State v. Garvin , 197 Ohio App. 3d 453 ( 2011 )

[Cite as State v. Garvin, 197 Ohio App.3d 453, 2011-Ohio-6617.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
THE STATE OF OHIO, :
:
Appellee, : Case No. 10CA3348
:
v. : Released: December 5, 2011
:
GARVIN, : DECISION AND JUDGMENT
: ENTRY
Appellant. :
APPEARANCES:
Timothy Young, Ohio Public Defender, and Claire R. Cahoon and Terrence
Scott, Assistant Public Defenders, for appellant.
Mark Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Assistant
Prosecuting Attorney, for appellee.
MCFARLAND, Judge.
{¶ 1} Appellant, Kara Garvin, appeals her conviction in the Scioto County
Court of Common Pleas after a jury found her guilty of one count of aggravated
burglary, two counts of aggravated robbery, six counts of aggravated murder with
specifications, tampering with evidence, and a firearm specification. Although this
was originally a capital case, the trial court sentenced appellant to life in prison
without the possibility of parole.
{¶ 2} Appellant raises four assignments of error, arguing that (1) the trial
court erred by failing to suppress eyewitness identifications of her, denying her due
Scioto App. No. 10CA3348 2
process, (2) the trial court erred by failing to change the venue because of pretrial
publicity, denying appellant due process and a fair trial, (3) the trial court erred by
failing to question a juror about her relationship with the county sheriff, denying
appellant due process and a fair trial, and (4) trial counsel provided ineffective
assistance when they failed to inquire further or object to the seating of the juror
who was related to the county sheriff. Having reviewed the record, we find no
merit to appellant’s four assignments of error, and we affirm the trial court’s
judgment.
FACTS
{¶ 3} Edward Mollett, Juanita Mollett, and Christina Mollett were shot to
death on December 22, 2008. A.S., a six-year-old child, was present during the
shooting. According to A.S., a woman with dark hair and a vest containing knives
and guns entered the Molletts’ trailer in Scioto County, Ohio, and began
systematically shooting the Molletts. Christina Mollett lay on top of A.S. to shield
him. Once the shooting ceased, the dark-haired woman took Edward Mollett’s
prescription medication and left. A.S. then ran to a neighbor’s trailer.
{¶ 4} The neighbor, James Damron, called 9-1-1, and law enforcement
arrived. In addition to law enforcement, family members and other neighbors
gathered at Damron’s trailer. Detective Paul Blaine of the Scioto County Sheriff’s
Department began questioning A.S. and Damron.
Scioto App. No. 10CA3348 3
{¶ 5} Damron indicated that he had seen a vehicle drive up to the Molletts’
trailer before the shooting and drive away immediately thereafter. Damron could
not initially identify the driver of the vehicle, other than saying that it was a female
with dark hair.
{¶ 6} A.S. had indicated that a woman with dark hair had shot his family.
Detective Blaine asked additional questions about the shooter’s appearance. To
get a better understanding, Blaine had A.S. compare the physical characteristics of
the shooter to those of the women present at Damron’s trailer. While Blaine was
talking with A.S., other law-enforcement officers began to suspect that appellant
was involved in the shooting.
{¶ 7} A.S.’s mother subsequently transported him to the hospital for an
evaluation, concerned that he might have been going into shock. Detective Blaine
went back to his office and began compiling a photo array. Blaine began with
appellant’s photo, because she was the only suspect at that time. He had access to
appellant’s photo because she had previously been booked into the jail. Blaine then
entered appellant’s physical characteristics into a computer program that gave him
a resulting pool of photos of women whose physical characteristics were similar.
These women had also previously been booked into the jail. Blaine manually
chose five photos similar to appellant’s. The final array contained color photos of
six women, including appellant.
Scioto App. No. 10CA3348 4
{¶ 8} Detective Blaine took the completed array to the hospital to show A.S.
While A.S. was looking at the array on his mother’s lap, his mother began to coax
him to pay attention to the women’s hair. Not wanting A.S.’s identification to be
tainted, Blaine moved A.S. to a corner and continued showing him the photo array.
A.S. identified appellant as the person who shot his family, and he signed his name
on appellant’s photo.
{¶ 9} Later that evening, appellant, with the assistance of counsel,
surrendered to law enforcement. As deputies booked appellant into the Scioto
County jail, they photographed her.
