State v. Washington , 2014 Ohio 4178 ( 2014 )

[Cite as State v. Washington, 2014-Ohio-4178.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-130213
TRIAL NO. B-1107595B
Plaintiff-Appellee, :
vs. : O P I N I O N.
BRENDAN WASHINGTON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 24, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} Defendant-appellant Brendan Washington appeals from the
judgment of the Hamilton County Common Pleas Court convicting him, after a no-
contest plea, of two aggravated murders and other related offenses. Washington and
three others killed Rudell Englemon and then killed Carrielle Conn, one of their
group, to ensure her silence. Washington was 15 years old when he committed these
offenses. Raising three assignments of error, Washington contends that the juvenile
court erred in transferring jurisdiction to the common pleas court, that statements
he made to police detectives should have been suppressed, and that his trial counsel
was ineffective. We disagree, and affirm the judgment below.
The Englemon Killing
{¶2} On October 14, 2011, Washington and the 17-year-old Conn,
accompanied by minors Dequantez Nixson and Tyshawn Barker,1 went to a Cincinnati
apartment intending to shoot its occupant, Samuel Jeffries. Jeffries had sworn out a
complaint against Nixson’s mother, Lakeshia Prince, for felonious assault and
domestic violence. At Nixson’s urging, the group planned to shoot Jeffries in
retaliation. Nixson and Barker waited in the hallway while Washington knocked on
the door to summon Jeffries. But instead of Jeffries, Englemon answered the door.
Conn shot Englemon. As the group fled, Nixson told them that they had shot the
wrong man. Englemon survived for one week.
A Second Killing to Silence Conn
{¶3} Nixson learned that Conn had told Jeffries of their involvement in
killing Englemon. Concerned that Conn would “snitch” to the police, on October 16,
2011, Nixson called Conn to lure her to a deserted train track near Victory Parkway in
Cincinnati. Nixson told police that Washington then shot Conn with his .22-caliber
1 We affirmed Barker’s convictions in State v. Barker, 1st Dist. Hamilton No. C-130214, 2014-Ohio-
3245.
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OHIO FIRST DISTRICT COURT OF APPEALS
revolver and passed the gun around to the group to fire additional shots into Conn’s body.
Washington claimed that Nixson had fired the first shot and that when the gun was passed
to him, Washington tried to shoot the fallen Conn but the revolver failed to fire. Nixson
was later found with Conn’s red and black cellular telephone in his possession.
{¶4} Nixson’s mother, who was at the apartment where Englemon was
shot, identified Conn as one of the individuals involved in the first shooting. Nixson
was brought in for questioning and admitted his involvement. He also confirmed
Barker’s and Washington’s participation in the shootings.
The Transfer and Trial Court Proceedings
{¶5} The surviving perpetrators were soon apprehended. Washington was
found in a derelict Avondale apartment building. During a two-hour interrogation
by Cincinnati police detectives Kurt Ballman and Terry McGuffey, Washington
admitted his role in the killings. His confession was recorded electronically and
preserved by a DVD recording. The police filed a delinquency complaint including
charges of murder against Washington in juvenile court on October 24, 2011.
{¶6} The juvenile court conducted a discretionary-transfer proceeding and
found that there was probable cause to believe Washington had committed the
charged crimes. An evaluation assessing Washington’s amenability to rehabilitation
in the juvenile system was prepared by clinical psychologist Dr. Kathleen Hart. The
court heard the arguments of counsel and reviewed the evaluation and the evidence
before it. On November 30, 2011, the juvenile court ordered that Washington be
transferred to the jurisdiction of the common pleas court.
{¶7} The grand jury returned a multiple-count indictment against
Washington, Barker, and Nixson. Washington moved to suppress his statements to
the police. Following the common pleas court’s denial of the motion, Washington
entered pleas of no contest to all the charges. The trial court accepted his pleas and
found him guilty of the aggravated murder and aggravated robbery of Englemon and
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Conn, the accompanying specifications, and multiple counts of tampering with
evidence. It imposed an aggregate sentence of 25 years’ to life imprisonment.
The Juvenile Court Properly Transferred Jurisdiction
{¶8} In his first assignment of error, Washington argues that the juvenile court
erred in transferring jurisdiction over his case to the common pleas court. He challenges
both the juvenile court’s determination that probable cause existed to believe that
Washington had committed the charged acts, and its determination that Washington was
not amenable to care or rehabilitation within the juvenile system.
