State v. Ward

[Cite as State v. Ward, 2023-Ohio-328.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29493
:
v. : Trial Court Case No. 2021 CR 01106
:
ANTONION K. WARD : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on February 3, 2023
...........
MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee
CHARLES W. SLICER, III, Attorney for Appellant
.............
WELBAUM, P.J.
{¶ 1} Appellant, Antonion K. Ward, appeals from his convictions in the Montgomery
County Court of Common Pleas after a jury found him guilty of three counts of aggravated
vehicular homicide. In support of his appeal, Ward claims that the trial court erred by
failing to suppress un-Mirandized statements that he made to police officers during two
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separate interviews. Ward also claims that his convictions were against the manifest
weight of the evidence and that his trial counsel provided ineffective assistance during his
trial. Ward further claims that he was denied a fair trial due to the State’s engaging in
prosecutorial misconduct during closing argument. For the reasons outlined below, we
find that all of Ward’s claims lack merit, and we will affirm the judgment of the trial court.
Facts and Course of Proceedings
{¶ 2} On May 11, 2021, a Montgomery County grand jury returned an indictment
charging Ward with three counts of aggravated vehicular homicide in violation of R.C.
2903.06(A)(2)(a), felonies of the second degree. The charges arose from a two-vehicle
collision that occurred on July 15, 2020, at the intersection of Olive and Little Richmond
Roads in the city of Trotwood. The indictment alleged that Ward had been operating one
of the vehicles involved in the collision and that, in doing so, he recklessly caused the
deaths of his passengers, Michael Stephens and Elgin Wilson IV, and of the driver of the
other vehicle in the collision, Leah Smith. Ward pled not guilty to the indicted charges
and thereafter filed a motion to suppress. In the motion, Ward sought to suppress
statements that he had made to investigating officers during two separate interviews on
grounds that the officers did not advise him of his Miranda rights before questioning him.
{¶ 3} On March 7, 2022, the trial court held a hearing on Ward’s motion to
suppress. At the hearing, the State presented testimony from the officers who had
questioned Ward. The first officer, Trooper Joshua Jones of the State Highway Patrol,
testified that he had interviewed Ward on the night of the accident while Ward was at the
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hospital receiving medical treatment for his injuries. The second officer, Officer Sherri
Jackson of the Trotwood Police Department, testified that she and another officer,
Trooper Ambers, had interviewed Ward at his residence two weeks after the accident.
Both Tpr. Jones and Ofc. Jackson testified that, at the time of their respective interviews,
Ward had not been a criminal suspect, had not been placed under arrest, and had not
been advised of his Miranda rights before questioning. The officers’ testimony also
established that the officers had in no way restrained Ward’s freedom of movement or his
ability to terminate the interviews.
{¶ 4} After considering the officers’ testimony and the exhibits, which included a
written statement of the questions and answers given during Tpr. Jones’ interview and an
audio recording of Ofc. Jackson’s interview, the trial court determined that neither
interview had qualified as a custodial interrogation that required Miranda warnings.
Accordingly, the trial court overruled Ward’s motion to suppress the statements that he
had made to each of the officers.
{¶ 5} Following the trial court’s ruling on Ward’s motion to suppress, the matter
proceeded to a three-day jury trial in May 2022. During trial, the State presented
testimony from multiple witnesses who had observed the traffic accident. The State also
presented testimony from the fire and law enforcement officers who had responded to the
scene of the accident and investigated the matter. In addition, the State presented
testimony from the coroner who had performed autopsies on the three victims and from
an expert traffic accident reconstructionist. Ward also testified in his defense.
{¶ 6} The trial testimony established that on the evening of July 15, 2020, Ward,
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who was then 19 years old, drove his mother’s Chevy Cruz to pick up his 18-year-old
stepbrother, Michael Stephens, and his 18-year-old friend, Elgin Wilson, from a pool
party. Ward’s plan was to drive Stephens and Wilson to an after-party located at an
Airbnb rental house. While traveling to the after-party, Ward stopped his vehicle at a
traffic light on Olive Road near the Trotwood police station. An SUV driven by Ward’s
17-year-old friend, E’Mariha Combs, was stopped beside Ward in the adjacent lane of
traffic. Combs had also been at the pool party and was driving a group of her friends
and her 14-year-old brother, Emerson, to the same after-party that Ward and his friends
were traveling to attend. Ward and Combs saw each other as they were sitting side-by-
side at the traffic light, and they both took off fast on Olive Road once the light turned
green.
{¶ 7} Combs testified that, when she took off from the traffic light, she drove 80
miles per hour down Olive Road. Combs testified that Ward kept up with her speed and
eventually positioned his vehicle behind her once Olive Road went from two lanes to one.
During that time, Combs testified that she and Ward passed two or three vehicles on Olive
Road by weaving in and out of the oncoming traffic lane. Combs claimed that, when she
approached an intersection with Little Richmond Road, she drove into a turn lane and
stopped her vehicle at a traffic light that was positioned at the intersection. Combs
testified that Ward then passed her and went straight through the intersection while the
traffic light was red. Combs testified that Ward traveled through the intersection at
approximately 75 miles per hour without braking. Thereafter, Combs saw Ward’s vehicle
collide with a vehicle traveling on Little Richmond Road; Ward’s vehicle flew into the air,
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touched a power line, caught fire, and landed in a nearby wooded area, while the other
vehicle flipped over and landed in a ditch off the road.