{¶ 10} The following day, Detective Blaine went to speak with Damron
about identifying the person he had seen driving the vehicle away from the crime
scene. Blaine asked Captain David Hall to prepare another photo array to show
Damron. Using the same software that Blaine had employed before, Hall compiled
a second photo array. This array, however, used appellant’s booking photo from
the previous night.
{¶ 11} Before Captain Hall gave the photo array to Detective Blaine, he
asked Damron whether he had been watching the news or had read the paper.
Damron responded that he had not. When Blaine presented the photo array to
Damron, Damron immediately identified appellant’s photo.
Scioto App. No. 10CA3348 5
{¶ 12} When later questioned about how he went from being unable to
identify the driver on the day of the incident to immediately identifying her the day
after, Damron explained that he was familiar with appellant. His daughter had
known appellant for more than 10 years, and Damron had seen appellant at social
gatherings. It was not that he did not remember what the driver of the vehicle
looked like, but Damron was bad with names; he initially stated that he knew the
driver’s face, but not her name. Presented with the photo array, Damron was easily
able to identify the woman he had seen leaving the crime scene: appellant.
{¶ 13} Appellant filed a plethora of pretrial motions. Among these,
appellant moved to suppress A.S.’s and Damron’s identification testimony as
unduly suggestive and unreliable. The trial court held a suppression hearing and
ultimately overruled appellant’s motion. Before the trial court issued its ruling,
appellant withdrew her motion regarding A.S. She later renewed her motion as to
A.S., and the trial court denied it.
{¶ 14} Beginning the day after the shooting, there were news reports
concerning the incident. The shootings were a topic of discussion among county
residents. The news articles relayed the names of the victims, noted that appellant
was the main suspect, noted that appellant was in custody after surrendering
herself, and alleged motives for the shootings. The media also covered pretrial
proceedings and were present during the trial. Several stories were published
Scioto App. No. 10CA3348 6
immediately before trial, noting the impending jury selection and reminding
readers and viewers of the case’s subject matter.
{¶ 15} When the trial began, the court bifurcated the voir dire process.
Initially, the court and counsel inquired of the veniremen individually. There were
preliminary examinations of persons wishing to be excused for medical or
educational reasons. The court then proceeded to inquire of the veniremen about
their qualifications to serve as jurors in a capital trial, as well as the extent of their
exposure to pretrial media and its effect upon their ability to be fair and impartial.
Counsel examined the veniremen, too. Subsequently, the court conducted the
general voir dire, which was performed with groups of veniremen, not
individually.
{¶ 16} During the initial voir dire, the court and counsel examined
approximately 106 veniremen about whether they had read, seen, or heard media
reports about the case. Eighty-five of those veniremen (over 80 percent) responded
that they had. Only seven persons were dismissed for cause because they evinced
a preconceived opinion of appellant’s guilt based upon media reports. Fifty-eight
veniremen remained for the general voir dire, with 45 (over 77 percent) having
been exposed to pretrial media reports concerning the case.
{¶ 17} The remaining 58 veniremen included Miriam Clausing. Clausing
had disclosed on her questionnaire that she was the first cousin of the Scioto
Scioto App. No. 10CA3348 7
County Sheriff. It was the sheriff’s department that had investigated the Molletts’
deaths. The court inquired how close Clausing was to the sheriff, but did not ask
whether her relationship would influence her ability to be fair and impartial.
Appellant’s counsel had an opportunity to question Clausing, but they too did not
question her ability to be fair and impartial and raised no causal challenge. Even
during the general voir dire, appellant’s counsel did not question Clausing’s ability
to be impartial and did not raise a causal challenge. Clausing was eventually
seated on the jury and served as the foreperson during deliberations.
{¶ 18} After the presentation of evidence, the jury found appellant guilty of
aggravated burglary, multiple counts of aggravated robbery, multiple counts of
aggravated murder, tampering with evidence, a firearm specification, and many
other specifications. The jury did not sentence appellant to death, but chose
instead imprisonment for life without the possibility of parole. Appellant now
appeals.
ASSIGNMENTS OF ERROR
I. The pretrial photographic procedure was so unnecessarily
suggestive and conducive to misidentification that Ms. Garvin was denied
the due process of law.
