State v. Hunter , 2013 Ohio 3459 ( 2013 )

[Cite as State v. Hunter, 2013-Ohio-3459.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25164
Plaintiff-Appellee :
: Trial Court Case No. 2009-CR-4069/2
v. :
:
STEFOUN HUNTER : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of August, 2013.
...........
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, 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
MELISSA REPLOGLE, Atty. Reg. #0084215, Replogle Law Office, LLC, 2312 Far Hills
Avenue, #145, Dayton, Ohio 45419
Attorney for Defendant-Appellant
.............
FAIN, P.J.,
{¶ 1} Defendant-appellant Stefoun D. Hunter appeals from his conviction and sentence
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for Having Weapons While Under a Disability, Possession of Cocaine, Possession of Heroin, and
Possession of Marijuana, along with firearm specifications. Hunter contends that the trial court
erred on remand when it denied his motion to suppress evidence of firearms discovered in
between the box springs and mattress of his bed during a police search of his residence.
Specifically, Hunter contends that the trial court erred by taking judicial notice of the testimony
of Sergeant Adkins, who testified at a suppression hearing in another proceeding involving
Hunter’s co-defendant, Jaytron Cooper. Hunter also contends that he received ineffective
assistance of trial counsel due to his counsel’s failure to object to the trial court’s decision to take
judicial notice of Sergeant Adkins’s testimony.
{¶ 2} We conclude that the trial court erred by taking judicial notice of testimony
presented at a suppression hearing in another proceeding, but that this error was harmless because
virtually identical testimony was presented at Hunter’s trial. We further conclude that Hunter
has failed to demonstrate ineffective assistance of trial counsel. Accordingly, the judgment of
the trial court is Affirmed.
I. Course of the Proceedings
{¶ 3} This case is before us for a second time. A full recitation of the underlying facts
is set forth in State v. Hunter, 2d Dist. Montgomery No. 24350, 2011-Ohio-6321. Some of those
facts are as follows.
{¶ 4} At 6:53 p.m. on December 2, 2009, Montgomery County 911 Dispatch received
a call from someone who stated he heard six gunshots and saw three black males run into 5150
Northcutt Place. Less than 20 minutes later, the 911 Dispatch received a call from Shawn
Parker, who stated that his son had sent him a text message claiming that the son was being held
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against his will at 5150 Northcutt Place.
{¶ 5} Montgomery County Sheriff’s Deputy Anthony Hutson was one of the officers
who responded to 5150 Northcutt. Parker explained to Dispatch that his son also told him via
text message that the son could see the responding police officers outside and that the son was in
a closet upstairs. Officer Hutson looked up at the second story bathroom window and observed
a male stick out his head and then close the window.
{¶ 6} After police knocked on the door for several minutes, a male opened the door,
observed the officers, and then tried to close the door. The officers then entered the residence,
secured the individuals inside, and conducted a search through the residence looking for a victim
of the reported robbery or abduction. Officers then performed a secondary search to look for the
potential victim. The secondary search involved looking in closets and under the bed for the
reported victim. Upstairs, while apparently attempting to look underneath a bed, an officer
discovered firearms between the bed’s mattress and box springs. The officers also discovered
drugs during the searches.
{¶ 7} Hunter was arrested and charged by indictment with three counts of Possession of
Cocaine, one count of Possession of Heroin, one count of Possession of Marijuana, and three
counts of Having Weapons While Under a Disability. The drug charges all included firearm
specifications. Hunter moved to suppress the evidence obtained from the residence, contending
that it was obtained as the result of an unlawful search and seizure. Following a hearing, his
motion was denied.
{¶ 8} Following a jury trial, Hunter was convicted of all charges and specifications, and
was sentenced accordingly. From his conviction and sentence, Hunter appealed to this Court.
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We affirmed Hunter’s convictions for Possession of Cocaine, Heroin, and Marijuana, and
reversed Hunter’s convictions for Having Weapons While Under a Disability and his conviction
for firearm specifications. We remanded the cause to the trial court for re-determination of the
suppression motion with respect to the weapons. We stated, at ¶ 40-42:
We conclude that the evidence in the record of the suppression hearing,
even when viewed in a light most favorable to the State, is too sparse to support
the trial court’s finding that the firearms were found under a bed. Detective Reed
did testify that firearms were found in an area where a person could be hidden, but
it appears that this was by report, not within his personal knowledge, and the
conclusion that the firearms were found in an area where a person could be hidden
does not affirmatively establish where the firearms were found. The only
reasonable conclusion that we can draw from the sparse evidence at the
suppression hearing was that the firearms were found between the mattress and the
box springs.
