State v. Primus

[Cite as State v. Primus, 2011-Ohio-5497.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96191
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GILBERT PRIMUS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Common Pleas Court
Case No. CR-535498
BEFORE: E. Gallagher, J., Kilbane, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: October 27, 2011
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ATTORNEYS FOR APPELLANT
Bret Jordan
Lindner, Sidoti, Jordan LLP
2077 East 4th St., 2nd Floor
Cleveland, Ohio 44115
Edward M. Graham
13363 Madison Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Brian S. Deckert
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Gilbert Primus, appeals his convictions entered in the
Cuyahoga County Court of Common Pleas. Appellant argues that he was denied his
right to effective assistance of counsel at trial and that his right to a fair trial was
infringed due to cumulative plain errors by the trial court. For the following reasons, we
affirm the judgment of the trial court.
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{¶ 2} Appellant was indicted on March 26, 2010 and charged with three counts
of felonious assault in violation of R.C. 2903.11(A)(2) (Counts 1, 10, and 11), three
counts of failure to comply in violation of R.C. 2921.331(B) (Counts 2, 3, and 12),
attempted felonious assault in violation of R.C. 2923.02 and R.C. 2903.11(A)(1) (Count
4), assault in violation of 2903.13(A) (Count 5), two counts of aggravated robbery in
violation of R.C. 2911.01(B)(1) and R.C. 2911.01(A)(3) (Counts 6 and 7, respectively),
robbery in violation of R.C. 2911.02(A)(2) (Count 8), kidnapping in violation of R.C.
2905.01(B)(1) (Count 9), two counts of theft in violation of R.C. 2913.02(A)(1) and R.C.
2913.02(A)(2) (Counts 13 and 14, respectively), having weapons under disability in
violation of R.C. 2923.13(A)(3) (Count 15), improperly handling firearms in a motor
vehicle in violation of R.C. 2923.16(B) (Count 16), carrying a concealed weapon in
violation of R.C. 2923.12(A)(2) (Count 17), and possessing criminal tools in violation of
R.C. 2923.24(A) (Count 18).
{¶ 3} Appellant pled not guilty to the indictment and the case proceeded to trial
on October 21, 2010. Prior to trial the state dismissed counts 4, 8, 9, 10, 11, 12, 14, 16,
and 17.1
{¶ 4} It was the state’s evidence at trial that on March 8, 2010, an employee of
The trial court renumbered the remaining counts for the purposes of trial.
1
Count 5 became Count 4; Count 6 became Count 5; Count 7 became count 6; Count
13 became Count 7; Count 15 became Count 9; Count 18 became Count 8.
Renumbered Count 9 (having weapons under disability) was tried to the bench.
The remaining counts were tried to the jury.
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Giant Eagle on West 117th Street in Cuyahoga County, observed an unknown male
exiting the store with a shopping cart loaded with meat. Suspecting that this individual
was attempting to steal the merchandise, the employee notified store security.
Cuyahoga County Deputy Sheriff Landry Simmons was working as a security guard at
the store at the time and responded to the request for security. In the store’s parking lot
near a Pontiac van, Deputy Simmons confronted a man wearing a red hat with a
shopping cart full of meat, identified himself, and ordered the man to stop and return the
merchandise.
{¶ 5} The man fled on foot and Deputy Simmons returned to the van and
observed the cart of food inside of the van.2 The van began to move and struck Deputy
Simmons on his right leg and knee. Deputy Simmons testified that he became entangled
with a latch on an open passenger door of the moving van and had to pull himself inside
the vehicle to avoid being run over. Once inside, Deputy Simmons ordered the driver to
stop the vehicle. Deputy Simmons made an in-court identification of defendant Gilbert
Primus as the driver of the van.
{¶ 6} Deputy Simmons testified that he and the appellant engaged in a struggle
inside the vehicle. Deputy Simmons felt a metal object under the appellant’s clothing
that he believed to be a gun. The appellant reached for the object and Deputy Simmons
2
The trial testimony of Deputy Simmons was at times convoluted. It is
unclear from Deputy Simmons’s testimony how the food cart came to be inside the
van during the incident.
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struggled with the appellant until both men fell out of the driver’s side door of the
vehicle. On the ground, Deputy Simmons attempted to arrest the appellant and the two
continued to fight. Deputy Simmons testified that the appellant tried to grab his firearm
during the struggle. Eventually the appellant broke free of Deputy Simmons by slipping
free of and discarding the jacket he was wearing. Appellant fled in the van leaving
behind his jacket. Deputy Simmons testified that while fleeing, appellant stopped the
van and extended his arm while holding a black object outside the driver’s side window
that the deputy believed to be a gun. Deputy Simmons responded by firing two shots
from his own gun, at least one of which he believed struck the vehicle near the driver’s
side window.
