State v. Gordon

[Cite as State v. Gordon, 2016-Ohio-5407.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103494
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEANDRE GORDON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-594287-A and CR-15-596591-A
BEFORE: Kilbane, P.J., McCormack, J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 18, 2016
ATTORNEY FOR APPELLANT
David L. Doughten
David L. Doughten Co. L.P.A.
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Eleina Thomas
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Deandre Gordon (“Gordon”), appeals from his
convictions and sentence for aggravated robbery, kidnapping, and felonious assault
following a joint trial in Cuyahoga C.P. Nos. CR-15-594287-A and CR-15-596591-A.
For the reasons set forth below, we reverse the judgment in CR-15-594287-A and remand
the matter for a retrial in this case.
{¶2} In March 2015, Gordon was charged in CR-15-594287-A with two counts of
aggravated robbery, two counts of felonious assault, and one count of kidnapping. Each
count carried one- and three-year firearm specifications. The charges allege that Gordon
robbed Tevaughn Darling (“Darling”) at gunpoint. In June 2015, Gordon was charged in
CR-15-596591-A with intimidation of a witness. The charges allege that Gordon posted
on social media an edited version of Darling’s statement to the police, making him look
like a snitch. Darling received threats because of the video.
{¶3} In June 2015, the state of Ohio (“state”) filed a motion to join these two cases
and a motion to disqualify Gordon’s retained defense counsel. The state argued that the
cases should be joined because the offenses are connected and part of the same criminal
conduct. The state also argued that Gordon’s defense counsel should be disqualified
because he would be a material witness in the intimidation case. The trial court granted
the state’s joinder motion and disqualified defense counsel. The two cases then
proceeded to a jury trial. The following evidence was adduced at the joint trial.
{¶4} Darling testified that on Friday, January 9, 2015, he celebrated his 36th
birthday with Gordon, his girlfriend, Terri Buckner (“Buckner”), and other friends. 1
Darling has known Gordon since 2002 and thinks of him as his nephew. Upon returning
home, Darling noticed that his car had been ransacked and his windows were broken,
which was common in his neighborhood.
{¶5} Darling invited Gordon to stay over his house. Gordon stayed the remainder
of the weekend through Monday afternoon. On Sunday, the two of them made a $1,500
bet on a football game. Darling won the $1,500. Gordon did not have the money to pay
Darling. He told Darling that he needed money. Darling testified that Gordon did not
have any money while they were celebrating his birthday. Darling paid for his birthday
celebration in cash. Darling works in cash businesses, rehabbing houses, junking cars,
and scrapping. On some days, he would make $2,500 a day scrapping cars.
{¶6} On Monday, January 12, 2015, Buckner took Darling’s car to get it repaired.
After Buckner left, only Darling and Gordon were in the house. At approximately 5:00
p.m., Gordon asked Darling what he was going to do for him. Darling said he would
give Gordon some money. His plan was to give Gordon $1,000 from the bet and keep
$500. Gordon then went into the bathroom and came out wearing a hood and carrying a
.45 caliber gun. Darling testified that this did not concern him because Gordon always
had a .45 caliber gun on him. Gordon told Darling to “give me everything you got.” At
1 Darling testified that he has been convicted of drug conspiracy and drug
trafficking charges.
first, Darling thought Gordon was joking. Gordon then shot Darling in the foot and
dragged him from the kitchen into a back bedroom. Gordon took $5,000 out of Darling’s
dresser drawer and approximately $2,300 out of Darling’s pocket. Gordon threatened to
kill Darling if he told anyone about the incident. Gordon then stole Darling’s rental car,
which the police located 0.7 miles from Darling’s house.
{¶7} Darling then called Buckner to take him to the hospital. When speaking with
police officers at the hospital, Darling told them that he was carjacked. The police
investigated and found no evidence of a carjacking or a shooting. Darling testified that
initially he lied to the police because he did not want to get Gordon in trouble and deal
with the consequences of snitching on Gordon, who is a member of the “Loyal Always”
gang.
{¶8} Darling testified that he changed his mind and decided to tell the police that
Gordon shot him and took his money and the rental car. Darling made a statement,
which was recorded, to Detective Glenn Daniels (“Detective Daniels”) of the Bedford
Heights Police Department. When Detective Daniels asked Darling where they could
locate Gordon, Darling responded, “[h]e runs with the gang Loyal Always.”
{¶9} Darling further testified that a video of his recorded statement to the police
was posted on Instagram on or about May 21, 2015. The video was edited to make it
appear as though he was telling the police information about the Loyal Always gang when
he was not. Darling received numerous threats as a result of this video being posted on
Instagram. Darling told the prosecutor and the Bedford Heights Police Department about
this video. After meeting with the prosecutor, Darling observed Gordon in his car in the
parking lot. Gordon rolled down his window and yelled to Darling, “Mr. Officer, Mr.
Officer.” Darling interpreted Gordon’s comments as being called a snitch. Darling also
testified about photos and Facebook comments calling him a rat.
{¶10} Buckner testified that she, Darling, Gordon, and other friends went out on
Friday, January 9, 2015, to celebrate Darling’s birthday. Darling spent a large amount of
cash that night. When they returned home, they noticed that the windows to Darling’s
car were broken. She further testified that Gordon spent the weekend with her and
Darling. On Monday, January 12, 2015, around 5:00 p.m., she left Darling and Gordon
to get Darling’s car repaired. She left a rental car at their home. Approximately
one-half hour later, she received a call from Darling telling her that she needed to take
Darling to the hospital because Gordon shot him in the foot. When she got home, she
observed blood smeared across the floor from the kitchen to the back bedroom. Buckner
took Darling to the emergency room. She told the police the same version of events that
Darling initially told the officers.
{¶11} Buckner also testified about the Instagram post of Darling’s statement. She
was afraid because they were snitching and snitches get killed. She testified that
Gordon’s friends were in the Loyal Always gang and she feared they would hurt them
both as a result of the Instagram video.
{¶12} Detective Daniels testified that he was assigned to Darling’s case. As part
of his investigation, he presented Darling with a photo array, where Darling selected
Gordon as his assailant. The police also went to Darling’s home where they discovered
a shell casing that was consistent with that of a .45 caliber handgun. Detective Daniels
took a video-recorded statement from Darling. Detective Daniels provided the
prosecutor with a copy of Darling’s statement. Gordon’s retained defense counsel
testified that on or about May 20, 2015, he showed Darling’s recorded statement to
Gordon during a private meeting between defense counsel and Gordon.
{¶13} On May 27, 2015, Detective Daniels received several phone calls from
Darling stating that there is an edited version of his statement to the police that was
posted on Instagram on May 22, 2015. The video appears to be a cell phone recording
of Darling’s statement. Darling indicated to Detective Daniels that he was afraid for his
life and this Instagram video has ruined his life. Detective Daniels requested
information from Facebook about the video, but he could not identify the source of the
post. Detective Daniels testified about the Loyal Always gang. He acknowledged that
he is not a gang expert, but has basic knowledge of the gang. He testified that the Loyal
Always gang is an offshoot of the former LA Gunners gang. The LA Gunners were
raided by the ATF in 2008 because of an investigation into various criminal activity,
including murder, firearm violations, rape, assaults.
{¶14} At the conclusion of trial, the jury returned a verdict of guilty of all counts
of the indictment, including the firearm specifications in Case No. CR-15-594287-A (two
counts of aggravated robbery, two counts of felonious assault, and one count of
kidnapping). The jury found Gordon not guilty of the charge of intimidation in Case No.
CR-15-596591-A.
{¶15} That same day, the court proceeded to sentencing. The court merged
Counts 1 and 2 (aggravated robbery) and Counts 4 and 5 (felonious assault) for purposes
of sentencing. The court then proceeded to sentence Gordon on Counts 1, 3, and 5. On
each of Counts 1 and 3, the court sentenced Gordon to four years in prison on the
underlying offenses, plus the one- and three-year firearm specifications. On Count 5, the
court sentenced Gordon to three years in prison on the underlying offense, plus the one-
and three-year firearm specifications. In accordance with R.C. 2929.14(B)(1)(g), the
court ordered that the two most serious firearm specifications be served consecutive to
each other and the underlying offenses in Counts 1, 3, and 5. The court further ordered
that the underlying offenses in Counts 1, 3, and 5 be served concurrently to one another
for an aggregate of ten years in prison.
{¶16} Gordon now appeals, raising the following five assignments of error for
review, which shall be discussed together where appropriate.
Assignment of Error One
The trial court erred by allowing prejudicial joinder of the charge of
intimidation to offenses under CR-15-594287.
Assignment of Error Two
The trial court erred by permitting witnesses to provide prejudicially
irrelevant testimony which allowed the jury to base its verdict on matters
other than evidence of the actual offense charged.
Assignment of Error Three
The trial court erred by failing to find the convicted offenses to be allied
pursuant to R.C. 2941.25(B).
Assignment of Error Four
The convictions are against the weight of the evidence.
Assignment of Error Five
Defense counsel’s failure to object to an improper joinder and to the
admission of prejudicially irrelevant testimony deprived the defendant of
his right to effective assistance of counsel.
Joinder
{¶17} In the first assignment of error, Gordon contends that the trial court erred
when it allowed the joinder of the intimidation charge to the offenses in his robbery case.
Specifically, Gordon argues the joinder of these cases violated his ability to retain his own
counsel under the Sixth Amendment. He additionally argues that the inclusion of
gang-related testimony unfairly allowed the jury to consider matters other than whether
Gordon shot Darling and base its convictions on otherwise excluded evidence. Because
Gordon was acquitted in the intimidation case (CR-15-596591-A), our discussion focuses
on the robbery case (CR-15-594287-A).
{¶18} We initially note that because Gordon failed to object to the joinder of the
indictments, he has waived all but plain error. State v. Saade, 8th Dist. Cuyahoga Nos.
80705 and 80706, 2002-Ohio-5564, ¶ 12. Under Crim.R. 52(B), notice of plain error is
to be taken with the utmost caution, under exceptional circumstances and only to prevent
a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus. In order to find plain error under Crim.R. 52(B),
it must be determined that, but for the error, the outcome of the trial clearly would have
been otherwise. Id. at paragraph two of the syllabus.
{¶19} Crim.R. 8 governs joinder of offenses and provides:
(A) Joinder of offenses. Two or more offenses may be charged in the same
indictment * * * if the offenses charged * * * are of the same or similar
character, or are based on the same act or transaction, or are based on two
or more acts or transactions connected together or constituting parts of a
common scheme or plan, or are part of a course of criminal conduct.
{¶20} In addition, Crim.R. 13 provides in pertinent part:
The court may order two or more indictments or informations or both to be
tried together, if the offenses or the defendants could have been joined in a
single indictment or information.
{¶21} Thus, under Crim.R. 8(A) and 13, two or more offenses can be tried together
if the offenses are of the same character, based on connected transactions, or are part of a
course of conduct. State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).
{¶22} However, Crim.R. 14 requires separate trials if it appears that a criminal
defendant would be prejudiced by such joinder. The defendant bears the burden of
demonstrating both prejudice and that the trial court abused its discretion in denying
severance of the indictments. State v. Kirk, 8th Dist. Cuyahoga Nos. 95260 and 95261,
2011-Ohio-1687, ¶ 31, citing State v. Coley, 93 Ohio St.3d 253, 2001-Ohio-1340, 754
N.E.2d 1129; State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166;
Saade, 8th Dist. Cuyahoga Nos. 80705 and 80706, 2002-Ohio-5564.
{¶23} Based on the unique circumstances of this case, we find that Gordon was
prejudiced as a result of the joinder. We note that Gordon was not prejudiced by the
introduction of the gang-related testimony. Rather, Gordon was prejudiced and his
constitutional right to counsel was violated when the trial court removed his originally
retained defense counsel from his robbery case and ordered Gordon to proceed to trial
with a different defense counsel.