We conclude, therefore, that the trial court erred when it found that the
firearms were found under a bed. We cannot determine that this error is harmless.
Since we conclude that the trial court should have found, based on the evidence at
the suppression hearing, that the weapons were found between the mattress and
the box springs, it remained for the trial court to find whether their discovery in
that location was inadvertent. That conclusion is suggested, but not commanded,
by Deputy Hutson’s testimony that the firearms were found in that location “when
attempting to check under a bed.”
[Cite as State v. Hunter, 2013-Ohio-3459.]
Because we conclude that the trial court committed an error that we cannot
determine to have been harmless, in its decision denying the motion to suppress
the evidence of the firearms, we will reverse the convictions that depend upon that
evidence, and remand this cause for further proceedings on that aspect of the
suppression motion. (Emphasis added.)
{¶ 9} On remand, the trial court issued a “Partial Decision, Order and Entry Upon
Remand; Clarification of Factual Findings on Suppression Issues.” In its decision, the trial court
summarized the testimony from Hunter’s trial, including the testimony of Sergeant Dan Adkins.
The court also summarized and quoted the testimony of Sergeant Adkins from a suppression
hearing in the proceeding involving Jaytron Cooper, Hunter’s co-defendant. The trial court then
stated:
To factually clarify the record as requested by the Second District Court of
Appeals, the Court finds the testimony of Sergeant Adkins at the motion to
suppress hearing credible. His testimony establishes the following facts and the
Court makes the following factual findings. During a secondary sweep, Sergeant
Adkins lifted both the box springs and the mattress to look for a person under the
bed. Adkins lifted both the box springs and the mattress from the bed frame.
The exact space between the floor and the bottom of the box spring is unknown,
but approximated by the Court from the testimony and photographs to be between
four and eight inches. That space is sufficient to hide a person, particularly a
youth. The box springs slipped from Sergeant Adkins’ grip. Due to that
inadvertent slippage, the box springs fell to the bed frame but the mattress flipped
up. At that point, Sergeant Adkins observed the Derringer, which happened from
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the inadvertent slip of the box springs and the mattress flipping up. Sergeant
Adkins then pulled up the mattress to observe the total of four weapons under the
mattress. He then dropped the mattress, and again he lifted the box springs and
mattress together to determine that no person was under the bed.
The Court does not find that the weapons were found under the bed.
Rather, the Court finds that the weapons were found between the mattress and box
springs. That discovery, occurred, however, as both the mattress and box springs
were lifted to look under the bed and the box springs then slipped and fell.
Sergeant Adkins lost his grip, inadvertently causing the mattress to separate from
the box springs and revealing the Derringer. Only at that point did Sergeant
Adkins intentionally pull up the mattress to observe a total of four guns which
included the SKS assault rifle.
Dkt. 19, p. 5-6.
{¶ 10} The trial court then made the following request of the parties:
The Court requests that the parties within fourteen (14) days, submit
simultaneous briefs on the narrow factual scenario presented, that is, whether
evidence obtained during a secondary sweep in the course of an exigent
circumstances entry and search is subject to suppression when the evidence comes
into plain view due to inadvertence on the part of the police officers conducting
the safety sweep.
Id. at 6.
{¶ 11} The parties submitted briefs as requested by the trial court. Hunter’s brief
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contained no objection to the trial court’s decision to take judicial notice of, and rely upon, the
testimony of Sergeant Adkins, which was presented at a suppression hearing in a different
proceeding involving Cooper, Hunter’s co-defendant.
{¶ 12} The trial court subsequently issued a decision overruling Hunter’s motion to
suppress. The court stated, in pertinent part:
Clearly, the cases of the co-Defendants (Stefoun Hunter and Jaytron
Cooper) have the same pertinent facts through the point in time at issue here.
Co-Defendant Jaytron Cooper argued that the exigent circumstances entry,
protective sweep, and plain view seizure of contraband (including the guns under
the mattress) violated his constitutional rights. Those same arguments are now
advanced by co-Defendant Stefoun Hunter. This trial court overruled the
arguments advanced by Jaytron Cooper, and the Second District Court of Appeals
affirmed that ruling in Jaytron Cooper’s case. Moreover, this Court has clarified
its factual findings. It has determined that the guns in the bedroom were plainly
viewed through inadvertence.
Accordingly, this Court, applying the facts, reasoning and holding of the
Second District Court of Appeals in State v. Jaytron Cooper, C.A. Case No.
24321, to the co-Defendant’s identical circumstances, and having previously
clarified that the guns in the bedroom came into plain view through innocent
inadvertence, reaches the same conclusion and overrules Defendant Stefoun
Hunter’s motion to suppress premised upon the same facts and arguments.
Dkt. 25, p. 2.
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{¶ 13} In April 2012, the trial court re-sentenced Hunter on the eight counts on which
the jury had returned guilty verdicts. From this judgment, Hunter appeals.
II. The Trial Court Erred by Taking Judicial Notice of Testimony
from Another Proceeding, but This Error Is Harmless
{¶ 14} Hunter’s First Assignment of Error states:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION TO SUPPRESS.
{¶ 15} In our prior opinion, we directed the trial court to find whether the discovery of
firearms between the bed’s mattress and box springs “was inadvertent. That conclusion is
suggested, but not commanded, by Deputy Hutson’s testimony that the firearms were found in
that location ‘when attempting to check under a bed.’” State v. Hunter at ¶ 41. On remand, the
trial court made no reference to Deputy Hutson’s testimony. Instead, the trial court reviewed the
testimony from the suppression hearing in State v. Jaytron Cooper, Montgomery County Court of
Common Pleas Case No. 2009-CR-4069/1. Sergeant Adkins apparently testified at that hearing
regarding the circumstances under which he discovered the firearms between the bed’s mattress
and box springs.
{¶ 16} In relying upon Sergeant Adkins’s testimony from another proceeding, the trial
court essentially took judicial notice of the testimony from another proceeding. However, “[t]he
trial court could not take judicial notice of information [it] learned in one case and apply that
information to a separate case.” State v. Puda, 6th Dist. Ottawa No. OT-99-028, 1999 WL
1127284, * 4 (Dec. 10, 1999). Indeed, it is well-established in Ohio that trial courts may not
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take judicial notice of their own proceedings in other cases even when the cases involve the same
subject matter. (Citations omitted.) Davis v. Haas, 2d Dist. Montgomery No. 24506,
2011-Ohio-5201, ¶ 19. As we explained in Davis, at ¶ 20:
The rationale for these holdings is that when judicial notice is taken of
prior proceedings, such prior proceedings are not part of the record as defined in
App.R. 9, and whether the trial court correctly interpreted such prior proceedings
is not reviewable by the appellate court.
{¶ 17} The transcript from Jaytron Cooper’s suppression hearing is not in the record
before us. Furthermore, Cooper’s suppression hearing occurred in another proceeding and
Hunter did not have an opportunity to cross-examine Sergeant Adkins at that suppression
hearing. Therefore, the trial court erred in taking judicial notice of Sergeant Adkins’s testimony
from Cooper’s suppression hearing.
{¶ 18} Although the trial court erred by taking judicial notice of the testimony of
Sergeant Adkins from Cooper’s suppression hearing, this does not end our inquiry. When a trial
court overrules a defendant’s motion to suppress evidence, it has the inherent authority to
reconsider its ruling at trial. At Hunter’s trial, Sergeant Adkins testified as follows regarding his
discovery of Hunter’s firearms:
Then I proceeded to the bed. I bent over, hooked my fingers underneath
the box springs to pick the box springs and the mattress up so that I could look
underneath the bed. While doing so, apparently my grip wasn’t very good on the
box spring, it slipped out of my hand. The mattress caught against my arm, my
body; folded up.
[Cite as State v. Hunter, 2013-Ohio-3459.]
I found a small Derringer style pistol. Upon seeing that, I picked the rest
of the mattress up, found an SKS rifle, a pump shotgun and another
semi-automatic pistol. Upon finding those, I put the mattress back down, picked
the box spring and the mattress back up to look underneath, found no one hiding
between the box spring and mattress or obviously underneath.
Tr. 708. Sergeant Adkins later testified, “When I initially dropped the box spring and the
mattress caught on my arm, I saw the Derringer. So, I was like, well, let’s see what else – see if
there’s anybody hiding or find any weapons, see what else they have.” Id. at 712.
