State v. Tatum

[Cite as State v. Tatum, 2014-Ohio-386.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99818
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARRIN TATUM
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-564471
BEFORE: Boyle, A.J., E.A. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: February 6, 2014
ATTORNEY FOR APPELLANT
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:
{¶1} Defendant-appellant, Darrin Tatum, appeals his convictions for aggravated
robbery and kidnapping. He raises one assignment of error for our review:
The trial court erred in limiting the closing argument of defense counsel, in
violation of defendant’s 6th Amendment right to the effective assistance of
counsel.
{¶2} Finding merit to his argument, we reverse and remand.
Procedural History and Factual Background
{¶3} Tatum was indicted in July 2012 on two counts: kidnapping in violation of
R.C. 2905.01(A)(2), and aggravated robbery in violation of R.C. 2911.01(A)(1). Both
counts carried one- and three-year firearm specifications. Tatum pleaded not guilty to
the charges, and the case proceeded to a jury trial. The following facts were presented at
trial.
{¶4} The victim testified that on June 11, 2012, he left work around 4:00 or 5:00
p.m. He hit some golf balls after work. Around 7:30 or 8:00 p.m., he called his drug
dealer, who he knew by the nickname “Jabs,” to purchase marijuana. He told his drug
dealer that he was driving on Invermere Street, near East 190th Street. The victim’s drug
dealer told him to pull off on the side of the road and the drug dealer would meet him
there. The victim turned from Invermere Street onto East 188th Street. He turned his
car around and parked on East 188th Street to wait for his drug dealer.
{¶5} While the victim was waiting, three young males walked out of a yellow
house across the street from where he was parked, walked past his car at first, and then
turned around, walked up to his driver’s-side window, and started talking to him. The
victim testified that only one of three males, who he later identified to be Tatum, spoke to
him; the other two stood off to the side.
{¶6} The victim said that Tatum asked him, “What are you doing?” The victim
told Tatum that he was waiting for a friend. Tatum then demanded that the victim give
him money that the victim had in his cup holder. The victim said that he had about $115
or $120 in his cup holder. The victim refused. At that point, Tatum lifted up his shirt
and showed the victim that he had a black gun in his waistband. The victim gave Tatum
his money. Tatum then demanded that the victim give him his cell phone. The victim
said no, and Tatum “pulled out the gun.” The victim asked Tatum, “you’re going to
shoot me over an iPhone?” Tatum replied, “it is what it is,” reached inside the victim’s
window, and took the victim’s cell phone.
{¶7} The victim testified that after Tatum took his cell phone, all three males ran
away. The victim followed them in his car. The victim soon saw a police car and
flagged it down. He told the officers what had just happened, that he was “robbed at
gunpoint.” The victim told the officers which way the males ran after they robbed him.
The victim also showed police the yellow house that the males came out of before they
robbed him.
{¶8} The victim stated that he did not initially tell police why he was parked on
East 188th Street. He testified that he was “scared to tell them [he] was up there to buy
weed” because “it’s illegal.” The victim testified that Tatum was not his drug dealer.
The victim also testified that his drug dealer never showed up that day.
{¶9} Detectives Gerald Sowul and John Kraynick met with the victim at his
parents’ home. They asked him what happened. The victim told them how the three
males robbed him at gunpoint, again leaving out the part about why he was sitting in his
car on East 188th Street. When asked why he did not tell police that he was waiting for
his drug dealer, the victim stated that it was because his parents were there when the
detectives were questioning him, plus he did not want to tell the detectives that he was
doing something illegal. The detectives showed the victim a photo array. The victim
chose Tatum out of a photo array on June 20, 2012.
{¶10} Later, police asked the victim to come to the police station. Police had
obtained the victim’s cell phone records to find out if someone had used his cell phone
after it was stolen. Police saw that immediately before the alleged robbery took place,
the victim had been calling a known drug dealer in the area where the victim was robbed.
The officers asked the victim to tell the truth as to why he was parked on East 188th
Street. At that point, the victim told police that he was there to buy marijuana. The
officers showed the victim another photo array that included a different photo of Tatum,
as well as five different males from the first photo array. The victim chose Tatum again
from the second photo array on July 11, 2012.
{¶11} The jury found Tatum guilty of both kidnapping and aggravated robbery, as
well as the one- and three-year firearm specifications. The trial court merged the firearm
specifications and the kidnapping and aggravated robbery charges. The state elected to
proceed on the aggravated robbery count. The trial court sentenced Tatum to three years
in prison for aggravated robbery and three years for the firearm specifications, to be
served consecutive to one another, for an aggregate sentence of six years in prison. It is
from this judgment that Tatum appeals.
Restrictions on Defendant’s Closing Argument
{¶12} In his sole assignment of error, Tatum argues that the trial court violated his
Sixth Amendment right to counsel by precluding his defense counsel from arguing his
theory of defense during closing argument, namely, that a robbery never took place.
{¶13} “The assessment of whether the permissible bounds of closing argument
have been exceeded is, in the first instance, a discretionary function to be performed by
the trial court. Such determination will not be reversed on appeal absent an abuse of
discretion.” Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph three of the
syllabus. The phrase “abuse of discretion” has been described as a ruling that lacks a
“sound reasoning process.” State v. Ceron, 8th Dist. Cuyahoga No. 99388,
2013-Ohio-5231, ¶ 66, quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407,
972 N.E.2d 528.
{¶14} The Sixth Amendment provides in pertinent part that “[i]n all criminal
prosecutions, the accused shall enjoy the right * * * to have the assistance of counsel for
his defense.” It is well established that this right encompasses the “right to make a
closing summation to the jury, no matter how strong the case for the prosecution may
appear to the presiding judge.” Herring v. New York, 422 U.S. 853, 858, 95 S.Ct. 2550,
45 L.Ed.2d 593 (1975) (finding a New York law unconstitutional when it permitted a trial
judge, in a nonjury criminal trial, the power to deny counsel any opportunity to make a
closing argument).
{¶15} In Herring, the United States Supreme Court explained:
It can hardly be questioned that closing argument serves to sharpen
and clarify the issues for resolution by the trier of fact in a criminal case.
For it is only after all the evidence is in that counsel for the parties are in a
position to present their respective versions of the case as a whole. Only
then can they argue the inferences to be drawn from all the testimony, and
point out the weaknesses of their adversaries’ positions. And for the
defense, closing argument is the last clear chance to persuade the trier of
fact that there may be reasonable doubt of the defendant’s guilt.
Id. at 862.
{¶16} Both prosecutors and defense attorneys, however, are given wide latitude
during closing arguments to address what the evidence has shown and what reasonable
inferences may be drawn from that evidence. State v. Black, 181 Ohio App.3d 821,
2009-Ohio-1629, 911 N.E.2d 309, ¶ 33 (2d Dist.), citing State v. Lott, 51 Ohio St.3d 160,
165, 555 N.E.2d 293 (1990). A trial court, however, may limit arguments that are unduly
time consuming, “stray unduly from the mark, or otherwise impede the fair and orderly
conduct,” denying an accused the right to make final arguments on his theory of the
defense denies him the right to assistance of counsel. Herring at 862, 865.
{¶17} In State v. Powell, 177 Ohio App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212,
¶ 45 (4th Dist.), the court explained that during closing argument:
Trial counsel may advocate and persuade to the limit of his or her ability
and enthusiasm but cannot misrepresent evidence or go beyond the limits
set by the trial court. As such, counsel may freely discuss the facts, arraign
the conduct of parties, impugn, excuse, justify, or condemn motives
according to the evidence, and attack the credibility of witnesses when the
record supports the same. The court should not be severe in arresting
argument on the ground that the argument or inference is illogical.
(Citations omitted.)
Analysis
{¶18} In this case, Tatum argues that the trial court improperly limited his closing
argument in violation of his Sixth Amendment rights because his defense counsel did not
misrepresent facts that were not in evidence, but rather, simply argued what the jury could
infer from facts that were in evidence. Essentially, Tatum maintains that the trial court
prevented him from arguing his theory of the case — that is, that a robbery never took
place.
{¶19} During Tatum’s cross-examination of the victim, defense counsel asked if it
was true that Tatum approached the victim while he was sitting in his car. The victim
agreed that was true. The following exchange then took place between Tatum’s defense
counsel and the victim:
[Defense counsel]: Didn’t my client offer to get you what you
were looking for?
[The victim]: I don’t recall that happening necessarily.
[Defense counsel]: You don’t recall that happening necessarily?
Didn’t he say, what are you looking for?
[The victim]: He might have said, what are you looking for,
yes.
[Defense counsel]: Okay. And he said, I can get you what you’re
looking for. How much you got?
[The victim]: Yes, he might have said that, yes.
[Defense counsel]: And so he offered to get you what you were
looking for. Isn’t that true?
[The victim]: Yes.
[Defense counsel]: So he offered to get you what you were looking
for. Remember, you’re under oath here.
[The victim]: Yes.
[Defense counsel]: All right. Isn’t it further true that he then
walked away from your car back to the yellow
house that’s been shown to you in those exhibits
up there?
[The victim]: I don’t recall that, no.
[Defense counsel]: You don’t recall that?
[The victim]: No, not — him leaving the car to go to the
house, then coming back to my car?
[Defense counsel]: Yeah.
[The victim]: No.
[Defense counsel]: With something you were looking for.
[The victim]: No.
[Defense counsel]: But it wasn’t what you were looking for, was it?
[The victim]: I don’t recall him showing me anything, other
than the gun.
[Defense counsel]: All right. So more coming out today that’s not
in your statements, right? He offered to get
you what you were looking for. He knew you
were there to buy drugs. He offered to get you
drugs. You didn’t like what he got you. He
took your money, duped you, and you got pissed
off. You saw the cops and you made a report.
Isn’t that the truth?
[The victim]: No.
[Defense counsel]: No?
[The victim]: No.
{¶20} During Tatum’s closing argument, his defense counsel argued:
Look what’s reasonable here. Upon cross-examination, I started
asking him, isn’t it true that my client asked you what you were looking for,
what you needed? Yeah, yeah, that might have happened. What are you
looking for? What do you need? I can get it for you. Yeah, that might
have happened. He was so close, to opening up about the rest of the story
—
{¶21} The state objected at that point, and the trial court sustained the objection.
{¶22} Defense counsel continued: “I would submit to you, ladies and gentlemen,
my client had an interaction with [the victim]. [The victim’s] dealer didn’t show up.
My client happened to be there, offered to get him what he was looking for.”
{¶23} The state objected a second time, and the trial court sustained the objection.
{¶24} Defense counsel argued:
Ladies and gentlemen, you’re going to be the jurors, the judges of the
credibility of the witnesses, that came in here to testify. I would submit to
you that what happened, is [the victim] was sitting in his car, after his
involvement with my client, figured out he got some bogus weed —
{¶25} The state objected again, and the trial court sustained the objection.
{¶26} Upon review, we must determine if defense counsel’s argument — that no
robbery occurred and that what did occur was a “drug deal gone bad” — was a reasonable
inference to make based upon the evidence presented at trial. If so, then the trial court
abused its discretion when it sustained the state’s objection and prevented defense
counsel from arguing Tatum’s theory of defense.
{¶27} On direct examination, the victim testified that Tatum walked up to him,
asked him what he was doing there, and then took his money and his cell phone, in that
order. On cross-examination, and through the police officer’s testimony, we learned that
the victim told police in a written statement that Tatum walked up to him, asked him what
he was doing, and took his cell phone first and then his money. Either way, according to
what the victim testified to on direct examination and what he told police, Tatum walked
up to him, asked him what he was doing, and then robbed him.
{¶28} During cross-examination, however, the victim admitted that several other
things “might have happened” or did actually happen. The victim admitted that Tatum
might have said, “what are you looking for?” The victim also admitted that Tatum might
have said, “I can get you what you’re looking for. How much you got?” And the victim
further admitted that Tatum did in fact offer to get him “what [he] was looking for.”
{¶29} Although the victim later denied that Tatum went back to the yellow house,
returned to the victim’s car, and denied that Tatum actually got him what he was “looking
for,” defense counsel’s argument — that the jury could infer that more may have
happened between the victim and Tatum — was a reasonable inference. Indeed, it was
reasonable to infer that the victim may have purchased marijuana from Tatum. The
victim testified that his drug dealer never showed up. Further, the victim’s admissions
on cross-examination were in direct contrast to what the victim testified to on direct
examination, i.e., that Tatum walked up to him, asked him what he was doing there, and
then told him to give him his money and his cell phone. Tatum’s defense counsel was
not misrepresenting the evidence; he was merely arguing to the jury what it could infer
from the evidence.
{¶30} Thus, we find that the trial court abused its discretion when it prevented
Tatum’s defense counsel from properly arguing his theory of the case — that a robbery
never happened.
Harmless Error Analysis
{¶31} We must still determine if the trial court’s infringement on Tatum’s Sixth
Amendment right to counsel was harmless error. Whether we apply the constitutional
harmless error standard that Tatum proposes or the harmless error standard under Crim.R.
52(A), we conclude that the trial court’s error was not harmless error.
{¶32} By sustaining the state’s objection during Tatum’s closing argument, the
trial court prevented the jury from considering Tatum’s defense — that a robbery never
occurred. The trial court had instructed the jury that it was permitted to make reasonable
inferences based on the evidence presented at trial. But here, the jury was prohibited
from inferring from the victim’s testimony that because the victim left out X, he may have
also left out Y. In other words, the jury was prevented from inferring that because the
victim left out the fact that Tatum said more to him than what the victim originally
testified to on direct or told police in his statement, that the victim may have also left out
the fact that Tatum did in fact get the victim what he wanted, marijuana, and that the
victim did not like the product, so he sought out the police and told them that Tatum
robbed him.
{¶33} Further, this was a case of “he said/he said.” The jury had to decide if it
believed the victim or Tatum, through Tatum’s theory of defense since Tatum did not
testify. Had Tatum’s defense counsel been able to argue his theory of defense to the jury
— based on the fact that the victim admitted several things on cross-examination that he
left out of his direct examination — the jury may have found that the victim was lying
about the robbery. Therefore, we find that the trial court’s decision to limit Tatum’s
closing argument affected the jury’s determination on the key issue of credibility. Stated
another way, we cannot say that the trial court’s restriction on Tatum’s closing argument
did not affect the jury’s determination.
{¶34} Tatum’s sole assignment of error is sustained.
{¶35} Judgment reversed. Tatum’s convictions are vacated. This case is
remanded to the lower court for further proceedings consistent with this decision.
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 J. BOYLE, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR