State v. Hankison , 2010 Ohio 4617 ( 2010 )

[Cite as State v. Hankison, 2010-Ohio-4617.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
State of Ohio, :
:
Plaintiff-Appellee, :
: Case No. 09CA3326
v. :
: DECISION AND
Nelson E. Hankison, : JUDGMENT ENTRY
:
Defendant-Appellant. : File-stamped date: 9-21-10
________________________________________________________________
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Craig M. Jaquith, Ohio State
Assistant Public Defender, Office of the Ohio Public Defender, Columbus, Ohio,
for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, and Pat Apel, Scioto County Assistant
Prosecutor, Portsmouth, Ohio, for Appellee.
________________________________________________________________
Kline, J.:
{¶1} Nelson E. Hankison (hereinafter “Hankison”) appeals the judgment of
the Scioto County Court of Common Pleas. After a jury trial, Hankison was found
guilty of aggravated murder and various other charges. On appeal, Hankison
contends that he received ineffective assistance of counsel. Because the
complained-of actions were part of a reasonable trial strategy, we disagree.
Furthermore, even if we were to find that Hankison’s trial counsel erred,
Hankison was not deprived of a fair trial because the result of his trial is reliable.
Accordingly, we affirm the judgment of the trial court.
I.
A. Introduction
Scioto App. No. 09CA3326 2
{¶2} Claude “Sonny” Hamilton (hereinafter “Sonny”) was murdered on
March 29, 2009. He was married to Billie Hamilton (hereinafter “Billie”) for
twenty-four years. Sonny and Billie remained friends even though they were
divorced, and Sonny spent most of his time at Billie’s residence. Apparently,
Sonny suffered from a variety of medical problems, and he wanted to be with
Billie when he was sick. Sonny and Billie did not have any children together, but
Sonny remained close to Billie’s daughter, Tammy Newman (hereinafter
“Newman”). In fact, Newman lived in a house that Sonny owned. After Sonny
died, Newman became the sole owner of the house through a survivorship deed.
{¶3} Sonny also owned a pain management clinic (hereinafter the “Clinic”)
in Wheelersburg, Ohio. Newman worked at the Clinic doing “day-to-day” things.
It is not entirely clear, but Newman (and perhaps Billie) may have obtained an
ownership interest in the Clinic after Sonny died. Regardless, after Sonny’s
death, the Clinic was sold to Newman’s uncle for $6,000. Newman continued to
work at the Clinic after it was sold. (At trial, Hankison’s counsel tried to insinuate
that Newman had a motive to kill Sonny because Newman inherited the house
and at least a share of the Clinic. However, there is no evidence whatsoever that
Newman had anything to do with Sonny’s murder.)
{¶4} Hankison was a patient at the Clinic. In addition, Sonny and Hankison
were apparently friends, as Sonny had done numerous favors for Hankison over
the years.
{¶5} At the time of Sonny’s murder, Hankison was on probation. Hankison
was not married, but he shared a trailer with Emily Dees (hereinafter “Dees”).
Scioto App. No. 09CA3326 3
Both Hankison and Dees have a history of drug abuse. Hankison has taken pain
medication for most of his adult life, and he has admitted to being addicted to
Oxycontin. Jillian Mosley (hereinafter “Mosley”) is Dees’s daughter. Mosley
testified that, during the month of March, Hankison was mainlining Oxycontin and
“had been hitting [it] really hard.” Transcript at 213. Like Hankison and Dees,
Mosley also has a history of drug abuse.
B. The Night of Sonny’s Murder
{¶6} On March 29, 2009, Sonny attended a birthday party at Newman’s
house. He left the party shortly after 7:00 p.m. Sonny told Billie that he would be
back shortly. Just before leaving, Sonny told Newman that he had to go meet a
man named Mark Turner. Billie left the party “[a]bout 45 minutes or an hour”
after Sonny did. Transcript at 53. Before she left, Billie discovered that Sonny
had left his cell phone at Newman’s house. So Billie took Sonny’s cell phone
with her. Later, it was discovered that Hankison left two voice mail messages for
Sonny at approximately 7:00 p.m. In the first voice mail message, Hankison
said, “I’m down here. Give me a holler. Waiting, what’s going on?” Transcript at
474. And in the second message, Hankison said, “It’s cold down here. I’ll be
back up the trailer waiting.” Transcript at 474. The two calls came from
Hankison’s telephone number, and numerous witnesses identified Hankison’s
voice in the messages.
{¶7} Sonny left the party and then drove his truck to Hankison’s trailer.
Although the evidence is not entirely clear, Sonny may have had some Oxycontin
pills on his person or in his truck. At trial, Dees testified that she (1) saw Sonny’s
Scioto App. No. 09CA3326 4
truck in front of her trailer, (2) made brief eye contact with Sonny, and then (3)
yelled that Hankison would be right out. As Hankison was leaving the trailer, he
inadvertently struck Dees with a long knife. Dees testified that Hankison then
apologized, stuck the knife “down in his shirt or whatever he had on,” and walked
out the door. Transcript at 272.
