State v. Perchinske

[Cite as State v. Perchinske, 2012-Ohio-1704.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2011 CA 00144
JOSEPH PERCHINSKE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal
Court, Case No. 2011 CRB 01662
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 16, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH MARTUCCIO PATRICK L. CUSMA
CANTON LAW DEPARTMENT 116 Cleveland Avenue NW
TYRONE D. HAURITZ Suite 808
CANTON CITY PROSECUTOR Canton, Ohio 44702
TASHA FORCHIONE
ASSISTANT PROSECUTOR
218 Cleveland Avenue, SW
Post Office Box 24218
Canton, Ohio 44701-4218
Stark County, Case No. 2011 CA 00144 2
Wise, J.
{¶1} Appellant Joseph Perchinske appeals his sentence and conviction entered
in the Canton Municipal Court on one count of domestic violence.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On May 10, 2011, Appellant was arrested, and charged on May 11, 2011,
with first degree Domestic Violence pursuant to R.C. §2919.25.
{¶4} On May 11, 2011, Appellant was arraigned and pled not guilty,
{¶5} On June 20, 2011, a jury trial commenced in this matter.
{¶6} Prior to voir dire, Appellant’s counsel made a Motion in Limine. In said
Motion, Appellant's counsel made the following request:
{¶7} “I would also ask that the State witnesses be prohibited - be instructed to -
to be prohibited from any mention, reference or testimony in regard to the defendant's
prior substance abuse. I understand that the prosecutor has some intention of
introducing evidence about current drug use as it relates to the fight at issue, but I would
just ask that if the Court is inclined to allow that testimony, that the- any testimony of
him having a prior drug problem or anything about prior relationships in regard to drug
problems be prohibited. (T. Vol. I at 8).
{¶8} In response, the State requested leave to reference Appellant's substance
abuse as it related to the argument which took place on May 10th, 2011. (T. Vol. I at 8).
{¶9} The trial court permitted the State to question the complaining witness
about what she and Appellant argued about on May 10, 2011. (T. Vol. I at 9). The trial
court, however, granted the Motion in Limine regarding prior substance abuse. Id.
Stark County, Case No. 2011 CA 00144 3
{¶10} During voir dire, the assistant prosecutor informed the jury that "there may
be some evidence today that there was an argument regarding drug usage." (T. Vol. I at
28). The prosecutor then asked the potential jurors "is there anybody out there today
who thinks that consuming drugs or alcohol should excuse you from your behavior?" (T.
Vol. I at 28).
{¶11} Appellant's trial counsel raised no objection.
{¶12} In response to this question, Juror Twenty-Three stated:
{¶13} "I don't - I - I think people use alcohol and drugs for an excuse to do what
they want - actually what they want to do. I don't think it's right, they use it for an
excuse." (T. Vol. I at 29). No other jurors responded in the affirmative at that time.
{¶14} The prosecutor then asked the prospective jurors whether they thought
that the State should proceed with a case when a victim is not cooperative. (T. Vol. I at
29-31).
{¶15} Juror Twenty-Nine responded in the affirmative, explaining that her niece
was accused of a crime and the State dropped charges based on the victim's request.
(T. Vol. I at 32). She went on to state that she "thought it was fair because there were
drugs and alcohol involved," but also stated, "I don't know - you know what I mean - if it
was the best thing for her or not in the end." (T. Vol. I at 32). The trial court then took
Juror Twenty-Nine into chambers where she further explained that her niece had
substance abuse and mental health problems and that in her niece's case, the State
dropped the charges on the condition that the defendant seek treatment. (T. Vol. I at 33-
34).
Stark County, Case No. 2011 CA 00144 4
{¶16} Appellant's trial counsel asked juror twenty-nine whether she was open to
hearing that allegations of substance abuse were untrue. (T. Vol. I at 36). Juror twenty-
nine responded, "Well, I haven't made a decision on him, no. So, you know, I mean, I
guess I would be open to hearing the facts about what we think why he did use or didn't-
you know, I mean, yes, I could be open to hearing that. I think I'm fair." Id.
{¶17} The parties returned to open court and the prosecutor asked the
prospective jurors whether anyone has either been a victim or knew a victim of domestic
violence. (T. Vol. I at 37). Juror twenty-three responded in the affirmative and stated that
she was a victim of domestic violence. Upon further inquiry, juror twenty-three stated,
"It's my ex-husband. He's deceased now. He used drugs and alcohol, and he'd go out
and get drunk, come home and beat me while I was sleeping." Id.
{¶18} The trial court then took juror twenty-three in chambers where she
explained her situation, and stated:
{¶19} "I thought I could change him because I worked and then it seemed like
the more I worked the more he did drugs and the alcohol, and then it started getting
abusive and I just divorced him and then he got sick." (T. Vol. I at 40).
{¶20} The prosecutor asked juror twenty-three whether she would be
comfortable if selected to serve on this jury, and she replied:
{¶21} "I mean it's been sixteen years, so I mean it's not that I hold grudges
against anybody or have any animosity or anything, you know. I just don't think drugs or
alcohol is an excuse for people to do what they're doing. Because they know. They
know right from wrong." (T. Vol. I at 41).
Stark County, Case No. 2011 CA 00144 5
{¶22} Appellant's trial counsel asked a series of questions including, "Are you
open to the idea that this person might not be using substances as well? Are you open -
have you already made your decision? Do you think you can make a decision based
upon the evidence in the courtroom ... and not on any [past history]. (T. Vol. I at. 41-42).
{¶23} Juror twenty-three answered "Yes." (T. Vol. I at 42-43).
{¶24} In open court, the prosecutor then asked whether anyone in the audience
was a victim of any other crime. Juror forty-three, among others, had positive
responses. (T. Vol. I at 55-56).
{¶25} Juror forty-three stated that she was a victim of identity theft, and the
perpetrator was a family member. (T. Vol. I at 56). Upon taking juror forty-three into
chambers, juror forty-three explained that her daughter was involved with a man, and
the two of them engaged in identity fraud. (T. Vol. I at 57). Juror forty-three stated
several times that she wanted her daughter to go to rehab in lieu of jail. (T. Vol. I at 57-
60). Additionally, juror forty-three expressed concerns about domestic violence and
substance abuse. She stated:
{¶26} "I think about how he treated her and, urn, there might have been domes-,
domestic violence, you know, but she didn't tell me about it. And it could have been. I
mean the way he was, you know, the drugs and the drinking." (T. Vol. I at 61).
{¶27} The trial court asked juror forty-three whether she could be fair and
impartial and she stated:
{¶28} "I could have an open mind, but I I'm not sure, you know? Because of
what happened. It was such- and it took a long time for everybody to get situated, you
Stark County, Case No. 2011 CA 00144 6
know, especially my daughter and- but he's still like that, you know. You know? He's- he
hasn't changed, and you know, that is in the back of my mind." (T. Vol. I at 61-62).
{¶29} The parties returned to open court, and voir dire continued. The
prosecutor asked the prospective jurors whether there was anything in their background
or history that may disqualify them for jury service. (T. Vol. I at 77). Juror forty-five
answered affirmatively, stating:
{¶30} "I have a daughter and I just believe that, you know, if a man is going to hit
a woman, that you don't do that.”
{¶31} “You gonna- you gonna hit a woman I say you're a coward and no matter
what (word inaudible), so just by looking and seeing him, I would convict him." (T. Vol. I
at 78).
{¶32} Appellant's trial counsel followed up, and asked:
{¶33} “…Is there anybody else who feels like that? Is there anybody else who
says “You know, take one look at somebody and the charge that they’re facing, it’s just
too much for me to handle” …?”
