Opinion
22CA011869
08-07-2023
STATE OF OHIO Appellee v. NELSON I. SUAREZ Appellant
STEPHEN P. HANUDEL, ATTORNEY AT LAW, FOR APPELLANT. J.D. TOMLINSON, PROSECUTING ATTORNEY, AND LINDSEY C. POPROCKI, ASSISTANT PROSECUTING ATTORNEY, FOR APPELLEE.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 21CR104307
STEPHEN P. HANUDEL, ATTORNEY AT LAW, FOR APPELLANT.
J.D. TOMLINSON, PROSECUTING ATTORNEY, AND LINDSEY C. POPROCKI, ASSISTANT PROSECUTING ATTORNEY, FOR APPELLEE.
DECISION AND JOURNAL ENTRY
JILL FLAGG LANZINGER, JUDGE
{¶1} Nelson Suarez appeals from the judgment of the Lorain County Court of Common Pleas. This court affirms.
I.
{¶2} On January 28, 2021, two officers from the Lorain Police Department initiated a traffic stop after observing a vehicle run a stop sign. Upon approaching the vehicle, the officers identified Mr. Suarez as the driver. Mr. Suarez was "shaking a little more than usual, kind of looking more nervous than a normal traffic stop * * *." Mr. Suarez was asked to step out of his vehicle and was patted down for weapons. An officer asked Mr. Suarez for consent to search his vehicle; Mr. Suarez declined.
{¶3} Within minutes of the stop, a K-9 officer arrived at the scene. After an "open air sniff of the vehicle" was performed, the K-9 alerted there was an odor of a controlled substance. A probable cause search was conducted. At first, only an open can of Budweiser was found under the driver's seat. After a second search of the vehicle, an officer found a crumb of cocaine on the driver's seat. The officer conducted a field test on the crumb which indicated it was presumptively positive for cocaine.
{¶4} On June 17, 2021, Mr. Suarez was indicted on one count of possession of cocaine, in violation of R.C. 2925.11, a felony of the fifth degree. Mr. Suarez pleaded not guilty. The matter proceeded to a jury trial.
{¶5} On March 10, 2022, the trial court initially sat 35 prospective jurors. Four jurors were released for cause. The State used peremptory strikes on Juror Nos. 7 and 16. Both Jurors Nos. 7 and 16 were African American. The defense made a Batson challenge with regard to both jurors. Ultimately, the trial court overruled the Batson challenge as to Juror No. 7 but sustained the challenge as to Juror No. 16. The jury was selected and sworn.
{¶6} The jury found Mr. Suarez guilty of possession of cocaine. Mr. Suarez was sentenced to community control sanctions. Mr. Suarez now appeals, raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY NOT SUSTAINING APPELLANT'S FIRST BATSON CHALLENGE DURING VOIR DIRE.
{¶7} Mr. Suarez claims that he was denied his right to equal protection when the State used a peremptory challenge to strike an African American prospective juror. We disagree.
{¶8} In Batson v. Kentucky, 476 U.S. 79, 89 (1989), the United States Supreme Court concluded that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race * * *." The Supreme Court of Ohio subsequently stated:
A court adjudicates a Batson claim in three steps. First, the opponent of the peremptory challenge must make a prima facie case of racial discrimination. Second, if the trial court finds this requirement fulfilled, the proponent of the challenge must provide a racially neutral explanation for the challenge. However, the explanation need not rise to the level justifying exercise of a challenge for cause. Finally, the trial court must decide based on all the circumstances, whether the opponent has proved purposeful racial discrimination.(Internal citations and quotations omitted.) State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, ¶ 106.
To make a prima facie case of such purposeful discrimination, an accused must demonstrate: (a) that members of a recognized racial group were peremptorily challenged; and (b) that the facts and any other relevant circumstances raise an inference that the prosecutor used the peremptory challenges to exclude jurors on account of their race.(Internal citations and quotations omitted.) State v. Hill, 73 Ohio St.3d 433, 444-45 (1995).
{¶9} "The trial judge must determine whether the prosecutor's stated reasons were the actual reasons or instead were a pretext for discrimination." State v. Garrett, Slip Opinion No. 2022-Ohio-4218, ¶ 69, quoting Flowers v. Mississippi, 139 S.Ct. 2228, 2241 (2019). Relevant factors may include "the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." Garrett at ¶ 69, quoting Miller-El v. Cockrell, 537 U.S. 322, 339 (2003). "In addition, race-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's firsthand observations of even greater importance." Snyder v. Louisiana, 552 U.S. 472, 477 (2008).
{¶10} An appellate court reviews whether a party exercised its peremptory challenges in a discriminatory manner under the clearly erroneous standard. Hernandez v. New York, 500 U.S. 352, 364-65 (1991). The trial court's finding at step three "is entitled to deference, since it turns largely 'on evaluation of credibility.'" Garrett at ¶ 69, quoting State v. White, 85 Ohio St.3d 433, 437 (1999). A trial court's finding that there was a lack of any discriminatory intent on behalf of the State will not be reversed on appeal unless it was clearly erroneous. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶61.
{¶11} Here, counsel questioned a pool of 35 prospective jurors which included two African American jurors, Jurors Nos. 7 and 16. The State exercised a peremptory strike on Juror No. 7. Later the State attempted to exercise a peremptory strike on Juror No. 16. The trial court sustained defense counsel's Batson challenge for Juror No. 16, leaving one African American juror on the jury.
{¶12} With regard to Juror No. 7, the prosecutor asked, "Is there anybody here, either themselves, close friend, a family member, who has been impacted by a situation where you think they were treated unfairly by police, prosecutors, courts, justice system?" Juror No. 7 responded:
Okay. My family is from Selma, Alabama. My brother was 10 years old. He was beaten by the police. They said he stole a pound of sugar. Then my brother, when I was 11, was beaten by the police. I think he ran as a result. I think that was in Indiana. I have nephews [that have] been in and out of jail. And I have one nephew that's in Indiana that's in jail for 70 years. He didn't kill nobody. I don't know what happened because I don't live there anymore. So it's just been a series of unfortunate events that have happened to my nephews, my brothers. And I think that there needs to be some overhaul in the criminal justice system. Because people can make bad choices, but they're not necessarily criminals. They're still human beings, and people do love them and care about them.
{¶13} After Juror No. 7 stated, "people can make bad choices, but they're not necessarily criminals[,]" the prosecutor asked Juror No 7. to clarify her meaning regarding that statement. She responded, "Well, I meant that there's this bullseye on their back, you know. They're just presumed to be criminals because they're black men and they're in the wrong place at the wrong time. They do crazy things, but young men do crazy things, you know."
{¶14} After challenges were made for cause, the State used a peremptory strike on Juror No. 7. Defense counsel objected citing Batson. The State gave its reason for challenging Juror No. 7, even though the trial court did not find that a prima facie case existed. "Once the proponent explains the challenge and the trial court rules on the ultimate issue of discrimination, whether or not a prima facie case was established becomes moot." White, 85 Ohio St.3d at 437, citing Hernandez, 500 U.S. at 359. The trial court noted that Juror No. 7 appeared to be African American, and that Mr. Suarez was Hispanic. The trial court requested the prosecutor to state a reason for exercising the peremptory strike. The following exchange occurred:
[Prosecutor]: The reason for the peremptory, Your Honor, is her answers to questions indicated there was a difference between being stupid and being criminal. And further questioning along those lines made me have some concerns whether she would actually find somebody guilty. She said she could follow the law, but I had doubts, based on her responses, especially that particular phrase.
The Court: Response, [Defense Counsel]?
[Defense Counsel]: Your Honor, she also brings into perspective of this jury of, right now, being the only [] African American, being the only minority.
The Court: First of all, I would believe that * * * Prospective Juror No. 16[] also would satisfy that issue; not that that is a paramount issue. But I appreciate that it would reduce, probably by half, the potential in that regard, recognizing, of course, that Mr. Suarez is not African American. But go on.
[Defense Counsel]: I will step back that, I mean, Juror No. 7 was very clear that she was critical of the justice system. But, once again, this is somebody that testified that they could be fair and impartial and find a guilty verdict. She did testify to that.
The Court: From the Court's perspective, I found two particular issues with regard to hers that may generate a desire by the State. One was the issue about the distinction between people doing something stupid and doing something criminal. And, although she has answered definitively enough that I don't think that there was a justification for a for-cause dismissal -- I don't believe it was requested, either -- but I do believe that that, and her testimony with regard to having lot of family members or other individuals she feels have been railroaded. And she didn't just talk about African Americans. She also talked about people of color. And so I find that that is sufficient, in conjunction with her other statements with regard to minimizing other individuals' criminal -- potentially criminal conduct, that there is a sufficient non-racial, non-biased reason for her release as a juror, and I will not prevent the release of Juror No. 7.
{¶15} The State offered a race-neutral explanation for challenging the prospective juror. The juror's answers to questions indicated there was a difference between being stupid and being criminal, causing the prosecutor to have concerns whether she would find somebody guilty. The trial court additionally noted a second race-neutral explanation, citing Juror No. 7's testimony about having lot of family members and other individuals she felt had been railroaded.
{¶16} Ultimately, the trial court concluded "that there [was] a sufficient non-racial, non-biased reason for her release as a juror" and overruled the Batson challenge as to Juror No. 7. The trial court considered the prosecutor's race-neutral explanation in conjunction with statements Juror No. 7 had made, (1) Juror No. 7's "distinction between people doing something stupid and doing something criminal[,]" and (2) Juror No. 7's answer "with regard to having lot of family members or other individuals she feels have been railroaded." The trial court noted that the prosecutor's explanation needs not rise to the level justifying exercise of a challenge for cause. See Bryan, 2004-Ohio-971, at ¶ 106. Courts have "recognized that the potential bias that may result from a prospective juror's or his or her family's experiences with the criminal justice system may be a legitimate, racially-neutral reason for exercising a peremptory challenge against the prospective juror." Garrett, Slip Opinion No. 2002-Ohio-4218, at ¶ 84, quoting State v. May, 8th Dist. Cuyahoga No. 102482, 2015-Ohio-4275, ¶ 51; see also State v. Shoffner, 2d Dist. Montgomery No. 28540, 2020-Ohio-4239, ¶ 8 (recognizing race-neutral reason for peremptory strike against potential juror where the juror indicated that he had had several encounters with law enforcement which caused him to be biased against the police.).
{¶17} Finally, in overruling the Batson challenge, the trial court needed to decide, based on all the circumstances, whether racial discrimination was proven. The trial court had to weigh the prosecutor's demeanor, how reasonable or improbable his explanations were, and if the prosecutor's proffered rationale had some basis in accepted trial strategy. See Garrett at ¶ 69, citing Cockrell, 537 U.S. at 339. The trial court also had to weigh the juror's demeanor. Considering all these factors, firsthand, the trial court decided to overrule the Batson challenge. Because this Court cannot make those firsthand observations, the trial court's observations are treated with deference. Snyder, 552 U.S. at 477.
{¶18} On appeal, Mr. Suarez argues that this Court should consider the State's attempted peremptory strike of Juror No. 16 as evidence of the State's discriminatory motive in striking Juror No. 7. "Although the presence of a pattern of discrimination is a factor for consideration, the defendant need not show a pattern in order to establish a Batson violation." State v. Carver, 2d Dist. Montgomery No. 21327, 2008-Ohio-4631, ¶ 57, citing Batson, 476 U.S. at 95-96. As stated by the Supreme Court of Ohio:
The existence of a pattern of discriminatory strikes is not a prerequisite either to finding a prima facie case in step one of the Batson analysis or to finding actual discrimination in step three. Such a rule would ignore Batson's requirement that the trial court consider all the circumstances in determining whether racial discrimination occurred. It would also mean that no Batson challenge could succeed unless the prosecutor challenged more than one member of the group in question. Such a rule would license prosecutors to exercise one illegal peremptory strike per trial. The law of equal protection does not allow "one free bite."(Emphasis sic.) White, 85 Ohio St.3d at 436. Each Batson challenge is considered independently. The trial court considered the challenge to Juror No. 7 when considering the Batson challenge to Juror No. 16, and ultimately sustained the objection, keeping one African American juror on the jury.
{¶19} This Court cannot conclude that the trial court's ruling was clearly erroneous. The trial court explained its justifications for overruling the Batson challenge for Juror No. 7. The trial court's considerations of the prosecutor's justifications for the peremptory strikes are entitled to deference since they turn largely on the evaluation of credibility. See White at 437. Accordingly, this Court cannot conclude that the trial court clearly erred when it overruled Mr. Suarez's first Batson challenge.
{¶20} Mr. Suarez's first assignment of error is overruled.
ASSIGNMENT OF ERROR II
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS.
{¶21} In his second assignment of error, Mr. Suarez argues that his trial counsel rendered ineffective assistance by not moving to suppress evidence stemming from the traffic stop. For the following reasons, this Court disagrees.
{¶22} "[I]n Ohio, a properly licensed attorney is presumed competent." State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. To prevail on a claim of ineffective assistance of counsel, Mr. Suarez must establish: (1) that his counsel's performance was deficient to the extent that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[;]" and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. To establish prejudice, Mr. Saurez must show that there existed a reasonable probability that, but for his counsel's errors, the outcome of the proceeding would have been different. State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138. As the Ohio Supreme Court has acknowledged, "[a] defendant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other." State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing Strickland at 697.
{¶23} "Failing to file a motion to suppress does not constitute ineffective assistance of counsel per se." State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 65. As this Court has stated, "[counsel's decision not to file a motion to suppress may be a matter of trial strategy, including counsel's reasonable assessment of whether such a motion is likely to succeed and recognition that filing a motion to suppress has risks." State v. Kendall, 9th Dist. Summit No. 25721, 2012-Ohio-1172, ¶ 7. "To establish ineffective assistance of counsel for failure to file a motion to suppress, a defendant must prove that there was a basis to suppress the evidence in question." Brown at ¶ 65. Furthermore, in order to satisfy the prejudice prong of the Strickland test, a defendant must demonstrate that there was a reasonable probability that the motion to suppress would have been granted. Kendall at ¶ 7.
{¶24} Here, Mr. Suarez argues that his trial counsel should have filed a motion to suppress evidence stemming from the traffic stop. He argues that the search of his vehicle was unconstitutional because the traffic stop was delayed to allow for the K-9 unit's open air sniff of the vehicle. Mr. Suarez argues that the cocaine found after the K-9's sniff should have been suppressed. Even if this was a basis to suppress the evidence, Mr. Suarez has not argued-much less established-that there was a reasonable probability that the trial court would have granted such a motion to suppress. The record reflects that the traffic stop of Mr. Suarez was initiated at 9:54 p.m. Video from Officer Ventura's cruiser shows the K-9 unit arrived at the traffic stop at 9:57 p.m. During Mr. Suarez's testimony he stated, "[b]y the time I walked from the back of my car, eight, ten steps, they're there. The dog, a bunch of police are there." Mr. Suarez's own testimony appears to indicate that there was no delay. "If a traffic stop is justified, and does not last any longer than necessary to effectuate the original purpose of the stop, a law enforcement official may simultaneously conduct a K-9 sniff of the exterior of the vehicle without any additional reasonable, articulable suspicion of criminal activity." State v. Reid, 9th Dist. Lorain No. 12CA010265, 2013-Ohio-4274, ¶ 8.
{¶25} This Court has held "a defendant must prove that there was a basis to suppress the evidence in question. [And, i]n order to show prejudice, a defendant must demonstrate that there was a reasonable probability that the motion to suppress would have been granted." (Internal quotations and citations omitted.) State v. Payne, 9th Dist. Lorain No. 18CA011383, 2019-Ohio-4218, ¶ 25. Mr. Suarez has not demonstrated that if his counsel had filed a suppression motion, it would have been granted. Mr. Suarez's trial counsel could have reasonably assessed that there was no reasonable probability that the trial court would have granted a motion to suppress the evidence collected. As a result, Mr. Suarez cannot establish prejudice. Kendall at ¶ 7; State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, ¶ 18 ("Questionable trial strategies and tactics * * * do not rise to the level of ineffective assistance of counsel."). Mr. Suarez's second assignment of error is overruled.
III.
{¶26} Mr. Suarez's first and second assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
STEVENSON, J. CONCURS.
CARR, P. J. CONCURS IN JUDGMENT ONLY.