Scioto App. No. 10CA3348 8
II. The trial court violated Ms. Garvin’s constitutional rights to due
process and a fair trial by denying Ms. Garvin a change of venue based on
pretrial publicity.
III. The trial court violated Ms. Garvin’s constitutional rights to due
process and a fair trial by failing to question a juror about whether her
relationship to the county sheriff would affect her ability to be fair and
unbiased.
IV. Trial counsel provided constitutionally ineffective assistance
when counsel failed to question or object to a prospective juror who was the
first cousin of the county sheriff.
I. Pretrial Identification
{¶ 19} In her first assignment of error, appellant argues that the trial court
erred when it permitted A.S. and Damron to testify to their pretrial identification of
appellant. Appellant contends that the pretrial identification procedures were
unnecessarily suggestive and the witnesses’ identifications were unreliable. We
disagree.
A. Standard of Review
{¶ 20} “Appellate review of a motion to suppress presents a mixed question
of law and fact. When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to resolve factual
Scioto App. No. 10CA3348 9
questions and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8, citing State v. Mills (1992), 62
Ohio St.3d 357, 366, 582 N.E.2d 972. “Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent, credible
evidence.” Id., citing State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583.
“Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard.” Id., citing State v. McNamara (1997), 124
Ohio App.3d 706, 707 N.E.2d 539. See also State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 100.
{¶ 21} “Where factual issues are involved in determining a motion, the court
shall state its essential findings on the record.” Crim.R. 12(F). While the trial
court made no explicit factual findings when it denied appellant’s motion to
exclude the testimony of A.S. and Damron, “[t]he extensive record of the
suppression hearing is ‘sufficient to allow full review of the suppression issues.’ ”
State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, at ¶ 96,
quoting State v. Waddy (1992), 63 Ohio St.3d 424, 443, 588 N.E.2d 819, citing
State v. Brewer (1990), 48 Ohio St.3d 50, 60, 549 N.E.2d 491.
Scioto App. No. 10CA3348 10
B. Legal Analysis
{¶ 22} “When a witness has been confronted with a suspect before trial, due
process requires a court to suppress her identification of the suspect if the
confrontation was unnecessarily suggestive of the suspect’s guilt and the
identification was unreliable under all the circumstances.” Waddy at 438, citing
Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, and Manson v.
Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140.
{¶ 23} “Under Neil’s two-pronged test, the first question is whether the
identification procedure was unnecessarily suggestive.” Waddy at 438. A
defendant has “the burden of going forward and the burden of persuasion” to
establish, by a preponderance of the evidence, that a pretrial identification
procedure was unnecessarily suggestive. State v. Greene (Apr. 12, 1979), 4th Dist.
No. 1211, 1979 WL 206802. See also State v. McCroskey, 5th Dist. No.
2007CA89, 2008-Ohio-2534, ¶ 28; State v. Wills (1997), 120 Ohio App.3d 320,
324, 697 N.E.2d 1072; State v. Bauldwin, 8th Dist. No. 94876, 2011-Ohio-1066, at
¶ 36; State v. Justice, 2d Dist. No. 23744, 2010-Ohio-6484, at ¶ 16; State v. Banks,
10th Dist. Nos. 09AP-1087 and 09AP-1088, 2010-Ohio-5714. If the defendant
fails to establish that the pretrial identification was unnecessarily suggestive, our
inquiry ends. Waddy at 439 (continuing to the second prong of the Neil test
because the identification procedure was unnecessarily suggestive). See State v.
Scioto App. No. 10CA3348 11
Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, at ¶ 19
(emphasizing that suppression occurs only with both unnecessary suggestiveness
and unreliability under the totality of the circumstances). See also State v. Ruark,
10th Dist. No. 10AP-50, 2011-Ohio-2225, at ¶ 54; State v. Levingston, 1st Dist.
No. C-090235, 2011-Ohio-1665, at ¶ 8; Bauldwin at ¶ 36. “[A]s long as pretrial
identification procedures are not unduly suggestive, issues concerning the
reliability of that identification [go] to the weight of the evidence, not its
admissibility.” State v. Conley, 4th Dist. No. 08CA784, 2009-Ohio-1848, at ¶ 9,
citing Wills at 324, and McCroskey at ¶ 29.
{¶ 24} “Suggestiveness depends on several factors, including the size of the
array, its manner of presentation, and its contents.” Bauldwin at ¶ 36,citing Wills
at 325. Regarding the array’s contents, courts should consider, amongst other
factors, whether the persons in the array with the defendant “appear relatively
similar in age, features, skin tone, * * * dress, and photo background.” McCroskey
at ¶ 30.
{¶ 25} If the pretrial identification procedure is unnecessarily suggestive, the
second question is “whether, under all the circumstances, the identification was
reliable, i.e., whether suggestive procedures created ‘ “a very substantial likelihood
of irreparable misidentification.” ’ ” Waddy, 63 Ohio St.3d at 439, 588 N.E.2d
819, quoting Neil, 409 U.S. at 198, 93 S.Ct. 375, 34 L.Ed.2d 401, quoting Simmons
Scioto App. No. 10CA3348 12
v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247. “In
evaluating whether the procedure created a very substantial likelihood of
irreparable misidentification, courts should look to the following key factors: (1)
the witness’s opportunity to view (or, in the case of a voice identification, to hear)
the defendant during the crime, (2) the witness’s degree of attention, (3) the
accuracy of the witness’s prior description of the suspect, (4) the witness’s
certainty, and (5) the time elapsed between the crime and the identification.” State
v. Dickess, 4th Dist. No. 06CA3128, 2008-Ohio-39, at ¶ 24, citing Waddy at 439,
citing Neil, 409 U.S. at 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401.
{¶ 26} Here, the pretrial identification procedures were not unnecessarily
suggestive. While the first prong of Neil focused on the procedure that law
enforcement used to obtain the identifications, appellant’s argument is that the
arrays themselves were unnecessarily suggestive because her photos were distinct.
Specifically, appellant argues that the background, the lack of “booking lines,” the
“drastically varied angle,” and the relative size of her photos make them stand out
within the arrays and render the arrays suggestive. We disagree.
{¶ 27} First, the photos in the arrays do not have identical characteristics.
Though they were all taken at the Scioto County Jail, the photos vary by
perspective angle, relative distance from the lens (size), and background color.
Since these characteristics differ amongst the photos, the differences between
Scioto App. No. 10CA3348 13
appellant’s photos and the others do not draw unnecessary attention. Rather, the
fact that appellant’s photos differ from the others actually makes them similar to
the others in the arrays.
{¶ 28} Second, appellant is correct that her photos lack the booking lines in
the background, but this does not make the arrays suggestive. If anything, the lack
of booking lines in appellant’s photos would make her photo seem less
incriminating, because they were devoid of any indication that they were taken
inside a jail. Moreover, when considering the suggestiveness of the array itself,
courts must consider the size of the array, the manner of its presentation, and its
contents — whether the various persons are similar in age, features (including
hair), skin tone, dress, and background.
{¶ 29} Regarding the size of the arrays, each consists of six photos,
including appellant’s. Appellant does not argue, nor do we find, that six photos are
too few. Nor does appellant contend that the other women within the arrays are so
different in age, features, skin tone, or dress as to render the arrays suggestive.
{¶ 30} Third, the manner in which law enforcement presented the arrays to
A.S. and Damron was not suggestive. Detective Blaine initially showed the photo
array to A.S. while he was on his mother’s lap at the hospital. Once A.S.’s mother
started to coax him, Blaine removed A.S. from his mother’s lap and spoke to him
privately, to specifically avoid any suggestiveness. Blaine asked A.S. whether he
Scioto App. No. 10CA3348 14
could identify the woman who shot his family, and A.S. identified appellant’s
photo. That procedure was not suggestive.
{¶ 31} Likewise, Detective Blaine and Captain Hall’s presentation of the
array to Damron was not suggestive. Hall asked whether Damron had watched the
news on television or had seen photos regarding the murders, but Damron assured
him that he had not. Blaine handed the array to Damron and asked whether the
woman he had seen driving the vehicle the night of the murders was within the
array. Damron immediately identified appellant and was quite certain of his
identification. Nothing in this procedure was unnecessarily suggestive, either.
{¶ 32} Thus, we find that the pretrial identification procedures were not
unnecessarily suggestive. Therefore, any issues concerning their reliability go to
their weight, not their admissibility, and we overrule appellant’s first assignment of
error.
II. Change of Venue
{¶ 33} In her second assignment of error, appellant argues that the trial court
erred by denying her motion for change of venue. Specifically, appellant contends
that the extensive pretrial publicity concerning her case influenced the citizens of
Scioto County and made it impossible for her to receive a fair trial. We disagree.
Scioto App. No. 10CA3348 15
A. Standard of Review
{¶ 34} Our standard of review for denial of a motion to change venue is
abuse of discretion. State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787
N.E.2d 1185, at ¶ 23; State v. Fairbanks (1972), 32 Ohio St.2d 34, 37, 289 N.E.2d
352; State v. Berecz, 4th Dist. No. 08CA48, 2010-Ohio-285, at ¶ 30. An appellate
court should reverse a trial court’s decision regarding change of venue only upon a
clear showing of abuse of discretion. State v. Metz (Apr. 21, 1998), 4th Dist. No.
96CA48, 1998 WL 199944, citing State v. Gumm (1995), 73 Ohio St.3d 413, 430,
653 N.E.2d 253. “ ‘The term “abuse of discretion” connotes more than an error of
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’ ” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450
N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d
144. “Under this highly deferential standard of review, we may not simply
substitute our judgment for that of the trial court.” Woody, 4th Dist. No. 09CA34,
2010-Ohio-6049, at ¶ 35, citing In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-
138, 566 N.E.2d 1181. “Rather, we are limited to determining whether considering
the totality of the circumstances, the trial court acted unreasonably, arbitrarily or
unconscionably.” Id., citing Briganti v. Briganti (1984), 9 Ohio St.3d 220, 222,
459 N.E.2d 896, citing Blakemore at 218-220.
Scioto App. No. 10CA3348 16
{¶ 35} However, an appellant’s failure to exhaust his peremptory challenges
waives his ability to later challenge the denial of his motion for change of venue.
State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 61.
As the Supreme Court stated in State v. Conway, “[t]he limited number of defense
challenges for pretrial publicity and the failure to exhaust peremptory challenges
indicate that the defense did not believe that the jury venire was overly exposed to
negative publicity.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848
N.E.2d 810, at ¶ 38 (defense challenged only four of 14 venire members who
indicated that they had heard about the case through media or had learned of the
defendant’s criminal past), citing State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-
2284, 787 N.E.2d 1185, at ¶ 37. Here, because appellant did not exercise all her
peremptory challenges, we review her second assignment of error only for plain
error. State v. Beebe, 4th Dist. No. 10CA2, 2011-Ohio-681, at ¶ 15, citing State v.
McDougald, 4th Dist. No. 07CA3157, 2008-Ohio-1398, at ¶ 16; State v. Tackett,
4th Dist. No. 06CA3103, 2007-Ohio-6620, at ¶ 28.
{¶ 36} “[T]here are ‘three limitations on a reviewing court’s decision to
correct [a waived error]. First, there must be an error, i.e., a deviation from a legal
rule. * * * Second, the error must be plain. To be “plain” within the meaning of
Crim.R. 52(B), an error must be an “obvious” defect in the trial proceedings. * * *
Third, the error must have affected “substantial rights.” [The Supreme Court of
Scioto App. No. 10CA3348 17
Ohio has] interpreted this aspect of the rule to mean that the trial court’s error must
have affected the outcome of the trial.’ ” State v. Lynn, 129 Ohio St.3d 146, 2011-
Ohio-2722, at ¶ 13, quoting State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759
N.E.2d 1240. Regarding the third limitation, “reversal is warranted only when the
outcome of the trial clearly would have been different without the error.” Beebe at
¶ 10, citing State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph
two of the syllabus.
{¶ 37} Yet “[e]ven when all three prongs are satisfied, a court still has
discretion whether or not to correct the error.” Lynn at ¶ 14, citing State v. Noling,
98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 62. Courts are “to notice
plain error ‘ “with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” ’ ” Id. at ¶ 14, quoting Barnes at 27,
quoting Long at paragraph three of the syllabus.
B. Legal Analysis
{¶ 38} “The Sixth Amendment in terms guarantees ‘trial, by an impartial
jury * * *’ in federal criminal prosecutions. Because ‘trial by jury in criminal
cases is fundamental to the American scheme of justice,’ the Due Process Clause
of the Fourteenth Amendment guarantees the same right in state criminal
prosecutions.” Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 551, 96 S.Ct.
2791, 49 L.Ed.2d 683, quoting Duncan v. Louisiana (1968), 391 U.S. 145, 149, 88
Scioto App. No. 10CA3348 18
S.Ct. 1444, 20 L.Ed.2d 491. “In essence, the right to jury trial guarantees to the
criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors * * *. ‘A
fair trial in a fair tribunal is a basic requirement of due process.’ ” Nebraska Press
Assn. at 551, quoting In re Murchison (1955), 349 U.S. 133, 136, 75 S.Ct. 623, 99
L.Ed. 942. “In the ultimate analysis, only the jury can strip a man of his liberty or
his life.” Id.{¶ 39} Crim.R. 18(B) provides, “Upon the motion of any party or upon its
own motion the court may transfer an action * * * when it appears that a fair and
impartial trial cannot be held in the court in which the action is pending.” R.C.
2901.12(K) provides the same.
{¶ 40} “Pretrial publicity can undermine a trial’s fairness.” State v.
Landrum (1990), 53 Ohio St.3d 107, 117, 559 N.E.2d 710. “However, Crim.R.
18(B) does not require a change of venue merely because of extensive pretrial
publicity.” Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, at ¶ 23. “[P]retrial
publicity[,] even pervasive, adverse publicity[,] does not inevitably lead to an
unfair trial.” Nebraska Press Assn., 427 U.S. at 554, 96 S.Ct. 2791, 49 L.Ed.2d
683.
{¶ 41} “It is sufficient if the juror can lay aside his impression or opinion
and render a verdict based on the evidence presented in court.” Irvin v. Dowd
(1961), 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751, citing Spies v. Illinois
Scioto App. No. 10CA3348 19
(1887), 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Holt v. United States (1910), 218
U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; and Reynolds v. United States (1878), 98 U.S.
145, 25 L.Ed. 244. “ ‘[A] careful and searching voir dire provides the best test of
whether prejudicial pretrial publicity has prevented obtaining a fair and impartial
jury from the locality.’ ” Landrum at 117, quoting State v. Bayless (1976), 48 Ohio
St.2d 73, 98, 357 N.E.2d 1035. “[E]ven extensive pretrial publicity may have
dissipated its effects before trial.” Id., citing Murphy v. Florida (1975), 421 U.S.
794, 95 S.Ct. 2031, 44 L.Ed.2d 589.
{¶ 42} Thus, “[a] defendant claiming that pretrial publicity has denied him a
fair trial must show that one or more jurors were actually biased.” Lynch at ¶ 35,
citing State v. Treesh (2001), 90 Ohio St.3d 460, 464, 739 N.E.2d 749. “Only in
rare cases may prejudice be presumed.” Id., citing State v. Lundgren (1995), 73
Ohio St.3d 474, 479, 653 N.E.2d 304, and Nebraska Press Assn., 427 U.S. 539, 96
S.Ct. 2791, 49 L.Ed.2d 683.
{¶ 43} In Irvin, the Supreme Court reversed the defendant’s conviction
because of pretrial publicity and preformed opinions the jury venire possessed.
Irvin, 366 U.S. at 727-729. The trial court excused 268 of 430 veniremen for
having preformed opinions as to the defendant’s guilt. Id. at 727. Even eight of
the 12 seated jurors believed the defendant was guilty, but agreed to set aside their
opinion and hear the evidence. Id. Despite the jurors’ statements under oath that
Scioto App. No. 10CA3348 20
they would remain fair and impartial, the Supreme Court found such an assertion
dubious in light of the strong public sentiment: “The influence that lurks in an
opinion once formed is so persistent that it unconsciously fights detachment from
the mental processes of the average man.” Id.
{¶ 44} Likewise, in Rideau v. Louisiana (1963), 373 U.S. 723, 83 S.Ct.
1417, 10 L.Ed.2d 663, the court reversed a defendant’s conviction when the media
had broadcast a televised “interview” between the sheriff and the defendant, in
which the defendant confessed to the crimes with which he was charged. The trial
court had denied the motion for change of venue, but the Supreme Court, in a
rather brief opinion, “[did] not hesitate to hold, without pausing to examine a
particularized transcript of the voir dire examination of the members of the jury,
that due process of law in this case required a trial before a jury drawn from a
community of people who had not seen and heard Rideau’s televised ‘interview.’ ”
Rideau at 727.
