State v. Wilson , 2010 Ohio 2947 ( 2010 )

[Cite as State v. Wilson, 2010-Ohio-2947.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO, CASE NO. 1-09-53
PLAINTIFF-APPELLEE,
v.
DEVONNE J. WILSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2009 0101
Judgment Affirmed
Date of Decision: June 28, 2010
APPEARANCES:
Michael J. Short, for Appellant
Jana E. Emerick, for Appellee
Case No. 1-09-53
WILLAMOWSKI, P.J.,
{¶1} Defendant-Appellant, Devonne Wilson, (“Wilson”), appeals the
judgment of the Allen County Court of Common Pleas finding him guilty of two
counts of aggravated robbery. Wilson contends that he was denied effective
assistance of counsel; that the trial court should have allowed his appointed
counsel to withdraw; and that the jury verdict forms contained an error. For the
reasons set forth below, the judgment is affirmed.
{¶2} On May 9, 2009, two masked men robbed a Chase Bank at gunpoint,
escaping with almost three thousand dollars. Eleven days later, three masked men
robbed a Superior Federal Credit Union branch, brandishing guns and ordering the
customers to get down on the ground. The robbers escaped with nearly sixteen
thousand dollars in cash but, as they were leaving, they were spotted by two
customers outside the bank who realized what was happening and attempted to
pursue the robbers. The customers phoned the police and provided the license
plate number of the escape vehicle.
{¶3} The police found the abandoned vehicle nearby and were able to
trace the rented car to Wilson’s girlfriend. The girlfriend originally stated the
vehicle had been stolen. However, after further questioning, she admitted that her
car had not been stolen, but that Wilson had been driving it all day and had
ordered her to report it as stolen. The police also searched Wilson’s mother’s
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residence and found guns used in the robbery, work gloves identical to those worn
by the perpetrators during the robberies, and half-burnt clothing matching that
worn by the perpetrators.
{¶4} The police were able to apprehend Wilson and the others implicated
in the two robberies. On May 14, 2009, the Allen County Grand Jury returned a
five count indictment charging Wilson with two counts of aggravated robbery, two
counts of abduction, and one count of kidnapping, all with a firearm specification.
Wilson entered a plea of not guilty and the trial was set for August 31, 2009. Prior
to trial, the prosecution dismissed three of the counts, leaving the two aggravated
robbery offenses, in violation of R.C. 2911.01(A)(1), with firearm specifications.
{¶5} On August 13, 2009, Wilson’s court-appointed counsel filed a
motion asking for the trial court’s permission to withdraw from the case due to “a
serious conflict of personalities.” After a hearing on the matter, the trial court
denied the motion.
{¶6} On August 24, 2009, defense counsel filed a notice of alibi, which
included the names of three potential alibi witnesses who would allegedly testify
that Wilson was somewhere else at the time of the robberies. The State objected
to their testimony, claiming that it had not received the alibi notice until August
27, 2009, in violation of Crim.R. 12.1, and that the names of the witnesses had not
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been provided as part of Crim.R. 16 discovery.1 The trial court ruled that the alibi
witnesses would be permitted to testify, provided the State was given an
opportunity to interview the witnesses prior to trial. The State and the supposed
alibi witnesses did not meet and, therefore, the trial court did not permit them to
testify.
{¶7} At trial, the jury heard testimony from numerous witnesses,
including Wilson’s girlfriend, Raelishia McWay, who testified in detail how
Wilson had gone to check out the bank beforehand; had left with his gun on the
day of the robbery and returned to the apartment with a large amount of money in
a plastic bag matching the one used in the robbery; that he had borrowed the get-
away car used in the second robbery and then instructed her to report it stolen; that
Wilson’s cell phone number matched that of the phone found in that car; that
Wilson’s gun was the same as the gun used in both of the robberies; and that he
had admitted to her that he had robbed the banks.
{¶8} Raylon Hardy testified that he had assisted Wilson and Maurice
Graves in robbing the Superior Federal Credit Union; that each of them was
assigned a role in the robbery; that Graves was to hop the counter just as he had
done the “last time” (referring to the robbery of the Chase Bank); that Graves had
borrowed Hardy’s gun to use in the Chase robbery; and that the three of them, plus
1
Crim.R. 12.1 requires a defendant who proposes to offer testimony to establish an alibi to file and serve
written notice upon the prosecuting attorney not less than seven days before trial. Crim.R. 16 pertains to
discovery disclosure, including witness names and addresses.
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the get-away driver, executed the robbery, made their escape, split up the money,
and then left the guns and masks at Wilson’s mother’s home.
{¶9} Phone records and computer records further corroborated the
communication between the participants concerning the robberies, and police
officers testified to finding Wilson’s cell phone in the get-away car and to finding
the guns and other evidence at Wilson’s mother’s home. After a three-day trial,
the jurors found Wilson guilty of both counts of aggravated robbery, with the
firearm specifications.
{¶10} On September 8, 2009, the trial court sentenced Wilson to ten years
in prison for each of the two robberies, which were first-degree felonies, and three
years for each of the firearm specifications, with all sentences to be served
consecutively, for a total of twenty-six years in prison. It is from this judgment
that Wilson appeals, raising the following three assignments of error for our
review.
First Assignment of Error
The Defendant was denied effective assistance of Counsel.
Second Assignment of Error
The trial court erred in not permitting the withdraw[al] of court
appointed counsel.
Third Assignment of Error
The trial court erred in providing an erroneous verdict form to
the jury.
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{¶11} In the first assignment of error, Wilson claims that he was denied
effective assistance of counsel because defense counsel failed to timely file a
notice of alibi in accordance with Crim.R. 12.1, and he did not furnish the names
of the alibi witnesses to the State as part of Crim.R. 16 discovery. Even so, the
trial court was still going to allow the alibi witnesses to testify if defense counsel
made the witnesses available for the State to interview at the courthouse, either by
5:00 p.m. on August 31, 2009, or at 8:00 a.m. the following morning. Wilson
claims that trial counsel failed to do so, thereby denying the opportunity for the
jury to hear alibi testimony that would have produced reasonable doubt.
{¶12} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel's performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole, 92 Ohio St.3d 303, 306, 2001-Ohio-191, 750 N.E.2d 148, citing
Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674. Moreover, “[j]udicial scrutiny of counsel's performance is to be highly
deferential, and reviewing courts must refrain from second-guessing the strategic
decisions of trial counsel.” State v. Sallie, 81 Ohio St.3d 673, 674, 1998-Ohio
343, 693 N.E.2d 267. “To justify a finding of ineffective assistance of counsel,
the appellant must overcome a strong presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.” Id. In
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establishing whether counsel's performance was deficient, the defendant must
show that “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Kole, 92 Ohio
St.3d at 306, 2001-Ohio-191, 750 N.E.2d 148, quoting Strickland, 466 U.S. at 687.
An appellate court must review the totality of the circumstances and not isolated
instances of an allegedly deficient performance. State v. Stacy, 3d Dist. No. 13-
08-44, 2009-Ohio-3816, ¶20.
{¶13} Wilson claims that his attorney made errors that resulted in the
exclusion of the testimony of witnesses whom he wished to call at trial in an effort
to establish an alibi. Although the notice of alibi was not filed until a week before
the trial, the record reflects that Wilson did not provide defense counsel with the
names until only a week prior to his filing the notice of alibi. Furthermore, there
had been a strong difference of opinion between counsel and his client as to
whether or not an alibi should be filed. (Trial Tr., pp. 5-6.) Defense counsel
issued subpoenas for the witnesses to appear and he instructed the witnesses to
appear to meet with the prosecutor at the designated times. There was some
discussion on the record that the witnesses had been at the courthouse, but did not
stay to meet with the prosecutors.
{¶14} As noted above, it was Wilson himself who failed to express a wish
to present alibi witnesses or provide the names of those witnesses to defense
counsel until close to trial, despite the fact that the crimes had occurred in March
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and counsel had been representing Wilson and working on the case for many
months. Furthermore, there was a strong difference of opinion between defendant
and his counsel as to whether those witnesses should be used. (Trial Tr., p. 6.)
The record reflects that defense counsel attempted to make the witnesses available.
Furthermore, sometimes counsel’s noncompliance with applicable rules of
disclosure may be construed as a trial tactic. See, e.g., State v. Smith (1985), 17
Ohio St.3d 98, 477 N.E.2d 1128. As this Court has previously noted, debatable
strategic and tactical decisions may not form the basis of an ineffective assistance
of counsel claim, even if a better strategy might have been utilized. State v. Utz,
3d Dist. No. 3-03-38, 2004-Ohio-2357, ¶12, citing State v. Phillips, 74 Ohio St.3d
72, 85, 1995-Ohio-171, 656 N.E.2d 643. The decision to call or not call witnesses
is generally a matter of trial strategy and, absent a showing of prejudice, does not
deprive a defendant of the effective assistance of counsel. Ulz, citing State v.
Williams (1991), 74 Ohio App.3d 686, 694, 600 N.E.2d 298.
{¶15} Based on the above, and the totality of the record showing counsel’s
diligent representation, we do not find that counsel's performance was deficient or
unreasonable under the circumstances. Wilson’s first assignment of error is
overruled.
{¶16} In his second assignment of error, Wilson maintains that the trial
court erred when it denied defense counsel’s motion to withdraw. At the hearing
on the motion, defense counsel indicated that there was a “strong personality
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conflict” between Wilson and himself, although he did not go into detail on the
nature of this conflict, stating that it would be inappropriate to do so. Wilson
contends that the trial court should have conducted further inquiry as to the nature
of the conflict in order to ensure that such a conflict would not have prevented
counsel from providing effective representation.
{¶17} The Sixth Amendment right to counsel does not guarantee a
defendant the right to counsel of his choosing, and there must be good cause to
justify a substitution of counsel. State v. Murphy, 91 Ohio St.3d 516, 523, 2001-
Ohio-112, 747 N.E.2d 765. In order to remove a court-appointed attorney from a
case, there must be “a breakdown in the attorney-client relationship of such
magnitude as to jeopardize the defendant’s right to effective assistance of
counsel.” State v. Hennes, 79 Ohio St.3d 53, 65, 1997-Ohio-405, 679 N.E.2d 686,
quoting State v. Coleman (1988), 37 Ohio St.3d 286, 525 N.E.2d 792, paragraph
four of the syllabus. The Sixth Amendment does not guarantee “rapport” or a
“meaningful relationship” between client and counsel. State v. Hennes, supra,
citing Morris v. Slappy (1983), 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617, 75
L.Ed.2d 610, 621. The decision not to remove court-appointed counsel is
reviewed under an abuse of discretion standard. Murphy, 91 Ohio St.3d at 523.
{¶18} At the hearing on defense counsel’s motion to withdraw, the trial
court did attempt to make further inquiry into the reasons behind the motion, but
Wilson did not take the opportunity to elaborate. Defense counsel had stated “my
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client and I have a strong personality conflict,” and that it wouldn’t be appropriate
to go into the specifics of any of the discussions they had.2 (Aug. 17 Hearing Tr.,
p.1.) The trial court then attempted to obtain more information from Wilson.
The Court: Mr. Wilson, what do you have to say about this?
Mr. Wilson: I agree with him.
The Court: Is that all you have to say?
Mr. Wilson: Yes.
(Id., at p. 2.) The trial court concluded that the since the only issue before the
court was a personality conflict, that reason did not warrant a change in counsel
according to law, citing Morris v. Slappy, and State v. Hennes, supra. The trial
court also observed that in order to replace counsel because of a conflict, there
must be an actual conflict of interest, not merely a personality conflict. Hennes,
79 Ohio St.3d at 65, citing Strickland v. Washington, supra. Furthermore, there
already had been months of discovery, motions, hearings, and trial preparation,
and the trial was scheduled to commence within two weeks.
{¶19} Based on the above, the trial court did not abuse its discretion in
denying counsel’s motion to withdraw. Wilson’s second assignment of error is
overruled.
2
Although counsel would not give any further reason at the hearing, just prior to trial he further indicated
that “there is a strong difference of opinion as to whether or not there would be an alibi filed,” which would
appear to indicate that the motion to withdraw had something to do with the alibi. (Trial Tr., p. 6.)
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{¶20} In his final assignment of error, Wilson asserts that the trial court
provided an erroneous verdict form to the jury. The verdict form stated, “we the
jury, *** find beyond a reasonable doubt, the Defendant, Devonne J. Wilson
_____________ of aggravated robbery.” The jury was to put their finding of
“guilty” or “not guilty” on the blank line. Wilson complains that the wording on
the form gave the jury two choices: 1) to find him guilty beyond a reasonable
doubt; or, 2) to find him not guilty beyond a reasonable doubt. Wilson raised an
objection at trial because the latter choice set forth an erroneous burden of proof
and an incorrect statement of the law. Wilson claims that the use of this defective
form mandates reversal of the conviction because the error constitutes a “structural
error."
{¶21} The State acknowledges that the wording of the verdict forms could
have been more precisely crafted so as to avoid the issue raised here. However,
the State contends that the wording of the verdict forms does not amount to
reversible error, particularly when considered with the instructions in their entirety
that were given to the jury before their deliberations.
{¶22} In most cases, when a defendant is represented by counsel and is
tried by an impartial adjudicator, there is a presumption that any trial errors are not
structural errors, but are subject to Crim.R. 52 harmless-error analysis. State v.
Cihonski, 178 Ohio App.3d 713, 2008-Ohio-5191, 900 N..E.2d 212, ¶18, citing
State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶78. Rarely,
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an error may be so egregious that it rises to the level of a structural error. Colon,
2008-Ohio-1624, at ¶20. In State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761,
789 N.E.2d 222, ¶9, the Ohio Supreme Court discussed the differences between
structural errors and trial errors.
In Arizona v. Fulminante (1991), 499 U.S. 279, 306-312, 111 S.Ct.
1246, 113 L.Ed.2d 302, the United States Supreme Court
denominated the two types of constitutional errors that may
occur in the course of a criminal proceeding – “trial errors,”
which are reviewable for harmless error, and “structural
errors,” which are per se cause for reversal. *** “Trial error” is
“error which occurred during the presentation of the case to the
jury, and which may therefore be quantitatively assessed in the
context of other evidence presented in order to determine
whether its admission was harmless beyond a reasonable
doubt.” *** “Structural errors,” on the other hand, “defy
analysis by ‘harmless error’ standards” because they “affect[ ]
the framework within which the trial proceeds, rather than
simply [being] an error in the trial process itself.” [Fulminante]
at 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. Consequently,
a structural error mandates a finding of “per se prejudice.”
{¶23} Both the United States Supreme Court and the Supreme Court of
Ohio have rejected the concept that structural error exists in every situation in
which even a serious or a constitutional error has occurred. See State v. Wamsley,
117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶18. In fact, the United
States Supreme Court and Ohio courts have found structural errors warranting
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reversal in only a very limited number of cases. See Cihonski, 2008-Ohio-5191,
at ¶¶20-21.3
{¶24} Wilson argues that an “incorrect reasonable doubt instruction” is one
of the limited class of cases which “always requires reversal of the conviction”
because it constitutes a structural error, citing to Sullivan v. Louisiana (1993), 508
U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182. However, we find that the incorrect
reasonable doubt instruction in Sullivan involved an entirely different issue than
the issue that is before us in this case. Sullivan involved a death penalty appeal in
which the definition of “reasonable doubt” was identical to one previously held
unconstitutional. In Sullivan, because the essential definition of “reasonable
doubt” upon which the jury based its decision was wrong, there could be no
factual findings made by the jury beyond a reasonable doubt upon which an
appellate court could base a harmless-error analysis. Id. at 2082. It would be
tantamount to a jury determining that the defendant was probably guilty, and then
leaving it up to the judge to determine whether he was guilty beyond a reasonable
3
For example, the United States Supreme Court has found structural errors warranting reversal where the
defendant was completely denied counsel, Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799; where the trial judge was biased, Tumey v. Ohio (1927), 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed.
749; where racial discrimination took place in grand jury selection, Vasquez v. Hillery (1986), 474 U.S.
254, 106 S.Ct. 617, 88 L.Ed.2d 598; where the defendant was denied self-representation at trial, McKaskle
v. Wiggins (1984), 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122; where the defendant was denied a public
trial, Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31; and where the instruction on
reasonable doubt was defective, Sullivan v. Louisiana (1993), 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d
182. Likewise, Ohio courts have recognized structural error in only a limited number of cases, such as
where a defective indictment led to multiple, significant errors throughout a trial, State v. Colon, 118 Ohio
St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, on reconsideration, State v. Colon, 119 Ohio St.3d 204, 2008-
Ohio-3749, 893 N.E.2d. (See Chonski for other examples.)
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doubt, thereby denying the defendant of his Sixth Amendment right to a trial by
jury. Id. at 2081.
{¶25} A review of the record in Wilson’s case reveals that the jury was
repeatedly instructed that it was mandatory that the defendant be found not guilty
unless the State had proven the elements of the crimes beyond a reasonable doubt.
None of the instructions implied that Wilson had any burden of proof as to his
innocence. To the contrary, the jury was specifically instructed that the defendant
was not required to prove his innocence beyond a reasonable doubt. Specifically,
the jury was instructed as follows:
The defendant is presumed innocent until his guilt is established
beyond a reasonable doubt. The defendant must be acquitted
unless the state produces evidence, which convinces you, beyond
a reasonable doubt, of every essential element of the crime
charged in the indictment.
The defendant in a criminal case is not required to present any
evidence, and if he chooses to present evidence, such evidence
need not convince you beyond a reasonable doubt of his
innocence. Rather it need only raise a reasonable doubt as to his
guilt. If, after considering the evidence as a whole you have
reasonable doubt as to the defendant’s guilt, you must acquit
him.
(Trial Tr., pp. 506-07, emphasis added.) The trial court then defined “reasonable
doubt” for the jury, and further instructed that:
If, after a full and impartial consideration of all the evidence,
you are firmly convinced of the truth of the charge, the state has
proved its case beyond a reasonable doubt.
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If you are not firmly convinced of the truth of the charge or
charges, you must find the defendant not guilty.
(Trial Tr., p. 507.) The trial court gave additional instructions relating to the case
and further instructed the jury that before the jury could find the defendant guilty,
it must find beyond a reasonable doubt that Wilson committed each element of the
offense, which the trial court then specified, and further instructed:
If you find as to Count 1 – if you find the state has proved,
beyond a reasonable doubt, all the essential elements of
aggravated robbery, your verdict must by guilty of aggravated
robbery.
If you find the state has failed to prove, beyond a reasonable
doubt any one of the essential elements of aggravated robbery,
your verdict must be not guilty of aggravated robbery as
charged.
(Trial Tr., pp. 512-16.) The trial court then gave an identical instruction as to the
second count, except for modifying the date as appropriate. Finally, the jury was
instructed that “[i]t is your duty to carefully weigh the evidence, to decide all
disputed questions of fact, to apply the instructions of the court to your findings,
and to render your verdict accordingly”. (Trial Tr., p. 524.)
