’s counsel admitted that the prosecutor had informed
him that no recording existed, but he argued that “the only proof of that [no
video of the attack exists] is [the assistant prosecutor’s testimony].”
{¶9} The trial court pointed out that the prosecutor had already
informed Appellant that there was nothing on the phone so the court didn’t
think that there was a genuine dispute to which the prosecutor could testify.
And, after confirming with the prosecution that Ms. Arthur was going to
testify, the court also pointed out that Appellant could cross-examine the
victim regarding the alleged videotaping.
Vinton App. No. 19CA715 4
{¶10} The trial court found that because the State had previously
disclosed to Appellant, albeit informally, that there was no recording on the
phone, there was no Brady violation because there was nothing that had been
withheld by the State. The court again noted that Appellant would have an
opportunity to cross-examine the victim regarding any alleged videotaping
of the alleged attack. The court stated: “And so then the question comes
back to whether, whether based on all of this taken together is a sufficient
reason, uh basically, to disqualify the prosecutor from presenting the case
from going forward with a trial.” The court found “there is not[,]” and
denied Appellant’s request to call the prosecutor as a witness for the defense.
{¶11} Prior to trial, the State also raised a concern that Appellant was
dressed in prison clothes. Prior to voir dire and out of the jury’s presence,
the prosecutor brought to the attention of the court that the State had
concerns that the defendant was in prison clothes instead of street clothes for
his trial. However, Appellant’s counsel stated: “I have nothing to add to that
judge. I am not familiar with the case law to which [the prosecutor] is
referring.” The judge then stated: “All right. Very well then. Anything
further?” Both attorneys responded in the negative, and proceedings
continued.
Vinton App. No. 19CA715 5
{¶12} The State’s first witness at trial was Dr. Thanh Guyen, a trauma
surgeon at Grant Hospital in Columbus. He testified that on February 13,
2018, he treated Ms. Arthur for a skull fracture and bleeding in the brain,
which were caused by trauma to the head.
{¶13} The State’s next witness, Ms. Arthur, testified that she moved
in with Appellant in June of 2017. Ms. Arthur described Appellant as her
best friend. She testified that “[life] was good.” However, she testified that
in the winter of 2018 finances became an issue in their relationship. Ms.
Arthur testified that during an argument over finances, Appellant hit her in
the mouth and then in her face, causing her to bleed. She testified that
Appellant laughed and that at some point she passed out. Ms. Arthur
testified that Appellant poured water on her face and then started kicking her
in the side, telling her to wake up. She testified that he said he was going to
kill her, grabbed her by the hair several times and even put her in the
bathtub, turned on the water, and held her head under water. She testified
that she tried to fight back, but was not strong enough. She testified that
Appellant had taken her phone and keys and that he even tried to strangle
her with an extension cord. Ms. Arthur testified that she finally got away
from him and called 911 on an old phone.
Vinton App. No. 19CA715 6
{¶14} Ms. Arthur testified that once the officers arrived they arrested
Appellant. She testified that an ambulance arrived and the emergency
medical technicians told her that she needed to go to the hospital. She
testified that she didn’t want to leave her car behind so she called her mother
and arranged for them to meet at the gas station. Ms. Arthur testified that
she pulled into the gas station, but the next thing she remembered was
waking up in the hospital. She testified that she did not recall being “life-
flighted” to Grant hospital in Columbus. She testified that she continues to
suffer “consistent” headaches, memory loss, problems with her vision, and
pain in her foot. Ms. Arthur then identified Appellant her assailant.
{¶15} On cross examination, Ms. Arthur admitted that her testimony
was inconsistent with what she stated in her statement. She admitted that
there was no discussion in the statement that Appellant had attempted to
drown her in the bath tub. She also admitted that there was nothing in the
report about Appellant hitting her with a hammer, but she mentioned a
hammer attack in a second report. Finally, Appellant’s counsel asked Ms.
Arthur: “Okay. And do you, you indicated you recall alleging that
[Appellant] held you down, beat you and videoed the incident while it was
going on?” Ms. Arthur responded: “He said he was. I wasn’t on the other
Vinton App. No. 19CA715 7
side of the phone. All I know is he had it in front of me while he was hitting
me.”
