State v. Brown , 2013 Ohio 1099 ( 2013 )

[Cite as State v. Brown, 2013-Ohio-1099.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-L-007
- vs - :
NATHANIEL S. BROWN, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR
000242.
Judgment: Reversed and remanded.
Charles E. Coulson, Lake County Prosecutor, Alana A. Rezaee, Assistant Prosecutor,
Karen L. Kowall, Assistant Prosecutor, and Mark J. Bartolotta, Assistant Prosecutor,
105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Matthew C. Bangerter, 1360 West 9th Street, Suite 200, Cleveland, OH 44113 (For
Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Nathaniel S. Brown, appeals from the judgment of the Lake
County Court of Common Pleas convicting him of aggravated murder, aggravated
robbery, kidnapping, felonious assault, and gross abuse of a corpse. For the reasons
discussed below, appellant’s convictions are reversed and the matter is remanded for a
new trial.
{¶2} On Saturday, April 9, 2011, William Andrew Putzbach went to a party at
his brother Erik’s house with an acquaintance, Kyle Basinger. Putzbach and Basinger
had a few drinks and mingled with other partygoers. Later in the evening, however,
Basinger was acting strange, following people at the party for no reason and staring
blankly at others. And after Basinger advised Erik he was an assassin, Erik asked
Putzbach to take Basinger home. Putzbach complied, then returned to Erik’s house
where he remained overnight.
{¶3} On Sunday afternoon, Putzbach, accompanied by Basinger, went house
hunting with his friend, Nicole Knecht. While walking through the house, Nicole
overheard the two men talk about plans they had later that evening. According to
Nicole, the two men were friendly and were getting along fine.
{¶4} On Sunday night, Basinger was with appellant and Ronald Shirer at
appellant’s and Shirer’s apartment, in the Willoughby Hills Towers, playing video
games. Basinger used Shirer’s phone to call Putzbach to set up a marijuana deal.
Surveillance cameras on the 12th floor of the apartment building captured appellant,
Basinger, and Shirer walking from appellant’s apartment toward an elevator. Basinger
had a roll of duct tape around his right forearm.
{¶5} The three men proceeded into the parking lot of the complex, where they
found Putzbach in his vehicle. All three entered the vehicle; Shirer sat in the front
passenger seat, Basinger behind Putzbach, and appellant in the backseat of the
passenger side. After a brief discussion, Basinger brandished a chain and looped it
around Putzbach’s neck. Putzbach struggled but, due to the tightness of the chain, was
unable to speak. Basinger eased the pressure long enough for Putzbach to give the
men his ATM personal identification number, then reapplied the pressure. Putzbach
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struggled to loosen the chain, but was pulled into the rear of the vehicle. According to
appellant, Basinger released the chain, produced a claw hammer, and repeatedly beat
Putzbach in the head until he stopped moving. Basinger then bound Putzbach’s hands
with the tape and took his wallet and phone.
{¶6} Basinger, with appellant in the passenger seat, left the apartment complex
in Putzbach’s car. Shirer followed in his vehicle. Putzbach remained in the backseat of
his vehicle, bound, bleeding, and motionless. They drove to Kirtland, Ohio, where
Shirer filled up his gas tank using cash stolen from Putzbach. The group then drove to
Willoughby Hills where they pulled into a metropark where, according to appellant,
Basinger discarded various items from Putzbach’s trunk. Appellant stated Basinger
then moved Putzbach from the backseat to the trunk. The men eventually returned to
appellant’s apartment.
{¶7} Bank records revealed that two unsuccessful attempts were made to
withdraw money from Putzbach’s account that night. The records further demonstrated
the attempts were made from an ATM located near the Willoughby Hills Towers
apartment complex.
{¶8} Over the next several days, Basinger continued to drive Putzbach’s
vehicle. He and Shirer also made multiple purchases from Walmart using Putzbach’s
stolen credit card. After Putzbach was reported missing from work on Monday and
Tuesday, April 11 and 12, an investigation was initiated. Using bank and cell phone
records, as well as surveillance footage from Walmart, Basinger and Shirer became
suspects.
{¶9} On April 18, 2011, officers went to the Willoughby Hills Towers to question
Shirer regarding Putzbach’s whereabouts. As they entered the complex, they
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immediately noticed Putzbach’s 1995 Pontiac Grand Am in the parking lot. They
peered inside the vehicle and observed the back seat was completely covered with a
comforter; they also noticed duct tape in the vehicle’s back window. Given the pending
investigation, officers began to process the vehicle.
{¶10} Upon opening the vehicle’s trunk, officers discovered Putzbach’s beaten,
bound, and bloodied body, face down. As their search progressed, officers discovered
a significant amount of blood in the back seat. They also recovered a four-foot-long,
linked chain and a blood-stained roll of duct tape. Appellant and Shirer, who were both
in their apartment, were immediately arrested and taken into custody. During a
subsequent search of the apartment, officer’s seized a hammer of which appellant
acknowledged ownership. On the same day, officers recovered Putzbach’s belongings
from the metropark at which they were discarded a week earlier.
{¶11} Blood-spatter analysis was conducted on the interior of Putzbach’s vehicle
by forensic scientist, Curtiss Jones. Jones opined that the spatters, located on the
interior surface of the rear-passenger window and door, came from multiple impacts.
He further opined that the blood source was located in the rear passenger compartment
at the time of the impacts. And, given the circular to oval shape of the spatters, the
source would have been situated at approximately the same height of the window.
{¶12} Dr. Stephen LaBonne, DNA technical manager at the Lake County Crime
laboratory, conducted DNA testing on the hammer. The hammer tested presumptively
positive for the presence of blood. After further testing, Dr. LaBonne opined the blood
included a mixture of DNA. He testified, however, he could not, within a reasonable
degree of scientific certainty, draw an affirmative conclusion regarding the source of the
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DNA. The doctor simply testified neither appellant nor Putzbach could be excluded as
contributors.