{¶8} Dees did not watch Hankison meet with Sonny, but she testified that
Sonny’s truck remained idling in front of the trailer for “a while.” Transcript at
273. At trial, Dees described what happened next. “The truck pulled around
back to the front porch and [Hankison] come up to the door, and I unlocked the
screen door and the door – the front door. And he said ‘Go get me my
Carhartts.’ And I just, and I said ‘Are you all right?’ I seen blood on his right leg
and I said ‘Are you all right,’ and he said ‘Just go get me my Carhartts.’ And I
went into the junk room and got him his Carhartts and gave it to him, and then he
left.” Transcript at 274-75. (Carhartt is a brand name for different types of work-
related clothing. Throughout the trial, various witnesses referred to Hankison’s
bib overalls as “Carhartts.”) Dees did not see Hankison put on the bib overalls,
but she heard Sonny’s truck leave the driveway. Dees then went to sleep after
drinking some Theraflu.
{¶9} Next, Hankison went to a local Super America gas station. According
to the store’s surveillance system, Hankison walked into the store at
approximately 8:16 p.m. The store manager testified that Hankison was a
regular customer. Several witnesses, including the store manager, identified
Hankison from the store’s surveillance video. The surveillance video also
Scioto App. No. 09CA3326 5
recorded what appeared to be Sonny’s truck in the parking lot. (At trial, the
cashier from the Super America positively identified Hankison as the man who
walked into the store at approximately 8:16 p.m. However, before trial, the
cashier was shown a photo lineup of various suspects and identified a picture of
somebody other than Hankison. Based on this discrepancy, Hankison’s trial
counsel insinuated that somebody might have dressed like Hankison in an effort
to frame him.)
{¶10} As Hankison walked into the Super America, the cashier noticed that
Hankison “had a Carhartt jacket, Carhartt pants[, and] blood right here inside his
coat.” Transcript at 438. At trial, the cashier testified about his transaction with
Hankison. “I gave [Hankison] a weird look like anybody would and [Hankison]
told me he was giving birth to cattle that were breech. And that was it, and
[Hankison] pre-paid $10.00 gas; I gave him his change and he went on about his
business.” Transcript at 439. During this transaction, the cashier “got a little
speck of blood” on his hand. Transcript at 439. Then, Hankison left the store,
filled a portable container with gas, and walked back towards the truck in the
parking lot. According to the store’s surveillance system, the truck pulled out of
the parking lot at approximately 8:25 p.m.
{¶11} At approximately 9:18 p.m., the following call was placed to 9-1-1:
{¶12} “OPERATOR: 9-1-1.
{¶13} “CALLER: Yes. There’s a fire down here on Miller’s Run Back Run
down on the main road.
{¶14} “OPERATOR: Okay. And what’s on fire?
Scioto App. No. 09CA3326 6
{¶15} “CALLER: Well (inaudible) looked out the window and there’s a car on
fire down here by –
{¶16} ***
{¶17} “OPERATOR: Okay. So the car’s on the road?
{¶18} “CALLER: It’s on the road and it’s on fire.” Transcript at 125.
{¶19} Sonny’s truck was the automobile on fire, and the scene of the fire was
a tenth-of-a-mile walk from Hankison’s trailer. Investigators later determined that
gasoline was used as an accelerant in the truck fire. After the fire was put out, a
firefighter discovered Sonny’s body in the passenger side of the truck. A
subsequent autopsy revealed that Sonny had been stabbed three times, twice in
the neck and once in the chest.
{¶20} After being gone for a while, Hankison returned to the trailer and
awoke Dees. At trial, Dees described what happened when Hankison returned.
{¶21} “Q. And what did [Hankison] say?
{¶22} “A. Excuse my language, but he said ‘[G--] damn it, get up and help
me. I have killed Sonny,’ or ‘I [f-----g] cut his head off.’ I can’t remember which,
but it was one or the other or both.
{¶23} “Q. He said words to that effect.
{¶24} “A. Yes.
{¶25} “Q. Okay. And what did you do?
{¶26} “A. I got up. And he said ‘Get me a garbage bag,’ and I went and got
him a garbage bag, and that’s when he started taking off his clothes and putting
them in the garbage bag.
Scioto App. No. 09CA3326 7
{¶27} “Q. Okay. And did you ask him anything, ‘Why you did it,’ or anything
of that nature?
{¶28} “A. Yes, I did.
{¶29} “Q. Okay. And what did he say?
{¶30} “A. Because Sonny come down to this courthouse and wrote a
statement on him.
{¶31} “Q. Okay. Did he say to this courthouse, or did he just say ‘write a
statement’?
{¶32} “A. Downtown, so I’d assume this courthouse.
{¶33} “Q. Okay. Did he say anything else about it?
{¶34} “A. Just like if – like what do you mean?
{¶35} “Q. Did you – did you ask him what statement or anything?
{¶36} “A. I just didn’t understand why he killed Sonny because Sonny was
good to him.
{¶37} “Q. Okay. And did he say ‘Either him or me,’ or –
{¶38} “A. No, he just said ‘Sonny signed a statement on me. He was going
to send me back to the penitentiary.’
{¶39} “Q. Okay. Signed a statement on him and was going to send him back
to the penitentiary?
{¶40} “A. Yes.
{¶41} “Q. Now, did you say anything to him about the effect it had on you?
Scioto App. No. 09CA3326 8
{¶42} “A. I just said ‘What if I would have went out there and seen that? I
would have been in Toledo State Mental Hospital.’ And he said ‘No, I’d a had to
kill you too.’
{¶43} “Q. At that time did he say anything about what Sonny’s response
was?
{¶44} “A. He just said that Sonny pleaded for his life and offered him, told
him he’d go down with him to recant the statement and offered him, you know, I
can’t remember exactly, but it was $100 or $200,000.00 if he wouldn’t do it.
{¶45} “Q. Okay. Now were the Defendant’s words that ‘Sonny was begging
for his life’?
{¶46} “A. Yes.
{¶47} “Q. Okay. And that Sonny said he would recant and pay him $100 or
$200,000.00 if he didn’t kill him?
{¶48} “A. Yes.
{¶49} “Q. Now, at that time did the Defendant put anything out on the
counter?
{¶50} “A. Yeah. He had a sack of money and a billfold. And he just went
through the billfold and kept the driver’s license and threw the billfold and the –
you know, I can’t really say if he threw the billfold in the plastic sack. I don’t
know. I assume, but I seen Sonny’s driver’s license and I seen the stack of
money.
{¶51} “Q. Okay.
{¶52} “A. That’s all I seen.
Scioto App. No. 09CA3326 9
{¶53} “Q. You saw there was Sonny’s driver’s license that came out of the
wallet.
{¶54} “A. Yes, I did. Yes, I did.
{¶55} “Q. And the stack of money, about how much money was it? Could
you estimate?
{¶56} “A. You know, it was – it was, you know, I don’t know exactly. It was
maybe, you know what I mean? It was a stack of money, so anywhere – I don’t
know, a few hundred dollars.
{¶57} “Q. I think when you said that you put your fingers –
{¶58} “A. Yeah, like a, you know about an inch, inch and a half.
{¶59} “Q. Okay. The stack was an inch, an inch and a half thick?
{¶60} “A. But it was rolled over.
{¶61} “Q. Okay. Inch, inch and a half thick rolled over.
{¶62} “A. Yes.
{¶63} “Q. Okay. Now what did he do with the money?
{¶64} “A. I guess he put it in his pocket.
{¶65} “Q. Okay. Did – do you know what he was going to do about the – with
the driver’s license?
{¶66} “A. He was going to fly it off to some bottom, people, person in the
bottoms to I guess put the crime off somebody in the bottoms of Lucasville.
{¶67} ***
{¶68} “Q. Now, did he say anything about the pills?
{¶69} “A. Yeah, he burnt the pills in the truck.
Scioto App. No. 09CA3326 10
{¶70} “Q. Okay. Was he upset about that?
{¶71} “A. He just was searching for them and searching and ‘I burnt the pills
in the truck.’” Transcript at 276-280.
{¶72} After leaving the trailer a second time, Hankison walked to his
neighbor’s house and asked for a ride into Lucasville. The neighbor testified that
Hankison had “like a wad [of] money when he was at my house. * * * It was like
folded over. * * * About that thick. * * * About an inch and a half.” Transcript at
462. The neighbor and his girlfriend agreed to drive Hankison to Lucasville.
First, they stopped at Hankison’s place of employment, where Hankison talked to
an unknown individual. Then, they stopped at the Briar Patch convenience store.
According to the store’s surveillance system, Hankison entered the Briar Patch at
approximately 11:01 p.m.
{¶73} Later that evening, Detective Paul Blaine (hereinafter “Detective
Blaine”) of the Scioto County Sheriff’s Office met with Billie’s family to discuss the
truck fire. During this meeting, Billie told Detective Blaine that she had Sonny’s
cell phone. Billie gave the cell phone to Detective Blaine, and Detective Blaine
was able to retrieve Sonny’s voice mail messages. Then, using a digital
recorder, Detective Blaine recorded the messages that Hankison had left for
Sonny.
C. The Subsequent Investigation
{¶74} On April 1, 2009, investigators learned that Sonny had been stabbed
before his truck was set on fire. Investigators returned to the scene of the fire to
search for a knife, but they could not find the murder weapon.
Scioto App. No. 09CA3326 11
{¶75} Because of the voice mail messages, Hankison quickly emerged as
the primary suspect in Sonny’s murder. Detective Blaine and several other
investigators went to Hankison’s trailer to request an interview. While most of the
investigators were inside the trailer with Hankison, an arson investigator noticed
a “burn pile” to the right of the trailer. The burn pile included a boot or shoe and
“what appeared to be the bottom leg of a Carhartts type material.” Transcript at
165. Hankison agreed to go to the Scioto County Sheriff’s office for an interview,
during which Hankison was cooperative and admitted to being “hooked on
Oxy’s.” Transcript at 482.
{¶76} Later, Detective Blaine and an arson investigator went to Mosley’s
apartment to question Mosley and Dees. After some initial questioning, the
investigators split Mosley and Dees apart. Dees denied knowing anything about
Sonny’s murder, but Mosley told an arson investigator about Hankison’s
involvement. Dees had apparently told Mosley about Hankison’s actions on the
night of the murder, and Mosley relayed that story to the arson investigator. At
trial, Mosley testified as follows:
{¶77} “Q. [H]ow did you know what happened?
{¶78} “A. Because my mom.
{¶79} “Q. Okay. Your mother told you.
{¶80} “A. What she told me. And I told [the arson investigator] everything
that my mother had told me to save my mom. I didn’t want to see her in
Marysville.” Transcript at 215.
Scioto App. No. 09CA3326 12
{¶81} Detective Blaine continued his interview with Dees at her trailer.
Hankison and another man arrived at the trailer while Detective Blaine was there,
and Dees said that “she did not want to go anywhere with [Hankison;] she was
afraid that something was going to happen to her.” Transcript at 487. So
Detective Blaine left with Dees and drove her back to Mosley’s apartment. As
they were driving, Detective Blaine told Dees that he could give her a
“computerized stress analysis.” Transcript at 487. Dees responded that she
would fail the test.
{¶82} At Mosley’s apartment, Dees finally agreed to discuss what she knew
about Sonny’s murder. Then, Mosley and Dees went to the Scioto County
Sheriff’s office to give their respective statements. Mosley explained that
“[e]verything in [her] statement is what [Dees] told [her]” about Hankison’s
involvement in Sonny’s murder. Transcript at 231.
{¶83} Hankison was arrested shortly after Mosley and Dees gave their
respective statements. Detective Blaine interviewed Hankison after the arrest,
and Hankison denied any involvement in Sonny’s murder. The interview ended
when Hankison asked for a lawyer.
{¶84} With Hankison in jail, Detective Blaine formulated a plan to obtain
additional evidence. Detective Blaine wanted to get Dees a cell phone.
According to the plan, Hankison would call Dees on the cell phone and,
hopefully, incriminate himself. However, Dees refused to participate. She told
Detective Blaine that she was afraid Hankison would kill her, or have someone
kill her, if she went through with the plan. (At trial, Hankison’s counsel insinuated
Scioto App. No. 09CA3326 13
that Dees refused to participate because, if she talked to Hankison, it would show
that Dees was lying.)
{¶85} On April 8, 2009, Dees called Detective Blaine about a bag of clothes
that she had found in the trailer’s “junk room.” The trailer had already been
searched several times, but investigators had not found this particular bag of
clothes. Among other items, the bag contained a pair of sweatpants that
apparently belonged to Hankison. Later DNA testing revealed that Sonny’s blood
was on the pair of sweatpants. (At trial, Hankison’s counsel insinuated that the
bag of clothes might have been planted in a scheme to frame Hankison.)
{¶86} On April 29, 2009, a Scioto County Grand jury indicted Hankison for
aggravated murder, murder, aggravated robbery, aggravated arson, kidnapping,
grand theft of an automobile, and two counts of tampering with evidence.
D. Relevant Issues From the Trial
{¶87} Hankison’s three-day trial began on September 21, 2009, and he was
subsequently found guilty on all counts. On appeal, Hankison is claiming
ineffective assistance of counsel. Therefore, for purposes of this opinion, we
must highlight two relevant issues from Hankison’s trial.
1. References to Hankison’s Criminal Record
{¶88} As Hankison notes, the trial contained numerous references to
Hankison either (1) being on probation or (2) having spent time in prison. For
example, on redirect examination, Mosley testified that Hankison would
sometimes “spot pills” for visits to his probation officer.
Scioto App. No. 09CA3326 14
{¶89} “Q. Okay. Now when you say ‘spotting pills,’ what do you mean?
{¶90} “A. He had a friend that would give him his pill count before he would
went and go check in –
{¶91} “Q. Okay. So he could take the prescription pills in –
{¶92} “A. Yeah.
{¶93} “Q. – and show them –
{¶94} “A. And he would say, ‘Here. Here’s my bottle. I have these,’ and then
he’d have to take them and give them back to him.
{¶95} “Q. Okay. So that covered the ones that he already used.
{¶96} “A. Yeah.” Transcript at 255-56.
{¶97} Additionally, Mosley testified that Hankison and Dees started dating
when Hankison “got out of prison[.]” Transcript at 221.
2. The Door Handles
{¶98} On cross-examination, Hankison’s trial counsel asked one of the arson
investigators about physical evidence from the crime scene. The arson
investigator testified that nothing from the crime scene “would have had a viable
fingerprint on it after that fire.” Transcript at 196. Then, Hankison’s trial counsel
asked if there could have been fingerprints on the truck’s door handle. The arson
investigator replied that “[t]he door handles were almost completely destroyed by
the fire.” Transcript at 196. At that point, Hankison’s trial counsel produced door
handles that were allegedly found at the scene of the truck fire. In a bench
conference, Hankison’s trial counsel explained that he was “out [at the scene of
the truck fire on] Sunday and picked them up” and that a “neighbor across the
Scioto App. No. 09CA3326 15
street saw [him] pick this up.” Transcript at 197. (One of Hankison’s neighbors
later testified that he saw Hankison’s trial counsel pick up “a piece of metal or
aluminum or something” at the scene of the truck fire. Transcript at 465.)
{¶99} After the bench conference, the trial court judge addressed the jury:
“I’m just going to tell the jury what’s going on here. Okay? We’re supposed to
tell each other what evidence we’re going to use ahead of time. Okay?
[Hankison’s trial counsel] is making a representation to this Court that he was out
there Sunday?
{¶100} “[HANKISON’S TRIAL COUNSEL]: Yesterday.
{¶101} “THE COURT: Okay, Sunday. And he found these handles at the
scene. There’s nothing to support that these came from [Sonny’s] truck; there’s
nothing to support where they came from. So since he’s standing there showing
them to you, I can’t make them un-show it. All right? But normally this is not
something that can be introduced into evidence. Okay? It’s just this isn’t the way
we do things. But you’ve already seen it; I can’t take [it] out of the bag and put it
back in the bag. So whatever it’s worth, I’m going to let [Hankison’s trial counsel]
show them that. And you’ve seen it and you take it for whatever it’s worth.”
Transcript at 199.
E. Assignments of Error
{¶102} Hankison appeals from his judgment of conviction and asserts the
following assignment of error: I. “The performance of trial counsel was deficient,
and deprived Mr. Hankison of the right to effective assistance of counsel
Scioto App. No. 09CA3326 16
guaranteed by the Sixth and Fourteenth Amendments to the United States
Constitution and Section 10, Article I of the Ohio Constitution.”
II.
{¶103} In his sole assignment of error, Hankison contends that he received
ineffective assistance of counsel. Hankison claims ineffective assistance for the
following reasons: (1) trial counsel did not object to various hearsay statements;
(2) the introduction of the door handles was not an approach that competent
counsel would have followed; (3) competent counsel would have objected to any
suggestion that Hankison had a criminal record; and (4) trial counsel raised the
fact that Hankison invoked his right to remain silent.
{¶104} “In Ohio, a properly licensed attorney is presumed competent and the
appellant bears the burden to establish counsel’s ineffectiveness.” State v.
Norman, Ross App. Nos. 08CA3059 & 08CA3066, 2009-Ohio-5458, at ¶65
(internal quotations omitted); see, also, State v. Wright, Washington App. No.
00CA39, 2001-Ohio-2473; State v. Hamblin (1988), 37 Ohio St.3d 153, 155-56,
cert. den. Hamblin v. Ohio (1988) 488 U.S. 975. To secure reversal for the
ineffective assistance of counsel, one must show two things: (1) “that counsel’s
performance was deficient * * * ” which “requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment[;]” and (2) “that the deficient performance
prejudiced the defense * * *[,]” which “requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland v. Washington (1984), 466 U.S. 668, 687. See, also,
Scioto App. No. 09CA3326 17
Norman at ¶65. “Failure to satisfy either prong is fatal as the accused’s burden
requires proof of both elements.” State v. Hall, Adams App. No. 07CA837, 2007-
Ohio-6091, at ¶11, citing State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-
5084, at ¶205.
A. Overview
{¶105} In considering Hankison’s various arguments, we “must 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.” Strickland at 689 (internal quotation omitted).
“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.” State v. Komora (Apr. 4, 1997), Geauga App. No. 96-G-
1994, citing State v. Clayton (1980), 62 Ohio St.2d 45, 49.
{¶106} Before we begin our analysis, we note that the evidence against
Hankison is overwhelming. Therefore, we must view trial counsel’s actions in
light of the overwhelming evidence of guilt. Trial counsel had a limited number of
strategies or tactics to choose from. And after reviewing the record, we believe
that trial counsel represented Hankison in a zealous and competent manner.
{¶107} Here, trial counsel’s defense strategy can be boiled down to three
distinct propositions: (1) Dees fabricated her story about Hankison’s involvement
in Sonny’s murder; (2) Hankison had no motive to kill Sonny (while other people
Scioto App. No. 09CA3326 18
did); and (3) somebody framed Hankison. Based on these three propositions, all
of Hankison’s complained-of actions were reasonable strategic decisions.
B. Hearsay Evidence
{¶108} Hankison claims that both Mosley’s testimony and Detective Blaine’s
testimony contained inadmissible hearsay. “‘Hearsay’ is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Evid.R. 801(C).
Furthermore, “[h]earsay is not admissible except as otherwise provided by [law or
rule].” Evid.R. 802.
1. Mosley’s Testimony
{¶109} Regarding the events of March 29, 2009, Mosley testified about things
that Dees had told her – namely, Dees’s account of Hankison’s involvement in
Sonny’s murder. Additionally, Mosley testified about things that Hankison had
told Dees, who in turn relayed Hankison’s statements to Mosley (hearsay within
hearsay). Hankison contends that his trial counsel “rendered deficient
performance when he allowed Ms. Mosley’s inadmissible [hearsay] testimony to
be presented without objection[.]” Merit Brief of Nelson Hankison at 12.
{¶110} “[F]ailure to object, standing alone, is insufficient to sustain a claim of
ineffective assistance of counsel. * * * Furthermore, a failure to object may be
justified solely as a tactical decision.” State v. Bennett, Ashtabula App. No.
2002-A-0020, 2005-Ohio-1567, at ¶70 (citations omitted). See, also, State v.
Leonard, Athens App. No. 08CA24, 2009-Ohio-6191, at ¶65-67; State v. Roby,
Scioto App. No. 09CA3326 19
Putnam App. No. 12-09-09, 2010-Ohio-1498, at ¶44. Here, we believe that not
objecting to Mosley’s testimony constituted a reasonable trial strategy.
{¶111} Hankison’s trial counsel had to attack Dees’s credibility. Indeed, the
jury had to disbelieve Dees’s testimony for Hankison’s defense to have any
chance of success. And throughout the trial, defense counsel hoped to cast
doubt on Dees’s testimony by pointing out the inconsistencies in her various
statements. For example, in a prior statement, Dees claimed that she did not
actually see Sonny’s truck in front of her trailer. But at trial, Dees testified that
she did indeed see Sonny’s truck and even made eye contact with Sonny. Dees
also offered inconsistent statements regarding the amount of blood on
Hankison’s clothes and the amount of money Hankison took from Sonny. To
point out these inconsistencies, statements other than Dees’s trial testimony had
to be introduced into evidence. By not objecting to Mosley’s testimony,
Hankison’s trial counsel allowed the jury to hear another version of Dees’s story.
Mosley’s direct testimony did not include any references to Sonny “writing
statements” on Hankison, Sonny begging for his life, or Sonny offering Hankison
money not to kill him. Hankison’s trial counsel was able to question Mosley
about some of these omissions. And in contrast to Dees’s testimony, Hankison’s
trial counsel could hope that Mosley’s testimony would highlight the ways in
which Dees’s story had changed.
{¶112} Furthermore, by not objecting to Mosley’s testimony, Hankison’s trial
counsel was able to cross-examine Mosley about possible motives. As
Hankison’s trial counsel asked, “Now, in this statement there’s one thing I don’t
Scioto App. No. 09CA3326 20
see in the statement, and that is why you claim, or why did [Hankison] kill Sonny.
Did your mom tell you why?” Transcript at 248. Mosley testified that she
believed Hankison’s “motive was the pills and the cash.” Transcript at 248.
{¶113} Throughout the trial, Hankison’s trial counsel tried to establish that
Hankison had no motive to kill Sonny. Dees claimed that Hankison said he killed
Sonny because Sonny had given statements that would send Hankison back to
prison, but the prosecution did not produce any of these alleged statements.
Mosley claimed that Hankison killed Sonny for drugs and money. In response,
Hankison’s trial counsel could argue (1) that the killer left any potential drugs in
Sonny’s truck and (2) that Sonny had lent money to Hankison in the past. For
these reasons, defense counsel could later argue that other individuals (such as
Newman) may have had a stronger motive to kill Sonny.
2. Detective Blaine’s Testimony
{¶114} Hankison also contends that his trial counsel should have objected to
Detective Blaine’s testimony. Detective Blaine testified about several things that
Dees had told him, including statements related to the potential computerized
stress analysis. According to Hankison, “[c]ompetent counsel would have
opposed Detective Blaine’s recounting of numerous critical statements from the
State’s most important witness, due to the significant effect that such repetition
would have had with respect to bolstering Ms. Dees’ credibility.” Merit Brief of
Nelson Hankison at 9.
{¶115} Here, Hankison must establish that any potential hearsay objections
would have had merit because the “failure to raise meritless issues does not
Scioto App. No. 09CA3326 21
constitute ineffective assistance of counsel.” Norman at ¶69 (internal quotation
omitted). However, Hankison has not attempted to establish that Detective
Blaine’s testimony actually contained inadmissible hearsay. Instead, Hankison
merely calls Detective Blaine’s testimony “improper.” As such, Hankison has not
demonstrated that his trial counsel erred in regards to Detective Blaine’s
testimony. Furthermore, assuming that Detective Blaine’s testimony did contain
inadmissible hearsay, we would find that failing to object was a reasonable trial
strategy. Again, by eliciting additional statements made by Dees, Hankison’s trial
counsel could hope to point out any variations and attack Dees’s credibility.
3. Prejudicial Effect
{¶116} Finally, even if we were to find that Hankison’s trial counsel erred in
relation to inadmissible hearsay, we could not find that the errors were
prejudicial. Here, Dees testified at length about Hankison’s actions on March 29,
2009. And after a vigorous cross-examination, the jury obviously found Dees’s
testimony to be credible. Moreover, in addition to Dees’s testimony, the evidence
of Hankison’s guilt is overwhelming. Therefore, Hankison cannot demonstrate
that he was deprived of a fair trial, a trial whose result is reliable, because of the
hearsay-related issues.
{¶117} Accordingly, we find no merit in Hankison’s hearsay-related
arguments.
C. The Door Handle Incident
{¶118} At trial, Hankison’s trial counsel produced door handles that were
allegedly found at the scene of the truck fire. Hankison contends that “[t]he
Scioto App. No. 09CA3326 22
manner in which the door handles were introduced, which caused the court to
address the jury regarding the impropriety thereof, was not an approach that
competent counsel would have followed. And, as to whether they should have
been introduced at all, after purportedly being exposed to the elements for six
months, there was literally no evidentiary value whatsoever that could have been
attached to the door handles that counsel sought to have the jury consider.”
Merit Brief of Nelson Hankison at 10.
{¶119} We agree that Hankison’s trial counsel introduced the door handles in
a highly unorthodox manner. However, we once again note that trial counsel had
to mount Hankison’s defense against overwhelming evidence. While questioning
the arson investigator, trial counsel highlighted the fact that no physical evidence
linked Hankison to the crime scene. And throughout the trial, defense counsel
insinuated that Hankison had been framed and that authorities should have
investigated the crime more thoroughly. With this in mind, trial counsel might
have reasonably believed that introducing the door handles would bolster any
theories related to the thoroughness of the investigation. This interpretation is all
the more reasonable considering that investigators did not find the bag of clothes
despite several searches of Hankison’s trailer.
{¶120} Regardless, even if trial counsel did err by introducing the door
handles, we could not find that the error was prejudicial. Hankison has not even
attempted to demonstrate that the introduction of the door handles somehow
deprived him of a fair trial.
Scioto App. No. 09CA3326 23
{¶121} Accordingly, we find no merit in Hankison’s door-handle-related
argument.
D. References to Hankison’s Criminal Record
{¶122} Hankison contends that his trial counsel should have objected to any
reference that Hankison either was on probation or had spent time in prison. To
support his argument, Hankison cites State v. Allen (1987), 29 Ohio St.3d 53.1 In
Allen, the Supreme Court of Ohio noted that “[t]he existence of a prior offense is
such an inflammatory fact that ordinarily it should not be revealed to the jury
unless specifically permitted under statute or rule. The undeniable effect of such
information is to incite the jury to convict based on past misconduct rather than
restrict their attention to the offense at hand.” Id. at 55. As such, Hankison
contends that “[c]ompetent counsel would have strenuously objected to any
testimony that suggested that Mr. Hankison had prior convictions, and Mr.
Hankison’s defense counsel’s failure to do so constitutes deficient performance.”
Merit Brief of Nelson Hankison at 11. However, we find (1) that Hankison’s trial
counsel failed to object for strategic reasons and (2) that in light of the
overwhelming evidence against Hankison, the failure to object was not
prejudicial.
{¶123} Here, there were no references to any specific crime that Hankison
might have committed. Instead, there were only references to Hankison being on
1
We note that Allen addresses “whether the existence of a prior conviction is an essential
element of the offense where that previous conviction affects only the penalty and does not
enhance the degree of the offense itself.” Id. at 54. Therefore, the holding in Allen is not
particularly relevant to the present case.
Scioto App. No. 09CA3326 24
probation and having spent time in prison. Further, we also note the following
objection during Mosley’s testimony:
{¶124} “Q. Okay. For how long a period of time was [Hankison] addicted to
Oxycontin?
{¶125} “A. He quit when he did 100 and some days in jail. When he got back
out at home it started again.
{¶126} “Q. In your observation when did he begin?
{¶127} “A. After he got out of prison it was –
{¶128} “[HANKISON’S TRIAL COUNSEL]: Objection, Your Honor. Move to
strike.