{¶ 19} Sergeant Adkins’s trial testimony supports the trial court’s decision to overrule
Hunter’s motion to suppress. The trial transcript is in the record before us.1 Furthermore, the
testimony of Sergeant Adkins at trial appears virtually identical to his testimony quoted by the
trial court from Cooper’s suppression hearing. In addition, Hunter had an opportunity at trial to
cross-examine Sergeant Adkins.
{¶ 20} Although the trial court erred in taking judicial notice of Sergeant Adkins’s
testimony from Cooper’s suppression hearing, we find that this error was harmless. Sergeant
Adkins’s virtually identical testimony at trial was sufficient to support the trial court’s finding
that the discovery of the firearms between the mattress and box springs was inadvertent.
{¶ 21} In this assignment of error, Hunter also argues that the trial court erred in
overruling Hunter’s motion to suppress, because the secondary search leading to the discovery of
the firearms was outside the scope of the protective sweep. In our prior opinion in this matter,
we found that an exigent circumstance justified a warrantless search of the residence, and
1
On April 29, 2013, the State filed a “Motion to Supplement Appellate Record with Hunter’s Trial Transcript Filed in CA 24350.”
We granted the State’s motion.
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remanded the matter solely to determine whether the discovery of the firearms in the location
between the mattress and box sprints was inadvertent. Hunter at ¶ 30, 40-42. The additional
argument by Hunter in this assignment of error is outside the scope of our mandate to the trial
court, and is therefore not properly before us in this appeal.
{¶ 22} Hunter’s First Assignment of Error is overruled.
III. Hunter Has Not Demonstrated Ineffective Assistance of Trial Counsel
{¶ 23} Hunter’s Second Assignment of Error states:
APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
TO OBJECT TO THE TRIAL COURT’S USE OF EVIDENCE NOT
PRESENTED AT HUNTER’S MOTION TO SUPPRESS HEARING.
{¶ 24} A claim of ineffective assistance of trial counsel requires both a showing that trial
counsel’s representation fell below an objective standard of reasonableness, and that the
defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The
prejudice prong requires a finding that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different, with a reasonable
probability being “a probability sufficient to undermine confidence in the outcome.” Id. at 694.
See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶ 25} Hunter contends that his trial counsel was ineffective when he failed to object to
the trial court’s use of evidence from Jaytron Cooper’s suppression hearing to overrule Hunter’s
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motion to suppress. However, as noted in Part II, above, the trial court’s error in taking judicial
notice of testimony from Cooper’s suppression hearing is harmless error because Sergeant
Adkins’s trial testimony established that the discovery of the firearms was inadvertent.
Therefore, Hunter cannot establish that there is a reasonably probability that the result of the
proceeding would have been different if his counsel had objected to the trial court’s use of the
testimony from Cooper’s suppression hearing..
{¶ 26} Hunter’s Second Assignment of Error is overruled.
IV. Conclusion
{¶ 27} Both of Hunter’s assignments of error having been overruled, the judgment of the
trial court is Affirmed.
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HALL, J., concurs.
DONOVAN, J., dissenting:
{¶ 28} I dissent. A trial court cannot set up a “deferred ruling” on a motion to
suppress, based upon trial testimony after the fact. Furthermore, upon remand, the trial court
should not have relied upon testimony from a co-defendant’s separate and distinct pretrial motion
to suppress, wherein Hunter had no ability to cross-examine the key witness to the Fourth
Amendment issue.
{¶ 29} Any examination, later at trial, was focused on the question of guilt, not police
conduct under Crim.R. 12(B)(3). “The pretrial determination of the invocation of the
exclusionary rule is mandatory. Crim.R. 12(B)(3); State v. Davis, 1 Ohio St.2d 28, 203 N.E.2d
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357 (1964).” State v. Hennessee, 13 Ohio App.3d 436, 438, 469 N.E.2d 947 (4th Dist.1984).
{¶ 30} Furthermore, at paragraph 18, the majority suggests that, “When a trial court
overrules a defendant’s motion to suppress evidence, it has the inherent authority to reconsider its
ruling at trial.” If this were true, such reconsideration and the granting of a motion to suppress at
trial would deprive the State of the right to appeal an adverse ruling by placing the defendant
twice in jeopardy.
{¶ 31} I would reverse.
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Copies mailed to:
Mathias H. Heck
Michele D. Phipps
Melissa Replogle
Hon. Mary L. Wiseman