{¶16} The State’s third witness was Vinton County Deputy Sheriff
Mark Cosgray. He testified that he responded to a domestic violence call at
43753 Covered Bridge Road. He testified that when he arrived he saw
Deputy Nick Trainer talking to Ms. Arthur in the yard. Deputy Cosgray
testified that he entered the house and both deputies arrested Appellant for
an existing warrant, and Deputy Trainer read Appellant his rights. Deputy
Cosgray testified that while he was transporting Appellant to the sheriff’s
office, Appellant admitted that he had struck Ms. Arthur with a crutch
because she had attacked him, causing him injury. Deputy Cosgray testified
that he took pictures of Appellant’s injuries.
{¶17} Vinton County Deputy Sheriff Trainer was the State’s next
witness. He testified that he responded to Ms. Arthur’s 911 call and when
he arrived Ms. Arthur was limping toward him from the porch, she appeared
to have bruises on her body, and her makeup was running down her face
from crying. Deputy Trainer testified that Ms. Arthur told him that
Appellant had beaten her, and he was in the house. Deputy Trainer testified
that initially he called an ambulance because Ms. Arthur “seemed pretty
bruised up and her limp and everything.” Deputy Trainer testified that he
Vinton App. No. 19CA715 8
went into the house and he found Appellant sitting on the couch. Deputy
Trainer testified that when they arrested Appellant he became agitated and
was “mouthing” the deputies. Deputy Trainer testified that Ms. Arthur told
him that Appellant had threatened her with a hand gun, shot gun, and a
sawed-off shot gun, which he located and collected. Deputy Trainer testified
that Ms. Arthur showed him a broken, bent crutch that she alleged Appellant
used to beat and choke her. Deputy Trainer testified that he took pictures of
the crutch and Ms. Arthur’s injuries (bruising and bloody lip). Deputy
Trainer testified that he and Deputy Cosgray told Ms. Arthur that she needed
to go to the hospital, but he said she was “adamant” about taking herself to
the hospital. Deputy Trainer and the emergency medical personnel packed
some of Ms. Arthur’s things and then put them in her car. Deputy Trainer
testified that he then let Ms. Arthur use his phone to contact a family
member and she made arrangements to meet them.
{¶18} On cross examination, Deputy Trainer agreed that his report of
this incident was not entirely consistent with his testimony. Specifically,
Deputy Trainer testified that Ms. Arthur barely spoke to him the day of the
incident, but his report indicates that she was “screaming and crying.”
When asked if he recalled Ms. Arthur having any memory issues at the time,
Deputy Trainer testified she “had a hard time recollecting what all had
Vinton App. No. 19CA715 9
occurred to me at that incident.” Deputy Trainer testified, clarifying that
Ms. Arthur packed her clothes into trash bags and then he and the
emergency medical personnel loaded those bags into Ms. Arthur’s car.
Deputy Trainer testified that he did not see the cord that Ms. Arthur alleged
Appellant used in an attempt to choke her. Deputy Trainer testified that Ms.
Arthur told him that the attack happened at 2 p.m., but his report stated it
happened at 3 p.m.
{¶19} The State’s next witness was Kathryn Carter, an emergency
room nurse at Grant Medical Center. Nurse Carter testified that Ms. Arthur
was alert and oriented and the staff had administered “Nubian” (pain
medication) and NARCAN. Nurse Carter then reviewed Ms. Arthur’s
medical record from that visit, which admitted her on 2-13-2018 and
discharged her on 2-15-2018. She testified that it indicated that Ms. Arthur
was not intoxicated. She testified she could not state why Ms. Arthur was
given NARCAN, but that it can be given to reverse the effect of Nubian if a
patient gets too drowsy.
{¶20} The State’s next witness was Ashley Cowgill, a speech
language pathologist. Ms. Cowgill evaluated Ms. Arthur during her hospital
visit for the assault. During her testimony, Ms. Cowgill read from a report
from Dr. Jonathan Pedrick who had evaluated Ms. Arthur. Reading from
Vinton App. No. 19CA715 10
that report, Ms. Cowgill stated “Severe traumatic brain injury with subdural
hematoma” with a “gait disturbance and acute pain.”
{¶21} The State’s next witness was Mary Marcum, the SANE (Sexual
Assault Nurse Examiner) coordinator at Grant Hospital. She testified that
she is called for sexual assault victims, elder abuse victims and domestic
violence victims. Nurse Marcum testified that SANE nurses question the
victim about what happened and document injuries, etc. Nurse Marcum
testified that SANE nurses help bridge the gap between medical and legal
assistance.
{¶22} Nurse Marcum testified that she saw Ms. Arthur when she was
in the hospital for the assault. Nurse Marcum documented Ms. Arthur’s
injuries, which included injury/trauma to her mouth, face, head, neck, chest,
buttocks, back, and her extremities, as well as “brain bleeds on each side of
her skull,” as documented by Ms. Arthur’s treating physician. Nurse
Marcum testified that Ms. Arthur reported that Appellant punched her,
slapped her, dragged her by the hair, strangled her, and put her under water
to be drowned. Nurse Marcum noticed a lot of bruising, a ligature mark,
abrasions, missing fingernails, blisters on her fingers, and a petechiae
(minute blood vessel ruptures on the surface of the skin) in one of her eyes.
Nurse Marcum took 106 photographs documenting Ms. Arthur’s injuries.
Vinton App. No. 19CA715 11
Nurse Marcum testified that there was bruising behind Ms. Arthur’s left ear,
which can indicate strangulation. Nurse Marcum testified that trauma can
render people unable to give the exact time and date of events that have
occurred.
{¶23} On cross examination, Nurse Marcum admitted that petechiae
can occur from reasons other than trauma. Nurse Marcum also admitted that
there was no DNA or physical evidence collected in this case.
{¶24} The State’s next witness was Rebecca Hess, Ms. Arthur’s
mother. Ms. Hess testified that in February 2018, she received a call from
Deputy Trainer that Ms. Arthur was in bad shape and she wanted to meet
Ms. Hess at a gas station. Ms. Hess testified that she met Ms. Arthur at the
gas station and that her daughter’s face was “all busted up” and “she could
barely walk.” Ms. Hess testified that she drove Ms. Arthur to the hospital at
Adena. She testified that Ms. Arthur blacked out several times during the
trip. She testified that the physicians at Adena Hospital had Ms. Arthur
transported by “CareFlight” to Grant Hospital in Columbus. Ms. Hess
testified that after Ms. Arthur was released from the hospital, she cared for
Ms. Arthur.
Vinton App. No. 19CA715 12
{¶25} After testimony from Paul Mullins, the dispatcher for the
Vinton County Sheriff’s Office, the State rested its case. Appellant did not
present any witnesses.
{¶26} The jury found Appellant guilty of all charges, except
attempted murder. The trial court imposed an eight-year prison sentence for
felonious assault, 18 months for disrupting public services, and 180 days for
domestic violence, all to be served concurrently to each other for an
aggregate eight-year prison sentence. It is from this judgment entry of
conviction that Appellant appeals, asserting two assignments of error.
ASSIGNMENTS OF ERROR
“I. WHITE WAS DENIED HIS RIGHT TO DUE PROCESS AND HIS
RIGHT TO COMPULSORY ATTENDANCE OF A WITNESS WHEN
THE TRIAL COURT RULED HE COULD NOT CALL THE
ASSISTANT PROSECUTING ATTORNEY AS A WITNESS.
II. WHITE WAS DENIED HIS RIGHT TO DUE PROCESS WHEN
HIS TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE
OF COUNSEL BY FAILING TO MOVE THE TRIAL COURT FOR
WHITE TO APPEAR BEFORE THE JURY IN CLOTHING OTHER
THAN A JAIL UNIFORM.”
ASSIGNMENT OF ERROR I
{¶27} In Appellant’s first assignment of error, he contends the trial
court violated his right to compel the assistant prosecutor to appear as a
witness in his case.
