State v. Pulley ( 2013 )

[Cite as State v. Pulley, 2013-Ohio-1624.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120444
TRIAL NO. B-1105552
Plaintiff-Appellee, :
vs. : O P I N I O N.
ERIKA PULLEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 24, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
DEWINE, Judge.
{¶1} Erika Pulley was convicted of trafficking in marijuana and sentenced
to three years of community control. In this appeal, she raises the following
arguments in challenge to her conviction: (1) she was denied her Sixth Amendment
right to counsel when the trial court refused to appoint new counsel on the day of
trial, (2) her conviction was based in part on the testimony of witnesses who had
violated the court’s separation order, (3) the state violated the rules of discovery by
failing to timely disclose a drug lab report, (4) a police officer was improperly
allowed to testify about her silence following her arrest, (5) the trial court improperly
denied her motion to suppress, and (6) the evidence of her guilt was insufficient. She
also contends that her sentence was contrary to law because the trial court failed to
advise her concerning the potential of postrelease-control supervision. We find none
of these arguments to be persuasive, and affirm the judgment of the trial court.
{¶2} According to evidence adduced at her trial, Ms. Pulley was the
passenger in a car that police officers stopped because it was following another car
too closely. When Officers Scott Hughes and Matt Wilcher approached the car, they
detected a very strong odor of raw marijuana. Ms. Pulley and the driver were asked
to exit from the car, and were placed in separate police cruisers. A search of the car
uncovered only small “crumbs” of marijuana, which according to Officer Hughes,
could not have caused the strong odor that the officers had detected. The driver of
the car was searched, and no drugs were found on him. Upon returning to the
cruiser where Ms. Pulley had been placed, Officer Wilcher again smelled a strong
aroma of marijuana. Officer Katie Long was called to conduct a search of Ms. Pulley.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} Officer Long found two stacks of money in Ms. Pulley’s bra and two
large bundles of what appeared to be marijuana in her crotch area. During the
search, Ms. Pulley was verbally combative with Officer Long and generally
uncooperative. After the search was completed, Officer Hughes undertook a count of
the money and announced that there was approximately $4500 present. Ms. Pulley
volunteered that it was $5000, and that the money came from a Columbus hair salon
she owned and the sale of 2004 Dodge car. Officer Wilcher was unable to verify the
existence of either the business or the car.
{¶4} Upon returning to the police station, Officer Hughes weighed both
bundles and found that they totaled 91 grams. One of the bundles was later
analyzed by the crime laboratory and found to consist of 42 grams of marijuana.
{¶5} Ms. Pulley was indicted for trafficking in marijuana in an amount less
than 200 grams, a felony of the fifth degree. She moved to suppress evidence
discovered during the search of her person and statements that she had made to the
officers prior to being informed of her Miranda rights. The trial court denied the
motion to suppress, and the case was tried before a jury. The jury returned a guilty
verdict, and the trial court imposed the community-control sentence.
{¶6} In her first assignment of error, Ms. Pulley asserts that the trial court
erred by failing to advise her about the possibility of postrelease-control supervision
and the attendant penalities for violation of the terms of postrelease control. A court
is required to inform a defendant about postrelease-control supervision “if the
sentencing court determines at the sentencing hearing that a prison term is
necessary or required.” R.C. 2929.19(B)(2); see also State v. Russell, 5th Dist. No.
06 CA 12, 2006-Ohio-4450, ¶ 26. Here, because the trial court did not impose a
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OHIO FIRST DISTRICT COURT OF APPEALS
prison term, there was no need to provide any notification relating to postrelease
control. The first assignment of error is overruled.
{¶7} Ms. Pulley argues in her second assignment of error that the trial
court abused its discretion when it denied her request for new counsel. On the first
day of trial, Ms. Pulley made an oral motion to have a new attorney appointed. She
expressed displeasure that her attorney had filed a tardy motion to suppress and that
her attorney’s preparation for the trial had suffered due to a broken arm. The trial
court inquired about the attorney’s state of preparedness and noted that although the
motion to suppress had been filed late, it would be heard prior to the start of the
trial. Other than the issue with the filing of the motion to suppress, Ms. Pulley did
not explain why she believed her counsel was not ready to proceed. Moreover,
nothing in her colloquy with the trial court demonstrated that there had been a
complete breakdown in communication between her and her counsel. See State v.
Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001); State v. Gordon, 149 Ohio
App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135 (1st Dist.). Accordingly, the trial
court did not abuse its discretion in refusing to appoint new counsel. We overrule
the second assignment of error.
{¶8} Ms. Pulley’s next assignment of error is that that the trial court erred
by failing to sanction the state’s police witnesses for violating the court’s separation
order. A hearing on Ms. Pulley’s motion to suppress was held prior to jury selection.
At that time, the trial court issued a separation order for all witnesses. At the end of
jury selection on the following day, Ms. Pulley told the court that she had seen
Officers Hughes, Wilcher, and Long discussing the case. The officers acknowledged
that they had discussed Officer Long’s testimony about her search of Ms. Pulley. The
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OHIO FIRST DISTRICT COURT OF APPEALS
assistant prosecuting attorney professed that she had not been aware that the officers
had discussed the case, and the officers explained that they had been under the
impression that the separation of witnesses was for purposes of the motion to
suppress. The court explained that the separation order applied not only to the
motion hearing but to the entire trial, and proceeded to conduct a detailed inquiry of
the officers as to what had been discussed. After hearing from the officers, the court
determined that the discussion between the officers would not impact their trial
testimony. Defense counsel did not make any specific motion for a mistrial or
exclusion of witnesses, but instead made a generic request that “sanctions be
imposed against the state and their witnesses.” The trial court denied the request.