{¶24} Gordon was charged in this case on March 26, 2015. Nearly three months
later, on June 11, 2015, Gordon was charged in another case with the intimidation of a
witness — Darling. Then on June 29, 2015, the state filed a motion to join these two
cases and a motion to disqualify Gordon’s originally retained defense counsel. The state
argued that Gordon’s defense counsel should be disqualified because he would be a
material witness in the intimidation case. The trial court granted the state’s joinder
motion and disqualified defense counsel. After the trial court granted the joinder,
Gordon’s originally retained counsel was forced to be removed from the robbery case as
he was a material witness to the intimidation case. Defense counsel, however, was not a
material witness to the robbery case.
{¶25} While the law generally favors the joining of multiple offenses if the
offenses are of similar character, in the instant case, we are presented with the unique
circumstance in which the joinder of the indictment prevented the defendant from
retaining counsel of choice. The separation of these two cases, which were indicted
three months apart, would have allowed Gordon’s originally retained counsel to represent
Gordon on his robbery case. The Sixth Amendment, as made applicable to the states
through the Fourteenth Amendment, guarantees the accused in a state criminal trial the
right to counsel. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct 2525, 45 L.Ed.2d 562(1975); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Once
Gordon’s originally retained counsel was removed from the robbery case, Gordon
sustained prejudice that outweighed the benefits of the joinder. Therefore, we find that
the trial court committed plain error by joining the two cases for trial.
{¶26} Accordingly, the first assignment of error is sustained.
{¶27} In the remaining assignments of error, Gordon challenges the admission of
the gang-related evidence; allied offenses; the manifest weight of the evidence; and the
effectiveness of his new counsel. However, our disposition of the first assignment of
error renders these assigned error moot. App.R. 12(A)(1)(c).
{¶28} Judgment is reversed in Case No. CR-15-594287-A, and the matter is
remanded for a retrial in this case.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., CONCURS;
TIM McCORMACK, J., DISSENTS (SEE SEPARATE DISSENTING OPINION)
TIM McCORMACK, J., DISSENTING:
{¶29} While the Sixth Amendment encompasses a defendant’s right to be
represented by one’s counsel of choice, that right is not unqualified. State v. Keenan, 81
Ohio St.3d 133, 137, 689 N.E.2d 929 (1998). A criminal defendant only has a
presumptive right to be represented by his or her chosen counsel, Keenan at 137, and
the right is circumscribed in several important respects. Wheat v. United States, 486
U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). In particular, the presumption
may be overcome by a demonstration of actual or serious potential conflict. Keenan at
137, citing Wheat at 164.
{¶30} Here, a reading of the record indicates Gordon had retained two defense
counsel, the first one shortly after he was indicted and the second one a day before the
robbery victim reported the Instagram incident to the police. The state moved for
joinder of trial and also moved to disqualify his first counsel because counsel was a
material witness on the intimidation case. Gordon opposed the motion to disqualify
counsel, arguing counsel was not a necessary witness in the intimidation case. He did
not object to the joinder, nor did he object to the disqualification of counsel on Sixth
Amendment grounds.
{¶31} The courts have recognized a trial court’s wide latitude in balancing the
right to counsel of choice against the needs of fairness. United States v.
Gonzalez-Lopez, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). See also
State v. Boone, 108 Ohio App.3d 233, 238, 670 N.E.2d 527 (1st Dist.1995) (the right to
counsel must be considered along with the need for the efficient and effective
administration of criminal justice). Here, Gordon has not demonstrated, either at trial or
on appeal, prejudice resulting from the disqualification of his first counsel. I would
defer to the trial court’s discretion in its balancing of the needs for efficient and effective
administration of justice against fairness to the defendant in its decisions granting joinder
and disqualifying counsel. For these reasons, I respectfully dissent from the majority’s
decision. The remaining assignments of error should be addressed.