State v. Barrow , 2012 Ohio 5058 ( 2012 )

[Cite as State v. Barrow, 2012-Ohio-5058.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97920
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PATRICIA BARROW
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-543005
BEFORE: S. Gallagher, J., Blackmon, A.J., and Jones, J.
RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEYS FOR APPELLANT
Thomas E. Shaughnessy
11510 Buckeye Road
Cleveland, OH 44104
Michael V. Heffernan
75 Public Square
Suite 700
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James Hofelich
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Defendant-appellant, Patricia Barrow, appeals from her conviction for murder
in violation of R.C. 2903.02. For the reasons set forth below, we affirm the conviction.
{¶2} At approximately 3:00 p.m. on September 27, 2010, William Benford and
Ozelle Carrington were walking down Superior Avenue in East Cleveland when they
stopped between two buildings near East 125th Street to relieve themselves. Benford
smelled “something dead” and thought it was an animal. He saw, however, through a
window in an abandoned building, a woman’s body, face down. Carrington reported the
discovery of the body to the East Cleveland Police Department.
{¶3} Elizabeth A. Douglas, M.D., performed the autopsy of the victim, Diane
Cloud, on September 28, 2010, and later testified at trial. The doctor found multiple
contusions all over Cloud’s body. Most of the contusions were caused by blunt force
impact while Cloud was still alive. There were multiple items around Cloud’s neck,
including pants, a pair of stockings, and a trash bag. The cause of death was
asphyxiation and suffocation by ligature strangulation. The estimated date of death was
September 21, 2010. The doctor could not provide a specific date of death because
Cloud was killed somewhere other than the abandoned building. When questioned about
how much force it would take to strangle Cloud, Dr. Douglas testified, “[i]t would not
take more than moderate force. It actually only requires four pounds of moderate
pressure to occlude the jugular veins.”
{¶4} The state’s key witness was Milton Jones. Jones testified that in the early
evening on September 18, 2010, he met Cloud and his girlfriend, Barrow, in an area
known as “The Clock” on East 105th Street and St. Clair Avenue. They stopped at a
store to buy cigarettes and beer as they walked to Jones and Barrow’s apartment.
{¶5} Barrow and Cloud started arguing once they arrived at the apartment. A
physical fight started in the bedroom after Cloud “charged” Barrow. Cloud sustained a
bloody nose at some point during the fight. Jones eventually left the bedroom when the
fighting escalated because he was tired and wanted to fall asleep. Although he asked
them to stop fighting, he did not want to become physically involved in the fight. He
continued to watch, however, from the living room through a large hole in the wall. The
fighting eventually stopped, and Cloud quieted down.
{¶6} Jones heard Cloud ask Barrow if she could leave the apartment. Barrow
refused to let her go when Cloud threatened to tell the police that Barrow kidnapped her.
{¶7} Barrow retrieved a phone cord from one of Jones’s plastic bags in the living
room and returned to the bedroom. Jones heard Cloud crying and saw Barrow next grab
a skillet from the kitchen. Although Jones could not see Cloud’s body on the bedroom
floor, it appeared to him that Barrow was hitting her with the skillet. It then looked like
Barrow was tying up Cloud with the phone cord. Just before he fell asleep, Jones saw
Barrow grab a plastic trash bag and tie it around Cloud’s head. Jones planned on later
removing the trash bag from Cloud’s neck when Barrow was asleep, but he fell asleep
before he had the chance.
{¶8} Jones woke up the next morning and overheard a boy, who was walking by
Jones and Barrow’s apartment window, talk about a nude woman on the floor. Barrow
was sitting on the floor next to Jones. Barrow told Jones that Cloud was dead. After
confirming the death, Jones and Barrow made plans to remove Cloud’s body from the
apartment.
{¶9} Jones and Barrow went to Jones’s cousin’s house on Sunday, September 19,
2010, and brought a shopping cart back to their apartment. Jones wrapped Cloud’s body
in a blanket and placed it in the cart. Later that day, Jones walked the cart with the body
to an abandoned building, and placed the body, face down, inside the building. He
removed the blanket and later threw it in a trash bin where he also left the cart. Jones
learned that Cloud’s body was discovered a week or so after he moved her body to the
abandoned building.
{¶10} According to Jones, on the same day that he moved Cloud’s body to the
building, Barrow sold Cloud’s cell phone to Bellal Mahmoud at around noon. Mahmoud
owned a local convenience store.
{¶11} Consistent with Mahmoud’s testimony at trial, the log for Cloud’s cell
phone showed that Mahmoud called his other store in Akron, Ohio, just after noon on
September 19, 2010. Mahmoud also identified Barrow in a photo array on October 4,
2010, and at trial, as the person who sold him Cloud’s phone.
{¶12} Ronnie Washington, Barrow’s former boyfriend, testified that Jones and
Barrow asked him in late September for help in finding them a place to stay because it
was cold inside their apartment due to a broken window. Washington told them that they
could stay with him for a night. He then took Barrow and Jones to a local gas station in
order for Barrow to withdraw money from an ATM. While at the station, Washington
overheard someone tell Jones that the police were looking for both Jones and Barrow.
Barrow looked nervous and shocked, and she wanted to “get out of there.”
{¶13} The next day, Washington took them to a hotel and rented them a room in
his name for one week. After seeing pictures of Jones and Barrow on the news, he
reconsidered his actions and contacted the police. Washington told the police where they
could find Jones and Barrow because he did not want to be implicated in the murder.
The police arrested Jones and Barrow at the hotel.
{¶14} On October 19, 2010, Barrow was indicted for Count 1, aggravated murder
in violation of R.C. 2903.01(A), with a felony murder specification; Count 2, aggravated
murder in violation of R.C. 2903.02(B), with a felony murder specification; Count 3,
kidnapping in violation of R.C. 2905.01(A); and Count 4, gross abuse of a corpse in
violation of R.C. 2927.01(B).
{¶15} On September 6, 2011, the trial court granted the state’s motion to dismiss
the felony murder specifications on the first two counts of aggravated murder. Jury trial
commenced on November 28, 2011. On December 9, 2011, the jury returned a verdict of
not guilty in Count 1, but guilty of the lesser included offense of murder under R.C.
2903.02. The jury found Barrow not guilty on the remaining three counts of the
indictment. The trial court sentenced Barrow on January 3, 2012, to 15 years to life.
{¶16} The state also indicted Jones on October 19, 2010, for aggravated murder,
involuntary manslaughter, kidnapping, and abuse of a corpse. In exchange for his
agreement to testify against Barrow, the state amended the indictment and nolled the
aggravated murder charge. Jones pleaded guilty on July 14, 2011, to the remaining three
counts, as amended. The trial court sentenced him to seven years on each of Counts 2
and 3, involuntary manslaughter and kidnapping, and to twelve months on Count 4, abuse
of a corpse. The court ordered the sentences to be served concurrently, and added
mandatory postrelease control of five years on Counts 2 and 3, and discretionary
postrelease control of three years on Count 4.
{¶17} Barrow timely appealed her conviction, and asserts three assignments of
error. She claims the trial court violated her right to confrontation and denied her due
process by limiting the cross-examination of the state’s witness, Mahmoud, and not
allowing her to proffer evidence. Barrow also asserts her conviction is against the
manifest weight of the evidence and not supported by sufficient evidence. Finally, she
submits the trial court denied her due process by not providing her with complete DNA
testing of evidence taken from the abandoned building. Upon a review of the record, we
find Barrow’s arguments have no merit.
{¶18} In her first assignment of error, Barrow asserts that Mahmoud’s testimony
was critical in establishing her involvement in Cloud’s death because he identified
Barrow as the person who sold him Cloud’s cell phone. When Mahmoud admitted to
using the cell phone for personal use, defense counsel inquired about who he called and
the content of those calls. The state objected to this line of questioning, and the trial
court sustained the objections. The trial court also denied defense counsel’s request for a
sidebar. Barrow argues that the trial court’s actions violated her right to confrontation
and denied her due process by limiting the cross-examination of Mahmoud and not
allowing her to proffer evidence. She further argues that the inconsistencies in
Mahmoud’s testimony heightened the need for deeper inquiry by defense counsel, but
through its evidentiary rulings, the trial court prevented counsel from conducting the
inquiry.
{¶19} The trial court correctly refused to accept Barrow’s proffer because this
evidence was properly excluded on cross-examination. State v. Hartford, 21 Ohio
App.3d 29, 486 N.E.2d 131 (8th Dist.1984). It has long been recognized that counsel
may not proffer the potential answer of an adversary’s witness after the trial court sustains
an objection to a question because counsel does not know how the witness will answer
the question. See Burt v. State, 23 Ohio St. 394, 402-403 (1872); Cleveland v. Prihoda,
8th Dist. No. 65778, 1994 Ohio App. LEXIS 1205 (Mar. 24, 1994). The Staff Note to
Evid.R. 103(A)(2) specifically recognizes that trial courts are not required to indulge
counsel’s request to proffer such material into the record, stating in pertinent part:
“Upon objection on cross-examination, an offer of proof is dispensed with for the reason
that it would be impracticable to speculate on the potential answer.”
{¶20} Under the circumstances, Barrow fails to exemplify any error concerning the
scope of cross-examination or her opportunity to proffer material into the record.
Additionally, we do not find that Mahmoud’s testimony was “wrought” with
inconsistencies as advanced by Barrow.
{¶21} Her first assignment of error is, therefore, overruled.
{¶22} Barrow challenges her conviction in her second assignment of error. She
argues that it is both against the manifest weight of the evidence and not supported by
sufficient evidence. The only DNA evidence linking either Jones or Barrow to Cloud’s
body was a piece of candy recovered from one of the bags around her head. The DNA
tested on the candy was Jones’s DNA. According to Barrow, the combination of this
DNA evidence, Jones’s mental illness, and Jones’s motivation to enter into a plea
agreement, makes Jones not a credible witness. Barrow asserts the jury clearly lost its
way, therefore, in relying on his testimony to convict her of Cloud’s murder.
{¶23} When an appellate court reviews a claim of insufficient evidence, “‘the
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. The weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of fact. State v. Tenace, 109
Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶24} On the other hand, the weight of the evidence concerns the inclination of the
greater amount of credible evidence offered to support one side of the issue rather than
the other. State v. Robinson, 8th Dist. No. 96463, 2011-Ohio-6077, ¶ 14, citing State v.
Brindley, 10th Dist. No. 01AP-926, 2002-Ohio-2425, ¶ 16. When presented with a
challenge to the manifest weight of the evidence, an appellate court, after
“reviewing 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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541 (1997),
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). An
appellate court should reserve reversal of a conviction as being against the manifest
weight of the evidence for only the most “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Id.{¶25} Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis, that is, a finding
that a conviction is supported by the manifest weight of the evidence necessarily includes
a finding of sufficiency. Cleveland v. Kirkpatrick, 8th Dist. No. 94950, 2011-Ohio-2257,
¶ 26, citing State v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15. “‘[T]hus,
a determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency.”’ Kirkpatrick, quoting Braxton at ¶ 15.
{¶26} In applying the applicable standard, we conclude the weight of the evidence
supports Barrow’s conviction for murder. During trial, the jury observed Barrow’s
videotaped interview with the police. The jury also participated in a jury view of the
relevant locations. Barrow admitted during her police interview that Cloud was at her
apartment on September 18, 2010. According to her, Cloud left the apartment at about
4:00 a.m. on September 19, 2010.
{¶27} Jones testified that Barrow and Cloud fought on and off that night for
several hours. Cloud sustained a bloody nose during the fight, and the police found her
blood on the bedroom floor. Barrow at some point grabbed a phone cord, a skillet, and a
plastic bag. When Cloud was on the floor, Barrow beat her with the skillet. Jones
thought he saw Barrow bind Cloud with the cord, and he saw Barrow tie a plastic bag
around Cloud’s head. When Jones woke up the next morning, Barrow told him Cloud
was dead. Jones saw Cloud on the bedroom floor. Her head was covered, and she was
bound with the phone cord. On the same day that Jones disposed of the body, Barrow
sold Cloud’s phone to Mahmoud. Mahmoud identified Barrow, both at trial and in a
pretrial photo array, as the person who sold him the phone.
{¶28} Dr. Douglas corroborated Jones’s testimony. She testified that Cloud’s
contusions were caused by blunt force trauma while she was still alive. Consistent with
Barrow tying items around Cloud’s neck, the cause of death was asphyxiation and
suffocation by ligature strangulation.
{¶29} Finally, Washington testified that in late September, he rented a room in his
name at a hotel for Jones and Barrow’s use. He rented the room even though he
overheard that Jones and Barrow were wanted by the police in connection with the body
found in the abandoned building. After seeing pictures of Jones and Barrow on the local
news, and fearing the police would think he was involved because of the hotel room
registration in his name, Washington called the police and told them of Jones and
Barrow’s location.
{¶30} As to Jones’s credibility, the jury heard his testimony. His direct testimony
included his explanations for not helping Cloud or calling the police, for moving Cloud’s
body, and for entering the plea agreement. Jones also testified about his mental illness
and how a piece of candy with his DNA on it ended up in a bag wrapped around Cloud’s
head. The jury was free to believe Jones’s testimony about Barrow’s actions despite his
mental illness, the DNA evidence, Jones’s unwillingness to intervene in the fighting, and
his willingness to nonetheless move Cloud’s body and later testify against Barrow.
{¶31} We find the jury did not clearly lose its way and create such a manifest
miscarriage of justice requiring a reversal of Barrow’s conviction and an order for new
trial. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. Our finding that
the conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency. Kirkpatrick, 8th Dist. No. 94950, 2011-Ohio-2257.
{¶32} Barrow’s second assignment of error is accordingly overruled.
{¶33} For her third assignment of error, Barrow relies on the forensic laboratory’s
failure to test several pieces of evidence that were taken from the abandoned building.
These items are a rug found under Cloud, a piece of wood with reddish-brown staining
found near Cloud’s pelvis, a clump of hair imbedded in the piece of wood, a red bra
found near Cloud’s body, a condom wrapper in proximity to the body, and several other
items, including hair and clothing. Barrow speculates that this evidence may have
implicated Jones in Cloud’s murder beyond his moving of her body. It also may have
identified a third party’s DNA, and helped to establish Barrow’s defense that someone
else murdered Cloud. Barrow argues, therefore, that her right to a fair trial was denied
because the laboratory’s failure to test all the evidence for DNA is “tantamount to
withholding exculpatory evidence.”
{¶34} The other items identified by Barrow were submitted to, but not tested by,
the Cuyahoga County Regional Forensic Science Laboratory in the office of the
Cuyahoga County Medical Examiner. Defense counsel asked Carey Baucher, the DNA
scientist for this case, to identify the party who determines what items are subject to DNA
testing in a case. She responded initially that it was her ultimate decision. Defense
counsel spent a considerable amount of time questioning Baucher as to why she did not
test all items. Counsel then went through each item that was not tested and asked why it
was not tested, to which Baucher replied with an explanation. Baucher also testified
when questioned as to why she did not test a pair of pants removed from Cloud’s neck:
Basically because we were already testing things from around the victim
and gathered with the victim, so we already covered that portion, so we did
not test them.
It doesn’t mean that it could never have been tested. If there was — with
any of the items that aren’t tested, once the report goes out, we honor
requests from prosecution, defense, and police agencies as to, Hey, we think
this one would have been also important to us. Could you test that as well?
{¶35} Defense counsel had a clear strategy of attempting to show that the state
failed to conduct a thorough investigation in this case. As this was a strategic decision
on defense counsel’s part, we will not second-guess it. State v. Irwin, 7th Dist. No.
11-CO-6, 2012-Ohio-2704, ¶ 107, citing State v. Carter, 72 Ohio St.3d 545, 558,
1995-Ohio-104, 651 N.E.2d 545.
{¶36} Further, Barrow does not allege that the state destroyed or failed to preserve
evidence; rather, she claims due process required DNA testing of all items removed from
the abandoned building. However, “[t]he right to due process is not violated when
investigators fail to use a particular investigatory tool.” State v. Martin, 10th Dist. No.
06AP-301, 2007-Ohio-232, ¶ 15, citing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct.
333, 102 L.Ed.2d 281 (1988). See also Athens v. Gilliland, 4th Dist. No. 02CA4,
2002-Ohio-4347, ¶ 5 (there is a difference between failing to create evidence and
destroying it; the due process clause is not violated when police fail to utilize a particular
investigative tool; sloppy police work does not violate a defendant’s due process rights).
{¶37} Barrow’s counsel was free to argue, and in fact argued, that testing the other
items could have produced exculpatory evidence. The police were not, however,
constitutionally required to test these items. Furthermore, the record supports the
position that these items were and still are available for DNA testing, but Barrow only
speculates that testing these items would produce evidence in her favor. Speculation
alone does not require a reversal of her conviction. See State v. Dingess, 10th Dist. No.
10AP-848, 2011-Ohio-5659.
{¶38} Finally, Barrow’s reliance on State v. Siller, 8th Dist. No. 90865,
2009-Ohio-2874, in support of this assignment of error is misplaced because Siller dealt
with a motion for new trial based on newly discovered evidence. Because Barrow
could have requested DNA testing on any other item, but did not, she is foreclosed from
pursuing this argument.
‘The legitimate state interest in orderly procedure through the judicial
system is well recognized as founded on the desire to avoid unnecessary
delay and to discourage defendants from making erroneous records which
would allow them an option to take advantage of favorable verdicts or to
avoid unfavorable ones.’
State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 171, 522 N.E.2d 524 (1988), quoting
State v. Awan, 22 Ohio St.3d 120, 122-123, 489 N.E.2d 277 (1986).
{¶39} Accordingly, Barrow’s third assignment of error is without merit.
{¶40} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR