State v. Wynn , 2014 Ohio 420 ( 2014 )

[Cite as State v. Wynn, 2014-Ohio-420.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
ANTONIO L. WYNN
Defendant-Appellant
Appellate Case No. 25097
Trial Court Case No. 2010-CR-3822/1
(Criminal Appeal from
(Common Pleas Court)
...........
OPINION
Rendered on the 7th day of February, 2014.
...........
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, 765 Troy Street, Dayton, Ohio 45404
Attorney for Defendant-Appellant
.............
2
WELBAUM, J.
{¶ 1} Defendant-Appellant, Antonio L. Wynn, appeals from his conviction on a
charge of complicity to commit felony murder in violation of R.C. 2923.03(A)(2) and R.C.
2903.02(B), with a firearm specification. Wynn contends that he was denied due process and
his right of confrontation when the trial court refused to permit him to cross-examine and
impeach his co-defendant. Wynn also maintains that the trial court erred in admitting a letter
that he purportedly wrote to his co-defendant.
{¶ 2} In addition, Wynn contends that his trial attorney rendered ineffective assistance
of counsel, and that the trial court abused its discretion when it allowed a juror to serve after the
juror had inappropriate contact with a police detective. Finally, Wynn argues that the trial court
erred in refusing to instruct the jury on a lesser-included offense of involuntary manslaughter.
{¶ 3} We conclude that Wynn was not denied due process or a right of confrontation
either by the trial court’s application of Evid.R. 607(A), or by the court’s failure to call Wynn’s
co-defendant as a court’s witness pursuant to Evid.R. 614(A). However, the trial court did
incorrectly conclude that evidence pertaining to the lack of a plan to harm the victim was
irrelevant. Wynn was not prejudiced by the error, because the court did, in fact, allow Wynn to
present evidence of the absence of a plan.
{¶ 4} Additionally, we conclude that the trial court did not err in its rulings about the
letter that Wynn allegedly wrote. The letter was properly authenticated by its content and the
circumstances under which it was delivered, which demonstrated a sufficient foundation for
attributing authorship to Wynn. The State also did not fail to appropriately disclose the letter to
Wynn.
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{¶ 5} We further conclude that trial counsel did not render ineffective assistance of
counsel by allegedly failing to discuss the letter with Wynn or in failing to request a continuance.
Wynn has not demonstrated that the result of the trial would have been any different had his
counsel discussed the letter with him, and nothing in the record indicates that Wynn had
information about the letter that would have changed counsel’s defense strategy. Moreover,
discussing the letter with Wynn would not have changed the fact that a substantial amount of
evidence, both video and testimonial, supported the conviction. Furthermore, requesting
continuances is a matter of trial tactics and strategy, and we will not second-guess trial counsel’s
decision in this regard.
{¶ 6} We also conclude that the trial court did not err in allowing a juror to serve at
trial after the juror had contact with a police detective. The trial court questioned the juror in
chambers with counsel present, and both the State and defense indicated that they were satisfied
with the juror’s explanation that the contact had nothing to do with the case. The trial court did
not abuse its discretion in choosing not to investigate the matter further.
{¶ 7} Finally, the trial court did not err in refusing to instruct the jury on the
lesser-included offense of involuntary manslaughter. The evidence would not permit the jury to
reasonably reject the greater offense of complicity to commit felony murder. Furthermore,
Wynn’s actions in assaulting the victim had no connection with the felonious assault with the
gun, and did not proximately result in the victim’s death. A jury instruction on involuntary
manslaughter would not be an appropriate instruction, because the victim died as a proximate
result of being shot, rather than from Wynn’s assault.
{¶ 8} Accordingly, the judgment of the trial court will be affirmed.
4
I. Facts and Course of Proceedings
{¶ 9} The murder charge in this case arose from Wynn’s involvement in the
December 3, 2010 death of Deonta Beans. Beans was shot and killed by Wynn’s friend, George
Turner, while Beans was standing inside a convenience store located in Dayton, Ohio. Wynn
was with Turner during the shooting, and punched the victim twice before Turner fired his gun.
After Wynn pled not guilty to the complicity charge, his case was tried before a jury.
{¶ 10} At trial, the State called two eyewitnesses to testify regarding the shooting – the
store cashier and Beans’ 12-year-old cousin, D.T. The State also presented video footage and
stills of the shooting that were captured by the convenience store’s security cameras. The
testimony and video evidence established that Beans and D.T. were standing near the entrance of
the convenience store when Turner and Wynn walked in together. As the two men walked in,
Wynn punched Beans with his right hand, which was covered by a black glove; his left hand was
gloveless. Turner then pulled out a gun and aimed it at Beans’ head. When Beans backed up
and tried to get the gun from Turner’s left hand, Turner used his right hand to hold Beans’ arm
back. As Turner struggled with Beans, Wynn jumped in and punched Beans a second time.
Immediately after the second punch, Turner fired a shot at Beans. Turner and Wynn then both
ran from the store.
{¶ 11} Shortly after the shooting, the police were able to identify Turner and Wynn as
suspects. On the evening of the shooting, the police found Wynn at his home, which was
located just a few blocks from the store. Wynn was taken into custody for questioning and was
later arrested. He gave the police an address where Turner could be found, but Turner was not
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at that location. Turner was not apprehended until January 21, 2011.
{¶ 12} On the day Turner was apprehended, he was interviewed by the police, and gave
a statement. Turner stated that Beans and a few other men had robbed him at gunpoint a week
before the shooting, and that he was angry and frustrated by what people were saying about the
robbery. He also claimed that he was concerned that Beans might try to rob him again. As a
result of the robbery, Turner began to carry a gun in his vehicle at all times. Turner further
stated that when he saw Beans in the convenience store on December, 3, 2010, he did not intend
to shoot Beans, but merely went in the store to talk to Beans and get him to stop saying what he
was saying on the streets.1 This version of events supported Wynn’s defense theory, which was
that Wynn had no knowledge of Turner’s gun, and that Turner shot Beans on a whim, which
Wynn could not have either anticipated or controlled.
{¶ 13} Turner was interviewed by the police and prosecutors again on October 28,
2011, November 9, 2011, and February 7, 2012. Turner’s statements during these interviews
were much less favorable to Wynn. Turner claimed that he had confided in Wynn after Beans
had robbed him, and that they had talked about seeking revenge. In fact, when Turner told
Wynn that he had been robbed, Wynn said, “it's on when I see [Beans].” Transcript of
Proceedings, Vol. IV, p. 696, ln. 4-7.
{¶ 14} In this version of the story, Turner said that he and Wynn drove by the
convenience store and saw Beans standing inside. Turner then turned the car around and drove
to Wynn’s house to get the gun. When they arrived at Wynn’s house, Wynn went into the house
1
According to the video interview, which we have reviewed, Beans was bragging to others about the robbery and was telling
people that he was going to do other “stuff” to Turner.
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and Turner stayed in the car. When Wynn came back out, he had a .40 caliber Glock
semi-automatic gun. Wynn got back in the car, and put the gun in Turner’s lap. Thereafter,
they returned to the convenience store, intending to harm Beans.
{¶ 15} Turner also claimed that before they went into the store, Wynn grabbed two
gloves from the back seat of the car and gave Turner the left glove. Turner was left-handed, and
wore the glove to prevent gun residue from getting on his hand. According to Turner, Wynn
put on the right glove because he was right-handed.
{¶ 16} After giving the police this information, Turner entered into a plea agreement
with the State. Approximately one week before Wynn’s trial, Turner pled guilty to tampering
with evidence, felony murder with the underlying offense of felonious assault, and a firearm
specification. As part of the plea agreement, Turner agreed to testify truthfully in Wynn’s trial.
In exchange, the State agreed to recommend that the potential sentence for tampering with
evidence would run concurrently with the other charges. This would result in an 18-year-to-life
prison term rather than a longer potential term of up to 21 years to life.
{¶ 17} At Wynn’s trial, the State did not call George Turner as a witness during its case
in chief. If Turner were called, the defense expected Turner to testify in line with his later
statements, which indicated that Wynn had played a greater role in the shooting. Accordingly,
Wynn wanted to impeach Turner’s testimony with his first statement. Because the State did not
call Turner to testify, Wynn’s counsel asked the court to call Turner as a witness under Evid.R.
614(A), so that the defense could question him on cross-examination and eliminate the issue of
the defense’s inability to impeach Turner under Evid.R. 607(A). The trial court overruled the
request, stating that it had limited knowledge of the evidence at that point, and lack of time to
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digest our prior decision in State v. Arnold, 189 Ohio App.3d 507, 2010-Ohio-5379, 939 N.E.2d
218 (2d Dist.), which had just been given to the court. However, the court also indicated that its
opinion could change during Turner’s testimony.
{¶ 18} In response, Wynn’s counsel then asked the court to let the defense question
Turner as if on cross-examination under Evid.R. 611(C), on grounds that Turner had entered into
an agreement with the State to testify against Wynn, and was a witness identified with an adverse
party. The trial court deferred ruling on the request, stating that it was not ripe because Turner
had not yet testified. The court indicated that it would amend its ruling if Turner’s testimony
warranted it.
{¶ 19} Ultimately, the defense called Turner as a witness, and as expected, he testified
in line with his later statements. During direct examination, Turner testified that he intended to
harm Beans. Turner also said that he did not recall telling the police that he did not intend to
shoot Beans. At that point, the trial court allowed the defense to refresh Turner’s recollection
with his first statement. After viewing his January 21, 2011 video interview with the police,
Turner admitted telling the police that it was not his intention to shoot Beans. He admitted that
he told the police, instead, that his intention was to go in and talk to Beans and get him to stop
the comments he was making on the streets.
{¶ 20} During direct examination, Turner also denied keeping a gun in his car after
being robbed by Beans, and said he did not recall telling the police otherwise. Once again, the
trial court permitted the defense to refresh Turner’s recollection with the video interview. After
his recollection was refreshed, Turner admitted telling the police that he started carrying his gun
in his vehicle at all times after being robbed by Beans. The trial court did allow the defense to
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ask some leading questions and to refresh Turner’s recollection, but it did not amend its prior
rulings. Therefore, Turner was never called as the court’s own witness, nor was he
cross-examined as a witness identified with an adverse party.
{¶ 21} During the State’s cross-examination, Turner continued to testify in line with
his later statements. Turner testified that he and Wynn had discussed seeking revenge on Beans,
and described how he and Wynn had obtained the gun from Wynn’s house on the day of the
shooting. He also mentioned the left glove that Wynn gave him to wear before going into the
store, and indicated that Wynn wore the right glove. Turner further testified that Wynn was
close enough to hear Turner rack the gun and chamber a bullet before they went inside the store.
{¶ 22} In addition, Turner testified that he had received a letter from Wynn while they
were both being held in the Montgomery County Jail. The letter is unsigned, but Turner stated
that he could tell the letter was from Wynn based on the contents. The letter contained the
greeting, “What’s up brother,” which is how Turner claimed that he and Wynn had addressed
each other since they were eight years old. Transcript of Proceedings. Vol. IV, p. 729, ln. 3-11;
733, ln. 4-12. The letter also referred to “Nicky,” which was the name of one of Wynn’s
girlfriends. Id. at 729, ln. 14-20.
{¶ 23} The letter also contained information about the events surrounding the criminal
case. Specifically, the author claimed that he purposely led the police to a wrong address when
they were looking for Turner. In addition, there was an issue in the letter about Turner not
“snitching” on Wynn regarding the charges in the case. The author offered Turner money in
exchange for not providing any information or for not telling the authorities what happened in the
case. According to Turner, the letter was hand-delivered to him by Wynn’s cell mate. Turner
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gave the letter to his attorney, and his attorney then provided it to the State.
{¶ 24} Wynn objected to admission of the letter into evidence on grounds that it was
not properly authenticated and was not timely disclosed. The State received the letter on
February 2, 2012, and disclosed it to Wynn’s counsel the same day. The disclosure was made
three days before trial and six days before the letter was offered as evidence. The trial court held
that the letter was properly authenticated, but still decided to exclude it as a physical exhibit. As
a result, the jury only heard Turner’s testimony about the letter.
{¶ 25} Finally, at the end of the trial, Wynn asked the court to instruct the jury on the
lesser-included offense of involuntary manslaughter, based on the predicate of a misdemeanor
assault. The trial court overruled the request on grounds that Wynn had been charged as an aider
and abettor, not as a principal offender in a felonious assault.
{¶ 26} The jury found Wynn guilty as charged, and the trial court sentenced him to 18
years to life in prison. Wynn appeals from his conviction and sentence.
II. First Assignment of Error
{¶ 27} Wynn’s First Assignment of Error is as follows:
The Trial Court Erred to the Prejudice of the Appellant When it Did Not
Allow Defendant’s Attorney to Cross Examine and Impeach Mr. Turner in
Violation of the Defendant’s Sixth Amendment Right of Confrontation of
Witnesses under the Federal Constitution and Article I, Section 10 of the Ohio
Constitution and the Defendant’s Due Process Rights Guaranteed under the Fifth
and Fourteenth Amendment of the United States Constitution and Article I,
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Section 16 of the Ohio Constitution.
{¶ 28} Under this assignment of error, Wynn argues that the trial court erred in: (1)
preventing him from cross-examining and impeaching George Turner; and (2) excluding relevant
evidence regarding Wynn's mental state. Wynn claims that the trial court's errors prevented him
from presenting a complete defense, and thus denied him his constitutional rights to due process
and confrontation.
A. Did the Trial Court Err in Preventing Appellant From
Cross-examining and Impeaching George Turner?
{¶ 29} Wynn contends that the trial court’s application of Evid.R. 607(A) violated his
rights to due process and confrontation, because he was prevented from cross-examining and
impeaching George Turner’s damaging testimony. Wynn also contends that the trial court
abused its discretion by failing to call Turner as the court’s own witness under Evid.R. 614(A).
{¶ 30} As a preliminary matter, we note that the right to cross-examine an adverse
witness, which includes the right to impeach, is essential to a fair trial and due process.
Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed. 297 (1973); State v. Green,
66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993). The right of cross-examination is also
“implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the
truth-determining process.’ ” Chambers at 294, quoting Dutton v. Evans, 400 U.S. 74, 89, 91
S.Ct. 210, 27 L.Ed.2d 213 (1970). (Other citation omitted.) Nonetheless, “the right to confront
and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.” (Citation omitted.) Id. at 295. “But its
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denial or significant diminution calls into question the ultimate ‘integrity of the fact-finding
process’ and requires that the competing interest be closely examined.” Id., quoting Berger v.
California, 393 U.S. 314, 315, 89 S.Ct. 540, L.Ed.2d 508 (1969).
