State v. Ferrara , 2015 Ohio 3822 ( 2015 )

[Cite as State v. Ferrara, 2015-Ohio-3822.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 14 MA 4
V. )
) OPINION
JAMES P. FERRARA, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 13CR633
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph Rivera
Assistant Prosecutor
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney J. Gerald Ingram
7330 Market St.
Youngstown, Ohio 44512
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: September 14, 2015
[Cite as State v. Ferrara, 2015-Ohio-3822.]
DONOFRIO, P.J.
{¶1} Defendant-appellant, James Ferrara, appeals from a Mahoning County
Common Pleas Court judgment convicting him of three counts of aggravated murder,
following a jury trial.
{¶2} On December 14, 1974, Benjamin and Marilyn Marsh, along with their
four-year-old daughter Heather, were found murdered in their Turner Road home in
Canfield. Their one-year-old son was also home at the time, but only suffered a
concussion and survived. Ben and Marilyn both died from gunshot wounds. Heather
died from head injuries. Police located Marilyn’s car, which had been in the family’s
garage, at a K-Mart parking lot in Austintown not long after the murders.
{¶3} The Mahoning County Sheriff’s Department responded to the murder
scene along with investigators from the Ohio Bureau of Criminal Identification and
Investigation (BCI). The investigators lifted numerous latent fingerprints from
different locations at the scene. Bullets were later recovered from the victims’ bodies.
But no arrests were made at the time.
{¶4} In 2009, Deputy Sheriff Patrick Mondora began familiarizing himself
with the Marsh murder case. He contacted BCI fingerprint analyst Robin Ladd to see
if BCI had any of the evidence from the Marsh case. Ladd located the Marsh file at
BCI. She then entered the unidentified latent fingerprints found at the scene into the
Automated Fingerprint Identification System (AFIS) database. The AFIS is an FBI
database of known fingerprints. This technology was not available in 1974.
{¶5} The AFIS returned three “hits” on latent prints from the Marsh house.
The prints had been lifted from the man door leading into the Marsh garage. AFIS
identified the prints as belonging to the left middle finger, left ring finger, and left
pinkie finger of appellant. Once Ladd received these hits from AFIS, she pulled
appellant’s fingerprint card and made a comparison to the latent prints found at the
scene. She confirmed that the latent prints from the garage man door at the Marsh
house were appellant’s fingerprints. Ladd conveyed this information to now Detective
Patrick Mondora of the Mahoning County Sheriff’s Department.
{¶6} Detective Mondora interviewed appellant in February 2011. Detective
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Mondora learned that appellant had worked at General Motors from 1970 until 1983.
Ben Marsh had also worked at General Motors up until the time of his death.
Appellant told the detective that he did not know Ben Marsh, he did not know where
Ben Marsh lived, and he did not even know where Canfield was. He told the
detective he had never been to the Marsh house.
{¶7} On June 20, 2013, a Mahoning County Grand Jury indicted appellant
on three counts of aggravated murder, first-degree felonies in violation of R.C.
2903.01(B)(C); one count of aggravated burglary, a first-degree felony in violation of
R.C. 2911.(A)(1) and (B)(2); and one count of aggravated robbery, a first-degree
felony in violation of R.C. 2911.01(A)(1) and (B)(2). The aggravated burglary and
aggravated robbery charges were later dismissed because the statute of limitations
had expired on these crimes.
{¶8} The case proceeded to a jury trial. The jury found appellant guilty of all
three counts of aggravated murder. The trial court subsequently sentenced appellant
to three consecutive life sentences. Appellant filed a timely notice of appeal on
January 6, 2014.
{¶9} Appellant now raises six assignments of error.
{¶10} Appellant’s first assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ADMITTED EVIDENCE AND TESTIMONY REGARDING LATENT
FINGERPRINTS WITHOUT PROPER AUTHENTICATION.
{¶11} Appellant argues the trial court should not have admitted evidence of
the latent fingerprints lifted from the outside of the Marshes’ garage man door. He
asserts Michael Finamore never testified that the fingerprint card admitted at trial was
the same card he saw BCI investigator Bernie Albert prepare at the Marsh home on
December 14, 1974. Thus, appellant contends the evidence did not meet Evid.R.
901. He also argues the state cannot prove the chain of custody. Additionally,
appellant notes that photographs of the fingerprints’ location on the door were lost.
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For these reasons, he asserts the trial court erred in admitting the fingerprint
evidence.
{¶12} The admission or exclusion of evidence is within the trial court's broad
discretion and this court will not reverse its decision absent an abuse of that
discretion. State v. Mays, 108 Ohio App.3d 598, 617, 671 N.E.2d 553 (8th
Dist.1996). Abuse of discretion connotes more than an error of law or judgment; it
implies that the trial court's judgment was unreasonable, arbitrary, or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶13} Evid.R. 901(A) requires authentication or identification as a condition
precedent to admissibility. The requirement is “satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” Evid.R.
901(A). Examples of authentication or identification conforming with Evid.R. 901’s
requirements are:
(1) Testimony of witness with knowledge. Testimony that a matter is
what it is claimed to be.
***
(8) Ancient documents or data compilation. Evidence that a document
or data compilation, in any form, (a) is in such condition as to create no
suspicion concerning its authenticity, (b) was in a place where it, if
authentic, would likely be, and (c) has been in existence twenty years or
more at the time it is offered.
Evid.R. 901(B).
{¶14} When dealing with chain of custody matters, the state bears the burden
of establishing the proper chain of custody. In re Lemons , 77 Ohio App.3d 691, 693
(8th Dist.1991). To meet its burden, the state must only show that it is reasonably
certain that substitutions, alterations, or tampering did not occur. Id. The state does
not have to negate all possibilities of substitution or tampering. Id. Breaks in the
chain of custody go to the weight of the evidence, not its admissibility. State v.
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Howell, 7th Dist. No. 10-MA-148, 2012-Ohio-4349, ¶79, citing State v. Blevins, 36
Ohio App.3d 147, 150, 521 N.E.2d 147 (10th Dist.1987).
{¶15} Michael Finamore was a Mahoning County Sheriff’s deputy at the time
of the murders. He assisted BCI Agent Bernie Albert in processing the murder
scene. (Tr. 391). Finamore testified that he watched Albert dust the garage man
door for fingerprints. (Tr. 399). He then watched Albert lift the prints and place them
onto white card stock. (Tr. 399-400). Finamore also witnessed Albert label the
prints, date them, and initial them. (Tr. 400). Finamore then identified the fingerprint
cards admitted into evidence as those he watched Albert prepare at the scene. (Tr.
403-406; State Ex. 43A, B, C, D).
{¶16} Robin Ladd, a BCI forensic scientist in the latent print division, testified
that when evidence is submitted to BCI, it is assigned a case number and is placed
into a secured property room. (Tr. 565). She testified that the fingerprints from the
Marsh case were kept in BCI’s “old file room, which is the secured locked room that’s
in the back area of [the] lab.” (Tr. 567-568). She stated latent prints from very old
cases were kept with the files in the “locked room.” (Tr. 568). Ladd stated that, as
far as she knew, the latent prints from the Marsh case were kept at BCI’s London,
Ohio office since 1974. (Tr. 585). Ladd stated that the London office relocated once
in 1999. (Tr. 589). On cross examination, Ladd stated that she first looked at the
prints in 2009, and prior to that time she could only assume that they were located in
the secured property room. (Tr. 590). But on redirect she testified that evidence
stored at BCI is not accessible to anyone other than lab personnel. (Tr. 610).
Likewise, to her knowledge, the fingerprints were never accessible to anyone other
than lab personnel. (Tr. 610). Ladd also testified that she reviewed the reports of
other examiners from the 1970’s and stated that everything in the Marsh case file
“was exactly what went with that case file” so all of the evidence could be “taken
back” to the original submissions. (Tr. 610).
{¶17} Finamore’s and Ladd’s testimony support the identification and chain of
custody for the fingerprints lifted from the Marsh home.
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{¶18} Firstly, Finamore identified the fingerprints that Albert lifted from the
crime scene on the white card stock that were dated and initialed by Albert.
Finamore was a witness with knowledge because he witnessed Albert dust for and lift
the prints. He gave testimony that the fingerprints were the same fingerprints lifted
from the crime scene in 1974. Thus, the fingerprint evidence complied with Evid.R.
901(1) because it was supported by testimony of a witness with knowledge.
{¶19} Secondly, Ladd’s testimony is adequate to support the chain of custody.
She testified that all of the evidence from the Marsh case matched the reports of the
examiners from the 1970’s, so she was able to conclude that nothing was missing
from the case file. She further testified that the fingerprint evidence was stored in a
locked room in the BCI lab and only lab personnel had access to the room. Ladd
could not state with one-hundred-percent certainty that the fingerprint evidence was
stored in the locked room since 1974. But Ladd’s testimony that the evidence was
where it was supposed to be and included everything from the 1970’s reports is
sufficient to establish the chain of custody. The state only had to show it was
reasonably certain that the evidence was not altered or tampered with. Lemons, 77
Ohio App.3d at 693. Any evidence as to breaks in the chain of custody was to be
considered by the jury as going to weight of the evidence, not to its admissibility.
Howell, 7th Dist. No. 10-MA-148, at ¶79.
{¶20} Based on Finamore’s and Ladd’s testimony, we cannot conclude that
the trial court abused its discretion in admitting the fingerprint evidence. Accordingly,
appellant’s first assignment of error is without merit.
{¶21} Appellant’s second assignment of error states:
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
ADMITTED HEARSAY TESTIMONY RELATED TO BALLISTICS
RESULTS FROM 1976 WITHOUT PROPER FOUNDATION AND IN
VIOLATION OF APPELLANT’S SIXTH AMENDMENT
CONFRONTATION CLAUSE RIGHTS.
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{¶22} Here appellant contends the trial court should not have allowed
testimony by forensic scientist Andrew Chappell and Detective Patrick Mondora
regarding ballistics results from 1976 because the individual who performed the
ballistics tests was not called to testify and could not be cross examined. Appellant
asserts this testimony was inadmissible hearsay and violated his right to confront the
witnesses against him.
{¶23} Appellant failed to object to both Chappell’s and Detective Mondora’s
testimony. Therefore, a plain error review applies. Plain error is one in which but for
the error, the outcome of the trial would have been different. State v. Long, 53 Ohio
St.2d 91, 97, 372 N.E.2d 804 (1978).
{¶24} First, we must determine whether the ballistics testimony violated
appellant’s right to confrontation. The Sixth Amendment’s Confrontation Clause
provides that in criminal prosecutions, the accused shall enjoy the right to be
confronted with the witnesses against him.
{¶25} The testimony regarding the 1970’s BCI submission sheet was as
follows.
{¶26} Chappell is a BCI firearms forensic scientist who analyzed four bullet
fragments recovered from the Marsh crime scene. Chappell completed his analysis
in 2013. Chappell testified that the bullet evidence was originally submitted to BCI in
1974. (Tr. 541). Chappell then testified as to his findings. One of his findings was
that two of the bullet fragments that were found in Ben Marsh’s body were both fired
from the same weapon. (Tr. 547-548). However, Chappell stated that the bullet
fragments recovered from Marilyn Marsh did not exhibit any characteristics that
would allow further analysis in order to determine if they too were fired from the same
weapon. (Tr. 548). The prosecutor then asked Chappell if he knew how many
projectiles were submitted for analysis in 1974. (Tr. 548). Chappell testified that six
were initially submitted and that, according to the BCI case notes, all six bullets were
matched to each other. (Tr. 548). Chappell testified that due to the soft nature of the
lead and the manner in which the bullets are stored, the lead breaks down over time.
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(Tr. 550).