{¶ 7} Appellant was identified by police through a cell phone recovered from the
jacket and through a photo array identification by Deputy Simmons. Appellant’s DNA
was found to be consistent with DNA swabs obtained from the jacket and a hat that
Deputy Simmons identified as the hat worn by appellant at the time of their struggle.
Police learned that a van titled to appellant was transferred to a third party on March 10,
2010. The van was found to have a bullet hole covered with a decorative strip decal and
electrician’s tape. Also recovered from inside the van was paperwork and a pill bottle
with appellant’s name on the label.
{¶ 8} The jury returned a verdict of guilty as to counts 1, 2, 3, 5, 6, 7, 13, and 18.
The court found appellant not guilty on Count 9. Appellant was sentenced to five years
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in prison. Appellant brought the present appeal, advancing two assignments of error.
{¶ 9} Appellant’s first assignment of error states:
“Appellant was denied his right to effective assistance of counsel at trial, in
violation of the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and Article 1, Section 10 of the Ohio Constitution.”
{¶ 10} In order to substantiate a claim of ineffective assistance of counsel,
appellant is required to demonstrate that: (1) the performance of defense counsel was
seriously flawed and deficient; and (2) the result of his trial or legal proceeding would
have been different had defense counsel provided proper representation. Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, paragraph two of the
syllabus; State v. Brooks (1986), 25 Ohio St.3d 144, 147, 495 N.E.2d 407. Judicial
scrutiny of defense counsel’s performance must be highly deferential. Strickland, supra,
466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. In Ohio, there is a presumption that a
properly licensed attorney is competent. State v. Smith (1985), 17 Ohio St.3d 98, 100,
477 N.E.2d 1128, citing Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301, 209 31
O.O.2d 567, N.E.2d 164. An appellant bears the burden of proving his claim of
ineffective assistance of counsel. Id.{¶ 11} Initially, the defendant must show that counsel’s performance was
deficient. To meet that requirement, the defendant must show counsel’s error was so
serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment. The defendant may prove counsel’s conduct was deficient by identifying
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acts or omissions that were not the result of reasonable professional judgment. The court
must then determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.
Strickland, supra, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 12} Next, if the defendant successfully proves that counsel’s assistance was
ineffective, the second prong of the Strickland test requires the defendant to prove
prejudice in order to prevail. Id. at 692. To meet that prong, the defendant must show
that counsel’s errors were so serious as to deprive him of a fair trial, a trial whose result
is reliable. Id. at 687. A defendant meets this standard with a showing “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
{¶ 13} Appellant argues that his counsel was deficient for failing to request that a
juror be removed from the panel, failing to object to the introduction of the name of the
drug on the recovered pill bottle, and failing to move for a mistrial for the same reason.
{¶ 14} R.C. 2313.42 states in relevant part that:
“The following are good causes for challenge to any person called as a juror: * * *
(J) That he discloses by his answers that he cannot be a fair and impartial juror or
will not follow the law as given to him by the court.”
{¶ 15} R.C. 2945.25 states in relevant part:
“A person called as a juror in a criminal case may be challenged for the following
causes: * * * (B) That he is possessed of a state of mind evincing enmity or bias
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toward the defendant or the state; but no person summoned as a juror shall be
disqualified by reason of a previously formed or expressed opinion with reference
to the guilt or innocence of the accused, if the court is satisfied, from examination
of the juror or from other evidence, that he will render an impartial verdict
according to the law and the evidence submitted to the jury at the trial; * * *.”
{¶ 16} As long as a trial court is satisfied, following additional questioning of the
prospective juror, that the juror can be fair and impartial and follow the law as instructed,
the court need not remove that juror for cause. State v. Moss, Summit App. No. 24511,
2009-Ohio-3866, at ¶11, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559
N.E.2d 1301; State v. Bryan, 101 Ohio St.3d 272, 285-286, 2004-Ohio-971, 804 N.E.2d
433.
{¶ 17} In the present case, juror number 7 brought to the court’s attention the fact
that Deputy Simmons had shopped in the juror’s clothing store approximately two weeks
prior to the trial. The juror conversed with Deputy Simmons in his role as a salesman
for ten to 15 minutes. The trial court and counsel voir dired the juror on the interaction
and the juror indicated that the prior interaction did not leave him biased in any way or
more likely to believe Deputy Simmons’s testimony. Satisfied with the juror’s
responses, the trial court allowed him to remain on the panel and neither party objected.
{¶ 18} Upon review of the transcript of the voir dire examination, it is clear that
juror number 7 was capable of rendering an impartial verdict according to the law and
the evidence. There being no basis for disqualification of the juror for cause, trial
counsel’s failure to so move did not deny the defendant effective assistance of counsel.