1. Evid.R. 607(A)
{¶ 31} Evid.R. 607(A) prevents a party from impeaching its own witness unless the
party is surprised by the testimony and the testimony is damaging. In this regard, the rule states
that:
The credibility of a witness may be attacked by any party except that the
credibility of a witness may be attacked by the party calling the witness by means
of a prior inconsistent statement only upon a showing of surprise and affirmative
damage. This exception does not apply to statements admitted pursuant to Evid.
R. 801(D)(1)(a), 801(D)(2), or 803. Evid.R. 607(A).
{¶ 32} In the case before us, Wynn wanted to cross-examine Turner so that he could
impeach Turner with the first statement that he gave the police. Evid.R. 607(A) precluded this
tactic, because Wynn called Turner as a witness, and Turner’s testimony was not a surprise.
Wynn claims that despite the application of Evid.R. 607(A), the trial court should have allowed
him to cross-examine and impeach Turner, based on the United State Supreme Court’s decision
in Chambers.
{¶ 33} As an initial matter, we note that:
“Chambers was an exercise in highly case-specific error correction.”
Montana v. Egelhoff (1996), 518 U.S. 37, 52, 116 S.Ct. 2013, 135 L.Ed.2d 36112
(plurality opinion). The case “establish[ed] no new principles of constitutional
law” but “h[e]ld quite simply that under the facts and circumstances of this case
the rulings of the trial court deprived Chambers of a fair trial.” (Emphasis
added.) Egelhoff, quoting Chambers, 410 U.S. at 302–303, 93 S.Ct. 1038, 35
L.Ed.2d 297. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767
N.E.2d 216, ¶ 69.
{¶ 34} According to Wynn, the facts and circumstances in the present case are
analogous to Chambers. The facts of Chambers are as follows.
{¶ 35} In 1970, the defendant, Leon Chambers, was tried and convicted of murdering a
police officer in Mississippi. Chambers at 285. At trial, Chambers wanted to cross-examine an
individual named Gable McDonald, who had previously confessed to murdering the same officer,
but had repudiated his confession. Id. at 287-289. Because the State did not call McDonald as
a witness, Mississippi’s “voucher rule,” a rule which prevents a party from impeaching its own
witness, prevented Chambers from cross-examining McDonald. Id. at 290-291, 295. The trial
court also prevented Chambers from introducing the testimony of three witnesses who claimed
that McDonald had told them he was the one who killed the officer. Id. at 292-293. This
testimony was excluded on hearsay grounds. Id. Accordingly, Chambers was prevented from
presenting a large portion of his defense due to the application of Mississippi’s rules of evidence.
{¶ 36} The United States Supreme Court noted that Mississippi’s voucher rule had
been condemned as “archaic, irrational, and potentially destructive of the truth-gathering
process,” and had also been “rejected altogether by the newly proposed Federal Rules of
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Evidence, Rule 607 * * *.” Id. at 297, fn. 8 and fn. 9. Therefore, after determining that
McDonald’s testimony was adverse and damaging to Chambers, the Court concluded that the
voucher rule, “plainly interfered with Chambers’ right to defend against the State’s charges.” Id.
at 298. However, the Court did not determine whether this error alone warranted reversal. This
is because Chambers had based his due process argument on the impact of the error in
conjunction with the exclusion of the testimony regarding McDonald’s incriminating statements.
Id. at 298. As a result, the Court continued its analysis in order to determine whether the
exclusion of the testimony as hearsay violated the defendant’s due process rights.
{¶ 37} In its analysis, the Court considered that the witnesses’ hearsay statements
regarding McDonald’s confessions “were originally made and subsequently offered at trial under
circumstances that provided considerable assurance of their reliability.” Chambers, 410 U.S. at
300, 93 S.Ct. 1038, 35 L.Ed.2d 297. Specifically, the court pointed out that: (1) each confession
was spontaneously made to a close acquaintance shortly after the murder was committed; (2)
each confession was corroborated by some other evidence in the case; (3) each confession was
self-incriminatory and was against McDonald's interest; and (4) the declarant (McDonald) was
available for cross-examination. Id. at 300-301. As a result, the Court determined that:
The testimony rejected by the trial court * * * bore persuasive assurances
of trustworthiness and thus was well within the basic rationale of the exception
for declarations against interest. That testimony also was critical to Chambers’
defense. In these circumstances, where constitutional rights directly affecting the
ascertainment of guilt are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice. Id. at 302.
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{¶ 38} The Court ultimately concluded “that the exclusion of this critical evidence,
coupled with the State’s refusal to permit Chambers to cross-examine McDonald, denied him a
trial in accord with traditional and fundamental standards of due process.” Id. at 302.
{¶ 39} The present case is distinguishable from Chambers for various reasons. First,
Evid.R. 607(A) is different from the voucher rule in Chambers, which had been rejected by the
Federal Rules of Evidence and was condemned as archaic and irrational. Unlike the voucher
rule, Ohio’s Evid.R. 607(A) lets parties impeach their own witnesses by means of a prior
inconsistent statement, upon a showing of surprise and affirmative damage. Furthermore, the
Supreme Court of Ohio “has not detected a constitutional infirmity in Evid.R. 607, as more than
thirty years have passed since its enactment, and the court has not, to date, directly addressed the
issue.” State v. Arnold, 2d Dist. Montgomery No. 24687, 2013-Ohio-5336, ¶ 123. We also
observed in Arnold that the approach used in Ohio’s Evid.R. 607 is consistent with subsequent
authority of the United States Supreme Court, which stresses that:
“A defendant’s right to present relevant evidence is not unlimited, but
rather is subject to reasonable restrictions. A defendant’s interest in presenting
such evidence may thus ‘ “bow to accommodate other legitimate interests in the
criminal trial process.” ’ Rock [v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97
L.Ed.3d 37(1987) ], * * * (quoting Chambers, [410 U.S. at 295, 93 S.Ct. 1038, 35
L.Ed.2d 297] ). As a result, state and federal rulemakers have broad latitude
under the Constitution to establish rules excluding evidence from criminal trials.
Such rules do not abridge an accused’s right to present a defense so long as they
are not ‘arbitrary’ or ‘disproportionate to the purposes that they are designed to
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serve.’ Rock, supra, at 56, 107 S.Ct., at 2711 ---- *. Moreover, we have found
the exclusion of evidence to be unconstitutionally arbitrary or disproportionate
only where it has infringed upon a weighty interest of the accused.” (Citations
and footnote omitted.) U.S. v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140
L.Ed.2d 413 (1998). Arnold at ¶ 123.
{¶ 40} In the case before us, the trial court’s application of Evid.R. 607(A) prevented
Wynn from cross-examining Turner, who ultimately provided damaging testimony. However,
the record demonstrates that Wynn was not completely foreclosed from confronting Turner.
Unlike the defendant in Chambers, the trial court permitted Wynn to refresh Turner's recollection
during direct examination, through the video interview that the police recorded. After having
his recollection refreshed, Turner testified about key portions of the statement, including: (1) that
it was not his intention to shoot; instead, his intention was to go into the store, talk to Beans, and
get Beans to stop saying things in the streets; (2) that he started carrying his gun in his vehicle at
all times after he was robbed by Beans; (3) that he did not mean to shoot Beans; and (4) that he
did not go into the store with the intent to shoot Beans; he was just going to “smack” Beans.
{¶ 41} Turner also admitted that he had previously told the police a story that differed
from his testimony, and was consistent with Wynn’s defense. As a result, Wynn was essentially
given an opportunity to impeach Turner by using Turner’s prior inconsistent statement.
{¶ 42} Furthermore, even if we concluded that the application of Evid.R. 607(A)
infringed Wynn’s right to cross-examine an adversarial witness, Chambers does not hold that this
alone would require reversal. Instead, Chambers based its reversal on the fact that exculpatory
evidence was also excluded on hearsay grounds, when the evidence had “persuasive assurances
16
of trustworthiness.” Chambers, 410 U.S. at 302, 93 S.Ct. 1038, 35 L.Ed.2d 297.
{¶ 43} Chambers and Evid.R. 804(B)(3), which provides a hearsay exception for
statements against interest, “have the same indicia of trustworthiness.” Arnold, 2d Dist.
Montgomery No. 24687, 2013-Ohio-5336, at ¶ 132, citing State v. Swann, 119 Ohio St.3d 552,
2008-Ohio-4837, 895 N.E.2d 821, ¶ 28. In fact, “ ‘[t]he against-interest exception was drafted
with Chambers in mind and requires “corroborating circumstances” for statements offered to
exonerate defendants, the justification being that they can be fabricated by friendly defense
witnesses (and attributed to unavailable speakers) and are hard to rebut even if false.’ ” Swann
at ¶ 28, quoting Mueller & Kirkpatrick, Evidence, Section 8.82, at 1118 (1995).
{¶ 44} In this regard, Evid.R. 804(B)(3) allows admission of statements against
interest, and indicates that if a declarant is “unavailable” as a witness, the following is not
excluded by the hearsay rule:
A statement that was at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended to subject the
declarant to civil or criminal liability, or to render invalid a claim by the declarant
against another, that a reasonable person in the declarant's position would not
have made the statement unless the declarant believed it to be true. A statement
tending to expose the declarant to criminal liability, whether offered to exculpate
or inculpate the accused, is not admissible unless corroborating circumstances
clearly indicate the truthworthiness of the statement. (Footnote omitted.)
{¶ 45} Evid.R. 804(A) defines “unavailability” to include various situations, such as
ones in which a declarant “testifies to a lack of memory of the subject matter of the declarant's
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statement.” Evid.R. 804(A)(3). Since Turner indicated at numerous points during his
testimony that he could not recall having made certain statements to the police, the evidence
could have arguably have been admitted as an exception to the hearsay rule, if certain indicia of
reliability were present.
{¶ 46} Unlike the testimony in Chambers, however, Turner’s video interview does not
possess persuasive assurances of trustworthiness. As an initial matter, we note that while certain
parts of Turner’s video interview, such as his admission of having shot Beans, were against
Turner’s penal interest, the interview viewed as a whole indicates that Turner was attempting to
establish a case of self-defense. Such a motive would render the statement less trustworthy.
{¶ 47} In this regard, Turner told the police that he took a weapon into the store
because he knew that Beans carried a weapon, and Beans had previously robbed him by using a
gun. Turner also told the police that he had no intention of harming Beans, but just wanted to
talk to him. In addition, Turner stated that he and Wynn did not plan the murder, and that he did
not know why Wynn hit Beans. In fact, Turner suggested that the situation probably would not
have “gone down” that way if Wynn had not hit Beans. Turner further stated that when he came
into the store, Beans said something, and he got scared. According to Turner, he thought Beans
had a weapon, and fired. Turner classified the whole situation as a “mistake.”
{¶ 48} Moreover, although Turner was technically available for cross-examination, his
statement was not spontaneously made to a close acquaintance shortly after the shooting. The
statement was made to the police, again, in an apparent effort to establish self-defense, and it was
made about six weeks after the shooting.
{¶ 49} Turner’s statement was also not corroborated by other evidence, including the
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video footage and stills. The video depicts Wynn wearing one glove on his right hand, which
corroborates Turner’s claim that Wynn had grabbed a glove for each of them to put on before
they went into the convenience store. Further, the video does not show any hesitation or
surprise from Wynn when Turner pulled out his gun. Instead, Wynn continued to act in concert
with Turner, which corroborates Turner’s claim that Wynn was aware of the gun before going
into the store. Most importantly, however, the video shows that Wynn threw his second punch
at Beans when Turner began to struggle to keep Beans away from the gun. The fact that Wynn
jumped in and punched Beans at that moment corroborates Turner’s testimony that Wynn was
there to help him harm and seek revenge against Beans.
{¶ 50} For the foregoing reasons, the facts in this case are not analogous to Chambers.
Accordingly, Wynn was not denied either due process or a right of confrontation by the trial
court’s application of Evid.R. 607(A).
2. Evid.R. 614(A)
{¶ 51} Wynn also contends that the trial court abused its discretion by refusing to call
Turner as the court’s witness under Evid.R. 614(A). In this regard, the rule states that: “The
court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are
entitled to cross-examine witnesses thus called.” Evid.R. 614(A). In Arnold, 189 Ohio
App.3d 507, 2010-Ohio-5379, 939 N.E.2d 218 (2d Dist.), we made the following observations
regarding a court’s ability to call witnesses under Evid.R. 614(A):
“A trial court possesses the authority in the exercise of sound discretion to
call individuals as witnesses of the court.” State v. Adams (1980), 62 Ohio St.2d
19
151, 16 O.O.3d 169, 404 N.E.2d 144, paragraph four of the syllabus. “It is
well-established that a trial court does not abuse its discretion in calling a witness
as a court's witness when the witness's testimony would be beneficial to
ascertaining the truth of the matter and there is some indication that the witness's
trial testimony will contradict a prior statement made to police.” State v. Schultz,
Lake App. No. 2003–L–156, 2005-Ohio-345, 2005 WL 238153, ¶ 29; State v.
Lather, 171 Ohio App.3d 708, 2007-Ohio-2399, 872 N.E.2d 991, ¶ 3. When the
court calls a witness on its own motion, a party need not satisfy the surprise and
affirmative-damage requirements of Evid.R. 607(A) in order to impeach the
witness. State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394.
By authorizing the court to call a witness who may then be
cross-examined by any party, Evid.R. 614 creates an exception to the limitation
imposed by Evid.R. 607(A), barring a party's impeachment of its own witness
with evidence of a prior inconsistent statement. However, “where impeachment
is a mere subterfuge to get evidence before the jury which is not otherwise
admissible, impeachment of a party's own witness has been held improper.” 53
A.L.R.Fed. at 500–501. The fact that evidence offered for impeachment would
otherwise be inadmissible does not necessarily portray a subterfuge, however.
When the reason a party relies on for requesting the court to call a witness as a
court's witness, rather than calling him as a witness itself, is to avoid being unable
to test the credibility of the testimony the witness is expected to give by use of his
prior out-of-court statements, the request is not improper. State v. Adams, 62
20
Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144; State v. Dacons (1982), 5 Ohio
App.3d 112, 5 OBR 227, 449 N.E.2d 507.
Courts have held that a court witness's prior inconsistent statements may
be used only to diminish the credibility of the witness and otherwise impeach his
testimony and may not be used as substantive evidence. McCloud v. State
(Fla.App.1978), 354 So.2d 407; People v. Bailey (1975), 60 Ill.2d 37, 322
N.E.2d 804. Further, the witness may be impeached by prior inconsistent
statements only if his testimony was damaging to the examiner's case. People v.
Triplett (1980), 87 Ill.App.3d 763, 42 Ill.Dec. 786, 409 N.E.2d 401.