{¶34} Juror eighteen had a positive response, and went in chambers. Outside of
the presence of other jurors, juror eighteen stated:
{¶35} “Um, I guess in my opinion I've seen a lot of this before with the job
profession I've done. I no longer do that but I, you know, I feel that I'm a good
upstanding citizen. I work two full time jobs and I go to school full time and the very fact
that I'm here because of some guy accusidly [sic] couldn't handle his alcohol or drugs
pisses me off, the fact that he hit a woman. Whether he is guilty or not guilty, just the
whole point of the job that I have had and seeing people deal with alcohol, just - this -
Stark County, Case No. 2011 CA 00144 7
the whole thing irritates me. And I – I don't believe that there's any reason whatsoever,
alcohol or drugs, whatever, why he should hit a woman. So, I mean I guess I'm just
more on the point of, you know, for -for you know, I guess excuse the way that I put it
but for somebody to hit a woman and me have to sit here and listen to that, it just- it
irritates me. (T. Vol. I at 80-81).
{¶36} However, upon further questioning, juror eighteen stated that he had
“more or less” prejudged the Appellant and that he also thought he may have seen him
in some of the bars where he had worked. (T. Vol. I at 82).
{¶37} Voir Dire continued, and the trial court questioned juror twenty-eight
regarding her position as a GED teacher at Day Reporting for the Common Pleas Court.
(T. Vol. I at 84). Juror twenty-eight explained, in chambers, that she is trained to be non
judgmental and would concern herself with punishment if selected as a juror. (T. Vol. I
at 86).
{¶38} At this point, Appellant’s trial counsel expressed a concern regarding the
number of references to substance abuse, and argued that he believed the jury "has
been completely swayed and tainted by that line of questioning." (T. Vol. I at 87). Trial
counsel then moved for a mistrial. (T. Vol. I at 88).
{¶39} The trial court overruled the motion, noting that the State asked a "fact
specific" question, to which trial counsel did object. (T. Vol. I at 88).
{¶40} Appellant’s counsel also moved for a mistrial on the grounds that two
people "expressed very strong opinions on domestic violence in front of other jurors”
and expressed her concern that only a "handful" of jurors would remain after challenges
Stark County, Case No. 2011 CA 00144 8
for cause. (T. Vol. I at 89). The court overruled counsel's second motion as premature.
Id.
{¶41} Trial counsel completed voir dire, and the parties selected a jury. The
State challenged jurors fourteen, twenty-nine, and twenty-eight for cause. (T. Vol. I at
105). Appellant challenged jurors eighteen, twenty-three, and forty-five for cause. (T.
Vol. I at 106-108). The court dismissed all six jurors. (T. Vol. I at 105-108).
{¶42} Jurors twenty-seven, forty-three, thirty-eight, twenty-six A, forty-six A, and
twenty-five were dismissed based on peremptory challenges. (T. Vol. I at 110-111). The
final jury included jurors five A, six, twelve, nineteen, twenty-one, twenty-one A, twenty-
four, thirty-one, and forty (alternate). (T. Vol. I at 114).
{¶43} Appellant’s trial counsel renewed his motion for mistrial based on "strong
opinions" of prospective jurors, which the trial court overruled. (T. Vol. I at 113).
{¶44} The trial court empaneled a jury and instructed the jurors not to "be
influenced in your decision by sympathy, prejudice or passion toward any party,
witness, or attorney in this case." (T. Vol. I. at 116).
{¶45} Additionally, the trial court advised the jurors that they must "decide this
case based solely on the evidence that is presented to you in this courtroom." (T. Vol. I
at 117).
{¶46} The trial then proceeded with opening statements. During the State's
opening, the prosecutor referenced police interviews with both the victim and appellant.
In particular, the prosecutor stated:
{¶47} "When the police arrived at the home, they did speak to both the victim
and the defendant in this case. They got some information about what happened. The
Stark County, Case No. 2011 CA 00144 9
victim told her version of events and the defendant of course gave a different version of
events." (T. Vol. I at 126).
{¶48} Appellant’s trial counsel objected, and moved again for a mistrial in
chambers, arguing that the State's reference to police interviews improperly referenced
Appellant's constitutional right not to incriminate himself. (T. Vol. I at 126-127). The
State argued that the statement was admissible under Evid.R. 801(0)(2). Id. The trial
court overruled said motion. (T. Vol. I at 127).
{¶49} The trial proceeded, with the State calling the victim Megan Kennard, a
neighbor Penelope Peters, Officer Tim Marks, 9-1-1 Operator Debbie Runyon and
Detective Jeff Weller.
{¶50} Appellant presented no evidence.
{¶51} Following deliberations, the jury found Appellant guilty.
{¶52} By Judgment Entry filed June 21, 2011, the trial court sentenced Appellant
to 180 days in the Stark County Jail, with all but 90 days suspended. Appellant was
credited with two (2) days of jail time. Appellant was also ordered to complete
Melymbrosia/Voyager and was placed on direct probation for 2 years.
{¶53} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶54} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT
GRANTING DEFENDANT'S MOTIONS FOR MISTRIAL.
{¶55} “II. APPELLANT'S COUNSEL'S FAILURE TO OBJECT TO THE DRUG-
ALCOHOL QUESTION DURING VOIR DIRE CONSTITUTED INEFFECTIVE
ASSISTANCE OF COUNSEL.
Stark County, Case No. 2011 CA 00144 10
{¶56} “III. THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT
DECLARING A MISTRIAL.
{¶57} “IV. THE CUMULATIVE EFFECTS OF ERRORS IN THE TRIAL DENIED
APPELLANT A FAIR TRIAL”
I., III.
{¶58} We shall address Appellant’s first and third Assignments of Error
simultaneously as Appellant contends in both assignments that the trial court erred in
not granting a mistrial in this matter.
{¶59} Specifically, Appellant argues that the trial court should have granted a
mistrial based on the prosecutor’s questions to the jury panel during voir dire as to
whether drug or alcohol use should serve as an excuse for a person’s behavior.
{¶60} Initially, we note that Appellant’s counsel failed to object to such question
during voir dire. Accordingly, Appellant has waived all but plain error. State v. Wooten,
Stark App. No. 2008 CA 00103, 2009-Ohio-1863 at ¶ 38. (Citing State v. McKnight,
1007 Ohio St.3d 101, 2005-Ohio-6046 at ¶ 185).
{¶61} In criminal cases where an objection is not raised at the trial court level,
“plain error” is governed by Crim.R. 52(B), which states, “Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the court.” An alleged error “does not constitute a plain error ... unless, but
for the error, the outcome of the trial clearly would have been otherwise.” State v. Long
(1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph two of the syllabus.
{¶62} As the United States Supreme Court recently observed in Puckett v.
United States (2009), --- U.S. ----, ----, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266, “If an
Stark County, Case No. 2011 CA 00144 11
error is not properly preserved, appellate-court authority to remedy the error (by
reversing the judgment, for example, or ordering a new trial) is strictly circumscribed.
There is good reason for this; ‘anyone familiar with the work of courts understands that
errors are a constant in the trial process, that most do not much matter, and that a
reflexive inclination by appellate courts to reverse because of unpreserved error would
be fatal.’ ” (Citation omitted).
{¶63} “[A]n appellate court may, in its discretion, correct an error not raised at
trial only where the appellant demonstrates that (1) there is an error; (2) the error is
clear or obvious, rather than subject to reasonable dispute; (3) the error affected the
appellant's substantial rights, which in the ordinary case means it affected the outcome
of the district court proceedings; and (4) the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” United States v. Marcus (May 24,
2010), 560 U.S. ----, 130 S.Ct. 2159, 176 L.Ed.2d 1012, 2010 WL 2025203 at 4.
(Internal quotation marks and citations omitted).