{¶13} During his interview with police, appellant admitted to being in the vehicle
when Putzbach was murdered. He denied, however, any participation in the assault.
He told police that Basinger single-handedly strangled, beat, and bound Putzbach.
Appellant also stated Basinger, by himself, removed Putzbach’s body from the back
seat of his car to the trunk.
{¶14} June 14, 2011, the Lake County Grand Jury indicted appellant on two
counts of aggravated murder, in violation of R.C. 2903.01 (Counts One and Two); six
counts of murder, in violation of R.C. 2911.01(A)(3) (Counts Three through Eight); one
count of aggravated robbery, a first degree felony, in violation of R.C. 2911.01(A)(3)
(Count Nine); two counts of kidnapping, first degree felonies, in violation of R.C.
2905.01 (Counts Ten and Eleven); two counts of felonious assault, second degree
felonies, in violation of R.C. 2903.11 (Counts Twelve and Thirteen); and one count of
gross abuse of a corpse, a fifth degree felony, in violation of R.C. 2927.01 (Count
Fourteen). Appellant pleaded not guilty.
{¶15} A jury trial commenced after which appellant was found guilty on all
counts. For purposes of sentencing, the trial court merged Counts Two through Eight
into Count One; Count Eleven into Count Ten; and Count Thirteen into Count Twelve.
Appellant was then sentenced to life imprisonment without the possibility of parole on
Count One; the court further sentenced appellant to nine years imprisonment on Count
Nine, nine years imprisonment on Count Ten, seven years imprisonment on Count
Twelve, and 11 months imprisonment on Count Fourteen. The sentences were ordered
to be served concurrently.
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{¶16} Appellant now appeals and assigns eight errors for our review. His
assignments of error shall be addressed out of order.
{¶17} Appellant’s third assignment of error reads:
{¶18} “The trial court erred to the prejudice of the defendant-appellant when it
allowed a lay witness to offer an expert opinion.”
{¶19} Appellant argues the trial court erred in allowing the scientific testimony of
two of the state’s witnesses without making the threshold determination that the
witnesses were experts. Again, no objection was made at trial to the trial court’s failure
to declare these witnesses experts on the record. Thus, appellant has waived all but
plain error on this issue.
{¶20} Multiple appellate courts in Ohio, including this district, have concluded
that a trial court need not expressly state a witness is qualified as an expert before the
expert offers opinion testimony. State v. Waskelis, 11th Dist. No. 2011-P-0035, 2012-
Ohio-3030, ¶64; State v. Webb, 6th Dist. No. L-90-280, 1991 Ohio App. LEXIS 5482,
(Nov. 15, 1991); State v. Skinner, 2d Dist. No. 11704, 1990 Ohio App. LEXIS 4178,
(Sept. 26, 1990); State v. Wash, 1st Dist. No. C-950371, 1996 Ohio App. LEXIS 1441,
*15 (Apr. 10, 1996). Thus, as long as the record demonstrates no abuse of discretion in
allowing the testimony, a reviewing court will not disturb expert testimony “simply
because ‘magic’ words do not appear on the face of the record. Skinner, supra.
{¶21} Pursuant to Evid.R. 702, a witness may testify as an expert if “[t]he
witness’ testimony either relates to matters beyond the knowledge or experience
possessed by lay persons or dispels a misconception common among lay persons, * * *
[t]he witness is qualified as an expert by specialized knowledge, skill, experience,
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training, or education regarding the subject matter of the testimony,” and “[t]he witness’
testimony is based on reliable scientific, technical, or other specialized information.”
{¶22} Curtiss Jones, Supervisor of the Trace Evidence Department at the
Cuyahoga County medical Examiner’s Office, testified as an expert in bloodstain and
blood-spatter analysis. Mr. Jones listed his educational and professional credentials in
open court which were unchallenged by defense counsel; in fact, defense counsel
acknowledged Mr. Jones as an expert on record. And the record discloses Mr. Jones’
testimony and opinions regarding the blood spattering on the interior rear passenger
door and window of the victim’s car were based upon his education, training, and
experience in bloodstain pattern interpretation. Mr. Jones’ testimony related to a
specialized knowledge beyond an average person’s knowledge and nothing in his
testimony suggests the methods he employed were unreliable.
{¶23} Dr. Stephen LaBonne, DNA Technical Manager at the Lake County Crime
Laboratory, testified as an expert in DNA analysis based upon his education,
qualifications, and training. Like Mr. Jones, Dr. LaBonne’s credentials and professional
background were put on record and went unchallenged by defense counsel. Dr.
LaBonne described the tests he conducted on the chain as well as the hammer and
testified to the test results. The tests and analyses were beyond the ken of the average
juror, relevant to the prosecution, and there is no indication the methods used by Dr.
LaBonne were suspicious or unreliable.
{¶24} Given these points, we hold the trial court did not abuse its discretion in
admitting both Mr. Jones’ and Dr. LaBonne’s expert testimony. The state laid an
adequate foundation for the testimony of both of the witnesses; and their background,
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skills, and opinions meet the requirements of Evid.R. 702 and the trial court’s failure to
explicitly declare them experts on the record is not plain error.
{¶25} Appellant’s third assignment of error is without merit.
{¶26} Appellant’s fourth assignment of error asserts:
{¶27} “Defendant-appellant was denied effective assistance of counsel in
violation of the Sixth Amendment of the United States Constitution.”
{¶28} To establish ineffective assistance of counsel, an appellant must show
that his attorney’s performance was deficient and that the alleged deficiencies
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Both the
performance and prejudice prongs must be established to demonstrate counsel’s
ineffectiveness.