{¶ 8} Combs’ brother, Emerson, who had been in the SUV with Combs, testified to
seeing Ward, Stephens, and Wilson stopped next to them at a traffic light by the Trotwood
police station. After that, Emerson testified that Combs started to drive fast down Olive
Road, which he noted had a speed limit of 35 miles per hour. Emerson testified that he
told Combs to slow down and that Combs thereafter drove into a turn lane and stopped
their vehicle at a red light at the intersection of Little Richmond Road. Emerson testified
that he saw Ward’s vehicle pass them on the driver’s side and then collide with another
vehicle traveling on Little Richmond Road. Emerson called 9-1-1 to report the accident.
An audio-recording of Emerson’s 9-1-1 call was played for the jury and admitted into
evidence as State’s Exhibit 66. During the call, Emerson can be heard telling the
operator that: “The car that is on fire ran a red light.”
{¶ 9} Another motorist, Karrie Canady, testified that on the day of the accident, she
was driving 40 miles per hour on Olive Road when an SUV and another vehicle following
the SUV came up quickly behind her and passed her by driving into the oncoming traffic
lane. Canady testified that both vehicles were traveling at the same rate of speed, which
she estimated was approximately 65 to 70 miles per hour. Canady testified that the SUV
took a wide right turn onto Little Richmond Road while the other vehicle behind it went
straight through the intersection after the traffic light had turned red. The next thing
Canady remembered was seeing smoke and hearing a collision. Canady called 9-1-1
and reported the accident; an audio recording of Canady’s 9-1-1 call was played for the
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jury and admitted into evidence as State’s Exhibit 67. During the call, Canady can be
heard saying: “There’s been a really really bad car accident on Little Richmond and it’s
on fire. It’s in the woods. I know he passed me probably going about a good 100 miles
per hour.” During the call, Canady also advised the 9-1-1 operator that there was a baby
in one of the vehicles.
{¶ 10} Kimberly Moore, a resident who lived near the intersection of Olive and Little
Richmond Roads, testified that on the day of the accident, she was walking her dog when
she heard a loud explosion and saw a vehicle flying into pieces. Moore testified that the
vehicle was so high in the air that she could see it over the top her next-door neighbor’s
roof. Moore testified that she did not recall hearing any brakes or screeching of tires.
Moore testified that she immediately called 9-1-1 while her boyfriend ran toward the front
of their driveway. Moore testified that when her boyfriend came back, he told her that
there was a baby in one of the vehicles. Moore also testified to seeing a young woman
jump out of an SUV and pace up and down the street while frantically screaming: “It’s my
fault; I should have told him no.” Trial Tr. Vol. I, p. 44.
{¶ 11} Lieutenant Michael Snyder of the Trotwood Fire Department was the first
officer to arrive at the scene of the accident. Lt. Snyder testified that when he arrived,
he saw a vehicle off to the left of the road on its side against a pole and another vehicle
in the woods fully engulfed in flames. Lt. Snyder testified that he and another officer
made their way into the woods and extinguished the flames coming from the vehicle that
was on fire. After doing so, Lt. Snyder observed two victims inside the vehicle who were
charred beyond recognition. Snyder testified that a third person, Ward, was found
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approximately 20 yards from the vehicle and that Ward had a broken leg.
{¶ 12} Continuing, Lt. Snyder testified that he observed a female lying halfway out
of the other vehicle and that she showed no signs of life. Lt. Snyder testified that he
became concerned upon observing a child safety seat in the female’s vehicle. However,
shortly after observing the safety seat, Lt. Snyder saw a bystander walking with the child
who had been in the vehicle. Lt. Snyder testified that the child was given to a medic and
taken to Dayton Children’s Hospital. In addition, Lt. Snyder identified photos of the
accident scene, which were taken by Trooper Alexander Davis of the State Highway
Patrol. Tpr. Davis testified at trial and confirmed that he had taken the photographs in
question and that he had helped prepare a basic field sketch of the accident scene.
{¶ 13} Coroner Lee Lehman testified to performing autopsies on the three victims
who died in the accident. Lehman testified that Leah Smith had several broken bones
and internal injuries and that her cause of death was a fracture to the base of her skull,
which severed her brainstem. Lehman testified that Stephens had a ruptured liver and
that his cause of death was a torn aorta of the heart. Lehman testified that Wilson had
fractures in his femur and spine, liver lacerations, and a fatal head trauma that caused
bleeding over the surface of his brain. Lehman further testified that the victims’ injuries
were consistent with a highway-speed collision.
{¶ 14} Officer Sherri Jackson, who had also testified at the suppression hearing,
confirmed that the speed limit on Olive Road was 35 miles per hour and 45 miles per hour
on Little Richmond Road. Ofc. Jackson also testified regarding her interview with Ward
on July 29, 2020, at his residence. An audio-recording of the interview was played for
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the jury and admitted into evidence as State’s Exhibit 68(A). On the recording, Ward
said that the traffic light at the intersection in question went from green to yellow as he
approached, and that the light was yellow as he went through the intersection. Ward
also told Ofc. Jackson that he had never driven in the oncoming traffic lane, had not been
speeding when he went through the intersection, and had not seen the other vehicle
coming from Little Richmond Road. Ward also indicated that he, Stephens, and Wilson
had been singing, dancing, and having fun in the vehicle immediately before the accident.