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State v. Cope (Feb. 17, 1988), Summit App. No. 13213, (Further holding that trial
counsel’s choice not to use a pre-emptory challenge is within the realm of trial tactics
and does not, absent a showing of prejudice, deny defendant effective assistance of
counsel.); State v. Collins, Lucas App. No. L-05-1399, 2007-Ohio-3578, at ¶72; State
v. Vrabel, Mahoning App. No. 95 CA 221. “[C]ounsel will not be deemed ineffective
for failing to make a meritless objection.” State v. Copley, Franklin App. No.
04AP-1128, 2006-Ohio-2737, ¶48, citing State v. Shahan, Washington App. No.
02CA63, 2003-Ohio-6495, at ¶38.
{¶ 19} Appellant also argues that his counsel was ineffective for failing to object
when a witness for the State read the name of the drug on the recovered pill bottle,
Geodon, into evidence and failing to move for a mistrial on the same basis. Juror
number 6 brought to the attention of the trial court the fact that he was a physician, that
he had worked with many schizophrenic patients and he recognized the drug Geodon as
a drug commonly used to treat depression with psychotic features or schizophrenia. The
trial court voir dired juror number 6 on this issue and he indicated that this specific
knowledge might impact his deliberations. He also related that he was concerned that
other jurors, knowing that he was a physician, might ask him about the drug. Counsel
for appellant moved for juror number 6 to be removed for cause and the trial court
granted the motion without objection from the appellee.
{¶ 20} In considering a claim of ineffective assistance of counsel, an appellate
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court need not examine counsel’s performance if the defendant fails to prove the second
prong of prejudicial effect. State v. Bradley (1989), 42 Ohio St.3d 136, 143, 538 N.E.2d
373. “The object of an ineffectiveness claim is not to grade counsel’s performance.” Id.{¶ 21} Even if we assume that appellant’s counsel performed deficiently by
failing to object to the mention of Geodon, appellant has not established that he was
prejudiced in any manner. Courts may not simply assume the existence of prejudice, but
must require that prejudice be affirmatively demonstrated. See State v. Clark, Pike App.
No. 02CA684, 2003-Ohio-1707, at ¶22; State v. Tucker, Ross App. No. 01CA2592,
2002-Ohio-1597. There is no indication in the record that appellant suffered any
prejudice as a result of counsel’s failure to object to the Geodon testimony or move for a
mistrial on the same basis. A juror with specialized medical knowledge indicated that
Geodon was not a commonly known medication but rather a drug known to him due to
his niche experience in psychiatric medicine. Furthermore, while the juror was
concerned of the possibility that other jurors might ask him about the drug, the record is
clear that none of the jurors had done so prior to the juror bringing the issue to the trial
court’s attention. Finally, trial court explicitly instructed the excused juror not to
discuss the matter with his fellow jurors and the juror acknowledged the importance of
the trial court’s mandate.
{¶ 22} Appellant has failed to demonstrate that prejudice resulted to the extent
that the outcome at trial clearly would have been different. Ineffective assistance of
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counsel has not been demonstrated.
{¶ 23} Appellant’s first assignment of error is overruled.
{¶ 24} Appellant’s second assignment of error states:
“The court committed plain error when it failed to remedy multiple irregularities
in the trial that, taken as a whole, deprived appellant of a fair trial.”
{¶ 25} Appellant argues that the trial court erred by allowing juror number 7 to
remain on the panel despite his prior interaction with Deputy Simmons and by allowing
the introduction of the drug name Geodon into evidence. Appellant failed to object to
the trial court’s decision to allow juror number 7 to remain on the panel and failed to
object to the introduction of the term “Geodon” at trial, thus waiving all but plain error.
State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677, at ¶10, citing State v.
Childs (1968), 14 Ohio St.2d 56, 263 N.E.2d 545.
{¶ 26} To constitute plain error, the error must be obvious on the record, palpable,
and fundamental, so that it should have been apparent to the trial court without objection.
See State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Moreover,
plain error does not exist unless the appellant establishes that the outcome of the trial
clearly would have been different but for the trial court’s allegedly improper actions.
State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043. Notice of plain error
is to be taken with utmost caution, under exceptional circumstances, and only to prevent
a manifest miscarriage of justice. State v. Phillips, 74 Ohio St.3d 72, 83,
1995-Ohio-171, 656 N.E.2d 643.
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{¶ 27} Appellant is unable to demonstrate plain error in the present case because
he cannot demonstrate that he was prejudiced, in any manner, by the above claimed
errors. The record is devoid of any indication that the outcome of the trial clearly would
have been different but for the trial court’s allegedly improper actions.
{¶ 28} Appellant’s second assignment of error is overruled.
{¶ 29} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower 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.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR