State v. Irwin , 2012 Ohio 2704 ( 2012 )

[Cite as State v. Irwin, 2012-Ohio-2704.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
V. ) CASE NO. 11-CO-6
)
ANDREW G. IRWIN, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Columbiana County, Ohio
Case No. 06CR303
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Robert L. Herron
Prosecutor
Ryan P. Weikart
Assistant Prosecutor
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant Atty. Douglas A. King
91 West Taggart Street
P.O. Box 85
East Palestine, Ohio 44413
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: June 12, 2012
[Cite as State v. Irwin, 2012-Ohio-2704.]
DONOFRIO, J.
{¶1} Defendant-appellant, Andrew Irwin, appeals from a Columbiana County
Common Pleas Court judgment convicting him of murder, following a jury trial.
{¶2} Appellant’s heroin dealer was 21-year-old Emily Foreman. At 3:57 p.m.
on August 23, 2006, appellant placed a phone call to 911 requesting an ambulance
to the home where Foreman stayed with her mother, Kim Koerber. At 4:10 p.m.,
appellant called the East Liverpool Police Department once again requesting an
ambulance. He told the dispatcher that his name was “Andy” and that there had
been a stabbing. East Liverpool Police Officers Kelsey Hedrick and Fred Flati arrived
on the scene as did the paramedics. As the officers approached the house,
appellant exited, shirtless and covered in blood. Appellant told the officers, “She’s in
there” and pointed inside the house. Appellant then sat on the front steps of the
house.
{¶3} The police and paramedics located Foreman lying on the floor of a
ransacked, blood-covered bedroom. She had several stab wounds and was
bleeding. Foreman was able to tell the officers her name and that she could not
breathe but they did not ask her who stabbed her. The paramedics transported
Foreman to East Liverpool City Hospital where she died as a result of stab wounds
that punctured her lungs.
{¶4} According to paramedic Jason Lively, when he asked appellant what
happened, appellant said that “she” attacked him, so he stabbed her and the knife
was inside the house. Appellant denied making this statement.
{¶5} Officer Hedrick questioned appellant in the living room of the house.
According to Officer Hedrick, appellant told him his name and that, “I came here to
buy dope. She tried to stab me.”
{¶6} Upon discovering that there was an outstanding warrant for appellant’s
arrest on a trespassing charge, police took him into custody on the warrant. Before
he was handcuffed, appellant took a small, clean paring knife out of his pocket and
tossed it on the couch. The large serrated steak knife used to stab Foreman was still
in the bedroom covered with blood.
-2-
{¶7} Officer Hedrick along with East Liverpool Police Chief Michael McVay
transported appellant to the jail. In the cruiser, appellant stated that he had treated
his mother badly and mentioned being in rehab for drug use. He then stated that he
hoped God and his child could forgive him.
{¶8} Upon searching Foreman’s house, police observed that the bedroom
where she was stabbed was in disarray. Her purse was dumped out. The bed was
knocked out of alignment. A serrated knife was on the bed. Blood stains were in
numerous places. Additionally, in the kitchen police found a hypodermic needle, a
cell phone with blood stains, and a wax-like material commonly used in the storage of
heroin.
{¶9} Fingerprint and DNA evidence indicated that appellant had been inside
Foreman’s house.
{¶10} A Columbiana County grand jury indicted appellant on one count of
murder, a first-degree felony in violation of R.C. 2903.02(A).
{¶11} The matter proceeded to trial and the jury found appellant guilty as
charged. Appellant filed a motion for new trial based on newly discovered evidence.
The trial court denied the motion for new trial.
{¶12} Appellant appealed from his judgment of conviction and from the
judgment denying his motion for new trial. On appeal, this court reversed appellant’s
conviction based on ineffective assistance of counsel and cumulative error and
remanded the matter for a new trial. State v. Irwin, 184 Ohio App.3d 764, 2009-Ohio-
5271, 922 N.E.2d 981 (7th Dist.).
{¶13} On remand, the matter went to trial once again. And once again, the
jury found appellant guilty of murder. The trial court subsequently sentenced
appellant to 15 years to life in prison.
{¶14} Appellant filed a timely notice of appeal on February 23, 2011.
{¶15} Appellant now raises 11 assignments of error. We will address them
out of order for ease of discussion.
{¶16} Appellant’s second assignment of error states:
-3-
DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL
BECAUSE OF IMPROPER TESTIMONY BY CHIEF BURGESS
WHICH VIOLATED THE DEFENDANT/APPELLANT'S DUE PROCESS
RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶17} During the state’s opening statement, the prosecutor told the jury about
a comment appellant made to Chief McVay during transport to the county jail: “I’d tell
you what really happened, but you’re recording.” (Tr. 184). Additionally, Liverpool
Township Police Chief Charlie Burgess testified that he did not interview appellant
because appellant had requested a lawyer. (Tr. 542-543). And in cross-examining
appellant, the prosecutor asked questions concerning appellant’s decision to invoke
his right to remain silent and his right to counsel instead of talking to Chief Burgess.
(Tr. 1209-1210, 1213, 1216). Finally, in the state’s closing argument, the prosecutor
commented on appellant’s post-arrest silence again. (Tr. 1272, 1278, 1336, 1343).1
{¶18} Appellant argues that the state violated his right to remain silent and his
right to counsel by using his post-arrest silence as substantive evidence in its case-
in-chief. He further asserts that the trial court erred in failing to immediately instruct
the jury that he had a constitutional right to request an attorney and that such request
could not be used against him.
{¶19} An accused who asserts his Fifth Amendment right to silence should
not have that assertion used against him. State v. Treesh, 90 Ohio St.3d 460, 479,
739 N.E.2d 749 (2001), citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d
1 Appellant failed to object to most of the comments/questions he now takes issue with in this
assignment of error. Likewise, he failed to raise objections to many of the evidentiary issues he takes
issue with in assignments of error three through nine. However, in his second assignment of error he
asserts that his counsel was ineffective for failing to raise these objections. Generally, the failure to
object to an alleged error waives all but plain error. State v. Krupa, 7th Dist. No. 09–MA–135, 2010–
Ohio–6268, ¶57. But a defendant's claim that he was denied effective assistance of counsel eliminates
the requirement that an objection be made in order to preserve an error for appeal. Id., citing State v.
Carpenter, 116 Ohio App.3d 615, 621, 688 N.E.2d 1090 (2d Dist. 1996). As such, we will review all of
appellant’s alleged errors despite his lack of objections.
-4-
91 (1976). Silence includes the accused’s desire to remain silent until he has
consulted an attorney. Id., citing Wainwright v. Greenfield, 474 U.S. 284, 295, 106
S.Ct. 634, 88 L.Ed.2d 623, fn. 13 (1986).
{¶20} Firstly, the prosecutor’s comment during opening statements was not a
comment on appellant’s post-arrest silence. Instead, the prosecutor was telling the
jury about a conversation appellant initiated with Chief McVay during his transport to
jail. (Tr. 184). One of his comments to Chief McVay was, “I’d tell you what really
happened, but you’re recording.” (Tr. 184). Officer Hedrick, who was driving the
police cruiser, testified that the cruiser they were riding in had a camera mounted on
the window shield. (Tr. 382). He stated that the camera was not on and they were
not recording appellant, however, he could understand why appellant thought that
they were. (Tr. 382).
{¶21} Secondly, it was not the prosecutor who first elicited Chief Burgess’s
testimony about attempting to interview appellant. During cross-examination, in
attempting to show that Chief Burgess did not conduct a thorough investigation,
defense counsel asked Chief Burgess if he interviewed appellant. (Tr. 534). Chief
Burgess responded that he did not. (Tr. 534). Consequently, on redirect
examination, the prosecutor asked Chief Burgess why he did not interview appellant.
(Tr. 542). Chief Burgess stated that he had Mirandized appellant and appellant
wanted a lawyer. (Tr. 543).
{¶22} Where a party chooses to open the door to otherwise inadmissible
testimony, it is within the court's discretion to allow the other party to elicit additional
clarifying testimony on the same issue. State v. Collins, 7th Dist. No. 10-CO-10,
2011-Ohio-6365, ¶93. The clarifying testimony is allowed in order to rebut any false
impressions that may have resulted from the earlier testimony. Id., citing State v.
Dunivant, 5th Dist. No.2003CA00175, 2005–Ohio–1497, ¶12.
{¶23} Because it was the defense and not the state that initially opened the
door to Chief Burgess’s lack of interviewing appellant, the state was permitted to ask
the Chief why he did not interview appellant. If the state was not permitted to do so,
-5-
the jury would have been left with the impression that Chief Burgess did not conduct
a complete investigation because he failed to interview appellant.
{¶24} Thirdly, appellant once again opened the door to questions about his
post-arrest silence during his direct testimony. Appellant testified that at the scene
he tried to tell the officers what had happened, but he did not get a chance to do so.
(Tr. 1185). He also testified that at the police station, he did not make any
statements to police. (Tr. 1189). Consequently, on cross-examination, the
prosecutor asked appellant if he heard Chief McVay testify that he would not talk and
instead asked for a lawyer. (Tr. 1209). Appellant had also indicated that he feared
for his family’s safety and that is why he did not talk to police. And he stated that he
did not have any information as to who stabbed Foreman. (Tr. 1193). So on cross-
examination the prosecutor questioned him as to what he had to fear if he did not
know who stabbed Foreman. (Tr. 1213, 1216).
{¶25} Finally, the prosecutor’s comments on appellant’s silence during closing
arguments were simply restating the above evidence, which was all admissible.
{¶26} Accordingly, appellant’s second assignment of error is without merit.
{¶27} Appellant’s third assignment of error states:
DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL DUE
TO THE INTRODUCTION INTO EVIDENCE AND/OR TESTIMONY
REGARDING MULTIPLE PRIOR BAD ACTS OF
DEFENDANT/APPELLANT.
{¶28} Appellant contends here that it was error to admit evidence of his prior
bad acts. He cites to numerous examples of bad acts evidence that he claims
“littered” the record.
{¶29} The admission or exclusion of evidence is within the trial court's broad
discretion and this court will not reverse its decision absent an abuse of that
discretion. State v. Mays, 108 Ohio App.3d 598, 617, 671 N.E.2d 553 (1996). Abuse
of discretion connotes more than an error of law or judgment; it implies that the trial
-6-
court's judgment was unreasonable, arbitrary, or unconscionable. State v. Adams,
62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶30} Evidence of prior bad acts is inadmissible for proving that the accused
acted in conformity with his bad character. State v. Treesh, 90 Ohio St.3d 460, 482,
739 N.E.2d 749 (2001); Evid.R. 404(B).
{¶31} First, appellant takes issue with testimony that he had an outstanding
warrant for his arrest on a trespassing charge at the time of the murder. (Tr. 304,
362, 454, 715).
{¶32} But this testimony was necessary to show why appellant was initially
placed under arrest and transported to the police station.
{¶33} Second, appellant takes issue with testimony that he had made
attempts at drug rehab (Tr. 381), he treated his mother like “shit” (Tr. 717), he had
track marks on his arms (Tr. 467), his mother threw him out of her house for abusing
drugs (Tr. 603), he is a heroin addict who has stolen from his mother (Tr. 604, 717),
he stole his mother’s van (Tr. 608, 617), his mother filed trespass charges against
him (Tr. 609), he “ripped off” a drug dealer (Tr. 610), he shot up heroin in the back of
his mother’s van (Tr. 608, 648-650), and he asked his mother for money to buy drugs
(Tr. 1126-1127).
{¶34} All of this testimony was introduced to support the state’s theory of the
case, which was that appellant was so desperate for heroin that he murdered
Foreman in order to obtain it. The state further attempted to show that appellant
needed heroin so badly on the day of the murder that he solicited his mother’s help,
even though she had banned him from her house and filed trespassing charges
against him.
{¶35} Third, appellant takes issue with testimony that he threatened to slice
the throat of his son’s mother. (Tr. 1223).
{¶36} But there was no testimony that appellant made this statement. The
prosecutor asked him if he had made it and appellant said he did not. (Tr. 1223).
{¶37} Fourth, appellant takes issue with testimony that he stated he would
-7-
spit in the face of his son’s mother. (Tr. 1223-1224).
{¶38} There was no testimony that appellant actually made this statement.
Furthermore, the trial court sustained defense counsel’s objection to the question by
the prosecutor regarding this statement. (Tr. 1224).
{¶39} Additionally, appellant asserts that the trial court should have sustained
his objection to the admission of three items found in his mother’s, Cheryl
Carpenter’s, van because they were not found at the murder scene.
{¶40} Chief Burgess testified that on the day following the murder, he
recovered a crack pipe, a heroin spoon, and a heroin stamp packet from the rear
area of Carpenter’s van. (Tr. 494-498; State Ex. 10, 11, 40). These items were likely
introduced to corroborate Carpenter’s testimony that after appellant got back into her
van after his first trip to Foreman’s house, he shot up heroin in the back of her van.
(Tr. 624-626).
{¶41} As can be seen from the above discussion of the alleged improper
evidence, none of the evidence was introduced for the purpose of showing that
appellant acted in conformity with his bad character when he stabbed Foreman.
Thus, we cannot conclude that the trial court abused its discretion in allowing the
testimony and exhibits.
{¶42} Accordingly, appellant’s third assignment of error is without merit.
{¶43} Appellant’s fourth assignment of error states:
DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL DUE
TO IMPROPER CHARACTER EVIDENCE.
{¶44} Appellant argues that the state used improper character evidence to
show that he acted in conformity with his bad character.
{¶45} Generally, “[e]vidence of a person's character or a trait of character is
not admissible for the purpose of proving action in conformity therewith on a
particular occasion.” Evid.R. 404(A).
{¶46} Appellant first takes issue with several statements by the prosecutor
-8-
during opening statements that appellant was a drug addict who stole from his
mother (Tr. 169-170), appellant shot up heroin in his mother’s van in her presence
(Tr. 173), and appellant stole a check from his mother (Tr. 174).
{¶47} These comments during opening statements were a recitation of
appellant’s actions on the day of the murder. The evidence demonstrated that during
the hours leading up to the murder, appellant, who was desperate for drugs,
convinced his mother to drive him to Foreman’s house where he purchased heroin,
that he shot up the heroin in his mother’s van, and that he then stole a check from his
mother’s checkbook that he tried to use to purchase more heroin from Foreman.
{¶48} Appellant also takes issue with numerous questions by the prosecutor
addressed to Carpenter including asking her if appellant was untrustworthy (Tr. 605),
whether appellant harassed her for money (Tr. 606), whether appellant got angry
while trying to get money to feed his addiction (Tr. 606), and what kind of person
shoots up heroin in front of his mother (Tr. 627).
{¶49} As to the question regarding appellant not being bothered by shooting
up heroin in front of his mother, defense counsel objected and the court sustained
the objection. (Tr. 627). As to the other questions posed to Carpenter, they were
focused at establishing that appellant had a drug addiction.
{¶50} Finally, appellant takes issue with questions the prosecutor asked him
on cross- examination including asking him to admit that his own mother did not want
him in her house because he was dishonest (Tr. 1199) and asking him about his
willingness to steal from his mother (Tr. 1200).
{¶51} Appellant opened the door to these questions during his direct
testimony. He admitted that he stole a check from his mother and wrote it out to
Foreman. (Tr. 1166). He further admitted that he lied to his mother because he did
not want her to know what he was doing. (Tr. 1166-1167). Thus, the prosecutor’s
questions on cross-examination did not bring to light anything that appellant had not
already testified to.
{¶52} In conclusion, the trial court did not abuse its discretion in admitting the
-9-
above cited-to comments and questions. Accordingly, appellant’s fourth assignment
of error is without merit.
{¶53} Appellant’s fifth assignment of error states:
THE INTRODUCTION INTO EVIDENCE OF MULTIPLE
PHOTOGRAPHS OF DEFENDANT/APPELLANT HANDCUFFED TO
A BENCH AT THE POLICE DEPARTMENT WAS UNFAIRLY
PREJUDICIAL AND CUMULATIVE AND SUCH PREJUDICE
OUTWEIGHED ANY PROBATIVE VALUE.
{¶54} At trial, the state introduced photographs of appellant handcuffed to a
bench at the police station. (State Exs. 44, 48, 51, 52, 53, 58).
{¶55} Appellant argues that these photographs were highly prejudicial and
offered little, if any, probative value. He asserts that the state offered them to
suggest to the jury that he was incapable of self-restraint.
{¶56} The admission of photographs is within the trial court’s discretion. State
v. Slagle, 65 Ohio St.3d 597, 601, 605 N.E.2d 916 (1992), citing, Evid.R. 403, Evid.R.
611(A). A reviewing court will not interfere with the trial court’s weighing of
probativeness and prejudice unless the trial court has clearly abused its discretion
resulting in material prejudice to the defendant. Id. “Although relevant, 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).
{¶57} The photographs appellant takes issue with were introduced during
Chief Burgess’s testimony. He stated that he encountered appellant when he
walked into the East Liverpool Police Department. (Tr. 466). He stated that he
observed appellant on a security bench, which the police can handcuff a person to.
(Tr. 466). The Chief testified that appellant’s demeanor “didn’t seem out of the
ordinary” but that he had blood covering his torso and clothing. (Tr. 466). Chief
Burgess later described each of the photographs and pointed out the blood on
appellant in each one on different parts of appellant’s body and clothing. (Tr. 474-
- 10 -
479).
{¶58} Appellant denied stabbing Foreman. It was the state’s burden to prove
that he did. One way to help prove this was to demonstrate to the jury the numerous
places appellant had blood on him. Thus, the photographs had probative value.
{¶59} The photographs appellant takes issue with were only six out of a
series of fifteen documenting the blood on various parts of appellant’s body and
clothing. The way the other photographs were taken did not show appellant’s
handcuffed hand. Furthermore, in the photographs that did show appellant’s
handcuffed hand, the hand was not the main focus of the picture but was merely
visible in the background. And Chief Burgess did not imply in any way that appellant
was incapable of self-restraint. To the contrary, he testified that appellant’s
demeanor was not out of the ordinary.
{¶60} Moreover, Chief McVay testified that appellant was arrested on a
trespassing warrant and transported to the police department. (Tr. 714715). He
went on to testify that handcuffing someone who was under arrest to the bench was
“standard procedure.” (Tr. 728-729). Hence, the evidence was that appellant was
handcuffed to the bench because he was arrested on a trespassing warrant and it is
normal procedure to do this, not that appellant was incapable of self-restraint.
{¶61} Thus, the prejudicial effect of appellant’s handcuffed hand appearing in
some photographs was not significant. As such, the trial court did not abuse its
discretion in allowing the introduction of the contested photographs. Accordingly,
appellant’s fifth assignment of error is without merit.
{¶62} Appellant’s sixth assignment of error states:
DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL
BASED ON THE TRIAL COURT’S ADMISSION INTO EVIDENCE OF
INADMISSIBLE HEARSAY.
{¶63} Appellant argues here that several instances of hearsay denied him of
his right to a fair trial.
- 11 -
{¶64} Hearsay is an out-of-court statement, offered in court, to prove the truth
of the matter asserted. Evid.R. 801(C). Generally, hearsay is inadmissible. Evid.R.
802.
{¶65} First, appellant takes issue with Officer Hedrick’s testimony regarding
heroin addiction and addicts because his testimony was couched in terms of what he
had been told regarding this topic. (Tr. 385).
{¶66} Officer Hedrick testified that he has had training regarding illegal drugs.
(Tr. 385). He also stated he had knowledge regarding the effects of heroin. (Tr. 384-
385). Officer Hedrick then testified: “From speaking with heroin addicts, they’ll tell
you that they do it originally to get high, but as they get addicted to heroin, they do it
to be normal.” (Tr. 385). This was the only testimony that was couched in terms of
what he had been told on this subject and it came in a general discussion of heroin
and its effects. Furthermore, as the state points out, appellant’s counsel also
questioned Officer Hedrick regarding the effects of heroin on addicts based on his
familiarity with drug users and their behavior. (Tr. 404-406).
{¶67} The statement appellant takes issue with was not inadmissible hearsay.
It was included in a broad discussion about heroin’s effects and was part of Officer
Hedrick’s observations as a police officer who deals with drugs.
{¶68} Second, appellant takes issue with Carpenter’s testimony that she had
been told by everybody that appellant had stabbed Foreman. (Tr. 644).
{¶69} Appellant takes Carpenter’s testimony out of context here. The
prosecutor was questioning Carpenter about appellant calling her from jail. (Tr. 643-
644). The prosecutor asked if she was upset with appellant at that time. (Tr. 644).
Instead of simply responding “yes,” Carpenter tried to qualify her answer by blaming
her anger with appellant on other people who she claimed told her appellant stabbed
Foreman. (Tr. 644). Hence, the state was not soliciting this statement to prove the
truth of the matter asserted. In other words, the statement was not offered to prove
that appellant stabbed Foreman. Instead, the state was trying to establish that
Carpenter was angry with appellant.
- 12 -
{¶70} Finally, appellant takes issue with Carpenter’s testimony that Chief
McVay and Captain Curtis of the East Liverpool Police Department had stated they
had no doubt that appellant murdered Foreman. (Tr. 677).
{¶71} Again appellant takes Carpenter’s testimony out of context. Carpenter
testified earlier that she repeatedly told officers, including Chief Burgess and Captain
Curtis, that appellant did not commit the murder. (Tr. 666). But this testimony was
inconsistent with a statement she gave to Chief Burgess. (Tr. 676-677). When
asked about her inconsistent statements, Carpenter tried to blame Chief McVay and
Captain Curtis by stating that they told her that appellant did it. (Tr. 676-677). Once
again the prosecutor did not solicit this statement to prove the truth of the matter
asserted. Instead, the prosecutor was attempting to impeach Carpenter with her
prior inconsistent statement and she tried to defend the inconsistency by claiming
that Chief McVay and Captain Curtis were pressuring her, which resulted in her
statement.
{¶72} Based on the above reasoning, we cannot conclude that the trial court
abused its discretion in admitting the above testimony. Accordingly, appellant’s sixth
assignment of error is without merit.
{¶73} Appellant’s seventh assignment of error states:
DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL DUE
TO THE INTRODUCTION OF INADMISSIBLE OPINION EVIDENCE.
{¶74} During Carpenter’s testimony, the prosecutor asked her whether or not
she made a statement to Chief Burgess that she believed appellant murdered
Foreman. (Tr. 677).
{¶75} Appellant argues that this was improper opinion testimony on the
ultimate issue to be decided by the jury.
{¶76} Testimony on an ultimate issue to be decided by the jury is not
inadmissible per se in Ohio. State v. Smith, 12th Dist. No. CA2010-05-047, 2011-
Ohio-1476, ¶103 citing Bostic v. Connor, 37 Ohio St.3d 144, 524 N.E.2d 881 (1988),
- 13 -
paragraph three of the syllabus. However, the decision whether to admit or exclude
such testimony is within the trial court's discretion. Id.{¶77} “Testimony in the form of an opinion or inference otherwise admissible
is not objectionable solely because it embraces an ultimate issue to be decided by
the trier of fact.” Evid.R. 704. Pursuant to the Staff Notes of Evid.R. 704, “[o]pinion
testimony on an ultimate issue is admissible if it assists the trier of the fact, otherwise
it is not admissible.”
{¶78} The prosecutor did not elicit Carpenter’s statement on this issue in
order to present her opinion on whether or not appellant was guilty of murder.
{¶79} Carpenter testified that she repeatedly told the police that appellant did
not commit the murder. (Tr. 666, 677). But in her statement to Chief Burgess,
Carpenter stated the opposite. (Tr. 677). She told Chief Burgess, “I probably believe
he did it.” (Tr. 677). The prosecutor offered this statement in order to impeach
Carpenter. Thus, it was helpful to the jury in judging Carpenter’s credibility. For this
reason, it was within the trial court’s discretion to admit the testimony.
{¶80} Accordingly, appellant’s seventh assignment of error is without merit.
{¶81} Appellant’s eighth assignment of error states:
DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL WHEN
THE TRIAL COURT SENT TRANSCRIPTS OF THE TAPE
RECORDED 911 CALL INTO THE JURY ROOM DURING
DELIBERATIONS WITH NO LIMITING INSTRUCTION SPECIFICALLY
REGARDING THE USE OF THE TRANSCRIPTS.
{¶82} One of the 911 calls made by appellant was played for the jury. (Tr.
264; State Ex. 2). The trial court also permitted the jury to have a transcript of the
911 call. (State Ex. 3). The 911 dispatcher, Marilyn Wickline, testified that she could
hear a faint female voice asking for help in the background during the 911 call. (Tr.
261, 265). However, the female voice was not audible on the recording that was
played for the jury. (Tr. 277). It also was not documented in the transcript of the call
- 14 -
(State Ex. 3) even though appellant argues in his brief that the transcript reflected the
faint voice asking for help. Appellant argues that the recording itself was the best
evidence and the court should not have allowed the jury to have the transcript.
{¶83} Generally, in order to prove the content of a recording, the original
recording is required. Evid.R. 1002.
{¶84} Here, the original recording was played for the jury. And the transcript
accurately depicted the conversation that was played. (Tr. 265). The court admitted
both the tape recording of the 911 call and the transcript. (Tr. 265). Thus, the
original recording was provided to prove the content of the 911 call in accordance
with Evid.R. 1002.
{¶85} Additionally, while Wickline testified that she heard a faint female voice
asking for help in the background, this voice is not audible on the tape recording nor
is it documented in the transcript. There are no inconsistencies between the tape
and the transcript. Thus, the transcript did not cause appellant any prejudice as
appellant argues.
{¶86} Accordingly, appellant’s eighth assignment of error is without merit.
{¶87} Appellant’s first assignment of error states:
DEFENDANT/APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL.
{¶88} Appellant contends that his counsel was ineffective in three different
ways.
{¶89} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
Second, appellant must demonstrate that he was prejudiced by counsel's
performance. Id. To show that he has been prejudiced by counsel's deficient
- 15 -
performance, appellant must prove that, but for counsel's errors, the result of the trial
would have been different. Bradley, at paragraph three of the syllabus.
{¶90} Appellant bears the burden of proof on the issue of counsel's
effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.{¶91} Firstly, appellant argues that his counsel should have called Lindsay
Jason Beaver and Julie Conyer to testify. He points out that in Irwin, supra, in
reviewing appellant’s motion for a new trial, this court found that Beaver’s and
Conyer’s testimony could have been helpful to appellant because their testimony was
independent and corroborative of each other and created a strong possibility of
creating a different outcome at trial. Id. at ¶190. Yet despite what appellant terms as
our “almost specific instructions” to counsel to call these witnesses at his new trial,
his counsel failed to do so. He argues that the failure to call these witnesses was
prejudicial in light of this court’s previous findings.
{¶92} Appellant’s counsel obviously made a strategic choice not to call
Beaver and Conyer because their testimony would have directly contradicted
appellant’s testimony. Appellant testified that on the day of the murder he was alone
with Foreman at her house hanging out. (Tr. 1173). He stated that he nodded off in
the backyard, awoke, went into the house, heard moaning, and found Foreman
bleeding in the bedroom. (Tr. 1178-1181). He stated that he dumped out Foreman’s
purse looking for her cell phone to call 911. (Tr. 1181).
{¶93} Beaver testified at the previous motion for new trial hearing that a man
named Greg Todd had confessed to murdering Foreman. Irwin, at ¶179. Beaver
further testified that Todd told him that he went with appellant to Foreman's house on
the day of the murder to rob Foreman of her heroin. Id. Beaver stated that Todd told
him a struggle ensued when Foreman began swinging a knife at him. Id. Beaver
testified Todd stated that appellant grabbed Foreman's arm while he got the drugs
out of her purse. Id. Beaver testified Todd stated that he took the knife from Foreman
and stabbed her. Id.
- 16 -
{¶94} Additionally, Conyer testified at the motion for new trial hearing that she
heard from a third party that Todd had stated appellant knew he was guilty and was
“taking the fall” for him. Id. at ¶176. Conyer also testified the same person told her
that Todd had stated both he and appellant were at Foreman's house on the day of
the murder. Id.
{¶95} Clearly, Beaver’s account of what Todd had relayed to him contradicted
appellant’s testimony at trial as did Conyer’s testimony. According to Beaver’s and
Conyer’s testimony, appellant and Todd were at Foreman’s house together. But
according to appellant, he was there alone and saw no one else. And according to
Beaver’s testimony, Todd went through Foreman’s purse looking for drugs. But
according to appellant, he dumped out the purse looking for Foreman’s cell phone to
call 911. Thus, defense counsel had a strategic decision to make. Counsel could not
call Beaver and Conyer to testify and also allow appellant to testify because the jury
would have to find that at least one of them was lying. We will not second-guess the
strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651
N.E.2d 545 (1995).
{¶96} Additionally, appellate counsel states that he reviewed trial counsel’s
file on this case and found that two other witnesses had information that would have
corroborated Beaver’s and Conyer’s testimony.
{¶97} This assertion relies on evidence outside of the record. While evidence
may exist outside the record to support an appellant's contention of ineffective
assistance, a direct appeal is not the proper place to present this evidence. Instead,
this is an issue for postconviction relief. Calhoun, 86 Ohio St.3d at 289.
{¶98} Next, appellant argues that his counsel should not have agreed to
submit his motion to suppress and motion in limine for decision on a non-oral basis.
He asserts that by failing to argue these motions at a hearing, his counsel did not
make of record of the facts and circumstances upon which the trial court could
determine the motions.
{¶99} Appellant’s motion to suppress sought to suppress statements he
- 17 -
made to police that he went to Foreman’s house to buy drugs and that she tried to
stab him. The trial court already held a hearing on appellant’s identical motion to
suppress prior to his first trial. Thus, the court did have a factual basis on which to
issue its decision.
{¶100} Appellant’s motion in limine sought to suppress the 911 dispatcher’s
testimony that when appellant called she heard a faint female voice say “help me,” on
the basis that this statement was inadmissible hearsay. The trial court did not need
to hold a fact-finding hearing on whether the testimony was hearsay. This was
simply a legal determination of whether the statement fit the definition of hearsay.
{¶101} Thus, counsel was not ineffective for agreeing to submit these
motions on a non-oral basis.
{¶102} Finally, appellant argues that his counsel failed to object to improper
evidence, questions, and comments. He takes issue with eight different instances.
{¶103} The first seven of these instances are the identical issues appellant
raises in assignments of error two through eight. We have already determined that
the admission of the contested evidence and comments in assignments of error two
through eight was within the trial court’s discretion. Consequently, trial counsel was
not ineffective for failing to raise objections on these issues.
{¶104} The eighth instance concerns a lack of DNA testing. Appellant
contends that his counsel should have ordered DNA testing on the items found in the
room where Foreman was murdered to establish whether someone else’s DNA was
present other than his, Foreman’s, and Foreman’s mother’s. He argues this could
have helped establish his defense that someone else murdered Foreman.
{¶105} DNA testing was performed on numerous items found at the murder
scene including Foreman’s purse, the murder weapon, a tee shirt, a beer bottle, a
stain on the counter, appellant’s shoe, appellant’s shorts, and a paring knife (State
Exs. 14, 15, 17, 18, 19, 20, 21, 22). Of these items, the DNA inside of the purse was
consistent with both appellant and Foreman. (Tr. 919). The DNA from the murder
weapon, the tee shirt, the counter, appellant’s shoe, and appellant’s shorts was
- 18 -
consistent with Foreman’s DNA. (Tr. 920). The DNA from the beer bottle was
consistent with appellant’s DNA. (Tr. 921). And no blood was found on the paring
knife. (Tr. 925).
{¶106} Other items were submitted to the Bureau of Criminal Identification
and Investigation (BCI), but were not tested. (Tr. 926). This was because there was
no request to test them. (Tr. 935). These items included bed sheets, a comforter, a
paper wrapper, a swab from the kitchen faucet, a swab from a smoking device,
appellant’s socks and underwear, swabs from Foreman’s hands, and swabs from a
syringe. (Tr. 927).
{¶107} In cross-examining Linda Eveleth, the BCI DNA examiner, defense
counsel spent a considerable amount of time questioning her as to why these items
were not tested. Counsel first asked Eveleth who determines what items are helpful
in a case so that they are DNA-tested. (Tr. 934-936). She responded that it was up
to the prosecutor. (Tr. 935). Counsel then went through each item that was not
tested and asked why it was not tested, to which Eveleth responded that no testing
was requested. (Tr. 940-941, 945-951). Defense counsel had a clear strategy of
attempting to show that the prosecutor’s office did not conduct a thorough
investigation in this case. If counsel had ordered further DNA testing, it would have
undermined this strategy. As this was a strategic decision on defense counsel’s part,
we will not second-guess it. Carter, 72 Ohio St.3d at 558.
{¶108} Accordingly, appellant’s first assignment of error is without merit.
{¶109} Appellant’s ninth assignment of error states:
DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL AND
THEREFORE DUE PROCESS BECAUSE OF PROSECUTORIAL
MISCONDUCT.
{¶110} Appellant argues here that the prosecutor committed misconduct by
repeatedly referring to the fact that appellant invoked his rights to remain silent and to
counsel, by offering evidence of his prior bad acts, by eliciting hearsay, and by
- 19 -
making improper comments during closing argument.
{¶111} Other than the alleged improper closing argument comments, the
issues raised here mirror those addressed in appellant’s previous assignments of
error. As we have already addressed those issues, we will not repeat the analyses
here.
{¶112} The test for prosecutorial misconduct is whether the conduct
complained of deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d
329, 332, 715 N.E.2d 136 (1999). In reviewing a prosecutor's alleged misconduct, a
court should look at whether the prosecutor's remarks were improper and whether
the prosecutor's remarks affected the appellant's substantial rights. State v. Smith,
14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[T]he touchstone of analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’” State v. Hanna, 95 Ohio
St.3d 285, 2002-Ohio-2221, ¶61, quoting Smith v. Phillips, 455 U.S. 209, 219, 102
S.Ct. 940 (1982). An appellate court should not deem a trial unfair if, in the context of
the entire trial, it appears clear beyond a reasonable doubt that the jury would have
found the defendant guilty even without the improper comments. State v. LaMar, 95
Ohio St.3d 181, 2002-Ohio-2128, ¶121.
{¶113} As to the closing argument comments, appellant takes issue with
three groups of comments by the prosecutor.
{¶114} First, he contends the prosecutor stated that it was the jury’s duty to
find appellant guilty. (Tr. 1324, 1361-1362). But appellant takes these statements
out of context. The prosecutor stated that the jury had a responsibility to hold
Foreman’s killer responsible for his actions, not to hold appellant responsible. (Tr.
1324). Then, after arguing the evidence, the prosecutor asked the jurors to follow
their consciences. (Tr. 1361-1362). He also asked the jury to find appellant guilty
stating that justice demanded that verdict. (Tr. 1362). The prosecutor’s final
statement was, “I ask you to do your duty.” (Tr. 1362). Thus, the prosecutor never
stated that it was the jury’s duty to convict appellant.
{¶115} Second, appellant takes issue with the statement that he was
- 20 -
addicted to heroin. (Tr. 1341-1342). However, there was significant evidence that
appellant was addicted to heroin and that is what led him to Foreman’s house on the
day of the murder. So these comments were not improper.
{¶116} Finally, appellant takes issue with comments that his version of the
events was not believable. (Tr. 1279, 1285, 1335, 1338, 1345). While it is improper
for a prosecutor to state that the defendant is a liar or that he believes the defendant
is lying, a prosecutor may suggest that the evidence demonstrates the defendant is
lying, scheming, or has ulterior motives. State v. Kroger, 12th Dist. No. CA99-05-
050, 2000 WL 342130, *2 (Apr. 3, 2000). In this case, the prosecutor’s comments
suggested that appellant’s version of the events was concocted in order to respond
to the state’s evidence. Thus, the prosecutor was arguing that appellant’s version of
the events did not fit the evidence presented at trial and that he made up his story in
order to counter the state’s evidence.
{¶117} In sum, we cannot find that the prosecutor was guilty of misconduct.
Accordingly, appellant’s ninth assignment of error is without merit.
{¶118} Appellant’s tenth assignment of error states:
THE DEFENDANT/APPELLANT’S CONVICTION IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶119} In this assignment of error, appellant contends that his conviction is
against the manifest weight of the evidence. He points out that the state’s theory of
the case was that he went to Foreman’s house to rob her of her heroin. However, he
notes that the evidence demonstrated he twice called 911 for Foreman and a
substantial amount of money was found on the floor near her. Thus, appellant
argues the evidence was clear he did not rob Foreman, nor did he kill her during the
commission of a robbery. He further points out there was no forensic evidence
linking him to the murder weapon, there was no blood on the bottom of his shoes,
and there was no blood spatter on him. And he points out that Chief Burgess
testified there were other suspects in the case.
- 21 -
{¶120} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine 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, 678 N.E.2d 541 (1997). “Weight of the evidence
concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other.’” Id. (Emphasis sic.) In making
its determination, a reviewing court is not required to view the evidence in a light
most favorable to the prosecution but may consider and weigh all of the evidence
produced at trial. Id. at 390.
{¶121} Yet, granting a new trial is only appropriate in extraordinary cases
where the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two
fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we believe.” State
v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
{¶122} We must consider the evidence in order to determine if the jury lost its
way in finding that appellant murdered Foreman.
{¶123} Paramedic Jason Lively responded to the 911 call at approximately
4:00 p.m. He did not notice anyone outside around the house. (Tr. 197). Lively
stated that the police arrived next. (Tr. 199). As Lively was talking to the officers, the
front door opened and appellant walked out shirtless and covered in blood. (Tr. 199-
- 22 -
200). Appellant sat on the steps and advised the responding officers that “she” was
“in the back.” (Tr. 200). The officers went inside and Lively approached appellant to
see if he was injured. (Tr. 201). Lively asked appellant what happened. (Tr. 202).
Lively testified that appellant responded that “she” had attacked him, so he stabbed
her. (Tr. 202). Lively then asked appellant where the knife was and appellant told
him it was inside. (Tr. 202).
{¶124} Marilyn Wickline, the 911 dispatcher, testified that she received a call
at 3:57 p.m. from a male advising her that he needed an ambulance. (Tr. 260-261).
She stated that she also heard a faint female voice in the background say “help me.”
(Tr. 261). The tape recording of the call was played for the jury where they heard a
male voice request an ambulance to 914 Anderson Boulevard because “the girl’s
hearts [sic.] hurting.” (State Ex. 3).
{¶125} Richard Rudibaugh, an East Liverpool police dispatcher, testified that
he received a call at 4:10 p.m. from a man who identified himself as “Andy.” (Tr.
299). Andy asked Rudibaugh where the ambulance he had requested was. (Tr.
299). He then stated that he needed the ambulance at 916 Anderson Boulevard for
a stabbing. (Tr. 300).
{¶126} East Liverpool Police Officer Kelsey Hedrick, along with his partner
Officer Fred Flati, was the first police officer on the scene. Shortly after arriving at the
Anderson Boulevard home, Officer Hedrick saw appellant come out of the front door,
wearing no shirt and covered in what appeared to be blood. (Tr. 351). Officer
Hedrick asked appellant what was going on and appellant responded, “She’s inside.”
(Tr. 352). Officer Hedrick described appellant’s demeanor as kind of edgy and wired.
(Tr. 352). The two officers then entered the house, leaving appellant outside. (Tr.
352). The officers located Foreman lying on a bedroom floor. (Tr. 357). She told the
officers that her name was Emily and that she could not breathe. (Tr. 358). Officer
Hedrick then left Foreman so that the paramedics could tend to her and went to
speak with appellant. (Tr. 359-360). Appellant gave Officer Hedrick his name and
the officer asked him what happened. (Tr. 360). According to Officer Hedrick,
- 23 -
appellant responded, “I came here to buy dope. She tried to stab me.” (Tr. 360).
{¶127} Officer Hedrick next ran a warrant check on both appellant and
Foreman. (Tr. 361). He learned that appellant had a warrant out for his arrest. (Tr.
362). He then advised appellant of the warrant and asked him if he had anything he
should not have. (Tr. 363). Appellant took a paring knife out of his pocket and laid it
on the couch. (Tr. 363). Officer Hedrick then took appellant outside and placed him
in the back of a patrol car. (Tr. 365).
{¶128} Later that evening Officer Hedrick, along with East Liverpool Police
Chief McVay, transported appellant from the police station to the county jail. (Tr.
379). Officer Hedrick testified that during the transport, appellant began to talk about
time he spent in drug rehab. (Tr. 381). Appellant further talked about his mother and
how he had treated her “like shit.” (Tr. 381). Appellant then stated, “I Hope God and
my son forgive me.” (Tr. 382). Finally, appellant stated, “I’d tell you what really
happened if you weren’t recording me.” (Tr. 382). Officer Hedrick stated that
appellant likely made this last comment because there is a mounted video camera in
the cruiser; however, the camera was not recording. (Tr. 382).
{¶129} Officer Fred Flati responded to the scene with Officer Hedrick. Officer
Flati stated that appellant, shirtless and covered in blood, directed them inside to
Foreman. (Tr. 420-421). Officer Flati located Foreman in the back bedroom. (Tr.
423). He stated that there was blood all over the carpet, it appeared as though
someone had shaken a purse out because there was money and “stuff” all over the
floor, the bed was “cocked” as if there had been a struggle, and there was a knife
and a lot of blood on the bed. (Tr. 424).
{¶130} Liverpool Township Police Chief Charlie Burgess responded to the
scene and then went to the East Liverpool Police Department to speak to appellant.
(Tr. 465). At the police department, Chief Burgess observed appellant handcuffed on
a security bench. (Tr. 466). He noticed that appellant had a lot of blood covering his
torso and clothing. (Tr. 466). The only injury appellant reported to Chief Burgess
was a small cut on his finger. (Tr. 467). Appellant also pointed out his “track marks,”
- 24 -
from injecting drugs, to Chief Burgess. (Tr. 467-468). Chief Burgess then pointed
out the blood on appellant in a series of photographs. (Tr. 469, 474-479; State Ex.
44-58).
{¶131} Chief Burgess next testified about other evidence. He stated that he
located a paring knife with a smooth blade on the couch. (Tr. 484-485; State Ex. 14).
This knife appeared to be from a set located in Foreman’s mother’s house. (Tr. 484-
485). Chief Burgess stated that he also observed a knife on the bed in the room
where Foreman was stabbed. (Tr. 486; State Ex. 17). He testified that this knife had
a serrated edge. (Tr. 487). This knife contained the same writing as a set of three
other serrated-edge knives located in the home. (Tr. 487-488). Chief Burgess also
testified about a torn-up check that appellant’s mother had given to him. (Tr. 490;
State Exs. 42, 43). The check was written on Carpenter’s account on the day of the
murder payable to Foreman for $20. (Tr. 492-493). With Carpenter’s consent, Chief
Burgess searched her van where he found a crack pipe, a spoon commonly used for
drugs, a burnt match, and two heroin stamp packets. (Tr. 493-498; State Exs. 10, 11,
40, 41). He located these items in the rear of Carpenter’s van on the day after the
murder.
{¶132} On cross-examination, Chief Burgess stated that one other possible
suspect was identified during his investigation. (Tr. 513-514).
{¶133} Cheryl Carpenter testified about her contact with appellant on the day
of the murder. Initially, Carpenter stated that she had put appellant out of her home
due to his drug use. (Tr. 603). She stated that appellant was an addict. (Tr. 604).
She even filed a criminal trespass charge against him. (Tr. 609).
{¶134} On the morning of the murder, Carpenter stated that appellant
showed up at her house and asked to use the phone. (Tr. 611-612). She then
agreed to take appellant to pick up his clothes from someone’s house. (Tr. 615).
After stopping to pick up some beer, appellant directed Carpenter to a little blue
house on Anderson Boulevard because he said he needed to pick up his driver’s
license. (Tr. 622). Carpenter stayed in the van while appellant quickly went in and
- 25 -
came out of the house. (Tr. 623). Appellant got into the back seat of the van and
Carpenter drove towards the house where appellant’s clothes were located. (Tr.
625). When Carpenter looked back at appellant, she saw that he was shooting up
heroin. (Tr. 626). When they arrived at their destination, Carpenter went in to
retrieve appellant’s clothes while appellant remained in the van. (Tr. 627). When she
got back in the van, appellant told her to go back to the little blue house stating that
he needed to get his driver’s license. (Tr. 629). Appellant went into the little blue
house. (Tr. 633). Carpenter then realized that appellant must have taken one of her
checks from her purse when he had been alone in the van. (Tr. 633). She
approached the house and appellant came out. (Tr. 636). She told him she wanted
her check back and he gave it to her. (Tr. 637-638). Appellant told Carpenter that
“she” would not take the check. (Tr. 638). He then demanded that Carpenter take
him to Giant Eagle to get some money, but Carpenter refused. (Tr. 638-639).
Instead she went home and barred appellant from coming into the house with her.
(Tr. 640-642).
{¶135} Additionally, Carpenter testified that she provided Chief Burgess with
the torn up check and allowed him to search her van. (Tr. 644, 648).
{¶136} Joan Cooper is Kim Koerber’s sister and Foreman’s aunt. She
testified that on the day in question she was driving down Anderson Boulevard on her
way to work at approximately 3:40 p.m. (Tr. 689). She looked towards Koerber’s
house and noticed Foreman standing on the front porch with a tall male, whom she
later identified as appellant. (Tr. 686, 690).
{¶137} East Liverpool Police Chief Michael McVay testified that appellant
was initially arrested on a warrant for trespassing. (Tr. 714). He also testified about
the conversation he had with appellant during appellant’s transport to jail. Chief
McVay stated that appellant spoke of his drug problem and attempt at rehabilitation.
(Tr. 717). Appellant then told Chief McVay that he had caused his mother a lot of
problems due to his addiction. (Tr. 718). As appellant was talking about his child, he
told Chief McVay that he hoped God and his child would forgive him for what he had
- 26 -
done. (Tr. 719). Finally, appellant told him, “You know, I’d tell you what really
happened up there, if you weren’t recording me.” (Tr. 719).
{¶138} Chief McVay also testified that while appellant was under arrest at the
scene awaiting transport, he asked Chief McVay three times how Foreman was
doing. (Tr. 725).
{¶139} Edward Carlini is a BCI crime scene investigator who investigated the
murder scene. He testified that there appeared to be blood washed off in the sink.
(Tr. 761-762). He also stated that he collected the serrated steak knife, which
appeared to have blood stains on it. (Tr. 770). Carlini additionally recovered a blood-
covered tee-shirt from the bedroom. (Tr. 778-779). And Carlini made note of what
appeared to be the contents of a purse lying on the bedroom floor. (Tr. 782). The
contents included some blood-stained money and a wrapper from a heroin pack. (Tr.
782-783).
{¶140} Dawn Limpert is a BCI latent print examiner who examined several
fingerprints from the scene. She was able to identify two fingerprints from the storm
door as appellant’s fingerprints. (Tr. 859). Limpert also testified that the knives, the
syringe box, and syringe packages that were submitted did not contain sufficient
ridge detail for her to make a fingerprint comparison. (Tr. 860-861).
{¶141} Jennifer Acurio is a BCI forensic chemist who tested the crack pipe
and spoon found in Carpenter’s van and a spoon found in the sink of the Koerber
residence. She testified that the crack pipe contained cocaine and the two spoons
contained heroin. (Tr. 908).
{¶142} Linda Eveleth a BCI biologist testified that the DNA inside of the purse
found in the bedroom where Foreman was stabbed was consistent with both
appellant’s and Foreman’s DNA. (Tr. 919). She further stated that DNA from the
murder weapon, a tee shirt found at the scene, a stain from the kitchen counter,
appellant’s shoe, and appellant’s shorts were consistent with Foreman’s DNA. (Tr.
920). Eveleth also testified that the DNA from a beer bottle found in the kitchen was
consistent with appellant’s DNA. (Tr. 921).
- 27 -
{¶143} Dr. Erica Armstrong is a deputy coroner at the Cuyahoga County
Coroner’s Office who performed an autopsy on Foreman’s body. She testified that
both of Foreman’s lungs were punctured. (Tr. 1021). Dr. Armstrong further stated
that heroin metabolites were present in Foreman’s blood. (Tr. 1028). She concluded
that Foreman’s cause of death was multiple stab wounds of the trunk with visceral
and soft tissue injuries. (Tr. 1032). She also noticed a number of wounds that were
consistent with defensive wounds. (Tr. 1032).
{¶144} Michael Linville was riding his bicycle on Anderson Boulevard at
approximately 3:45 p.m. on the day of the murder. Linville testified that he thought
he heard a scream when he was about an eighth of a mile away from Koerber’s
house. (Tr. 1135). He further stated that he noticed a light blue car parked in front of
the house. (Tr. 1137). Linville stated that he saw a man sitting in the car who looked
a lot like appellant. (Tr. 1137-1138). However, on cross-examination Linville stated
that he did not go to the police with this information until almost nine months after the
murder. (Tr. 1144).
{¶145} Beverly Scott lives on Anderson Boulevard, two houses down from
Koerber’s residence. Scott testified that while she was sitting in her living room, she
heard a scream at approximately 3:50 p.m. on the day in question. (Tr. 1151).
{¶146} Appellant was the final witness. He first divulged his criminal record
that consisted of two theft offenses, domestic violence, vandalism, and criminal
trespassing. (Tr. 1159-1160).
{¶147} On the morning of the murder, appellant stated that he went to
Carpenter’s house to get some clothes, take a bath, and get some money for
groceries. (Tr. 1161). He asked Carpenter to take him to pick up his clothes, which
were at a friend’s house. (Tr. 1162). His mother agreed. (Tr. 1163). On the way to
pick up his clothes, they stopped at Foreman’s house. (Tr. 1163). Appellant wanted
to purchase some drugs but he did not tell his mother that was the reason he wanted
to stop there. (Tr. 1164). Appellant bought three stamps of heroin from Foreman.
(Tr. 1165). He paid Foreman $10 that he had with him but he still owed her $20
- 28 -
more. (Tr. 1165). Appellant stated Foreman told him that she owed money to
someone and the way she looked at him scared him. (Tr. 1165). Appellant and
Carpenter next went to retrieve his clothes. (Tr. 1166). While Carpenter went into
the house to get appellant’s clothes, appellant stole a check from her checkbook and
wrote it out to Foreman in the amount of $20. (Tr. 1166). Carpenter returned to the
car and appellant directed her back to Foreman’s house. (Tr. 1166). Appellant
stated that he gave Foreman the check, but then Carpenter came to the door, so
Foreman refused the check. (Tr. 1167). Appellant and Carpenter left Foreman’s
house and returned to Carpenter’s house. (Tr. 1168). But Carpenter would not let
appellant in her house. (Tr. 1170).
{¶148} Appellant testified that he was embarrassed because he “shot up” in
front of his mother and stole from her. (Tr. 1171).
{¶149} After leaving Carpenter’s house, appellant walked back to Foreman’s
house. (Tr. 1172). Appellant stated that he and Foreman hung out and talked for a
while in the house. (Tr. 1173). Then they went outside to the backyard. (Tr. 1174).
Eventually, appellant stated that Foreman went back inside and he stayed out in the
backyard sitting at a table. (Tr. 1176). He stated that he was drunk and high at the
time. (Tr. 1176). He stated that he “nodded off.” (Tr. 1177-1178). Appellant was
unsure how long he was outside at the table. (Tr. 1179).
{¶150} Appellant testified that he then went back in the house and grabbed a
beer from the refrigerator. (Tr. 1179). It was then that he heard a moan from the
bedroom. (Tr. 1179). Appellant stated he went to the bedroom and discovered
Foreman kneeling down. (Tr. 1180). Appellant testified that Foreman turned towards
him with her arms flailing and came straight at him. (Tr. 1180). He stated that he
grabbed her and held her. (Tr. 1180). When Foreman realized it was appellant, he
stated that she then “gave up” and her body went limp. (Tr. 1180). Appellant stated
that he laid her down. (Tr. 1181). He then asked her where her phone was and
upon learning that it was in her purse, appellant dumped the contents of her purse
out. (Tr. 1181). He then called 911. (Tr. 1181). Appellant stated he realized that
- 29 -
someone might be in the house so he ran to the kitchen and grabbed a paring knife
from the drawer. (Tr. 1182).
{¶151} Appellant stated that the paramedics arrived. (Tr. 1184). He testified
that he told Lively that “she attacked me” and that “he stabbed her.” (Tr. 1185).
Appellant stated that he never told Lively that he was the one who stabbed Foreman.
(Tr. 1185). Appellant further stated he told Officer Hedrick that he was there for
“dope” and that Foreman came at him and attacked him. (Tr. 1185). He stated he
tried to tell Officer Hedrick the rest of the story but the officer turned around and went
into the bedroom. (Tr. 1185).
{¶152} Appellant also testified he did not see anything at Foreman’s house
and did not have any information as to who stabbed her. (Tr. 1192-1193). Finally,
appellant testified he did not stab Foreman. (Tr. 1194).
{¶153} Given the evidence, we cannot conclude that the jury's verdict was
against the manifest weight of the evidence. Appellant testified as to his version of
the time in question. According to appellant, he was at Foreman’s house in the
backyard when she was stabbed, yet he did not hear or see anything. By his own
testimony, appellant was drunk and high at the time. Also, by his own testimony,
appellant was so desperate for heroin that he had his mother drive him to buy the
heroin and “shot up” in front of her.
{¶154} But appellant’s testimony that he was simply present at Foreman’s
house and did not stab her does not match up with the rest of the evidence.
{¶155} According to the first responders on the scene, appellant made some
highly incriminating statements. Lively testified that appellant told him that “she”
attacked him, so he stabbed her and the knife was inside the house. And Officer
Hedrick testified appellant told him that he went to Foreman’s to buy dope and
Foreman tried to stab him. Furthermore, the first responders found appellant shirtless
and covered in blood. Yet appellant was not injured. A blood-covered tee-shirt was
located in the bedroom where Foreman was stabbed. DNA from the blood covering
appellant and on the tee-shirt was determined to be consistent with Foreman’s DNA.
- 30 -
{¶156} Moreover, appellant was seen on Foreman’s front porch with her at
approximately 3:40 p.m. At 3:57 p.m., he placed his first call to 911. Thus, in order
for his version of the events to add up, appellant would have had to go into the
backyard, nod off, wake up, go inside and find Foreman bleeding in less than 17
minutes. Additionally, someone else would have had to enter the house, stab
Foreman, and leave within that same short timeframe.
{¶157} Although an appellate court is permitted to independently weigh the
credibility of the witnesses when determining whether a conviction is against the
manifest weight of the evidence, great deference must be given to the fact finder's
determination of witnesses' credibility. State v. Wright, 10th Dist. No. 03AP-470,
2004-Ohio-677, ¶11. The policy underlying this presumption is that the trier of fact is
in the best position to view the witnesses and observe their demeanor, gestures, and
voice inflections, and use these observations in weighing the credibility of the
proffered testimony. Id.{¶158} In this case, the jury simply did not find appellant’s testimony credible.
We will not second-guess their determination.
{¶159} For these reasons, the jury’s verdict was not against the manifest
weight of the evidence. Accordingly, appellant’s tenth assignment of error is without
merit.
{¶160} Appellant’s eleventh assignment of error states:
DEFENDANT/APPELLANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO A FAIR TRIAL DUE TO THE
CUMULATIVE ERRORS IN THESE PROCEEDINGS.
{¶161} Appellant contends here that the cumulative effect of the errors raised
in his first ten assignments of error deprived him of a fair trial.
{¶162} An appellate court may reverse a defendant's conviction based on the
doctrine of cumulative error. Cumulative error occurs when errors deemed separately
harmless deny the defendant a fair trial. State v. DeMarco, 31 Ohio St.3d 191, 509
- 31 -
N.E.2d 1256 (1987), paragraph two of the syllabus.
{¶163} As discussed herein, appellant’s alleged errors are without merit.
Consequently, there is no cumulative error. Accordingly, appellant’s eleventh
assignment of error is without merit.
{¶164} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, P.J., concurs.
DeGenaro, J., concurs.