State v. Wright

[Cite as State v. Wright, 2018-Ohio-668.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-16-1164
Appellee Trial Court No. CR0201502648
v.
Michah Tekere Wright DECISION AND JUDGMENT
Appellant Decided: February 23, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Stephen D. Long, for appellant.
*****
JENSEN, J.
I. Introduction
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common
Pleas, sentencing appellant, Michah Wright, to a total of nine years in prison after he was
found guilty of felonious assault, discharge of a firearm upon or over a public road or
highway, and having weapons while under disability. Finding no error in the proceedings
below, we affirm.
A. Facts and Procedural Background
{¶ 2} On October 23, 2015, appellant was indicted in case No. CR15-2783. The
indictment arose out of an incident that occurred eight days earlier, during which
appellant allegedly shot another individual, Sim White, in the foot. Within the
indictment, appellant was charged with one count of felonious assault in violation of R.C.
2903.11(A)(2) and (D), a felony of the second degree, and one count of discharge of a
firearm upon or over a public road or highway in violation of R.C. 2923.162(A)(3) and
(C)(4), a felony of the first degree. Firearms specifications were also attached to each of
the foregoing counts under R.C. 2941.145.
{¶ 3} Six days after the indictment was filed, appellant appeared for arraignment
and entered a plea of not guilty. Counsel was appointed for appellant at this time.
Appointed counsel submitted a demand for discovery with the trial court pursuant to
Crim.R. 16 the following day. An additional request for discovery and a bill of
particulars was filed on November 2, 2015. Defense counsel then filed a motion for
funds to hire a criminal investigator the following day, which was granted by the trial
court on November 9, 2015. The state filed its initial discovery response on November
18, 2015.
{¶ 4} On November 30, 2015, appellant appeared for trial, but moved the court to
continue the trial. The court granted appellant’s request and rescheduled the matter for
2.
trial on December 14, 2015. On that date, appellant filed a motion to suppress evidence
obtained as a result of a search of his residence, as well as a motion to continue the trial
date. The trial court granted the motion to continue and rescheduled the trial for January
25, 2016. The state responded to the motion to suppress on December 23, 2015, and a
hearing on the motion was held on January 12 and 15, 2016. The January 25, 2016 trial
date was then converted to a pretrial at the request of appellant, and the motion to
suppress was taken under advisement by the trial court. At the pretrial hearing on
January 25, 2016, appellant filed a written waiver of his speedy trial rights and consented
to a trial date of February 29, 2016.
{¶ 5} On February 25, 2016, the trial court granted the state’s request for a
continuance of the trial date over appellant’s objection, and the trial was rescheduled for
March 7, 2016. According to the trial court’s docket, the parties did not appear for trial
on March 7, 2016. Rather, the parties appeared for a pretrial on March 29, 2016. One
week prior, on March 22, 2016, the state filed another indictment in case No. CR16-1539,
charging appellant with the same two counts as those that were contained in the prior
indictment, along with attendant firearms specifications, as well as the addition of a
repeat violent offender specification attached to the felonious assault charge and a charge
of having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of
the third degree. As a result of the reindictment, the state dismissed the charges in case
No. CR15-2783 on April 5, 2016. Per appellant’s request, all pending motions, including
appellant’s motion to suppress, were transferred to case No. CR16-1539.
3.
{¶ 6} On April 8, 2016, appellant filed a motion to dismiss with the trial court, in
which he argued that his speedy trial rights were violated insofar as he was not brought to
trial within the statutory time limit found in R.C. 2945.71(C). After receiving the state’s
response to the motion to dismiss, the trial court denied the motion on May 6, 2016.
{¶ 7} Three days later, appellant again moved the trial court for a continuance,
which the trial court granted. Pursuant to appellant’s request, the trial date was
rescheduled for June 13, 2016. On June 9, 2016, the trial date was further postponed by
the trial court, sua sponte. A three-day jury trial finally commenced on June 27, 2016.
{¶ 8} As one of its witnesses, the state called Sim White. During White’s
testimony, the state questioned him as to a hole that was found in one of his shoes, which
was created when a bullet fragment entered the shoe. The state introduced the shoe into
evidence and market it as an exhibit. During the state’s closing arguments, the state
referenced the shoe and placed a paperclip into the shoe where the bullet fragment was
located. Appellant’s counsel objected to the state’s use of the paperclip, and the
following exchange took place:
THE COURT: What’s your objection?
[DEFENSE COUNSEL]: My objection is this, Your Honor. I do not
know the size of anything that would have gone through the hole, if there
was a hole. He’s inserted an object that was not involved in this shoe in
any form or fashion prior to it coming to the court. Paperclip had nothing
to do with the shoe any time during this trial.
4.
If this was done and it was done yesterday afternoon, whereby the
State had access to the evidence –
THE COURT: I think did you just do it now?
[THE STATE]: I did it once yesterday, and I did it once today. I did
it once today.
THE COURT: Was it there?
[THE STATE]: I put this in now.
THE COURT: He just did it now for the jury. Okay. Go ahead.
[DEFENSE COUNSEL]: Well, the point I’m making I that
yesterday when the State took this evidence that had been admitted into
evidence down to the – assuming down to the prosecutor’s office –
[THE STATE]: No. It was done in the courtroom this morning. I
did it in the custody and in the witness of the court reporter who had
custody of the shoe.
[DEFENSE COUNSEL]: Okay. All right. I understand that. But
you conducted an experiment on a piece of evidence that had been
admitted.
[THE STATE]: I’m sorry.
[DEFENSE COUNSEL]: Can I finish? Thank you. You conducted
an experiment on a piece of evidence ex parte, the defense. You took it
upon yourself to, as you indicated, yesterday afternoon stick a paperclip
5.
through this defect in the shoe. I don’t know whether it went all the way
through yesterday. I didn’t see it.
[THE STATE]: I know that it did.
THE COURT: Okay.
[DEFENSE COUNSEL]: I know that you’re telling me that now.
THE COURT: Here’s the thing. What I would say for the record is
that the State took a paperclip, partially straightened it out and inserted it
through the obvious defect in the rubber sole of the shoe to the inside of the
shoe where the foot would be. And because of the nature of this
straightened-out paperclip, it’s similar to a needle which could go through it
even if there wasn’t a hole.
So I’m finding that this line of argument is not justified and telling
counsel for the State to move onto a different line or argument. If you were
to talk about the hole and there being a defect, do so, but not with using a
straightened-out paperclip.
{¶ 9} Following the foregoing exchange, defense counsel asked the trial court to
provide a curative instruction concerning the state’s use of the paperclip. The trial court
then instructed the jury to “disregard those very latest arguments relative to the paperclip
as it relates to Mr. Sim’s shoe.” The state then proceeded with its closing arguments.
{¶ 10} At the conclusion of the closing arguments, the jury was instructed and
began its deliberations. Thereafter, the jury returned guilty verdicts to the three charges
and the attendant specifications contained in the indictment. The court then continued the
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matter for sentencing and ordered the preparation of a presentence investigation report.
Ultimately, the court sentenced appellant to six years in prison on the felonious assault
charge, six years on the charge for discharge of a firearm upon or over a public road or
highway, and 30 months on the charge for having weapons while under disability. The
court ordered these sentences to be served concurrent to one another. The court then
merged the two firearms specifications, and imposed the mandatory consecutive sentence
of three years as to those specifications. In sum, appellant was ordered to serve a prison
sentence of nine years. Thereafter, appellant filed his timely notice of appeal.
B. Assignments of Error
{¶ 11} In his brief to this court, appellant presents the following assignments of
error:
A. The trial court erred in failing to declare a mistrial based on the
prosecution’s tampering with evidence before and during closing
arguments.
B. Imposition of a sentence for the “discharge of a firearm upon or
over a highway” with the addition of an enhancement of the sentence with a
“firearm specification” is a double punishment for the same conduct and,
thus, a violation of [the] double jeopardy clause of the United States and
Ohio Constitution and a violation of substantial due process.
C. The trial court erred, as a matter of law, by denying appellant’s
motion to dismiss based upon his speedy trial rights being violated and for
7.
failing to dismiss the case after appellant was reindicted with the additional
charge of [having] weapons under a disability.
D. The trial court committed reversible error by failing to dismiss
the charges against the appellant after the state of Ohio failed to preserve
probative relevant exculpatory evidence.
E. Appellant was denied the effective assistance of counsel where
counsel failed [to] renew the motion to dismiss for speedy trial violation
and failure to move to dismiss for failure to preserve exculpatory evidence.
II. Analysis
A. Closing Arguments
{¶ 12} In his first assignment of error, appellant argues that the trial court erred in
failing to declare a mistrial based upon the state’s handling of White’s shoe during its
closing arguments.
{¶ 13} “The Ohio Supreme Court has declared that ‘[a] mistrial should not be
ordered in a cause simply because some error has intervened. The error must
prejudicially affect the merits of the case and the substantial rights of one or both of the
parties.’” State v. Griffin, 10th Dist. Franklin No. 10AP-902, 2011-Ohio-4250, ¶ 12,
quoting Tingue v. State, 90 Ohio St. 368, 108 N.E. 222 (1914), syllabus. “Moreover,
‘[m]istrials need be declared only when the ends of justice so require and a fair trial is no
longer possible.’” Id., quoting State v. Franklin, 62 Ohio St. 3d 118, 127, 580 N.E.2d 1
(1991).
8.
{¶ 14} Review of a trial court's decision denying a motion for mistrial ordinarily
falls under an abuse of discretion standard. State v. Rossbach, 6th Dist. Lucas No. L-09-
1300, 2011-Ohio-281, ¶ 39, citing State v. Sage, 31 Ohio St. 3d 173, 182, 510 N.E.2d 343
(1987). Here, however, appellant failed to move for a mistrial. Thus, the trial court’s
refusal to declare a mistrial is reviewed under plain error analysis. Id. In State v. Barnes,
94 Ohio St. 3d 21, 2002-Ohio-68, 759 N.E.2d 1240, the Supreme Court of Ohio
articulated the following three-part test for finding plain error:
First, there must be an error, i.e., a deviation from a legal rule.
Second, the error must be plain. To be “plain” within the meaning of
Crim.R. 52(B), an error must be an “obvious” defect in the trial
proceedings. Third, the error must have affected “substantial rights.” We
have interpreted this aspect of the rule to mean that the trial court’s error
must have affected the outcome of the trial. Id. at 27 (internal citations
omitted).
{¶ 15} An appellate court should only take notice of plain error under exceptional
circumstances and only to prevent a manifest miscarriage of justice. State v. Landrum,
53 Ohio St. 3d 107, 111, 559 N.E.2d 710 (1990).
{¶ 16} Here, appellant contends that the trial court should have declared a mistrial
after the state inserted a paperclip into White’s shoe during its closing argument.
Appellant insists that the state’s act of inserting the paperclip into the shoe constituted an
“experiment” that broke the chain of custody. Further, appellant asserts that the state’s
conduct affected the fairness of the trial by altering the shoe to fit the state’s theory that
9.
appellant intentionally shot at White rather than the injury resulting from an unintended
ricochet. Under these circumstances, appellant argues that the trial court should have
cautioned the jury to judge the credibility of the shoe as a piece of evidence in light of the
alterations made to the shoe by the state, rather than simply providing a curative
instruction for the jury to disregard the state’s arguments related to the shoe.
{¶ 17} At the outset, we highlight the fact that the jury was instructed to disregard
the state’s argument concerning the paperclip that was inserted into White’s shoe. A jury
is presumed to follow such an instruction. State v. Garner, 74 Ohio St. 3d 49, 59, 656
N.E.2d 623 (1995). We find that appellant has not overcome this presumption. Further,
we conclude that the court’s curative instruction eliminated any prejudice that could have
flowed from the state’s alleged alteration of the shoe.
{¶ 18} Notably, appellant has failed to point to any evidence of actual alteration in
the record. Indeed, while the trial court explained that the paperclip was capable of
altering the shoe, it did not make a finding that the shoe was in fact altered, nor has
appellant demonstrated such alteration. Regardless, the remaining incriminatory
evidence contained in the record belies any claim of prejudice appellant might advance.
The state’s witnesses consisted of individuals that were present on the scene and
witnessed appellant firing a weapon. The testimony establishes that appellant was the
only individual with a firearm at the time of the shooting. Further, two of the state’s
witnesses actually saw appellant shoot White.
{¶ 19} In light of the curative instruction that was provided to the jury, as well as
the incriminating evidence that was presented by the state in this case, we find that
10.
appellant was not prejudiced by the trial court’s failure to sua sponte declare a mistrial.
The state’s alleged alteration of White’s shoe did not deprive appellant of a fair trial, and
appellant has failed to establish plain error in the trial court’s handling of the matter.
Accordingly, appellant’s first assignment of error is not well-taken.
B. Firearm Specifications
{¶ 20} In his second assignment of error, appellant contends that his due process
rights, as well as constitutional protections against double jeopardy, preclude the trial
court’s imposition of the mandatory three-year prison term on the firearm specification
that was attached to his conviction for discharge of a firearm upon or over a highway.
{¶ 21} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution provides that no person shall “be subject for the same offence to be twice
put in jeopardy of life or limb.” Similarly, Article I, Section 10 of the Ohio Constitution
states: “No person shall be twice put in jeopardy for the same offense.” The Double
Jeopardy Clause protects against a number of abuses. State v. Ruff, 143 Ohio St. 3d 114,
2015-Ohio-995, 34 N.E.3d 892, ¶ 10. Pertinent to this case is the protection against
multiple punishments for the same offense. Id. To that end, the General Assembly
enacted R.C. 2941.25, which provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant
may be convicted of only one.
11.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate animus
as to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 22} The argument raised by appellant in his second assignment of error
was addressed by the Ohio Supreme Court in State v. Ford, 128 Ohio St. 3d 398,
2011-Ohio-765, 945 N.E.2d 498. In that case, the court found that a firearm
specification is a penalty enhancement, not a criminal offense. Id. at paragraph
one of the syllabus. Because a firearm specification is not an offense, it does not
merge with its predicate offense under R.C. 2941.25, and can therefore be imposed
in addition to the underlying charge. Id. at ¶ 19. Thus, the court held that the trial
court properly sentenced the defendant for discharging a firearm at or into a
habitation in addition to sentencing the defendant for the firearm specification. Id.
at ¶ 20.
{¶ 23} On the authority of Ford and its progeny, we find that the trial court did not
violate double jeopardy principles by imposing sentences as to both the firearm
specification and the charge for discharge of a firearm upon or over a highway.
Additionally, we find no merit to appellant’s as-applied challenge, in which he contends
that double jeopardy principles are violated when the predicate offense includes the use
of a firearm as one of its elements. Notably, the predicate offense in Ford also included
the use of a firearm as an element.
12.
{¶ 24} Accordingly, appellant’s second assignment of error is not well-taken.
C. Speedy Trial Rights
{¶ 25} In his third assignment of error, appellant asserts that the trial court erred in
denying his motion to dismiss, which was premised upon the alleged violation of his right
to a speedy trial.
{¶ 26} A trial court’s decision denying a motion to dismiss based on an alleged
violation of the speedy trial statutes presents a mixed question of law and fact. State v.
Rumer, 6th Dist. Lucas No. L-07-1178, 2009-Ohio-265, ¶ 7, citing State v. Brown, 131
Ohio App. 3d 387, 391, 722 N.E.2d 594 (4th Dist.1998). While we accord reasonable
deference to the trial court’s findings of fact if supported by competent, credible
evidence, we independently determine whether the trial court properly applied the law to
the facts of the case. Id.
{¶ 27} R.C. 2945.71(C)(2) requires that the state bring a person charged with a
felony to trial within 270 days after the person’s arrest. If the person is held in jail,
however, each day spent in jail counts as three days. R.C. 2945.71(E). Appellant was in
custody during the pendency of this matter. Thus, the state was required to bring him to
trial within 90 days of his arrest. Appellant was not brought to trial within 90 days of the
date of his arrest, and therefore he has established a prima facie case for dismissal. State
v. Arrington, 6th Dist. Erie No. E-16-050, 2017-Ohio-2578, ¶ 14.
{¶ 28} Because appellant has made a prima facie case for dismissal, the burden
shifted to the state to demonstrate that sufficient time was tolled or extended pursuant to
R.C. 2945.72 such that no violation occurred. State v. Hohenberger, 189 Ohio App. 3d
13.
346, 2010-Ohio-4053, 938 N.E.2d 419, ¶ 35 (6th Dist.). In calculating the speedy trial
time, and considering the possible extensions of that time, the provisions of R.C. 2945.72
are to be strictly construed against the state. State v. Singer, 50 Ohio St. 2d 103, 108-109,
362 N.E.2d 1216 (1977).
{¶ 29} “R.C. 2945.72 contains an exhaustive list of events and circumstances that
extend the time within which a defendant must be brought to trial.” State v. Ramey, 132
Ohio St. 3d 309, 2012-Ohio-2904, 971 N.E.2d 937, ¶ 24. Of particular relevance here,
R.C. 2945.72(E) operates to toll the speedy trial clock for any period of delay caused by a
motion filed by the accused. Further, R.C. 2945.72(H) tolls the clock for any period of
delay brought about by the continuance of the trial date at the request of the accused.
{¶ 30} We have examined the record in this matter with the foregoing provisions in mind.
The timeline of events in this case is as follows:
Date: Party Nature of Filing Total
Days
Elapsed
10/15/2015 State Arrest 0
11/02/2015 Appellant Request for Discovery and Bill of Particulars 18
11/18/2015 State Discovery Response 18
11/30/2015 Appellant Motion to Continue Trial 30
12/14/2015 Appellant Motion to Suppress and Motion to Continue Trial 30
01/25/2016 Appellant Limited Waiver of Speedy Trial Rights 30
02/25/2016 State Motion to Continue Trial (motion to suppress 30
remained pending)
04/08/2016 Appellant Motion to Dismiss 30
05/06/2016 Court Denial of Motion to Dismiss and Motion to 30
Suppress
05/09/2016 Appellant Motion to Continue Trial 33
06/09/2016 Court Trial Date Postponed 33
06/27/2016 Court Jure Trial Commences 51
14.
{¶ 31} As is evident from an examination of this timeline, appellant filed several
motions in this case that operated to toll the speedy trial clock under R.C. 2945.72. After
deducting such tolling periods from the number of days that elapsed between appellant’s
arrest and his trial, we find that 51 days are chargeable to the state. Because appellant
was brought to trial within the 90 day speedy trial period, his speedy trial rights were not
violated and the trial court properly denied his motion to dismiss.
{¶ 32} Accordingly, appellant’s third assignment of error is not well-taken.
D. Preservation of Exculpatory Evidence
{¶ 33} In his fourth assignment of error, appellant argues that the trial court erred
in failing to dismiss the charges against him after the state failed to preserve probative
relevant exculpatory evidence consisting of the bullet removed from White’s foot.
{¶ 34} “[T]he Due Process Clause of the Fourteenth Amendment to the United
States Constitution protects a criminal defendant from being convicted of a crime where
the state either fails to preserve materially exculpatory evidence or destroys in bad faith
potentially useful evidence.” (Internal citations omitted.) State v. Benton, 136 Ohio
App.3d 801, 805, 737 N.E.2d 1046 (6th Dist.2000). The Supreme Court of Ohio has
concluded that evidence is materially exculpatory “only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” State v. Jackson, 57 Ohio St. 3d 29, 33, 565
N.E.2d 549 (1991), quoting State v. Johnston, 39 Ohio St. 3d 48, 529 N.E.2d 898 (1988),
paragraph five of syllabus.
15.
{¶ 35} In his brief to this court, appellant acknowledges that the medical records
that were supplied during discovery contain numerous references to the bullet that was
recovered from White’s foot. Thus, appellant was aware of the existence of the bullet
prior to trial. There is no evidence that the state wrongfully withheld the bullet from
appellant during discovery. While the state did not enter the bullet into evidence at trial,
there is no indication that it failed to disclose the bullet to appellant prior to trial.
{¶ 36} Accordingly, appellant’s fourth assignment of error is not well-taken.
E. Ineffective Assistance of Counsel
{¶ 37} In his fifth assignment of error, appellant contends that he was denied
effective assistance of trial counsel.
{¶ 38} In order to demonstrate ineffective assistance of counsel, appellant must
satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That is, appellant must show that counsel’s
performance fell below an objective standard of reasonableness, and a reasonable
probability exists that, but for counsel’s error, the result of the proceedings would have
been different. Id. at 687-688, 694.
{¶ 39} In the case at bar, appellant argues that his counsel was ineffective for
failing to renew the motion to dismiss that was premised upon alleged speedy trial
violations, and failing to file a motion to dismiss based upon the state’s failure to preserve
the bullet from White’s shoe. Because we have already concluded that appellant was
brought trial within the 90-day speedy trial period and that his argument concerning the
16.
bullet from White’s shoe lacks evidentiary support, we find no merit to appellant’s
ineffective assistance argument.
{¶ 40} Accordingly, appellant’s fifth assignment of error is not well-taken.
III. Conclusion
{¶ 41} In light of the foregoing, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellant is ordered to pay costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
17.