{¶ 45} Conversely, in a case when virtually all the veniremen had been
exposed to pretrial media reports regarding the case, the Supreme Court of Ohio
affirmed the denial of change of venue when no one in the venire could recall
details of the media accounts, they all indicated that the pretrial media would not
influence their opinion, and five months had passed between the initial
proliferation of media accounts and the trial. Landrum, 53 Ohio St.3d at 117, 559
Scioto App. No. 10CA3348 21
N.E.2d 710. See also Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, at ¶ 33-38
(affirming the denial of change of venue when few veniremen recalled details of
the case from the media, none expressed a preformed opinion of the defendant’s
guilt, and the defendant did not challenge any venireman for cause due to pretrial
publicity).
{¶ 46} Here, the news reports were not inflammatory. The articles relayed
only factual information. While there were comments posted on some of the news
publications’ websites, they do not factor into our analysis. The anonymity of the
Internet precludes a finding that such comments showed that appellant could not
receive a fair trial in Scioto County. There is no way of knowing whether any of
the persons who posted comments actually resided in Scioto County. Nor is there
a way of knowing whether each comment was posted by a unique person. Thus,
anonymous comments posted on a website can hardly be used as an accurate gauge
of the public sentiment for an entire county.
{¶ 47} Unlike the situation in Rideau, there was no “spectacle” within the
media accounts. There was nothing that permits us to find that the process was
presumptively prejudicial to appellant. Thus, we look to whether any of the jurors
were actually biased.
{¶ 48} The initial voir dire revealed that the majority of the veniremen who
did recall media accounts about the case were unable to recall specific details.
Scioto App. No. 10CA3348 22
This is an excellent example of the effects of pretrial publicity dissipating before
trial. It had been nearly 18 months between the incident and the trial. If the media
had inflamed the community near the time of the murders, 18 months served well
to squelch such sentiment. Indeed, only seven persons were dismissed from the
entire venire because they had seen some form of pretrial media and were unable
to set aside a preformed opinion of appellant’s guilt. Furthermore, unlike the
situation in Irvin, no one who was seated upon the jury had expressed a preformed
opinion of appellant’s guilt. Therefore, we find that none of the jurors were
actually biased and that pretrial publicity did not deprive appellant of a fair trial.
{¶ 49} Without circumstances demonstrating that the community was
presumptively prejudiced against appellant, and without demonstrating actual bias
amongst the jurors, appellant’s argument falls short, and we find that the trial court
did not abuse its discretion when it denied appellant’s motion to change venue.
With no actual error and no demonstration of prejudice, we find no plain error.
Accordingly, we overrule appellant’s second assignment of error.
III. Voir Dire
{¶ 50} In her third assignment of error, appellant argues that the trial court
denied her due process and a fair trial because it did not question Clausing about
whether her relationship to the Scioto County Sheriff would impede her ability to
be fair and impartial. We find appellant’s argument unpersuasive.
Scioto App. No. 10CA3348 23
A. Standard of Review
{¶ 51} By appellant’s failing to inquire about Clausing’s impartiality and
failing to object to her being seated on the jury, appellant waived all but plain
error.1
B. Legal Analysis
{¶ 52} During the initial voir dire, when the court and counsel spoke with
the veniremen individually, the trial court raised the issue of Clausing’s
relationship with the Scioto County Sheriff. The court inquired how close
Clausing’s relationship was with the sheriff, and she responded that they did not
see each other very often, save the occasional family gathering for Christmas. This
seemed to satisfy the court that Clausing’s relationship with the sheriff would not
influence her, as the court proceeded to discuss her view of the death penalty.
{¶ 53} Appellant contends, “The failure to question [Clausing] about that
relationship prejudiced [appellant], because [Clausing] was seated as a juror and
became the jury forewoman.” The flaw in appellant’s argument is that she has
failed to demonstrate how the outcome of her trial would have been different had
the trial court inquired further. The mere fact that Clausing was ultimately placed
on the jury does not establish prejudice. Appellant has provided no evidence that
1
See plain-error standard of review, supra.
Scioto App. No. 10CA3348 24
Clausing was biased or prejudiced against her or that her presence on the jury
affected the trial’s outcome.
{¶ 54} To the contrary, Clausing disclosed that she had served as an
alternate juror on a capital case once before and appreciated how emotional and
serious a task it was. Her view on the death penalty had “mellowed,” and she felt
that “the [accused] has the right to a fair trial and to be heard, and for a decision to
be made based on fairness.”
{¶ 55}With no showing that Clausing’s presence on the jury affected the
trial’s outcome, we find no plain error and overrule appellant’s third assignment of
error.
IV. Ineffective Assistance of Counsel
{¶ 56} In her fourth assignment of error, appellant argues that her trial
counsel failed to question Clausing on her relationship with the county sheriff and
failed to object to her sitting on the jury, which amounted to ineffective assistance
of counsel. We disagree.
A. Standard of Review
{¶ 57} “In order to establish ineffective assistance of counsel, an appellant
must show that counsel’s representation was both deficient and prejudicial.” State
v. Michael, 4th Dist. No. 09CA887, 2010-Ohio-5296, at ¶ 15, citing In re Sturm,
4th Dist. No. 05CA35, 2006-Ohio-7101, at ¶ 77; Strickland v. Washington (1984),
Scioto App. No. 10CA3348 25
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. “Deficient representation
means counsel’s performance was below an objective standard of reasonableness.
To show prejudice, an appellant must show it is reasonably probable that, except
for the errors of his counsel, the proceeding’s outcome would have been different.”
(Citations omitted.) Michael at ¶ 15. “ ‘Failure to satisfy either prong is fatal as
the accused’s burden requires proof of both elements.’ ” State v. Weddington, 4th
Dist. No. 10CA19, 2011-Ohio-1017, at ¶ 12, quoting State v. Hall, 4th Dist. No.
07CA837, 2007-Ohio-6091, at ¶ 11, citing State v. Drummond, 111 Ohio St.3d 14,
2006-Ohio-5084, 854 N.E.2d 1038, at ¶ 205.
{¶ 58} We “ ʻmust 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 circumstances, the challenged
action might be considered sound trial strategy.’ ” State v. Hankison, 4th Dist. No.
09CA3326, 2010-Ohio-4617, at ¶ 105, quoting Strickland at 689. “ ‘Moreover, the
strategic decision of a trial attorney will not form the basis of a claim of ineffective
assistance of counsel, even if there may have been a better strategy available.’ ”
Hankison at ¶ 105, quoting State v. Komora (Apr. 4, 1997), 11th Dist. No. 96-G-
1994, 1997 WL 184758, citing State v. Clayton (1980), 62 Ohio St.2d 45, 49, 402
N.E.2d 1189.
B. Legal Analysis
Scioto App. No. 10CA3348 26
{¶ 59} “ ‘The conduct of voir dire by defense counsel does not have to take a
particular form, nor do specific questions have to be asked.’ ” State v. Davis, 116
Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 61, quoting State v. Evans
(1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042. “ ‘[C]ounsel is in the best
position to determine whether any potential juror should be questioned and to what
extent.’ ” Davis at ¶ 61, quoting State v. Murphy (2001), 91 Ohio St.3d 516, 539,
747 N.E.2d 765.
{¶ 60} Here, appellant’s claim fails for two reasons. First, her counsel was
vested with the discretion to decide what questions to ask the jury venire. Because
appellant’s counsel had no obligation to ask particular questions, it follows that
there was no error when her counsel exercised its strategic discretion and did not
ask particular questions of Clausing.
{¶ 61} Second, as with appellant’s third assignment of error, she has failed
to demonstrate prejudice. Appellant concedes, “Because defense counsel did not
question Ms. Clausing about her relationship with the county sheriff during voir
dire, there is no way to know to what extent that relationship affected Ms.
Clausing’s deliberations.” That is, there is simply no way to know whether
Clausing’s presence on the jury prejudiced appellant. Consequently, appellant
cannot demonstrate that the outcome of her trial would have been different if her
Scioto App. No. 10CA3348 27
trial counsel had posed additional questions to Clausing or objected to her being on
the jury.
{¶ 62} Without demonstrating an actual error or prejudice, appellant’s claim
of ineffective assistance of counsel fails. Accordingly, we overrule appellant’s
fourth assignment of error.
Judgment affirmed.
HARSHA, P.J., and KLINE, J., concur.
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