These limitations on the application of a rule like Evid.R. 614 reflect a
concern that its cross-examination provision not swallow up the fundamental
requirement imposed by Evid.R. 402 that in order to be admissible, evidence of a
court's witness must be relevant; that is, the evidence must have “any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
Evid.R. 401. Arnold, 189 Ohio App.3d 507, 2010-Ohio-5379, 939 N.E.2d 218,
at ¶ 44-47.
{¶ 52} In the case before us, Wynn wanted Turner to testify as a court's witness so that
Wynn could cross-examine Turner and admit statements in Turner's video interview through
impeachment. Having the ability to test a witness's credibility with a prior inconsistent
statement is not an improper reason to request the court to call a witness under Evid.R. 614(A).
In fact, Wynn's trial counsel stressed that it was necessary to impeach Turner in order “to get to
21
the truth in the case,” because counsel maintained that Tuner’s video interview on January 21,
2011, was “consistent with the truth.” Transcript of Trial Proceedings, Vol. IV, p. 642, ln.
16-17; p. 643, ln. 8.
{¶ 53} As was noted, the trial court indicated that it might reconsider its decision not to
call Turner as a court’s witness. Wynn’s counsel continued to maintain throughout the
examination that Turner should be called by the court. Id. at pp. 742 and 745. In this regard,
the following exchange occurred:
THE COURT: Well, the whole thing is, does it matter with regard to how many
stories he’s told? The question is, is whether they were under oath. I think
that’s part of the impeachment. And you know, he doesn’t have to tell the truth
any other place. They can – he can tell – where is the law that requires you to tell
the truth to the police?
***
Or to tell the truth in a story?
MR. CICERO: And that would be the jury’s function to determine when
the truth was told. Whether the truth was more recent to the event, or whether
the truth came out later. That is the jury’s function. And I’m trying to give it to
the jury. Id. at p. 745, ln. 13-24.
{¶ 54} We noted earlier that trial courts have discretion to call witnesses as court’s
witnesses under Evid.R. 614, where doing so could “be beneficial to the jury in performing its
fact-finding responsibilities.” Adams, 62 Ohio St.2d at 158, 404 N.E.2d 144. In Adams, the
defendant argued that when a prosecution witness was called as a court’s witness, the prosecution
22
“gained two significant procedural advantages: (1) it gained the right to impeach [the witness],
and (2) it avoided the application during its examination of [the witness] of the rule prohibiting it
from asking leading questions of its own witness.” Id. at 157.
{¶ 55} After examining the record, the Supreme Court of Ohio concluded in Adams
that the trial court did not abuse its discretion by calling the state’s witness as a court’s witness.
In this regard, the court stressed that:
“(I)n modern criminal trials, defendants (as well as prosecutors) are rarely
able to select their witnesses: they must take them where they find them.”
Chambers v. Mississippi (1973), 410 U.S. 284, 296, 93 S.Ct. 1038, 1046, 35
L.Ed.2d 297. The court, at the time it was faced with the prosecution's request,
had in addition to the prosecutor's representation of prior conflicting statements,
information that the appellee had lived as a partner in the potential witness’
household (indicating a possible predisposition towards the appellee), but also that
the witness was a codefendant awaiting trial and willing to testify at her former
household partner's trial for the same crime of which she was accused (suggesting
a possible motivation to testify against the appellee). Adams at 158.
{¶ 56} “ ‘Abuse of discretion’ has been described as including a ruling that lacks a
‘sound reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d
528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50
Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A review under the abuse-of-discretion standard
is a deferential review. It is not sufficient for an appellate court to determine that a trial court
abused its discretion simply because the appellate court might not have reached the same
23
conclusion or is, itself, less persuaded by the trial court's reasoning process than by the
countervailing arguments.” Id.{¶ 57} In our opinion, the issue in the case before us is a close one. We would not
necessarily have reached the same conclusion as the trial court did. In particular, we see no
harm that would have occurred if both sides were permitted to cross-examine and potentially
impeach Turner. Nonetheless, even if the trial court had abused its discretion in failing to call
Turner as a court’s witness, any error would have been harmless, because the defense was, in
fact, permitted to impeach Turner with his prior inconsistent statements, and the defense was also
able to present sufficient facts from Turner’s video interview to support its theory of the case.
{¶ 58} Accordingly, there is no basis for reversing the decision not to call Turner as a
court’s witness under Evid.R. 614(A).
B. Did the Trial Court Exclude Relevant Evidence
Regarding Wynn's Mental State?
{¶ 59} In this argument, Wynn claims that the trial court ruled on various evidentiary
issues in a manner that disregarded the mental state needed for a conviction of complicity to
commit felony murder. Specifically, Wynn claims that the trial court erred in refusing to admit
evidence of Wynn’s and Turner’s lack of a plan before they entered the convenience store.
According to Wynn, this ruling eliminated the necessary mens rea for complicity. Wynn also
argues that the trial court erred in concluding that evidence about Wynn’s lack of knowledge of
Turner's gun was irrelevant. Wynn argues that this evidence is relevant, and that its exclusion
violated his right to mount a defense against the State’s accusations.
24
{¶ 60} A defendant’s right to “ ‘a meaningful opportunity to present a complete
defense.’ ” * * * “ ‘would be an empty one if the State were permitted to exclude competent,
reliable evidence * * * when such evidence is central to the defendant's claim of innocence.’ ”
(Citations omitted.) Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, 895 N.E.2d 821, at ¶ 12,
quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986).
However, “this constitutional right is not absolute and does not require the admission of all
evidence favorable to the defendant.” (Emphasis sic.) (Citation omitted.) Id. at ¶ 13. “ ‘In
the exercise of this right, the accused, as is required of the State, must comply with established
rules of procedure and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.’ ” Id. at ¶ 14, quoting Chambers, 410 U.S. at 302, 93
S.Ct. 1038, 35 L.Ed.2d 297.
{¶ 61} The Ohio Rules of Evidence provide that relevant evidence is admissible,
whereas irrelevant evidence is not. Evid.R. 402. Relevant evidence is “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Evid.R. 401.
“The issue of whether testimony is relevant or irrelevant, confusing or misleading, is best decided
by the trial judge who is in a significantly better position to analyze the impact of the evidence on
the jury.” City of Columbus v. Taylor, 39 Ohio St. 3d 162, 164, 529 N.E.2d 1382 (1988).
{¶ 62} “ ‘[T]he trial court has broad discretion in the admission and exclusion of
evidence’ ” and an appellate court will not reverse the judgment of the trial court “ ‘unless it
clearly abused its discretion and the defendant has been materially prejudiced thereby * * *.’ ”
State v. Withers, 44 Ohio St.2d 53, 55, 337 N.E.2d 780 (1975), quoting State v. Hymore, 9 Ohio
25
St.2d 122, 128, 224 N.E.2d 126 (1967). “There is no material prejudice if the error is harmless,
in that the remaining evidence standing alone constitutes proof beyond a reasonable doubt of
defendant's guilt.” State v. Welburn, 9th Dist. Lorain No. 93CA005551, 1993 WL 488408, *3
(Nov. 17, 1993), citing State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), paragraph
six of the syllabus.
{¶ 63} In order to decide whether the trial court abused its discretion in this case, we
look to the elements of Wynn's offense. Wynn was charged with complicity to commit murder
in violation of R.C. 2903.02(B), which provides that “No person shall cause the death of another
as a proximate result of the offender's committing or attempting to commit an offense of violence
that is a felony of the first or second degree * * *.” The applicable underlying offense of
violence in this case is a felonious assault, committed in violation of R.C. 2903.11(A)(2), which
provides that:
(A) No person shall knowingly do either of the following:
***
(2) Cause or attempt to cause physical harm to another or to another's
unborn by means of a deadly weapon or dangerous ordnance.