{¶27} Appellant did not object to Chappell’s testimony but his counsel did
cross examine Chappell on the issue. On cross examination, Chappell stated that he
was only able to analyze four bullets and of the four, he could only conclude that two
were fired from the same weapon. (Tr. 552). He also stated that at the most, the
four bullets were fired from three weapons. (Tr. 552). He further agreed that the
person who analyzed the bullets in 1976 was “not around” and all he could do was
refer to their notes. (Tr. 555).
{¶28} Detective Mondora also referred to the 1976 BCI submission sheet on
re-direct examination. On cross examination, appellant’s counsel asked Detective
Mondora if he knew when Chappell issued his ballistics report. (Tr. 671). Counsel
elicited testimony that Chappell did not issue his report until August 28, 2013. (Tr.
672). Counsel was attempting to show that the detectives did not have information
regarding a .38 special until after appellant was indicted. (Tr. 672). But on re-direct,
Detective Mondora referred to the 1976 BCI submission sheet and stated that it
reported six bullets were analyzed and it was concluded that they were “.38 special,
148 grain, lead, Remington wad cutters * * * all fired from the same weapon.” (Tr.
716). The prosecutor used this testimony to show that the detectives had information
in the case file indicating the murder weapon was a .38 special long before they saw
Chappell’s ballistics report. (Tr. 716-717). Appellant did not object to this testimony.
{¶29} Appellant objected to the admission of the BCI submission sheet from
the 1976 bullet analysis. (Tr. 750; State Ex. 63). The trial court agreed with this
objection and did not allow it into evidence. (Tr. 752).
{¶30} A similar fact pattern existed in the United States Supreme Court case
of Williams v. Illinois, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012). At Williams’ rape
trial, a forensic scientist at the Illinois State Police lab testified that she matched a
DNA profile produced by Cellmark, an outside laboratory, to a DNA profile the state
lab produced using a sample of Williams’ blood. The scientist testified that Cellmark
was an accredited lab and its business records showed that vaginal swabs taken
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from the victim were sent to Cellmark and returned. She testified that she reviewed
Cellmark’s report and made her own interpretations of their data. However, the
Cellmark report itself was not introduced into evidence. Williams objected to the
scientist’s testimony regarding Cellmark’s testing, arguing it violated his right to
confront the witnesses against him. The trial court overruled the objection. The
Illinois Supreme Court affirmed the trial court’s ruling, finding that the testimony did
not violate Williams’ confrontation rights because Cellmark's report was not offered
into evidence to prove the truth of the matter asserted. Williams appealed to the
United States Supreme Court.
{¶31} The Supreme Court affirmed the judgment finding that the scientist’s
testimony did not violate Williams’ right to confrontation, however, the Court was
divided regarding its reasoning. The plurality opinion found that “this form of expert
testimony does not violate the Confrontation Clause because that provision has no
application to out-of-court statements that are not offered to prove the truth of the
matter asserted.” (Chief Justice Alito, along with Justices Kennedy and Breyer). Id.
at 2228. The plurality also offered another, independent basis for its decision:
[E]ven if the report produced by Cellmark had been admitted into
evidence, there would have been no Confrontation Clause violation.
The Cellmark report is very different from the sort of extrajudicial
statements, such as affidavits, depositions, prior testimony, and
confessions, that the Confrontation Clause was originally understood to
reach. The report was produced before any suspect was identified. The
report was sought not for the purpose of obtaining evidence to be used
against petitioner, who was not even under suspicion at the time, but for
the purpose of finding a rapist who was on the loose. And the profile
that Cellmark provided was not inherently inculpatory.
Id.{¶32} In this case, Chappell’s and Detective Mondora’s testimony regarding
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the 1976 BCI submission sheet did not violate appellant’s confrontation rights.
Firstly, the BCI submission sheet was not admitted into evidence. Secondly, like the
report in Williams, the BCI submission sheet was produced long before any suspect
was identified and it was not created for the purpose of obtaining evidence against
appellant who was not a suspect at the time. And, as was the case in Williams, the
BCI submission sheet in this case was not inherently inculpatory. It merely
concluded that six bullet fragments recovered from the victims were fired from the
same weapon. Thus, appellant’s right to confrontation was not violated. Therefore,
the trial court did not commit plain error in allowing the witnesses to mention the BCI
submission sheet.
{¶33} Next, we must determine whether the ballistics testimony violated the
hearsay rule. Hearsay is an out-of-court statement, offered in court, to prove the
truth of the matter asserted. Crim.R. 801(C). Subject to certain exceptions, hearsay
is inadmissible. Crim.R. 802.
{¶34} Once again, the 1976 BCI submission sheet containing the ballistics
results was not admitted into evidence. Thus, the submission sheet itself was not
offered in court to prove the truth of the matter asserted. Additionally, Chappell
testified as to his results and admitted that he was only able to examine four bullets
due to the soft lead wearing down over time. (Tr. 548, 550). He testified that it was
possible that the four bullets he considered were fired from three different weapons
as he was only able to match two as being fired from the same weapon. (Tr. 552).
And he testified his results were based on a reasonable degree of scientific certainty.
(Tr. 549). Thus, he did not offer testimony to prove the truth of the 1976 ballistics
results. Moreover, Detective Mondora only referenced the 1976 submission sheet on
re-direct after defense counsel suggested on cross examination that the detectives
had no information that the bullets were fired from a .38 caliber weapon until after
appellant had been indicted. Thus, the defense invited this testimony by Detective
Mondora. Therefore, we cannot conclude that the trial court committed plain error in
allowing the above referenced testimony. Because the testimony was not offered to
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prove the truth of the matter asserted, it was not hearsay.
{¶35} Accordingly, appellant’s second assignment of error is without merit.
{¶36} Appellant’s third assignment of error states:
MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT
VIOLATED APPELLANT’S RIGHT TO A FAIR TRIAL PURSUANT TO
THE FOURTEENTH AMENDMENT.
{¶37} In this assignment of error, appellant asserts several instances of
alleged prosecutorial misconduct.
{¶38} The test for prosecutorial misconduct is whether the conduct
complained of deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d
329, 332, 715 N.E.2d 136 (1999). In reviewing a prosecutor's alleged misconduct, a
court should look at whether the prosecutor's remarks were improper and whether
the prosecutor's remarks affected the appellant's substantial rights. State v. Smith,
14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[T]he touchstone of analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’” State v. Hanna, 95 Ohio
St.3d 285, 2002-Ohio-2221, ¶61, quoting Smith v. Phillips, 455 U.S. 209, 219, 102
S.Ct. 940 (1982). An appellate court should not deem a trial unfair if, in the context of
the entire trial, it appears clear beyond a reasonable doubt that the jury would have
found the defendant guilty even without the improper comments. State v. LaMar, 95
Ohio St.3d 181, 2002-Ohio-2128, ¶121.
{¶39} Appellant first takes issue with the prosecutor’s comment during closing
argument:
What’s really important here are the fingerprints of James
Ferrara located on that back door. A house that he told Detective
Mondora, I’ve never been there. I don’t even know Ben Marsh. I don’t
even know where Canfield is. We know he lives in Austintown. He
didn’t know where Canfield was?
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Sure, everybody would deny. But you know what? You’re
especially going to deny knowing anybody or ever being at that house if
you killed the three people who lived in it. And that evidence, too, is
uncontroverted. That’s what he said. You have heard nothing else. No
explanation, nothing. He didn’t know Ben Marsh. He had never been
to the house. Didn’t know where Canfield was. Never met the guy.
(Tr. 830-831; Emphasis added). Appellant did not object to this comment.
{¶40} Appellant contends the emphasized statements were comments on his
failure to testify at trial, which violated his Fifth Amendment right to stand silent at
trial.
{¶41} Because appellant failed to object to the above referenced comments,
we can only review this alleged prosecutorial misconduct for plain error.
{¶42} A prosecutor may comment on the relative strength of the state's case,
which includes commenting on the fact that the state's case has not been rebutted.
State v. Ferguson, 5 Ohio St. 3d 160, 163, 450 N.E.2d 265 (1983). Moreover, a
prosecutor’s reference during closing argument to uncontradicted evidence “is not a
comment on the accused's failure to testify where the comment is directed to the
strength of the state's evidence and not to the silence of the accused, and the jury is
instructed not to consider the accused's failure to testify for any purpose.” Id.{¶43} In this case, the trial court instructed the jury not to consider appellant’s
failure to testify for any purpose. (Tr. 875-876). Thus, it was permissible for the
prosecutor to comment on the uncontroverted evidence that appellant denied
knowing Ben Marsh, denied ever being at the Marsh house, and denied knowing
where Canfield was located yet his fingerprints were found at the Marsh house. The
prosecutor was simply commenting on the strength of the state’s case and was not
commenting on appellant’s decision not to testify. Therefore, the prosecutor’s
comments here did not constitute plain error.
{¶44} Next, appellant takes issue with the prosecutor’s questioning of
Chappell as follows. Chappell testified that he performed testing on projectiles
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recovered from the Marshes’ bodies. (Tr. 544). The prosecutor then asked: “What
are you able to say about those -- besides being from the .38 caliber classification,
about those two bullets you were able to identify?” (Tr. 544). Once again, appellant
did not object. Appellant asserts that prior to this question, there had been no
testimony regarding the classification of the bullets and, therefore, the state was
attempting to put facts into evidence that were not testified to.
{¶45} While Chappell had not yet testified that the bullets were all from a .38
classification, Chappell’s report had been identified for the jury and the prosecutor
had asked Chappell some questions regarding his report. (Tr. 539-540; State Ex.
45). And Chappell’s report concluded that the four bullets he analyzed were
“determined to be a .38 caliber class (.38 Special, .357 magnum, .38 S&W, .38 Colt
New police) lead bullet exhibiting six (6) lands and grooves with a left direction of
twist.” (State Ex. 45). Chappell’s report was admitted into evidence. (Tr. 750).
Thus, when the prosecutor asked Chappell the above quoted question, she was
simply referencing his report which had already been introduced and was ultimately
admitted. Therefore, her question did not constitute plain error.
{¶46} Appellant next takes issue with the prosecutor’s continued questioning
of Chappell as follows:
A Based on the general rifling characteristics, the class
characteristics that I mentioned earlier, I entered those into the
database that’s maintained by the FBI, and was able to provide a list of
firearms that have those same general characteristics, and therefore
could have fired those bullets.
Q What kind of characteristics did you find? Did you find the lands
and grooves that we’ve talked about?
A The characteristics that I’m using for this search are the caliber
family, the number of lands and grooves, their direction of twist, and the
widths of the lands and grooves.
Q Do you know how many lands and grooves were on these?
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A There were six.
Q Do you know the direction of twist?
A Left.
Q And that information you put into your database?
A Yes, I did.
Q And what did you come up with?
A I came up with a list of possible firearms.
Q And you’re also included that in your report; is that right?
A Yes, I did.
Q Does your conclusion include weapons that are considered or
called .38 specials?
A Yes, it does.
Q Out of the 12 guns you’ve listed, how many of those guns are .38
specials?
A Eight.
(Tr. 544-545). On redirect, the prosecutor then asked:
Q Mr. Chappell, you talked about matching two bullets to that list of
guns, and eight of the twelve are .38 specials. Which two bullets have
you identified that matched the .38 specials?
A One - - I didn’t identify any to a particular firearm.
(Tr. 547). Appellant asserts that this was an attempt to mislead the jury.
{¶47} The prosecutor did ask Chappell which two bullets matched .38
specials, which was an incorrect characterization of the evidence. There was no
evidence that two of the bullets matched .38 specials. There was only evidence that
two of the bullets matched each other and that all of the bullets were fired from a .38
caliber weapon. But Chappell immediately corrected the prosecutor’s
mischaracterization by stating that he did not identify any of the bullets to a particular
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firearm. Therefore, appellant did not suffer any prejudice from the prosecutor’s
question and no plain error resulted.
{¶48} Next, appellant asserts that the prosecutor further attempted to mislead
the jury in closing arguments:
Because that person’s dead, we have to have them [the bullets]
reanalyzed. And the lead’s been knocking around. They talked about
the lead being soft. And all he could say - - he’s honest. We want to
represent that to you. Only two he can say matched now that are
consistent from the same weapon. But the other two, they’re not from a
.45 and a .40. He can say that they’re from .38s as well. He can still
say that.
(Tr. 862). Appellant contends this statement is simply untrue and was calculated to
mislead the jury into believing the bullets recovered from Ben’s and Marilyn’s bodies
matched one .38 special.
{¶49} Appellant argues that the prosecutor misled the jury to believe that the
bullets in this case came from a .38 caliber firearm. He contends this was highly
prejudicial given his alleged statement to Deputy Fitzpatrick that a .38 special was his
weapon of choice.
{¶50} Chappell’s ballistics analysis clearly concluded the four projectiles
recovered from Ben and Marilyn Marsh’s bodies were .38 caliber ammunition. (Tr.
545; State Ex. 45). His report also listed the 12 possible types of firearms from which
this .38 caliber ammunition was fired. (Tr. 545; State Ex. 45). Eight of the 12 listed
firearms are .38 specials. (Tr. 545; State Ex. 45). The other four listed firearms are a
.357 magnum, two .38 S&Ws, and a .38 colt new police. (State Ex. 45).
{¶51} The prosecutor’s above-quoted statement was an accurate
representation of the evidence. Chappell’s report concluded that the four bullets he
examined were all from the .38 caliber class. (State Ex. 45).
{¶52} Finally, appellant contends the prosecutor’s statement that Frank Boyle
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testified the Marsh garage had a Genie garage door opener, used to open and close
the garage door after the murders (Tr. 822), was not found anywhere in Boyle’s
testimony.
{¶53} Boyle was a family friend of the Marshes and worked with Ben Marsh at
General Motors (GM). He, along with Ben’s father, discovered their bodies after the
murders. Boyle testified that the GM plant supervisor called him when Ben did not
show up for his shift at work. (Tr. 342). Boyle then went to the Marsh house to check
on Ben. (Tr. 342). He testified that when he arrived the garage door was closed.
(Tr. 344). Boyle stated that he and Ben’s father had to remove the front screen door,
which was locked, to gain access to the front door for which Ben’s father had a key.
(Tr. 345). Boyle also testified that the Marshes owned a truck and a car. (Tr. 349).
He stated that when he arrived the truck was in the garage but the car was not. (Tr.
349). The car was later found abandoned in a K-Mart parking lot. (Tr. 408-409).
{¶54} Given this testimony, it was reasonable to infer that the person who
killed the Marshes left in the family’s car and closed the garage door with an
electronic garage door opener as he left. Therefore, while the prosecutor’s statement
that Boyle testified the Marsh garage had a Genie garage door opener was incorrect,
it was a reasonable inference to be drawn from the evidence. Moreover, the
statement was not prejudicial in any way.
{¶55} Accordingly, appellant’s third assignment of error is without merit.
{¶56} Appellant’s fourth assignment of error states:
APPELLANT’S CONVICTIONS FOR THREE COUNTS OF
AGGRAVATED MURDER WERE BASED UPON INSUFFICIENT
EVIDENCE.
{¶57} Appellant urges that his convictions were not supported by sufficient
evidence. He contends the fingerprint evidence and ballistics evidence did not prove
that he murdered the Marsh family. He notes there was no evidence inside of the
house linking him to the murders.
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{¶58} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence
is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the
record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt. Smith, 80 Ohio
St.3d at 113.
{¶59} The jury convicted appellant of three counts of aggravated murder in
violation of R.C. 2903.01(B)(C), which provides:
(B) No person shall purposely cause the death of another * * * while
committing or attempting to commit, or while fleeing immediately after
committing or attempting to commit, kidnapping, rape, aggravated
arson, arson, aggravated robbery, robbery, aggravated burglary,
burglary, trespass in a habitation when a person is present or likely to
be present, terrorism, or escape.
(C) No person shall purposely cause the death of another who is under
thirteen years of age at the time of the commission of the offense.
{¶60} There was no question in this case that the Marsh family was murdered
when an intruder broke into their home. Deputy Coroner Dr. Joseph Orr testified that
Ben’s, Marilyn’s, and Heather’s deaths were all homicides. (Tr. 512, 517, 521). The
only question was whether the evidence proved that appellant was the person who
murdered them. The state put forth the following evidence.
{¶61} Finamore was the only witness to testify who was at the murder scene.
Given that almost 40 years had passed from the time of the murders to the time of
the trial, many of those involved in the initial investigation had passed away or were
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unavailable. Finamore testified that when he arrived at the scene he saw Marilyn
Marsh’s body on the floor leading from the foyer into the kitchen. (Tr. 377). He saw
Heather Marsh’s body in the foyer. (Tr. 377). He saw Ben Marsh’s body in the
bedroom. (Tr. 378).
{¶62} Finamore testified that at the time there was snow on the ground. (Tr.
382). He observed one set of footprints that led from the driveway to the back of the
house to the garage man door. (Tr. 382-383). The man door had three panes of
glass and the bottom pane, above the lock, was broken out so that it appeared the
intruder had reached in and opened the door. (Tr. 383). Finamore testified there
were also two doors leading from the garage into the house, a storm door and a
wooden door. (Tr. 381). The storm door was ajar and the wooden door had a boot
print on it and appeared to have been kicked in. (Tr. 381-382).
{¶63} Finamore stated that in addition to the numerous sheriff deputies on the
scene, BCI Agent Bernie Albert responded. Finamore assisted Albert in processing
the scene. (Tr. 391). He observed and assisted Albert as Albert dusted for
fingerprints and lifted latent prints from several places in the house. (Tr. 394-399;
State Exs. 43A, B, C, D). This included observing Albert dust for and lift the
fingerprints on the garage man door. (Tr. 399-400).
{¶64} Finamore testified that no weapons were found, nothing appeared to be
missing, and the house did not appear to be ransacked. (Tr. 410). He further
testified that while the Marsh family owned two vehicles, only one was found in their
garage. (Tr. 407). The family’s Chevy Vega was not there. (Tr. 407-408). Finamore
stated that the Vega was later located in a K-Mart parking lot in Austintown. (Tr. 408-
409).
{¶65} Andrew Chappell, the BCI firearms forensic scientist, testified next.
Chappell testified that he examined four bullets in this case that were recovered from
the bodies. (Tr. 542, 543). He concluded that all four bullets had the same general
rifling characteristics and two of the bullets had matching individual barrel engraved
striations, meaning those two were fired from the same firearm. (Tr. 542). The other
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two bullets did not have sufficient detail in order to identify or eliminate them as
having been fired from the same firearm as the others. (Tr. 542). However, he was
able to say that they were from the same class of bullets. (Tr. 549-560). Chappell
stated that he looked at the caliber family, the number of lands and grooves, their
direction of twist, and the widths of the lands and grooves. (Tr. 544-545). With this
information, Chappell was able to come up with a list of 12 possible firearms that fired
these bullets. (Tr. 544-545). All of the possible weapons were .38 caliber weapons.
(State Ex. 45). Eight of the 12 were .38 specials. (Tr. 545; State Ex. 45).
{¶66} Chappell further testified that lead is very soft and, over time, the lead
wears down and becomes smoother, making it more difficult to make an
identification. (Tr. 543). He acknowledged that in 1974 six bullets were submitted
and, according to the case notes, were matched to each other. (Tr. 548). But he
stated he did not know whether they had the capability back then to make a list of
potential weapons that the bullets were fired from. (Tr. 548-549). Chappell stated
that he reached his conclusions based on a reasonable degree of scientific certainty.
(Tr. 549).
{¶67} On cross examination, Chappell again stated that he was only able to
conclude that two bullets were fired from the same weapon. (Tr. 552). Thus, he
agreed that, at most, the four bullets were fired from three weapons. (Tr. 552).
{¶68} Robin Ladd is a forensic scientist at BCI’s latent print division. She
testified that a person’s fingerprints are permanent and unique for each individual so
no two people have the same fingerprints. (Tr. 566-567). Ladd testified that BCI now
has access to a database called the Automated Fingerprint Identification System.
(Tr. 570). AFIS is a database of known finger and palm prints. (Tr. 570). AFIS was
not available in the 1970’s. (Tr. 570). The technology was not available until the late
1980’s. (Tr. 570). Ladd testified that AFIS helps her identify prints that she would not
have been able to identify years ago. (Tr. 571).
{¶69} Ladd testified that in reviewing the Marsh case file, she came across
numerous latent fingerprint lifts. (Tr. 573). She identified some of the latent prints as
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belonging to Ben Marsh. (Tr. 573-574). She then entered three fingerprints that
were of sufficient quality into the AFIS database. (Tr. 574). Ladd stated that AFIS
returned three “hits.” (Tr. 574). She testified that the three prints that generated the
AFIS hits were lifted from the “door of the garage.” (Tr. 576; State Ex. 43A). AFIS
identified the three prints as belonging to the left middle, left ring, and left little finger
of appellant. (Tr. 576).
{¶70} Ladd testified that the three prints identified as appellant’s were “very
good quality” with very clear ridge detail. (Tr. 579). Once AFIS returned the hits,
Ladd obtained appellant’s fingerprint card so that she could make a comparison. (Tr.
580). Ladd testified that she compared appellant’s known fingerprints to those lifted
from the scene and confirmed that the prints at the scene were made by appellant’s
left middle, left ring, and left little fingers. (Tr. 582). She also testified that another
fingerprint analyst independently verified that the three prints belonged to appellant.
(Tr. 580-582).
{¶71} Deputy Devin Fitzpatrick testified next. Deputy Fitzpatrick works at the
county jail. He testified regarding a conversation he had with appellant on October 7,
2013. Deputy Fitzpatrick stated that appellant approached him and asked him about
his performance at the firing range. (Tr. 637). The two then got into a discussion
about military experience and the skill levels of marksmanship in the military. (Tr.
637). They also discussed the pros and cons of semiautomatic pistols and revolvers.
(Tr. 638). Deputy Fitzpatrick explained to the jury that a semiautomatic pistol
automatically chambers the round once the trigger is squeezed whereas on a
revolver, when you squeeze the trigger the chamber turns. (Tr. 638). He further
explained that with a semiautomatic the casings are discharged out of the side of the
firearm but with a revolver the casings remain in the firearm. (Tr. 638).
{¶72} Deputy Fitzpatrick testified that during his conversation with appellant,
appellant asked him, “Do you know what my weapon of choice is?” (Tr. 638). He
stated appellant then continued by answering his own question, “A .38 detective
special.” (Tr. 638). Appellant told Deputy Fitzpatrick the reason for this was, “No
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brass. No brass” and “You’re not gonna get any ballistics off of brass.” (Tr. 638-
639). Deputy Fitzpatrick explained that “brass” is the cartridge that is discharged
from a semiautomatic or is maintained in a revolver. (Tr. 639). Finally, he testified
that a .38 detective special was a revolver. (Tr. 638).
{¶73} Detective Patrick Mondora was the next witness. He stated that he
began looking into the Marsh case in 2009. (Tr. 652). He contacted Ladd at BCI to
see if BCI had any of the evidence from the case. (Tr. 656). Detective Mondora
stated that Ladd got back to him regarding latent prints lifted from the Marsh crime
scene. (Tr. 657). Ladd also provided Detective Mondora with appellant’s name. (Tr.
657). This sparked Detective Mondora’s investigation into appellant’s background.
(Tr. 657, 660). Detective Mondora stated that he spoke to appellant on February 11,
2010. (Tr. 661). Appellant told Detective Mondora that he worked at General Motors
from 1970 until 1983. (Tr. 662). Through reading reports, Detective Mondora
learned that Ben Marsh also worked at General Motors up until his death. (Tr. 662).
Appellant also told Detective Mondora that he lived in Trumbull County in 1974, and
moved to Austintown in 1976. (Tr. 662).
{¶74} Detective Mondora asked appellant if he knew Ben Marsh. (Tr. 664).
Appellant stated twice that he did not know him. (Tr. 664). Appellant told Detective
Mondora that he did not know Ben Marsh, he was not friends with Ben Marsh, he did
not talk to Ben Marsh, he did not know where Ben Marsh lived, and he did not know
where Ben Marsh’s house was. (Tr. 664). Detective Mondora stated that at one
point appellant asked “Where is Canfield?” and when the detective told him appellant
again said that he did not know where the Marsh house was. (Tr. 664). Appellant
also told Detective Mondora that he had never been to the Marsh house. (Tr. 664-
665).
{¶75} Detective Mondora further testified he told appellant that his fingerprints
were found at the crime scene. (Tr. 666). Appellant told him that was impossible
because he did not know Ben Marsh. (Tr. 666).
{¶76} This case depends almost completely on the fingerprint evidence. The
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evidence was uncontroverted that appellant’s left middle, left ring, and left little
fingerprints were found on the Marshes’ garage man door near the broken pane of
glass. Appellant denied knowing the Marshes, denied ever having been to their
house, and denied even knowing where Canfield was. Yet three of his fingerprints
were found on the Marshes’ door near a broken pane of glass that was used to gain
entrance into their house where they were murdered.
{¶77} The Ohio Supreme Court addressed the sufficiency of fingerprint
evidence when there is little or no other evidence to support a conviction:
In determining the sufficiency of the fingerprint evidence, a reviewing
court must examine this evidence on a case-by-case basis. The crucial
issue is whether attendant circumstances, such as the location of the
accused's alleged fingerprint, the character of the premises where the
print was found, and the accessibility of the general public to the object
on which the print was impressed are sufficient to justify the trier of fact
to conclude not only that the accused was at the scene of the crime
when it was committed, but also that the accused was the criminal
agent.
State v. Miller, 49 Ohio St. 2d 198, 202-203, 361 N.E.2d 419 (1977), vacated on
other grounds in Miller v Ohio, 438 U.S. 911, 98 S. Ct. 3136, 57 L. Ed. 2d 1156(1978).
{¶78} The Court went on to hold:
Fingerprints corresponding to those of the accused are sufficient proof
of this identity to sustain his conviction, where the circumstances show
that such prints, found at the scene of the crime, could only have been
impressed at the time of the commission of the crime.
Id. at the syllabus. The Court later reaffirmed its holding in State v. Franklin, 62 Ohio
St.3d 118, 124, 580 N.E.2d 1 (1991).
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{¶79} Other courts have applied Miller’s holding in upholding convictions
based on fingerprint evidence.
{¶80} For instance, in State v. Braxton, 10th Dist. No. 84AP-924, 1985 WL
10312 (June 6, 1985), the court upheld the defendant’s burglary conviction when the
only evidence that placed the defendant at the scene of the crime were his
fingerprints that were found on the broken glass of the door of entry. The court noted
that the defendant’s fingerprints were on both sides of the broken piece of glass. Id.
at *1. It concluded that the only reasonable inference was that the defendant left the
fingerprints there while gaining entry after breaking the glass. Id. The court also
concluded that it was reasonable to infer from the fingerprints that the defendant
entered the house and took the property that was reported missing. Id.
{¶81} In State v. Braswell, 6th Dist. No. L-08-1405, 2009-Ohio-4060, ¶7, the
only evidence at the scene of the burglary was that an exterior screen to a bedroom
window had been cut out and police found latent fingerprints on the inside of the
window glass at the bottom and side of the window. The prints matched fingerprints
taken from the middle and ring fingers of the defendant’s left hand. Id. The victim
testified that he did not know the defendant and had never given the defendant
access to the apartment. Id. at ¶15. In examining a sufficiency challenge, the court
determined that a rational trier of fact could conclude that the fingerprints were
located on the window directly related to the crime, that being the window used by
the burglar to gain entry to the apartment. Id. at ¶17. The court also noted that the
fingerprints were located on the interior surface of the window. Id. It found that the
facts excluded any innocent means by which the defendant's fingerprints could have
been placed on the window. Id.
{¶82} And in State v. Thomas, 2d Dist. No. 14289, 1994 WL 527658, *1
(Sept. 28, 1994), the only evidence that linked the defendant to the scene of the
burglary was his fingerprints found on a window screen from the residence that was
found outside, but close to, the residence. The Second District concluded:
[R]easonable minds could conclude beyond a reasonable doubt that
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the appellant's fingerprints could only have been placed on the window
screen during the weekend the owners of the house were out of town
and when the burglary occurred. The window screen was obviously
removed in order to gain entrance to or exit from the house and the
screen was found on private property not normally accessible to the
public. No other explanation for the fingerprints being found on the
window screen is demonstrated on this record. The jury could certainly
reasonably infer that the appellant was at the scene of the crime when
the crime occurred and conclude that he was the perpetrator of the
crime.
Id. at *2.
{¶83} Based on the above case law, the fingerprint evidence in this case,
coupled with appellant’s statements that he did not know the Marshes and had never
been to their house, was sufficient evidence for the jury to conclude that appellant
was the one who broke into the Marshes’ house and murdered them. The
fingerprints were found on the garage man door of a private residence near a broken
pane of glass that was used to gain access to the house where the Marshes were
found murdered. And appellant’s statements that he did not know the Marshes, had
never been to their house, and did not know where Canfield was, removed the
possibility that his fingerprints were left on the door from a social visit or other
purpose. Additionally, the jury had the evidence before them that the weapon used
was a .38 caliber weapon and appellant’s “weapon of choice” was a .38 detective
special. Construing this evidence in the light most favorable to the state, as we are
required to do, sufficient evidence exists to support appellant’s conviction.
{¶84} Accordingly, appellant’s fourth assignment of error is without merit.
{¶85} Appellant’s fifth assignment of error states:
APPELLANT’S CONVICTIONS FOR THREE COUNTS OF
AGGRAVATED MURDER WERE AGAINST THE MANIFEST WEIGHT
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OF THE EVIDENCE.
{¶86} Appellant next argues that his convictions were against the manifest
weight of the evidence. He contends the fingerprint evidence should be given little
weight because the state did not prove the chain of custody. Moreover, he argues
the fact that he told Detective Mondora that he had never been to the Marsh home
holds little weight given that the interview occurred 36 years after the murders.
Appellant also points to evidence that a woman described a man she saw getting out
of Marilyn Marsh’s car in the K-Mart parking lot as being in his forties or fifties, but
appellant was only 25 years old in 1974. Finally, appellant points out that none of the
bullets recovered from the crime scene were matched to a specific kind of weapon.
{¶87} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine 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. Thompkins, 78
Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
{¶88} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two
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fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we believe.”
State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
{¶89} In addition to the evidence set out above, we must also consider the
evidence appellant offered in his defense.
{¶90} Brenda Gerardi is a DNA laboratory supervisor at BCI. Gerardi
compared appellant’s DNA with DNA recovered from a cigarette found at the murder
scene. (Tr. 768). She concluded that appellant was not a contributor to the DNA on
the cigarette recovered from inside the Marsh house. (Tr. 769).
{¶91} Additionally, Detective Mondora testified on cross examination that
according to the case file, an anonymous informer saw someone possibly getting out
of the Marshes’ vehicle in the K-Mart parking lot. (Tr. 689-690). The informer
described the person as being in his mid-forties to fifties. (Tr. 730). Detective
Mondora agreed that appellant would have been 25 in 1974. (Tr. 730).
{¶92} The jury’s verdict was not against the manifest weight of the evidence.
{¶93} The most compelling evidence was that three of appellant’s fingerprints
were located on the Marshes’ garage man door near the broken pane of glass that
was used to gain entrance into their house. There was nothing to refute this
evidence. The AFIS database identified all three prints as belonging to appellant.
Robin Ladd conducted an examination of the fingerprints and concluded they all
belonged to appellant. Ladd also stated that the three fingerprints lifted from the
scene were of good quality. And Ladd’s conclusions were independently reviewed
and confirmed by another fingerprint analyst.
{¶94} Appellant testified that he did not know the Marshes and had never
been to the Marsh house. Thus, there was no possibility that he may have left his
fingerprints there on another occasion while visiting. The jury’s only logical
conclusion was that appellant left his fingerprints on the door when he broke into the
Marsh house.
{¶95} Additionally, as discussed in appellant’s first assignment of error, the
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state established the chain of custody for the fingerprints. Finamore, who observed
and assisted Albert in lifting the latent prints, identified the prints. And Ladd indicated
that the fingerprint evidence had been in secure storage at BCI since the 1970’s.
{¶96} Moreover, even though there was testimony that an anonymous
informer described a man in the K-Mart parking lot as being in his forties or fifties, this
evidence does not have much weight in exonerating appellant. The informer was
anonymous and stated that the person was “possibly” getting out of the Marshes’ car.
Once the car was abandoned in the K-Mart parking lot, any passerby could have
appeared to have been “possibly” getting out of the car.
{¶97} And even though appellant’s DNA was not found on the cigarette at the
scene, this does not exonerate him either. It simply means his DNA was not on the
cigarette.
{¶98} Given the evidence in this case, we cannot conclude that the jury lost
its way and created a manifest miscarriage of justice. The fingerprint evidence was
simply too strong and was not rebutted. This evidence coupled with appellant’s
statements that he did not know the Marshes, had never been to their house, and did
not even know where Canfield was supported the jury’s verdict. Therefore, the jury’s
verdict was not against the manifest weight of the evidence.
{¶99} Accordingly, appellant’s fifth assignment of error is without merit.
{¶100} Appellant’s sixth assignment of error states:
DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
BY FAILING TO OBJECT TO EVIDENCE REGARDING THE 1976
BALLISTIC TEST RESULTS AND TO THE MISCHARACTERIZATION
BY THE STATE OF THE 2010 BALLISTICS TEST RESULTS.
APPELLANT WAS PREJUDICED BY COUNSEL’S DEFICIENT
PERFORMANCE SUCH THAT HE WAS DEPRIVED A FAIR TRIAL.
{¶101} In his final assignment of error, appellant maintains that his counsel
was ineffective. Appellant asserts counsel’s failure to object to Chappell’s and
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Detective Mondora’s testimony regarding the 1976 ballistics testing fell below the
standard of reasonableness because the testimony was hearsay on hearsay, lacked
a proper foundation, and violated his right to confront witnesses. He also argues
counsel was ineffective for failing to object to the prosecutor’s statements in closing
arguments that assumed the bullets came from a .38 caliber weapon when this was
not evidence. Appellant maintains that but for counsel’s errors, the result of the trial
would have been different because the only other evidence of his guilt was the
fingerprint evidence.
{¶102} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the
syllabus. Second, appellant must demonstrate that he was prejudiced by counsel's
performance. Id. To show that he has been prejudiced by counsel's deficient
performance, appellant must prove that, but for counsel's errors, the result of the trial
would have been different. Bradley, at paragraph three of the syllabus.
{¶103} Appellant bears the burden of proof on the issue of counsel's
effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.{¶104} We have already discussed the issues appellant now raises. As
discussed above, Chappell’s and Detective Mondora’s testimony regarding the 1976
ballistics testing did not violate appellant’s right to confront witnesses and was not
hearsay. Additionally, the prosecutor’s statements in closing arguments telling the
jury that the bullets recovered from the murder came from a .38 caliber weapon were
supported by State’s Exhibit 45, the ballistics report issued by Chappell. Thus, any
objection by defense counsel on these issues would not have changed the outcome
of the trial. Therefore, we cannot conclude defense counsel was ineffective.
{¶105} Accordingly, appellant’s sixth assignment of error is without merit.
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{¶106} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.