{¶9} Discretionary Transfer. Juvenile courts possess “exclusive
jurisdiction” over delinquent children who commit acts that would constitute crimes if
committed by an adult. In re M.P., 124 Ohio St. 3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶
11, citing R.C. 2151.23(A)(1). But more than 40 years ago, this court recognized that the
juvenile court system may not be able
to protect the public in those cases where rehabilitation appears
unlikely and circumstances indicate that if the charge is ultimately
established society would be better served by the criminal process by
reason of the greater security which may be achieved or the deterring
effect which that process is thought to accomplish.
In re Mack, 22 Ohio App. 2d 201, 203, 260 N.E.2d 619 (1st Dist.1970).
{¶10} R.C. 2151.12 permits juvenile courts to transfer certain juveniles to adult
court to face criminal sanctions. There are two types of transfers under Ohio’s juvenile
scheme: mandatory and discretionary. See State v. D.W., 133 Ohio St. 3d 434, 2012-Ohio-
4544, 978 N.E.2d 894, ¶ 10. A juvenile court has discretion to transfer, or bind over, to an
adult court, juvenile offenders who have committed felony-level offenses, who are at least
14 years of age, who do not appear to be amenable to care or rehabilitation within the
juvenile system, and who appear to be a threat to public safety. See D.W. at ¶ 10; see also
R.C. 2152.10(B) and 2152.12(B); Juv.R. 30(C).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} A juvenile court’s order granting transfer is not immediately appealable.
As here, any errors alleged in the transfer proceeding must be raised in an appeal from the
subsequent judgment of the adult court. See In re Becker, 39 Ohio St. 2d 84, 314 N.E.2d
158 (1974); see also State v. Wilson, 73 Ohio St. 3d 40, 44, 652 N.E.2d 196 (1995).
{¶12} The Probable-Cause Determination. A discretionary-transfer
proceeding has two components: a probable-cause determination and an amenability
determination. See In re A.J.S., 120 Ohio St. 3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶
38; see also State v. Whitterson, 1st Dist. Hamilton No. C-110207, 2012-Ohio-2940, ¶ 19.
When, as here, the state has sought discretionary transfer, the juvenile court must first
determine if the juvenile offender is at least 14 years of age and whether probable cause
exists to believe that the juvenile committed the acts charged. See R.C. 2152.12(B)(1) and
(2).
{¶13} To establish probable cause, the state must provide credible evidence of
every element of the charged offense. The state must produce evidence that raises more
than a mere suspicion of guilt, but it need not provide evidence proving guilt beyond a
reasonable doubt. See A.J.S. at ¶ 42 and 46; see also In re Moore, 1st Dist. Hamilton Nos.
C-090576, C-090577 and C-090578, 2010-Ohio-3991, ¶ 22; In re D.S., 1st Dist. Hamilton
No. C-130094, 2013-Ohio-4565, ¶ 6. Because a juvenile court’s probable-cause
determination involves questions of both fact and law, an appellate court defers to the
juvenile court’s determinations regarding witness credibility, but reviews de novo its legal
conclusion as to whether the state presented sufficient evidence to demonstrate probable
cause to believe that the juvenile committed the acts charged. See A.J.S. at ¶ 51.
{¶14} Here, to establish probable cause for the aggravated murders charged in
this case, the state had the burden to provide credible evidence that Washington had
purposely, and with prior calculation and design, engaged in conduct that caused the
deaths of Englemon and Conn. See R.C. 2903.01(A). Because the other charged offenses
were committed during the same course of conduct, the juvenile court had the authority to
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OHIO FIRST DISTRICT COURT OF APPEALS
transfer the entire case pursuant to R.C. 2152.12(I) once it found sufficient probable cause
to warrant transfer of the aggravated-murder charges to the adult court, and found that
Washington was amenable to transfer.
{¶15} Washington challenges the juvenile court’s determination that the state
had demonstrated probable cause. He contends that there was no physical evidence, nor
were there independent witnesses, linking Washington to the crimes, and that the state
had relied too heavily upon the testimony of his codefendants.
{¶16} But the state adduced ample, credible evidence on each element of the
offenses, including Washington’s own statements to police detectives, demonstrating that
Washington, standing next to Conn, had knocked on the door to gain access to Jeffries’
apartment when Conn shot Englemon. He admitted that the group had planned to shoot
Jeffries as payback for signing a criminal complaint against Nixson’s mother. Washington
admitted that he was with Nixson and Barker when they lured Conn onto the train tracks.
He admitted that the group had used his .22-caliber revolver to shoot Conn. Finally, he
admitted that he had tried to shoot her. The state met its burden to establish probable
cause.
{¶17} The Amenability Determination. If, as here, the juvenile court
determines that probable cause exists, it must continue the proceeding for an
investigation, including a mental examination of the juvenile offender. See R.C.
2152.12(C); Juv.R. 30(C). The court must then hold a hearing to determine whether the
child is amenable to care or rehabilitation within the juvenile system and whether the
safety of the community may require that the child be subject to adult sanctions. See R.C.
2152.12(B)(3).
{¶18} In reaching its amenability determination, the juvenile court is required to
consider certain statutory factors and decide whether the factors in favor of transfer
outweigh the factors indicating that the case should remain in juvenile court. See R.C.
2152.12(B)(3). R.C. 2152.12(D) lists the factors in favor of transferring jurisdiction, while
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OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2152.12(E) lists the factors in favor of retaining jurisdiction. In addition to the
enumerated factors listed in those statutes, the juvenile court is instructed to consider “any
other relevant factors.” R.C. 2152.12(D) and (E). The juvenile court must ensure that the
record of its determination “indicate[s] the specific factors that were applicable and that
the court weighed.” R.C. 2152.12(B)(3).
{¶19} Unlike the probable-cause determination, “an amenability hearing is a
broad assessment of individual circumstances and is inherently individualized and fact-
based.” M.P., 124 Ohio St. 3d 445, 2010-Ohio-599, 923 N.E.2d 584, at ¶ 14. Therefore, a
reviewing court will not reverse the juvenile court’s amenability determination unless the
court has abused its discretion. See id., citing A.J.S., 120 Ohio St. 3d 185, 2008-Ohio-5307,
897 N.E.2d 629, at ¶ 39 and 40; see also Barker, 1st Dist. Hamilton No. C-130214, 2014-
Ohio-3245, at ¶ 7 and 8 (using the abuse-of-discretion standard of review where the
juvenile-appellant challenges only the court’s amenability determination).
{¶20} Here, Washington claims the amenability determination was flawed
because the juvenile court “only considered” four of the 19 statutory factors—each of the
four supporting transfer. He argues that the court failed to consider factors against
transfer. See, e.g., R.C. 2152.12(E)(3), (5), and (6). The juvenile justice system, he argues,
would provide “the last hope” for his rehabilitation, and the juvenile court’s focus on the
severity of the crimes skewed its weighing of the factors.
{¶21} Following the amenability hearing, the juvenile court determined that
Washington was not amenable to rehabilitation within the juvenile justice system and that
a transfer to the common pleas court was appropriate. The court stated that it had
reviewed the detailed, six-page evaluation of Washington prepared by Dr. Hart, and all
other evidence before it.
{¶22} The juvenile court found that the complaint alleged Washington had
committed acts that would be punishable as felonies if committed by an adult, and that
Washington was 15 years old at the time of the acts charged. See R.C. 2152.12(B)(1) and
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OHIO FIRST DISTRICT COURT OF APPEALS
(2). It next considered the statutory factors in favor of and against transfer. See
2152.12(B)(3). It found four factors in favor of transfer: that Washington had used a
firearm in both murders, that the second murder was carried out to silence “a witness to
the first homicide,” that Washington was emotionally, physically, and psychologically
mature enough for transfer, and that there was not sufficient time to rehabilitate him
within the juvenile system. See R.C. 2152.12(B)(3) and 2152.(D)(5), (8), and (9). The
court found no applicable factors against transfer and concluded that the applicable
factors in favor of transfer outweighed any factors against. Therefore, the court found that
there were reasonable grounds to believe that Washington was not amenable to care or
rehabilitation within the juvenile system and that the safety of the community required
adult sanctions. See R.C. 2152.12(B)(3).
{¶23} Contrary to Washington’s assertion, the juvenile court’s entry indicates
that it considered each of the statutory factors. In accordance with R.C. 2152.12(B)(3), the
court identified only “the specific factors that were applicable and that the court weighed,”
both in its entry and in its pronouncement at the amenability hearing. Where there is no
statutory requirement that the juvenile court separately identify factors that are not
applicable, it does not err if it fails to do so, as long as it has indicated, in the record, the
factors that it weighed in favor of or against transfer.
{¶24} At the time of the amenability hearing, Washington was 16 years old. Dr.
Hart found that he understood the nature and severity of his situation. She found him
alert, well oriented, rational and coherent. Her evaluation found no mental- or physical-
health issues that would preclude transfer to the adult system. The juvenile court doubted
whether Washington’s “relatively short time frame” remaining in the juvenile system was
sufficient for rehabilitation commensurate with his participation in a double homicide, the
second of which was done to prevent a witness from testifying against him.
{¶25} Washington had had numerous prior contacts with the juvenile justice
system. He had been adjudicated delinquent ten times in the previous two years for
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OHIO FIRST DISTRICT COURT OF APPEALS
offenses including theft, receiving stolen property, and possession of a counterfeit
controlled substance. He had refused to participate in the court’s most recent
rehabilitation programs. And he had been “on the run,” supporting himself and living a
transient life in the months previous to the murders.
{¶26} As required by R.C. 2152.12(B)(3), the record indicates “the specific
factors that were applicable and that the court weighed,” and the reasons for transfer. See
Juv.R. 30(G). Based on the record, the juvenile court properly complied with all the
requirements for discretionary transfer. The juvenile court’s amenability determinations
are amply supported by the record and evince a sound reasoning process. See State v.
Morris, 132 Ohio St. 3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, citing AAAA Ents.,
Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St. 3d 157, 161, 553 N.E.2d
597 (1990). The court did not abuse its discretion. The first assignment of error is
overruled.
Washington’s Confession Was Voluntary
{¶27} In his second assignment of error, Washington contends that the trial
court erred in denying his motion to suppress his statements made to police detectives.
Washington argues that, despite signing a waiver-of-rights form, he did not voluntarily
and knowingly waive his right to remain silent under Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Washington now argues that his young age and
limited experience with the criminal justice system, his lack of sleep, the absence of family
members available to him during questioning, and police trickery prevented him from
knowingly waiving that right.
{¶28} We review a trial court’s ruling on a motion to suppress in a two-step
process. First, we must accept the trial court’s findings of historical fact if they are
supported by competent, credible evidence. See State v. Burnside, 100 Ohio St. 3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Then this court must make an independent
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OHIO FIRST DISTRICT COURT OF APPEALS
determination, as a matter of law, without deference to the trial court’s legal conclusions,
whether those facts meet the applicable constitutional standards. See id.
{¶29} The state bears the burden of demonstrating by a preponderance of the
evidence that Washington’s waiver of rights and statement were voluntary. See State v.
Leonard, 104 Ohio St. 3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 32; see also State v.
Cedeno, 192 Ohio App. 3d 738, 2011-Ohio-674, 950 N.E.2d 582, ¶ 17 (1st Dist.). The state
sought to discharge that burden by relying on a recently enacted statute, R.C. 2933.81,
effective July 6, 2010. To encourage the police to record the custodial interrogation of
suspects accused of homicide or serious sex offenses, the General Assembly has provided
that when the police make “an audio and visual recording that is an authentic, accurate,
unaltered record” of the interrogation, the suspect’s statements made during the
interrogation are “presumed to be voluntary.” R.C. 2933.81(A)(3) and (B). Pursuant to
the statute, the suspect then has “the burden of proving that [his] statements * * * were
not voluntary.” R.C. 2933.81(B).
{¶30} Here, police detectives made a DVD recording of their custodial
interrogation of Washington, who was then a suspect in the investigation of two
aggravated murders. Detective Ballman testified at the motion-to-suppress hearing that
the DVD recording was a fair and accurate record of the interrogation. The DVD disc and
transcript were admitted into evidence. The state also offered Washington’s waiver-of-
rights form into evidence. Detective Ballman testified that after he had explained each of
his rights to him, Washington signed the waiver-of-rights form and agreed to answer
questions. We note that Washington first signed the waiver form as Jeremy Neely, a false
name that he had originally given to the detectives. He subsequently signed the form as
Brendan Washington. Detective Ballman then briefly testified that that he had no reason
to believe that Washington had not voluntarily waived his rights. The state rested.
{¶31} Washington’s trial counsel then extensively cross-examined Detective
Ballman, attempting to highlight factors indicating that Washington had not voluntarily
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OHIO FIRST DISTRICT COURT OF APPEALS
waived his rights. Whether a juvenile has voluntarily, knowingly, and intelligently waived
his Miranda rights and answered police questioning may be inferred from the totality of
the circumstances surrounding the waiver, including the age, mentality, and prior criminal
experience of the accused, the length, intensity, and frequency of interrogation, and the
existence of physical deprivation or inducement. See In re Watson, 47 Ohio St. 3d 86, 548
N.E.2d 210 (1989), paragraph one of the syllabus; see also Leonard, 104 Ohio St. 3d 54,
2004-Ohio-6235, 818 N.E.2d 229, at ¶ 32. We note that Washington did not challenge the
constitutionality of R.C. 2933.81 in the trial court, and he has not raised the issue here.
{¶32} On cross-examination, Detective Ballman testified that he and Detective
McGuffey had questioned Washington from 4:48 a.m. until just before 7:00 a.m. on
October 20, 2011. While Washington was sleeping on chairs in the interview room when
the detectives arrived, Washington remained fully awake during the ensuing questioning.