{¶29} An attorney’s performance is deficient if, after considering the totality of
the circumstances, his or her representation fell below an objective standard of
reasonableness. Id. at 688. A court, however, “must indulge in a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. Debatable trial tactics do not generally constitute deficient
performance. State v. Phillips, 74 Ohio St.3d 72, 85, (1995) citing State v. Clayton, 62
Ohio St.2d 45, 49 (1980).
{¶30} With respect to the prejudice prong, an appellant must show a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. Strickland, supra, at 694. A reasonable probability is “a
probability sufficient to undermine confidence in the outcome” of the proceeding. Id.{¶31} Appellant first contends his trial counsel was ineffective when he failed to
object to the testimony of Curtiss Jones, the state’s blood-spatter expert. Appellant
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asserts the witness was not an expert and his credibility was enhanced when defense
counsel openly recognized the witness as an expert.
{¶32} As discussed under appellant’s third assignment of error, the trial court did
not abuse its discretion in accepting Mr. Jones’ expert testimony. Both his credentials
and his testimony met the requirements of Evid.R 702. And, moreover, although
defense counsel acknowledged Jones as an expert, this recognition was likely placed
on record for the jury to hear, on cross-examination, that, according to the state’s
expert, the spatters did not undermine appellant’s innocence defense. We find no error
in defense counsel’s approach to examining Mr. Jones.
{¶33} Next, appellant contends his trial counsel was ineffective for failing to
contest the admission of the blood-spatter testimony pursuant to Daubert v. Merrell Dow
Parmaceuticals, 509 U.S. 579 (1993). Appellant essentially contends that counsel was
ineffective because he did not contest the reliability of blood-spatter analysis.
{¶34} A trial court does not err by allowing a blood-spatter expert to testify
without holding a Daubert hearing. State v. Crawford, 1st Dist. No. C-70816, 2008-Ohio-
5764, ¶64. Further, the Supreme Court of Ohio has repeatedly acknowledged that
blood-spatter analysis and testimony regarding that analysis is a proper subject for
expert testimony. State v. Biros, 78 Ohio St.3d 426, 452 (1997); see, also, State v.
Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶56. Thus, even had counsel moved to
exclude Jones’ testimony, such a motion would have been unsuccessful. Counsel’s
performance cannot be deemed deficient under these circumstances.
{¶35} Appellant next asserts trial counsel was ineffective when he failed to
object to alleged prejudicial statements included in the video of his interrogation that
was played for the jury in its entirety. Prior to the video being introduced, the
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interrogating officer was examined by the prosecutor to place the interrogation in its
proper context. The officer testified how appellant’s story had evolved from not being
present during the murder to being a witness to the murder. And, even though
appellant denied involvement throughout the interview, the officer testified appellant’s
tone and demeanor went from strident denial to “very sullen, very quiet” as the interview
progressed. The jury was subsequently permitted to review the appellant’s interview.
{¶36} During the interrogation, the following exchange took place between
appellant and Willoughby Hills police:
{¶37} [Officer:] Here’s the deal: Willowick detectives are talking to Ron
right now, okay?
{¶38} [Appellant:] Uh-huh.
{¶39} [Officer:] And you know what Ron’s telling them?
{¶40} [Appellant:] No.
{¶41} [Officer:] Ron’s telling them that you helped carry the body from the
back seat to the trunk.
{¶42} [Appellant:] That’s not right.
{¶43} [Officer:] He said that you had the shoulders/head area, Kyle had
the feet and Ron had the middle torso. And you guys all helped
carry it and put it into it. As a matter of fact, Ron even said that you
actually had the head and it kind of slipped and it went down your
shirt and onto your shorts. So - - but you didn’t drop it, I mean, it
fell on you but you - - it hit your leg, you picked it up, and you put it
in the trunk. You put the body in the trunk.
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{¶44} [Appellant:] Then wouldn’t my fingerprints be on the shoulder area
or whatever?
{¶45} [Officer:] I’m assuming so.
{¶46} [Appellant:] They won’t be, because I didn’t touch that body. I
never assisted him with it.
{¶47} Appellant argues that permitting the jury to view the video of the
interrogation was prejudicial because it included inadmissible hearsay as well as
statements that were uncorroborated by independent reliable evidence. Appellant also
notes that one of his interrogators stated that the authorities had a video that implicated
appellant in the murder. Appellant contends this statement was false and therefore
highly prejudicial to his defense.
{¶48} First of all, the statement by the officer that appellant was on video was
accurate and supported by additional independent evidence. The state introduced
pictures from the Willoughby Hills Towers’ security camera depicting appellant,
Basinger, and Shirer leaving the 12th floor of the apartment building on the night of and
just prior to Putzbach’s murder. Although the statement may have been prejudicial, as
all evidence against an accused is, it was not unduly prejudicial. Thus, we find no error
in permitting the jury to hear the interrogator’s statement vis-à-vis the video.
{¶49} Moving on to the officer’s representation that appellant’s co-defendant had
implicated appellant. Appellant asserts the statements made by the officer were
inadmissible testimonial hearsay which violated his Sixth Amendment right to
confrontation. For the reasons that follow, we agree with appellant’s argument.
{¶50} The Confrontation Clause prohibits the admission or use of testimonial
statements of a witness who does not appear at trial unless that witness is unavailable
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to testify, and the defendant has had a prior opportunity for cross-examination.
Crawford v. Washington, 541 U.S. 36, 68 (2004). The Sixth Amendment right to
confrontation, however, may only be invoked under situations where hearsay is offered
into evidence. Id. at 60, n. 9. The United States Supreme Court has held that a
defendant’s right to confrontation is violated where the state offers, for their truth, any
portions of statements of a co-defendant made to police that directly or indirectly
inculpate the defendant. See Bruton v. United States, 391 U.S. 123 (1968). The
statements, however, must be hearsay to trigger the Bruton rule. See e.g. Crawford,
supra. (“[t]he [Confrontation] Clause does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.”)
{¶51} With these guiding principles, we first consider whether the interrogation
statements at issue were testimonial. In the consolidated cases of Davis v. Washington
and Hammon v. Indiana, 547 U.S. 813 (2006), the United States Supreme Court
observed:
{¶52} Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution. Id. at 822.
{¶53} There was no ongoing emergency in this case. It follows, therefore, that
the statements made in the course of the interrogation at issue were testimonial. We
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must next determine whether the statements at issue were hearsay such that
appellant’s right to confrontation was triggered.
{¶54} Hearsay is a statement, other than one made by a declarant while
testifying, offered to prove the truth of the matter asserted. Evid.R. 801(C). The state
contends the statements in the interrogation video were not hearsay because they were
merely designed to elicit a reaction from appellant. Hence, the state maintains, they
were not offered to prove the truth of the matter asserted.
{¶55} Although the state’s position is facially reasonable, our analysis does not
end with this conclusion. Even if the statements were offered to merely demonstrate
their effect on appellant, we must still consider how appellant’s reactions were probative
of an issue of consequence. Because a defendant’s reactions during a police
interrogation, unto themselves, are irrelevant absent a context in which a fact-finder is
able to evaluate them, we find that the only relevance appellant’s reactions could have
was to offer proof of the truth of what the officer was asserting during the interrogation;
namely, that Shirer told police appellant was involved in the murder.
{¶56} While, in the abstract, a statement offered to show its effect on a listener is
permissible, non-hearsay evidence, reactions, particularly those relating to the
statements of another, cannot be considered in a vacuum. Appellant’s reactions,
consequently, only have content within the context of the statement the officer has
made. And the effect of the statements is relevant only to the extent it elicited a
reaction to support the truth of the matter asserted. Thus, the effect or reaction is
necessarily based upon the officer’s representation that the statement, as offered, is
true.
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{¶57} Just as the officer could not personally testify that Shirer, in a separate
interrogation, implicated appellant in the crime, we decline to endorse the state’s
attempt to introduce similar evidence by way of video. Allowing the state to do so would
validate the introduction of otherwise inadmissible evidence and inherently compromise
the fundamental fairness of the judicial process. We therefore conclude that the
officer’s statement was hearsay that, in this case, implicated appellant’s right to
confrontation.
{¶58} Given this conclusion, we must examine the legal implications of
introducing the officer’s statement. As alluded to above, the admissibility of statements
made or allegedly made by a non-testifying codefendant is governed by the United
States Supreme Court’s decision in Bruton, supra. In that case, codefendants, Evans
and Bruton, were jointly tried on charges of armed postal robbery. A postal inspector
testified that Evans confessed to the crime and told him that Bruton aided him. Evans,
however, did not testify at trial and, as a result, Bruton did not have an opportunity to
cross-examine Evans regarding the confession. The trial court instructed the jury that
the confession was admissible only against Evans, but could not be considered in
determining Bruton’s guilt as it was inadmissible hearsay. Bruton and Evans were
convicted.
{¶59} The Supreme Court of the United States reversed Bruton’s conviction,
holding that, notwithstanding the limiting instruction, there was a substantial risk that the
jury still looked to the incriminating extrajudicial statements in determining Bruton’s guilt
in violation of his right to confrontation. Id. at 126; 137. The court acknowledged “the
impossibility of determining whether in fact the jury did or did not ignore Evans’
statement inculpating [Bruton] in determining [Bruton’s] guilt.” Id at 136. According to
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the court, however, the substantial threat to Bruton’s constitutional right to confront a
witness whose potentially unreliable statement was introduced against him was a
problem that could not be ignored. Id. at 137.
{¶60} The rule in Bruton may be expressed as follows: Any statement made by
a non-testifying codefendant that serves to inculpate an accused is a violation of the
accused’s constitutional right to confront adverse witnesses and such statements must
therefore be excluded from evidence. See e.g. State v. Yeager, 9th Dist. Nos. 21091,
21112, 21120, 2003-Ohio-1808, ¶16.
{¶61} In discussing the scope of Bruton, the Supreme Court of Ohio has
observed:
{¶62} “[T]he Bruton rule applies with equal force to all statements that tend
significantly to incriminate a co-defendant * * *. The fact that the incrimination amounts
to a link in a chain of circumstances rather than a direct accusation cannot dispose of
the applicability of the Bruton rule. Just as one can be convicted on circumstantial
evidence, one can be circumstantially accused.” State v. Moritz, 63 Ohio St.2d 150,
153, quoting Fox v. State, 384 N.E. 2d 1159, 1170 (Ind. App. 1979).
{¶63} A Bruton problem will arise, consequently, when the trial court admits into
evidence a non-testifying defendant’s statement that implicates the other defendant in
criminal activity. And, pursuant to the Supreme Court’s observation in Moritz, supra, it
also follows that a Bruton violation occurs where a trial court permits the introduction of
evidence ascribed to a non-testifying codefendant that directly implicates the accused in
the underlying crime(s). Moritz, supra. (Bruton applies to all statements that tend in a
significant way to incriminate).
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{¶64} Even if there is evidence of a Bruton violation, however, a reversal is only
necessary where an examination of the evidence leads to the firm conclusion that a
defendant’s right to a fair trial was so jeopardized that a mistrial was required to meet
the demands of justice. Yeager, supra, at ¶42; see, also Moritz, supra, at 153. (If
evidence of guilt is so overwhelming that the prejudicial effect of the admission of a
codefendant’s statement was insignificant, the Bruton violation may be deemed
harmless error.)
{¶65} In this case, the statement, ascribed to Shirer, specifically implicated
appellant in the movement of the body but did not directly implicate appellant in the
murder, robbery, kidnapping, or assault. It did, however, act as a “circumstantial
accusation” that appellant was involved in the crimes despite his regular and continued
protestations of innocence. Whether Shirer ever actually implicated appellant is
immaterial. The admission of the statement permitted the jury to premise its verdict
upon the incriminating, yet potentially unreliable, extrajudicial statement ascribed to
Shirer without appellant having the opportunity to test Shirer in the crucible of cross-
examination.
{¶66} We therefore conclude defense counsel rendered deficient performance in
failing to object to the introduction of the portion of the video in which the interrogator
told appellant Shirer had implicated him. To rise to a reversible error, however,
counsel’s failure to object had to cause appellant’s defense prejudice, i.e., counsel’s
omission had to be sufficient to undermine confidence in the outcome of the trial. For
the following reasons, we conclude appellant suffered prejudice.
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{¶67} Although the state introduced some evidence implicating appellant in the
attack, a review of the entire record fails to disclose overwhelming evidence of his guilt
beyond a reasonable doubt.
{¶68} Before discussing the salient evidence upon which the state based its
case, however, we must first address the impact of what the state asserts were “limiting
instructions” regarding the interrogation video. Prior to giving the case to the jury, the
court provided the following instruction: “A video recording and testimony relating to it
have been introduced into evidence. You shall consider whether the video recording is
a true record of what transpired at the time it was taken. If you find that it is, you will
then determine what weight, if any, the video recording should receive in light of all the
evidence.”
{¶69} While this instruction directed the jury that it was entitled to give the video
the weight it deemed appropriate, it did not advise the jury to disregard the content of
the officer’s statement that is the subject of the Bruton violation. Furthermore, the
Supreme Court in Bruton specifically held that the heightened risk that a jury, despite
instructions to the contrary, will rely upon the extrajudicial statement in rendering its
verdict is sufficient to violate the Confrontation Clause of the Sixth Amendment. The
instruction in this case was non-specific and therefore is completely inconsequential to
our analysis.
{¶70} The evidence in this case demonstrated that appellant never admitted to
knowing about a plan to rob or murder the victim. And he consistently maintained he
was not involved in the attack. Rather, over the course of a lengthy interview, appellant
routinely stated once Basinger commenced the attack, he was in shock and crouched
into the rear passenger corner of the vehicle.
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{¶71} Further, a hammer, which belonged to appellant, was eventually seized by
police. DNA analysis was conducted on the hammer and results were ultimately
deemed inconclusive. Dr. LaBonne specifically testified that he was able to recover two
DNA profiles from the hammer. While he could not conclude to a reasonable degree of
scientific certainty who the profiles belonged to, he testified neither the victim nor
appellant could be excluded. In particular, Dr. LaBonne explained:
{¶72} In some cases if you have a very unequal mixture it’s possible to
separate that out as a major and minor components, because
basically what I’m looking at is peaks on a plot and the heights of
those peaks are pretty well proportional to the amount of DNA there
was going in. In this case I had a fairly equal mixture of peaks that
were all roughly in the same size range. All of the peaks
associated with each of those two individual[s] was present. So,
my evidence is most easily explained by being a mixture of Mr.
Brown’s and Mr. Putzbach’s DNA. On the alternate hypothesis that
it was either Mr. Brown or some other individual, or Mr. Putzbach
and some other individual, those other individuals are quite rare in
the population. I came prepared with a number. The smallest
number out of the four population data bas[e]s that the FBI provides
us is for the Caucasian population, and roughly 1 in 5 million
unrelated individuals in the general population would be a possible
alternate donors would explain that stain.
{¶73} The foregoing evidence, by itself, does not implicate appellant in the
crime. Because he owned the hammer, it is unremarkable that a DNA profile from
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which appellant could not be excluded was found on the tool. Moreover, the evidence
demonstrated that Basinger was in appellant’s apartment during the hours leading up to
the murder. Hence, given appellant’s story, one could reasonably conclude Basigner
took the hammer from appellant’s apartment without appellant’s knowledge.
{¶74} The state, in its brief, points out that the ceiling of the vehicle, from the
center to the far passenger side, show multiple impact marks which resemble the
parallel edges of the top of a claw hammer. The state also emphasizes that appellant
admitted to sitting in this area during the attack. The state maintains these points
provide a circumstantial basis, along with appellant’s acknowledged ownership of the
hammer, that appellant, not Basinger, struck the victim with the hammer. Nowhere,
however, did the state specifically establish that the marks on the vehicle’s ceiling were
actually made by a hammer or made during the attack. Furthermore, no blood or blood
spatter was found on the vehicle’s ceiling. And, even if the hammer created the
indentations in the ceiling, it is not obvious how their location could be considered
dispositive evidence of appellant’s involvement. Regardless of appellant’s placement in
the vehicle, Basinger was not physically precluded from leaning toward the area where
appellant was sitting to strike the victim with the hammer.
{¶75} Dr. Joseph Felo was the pathologist who conducted the autopsy on the
victim. Dr. Felo testified, to a reasonable degree of medical certainty, that the victim
was alive when he sustained the blows to the head. And, the doctor stated the blunt
force trauma to the head was, unto itself, insufficient to cause the victim’s death.
Indeed, the autopsy revealed the victim’s death was a result of asphyxiation, i.e., a
cessation of blood to the brain. Dr. Felo further testified that death by asphyxiation
occurs only with continuous pressure on the arteries supplying blood to the brain. If, for
19
instance, an individual’s heart is still pumping and pressure around the neck is released
or relaxed, the blood will resupply the brain and the individual could revive.
{¶76} Appellant’s version of what happened is not inconsistent with the doctor’s
findings. Appellant maintained that prior to brandishing the hammer, Basinger let up on
the chain. Appellant never stated Basinger dropped the chain while he struck the victim
with the hammer and, as such, once the hammer was raised, Basinger could have
tightened the choke anew. Thus, the medical evidence that the victim died of
asphyxiation, but was not dead when the hammer blows were delivered, does not refute
appellant’s rendition of the attack.
{¶77} The state also places emphasis that the Willoughby Hills Towers’ security
camera depicting appellant, Shirer, and Basinger leaving to meet the victim in the
parking lot just prior to the murder. The pictures show Basinger with a roll of duct tape
around his arm. The state asserts the presence of the roll of tape on Basinger’s arm
would have alerted a reasonable person that something other than a drug deal was
going to transpire. While this may be true, we fail to see how the presence of the duct
tape on Bassinger’s arm is enough to permit the inference that appellant had
foreknowledge that an attack was about to take place.
{¶78} The only direct evidence of appellant’s involvement came from a passing
statement he made towards the end of his interview. As discussed above, appellant
steadfastly and consistently maintained he had no involvement and had no
foreknowledge of a plan to either rob or murder the victim. When appellant was asked
by his interrogator to rehash the attack, appellant again stated Basinger, while still
choking the victim, brandished the hammer and began to bludgeon the victim.
Appellant further stated, however, that, as Basinger pulled the weapon from his pocket
20
“we had pulled the dude back;” a statement indicating he and Shirer had some
involvement in the attack. This statement was not discussed, let alone emphasized, at
trial by the prosecution.
{¶79} We recognize that the above statement was enough to submit the case to
the jury; we cannot say, however, given appellant’s otherwise repeated and aggressive
denials of any involvement in the crimes, coupled with the paucity of supplementary
direct, as well as circumstantial evidence, that the statement, by itself, was sufficient to
overcome the prejudice appellant sustained as a result of the introduction of the
challenged statement. Because of the substantial risk that the jury relied upon the
inculpatory statement ascribed to Shirer in arriving at its verdict, we hold the admission
of the statement violated appellant’s right to confrontation secured by the Sixth
Amendment. Counsel’s performance, in this regard, was ineffective requiring reversal.
{¶80} Next, appellant draws this court’s attention to additional testimony to which
counsel failed to object which, he claims, materially prejudiced his defense. To wit, on
direct examination, Detective Ron Parmertor testified that, during the search of
appellant’s home, he found 49 video games, most of which were of a violent nature.
We agree that the detective’s testimony regarding the violent nature of the video games
is irrelevant. Without some expert testimony that violent video games negatively impact
a person’s behavior and evidence that appellant played the games in question, the
detective’s observation completely lacked foundation. And, on cross-examination,
although the detective testified he had never viewed or played the games, he also
testified that, through conversations with one of appellant’s co-defendants, he had
knowledge that appellant played the games. Introducing this testimony could have
21
foreseeably prejudiced the jury by urging it to believe appellant was either a violent
person or desensitized to violence.
{¶81} This testimony, standing alone in a matter where the evidence militates
strongly in favor of a conviction, would not likely undermine confidence in the outcome
of the case. When considered in conjunction with the Bruton violation, however, we
hold, in this case, this line of questioning, without objection, raises additional serious
questions about the quality of the evidence upon which the jury based its verdict. We
therefore conclude the admission of this evidence, when viewed together with the
Bruton error, cannot be construed as harmless. We consequently hold counsel was
ineffective for failing to object to Officer Parmertor’s unfairly prejudicial testimony
regarding the purportedly violent video games found in the apartment.
{¶82} For the reasons discussed above, appellant’s fourth assignment of error is
sustained.
{¶83} We shall next address appellant’s sixth assignment of error. It alleges:
{¶84} “The trial court erred to the prejudice of the defendant-appellant in
denying his motion for acquittal made pursuant to Crim.R. 29(A).”
{¶85} A “sufficiency” argument raises a question of law as to whether the
prosecution offered some evidence concerning each element of the charged offense.
State v. Windle, 11th Dist. No. 2010-L-0033, 2011 Ohio 4171, ¶25. “[T]he proper inquiry
is, after viewing the evidence most favorably to the prosecution, whether the jury could
have found the essential elements of the crime proven beyond a reasonable doubt.”
State v. Troisi 179 Ohio App. 3d 326, 2008 Ohio 6062 ¶9, 901 N.E.2d 856 (11th Dist.).
{¶86} In contrast, a court reviewing the manifest weight observes the entire
record; weighs the evidence and all reasonable inferences; considers the credibility of
22
the witnesses; and determines whether, in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Schlee, 11th Dist. No. 93-L-082,
1994 Ohio App. LEXIS 5862, *14-*15 (Dec. 23, 1994).
{¶87} Appellant was convicted of, inter alia, aggravated murder. That is, he was
convicted of aiding and abetting in purposely causing the death of Putzbach, while
committing, or attempting to commit an aggravated robbery. The relevant sections of
the aggravated robbery statute provide:
{¶88} (A) No person, in attempting or committing a theft offense, as
defined in section 2913.01 of the Revised Code, or in fleeing
immediately after the attempt or offense, shall do any of the
following:
{¶89} (1) Have a deadly weapon on or about the offender's person or
under the offender's control and either display the weapon,
brandish it, indicate that the offender possesses it, or use it;
{¶90} * * *
{¶91} (3) Inflict, or attempt to inflict, serious physical harm on another. R.C.
2911.01(A)(1) and R.C. 2911.01(A)(3).1
{¶92} Construing the evidence in the prosecution’s favor, we must consider
whether it was sufficient to submit the case to the jury. Although the evidence
supporting the state’s case was not overwhelming, we hold it was sufficient. Despite
1. Appellant takes issue only with his aggravated murder conviction; we therefore need not address
whether evidence supported appellant’s remaining convictions.
23
appellant’s consistent denial of his involvement, we hold the state produced sufficient
evidence.
{¶93} As discussed above, near the end of his interrogation, officers asked
appellant to reiterate the details of the attack. According to appellant, Basinger
loosened the chain with which he was choking the victim, and grabbed the hammer with
his right hand. Appellant then stated Basinger proceeded to bludgeon the victim.
{¶94} While recounting the above details, however, appellant also made the
following statement: “[Basinger] took [the hammer] out of his pocket, and then we had
pulled the dude back, he like reached down and picked [the hammer] up.” (Emphasis
added.) This statement suggests he was actively involved in the attack by pulling the
victim toward the rear passenger compartment of the vehicle. By making this
statement, even if appellant did not mean what he said, he ultimately implicated himself
in the crimes.
{¶95} Accepting the foregoing conclusion, the evidence also indicated that
appellant, by his involvement in the attack, also assisted in the commission of an
aggravated robbery. Appellant stated that, during the initial stages of the attack,
Basinger relaxed the choke and demanded the victim to release his personal
identification number on his bank account. The victim gave his assailants a number
which was later proven to be an inaccurate PIN. Moreover, after the attack, appellant
noted that Basinger took the victim’s wallet. This evidence would permit the jury to
conclude that Basinger inflicted serious physical harm with a deadly weapon while
attempting to commit or for the purpose of committing a theft offense. There was
therefore sufficient evidence to demonstrate appellant, due to his participation in the
attack, was complicit in the aggravated robbery.
24
{¶96} For the foregoing reasons, appellant’s sixth assignment of error is without
merit.
{¶97} Appellant’s first, second, fifth, seventh, and eighth, assignments of error
provide:
{¶98} “[1.] The trial court erred to the prejudice of the defendant-appellant when
it allowed the jury to view prejudicial and unreliable evidence.”
{¶99} “[2.] The trial court erred to the prejudice of the defendant-appellant when
it allowed the jury to hear irrelevant and prejudicial evidence.”
{¶100} “[5.] The trial court erred to the prejudice of the defendant-appellant when
it returned a verdict of guilty against the manifest weight of the evidence.”
{¶101} “[7.] The trial court erred to the prejudice of the defendant-appellant by
failing to merge allied offenses of similar import.”
{¶102} “[8.] The trial court erred by sentencing the defendant-appellant to a term
of imprisonment contrary to statute and where its findings were not supported by the
record.”
{¶103} Given our disposition of appellant’s fourth assignment of error, appellant’s
remaining assignments of error are moot.
{¶104} Appellant’s third and sixth assignments of error lack merit. To the extent
discussed above, however, his fourth assignment of error is sustained. The judgment of
the Lake County Court of Common Pleas is hereby reversed and the matter remanded
for a new trial.
THOMAS R. WRIGHT, J., concurs with a Concurring Opinion,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
25
_______________
THOMAS R. WRIGHT, J., concurs with a Concurring Opinion.
{¶105} Based upon the evidence, the jury was primarily presented with choosing
between whether appellant planned or participated in the charged crimes or was a
bystander.
{¶106} While the presence of one’s DNA at a crime scene is often relevant in
proving who committed the crime, that is not always the case. There is no dispute that
Basinger, Shirer, and appellant gathered at appellant’s residence prior to the incident.
However, the state was unable to establish through any direct evidence that appellant
planned or even knew that an attack would soon take place. Moreover, there was
ample opportunity for Basinger to take the hammer from appellant’s apartment
unbeknownst to him. As appellant’s DNA would be present on the hammer whether he
planned or participated in the incident or was a bystander, it is of virtually no probative
evidence in deciding his culpability.
{¶107} Regarding the marks on the ceiling, again, this evidence is of little to no
probative value in determining whether appellant planned or participated in the incident
or was a bystander. Assuming that the marks were made during the attack, there is
virtually no evidence to establish that appellant as opposed to Basinger swung the
hammer.
{¶108} Regarding Basinger carrying a roll of duct tape, this too is of little to no
probative value in deciding whether appellant planned or participated in the incident.
Suffice it to say that duct tape has countless uses. Few if any of us seeing someone
with a roll of duct tape would conclude that criminal activity is afoot or soon to occur.
26
{¶109} Turning to the officer’s statements in the video regarding Shirer’s
statements of appellant’s culpability, while I appreciate the analysis regarding whether
the statements were made for the proof of the matter asserted or otherwise, the salient
fact is that the jury was not instructed or precluded from considering them for the truth of
the matter asserted. Accordingly, the hearsay or nonhearsay quality of the statements
is inconsequential.
{¶110} Even considering the “we” statement in the context of the police
interrogation with appellant’s otherwise consistent denial, based upon the totality of the
evidence, appellant has demonstrated prejudice i.e., a reasonable likelihood that the
outcome of the case would have been otherwise but for the admission of Shirer’s
statements regarding appellant’s conduct. See Strickland.
______________
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
{¶111} I dissent from the majority’s decision to reverse and remand this matter,
based on its determination that there was a Bruton violation and that Brown’s right to a
fair trial was violated. There was sufficient evidence of the crimes for which Brown was
convicted to overcome any prejudice sustained by Brown as a result of his counsel’s
failure to object to the introduction of Detective Parmertor’s comments regarding
another defendant, Shirer’s, statement related to Brown’s involvement in the crime.
{¶112} While the majority argues that there was not sufficient evidence in this
case that Brown was aware of the plan to rob and murder the victim or that he was
involved in the crimes, there was evidence in the record aside from the statements of
Detective Parmertor to support a holding that the inclusion of those statements did not
27
prohibit Brown from receiving a fair trial. First, Brown’s DNA profile could not be
excluded from the hammer allegedly used in the attack. In fact, the testimony
presented was that the DNA evidence found on the hammer was “most easily explained
by being” a mixture of Brown’s and the victim’s, and that the chances of it being different
individuals’ DNA would be one in five million. Further, this hammer was found in
Brown’s apartment and its use was consistent with the trauma to the victim’s head.
{¶113} While this alone does not prove that Brown used the hammer in the
attack, it is just one piece of evidence that was before the jury for its consideration,
supporting a finding that there was sufficient evidence and no prejudice. It must be
emphasized that “a violation of an accused’s right to confrontation and cross-
examination is not prejudicial where there is sufficient independent evidence of an
accused’s guilt to render improperly admitted statements harmless beyond doubt.”
State v. West, 8th Dist. Nos. 97391 and 97900, 2013-Ohio-96, ¶ 11, citing State v.
Moritz, 63 Ohio St.2d 150, 407 N.E.2d 1268 (1980), paragraph two of the syllabus.
{¶114} Further, there were marks found on the ceiling near the passenger side of
the vehicle where the attack occurred, which resembled the edges of a claw hammer, in
the area where Brown admitted to sitting. Pictures of these marks were presented as
evidence. The majority asserts that the State did not “specifically establish that the
marks on the vehicle’s ceiling were actually made by a hammer or made during the
attack.” However, there was sufficient evidence before the jury to make such a
determination. The jury could conclude whether such marks appeared to be consistent
with the attack and this certainly provides further support for a guilty verdict. It is also
noteworthy that the victim’s brother testified that he saw the victim between three to five
28
days a week, had been in his car fairly recently, and that the marks located on the
ceiling of the passenger side of the car had not been there in the past.
{¶115} It must also be emphasized that when one of the other defendants,
Basigner, exited the apartment building to meet up with the victim, he was accompanied
by Brown and was carrying a roll of duct tape. This could easily support a conclusion by
a jury that Brown either did know or should have known that something more than just a
drug deal or meeting with a friend was about to happen.
{¶116} Although the majority states throughout its opinion that Brown denied his
involvement in the crimes, it also notes that there was sufficient evidence to support his
conviction, especially given his admission that “we pulled the dude back,” indicating that
he pulled the victim toward the rear of the vehicle. The transcript of the interview
indicates that Brown pulled the victim back while Basinger was getting the hammer out
of his shorts. The majority admits that such a statement “suggests that [Brown] was
actively involved in the attack.” Supra at ¶ 86. To conclude that Brown suffered
prejudice through the admission of the officer’s statement that Shirer stated Brown
helped move the victim’s body seems inconsistent and improper, given that similar, and
even more incriminating, information was presented to the jury through Brown’s own
statement. See State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d
1038, ¶ 222 (defendant experienced no prejudice from testimony that was corroborated
by other evidence in the record); State v. Sanders, 11th Dist. No. 2011-L-024, 2012-
Ohio-400, ¶ 55.
{¶117} In addition, Brown points to nothing in the record making it clear the jury
relied on the foregoing statements when reaching its verdict, especially given all of the
other evidence before it. When considering all of the foregoing evidence, there was
29
sufficient independent evidence of Brown’s guilt to render Detective Parmertor’s
statements harmless beyond doubt. There was no prejudice from Brown’s attorney’s
failure to object to the admission of the statements in question.
{¶118} Further, regarding the Bruton violation itself, the State’s argument that
there was no Bruton violation at all, since Detective Parmertor’s statement regarding
Shirer implicating Brown in the crime was not admitted to prove the truth of the
statement, but to show the reaction from Brown, has merit. It has been held that the
admission of nonhearsay is not a Bruton violation. United States v. Inadi, 475 U.S. 387,
398, fn. 11, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (nonhearsay, including statements
not introduced for the truth of the matter asserted, does not violate the defendant’s right
to confront witnesses). The Ohio Supreme Court has held that testimony is not
hearsay, when it “explains the actions of a witness to whom a statement was directed,
such as to explain the witness’ activities, * * * to show a state of mind, * * * or to explain
an act in question.” (Citations omitted.) State v. Maurer, 15 Ohio St.3d 239, 262, 473
N.E.2d 768 (1984).
{¶119} As the State has argued, the statements made by Detective Parmertor
were played for the jury to show how Brown acted, i.e., that Brown responded to
Shirer’s implicating comments, not that the comments themselves were true. It has
been held by many courts that statements are admissible where they were made to
elicit responses from the appellant and were not introduced to show that the statements
were actually true. State v. Dennis, 3rd Dist. No. 9-95-9, 1995 Ohio App. LEXIS 5234,
*6-7 (Nov. 22, 1995); State v. Rice, 11th Dist. No. 2009-A-0034, 2010-Ohio-1638, ¶ 23
(where the State did not intend to admit a statement for the truth of the matter asserted
30
but showed that the statement “elicit[ed] a response” from a defendant, it was not
hearsay).
{¶120} Further, the majority asserts that such statements still cannot be admitted
because of the response elicited and prejudice to Brown. See State v. Richcreek, 196
Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 23 (6th Dist.) (the potential for
prejudice resulting from nonhearsay statements must be considered by the court). As
noted above, however, no prejudice existed in the present matter, since similar
statements regarding Brown’s involvement were admitted through other testimony.
Based on the foregoing, it cannot be held that plain error occurred or that trial counsel
was ineffective by failing to object to the admission of the statements made during
Brown’s interview, especially since it would be reasonable for defense counsel to accept
the State’s assertion that the statements were admissible nonhearsay.
{¶121} In addition, the majority notes that the testimony regarding Brown owning
violent video games was improper because it could have prejudiced the jury. It provides
no case law, however, to support this position. It is also noteworthy that the video
games were not presented as exhibits to the jury for examination or consideration.
Further, although the majority argues that, when taken in consideration with the Bruton
violation, the admission of this testimony cannot be found to be harmless error, the
foregoing arguments still apply. There was more than sufficient evidence to convict
Brown of the crimes for which he was charged and, therefore, no prejudice resulted.
{¶122} Based on the foregoing, I respectfully dissent and would affirm Brown’s
conviction, since he suffered no prejudice from his counsel’s failure to object to the
admission of Detective Parmertor’s comments regarding Shirer’s statement.
31