Vinton App. No. 19CA715 13
{¶28} Appellant argues that he has a right to call the prosecutor as a
witness under Ohio Const. Article 1, Section 10, which in pertinent part
provides that certain accused criminal offenders “have compulsory process
to procure the attendance of witnesses in his behalf.” Appellant alleges that
Ms. Arthur informed the prosecutor that the attack was captured on cell
phone video/pictures. Appellant alleges that the assistant prosecutor’s
testimony - that no such media of the attack exists - “was of critical
importance to [Appellant’s] case” to challenge Ms. Arthur’s credibility
regarding her testimony that such video/pictures did exist.
{¶29} Appellant also argues that calling the prosecutor as a witness in
this case is not prohibited by Prof.Cond.R. 3.7, which addresses the ethical
considerations when a lawyer is called as a witness.
{¶30} The State argues that the purpose of the subpoena was to delay
the trial because the existence of any video/pictures of the attack was
discussed in March-May 2018, but the subpoena was not filed until a few
days before trial in November 2018.
{¶31} The State also asserts that defense counsel was permitted to
question Ms. Arthur on cross examination regarding the alleged
video/pictures Appellant took of the attack. The State asserts that Ms.
Arthur “did not deny that she told the assistant prosecutor that she thought
Vinton App. No. 19CA715 14
Appellant was taking pictures or video of the attack.” Therefore, the State
argues there was no need to challenge her testimony. Accordingly, the State
argues that because “[Ms. Arthur] testified consistent with defense counsel’s
desire,” the assistant prosecutor’s testimony was not necessary to
Appellant’s case.
Rules of Professional Conduct
{¶32} Ohio courts “have no authority to address claimed violations of
the Rules of Professional Conduct - that authority rests solely with the Ohio
Supreme Court.” State v. Montgomery, 8th Dist. Cuyahoga No. 99452,
2013-Ohio-4193, ¶ 36, citing State ex rel. Buck v. Maloney, 102 Ohio St. 3d
250, 2004-Ohio-2590, 809 N.E.2d 20. “[T]he Rules of Professional Conduct
have no bearing on the admissibility of evidence.” Id. “ ‘A violation of
attorney disciplinary rules is not of constitutional magnitude and
consequently suppression is not constitutionally required.’ ” Id., quoting
United States v. Guerrerio, 675 F. Supp. 1430, 1433 (S.D.N.Y.1987).
Therefore, whether a trial attorney complies or violates the Rules of
Professional Conduct is immaterial to the question of whether evidence is
properly admitted or excluded.
{¶33} Accordingly, we find that compliance with Prof.Cond.R. 3.7
has no bearing on the admissibility of the prosecutor’s testimony.
Vinton App. No. 19CA715 15
Witness Testimony
{¶34} “The Sixth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution provide an accused with a
right of compulsory process to obtain a witness's testimony.” State v.
Lavery, 9th Dist. Summit No. 20591, 2001-Ohio-1638, citing Pennsylvania
v. Ritchie, 480 U.S. 39, 56, 94 L. Ed. 2d 40, (1987), Columbus v. Cooper, 49
Ohio St. 3d 42, 550 N.E.2d 937 (1990). And “[f]ew rights are more
fundamental than the right of an accused to present witnesses on his behalf.”
State v. Brown, 64 Ohio St. 3d 649, 652, 1992-Ohio-19, 597 N.E.2d 510
(1992), citing Taylor v. Illinois, 484 U.S. 400, 408, 108 S. Ct. 646, 652, 98
L. Ed. 2d 798 (1988).
{¶35} “The right to compulsory process, however, is not unlimited.”
State v. Denis, 117 Ohio App. 3d 442, 446, 690 N.E.2d 955 (1997), State v.
Collins, No. 48159, 1984 WL 6341, at *3 (Ohio Ct. App. Dec. 6, 1984),
State v. Smiddy, 2nd Dist. Stark No. 06CA0028, 2007-Ohio-1342, ¶ 25.
“The principle that undergirds the defendant's right to present exculpatory
evidence is also the source of essential limitations on the right.” Taylor v.
Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 654, 98 L. Ed. 2d 798 (1988).
“The trial process would be in shambles if either party had an absolute right
to control the time and content of his witnesses' testimony.” Id. at 411.
Vinton App. No. 19CA715 16
“The State's interest in the orderly conduct of a criminal trial is sufficient to
justify the imposition and enforcement of firm, though not always inflexible,
rules relating to the identification and presentation of evidence. Id.
Therefore, “a defendant's right to present his own witnesses to establish a
defense is prescribed by the rules of evidence.” State v. Denis, 117 Ohio
App.3d at 442, 446, 690 N.E.2d 955 (6th Dist.). “A trial court has
broad discretion in the admission or exclusion of evidence and so long as
such discretion is exercised in line with the rules of procedure and evidence,
its judgment will not be reversed absent a clear showing of an abuse
of discretion with attendant material prejudice to defendant.” State v. Blair,
2016-Ohio-2872, 63 N.E.3d 798, ¶ 67, quoting State v. Richardson, 4th Dist.
Scioto No. 14CA3671, 2015-Ohio-4708, ¶ 62.
{¶36} “A party may not predicate error on the exclusion of evidence
during the examination in chief unless” (1) the party proffers the expected
testimony or the proffer is apparent from the context of the questions asked,
and (2) the exclusion of such evidence must affect a substantial right of the
party. State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, 842 N.E.2d
996, ¶ 113, citing State v. Gilmore, 28 Ohio St. 3d 190, 503 N.E.2d 147
(1986), syllabus. If the excluded testimony does not have an impact on the
Vinton App. No. 19CA715 17
jury’s verdict, it has not prejudiced the movant’s substantial rights. State v.
Blair, 2nd Dist. Montgomery No. 26256, 2015-Ohio-3604, ¶ 14-15.
{¶37} Finally, the Supreme Court of Ohio has “recognize[d] that a
prosecuting attorney should avoid being a witness in a criminal
prosecution,” unless “it is a complex proceeding where substitution of
counsel is impractical, * * * the attorney so testifying is not engaged in the
active trial of the cause and it is the only testimony available * * *.”
(Emphasis added.) State v. Coleman, 45 Ohio St. 3d 298, 302, 544 N.E.2d
622 (1989).1
{¶38} During cross examination, Appellant’s counsel asked Ms.
Arthur: “Okay. And do you, you indicated you recall alleging that
[Appellant] held you down, beat you and videoed the incident while it was
going on?” Ms. Arthur responded: “He said he was. I wasn’t on the other
side of the phone. All I know is he had it in front of me while he was hitting
me.” (Emphasis added.)
{¶39} Contrary to Appellant’s assertion, Ms. Arthur did not testify
that a video of the attack existed. Rather, she alleged that Appellant told her
that he was videoing the attack. In fact, her statement - “I wasn’t on the
other side of the phone” - indicates that Ms. Arthur was uncertain whether
1
While Coleman addressed a prosecutor testifying for the State, we believe the disfavor of having a
prosecutor testify in a case is equally, if not more, compelling when it is the defendant who is calling for
the prosecutor to testify.
Vinton App. No. 19CA715 18
Appellant recorded the attack. Therefore, we find that the assistant
prosecutor’s proffered testimony - that no video of the attack existed - would
not have impeached Ms. Arthur’s testimony, or even undermined its
credibility, which was the basis of Appellant’s argument on appeal.
Consequently, we find the assistant prosecutor’s excluded testimony would
not have impacted the jury’s verdict, i.e. it did not affect Appellant’s
substantial rights. See Blair, 2nd Dist. Montgomery No. 26256, 2015-Ohio-
3604, ¶ 14-15. Moreover, because Ms. Arthur provided the only testimony
necessary to answer Appellant’s question regarding the recording of the
attack, Coleman also supported our conclusion that the assistant prosecutor
should not have been called as a witness in this case.
{¶40} Accordingly, the trial court did not abuse its discretion in
precluding Appellant from calling the assistant prosecutor as a witness is his
case. We overrule Appellant’s first assignment of error.
ASSIGNMENT OF ERROR II
{¶41} In his second assignment of error, Appellant alleges that he was
denied his right to due process when his trial attorney provided ineffective
assistance of counsel by failing to move the trial court for him to appear
before the jury in clothing other than a jail uniform.
Vinton App. No. 19CA715 19
{¶42} Prior to voir dire and out of jury’s presence, the prosecutor
brought to the attention of the court and Appellant that the State had:
concerns that the defendant is not in street clothes as he is in
a jumper. Um I don’t think any of us here want to go forward
and go through a trial of this length and magnitude to have
the Court of Appeals say, well, but he was – he was in his
jumper instead of street clothes. I don’t know how the court
wants to address that, but I do want to note it on the record
that I have some concerns about – about going forward with
that.
In response, Appellant’s counsel stated: “I have nothing to add to that judge.
I am not familiar with the case law to which [the prosecutor] is referring.”
The judge the stated: “All right. Very well then. Anything further?” Both
attorneys responded in the negative, and proceedings continued.
{¶43} Appellant argues that his trial counsel was ineffective for
failing to request the trial court for an opportunity to appear before the jury
in clothing other than his jail uniform. Appellant argues the United States
Supreme Court held that appearing in a jail uniform before a jury is
“inherently prejudicial” in Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1961
(1976). Because Appellant’s counsel purportedly was not familiar with
Vinton App. No. 19CA715 20
Estelle or similar case law, and did not request that Appellant be dressed in
clothing other than his jail uniform, Appellant argues that his performance
was below an objective level of reasonable representation. He also argues
that he was “directly prejudiced” by wearing his jail uniform before the jury.
{¶44} The State argues that while Estelle held that wearing prison
attire can be prejudicial, it did not establish a bright line test to make that
determination when wearing prison attire was reversible error. This, the
State argues, is because some defendants may prefer to wear prison clothing
to elicit sympathy. Therefore, a defendant must show that he or she was
compelled to wear prison clothing as a perquisite to finding prejudice. The
State argues that Appellant failed to make the showing that his counsel was
ineffective.
{¶45} The State also highlights the fact that Appellant’s counsel was
made aware that Appellant was wearing prison clothing, and because he did
not object, Appellant waived any right to claim that it was error. The State
further argues that Appellant’s assignment of error should be rejected under
the invited error doctrine.
{¶46} “To establish constitutionally ineffective assistance of counsel,
a defendant must show (1) that his counsel's performance was deficient and
(2) that the deficient performance prejudiced the defense and deprived him
Vinton App. No. 19CA715 21
of a fair trial.” State v. Barnhart, 4th Dist. Meigs Nos. 18CA8 and 18CA15,
2019-Ohio-1184, ¶ 64, citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052 (1984). “Failure to satisfy either part of the test is fatal to the
claim.” State v. Gillian, 4th Dist. Gallia No. 16CA11, 2018-Ohio-4983, ¶ 12,
citing Strickland at 697.
{¶47} The United States Supreme Court has addressed the issue of
“whether an accused who is compelled to wear identifiable prison clothing at
his trial by a jury is denied due process or equal protection of the laws.”
Estelle v. Williams, 425 U.S. 501, 502, 96 S. Ct. 1691, 1692, 48 L. Ed. 2d 126
(1976).
{¶48} Estelle found that in large part courts have “determined that an
accused should not be compelled to go to trial in prison or jail clothing
because of the possible impairment of the presumption [of innocence] so
basic to the adversarial system.” (Citations omitted.) Id. at 504. However,
Estelle also recognized that courts have declined to adopt a per se rule
invalidating all convictions where a defendant had appeared before the jury
in prison clothing. Id. at 508. The court stated that:
[t]he reason for this judicial focus upon compulsion is
simple; instances frequently arise where a defendant prefers
to stand trial before his peers in prison garments. The cases
Vinton App. No. 19CA715 22
show, for example, that it is not an uncommon defense tactic
to produce the defendant in jail clothes in the hope of
eliciting sympathy from the jury. Id. at 507-508, citing
Andern v. Watt, 475 F.2d 881, 882 (10th Cir. 1973); Watt v.
Page, 452 F.2d 1174, 1176 (10 Cir. 1972), Cf. Garcia v.
Beto, 452 F.2d 655, 656 (5th Cir. 1971).
Therefore, the court held that:
although the State cannot, consistently within the Fourteenth
Amendment, compel an accused to stand trial before a jury
while dressed in identifiable prison clothes, the failure to
make an objection to the court as to being tried in such
clothes, for whatever reason, is sufficient to negate the
presence of compulsion necessary to establish a
constitutional violation. (Emphasis added.) Estelle, 425
U.S. 501, 512-13, 96 S. Ct. 1691, 1697, 48 L. Ed. 2d 126
(1976)
{¶49} In State v. Judy, 4th Dist. Ross No. 08CA3013, 2008-Ohio-
5551, ¶ 37, the Court addressed whether Appellant’s trial counsel’s failure to
object to the fact that his client wore prison clothing at trial constituted
ineffective assistance of counsel. The appellant in Judy appeared at trial
Vinton App. No. 19CA715 23
dressed in his prison clothes. Id. at ¶ 4. But during voir dire, Appellant’s
counsel asked the jury if anyone would treat Appellant unfairly because his
of his prison clothes. Id. “[T]here was no indication from the jury that there
would be a problem.” Id.
{¶50} On direct appeal, Appellant alleged that his “counsel was
ineffective for not dressing her appropriately for trial.” Id. at ¶ 32. After
reviewing the holding in Estelle, the court in Judy concluded that
“[a]lthough other attorneys may have suggested or done otherwise, we
decline to second-guess trial counsel's decision to allow his client to stand
trial in prison garb because this decision has been acknowledged to be a
strategic one.” Id. at ¶ 42, citing Estelle, supra, United States v. Wells, 9th
Cir. No. 97-35656, 1998 WL 741173 (Oct. 13, 1998), State v. Singer, 4th
Dist. Ross No. 99CA2845, 2000 WL 1093577, (July 31, 2000), State v.
Edgington, 4th Dist. Ross No. 95CA2151, 1996 WL 720860 (Dec. 11,
1996). Accordingly, the court rejected Appellant’s ineffective assistance of
counsel argument.
{¶51} In addition, overwhelming evidence supporting an appellant’s
convictions may negate any prejudice for wearing prison clothing at trial.
See State v. Godbolt, 5th Dist. Licking No. 2003CA00034, 2004-Ohio-317,
¶ 21.
Vinton App. No. 19CA715 24
{¶52} In this case, unlike in Judy, Appellant’s counsel was
apparently unaware that under the law a defendant could not be compelled to
wear prison clothes to trial. However, the prosecutor put Appellant on
notice that a defendant had the option to wear street clothes at trial rather
than prison clothing, even noting that he did not want Appellant’s prison
clothing to become an issue on appeal. Nevertheless, Appellant never
objected to his prison attire or otherwise expressed a desire to wear street
clothes at trial. As Estelle stated: “the failure to make an objection to the
court as to being tried in [prison] clothes, for whatever reason, is sufficient
to negate the presence of compulsion necessary to establish a constitutional
violation.”
{¶53} Finally, there is overwhelming evidence supporting Appellant’s
convictions. Although there are some inconsistencies in the testimony of
some of the witnesses, the evidence and testimony support that Appellant
physically assaulted Ms. Arthur and caused her significant injury.
Accordingly, we find that Appellant cannot show that he was prejudiced by
wearing his prison clothing at trial. See Godbolt.
{¶54} Absent deficient representation and a lack of prejudice, we find
that Appellant’s counsel was not ineffective. Accordingly, we overrule
Appellant’s second assignment of error.
Vinton App. No. 19CA715 25
CONCLUSION
{¶55} Having overruled both of Appellant’s assignments of error, we
affirm the trial court’s judgment of conviction.
JUDGMENT AFFIRMED.
Vinton App. No. 19CA715 26
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Vinton County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.