{¶ 15} Trooper Jaysen Kelly of the State Highway Patrol, an expert traffic accident
reconstructionist who prepared a crash reconstruction report on the accident in question,
testified that he had used a piece of survey equipment known as a Trimble Total Station
to create profiles of the accident scene and the vehicles. According to Tpr. Kelly, those
profiles helped him determine the vehicles’ “crush damage.” Trial Tr. Vol. II, p. 238.
Tpr. Kelly also testified that his calculations established that, at the time of the accident,
Ward had been traveling within a range of 70.02 to 78.96 miles per hour, and that Leah
Smith had been traveling within in a range of 40.5 to 45.6 miles per hour. Id. at 259-262.
Tpr. Kelly also testified that, even without using any mathematical or scientific
calculations, his experience and common sense led him to believe that the accident
involved a high rate of speed.
{¶ 16} Ward testified that he accepted the accuracy of the speeds testified to by
Tpr. Kelly and thus admitted to speeding during the accident. Ward testified that he had
told Ofc. Jackson that he was not speeding during his interview with her because he had
been in denial. Ward also stipulated to the fact that his learner’s permit for driving had
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been suspended and that he had had no driving privileges at the time of the accident.
Regarding the accident, Ward testified that he had passed Combs on Olive Road while
she slowed down and turned right onto Little Richmond Road. Ward claimed that
Stephens had told him to go straight through the Olive and Little Richmond intersection
and that he did not remember anything else from that point on.
{¶ 17} On cross-examination, Ward acknowledged that traffic laws require
motorists to follow the speed limit, stop at red lights, and stay in the correct lane of travel.
Ward also acknowledged that failing to follow those traffic laws could result in an accident
and people getting injured or killed. Ward, however, claimed that those dangers had
slipped his mind and that he had not thought he was putting himself or others in danger
because he had looked both ways and had not seen the other vehicle coming.
{¶ 18} After considering the foregoing testimony and exhibits, the jury found Ward
guilty on all three counts of aggravated vehicular homicide. Pursuant to the Reagan
Tokes Act, the trial court ordered Ward to serve an aggregate, mandatory minimum term
of 24 years in prison to a maximum term of 28 years in prison. The trial court also
ordered Ward to pay restitution and suspended his driving privileges for life.
{¶ 19} Ward appeals from his conviction, raising four assignments of error for
review. For purposes of clarity, we will address Ward’s assignments of error out of order.
Second Assignment of Error
{¶ 20} Under his second assignment of error, Ward contends that the trial court
erred by failing to grant his motion to suppress the statements he made during his
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interviews with Tpr. Jones and Ofc. Jackson. Ward contends that his statements to the
officers should have been suppressed because the officers had not advised him of his
Miranda rights before questioning him.
Standard of Review and Miranda
{¶ 21} When ruling on a motion to suppress, a trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” (Citation omitted.) State v. Retherford, 93 Ohio App.3d
586, 592, 639 N.E.2d 498 (2d Dist.1994). As a result, when we review suppression
decisions, “we are bound to accept the trial court’s findings of fact if they are supported
by competent, credible evidence. Accepting those facts as true, we must independently
determine as a matter of law, without deference to the trial court’s conclusion, whether
they meet the applicable legal standard.” Id.{¶ 22} In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
the United States Supreme Court adopted procedural safeguards to secure the Fifth
Amendment’s constitutional guarantee against self-incrimination. State v. Hudson, 2d
Dist. Montgomery No. 29333, 2022-Ohio-3253, ¶ 30; In re M.H., 163 Ohio St.3d 93, 2020-
Ohio-5485, 168 N.E.3d 439, ¶ 18. “Miranda requires police to give a suspect certain
prescribed warnings before [a] custodial interrogation commences and provides that if the
warnings are not given, any statements elicited from the suspect through police
interrogation in that circumstance must be suppressed.” State v. Petitjean, 140 Ohio
App.3d 517, 523, 748 N.E.2d 133 (2d Dist.2000). In other words, if “Miranda warnings
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are not given prior to a custodial interrogation, the prosecution may not use the
statements obtained from the suspect at trial.” In re M.H. at ¶ 18, citing Miranda at 444.
{¶ 23} “Police, however, are not required to administer Miranda warnings to every
person they question, even if the person being questioned is a suspect.” Hudson at ¶ 31,
citing State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997), citing Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). “Rather, Miranda
warnings are required only for custodial interrogations[.]” Id., citing State v. Moody,
2012-Ohio-3390, 974 N.E.2d 1273, ¶ 12 (2d Dist.). Custodial interrogation is
“ ‘questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.’ ” State v.
Roberts, 32 Ohio St.3d 225, 226, 513 N.E.2d 720, fn. 1 (1987), quoting Miranda at 444.
{¶ 24} “Determining whether questioning is ‘a custodial interrogation requiring
Miranda warnings demands a fact-specific inquiry that asks whether a reasonable person
in the suspect’s position would have understood himself or herself to be in custody while
being questioned.’ ” State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d
1138, ¶ 57, quoting Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810,
¶ 21. Such an inquiry “focuses upon how a reasonable person in the suspect’s position
would have understood the situation.” State v. Ferguson, 2017-Ohio-7930, 98 N.E.3d
987, ¶ 70 (2d Dist.), citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82
L.Ed.2d 317 (1984). “[N]either the subjective intent of the officer, nor the subjective belief
of the defendant is relevant.” State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927
N.E.2d 632, ¶ 50 (2d Dist.), citing State v. Estepp, 2d Dist. Montgomery No. 16279, 1997
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WL 736501, *4 (Nov. 26, 1997). (Other citation omitted.)
{¶ 25} “ ‘The factors a court should consider in applying this reasonable person
test include whether the encounter takes place in surroundings that are familiar to the
suspect; the number of law enforcement officers present, as well as their conduct and
demeanor; the degree of physical restraint imposed; and the duration and character of
the interrogation.’ ” State v. Magnone, 2016-Ohio-7100, 72 N.E.3d 212, ¶ 23 (2d Dist.),
quoting State v. Farrell, 2d Dist. Miami No. 99-CA-24, 1999 WL 812249, *3 (Oct. 8, 1999).
Other factors that may be considered are: 1) the location where the questioning took
place; 2) whether the defendant was a suspect when the interview began; 3) any
restrictions on the defendant’s freedom to leave; 4) whether the defendant was
handcuffed or was told he was under arrest; 5) whether threats were made during the
interrogation; 6) whether the defendant was physically intimidated during the
interrogation; 7) whether the police verbally dominated the interrogation; 8) the
defendant’s purpose for being at the location of the questioning; 9) whether neutral parties
were present at any point during the questioning; and 10) whether police took any action
to overpower, trick, or coerce the defendant into making a statement. Estepp at *4.
Interview at Hospital with Tpr. Jones
{¶ 26} Ward asserts that his interview with Tpr. Jones at the hospital amounted to
a custodial interrogation and that Tpr. Jones’ undisputed failure to give Miranda warnings
before the interview rendered the statements he made during the interview inadmissible.
Ward claims that the interview with Tpr. Jones amounted to a custodial interrogation
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because Tpr. Jones “summoned” him for questioning while he was lying in a hospital bed.
According to Ward, his injury, a broken leg, restricted his freedom of movement and
prevented him from having the ability to leave the interview. Ward further claims that he
was physically intimidated by Tpr. Jones, who was armed and in uniform while standing
over his bed questioning him. Ward claims that all these factors would have led a
reasonable person in his position to believe that he had been in custody during the
interview. We disagree.
{¶ 27} “Ohio courts have found police questioning of individuals in the hospital, at
times, to be custodial in nature.” (Emphasis added.) State v. Smith, 2d Dist. Miami No.
1995-CA-17, 1996 WL 239823, *5, citing State v. Main, 5th Dist. Stark No. CA 9562, 1994
WL 477751, (Aug. 22, 1994); State v. White, 4th Dist. Athens No. 1230, 1986 WL 6048,
(May 23, 1986). This court, however, has recognized that, unlike a police station, a
hospital is “a place an individual would normally feel free to leave[.]” Estepp, 2d Dist.
Montgomery No. 16279, 1997 WL 736501, at *5. Accord State v. Lewis, 2d Dist.
Montgomery No. 18098, 2000 WL 1867568, *4 (Dec. 22, 2000). This court has also
recognized that confinement in a hospital bed does not necessarily “ ‘amount to a coercive
environment or rise to the degree or level of restraint on freedom of movement generally
associated with a formal arrest.’ ” Smith at *5, quoting State v. Shipley, 12th Dist. Butler
No. CA84-01-012, 1984 WL 3451, *3 (Oct. 22, 1984).
{¶ 28} In State v. Pyle, 2d Dist. Greene No. 2003-CA-35, 2003-Ohio-6664, this
court found no custodial interrogation under circumstances where an investigating officer
interviewed the defendant in a hospital room while the defendant was strapped to a
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backboard and wearing a neck brace. Id. at ¶ 7, 21-23. We reached this conclusion
because the defendant “was not brought to the hospital by [the investigating officer] for
questioning, but was brought by medics for treatment of his injuries.” Id. at ¶ 22.
Because the defendant was not restrained by the investigating officer, “but was restrained
for medical treatment due to his injuries[,]” we found that there was “nothing in the record
to indicate that [the defendant] was not free to leave the room due to [the investigating
officer], or that [the investigating officer] did anything to prevent [the defendant] from
leaving the room.” Id. See also Smith at *5; Lewis at *4. Accordingly, we found no
custodial interrogation and thus no Miranda violation. Pyle at ¶ 23.
{¶ 29} The present case is analogous to Pyle, as Ward was taken to the hospital
by medics for purposes of receiving medical treatment for his broken leg and other
injuries, not for police questioning. Moreover, there is nothing in the record indicating
that Tpr. Jones did anything to restrict Ward’s freedom of movement while questioning
him at the hospital. Simply because Ward was confined to a hospital bed and unable to
freely move about due to his injuries does not mean that he was in custody for purposes
of Miranda. See Smith at *5; Shipley at *3.
{¶ 30} Furthermore, Ward’s claim that Tpr. Jones “summoned” him for questioning
is unsupported by the record. While no specific finding was made by the trial court on
this matter, the record of the suppression hearing establishes that Tpr. Jones asked
hospital staff to take him to Ward’s hospital room, where Tpr. Jones then introduced
himself to Ward and explained his reason for being there, i.e., to ask questions about the
traffic accident. Suppression Tr., p. 11, 16, and 19. Nothing in the record indicates that
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Ward was brought to Tpr. Jones for questioning. Instead, the record establishes that
Tpr. Jones sought out Ward with the help of hospital staff, which is similar to the
circumstances in Pyle. See Pyle at ¶ 7, 21-23.
{¶ 31} In addition, Ward’s claim that Tpr. Jones was physically intimidating during
the interview is unpersuasive. As previously discussed, this claim is based merely on
the fact that Tpr. Jones was armed and in uniform while standing over Ward’s bed to
question him. Because Ward was confined to his bed and because officers like Tpr.
Jones typically wear uniforms and carry weapons while on duty, we do not find that those
attributes would have caused a reasonable person in Ward’s position to believe that he
was in custody. This is especially true since the trial court found that Tpr. Jones never
drew his weapon during the interview and never told Ward that he was under arrest.
{¶ 32} The trial court also found that the interview with Tpr. Jones lasted only 10
or 15 minutes and that Tpr. Jones wrote down all the questions and answers from the
interview. The written questions and answers were admitted into evidence during the
suppression hearing, and they established that the interview was restricted to 11
straightforward questions pertaining to the accident, the occupants in Ward’s vehicle, and
whether Ward had been under the influence of drugs or alcohol. See Suppression
Exhibit No. 5. Accordingly, there is nothing in the record indicating that Tpr. Jones
threatened or coerced Jones during the interview. In fact, the trial court found that Tpr.
Jones did not even know if Ward was a criminal suspect at the time of the interview and
that Ward was free to terminate the interview.
{¶ 33} Upon review, we find that the trial court’s findings were supported by
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competent, credible evidence in the record. Based on those findings, we cannot say that
a reasonable person in Ward’s position would have felt that he was in custody at the time
he was questioned by Tpr. Jones. Accordingly, there was no custodial interrogation for
which Tpr. Jones was required to give Miranda warnings. Because there was no
custodial interrogation, the trial court did not err by failing to suppress the statements that
Ward made to Tpr. Jones at the hospital.
Interview at Ward’s Residence with Ofc. Jackson and Tpr. Ambers
{¶ 34} Ward also asserts that his interview with Ofc. Jackson and Tpr. Ambers at
his residence amounted to a custodial interrogation for which Miranda warnings were
required. We again disagree.
{¶ 35} “In general, questioning by law enforcement officers is less likely to rise to
the level of a custodial interrogation when it occurs in a defendant’s home.” (Citations
omitted.) State v. Martinez, 8th Dist. Cuyahoga Nos. 103572, 103573, 2016-Ohio-5515,
¶ 23. “The courts of this state have generally found that an individual is not in custody
when questioning takes place in the individual’s home and the individual is free to move
about and is questioned by an officer over a brief period of time.” State v. Chenoweth,
2d Dist. Miami No. 2010-CA-14, 2011-Ohio-1276, ¶ 7. See also State v. Preztak, 181
Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 24 (8th Dist.) (no custodial
interrogation where officers knocked on defendant’s door, defendant invited officers into
her home for questioning, officers did not handcuff or restrain the defendant, and
defendant never made an attempt to end the interview). “This is because a person’s
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home is a place that ‘a reasonable person would have felt free to terminate the
interview[.]’ ” State v. Griffith, 8th Dist. Cuyahoga No. 97366, 2012-Ohio-2628, ¶ 19,
quoting Yarborough v. Alvarado, 541 U.S. 652, 664-665, 124 S.Ct. 2140, 158 L.Ed.2d
938 (2004).
{¶ 36} However, “Ohio courts have found that the ‘inherently coercive’ atmosphere
of a custodial interrogation can occur even if a suspect is questioned in his home if he is
thereby ‘deprived of his freedom of action in a significant way.’ ” (Emphasis added.)
State v. Sevrence, 6th Dist. Fulton No. F-96-001, 1997 WL 89100, *5 (Feb. 28, 1997),
quoting State v. Steers, 2d Dist. Greene No. 1989-CA-38, 1991 WL 82974, *3 (May 14,
1991), citing Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).
That, however, was not the case here.
{¶ 37} In this case, the trial court found that Ward’s interview with Ofc. Jackson
and Tpr. Ambers took place at Ward’s residence. The trial court also found that Ward’s
younger brother answered the door and let the officers inside the residence after Ward
invited the officers to talk with him inside his bedroom. Based on the audio-recorded
interview, the trial court additionally found that the interview lasted approximately 20
minutes and was conversational in nature. The trial court further found that Ward was
coherent, upbeat, and happy during the interview. In addition, the trial court found that
Ward never asked to end the interview, was not placed under arrest or detained, and the
officers did not make any promises or threaten Ward.
{¶ 38} Upon review, we find that all the trial court’s findings were supported by
competent, credible evidence in the record. Based on those findings, we cannot say that
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Ward was in custody or that he was deprived of his freedom in any significant way during
the interview at his residence. In so holding, we note that Ward’s freedom of movement
was restricted only by his broken leg, not by the officers. The officers never confined
Ward or prevented him from moving about while they were questioning him.
{¶ 39} For the foregoing reasons, we cannot say that a reasonable person in
Ward’s position would have believed that he was in custody during the interview at his
residence. Accordingly, there is no basis to conclude that there was a custodial
interrogation. Because there was no custodial interrogation, the trial court did not err by
failing to suppress the statements that Ward made to Ofc. Jackson and Tpr. Ambers at
his residence.
{¶ 40} Ward’s second assignment of error is overruled.
Third Assignment of Error
{¶ 41} Under his third assignment of error, Ward contends that his convictions for
three counts of aggravated vehicular homicide were against the manifest weight of the
evidence. We disagree.
{¶ 42} “A weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 12. When evaluating whether a conviction is against the
manifest weight of the evidence, the appellate court must review the entire record, weigh
the evidence and all reasonable inferences, consider witness credibility, and determine
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whether, in resolving conflicts in the evidence, the trier of fact “ ‘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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
“The fact that the evidence is subject to different interpretations does not render the
conviction against the manifest weight of the evidence.” State v. Adams, 2d Dist. Greene
Nos. 2013-CA-61, 2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶14. A judgment
of conviction should be reversed as being against the manifest weight of the evidence
only in exceptional circumstances. Martin at 175.
{¶ 43} Pursuant to Ohio's aggravated vehicular homicide statute, R.C.
2903.06(A)(2)(a), the State was required to prove that Ward recklessly caused the death
of another while operating a motor vehicle. Because there was no dispute that Ward had
been driving at the time of the accident in question and that the accident had caused the
deaths of Stephens, Wilson, and Smith, the only element at issue was whether Ward had
been reckless.
{¶ 44} “A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that the person’s
conduct is likely to cause a certain result or is likely to be of a certain nature.” R.C.
2901.22(C). Excessive speed by itself does not constitute recklessness for purposes of
supporting a conviction for aggravated vehicular homicide. See State v. Skaggs, 185
Ohio App.3d 752, 2010-Ohio-302, 925 N.E.2d 676, ¶ 46-47 (2d Dist.); State v. Whitaker,
111 Ohio App.3d 608, 611-612, 676 N.E.2d 1189 (6th Dist.1996); State v. Moore, 2d Dist.
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Montgomery No. 22904, 2009-Ohio-3766, ¶ 8. “Rather, it is one factor to consider, along
with all of the other evidence, in determining recklessness.” Skaggs at ¶ 47.
{¶ 45} In this case, E’Mariha Combs, Emerson Combs, and Karrie Canady testified
to having seen Ward exceeding the speed limit, weaving into the oncoming traffic lane to
pass vehicles, and running the red light, which led to the fatal collision at the intersection
of Olive and Little Richmond Roads. The photographic evidence and the testimony given
by the responding fire and police officers regarding the condition and placement of the
vehicles after the collision also supported the conclusion that the accident was the result
of a high-speed collision. The expert testimony given by accident reconstructionist Tpr.
Kelly further established that Ward had been traveling within a range of 70.02 to 78.96
miles per hour in a 35 mile per hour zone.
{¶ 46} In addition, Ward admitted to exceeding the speed limit in the range testified
to by Tpr. Kelly and stipulated to the fact that he had had no driving privileges at the time
of the accident. In addition, Ward acknowledged that traffic laws require drivers to follow
the speed limit, stay in the correct lane of travel, and to stop at red lights. Ward further
acknowledged that failing to abide by those traffic laws could result in someone getting
injured or killed.
{¶ 47} After reviewing the entire record, weighing the evidence and all reasonable
inferences, and considering witness credibility, we cannot say that the evidence weighed
heavily against convicting Ward of the three counts of aggravated vehicular homicide;
there was ample evidence presented at trial establishing that Ward recklessly caused the
deaths of the three victims while operating a motor vehicle. The evidence overwhelmingly
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established that Ward had been reckless because it showed that Ward had traveled over
twice the speed limit, had woven into the oncoming traffic lane to pass cars, and had run
a red light at an intersection, all while being an unlicensed driver and knowing that such
traffic violations could result in someone’s getting injured or killed. Accordingly, Ward’s
claim that his convictions were against the manifest weight of the evidence lacks merit.
{¶ 48} Ward’s third assignment of error is overruled.
First Assignment of Error
{¶ 49} Under his first assignment of error, Ward contends that his trial counsel
provided ineffective assistance by: (1) asking questions during his direct examination that
reiterated and validated the damaging evidence concerning the high rate of speed at
which he had been traveling; (2) failing to object to Tpr. Kelly’s testimony regarding his
use of the Trimble Total Station; and (3) failing to object to certain comments made by
the prosecutor during closing argument.
Standard of Review
{¶ 50} To succeed on an ineffective assistance claim, a defendant must establish:
(1) his trial counsel’s performance was deficient; and (2) the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989), paragraph two of the syllabus. To establish deficient performance, a
defendant must show that his trial counsel’s performance fell below an objective standard
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of reasonable representation. Strickland at 688; Bradley at 142. To establish prejudice,
a defendant must show that there is “a reasonable probability that, but for counsel’s
errors, the proceeding’s result would have been different.” State v. Hale, 119 Ohio St.3d
118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688 and Bradley at
paragraph two of the syllabus. The failure to make a showing of either deficient
performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland
at 697.
{¶ 51} In reviewing ineffective assistance claims, “ ‘we will not second-guess trial
strategy decisions, and “a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” ’ ” State v. English,
2d Dist. Montgomery No. 26337, 2015-Ohio-1665, ¶ 10, quoting State v. Mason, 82 Ohio
St.3d 144, 157-158, 694 N.E.2d 932 (1998), quoting Strickland at 689. Therefore, “ ‘trial
counsel is allowed wide latitude in formulating trial strategy[.]’ ” State v. Collins, 2d Dist.
Miami No. 2010-CA-22, 2011-Ohio-4475, ¶ 15, quoting State v. Olsen, 2d Dist. Clark No.
2009-CA-110, 2011-Ohio-3420, ¶ 121. “Debatable strategic and tactical decisions may
not form the basis of a claim for ineffective assistance of counsel, even if, in hindsight, it
looks as if a better strategy had been available.” State v. Conley, 2015-Ohio-2553, 43
N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d
70 (1992).
Counsel’s Questioning of Ward on Direct Examination
{¶ 52} Ward first contends that his trial counsel provided ineffective assistance
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during his direct examination because counsel asked questions that reiterated and
ultimately confirmed the high rate of speed at which he had been traveling at the time of
the accident. Specifically, Ward takes issue with the following line of questioning:
Q. And you heard testimony about – both from witnesses and from an
– the expert, as far as [Combs’] speed and your speed. As you sit
here today, do you accept that that’s accurate?
A. Yes.
Q. When you were talking to the officer, we heard it on the tape there
that you didn’t tell the officer you were doing 60 or 70, whatever the
speed was.
A. Correct.
Trial Tr. Vol. II, p. 303-304. According to Ward, the foregoing line of questioning
prejudiced him because it needlessly corroborated damaging testimony offered by the
State and negated the defense he gave to police during his interview, i.e., that he had not
been speeding.
{¶ 53} “In general, the manner of questioning a witness is a matter of trial strategy.”
(Citation omitted.) State v. Martin, 10th Dist. Franklin No. 05AP-495, 2006-Ohio-4229,
¶ 20, citing State v. Singh, 157 Ohio App.3d 603, 2004-Ohio-3213, 813 N.E.2d 12, ¶ 43
(7th Dist.); State v. Schooler, 2d Dist. Montgomery No. 24488, 2011-Ohio-6108, ¶ 17
(“whether to ask [a witness] particular questions is a matter of sound trial strategy”); State
v. Barnhart, 6th Dist. Huron No. H-10-005, 2011-Ohio-2693, ¶ 44 (“[t]he scope and
nuances of how a particular witness is questioned fall within the ambit of trial strategy”).
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As previously discussed, a debatable decision concerning trial strategy cannot form the
basis of an ineffective assistance of counsel claim. Cook, 65 Ohio St.3d 516, 524-525,
605 N.E.2d 70.
{¶ 54} In this case, the way in which counsel conducted his direct examination of
Ward was a matter of trial strategy. Given the overwhelming evidence establishing that
Ward was speeding, Ward’s trial counsel may have strategically decided to question
Ward in a manner that allowed Ward to admit he was speeding as a means to boost his
credibility in the eyes of the jury. It is important to note that Ward’s admission to speeding
was not fatal to his case. This is because the primary issue for trial was whether Ward
was reckless at the time of the accident, and, as previously discussed, excessive speed
by itself does not constitute recklessness for purposes of supporting a conviction for
aggravated vehicular homicide. Skaggs, 185 Ohio App.3d 752, 2010-Ohio-302, 925
N.E.2d 676, at ¶ 46-47; Whitaker, 111 Ohio App.3d 608 at 611-612, 676 N.E.2d 1189.
{¶ 55} Because counsel’s line of questioning was a matter of trial strategy, Ward’s
ineffective assistance claim as it relates to his direct examination lacks merit.
Failure to Object to Trimble Total Station Testimony
{¶ 56} Ward next claims that his trial counsel provided ineffective assistance by
failing to object to Tpr. Kelly’s testimony regarding his use of a surveying instrument
known as a Trimble Total Station. Tpr. Kelly testified to using a Trimble Total Station to
shoot profiles of the accident scene and the vehicles in order to measure the vehicle
“crush damage.” Trial Tr. Vol. III, p. 238. Ward claims that his trial counsel should have
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objected to the testimony that flowed from Tpr. Kelly’s use of the Trimble Total Station,
because proper foundation was not laid as to the instrument’s reliability or its purpose.
{¶ 57} Even if we were to find that counsel’s failure to object to the testimony at
issue constituted deficient performance, Ward cannot establish any resulting prejudice.
This is because even if Tpr. Kelly’s testimony pertaining to the Trimble Total Station had
been prohibited on objection, there was other ample evidence establishing Ward’s
reckless conduct at the time of the accident, i.e., the eyewitness testimony, Ward’s
admission to speeding, and his stipulation to being an unlicensed driver. In other words,
Tpr. Kelly’s expert testimony pertaining to the Trimble Total Station was not vital to Ward’s
conviction, and its absence would not have changed the outcome of Ward’s trial.
Because the outcome of Ward’s trial would not have been different had his trial counsel
objected to Tpr. Kelly’s testimony, Ward cannot establish any prejudice. Accordingly,
Ward’s ineffective assistance of counsel claim relating to that testimony lacks merit.
Failure to Object to Comments During the State’s Closing Argument
{¶ 58} Ward further claims that his trial counsel provided ineffective assistance by
failing to object to the following comments made by the prosecutor during closing
argument:
Defendant ignored all of these risks, stuck his head in the sand and
flew through that intersection at the red light thinking he was invincible.
And you know what? He survived. * * * Mike and Elgin were trapped in a
one and a half ton missile careening through that intersection in to Leah
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Smith’s car.
Trial Tr. Vol. III at 345.
[During his police interview, Ward] not only tells the officer about [the
music in the car and bopping around in the car] two weeks after he kills
three people, but he’s laughing about it and dancing around and showing
the officer how he was dancing along with the music, too.
Id. at 364.
{¶ 59} Also, after mentioning that Ward was an unlicensed driver who drove at
least two times over the legal speed limit, wove in and out of traffic, and ran a red light
without trying to stop or slow down, the prosecutor said: “I would have a hard time
suggesting something that would make him more reckless. I guess maybe if he was
taking a selfie while doing it?” Id. at 357.
{¶ 60} Ward claims that the foregoing comments by the prosecutor were improper
because their purpose was to inflame the emotions of the jurors. Ward also claims that
his trial counsel performed deficiently by failing to object to the comments and that said
deficient performance prejudiced him. We disagree.
{¶ 61} Prosecutors are afforded wide latitude in the presentation of closing
arguments. State v. Arrone, 2d Dist. Greene No. 2005-CA-89, 2006-Ohio-4144, ¶ 126;
State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). They may comment freely
on “ ‘what the evidence has shown and what reasonable inferences may be drawn
therefrom.’ ” Lott at 165, quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d
(1970). Accord State v. Baker, 159 Ohio App.3d 462, 2005-Ohio-45, 824 N.E.2d 162,
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¶ 19 (2d Dist.). “Both parties * * * may be ‘colorful or creative’ [during closing arguments]
but not purely abusive, inflammatory, or purely derogatory.” State v. Whitaker, Ohio Slip
Opinion No. 2022-Ohio-2840, __ N.E.3d __, ¶ 96, quoting State v. Brown, 38 Ohio St.3d
305, 317, 528 N.E.2d 523 (1988).
{¶ 62} In this case, the comments at issue can certainly be described as colorful
and creative, as they were clearly designed to hold the attention of the jurors. The
comments, however, were not purely abusive or inflammatory, but firmly rooted in the
evidence presented at trial. See Arrone at ¶ 127. Accordingly, we do not find that the
State’s comments were improper. Because the comments were not improper, we do not
find that Ward’s trial counsel performed deficiently by failing to object to them.
{¶ 63} Even if we had found that counsel’s performance was deficient for failing to
object to the prosecutor’s comments, Ward cannot establish that the outcome of his trial
would have been different had his counsel objected. The evidence presented at trial
overwhelmingly established that Ward was guilty of aggravated vehicular homicide.
Moreover, the trial court specifically advised the jury that closing arguments were not to
be considered as evidence. Trial Tr. Vol. III, p. 338. Therefore, because Ward failed to
establish both deficient performance and prejudice, his ineffective assistance claim
relating to the prosecutor’s comments during closing argument lacks merit.
{¶ 64} Because all of Ward’s ineffective assistance of counsel claims lack merit,
his first assignment of error is overruled.
Fourth Assignment of Error
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{¶ 65} Under his fourth assignment of error, Ward contends that he was denied a
fair trial due to the State’s engaging in prosecutorial misconduct during closing argument.
In support of this claim, Ward relies on the same comments that he challenged under the
foregoing assignment of error and once again claims that the State’s comments were
excessively emotional and inflammatory. We, however, disagree.
{¶ 66} “The test for prosecutorial misconduct is whether remarks were improper
and, if so, whether they prejudicially affected substantial rights of the accused.” State v.
Jones, 90 Ohio St.3d 403, 420, 739 N.E.2d 300 (2000), citing State v. Smith, 14 Ohio
St.3d 13, 14, 470 N.E.2d 883 (1984). “The touchstone of the analysis ‘is the fairness of
the trial, not the culpability of the prosecutor.’ ” State v. Garrett, Ohio Slip Opinion No.
2022-Ohio-4218, __ N.E.3d __, ¶ 144, quoting Smith v. Phillips, 455 U.S. 209, 219, 102
S.Ct. 940, 71 L.Ed.2d 78 (1982). “Where it is clear beyond a reasonable doubt that a
jury would have found the defendant guilty even absent the alleged misconduct, the
defendant has not been prejudiced, and his conviction will not be reversed.” State v.
Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing State v. Loza,
71 Ohio St.3d 61, 78, 641 N.E.2d 1082 (1994).
{¶ 67} As previously discussed, prosecutors are afforded wide latitude in the
presentation of closing arguments. Arrone, 2d Dist. Greene No. 2005-CA-89, 2006-
Ohio-4144, at ¶ 126; Lott, 51 Ohio St.3d at 165, 555 N.E.2d 293. “For a prosecutor’s
closing argument to be prejudicial, the remarks must be ‘so inflammatory as to render the
jury’s decision a product solely of passion and prejudice.’ ” Arrone at ¶ 126, quoting
State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906 (1986). “ ‘Even if the
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prosecutor’s statements during closing arguments are improper, reversal based upon
those statements is warranted only if the statements permeate the entire atmosphere of
the trial.’ ” Id., quoting State v. Tumbleson, 105 Ohio App.3d 693, 699, 664 N.E.2d 1318(12th Dist.1995).
{¶ 68} In this case, because Ward failed to object to any of the State’s comments
at issue, his prosecutorial misconduct claim will be reviewed for plain error. In order to
prevail under a plain-error review, Ward must establish both that misconduct occurred
and that but for the misconduct, the outcome of his trial clearly would have been different.
State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 111, citing
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶ 69} Under the previous assignment of error, we already determined that the
prosecutor’s comments during closing argument were not improper because they were
rooted in the evidence presented at trial and were not purely abusive or inflammatory.
Ward also cannot establish that the outcome of his trial would have been different but for
the comments, as there was overwhelming evidence establishing the three counts of
aggravated vehicular homicide. Accordingly, Ward was not prejudicially affected by the
State’s comments and thus cannot establish prosecutorial misconduct or plain error.
{¶ 70} Ward’s fourth assignment of error is overruled.
Conclusion
{¶ 71} Having overruled all four assignments of error raised by Ward, the judgment
of the trial court is affirmed.
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.............
EPLEY, J. and LEWIS, J., concur.