Opinion
Case No. 2015CA00127
03-28-2016
STATE OF OHIO Plaintiff - Appellee v. STAR GLENN Defendant - Appellant
APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney By: RENEE M. WATSON Assistant Prosecuting Attorney 110 Central Plaza South, Suite 510 Canton, Ohio 44702 For Defendant-Appellant DEREK LOWRY 116 Cleveland Ave. NW, Suite 800 Canton, Ohio 44702
JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2014CR2004 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO
Prosecuting Attorney By: RENEE M. WATSON
Assistant Prosecuting Attorney
110 Central Plaza South, Suite 510
Canton, Ohio 44702 For Defendant-Appellant DEREK LOWRY
116 Cleveland Ave. NW, Suite 800
Canton, Ohio 44702 Baldwin, J.
{¶1} Appellant Star Glenn appeals a judgment of the Stark County Common Pleas Court convicting her of aggravated vehicular homicide (R.C. 2903.06(A)(3)) and driving under a financial responsibility law suspension (R.C. 4510.16(A)). Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} George Keyes was on his way to work in the early morning hours of November 7, 2014, driving westbound on U.S. 62 in the City of Canton. The morning was dark, cold and rainy. About half a mile in front of him, he saw taillights fish-tailing on two cars. The car in the right lane slid sideways, hit the bridge wall on the right side of the road, and flipped on its side. The car in the left lane spun with its headlights facing Keyes, and came to rest against a concrete wall on the left side of the bridge. Keyes did not see how the accident happened.
{¶3} Keyes pulled over and called 911. He noted an arm protruding from a window of the car that had flipped on its side. The driver of the other vehicle, appellant, had exited her vehicle. She was very shaken, and asked Keyes to stay with her until help arrived.
{¶4} Canton Police Officers Timothy Thorn and Phillip Johnson were dispatched to the scene. The driver of the flipped car, Donna Boals, was trapped in the vehicle, and her left arm was pinned under the car. Johnson stayed with Boals until help arrived to remove her from the car. When Johnson asked what happened, Boals responded that she didn't know.
{¶5} After the fire department freed Boals from her vehicle, she was transported to Mercy Medical. Thorn spoke with appellant and learned that her license was suspended. Appellant asked to be transported to the hospital, and was instructed to wait for officers at the hospital to give a statement. However, she left before officers arrived to take her statement.
{¶6} Thorn put down flares, blocked both lanes of traffic and impounded both vehicles. While putting down the flares, one popped and sprayed pieces into his eye. Johnson then transported Thorn to the hospital for treatment.
{¶7} Johnson dropped Thorn off at Aultman Hospital and proceeded to Mercy Medical to get a statement from Boals. Doctors advised him that Boals's injuries were life-threatening, and he was therefore unable to speak with her. Johnson contacted the officer in charge and requested that an investigation team analyze the crash.
{¶8} Boals passed away in the afternoon. The coroner determined the cause of death to be massive blunt force trauma to the chest and multiple fractures due to a motor vehicle crash of an unbelted driver.
{¶9} Several weeks after the crash, Canton Police Officer Kim Elliot interviewed appellant. Appellant stated that she worked at Wendy's on Cleveland Avenue, the exit directly after the site of the crash. She needed to be at work at 6:00 a.m., and drove her boyfriend's car to work although her license was under a financial responsibility suspension. She told Elliot that Boals's car merged and struck her car in the rear bumper.
{¶10} Canton Police Officer Eric Brown, an expert in crash reconstruction, was assigned to investigate the crash. Several hours after the crash he closed the roadway to take photographs and measurements. Because the vehicles had been removed, Officer Thorn went to the scene to show Brown where the vehicles had come to rest. Brown measured the lanes and berms, and noted the posted speed limit, weather conditions and road surfaces.
{¶11} Brown then inspected the vehicles at the impound lot. He noted localized damage to appellant's right front bumper, which did not extend down the side of the vehicle. He noted silver paint transfer on the right front bumper from Boals's vehicle. There were multiple horizontal scratches on the right rear corner of appellant's vehicle caused by impact with the concrete bridge barrier where the car had come to rest. The driver's side door of Boals's car had impact damage that matched the front bumper of appellant's car. Brown concluded that the right front bumper of appellant's car struck the driver's side door of Boals's car, piercing the sheet metal door skin. After analysis of all the information, Brown concluded that appellant's version of the events could not have been correct. He concluded that appellant left her lane of travel and went into the right lane, striking Boals's vehicle. Brown prepared a PowerPoint presentation and an animated video depiction of the crash as appellant claimed it occurred, and as it had to occur in his opinion based on the evidence. Brown's conclusions were peer-reviewed by Sgt. Swank, who had no involvement in the case, and Swank agreed with Brown's conclusions.
{¶12} Brown noted that the tires on appellant's car had good tread and there was no evidence of hydroplaning or road conditions causing the crash. He therefore concluded that the accident was most likely caused by appellant's steering input, or possibly loss of control due to a distraction. Tr. 380.
{¶13} Appellant was charged with aggravated vehicular homicide and driving under a financial responsibility suspension. Following trial in Stark County Common Pleas Court, appellant was found guilty by a jury of aggravated vehicular homicide, and convicted of driving under a financial responsibility suspension by the court. She was sentenced to 12 months incarceration for aggravated vehicular homicide and 6 months incarceration for driving under a financial responsibility suspension, to be served concurrently.
{¶14} Appellant assigns three errors on appeal:
{¶15} "I. THE ADMISSION OF OFFICER SWANK'S CONCLUSIONS VIOLATED PETITIONER'S RIGHT TO A FAIR TRIAL.
{¶16} "II. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
{¶17} "III. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE."
I.
{¶18} Appellant argues that her Sixth Amendment right to confront witnesses against her was violated by the admission of evidence that Sgt. Swank reviewed Brown's conclusions and found them to be accurate. She further argues that the State failed to provide her with Swank's identity, a summary of his qualifications and his written report prior to trial, in violation of Crim. R. 16(K).
{¶19} On cross-examination, appellant asked Brown to explain his responsibilities in the investigation of a case such as this one. In the course of explaining the procedure he follows, Brown testified that his opinion gets peer-reviewed by someone who has nothing to do with the case. In this case, that person was Sgt. Swank, a reconstructionist for the city. Brown testified that Swank would read his report and tell him if he agrees with it or if he believes there is a flaw somewhere. Tr. 354.
{¶20} On redirect examination, the prosecutor asked Brown to explain the peer review process. Brown testified that Swank first reviews the report alone without Brown's input and then calls him back into the room to discuss the report. When asked if Swank agreed with his conclusions, Brown testified that he did. Tr. 412. Appellant did not object to this testimony.
{¶21} Because appellant failed to object to this testimony, we review its admission under a plain error standard. State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978), Crim. R. 52(B). In order to prevail under a plain error analysis, appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. Id. Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus.
{¶22} Appellant argues that her confrontation rights were violated because she could not cross-examine Sgt. Swank, relying on the holdings of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004) and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed2d 314(2009). Under Crawford, statements of a witness who did not appear at trial are inadmissible unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination. 541 U.S. at 54. In Melendez, the State introduced certificate of a state laboratory analyst stating that material seized by police was cocaine; however, the analyst did not testify at trial. The United States Supreme Court concluded that admission of the report without the testimony of the analyst violated the Confrontation Clause, as the defendant is entitled to cross-examine a technician who prepares a report used at trial. 557 U.S. 305, at syllabus.
{¶23} However, in the instant case, Brown was the technician who prepared the report used at trial. Brown testified that Swank reviewed his work for flaws, but that Swank had nothing to do with the case. Swank read through the report to determine if Brown met all the criteria to form his opinion, if he followed the scientific method, did he apply physics, and did his opinion and conclusion make sense in accordance with the evidence as explained in the report. Tr. 412. Nothing in the record indicates that Swank did an independent analysis of the crash or prepared a report.
{¶24} Further, the State did not introduce the evidence of peer review in the instant case; rather, the evidence was first elicited by appellant on cross-examination of Brown. Melendez prohibits the admission of a scientific report absent the live testimony of the analyst who prepared the report. The accident reconstruction report in this case was prepared by Brown, who testified at trial and was available for cross-examination. Therefore, appellant's reliance on Melendez is misplaced.
{¶25} Appellant has not demonstrated plain error in the admission of testimony that Swank peer-reviewed Brown's report and agreed with his conclusions. The evidence established that Swank had nothing to do with the case and did not independently look at the evidence and reach the same conclusion as Brown; rather, he simply reviewed the finished report for error. Swank's testimony is therefore merely cumulative, and appellant has not demonstrated that the outcome of the trial would have been different in the absence of evidence that Swank peer-reviewed Brown's report and agreed with his conclusion.
{¶26} Appellant also suggests that the State violated Crim. R. 16(K), which provides:
An expert witness for either side shall prepare a written report summarizing the expert witness's testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert's qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert's testimony at trial.
{¶27} Nothing in the record suggests that Swank made an independent analysis of the evidence in the instant case. Further, the State did not present evidence of Swank's peer review of Brown's report. The State merely clarified his involvement after appellant first elicited evidence of Swank's review of the report on cross-examination.
{¶28} The first assignment of error is overruled.
II.
{¶29} In his second assignment of error, appellant argues that her trial counsel was ineffective for failing to object to testimony regarding peer review of Brown's report by Swank.
{¶30} A properly licensed attorney is presumed competent. State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's performance fell below an objective standard of reasonable representation and but for counsel's error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In other words, appellant must show that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.
{¶31} Appellant has not demonstrated that had counsel objected to testimony concerning peer review by Swank and had such testimony been excluded, the result of the proceeding would have been different. The evidence established that Swank had nothing to do with the case and did not independently look at the evidence and reach the same conclusion as Brown; rather, he simply reviewed the finished report for error. Swank's testimony is therefore merely cumulative.
{¶32} The second assignment of error is overruled.
III.
{¶33} In his final assignment of error, appellant argues that the judgment is against the manifest weight and sufficiency of the evidence.
{¶34} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and "in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in evidence the jury 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶35} An appellate court's function when reviewing the sufficiency of the evidence is to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991).
{¶36} Appellant was convicted of aggravated vehicular homicide in violation of R.C. 2903.06(A)(3). The State needed to prove that while operating a motor vehicle, appellant negligently caused the death of Boals, and that appellant was driving under suspension at the time. Appellant does not challenge the finding that she was driving under suspension at the time, but rather argues that the finding that she negligently caused Boals's death is against the manifest weight and sufficiency of the evidence.
{¶37} Appellant told Officer Elliot that Boals attempted to merge into the left lane, striking the rear of appellant's car and causing her car to spin around, facing oncoming traffic. However, Brown's investigation determined that appellant's story could not be accurate because there was no vehicle-to-vehicle impact damage to the rear of appellant's car. Brown concluded that the only explanation for the accident that matched the physical evidence of the crash and complied with the laws of physics is that appellant's vehicle left its lane of travel and struck the driver's door of Boals's vehicle. Photographs of the vehicles, a PowerPoint presentation and an animated reconstruction of the accident as appellant claimed it happened and as Brown determined to a reasonable degree of scientific certainty that it happened were presented to the jury. Brown determined that road conditions were not a factor and appellant's tires had good tread. He therefore concluded most likely the accident was caused by driver error. Although Brown could not testify with certainty as to what caused the accident, from the scientific evidence that appellant left her lane of travel and struck Boals's vehicle in Boals's lane of travel, the jury could infer that appellant negligently caused the accident which caused the death of Boals.
{¶38} Appellant notes that Boals was not wearing a seat belt. However, "it is well settled that any contributory negligence of the decedent cannot be a defense to vehicular homicide, unless it is the sole proximate cause of the accident." State v. Dendak, 5th Dist. Stark No. 2013CA00065, 2013-Ohio-5694, ¶ 14, citing State v. Langenkamp, 137 Ohio App.3d 614, 621, 739 N.E.2d 404 (2000).
{¶39} The judgment is not against the manifest weight or sufficiency of the evidence. The third assignment of error is overruled.
{¶40} The judgment of the Stark County Common Pleas Court is affirmed. Costs are assessed to appellant. By: Baldwin, J. And Wise, J. concur. Hoffman, P.J. concurs in part and dissents in part Hoffman, P.J., concurring in part and dissenting in part
{¶41} I concur in the majority's analysis and disposition of Appellant's third assignment of error. However, I respectfully disagree with its analysis of the first assignment of error, and respectfully dissent from its analysis and disposition of Appellant's second assignment of error.
{¶42} The majority does not specifically answer whether the admission of Sgt. Swank's agreement with Officer Brown's opinion as to how the accident occurred was or was not a violation of Appellant's right to confrontation. Rather, the majority concludes Appellant's reliance on Melendez is misplaced because Brown testified at trial.
{¶43} This conclusion, while correct insofar as finding no confrontation clause violation occurred pursuant to Melendez with respect to Brown's expert opinion, does not take the next step in the analysis as to whether Swank's "agreement" with Brown's opinion violates the confrontation clause. I find it does.
{¶44} The majority apparently bases its analysis on its belief "nothing in the record indicates that Swank did an independent analysis of the crash or prepared a report." (Majority Opinion at ¶23). I think that statement is only partially correct.
{¶45} I agree Sgt. Swank did not prepare a separate report. However, I find allowing the testimony that as part of the peer review process Sgt. Swank read through Brown's report, checking Brown's scientific method and application of physics in accordance with the evidence, and then allowing Swank's conclusion he agreed with Brown's assessment, is the functional equivalent of presenting a second expert opinion based upon Swank's independent analysis. While Swank did not conduct an independent investigation, I find he did conduct an independent analysis.
{¶46} While Swank's opinion may have been cumulative of Brown's opinion, I find a distinct difference between corroboration of a fact witness as compared to the corroboration of an expert opinion. When no direct fact witness as to the cause of the collision is presented, the opinion of an accident reconstruction expert becomes crucial.,
While Appellant's counsel may have opened the door to testimony of the peer-review process, I find Appellant's redirect examination soliciting Swank's independent agreement with Brown's opinion went beyond that opening and resulted in admission of evidence in violation of Appellant's Sixth Amendment Right to Confrontation.
The majority overrules Appellant's second assignment of error under the prejudice prong analysis of Strickland because Swank's testimony was merely cumulative. --------
{¶47} Having so concluded, the next question becomes whether or not the error in admitting Swank's "agreement" amounts to plain error. Because the error was of a constitutional right, I believe the proper question becomes, am I convinced beyond a reasonable doubt the admission of Swank's opinion was harmless. I confess my analytical confusion when reconciling this standard of review with the traditional standard of review of plain error, which requires a conclusion the outcome of the trial would clearly have been different but for the admission of the evidence.
{¶48} My analysis of the appropriate standard of review becomes further muddled when considering Appellant's second assignment of error concerning his claim of ineffective assistance of counsel for failing to object to the testimony. That standard is whether there is a reasonable probability the outcome of the trial would have been different had the evidence not been admitted. In reaching my decision, it is necessary to consider the weight of Brown's opinion and the strength of all the other evidence.
{¶49} I have reviewed the video presentation prepared by Brown and the photographs of the vehicles involved in the accident. I note Brown's reconstruction is based upon his conclusion the two vehicles were traveling side by side immediately before the collision occurred. However, I am unaware of there being anything in the record to demonstrate or support such presumption.
{¶50} While I am not an accident reconstructionist nor, by any means, a physicist, I am left to wonder if Boals' vehicle was in front of Appellant's vehicle and Boals veered left into Appellant's lane, would not the physical evidence of the damage to the vehicles be consistent with such scenario? It seems logical to me, such action by Boals would have resulted in contact between Appellant's right passenger bumper and Boals' driver's side door . . . the same damage Brown uses to find the collision resulted from Appellant veering into Boals' lane. While a jury might well conclude the later scenario is more probable, the question in my mind becomes what possible impact did the erroneous admission of Swank's expert opinion have on their determination.
{¶51} While I do not conclude admission of Swank's opinion amounted to plain error, given the constitutional nature of the error, I am not convinced beyond a reasonable doubt had Swank's opinion been excluded, there does not exist a reasonable probability the outcome of the trial would have been different.
{¶52} Accordingly, I concur in the majority's decision to overrule Appellant's first assignment of error, but respectfully dissent from its decision to overrule Appellant's second assignment of error.
{¶53} I would reverse Appellant's conviction and remand the matter for new trial.