Washington acknowledged that he could read and write, and that he was not under the
influence of alcohol or drugs, before signing the waiver-of-rights form. He was given a
snack to eat and was offered drink and the opportunity to use a bathroom during the
questioning.
{¶33} There was ample competent, credible evidence adduced at the hearing to
support the trial court’s conclusion, announced orally on June 13, 2012, that Washington
had been properly advised of his rights prior to making his statements and that he had
knowingly waived those rights. A signed waiver form is “strong proof” of the validity of the
waiver. State v. Moore, 81 Ohio St. 3d 22, 32, 689 N.E.2d 1 (1998). Washington never
asked to speak to an attorney or to family members before or during questioning. While
Washington was only 15 years old, his age, by itself, does not render his waiver
involuntary. See Watson, 47 Ohio St. 3d at 89, 548 N.E.2d 210 (holding a 14-year-old
aggravated-murder suspect’s statements to be voluntary); see also State v. Tibbs, 1st Dist.
Hamilton No. C-100378, 2011-Ohio-6716 (holding a 15-year-old aggravated-murder
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OHIO FIRST DISTRICT COURT OF APPEALS
suspect’s statements to police to be voluntary). And Washington was not a neophyte in
dealings with law enforcement and the juvenile court.
{¶34} Finally, there is no evidence of police coercion or overreaching during the
interrogation. Washington did not appear to be cowed by the police questioning. He
engaged the detectives and responded to their questions in a logical manner. The
detectives’ statements that if he did not tell the truth, they could not help him were more
akin to an admonition to tell the truth than a promise of possible benefits and were not
improper. See, e.g., State v. Dixon, 101 Ohio St. 3d 328, 2004-Ohio-1585, 805 N.E.2d
1042.
{¶35} Under the totality of the circumstances surrounding the questioning, it is
clear that Washington did not rebut the presumption, established by the DVD recording,
that he had been properly advised of his Miranda rights and that he understood those
rights when he signed the waiver form and answered the detectives’ questions. Based
upon the evidence presented, we hold that the trial court was justified in denying
Washington’s motion. The second assignment of error is overruled.
Trial Counsel Was Not Ineffective
{¶36} Finally, Washington argues that he was denied the effective assistance of
counsel when his trial counsel failed to challenge Dr. Hart’s evaluation at the amenability
hearing, failed to obtain his own psychological expert, and failed to call family members or
friends to testify about Washington’s lack of maturity.
{¶37} To prevail on his claim of ineffective assistance of trial counsel,
Washington must first show that trial counsel’s performance was deficient, and second,
that the deficient performance was so prejudicial that he was denied a reliable and
fundamentally fair proceeding. See Strickland v. Washington 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Lockhart v. Fretwell, 506 U.S. 364, 369-370,
113 S. Ct. 838, 122 L. Ed. 2d 180 (1993); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d
373 (1989), paragraph three of the syllabus.
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{¶38} Here, Washington’s experienced trial counsel cogently argued to the
juvenile court that the mental-health evaluation supported a number of factors arguing
against transfer to the adult court, including that Washington had cooperated with the
police, that he had not been the principal actor in either murder, that he had been under
the sway and influence of Nixson, and that Washington’s prior delinquency adjudications
had been for relatively minor offenses and had not required rehabilitation at a residential
facility. He also argued that there was ample time to rehabilitate the then 16-year-old
Washington in the juvenile system, and that the Department of Youth Services could
provide reasonable assurances of public safety.
{¶39} The record is silent as to whether other evidence favorable to Washington
existed. Washington had been homeless for several months before the murders. He had
had a troubled relationship with his mother and had not seen his father in three years. A
trial counsel’s decision whether to call witnesses falls within the rubric of trial strategy and
will not be second-guessed by a reviewing court. See State v. Treesh, 90 Ohio St. 3d 460,
490, 739 N.E.2d 749 (2001), citing State v. Williams, 74 Ohio App. 3d 686, 695, 600
N.E.2d 298 (8th Dist.1991). Moreover, Washington’s family and emotional difficulties
were fully detailed in Dr. Hart’s evaluation. See State v. Whitterson, 1st Dist. Hamilton
No. C-110207, 2012-Ohio-2940, ¶ 27-28. Washington has thus failed to establish that
counsel’s performance was deficient or that any alleged deficiency deprived him of a fair
hearing. The third assignment of error is overruled.
{¶40} Therefore, the judgment of the trial court is affirmed.
Judgment affirmed.
FISCHER and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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