{¶9} We do not believe the trial court made any error in this regard. The
remedy for the violation of a separation order is generally within the sound
discretion of the trial court. State v. Taylor, 1st Dist. No. C-020475, 2004-Ohio-
1494, ¶ 32. Before the court may exclude a witness, there must be a demonstration
that the party calling the witness “consented to, connived in, procured or had
knowledge of the witness’ disobedience.” State v. Smith, 49 Ohio St.3d 137, 142, 551
N.E.2d 190 (1990). Here no such demonstration was made, and the trial court
acted within its discretion in its handling of the matter. The third assignment of
error is overruled.
{¶10} In her fourth assignment of error, Ms. Pulley argues she was deprived
of a fair trial due to prosecutorial misconduct. Specifically, she contends that the
assistant prosecutor violated Crim.R. 16 by failing to disclose the state’s entire
laboratory report prior to trial. The record does not support this assertion. One of
the two bundles that Ms. Pulley was arrested with was analyzed by the crime
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OHIO FIRST DISTRICT COURT OF APPEALS
laboratory and found to consist of 42 grams of marijuana. The record is perfectly
clear that this laboratory report—the only laboratory report that was prepared—was
provided to the defense prior to trial.
{¶11} Ms. Pulley’s real objection seems to be that Officer Hughes was
allowed to testify that the two bundles together weighed 91 grams based upon his
having weighed them at the station despite the fact that the crime lab only weighed
and analyzed one of the bundles. Officer Hughes did not prepare a report, and
there is nothing in Crim.R. 16 that required the state to notify Ms. Pulley that Officer
Hughes had weighed the marijuana. Moreover, it is clear from the record that the
marijuana packages were available to Ms. Pulley’s counsel prior to trial, and she had
ample opportunity to weigh the evidence. We overrule the fourth assignment of
error.
{¶12} In the fifth assignment of error, Ms. Pulley asserts that the trial court
impermissibly allowed Officer Wilcher to testify as to Ms. Pulley’s exercise of her
constitutional right to remain silent. Specifically, she complains that Officer Wilcher
was allowed to testify that she initially didn’t answer when he asked how much
money she had. A review of the record, however, reveals that Ms. Pulley never
invoked her right to remain silent. Ms. Pulley was quite vocal—in fact, she
repeatedly insulted Officer Long—during the search of her body. When the cash was
discovered, she apparently did not respond when asked how much money was
present. But later, after the money was counted, she volunteered an account of
where the money came from. A defendant’s invocation of her right to remain silent
must be unequivocal. State v. Murphy, 91 Ohio St.3d 516, 520, 747 N.E.2d 765(2001), citing Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d
6OHIO FIRST DISTRICT COURT OF APPEALS
362 (1994). In these circumstances, it is evident that she did not invoke her right to
remain silent, and nothing precluded the state from offering Officer Wilcher’s
narrative of the investigation following the stop of the car. The fifth assignment of
error is overruled.
{¶13} Ms. Pulley asserts in the sixth assignment of error that the trial court
erred when it overruled her motion to suppress. She maintains that the search of her
person was illegal, and that the trial court should not have admitted testimony about
her statements to police officers because she had not been Mirandized at the time of
the statements.
{¶14} The police officers had probable cause to search the car based on the
strong smell of raw marijuana emanating therefrom. State v. Steadman, 1st Dist.
No. C-110751, 2012-Ohio-3135. As a passenger of the car with no expectation of
privacy in the car, Ms. Pulley had no standing to contest the car’s search. See State v.
Seay, 1st Dist. No. C-040763, 2005-Ohio-5964. When Officer Wilcher continued to
smell the strong scent in the cruiser where Ms. Pulley was waiting during the search
of the car, probable cause existed to search her.
{¶15} Ms. Pulley contends that all the statements that she made to the
officers should have been suppressed. But none of her statements were in response
to questioning by the police officers. Rather, she made unprompted remarks during
Officer Long’s body search, and volunteered an explanation of the source of the
money after it had been counted. We conclude that the trial court did not err in
overruling the motion to suppress. The sixth assignment of error is overruled.
{¶16} Ms. Pulley’s final assignment of error is that her conviction was based
on insufficient evidence and was against the manifest weight of the evidence. She
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OHIO FIRST DISTRICT COURT OF APPEALS
argues that, at most, she should have been convicted of possession because the
marijuana was for her personal use. But the evidence offered by the state—including
the amount of the marijuana, the large amount of money, and the way in which Ms.
Pulley had hidden the bundles—was sufficient to support a conviction for trafficking.
See State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). And having
reviewed the record, we are unable to conclude that the jury lost its way in finding
Ms. Pulley guilty of the offense. Id. at 387. The seventh assignment of error is
overruled, and we affirm the judgment of the trial court.
Judgment affirmed.
HENDON, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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