{¶129} ***
{¶130} “THE COURT: The last statement that the witness made, I’m ordering
you to disregard it and not consider it for any purpose. Okay? That’s not what
we’re here for today.” Transcript at 207-08.
{¶131} Thus, defense counsel did object to one of the initial references to
Hankison’s criminal history. From that point forward, trial counsel “could
reasonably have decided against raising an objection * * * for fear that an
objection would only call the jury’s attention to [Hankison’s criminal record.]”
Leonard at ¶67, quoting State v. Patrick (Sept. 8, 1994), Lawrence App. No.
94CA02.
{¶132} Furthermore, in an attempt to discredit a possible motive, trial counsel
engaged in a reasonable trial strategy by referencing Hankison’s status as a
probationer. One theory of the crime is that Hankison killed Sonny for drugs,
Scioto App. No. 09CA3326 25
specifically Oxycontin. Trial counsel tried to discredit this theory during the
cross-examination of Detective Blaine. During cross-examination, trial counsel
asked Detective Blaine if he knew that Hankison’s probation officer “give[s]
periodic drug tests, drug screens to his probationers[, and] that people that don’t
– that abuse drugs on probation end up back in front of Judge Marshall.”
Transcript at 556. The prosecution objected to this line of questioning, but the
implication was clear. Trial counsel hoped to demonstrate that Hankison was not
a drug addict, thereby casting doubt on a possible motive for Sonny’s murder.
Because trial counsel himself referenced Hankison’s probation, and because this
was a reasonable trial strategy, trial counsel would have accomplished nothing
by objecting to every vague reference to Hankison’s criminal history.
{¶133} Finally, in this regard, Hankison has not demonstrated that he was
deprived of a fair trial because of defense counsel’s failure to object. And in light
of the overwhelming evidence of guilt, we cannot find that Hankison was
prejudiced by any references to his criminal history.
{¶134} Accordingly, we find no merit in Hankison’s criminal-history-related
arguments.
E. Hankison Invoking His Right to Silence
{¶135} At trial, defense counsel noted that Detective Blaine’s post-arrest
interview with Hankison ended when Hankison asked for a lawyer. For that
reason, Hankison cites Doyle v. Ohio (1976), 426 U.S. 610, which essentially
stands for the proposition that “a defendant’s post[-]arrest silence cannot be used
against him at trial.” State v. Holmes, 181 Ohio App.3d 397, 2009-Ohio-1241, at
Scioto App. No. 09CA3326 26
¶34. As such, Hankison contends that “there was absolutely nothing to be
gained by informing the jury that Mr. Hankison had ‘taken the Fifth’ during the
second interrogation, and for defense counsel to call attention to that fact was
highly improper.” Merit Brief of Nelson Hankison at 8.
{¶136} First, it is well settled that Doyle does not apply when defense counsel
raises the defendant’s post-arrest silence. See State v. Reed, Franklin App. No.
08AP-20, 2008-Ohio-6082, at ¶19-22. Therefore, any reliance on Doyle is
misplaced. Furthermore, in Reed, the Tenth District Court of Appeals rejected a
similar ineffective-assistance-of-counsel argument. By eliciting information about
the defendant’s post arrest silence, the Reed court found that defense counsel
had engaged in reasonable trial tactics. See id. at ¶23-25.
{¶137} Here, especially in light of the overwhelming evidence of guilt, we
believe that Hankison’s trial counsel also engaged in a reasonable trial strategy.
Trial counsel hoped to show that Hankison was indignant upon being accused of
Sonny’s murder. During Detective Blaine’s cross-examination, trial counsel
asked the following question: “[Hankison] tells you in no – in emphatic words
several times in the interview ‘I know one thing for certain, I did not kill Sonny
Hamilton,’ correct?” Transcript at 557. Detective Blaine replied, “Correct.”
Transcript at 557. To bolster Hankison’s denials, trial counsel attempted to
portray Hankison asking for a lawyer as an act of indignation. Trial counsel
engaged in a reasonable trial strategy, and we will not “second guess those
strategic choices through hindsight.” State v. Love, Ross App. No. 05CA2838,
Scioto App. No. 09CA3326 27
2006-Ohio-1824, at ¶49, citing Strickland at 689. This is especially true
considering the limited options available to Hankison’s trial counsel.
{¶138} Finally, Hankison has not demonstrated that he was deprived of a fair
trial because of trial counsel’s references to the post-arrest interview. And in light
of the overwhelming evidence of guilt, we cannot find that Hankison was
prejudiced by any references to his post-arrest silence.
{¶139} Accordingly, we find no merit in Hankison’s fourth argument. Having
found no merit in any of Hankison’s arguments, we overrule his assignment of
error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 09CA3326 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and Appellant pay the
costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. and Harsha, J.: Concur in Judgment and Opinion.
For the Court
BY:
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.