{¶64} The defendant bears the burden of demonstrating that a plain error
affected his substantial rights. United States v. Olano (1993), 507 U.S. at 725,734, 113
S.Ct. 1770; State v. Perry (2004), 101 Ohio St.3d 118, 120 802 N.E.2d 643, 646. Even if
the defendant satisfies this burden, an appellate court has discretion to disregard the
error. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240; State v. Long
(1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus; Perry,
supra, at 118, 802 N.E.2d at 646.
Stark County, Case No. 2011 CA 00144 12
{¶65} Appellant herein argues that the prosecutor’s question amounted to
prosecutorial misconduct because the prosecutor never produced any evidence to
support the question, thereby tainting the jury.
{¶66} Upon review, we find that aside from Appellant’s assertion that the jury
was tainted, Appellant has failed to demonstrate that the outcome of the trial would
have been different if the prosecutor had not asked such question.
{¶67} Further, the jurors who had affirmative responses were all dismissed and
no evidence was presented to show that the jurors who were empaneled were not
impartial or were tainted by the responses of those dismissed jurors.
{¶68} Appellant’s first and third Assignments of Error are overruled.
II.
{¶69} Appellant, in his second Assignment of Error, argues that his trial counsel
was ineffective in not objecting to the drug/alcohol question during voir dire. We
disagree.
{¶70} “The standard of review of an ineffective-assistance-of-counsel claim is
well established. Pursuant to Strickland v. Washington (1984), 466 U.S. 668, 687, in
order to prevail on such a claim, the appellant must demonstrate both (1) deficient
performance and (2) resulting prejudice, i.e., errors on the part of counsel of a nature so
serious that there exists a reasonable probability that in the absence of those errors, the
result of the trial court would have been different. State v. Bradley (1989), 42 Ohio St.3d
136.” State v. Turner, 168 Ohio App.3d 176, 2006-Ohio-3786, ¶ 26.
{¶71} Here, Appellant argues that counsel was ineffective in not objecting to the
prosecutor’s question during voir dire regarding drug/alcohol use. In support, Appellant
Stark County, Case No. 2011 CA 00144 13
offers that the trial court indicated that it may have granted an objection had it been
made at the appropriate time. (T. at 88-89).
{¶72} Upon review under the first prong of the Strickland analysis, we do not find
that Appellant’s trial counsel fell below an objective standard of reasonableness.
Appellant’s counsel made a motion in limine to prevent any references to Appellant’s
prior drug and/or alcohol use, which was granted. Further, Appellant’s counsel made
four motions for mistrial based on “strong opinions” expressed by the jurors during voir
dire.
{¶73} Further, as set forth in our analysis above, Appellant has failed to
demonstrate that the outcome of the trial in this matter would have been different had
counsel objected to this question.
{¶74} Appellant’s third Assignment of Error is overruled.
IV.
{¶75} In his final Assignment of Error, Appellant argues that the cumulative
effect of errors denied him a fair trial. We disagree.
{¶76} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,
the Ohio Supreme Court recognized the doctrine of cumulative error. However, as
explained in State v. Bethel, 110 Ohio St.3d 416, 2006–Ohio–4853, 854 N.E.2d 150, ¶
197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105
Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 103.
{¶77} Where we have found that the trial court did not err, as we have in the
case sub judice, cumulative error is simply inapplicable. State v. Carter, 5th Dist. No.
2002CA00125, 2003-Ohio-1313 at ¶ 37.
Stark County, Case No. 2011 CA 00144 14
{¶78} Appellant’s fourth Assignment of Error is overruled.
{¶79} For the foregoing reasons, the judgment of the Canton Municipal Court,
Stark County, Ohio, is affirmed.
By: Wise, J.
Delaney, P. J., and
Edwards, J., concur.
___________________________________
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___________________________________
JUDGES
JWW/d 0327
Stark County, Case No. 2011 CA 00144 15
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOSEPH PERCHINSKE :
:
Defendant-Appellant : Case No. 2011 CA 00144
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
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___________________________________
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JUDGES