{¶ 64} Thus, the culpability required for the commission of felony murder with a
predicate offense of felonious assault is “knowingly.” Wynn was not charged as the principal
offender, but was charged with having aided and abetted the principal offender. In this regard,
R.C. 2923.03(A)(2) states that “No person acting with the kind of culpability required for the
commission of an offense shall do any of the following: * * * (2) Aid or abet another in
committing the offense * * *.”
26
{¶ 65} The State, therefore, was required to prove that Wynn knowingly aided or
abetted George Turner in committing a felonious assault that proximately caused Beans’ death.
“A person acts knowingly, regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature. A person has knowledge
of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B).
{¶ 66} “To support a conviction for complicity by aiding and abetting pursuant to R.C.
2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged,
cooperated with, advised, or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. Such intent may be inferred from the
circumstances surrounding the crime.” State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796(2001), syllabus. “[T]he mere presence of an accused at the scene of a crime is not sufficient to
prove, in and of itself, that the accused was an aider and abettor.” Id. at 243, citing State v.
Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). However, “ ‘[p]articipation in
criminal intent may be inferred from presence, companionship and conduct before and after the
offense is committed.’ ” Johnson at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273
N.E.2d 884 (4th Dist.1971).
{¶ 67} In the case before us, relevant evidence would be evidence tending to make it
more or less probable that Wynn knowingly supported, assisted, encouraged, cooperated with,
advised, or incited Turner in the commission of felony murder. The State did not have to
demonstrate that Wynn and Turner had a plan to shoot Beans in order to convict Wynn of
complicity, but evidence of the absence of a plan would tend to make it less probable that Wynn
knowingly aided and abetted Turner. Accordingly, the trial court erred in concluding that
27
evidence regarding the lack of a plan was irrelevant.
{¶ 68} However, the court did, in fact, permit evidence of the absence of a plan.
Specifically, Wynn was allowed to solicit testimony from Turner indicating that Turner did not
intend to harm or to smack Beans when he entered the store. Turner also admitted to previously
telling the police that he only intended to talk to Beans. Because these facts supported Wynn’s
defense, Wynn was not prejudiced by the trial court’s ruling.
{¶ 69} In addition, evidence purporting to show that Wynn did not know that Turner
had a gun could also be relevant to whether Wynn knowingly aided and abetted Turner.
However, our review of the video interview, which was proffered as Defense Exhibit A, indicates
that Turner never told the police that Wynn was unaware that he (Turner) had a gun. In fact,
Turner said during the video interview that he took his gun out of the car when the two men
pulled up to the store and went inside. Turner also stated that he took his gun out of the car
because he knew that Beans kept a gun. And finally, Turner indicated that he kept his gun on
the side and that it was out (meaning it would have been visible to others, including Wynn).
This testimony would not have assisted Wynn in proving his lack of knowledge that Turner had a
gun.
{¶ 70} Based on the preceding discussion, Wynn’s First Assignment of Error is without
merit and is overruled.
III. Second Assignment of Error
{¶ 71} Wynn’s Second Assignment of Error is as follows:
The Trial Court Erred to the Prejudice of the Appellant When It Permitted
28
Into Evidence Mr. Wynn’s Purported Letter in Violation of the Rules of Evidence
and in Violation of the Defendant’s Due Process Rights Guaranteed under the
Fifth and Fourteenth Amendment of the United States Constitution and Article I,
Section 16 of the Ohio Constitution.
{¶ 72} Under this assignment of error, Wynn argues that the trial court erred in
admitting a letter into evidence that was: (1) not properly authenticated; (2) untimely disclosed to
the defense; and (3) without a clear chain of custody. Wynn claims that the trial court’s error
prejudiced him and violated his constitutional right to due process. The letter was damaging to
Wynn, because it contained an offer to essentially pay Turner not to cooperate with the police.
{¶ 73} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court * * *.” (Citation omitted). State v. Haines, 112 Ohio St.3d 393,
2006-Ohio-6711, 860 N.E.2d 91, ¶ 50. Although the trial court concluded that Wynn’s alleged
letter was properly authenticated, the court did not admit the letter into evidence. Instead, the
court only allowed the jury to hear testimony about the letter. Since the trial court failed to
admit the letter into evidence, Wynn’s claim of error in the letter’s admission is without merit.
Furthermore, even if the trial court had admitted the letter, Wynn’s arguments fail for several
reasons.
1. The Letter Was Properly Authenticated.
{¶ 74} “A condition precedent to the admissibility of documents is that documents
must be authenticated or identified.” (Citations omitted.) In Re Adoption of H.M.F., 2d Dist.
Montgomery No. 22805, 2009-Ohio-1947, ¶ 26. Authentication or identification “is satisfied by
29
evidence sufficient to support a finding that the matter in question is what its proponent claims.”
Evid.R. 901(A). “The evidence necessary to support a finding that the document is what a party
claims it to be has a very low threshold, which is less demanding than the preponderance of the
evidence.” (Citations omitted.) In Re H.M.F. at ¶ 26. Conclusive proof of authenticity is not
required. State v. Wheeler, 2d Dist. Montgomery No. 12290, 1993 WL 265133, *2 (July 16,
1993), citing State v. Easter, 75 Ohio App.3d 22, 25, 598 N.E.2d 845 (4th Dist.1991). Instead,
this low threshold requires “ ‘only sufficient foundational evidence for the trier of fact to
conclude that the document * * * is what its proponent claims it to be.’ ” Id.{¶ 75} Evid.R. 901(B) provides several examples of authentication or identification
that conform with the rule, including “[d]istinctive characteristics and the like.” Evid.R.
901(B)(4). This subsection of the rule explains that “[a]ppearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in conjunction with the circumstances”
conform with the authentication requirement. Id. For example, “ ‘a letter may be authenticated
by evidence of its distinctive contents such as facts contained in the missive that only the writer
may know.’ ” State v. Brown, 151 Ohio App.3d 36, 2002-Ohio-5207, 783 N.E.2d 539, ¶ 39 (7th
Dist.), quoting State v. Chamberlain, 8th Dist. Cuyahoga No. 58949, 1991 WL 144181, *4 (July
25, 1991). (Other citation omitted.)
{¶ 76} In the case before us, the letter to Turner was unsigned, but Turner claimed that
he knew the letter was from Wynn, based on its distinctive contents. Specifically, Turner
testified that the letter’s greeting, “What’s up brother,” was the way that he and Wynn had
greeted each other since they were eight years old. He also indicated that the letter referred to
“Nicky,” which was the name of Wynn’s girlfriend. In addition, the letter referred to the offense
30
involved in the case, and stated that the writer had led the police to Turner’s wrong address after
his arrest. Only Wynn would know this information.
{¶ 77} Turner also testified that the letter had been hand-delivered to him in jail by
Wynn’s cell mate. The content of the letter and the circumstances under which it was delivered,
therefore, show a sufficient foundation for attributing authorship to Wynn. Accordingly, the
letter was properly authenticated.
2. The Timing of the Letter’s Disclosure Was Not Either Willful or Prejudicial.
{¶ 78} Crim.R. 16(B)(1) requires the prosecution to disclose any written or recorded
statements by a defendant or a co-defendant that the State possesses or that are reasonably
available to the State. All parties also have a continuing duty to disclose additional materials
they may discover prior to trial. Evid.R. 16(A). “The failure to disclose [such] materials
constitutes a violation of Crim.R. 16.” State v. Dotson, 2d Dist. Clark No. 97-CA-0071, 1997
WL 822694, *6 (Nov. 21, 1997).
{¶ 79} “[A] trial court has discretion in determining a sanction for a discovery
violation.” (Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986
N.E.2d 971, ¶ 33. In exercising its discretion, the trial court should consider: “(1) whether the
failure to disclose was a willful violation of Crim.R. 16, (2) whether foreknowledge of the
undisclosed material would have benefitted the accused in the preparation of a defense, and (3)
whether the accused was prejudiced.” Id. at ¶ 35, citing State v. Parson, 6 Ohio St.3d 442, 453
N.E.2d 689 (1983), syllabus.
{¶ 80} According to the record, the State disclosed the letter to Wynn the same day that
31
it was received by the State. The record, thus, indicates that the State did not act willfully in
failing to earlier disclose the letter. See State v. Summerall, 10th Dist. Franklin No. 03AP-1024,
2004-Ohio-6599, ¶ 36 (concluding that the State’s failure to timely disclose photographs was not
a willful violation of the discovery rules, because the prosecutor immediately turned them over to
the defense upon learning that they were available).
{¶ 81} The record also does not reveal that the late disclosure prejudiced Wynn.
Wynn claims that he was prejudiced because he had little or no opportunity to prepare an
adequate defense with respect to the letter. However, after the defense received the letter on
February 2, 2012, it had three full days to prepare before trial started on February 6, 2012. The
State also did not use the letter at trial until February 9, 2012. As a result, defense counsel knew
about the letter for almost a week before it became necessary to address it at trial. Even if we
were to decide that this amount of time was insufficient to prepare an adequate defense, Wynn
has not shown that the trial result would have differed if he had received earlier notice. As was
noted, the letter was properly authenticated, and Wynn was free to argue that Turner and the
letter were not believable. Therefore, Wynn’s argument that the late disclosure prejudiced him
has no merit.
3. The State Was Not Required to Establish Chain of Custody.
{¶ 82} “ ‘A chain of custody is part of the authentication and identification mandate set
forth in [Evid.R. 901], and the state has the burden of establishing the chain of custody of a
specific piece of evidence before it can be admitted at trial.’ ” State v. Ayers, 2d Dist.
Montgomery No. 25563, 2013-Ohio-5337, ¶ 10, quoting State v. Rodriguez, 6th Dist. Wood No.
32
WD-05-026, 2006-Ohio-2121, ¶ 16. However, this “duty is not absolute.” Id., citing
Rodriguez at ¶ 17. “A chain is needed only when an item is by nature fungible and
indistinguishable, having no unique characteristics, like a pill.” State v. Wiley, 2d Dist. Darke
No. 2011-CA-8, 2012-Ohio-512, ¶ 12, citing State v. Gunner, 6th Dist. Lucas No. L-06-1385,
2008-Ohio-1857, ¶ 16.
{¶ 83} A chain of custody is established for such an item so that it can be shown that
the item is authentic and has not “ ‘been tampered with or altered from its original form.’ ”
Wiley at ¶ 12, citing State v. Bowling, 8th Dist. Cuyahoga No. 93052, 2010-Ohio-3595, ¶ 32.
“This may be accomplished through direct testimony or by inference.” Gunner at ¶ 17, citing
State v. Conely, 32 Ohio App.2d 54, 60, 288 N.E.2d 296 (3d Dist. 1971).
{¶ 84} The handwritten letter in this case is not by nature fungible, nor is it
indistinguishable from other similar objects. The letter has distinctive content and attributes;
therefore, it is not the kind of evidence that requires the State to establish a chain of custody.
However, Turner did testify about the letter’s chain of custody. Turner claimed that the letter
had been delivered to him in jail by Wynn’s cell mate, and that he gave the letter to his defense
attorney thereafter. The record also indicates that Turner’s attorney disclosed the letter to the
State. After reviewing the letter on the stand, Turner identified the letter as the one he had
received in jail, and there is nothing in the record about the letter’s condition to indicate that it
had been tampered with or had been altered from its original form. Accordingly, Wynn’s chain
of custody argument is without merit.
{¶ 85} Based on the preceding discussion, Wynn’s Second Assignment of Error is
overruled.
33
IV. Third Assignment of Error
{¶ 86} Wynn’s Third Assignment of Error is as follows:
Appellant Received Ineffective Assistance of Counsel From his Trial
Attorney.
{¶ 87} Under this assignment of error, Wynn argues that his trial counsel was
ineffective in failing to discuss the letter with him prior to trial. Wynn also argues that his
counsel was ineffective because he failed to request a trial continuance after receiving late notice
of the letter. Wynn contends that a continuance would have allowed counsel to better prepare a
defense against the claim that Wynn was the author of the letter.
{¶ 88} We review alleged instances of ineffective assistance of trial counsel under the
two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989). Pursuant to these cases, in order to reverse a conviction
based on ineffective assistance of counsel, a defendant first “must show that counsel's
representation fell below an objective standard of reasonableness.” Strickland at 688. Second,
“[t]he defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Furthermore, “[b]ecause of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
34
circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689,
quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
{¶ 89} In order to assess this issue, we begin with Wynn’s claim that defense counsel
failed to discuss the letter with him prior to trial. Even if we were to decide that counsel’s
conduct fell below an objective standard of reasonableness, Wynn has not demonstrated that the
result of the trial would have been any different had his counsel discussed the letter with him.
Nothing in the record indicates that Wynn had information about the letter that would have
changed counsel’s defense strategy. Furthermore, discussing the letter with Wynn would not
have altered the fact that a substantial amount of evidence, both video and testimonial, supported
the conviction.
{¶ 90} The second claim of alleged ineffective performance pertains to trial counsel’s
failure to request a trial continuance. As with other trial matters, the decision whether to request
a trial continuance is debatable, and involves a strategic choice of counsel that falls “within the
realm of trial strategy and tactics that will not ordinarily be disturbed on appeal.” State v.
Warner, 8th Dist. Cuyahoga No. 95750, 2012-Ohio-256, ¶ 11, citing State v. Pasqualone, 121
Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, and State v. Frazier, 115 Ohio St.3d 139,
2007-Ohio-5048, 873 N.E.2d 1263. “Debatable trial tactics generally do not constitute a
deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643(1995), citing State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).
{¶ 91} If Wynn’s counsel believed that he needed a continuance, he could have
requested one before the start of trial. We will not second-guess counsel’s trial strategy, but
conclude, instead, that counsel had reasons for not requesting a continuance. The record also
35
reveals that Wynn’s counsel appeared sufficiently prepared to proceed, as he presented multiple
arguments for the letter’s exclusion, and the letter was, in fact, excluded. Finally, Wynn does
not indicate how the trial result would differ if counsel had asked for, and had received, a
continuance.
{¶ 92} For the foregoing reasons, Wynn’s Third Assignment of Error is overruled.
V. Fourth Assignment of Error
{¶ 93} Wynn’s Fourth Assignment of Error states as follows:
The Trial Court Erred When It Allowed a Juror to Serve at the Trial When
It Had Inappropriate Contact During the Trial with a State’s Detective.
{¶ 94} Under this assignment of error, Wynn argues that the trial court should have
further investigated a situation in which a juror had an outside communication with a detective
while using a public restroom in the court building. A trial witness was also present in the
restroom with the detective.
{¶ 95} “When a trial court learns of an improper outside communication with a juror, it
must hold a hearing to determine whether the communication biased the juror.” (Citations
omitted.) Phillips, 74 Ohio St.3d at 88, 656 N.E.2d 643. “[T]rial courts are granted broad
discretion in dealing with the contact and determining whether to declare a mistrial or to replace
an affected juror.” (Citations omitted.) Id. at 89. “A trial court is permitted to rely on a juror's
testimony in determining that juror's impartiality.” State v. McKnight, 107 Ohio St.3d 101,
2005-Ohio-6046, 837 N.E.2d 315, ¶ 191, citing State v. Herring, 94 Ohio St.3d 246, 259, 762
N.E.2d 940 (2002).
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{¶ 96} In McKnight, the trial court questioned a juror in chambers after the prosecution
reported that the juror had allegedly been engaging in improper outside communications about
the case. Id. at ¶ 189. The juror explained himself during questioning, and afterward, defense
counsel stated that he was satisfied with the juror's explanation. Defense counsel also indicated
that no further inquiry into the allegation was needed. Id. at ¶ 189-190. Under these
circumstances, the Supreme Court of Ohio held that the trial court did not abuse its discretion in
failing to take further action on the matter. Id. at ¶ 192.
{¶ 97} The present case is analogous to McKnight. Here, after learning of the outside
communication, the trial court questioned the juror in chambers with counsel present. During
questioning, the juror indicated that he had made “small talk” with the detective, but that it had
nothing to do with the case. Transcript of Proceedings, Vol. III, p. 468, ln. 7-8. The juror also
indicated that he was unaware that the other gentleman in the restroom was a witness. Id. at p.
468, ln. 2-6. Both the State and defense counsel stated that they were satisfied with the juror’s
explanation, and the trial resumed. Because the trial court questioned the juror to the
satisfaction of both counsel, the trial court did not abuse its discretion by failing to further
investigate the matter.
{¶ 98} Wynn’s Fourth Assignment of Error is overruled.
VI. Fifth Assignment of Error
{¶ 99} Wynn’s Fifth Assignment of Error is as follows:
The Trial Court Erred to the Prejudice of the Appellant When It Did Not
Add to the Jury Instruction the Charge of Involuntary Manslaughter.
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{¶ 100} Under this assignment of error, Wynn argues that the trial court abused
its discretion in refusing to instruct the jury on involuntary manslaughter, with an underlying
offense of misdemeanor assault, as a lesser-included offense of complicity to commit felony
murder, with the underlying offense of felonious assault.
{¶ 101} “The question of whether a particular offense should be submitted to the
finder of fact as a lesser included offense involves a two-tiered analysis.” (Citation omitted.)
State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6. “The first tier, also
called the ‘statutory-elements step,’ is a purely legal question, wherein we determine whether one
offense is generally a lesser included offense of the charged offense.” Id., citing State v. Kidder,
32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987).
{¶ 102} “The second tier looks to the evidence in a particular case and
determines whether ‘ “ a jury could reasonably find the defendant not guilty of the charged
offense, but could convict the defendant of the lesser included offense.” ’ ” Id., quoting State
v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13. “[A] charge on the lesser
offense is required ‘only where the evidence presented at trial would reasonably support both an
acquittal of the crime charged and a conviction upon the lesser included offense.’ ” State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 192, quoting State v. Thomas,
40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus.
{¶ 103} “The trial court must view the evidence in the light most favorable to the
defendant when deciding whether to instruct the jury on a lesser included offense.” Trimble at ¶
192, citing State v. Campbell, 69 Ohio St.3d 38, 47-48, 630 N.E.2d 339 (1994). “The
lesser-included-offense instruction is not warranted every time ‘some evidence’ is presented to
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support the lesser offense.” Id., quoting State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272(1992). “Rather, a court must find ‘sufficient evidence’ to ‘allow a jury to reasonably reject the
greater offense and find the defendant guilty on a lesser included (or inferior degree) offense.’
(Emphasis sic.)” Id., quoting Shane at 632–633.
{¶ 104} In the case before us, the State concedes that involuntary manslaughter is
a lesser-included offense of felony murder. See State’s Brief, p. 24, citing State v. Lynch, 98
Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 79. Therefore, the first tier is satisfied,
and we need not consider it further. Accord State v. Miller, 2d Dist. Montgomery No. 25504,
2013-Ohio-5621, ¶ 26.
{¶ 105} Concerning the second tier, we must decide whether the jury could
reasonably find Wynn not guilty of complicity to commit murder, but guilty of complicity to
commit involuntary manslaughter. Wynn argues that the proof in this situation would be that
Wynn aided Turner by committing assault, which is a misdemeanor. In contrast, the State
makes two arguments: (1) that the witnesses’ frame-by-frame description of Wynn’s active
participation with Turner in every aspect of the assault, other than the pulling of the trigger,
eliminates any idea that Wynn was unaware that Turner had brought a gun to what was supposed
to be a simple assault; and (2) if the defense theory were true, the misdemeanor assault that
Wynn says he committed is entirely independent of the felonious assault that Turner committed,
and did not contribute to Beans’ death.
{¶ 106} We agree with the State. R.C. 2903.04 (B), which contains the
elements of involuntary manslaughter, states that:
No person shall cause the death of another or the unlawful termination of
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another's pregnancy as a proximate result of the offender's committing or
attempting to commit a misdemeanor of any degree, a regulatory offense, or a
minor misdemeanor other than a violation of any section contained in Title XLV
of the Revised Code that is a minor misdemeanor and other than a violation of an
ordinance of a municipal corporation that, regardless of the penalty set by
ordinance for the violation, is substantially equivalent to any section contained in
Title XLV of the Revised Code that is a minor misdemeanor.
{¶ 107} As was previously noted, no evidence was presented at trial (or was
found in Turner’s video interview), indicating that Wynn was unaware that Turner had a gun.
Moreover, the evidence that was presented would not permit a jury to reasonably reject the
greater offense of complicity to commit felony murder. Instead, the evidence demonstrates that
Wynn knowingly aided and abetted Turner in the murder. The video shows Wynn stepping in to
punch Beans after Turner already had trained his gun on Beans. Turner was also struggling to
get the gun away from Beans when Wynn punched Beans for the second time. Accordingly, the
video, combined with the testimony in this case, indicates that Wynn knowingly assisted Turner
in committing the felonious assault that proximately resulted in Beans’ death.
{¶ 108} Even if one accepts the theory that Wynn asserts, Wynn’s actions in
assaulting Turner twice had no connection with the felonious assault with the gun, and did not
proximately result in Beans’ death. There is no evidence that Wynn’s two-punch assault
proximately caused Beans’ death. If the jury believed Wynn’s defense, it would have acquitted
Wynn of complicity to murder Beans; it would not have found Wynn guilty of involuntary
manslaughter. A jury instruction on involuntary manslaughter, therefore, would not be
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appropriate, because Beans died as a proximate result of being shot by Turner, rather than from
Wynn’s two-punch assault.
{¶ 109} Because the trial court did not err in failing to include involuntary
manslaughter as a lesser-included offense, the Fifth Assignment of Error is overruled.
VII. Conclusion
{¶ 110} All of Antonio L. Wynn’s five assignments of error having been
overruled, the judgment of the trial court is affirmed.
.............
FROELICH, P.J., and HALL, J., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram
Enrique G. Rivera-Cerezo
Antonio L. Wynn
Hon. Frances E. McGee