{¶26} After reviewing the record, we conclude that the instructions in this
case did not render the trial so fundamentally unfair that it could not be a reliable
vehicle for the determination of the defendant's guilt or innocence. See Rose v.
Clark, 478 U.S. at 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460. This case did not
rise to a violation of a fundamental constitutional right that would lead to the kind
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of basic unfairness amounting to structural error. Therefore, the alleged error must
be reviewed under the harmless error standard. Harmless error is defined as:
“[a]ny error, defect, irregularity, or variance which does not affect substantial
rights shall be disregarded.” Crim.R. 52(A). Harmless error does not affect the
outcome of the case and, thus, does not warrant a judgment to be overturned or set
aside. State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶7;
see, also, State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643,
¶15.
{¶27} In a similar case reviewed by the Eleventh District Court of Appeals,
an almost identical jury form was used and the reviewing court did not find that
the error rose to a level requiring reversal. See State v. Schlee, 11th Dist. No.
1004-L-070, 2005-Ohio-5117, ¶14. Although the appellate court in Schlee
reviewed the jury instruction under a plain error standard, we find their conclusion
instructive.
Accordingly, while the jury verdict form itself was flawed, when
taken as a whole, the jury instructions were not so tainted as to
rise to the level of plain error. The trial court's other
instructions limited any potential prejudice. There was
overwhelming evidence of appellant's guilt presented at trial so,
but for the flaw in the jury verdict form this court can not
conclude that the outcome of the trial would have been different.
Id.{¶28} Likewise, in the case before us, in light of the overall instructions of
law provided to the jury and also in light of the overwhelming evidence presented
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as to Wilson’s guilt, we do not find that the wording of the jury form affected a
substantial right or in any way affected the outcome of Wilson’s trial. Based
upon the facts of this case, any flaw in the verdict forms was harmless error.
Wilson’s third assignment of error is overruled.
{¶29} Therefore, having found no error prejudicial to the appellant herein
in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, J., concurs.
/jnc
ROGERS, J., concurs in part, dissents in part.
{¶30} I concur fully with the majority’s disposition of the first and second
assignments of error; however, I respectfully dissent from the majority’s
disposition of the third assignment of error. As stated in the majority opinion, the
jury verdict form instructed that, to find the defendant “not guilty,” the jury must
find him not guilty “beyond a reasonable doubt.” Unlike the majority, I would
find that this error in the jury verdict form amounted to a structural error not
subject to harmless error analysis. I agree with the majority’s finding that this
factual scenario differs from that in Sullivan v. Louisiana (1993), 508 U.S. 275, in
that it did not contain a Sixth Amendment defect; however, I believe that the form
was still constitutionally deficient because it did not comport with the Fifth
Amendment requirements of presumption of innocence and that a guilty verdict
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must be supported by proof beyond a reasonable doubt. Thus, I would reverse on
the basis that the jury verdict form was constitutionally deficient as it was a
“denial of the right to a jury verdict of guilt beyond a reasonable doubt, the
consequences of which are necessarily unquantifiable and indeterminate” and,
consequently, that the error was a structural defect. See Sullivan, 508 U.S. 275, at
syllabus.
{¶31} It is an acceptable practice to use a single verdict form which simply
says:
We, the jury, find the defendant, (insert name of defendant),
(*) __________ of (insert name of offense and section number4).
(*) Insert in ink: “Guilty” or “Not Guilty.”
OJI CR 425.33, Verdict.
{¶32} I believe that a better practice would be to provide two verdict forms
for each offense presented to the jury for consideration.
{¶33} One to say:
We, the jury, find the defendant, (insert name of defendant),
guilty beyond a reasonable doubt of (insert name of offense and
section number).
4
I would suggest inclusion of the section/subsection number to avoid any issues as to the degree of the
offense, as delineated in State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256.
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{¶34} The other to say:
We, the jury, find the defendant, (insert name of defendant), not
guilty of (insert name of offense and section number).
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