Opinion
28821
03-17-2023
STATE OF OHIO Appellee v. BRANDON WILLIAM LEIGH Appellant
Trial Court Case No. 18-CR-3087
ORDER ON APPLICATION FOR RECONSIDERATION
PER CURIAM
Pursuant to App.R. 26(A)(1), Brandon William Leigh asks us to reconsider our January 13, 2023 Opinion and Final Judgment, which affirmed his convictions for murder with a firearm specification, involuntary manslaughter with a firearm specification, improperly discharging a firearm at or into a habitation, and having weapons while under disability. Leigh also appears to ask us to reopen his direct appeal so that he may challenge the lawfulness of his warrantless arrest. For the following reasons, Leigh's application for reconsideration is denied.
I. Background
The charges against Leigh stemmed from a shooting into the rear of the home of Jacqueline Mooty. Mooty's pregnant 22-year-old daughter, Keyona Murray, was killed when a bullet entered the first-floor rear bedroom. The main issue at trial was the identity of the shooter. The State presented evidence that Leigh committed the offenses because he believed that Marrico Murray, Keyona's brother, had stolen a firearm from him. Of relevance here, several days after the shooting, Marrico provided detectives with Facebook messages that he received from Leigh, and detectives later obtained additional messages between Leigh and others in which Leigh discussed getting robbed and his efforts to locate Marrico. In addition, Leigh reportedly had told Angela Williams that he committed the shooting, a fact to which Williams testified during a probable cause hearing in juvenile court. (Leigh was a minor when the offenses occurred.) After determining that Williams was unavailable for trial, the trial court allowed a recording of her prior testimony to be played for the jury.
On appeal, Leigh raised five assignments of error: (1) the trial court committed reversible error by admitting Williams's probable cause hearing testimony; (2) the trial court committed reversible error by allowing testimony that Leigh sent messages via Facebook Messenger, which contained hearsay and discussed other bad acts; (3) defense counsel rendered ineffective assistance, particularly in failing to challenge prospective Juror #15; (4) the State failed to prove all of the elements of the charged offenses; and (5) cumulative error deprived Leigh of a fair trial. We overruled each assignment of error and affirmed Leigh's convictions.
Leigh now asks us to reconsider several of our determinations. First, he argues that we should have concluded that his trial counsel rendered ineffective assistance by failing to challenge a prospective juror who previously had experienced a drive-by shooting at his home. Second, he claims that we erred in our conclusion that his convictions were supported by sufficient evidence. Third, he asserts that we should have concluded that the trial court erred in finding Williams an unavailable witness. Fourth, he claims that the trial court erred in admitting character evidence. Finally, Leigh asserts that his Fourth Amendment rights were violated when he was subjected to a warrantless arrest, a matter that he did not raise on direct appeal and, consequently, we have not addressed.
II. Standards for Application for Reconsideration and Timeliness
App.R. 26(A)(1)" 'provides a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law.'" State v. Gillispie, 2012-Ohio-2942, 985 N.E.2d 145, ¶ 9 (2d Dist.), quoting State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th Dist.1996). However," '[a]n application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court.'" Id., quoting Owens at 336. Rather, the application "must call the court's attention to obvious errors in a decision or must raise issues that the court either failed to consider or did not fully consider when the original decision was made." Id.
An application for reconsideration shall be made "no later than ten days after the clerk has both mailed to the parties the judgment or order in question and made a note on the docket of the mailing as required by App. R. 30(A)." App.R. 26(A)(1)(a). The appellate court may enlarge the time for filing an application for reconsideration, but only upon a showing of extraordinary circumstances. App.R. 14(B).
We rendered our Opinion and Final Judgment in this case on January 13, 2023. The same day, the clerk mailed a notice of entry to each party and made a note of the mailing on the docket. Leigh, therefore, was required to file any application for reconsideration by January 23, 2023. Leigh filed his application on January 27, 2023, 14 days later, and he has not presented any extraordinary circumstances to justify the delay. Accordingly, Leigh's application for reconsideration is untimely. Nevertheless, in the interest of completeness, we will address Leigh's arguments.
III. Failure to Dismiss Juror #15
Leigh's application for reconsideration primarily focuses on his trial counsel's failure to seek the dismissal of prospective Juror #15. During voir dire, Juror #15 told the prosecutor, "I am the victim of a drive-by shooting. * * * And I - there were several rounds shot into the bedrooms of my two small children. But I, that will not affect my ability to judge impartially." The juror indicated that the incident had happened about a year before and the perpetrators had not been apprehended. When asked directly whether he could set aside his experience and judge the case only on the evidence in court, Juror #15 responded affirmatively. He indicated that he would not find someone guilty because of his drive-by shooting incident and that he would be fair and impartial.
In overruling Leigh's assignment of error, we stated that Juror #15 had made clear that he would be able to be fair and impartial, despite the similar nature of the incidents, and that he could judge the case solely on the evidence provided in court. State v. Leigh, 2d Dist. Montgomery No. 28821, 2023-Ohio-91, ¶ 100. We concluded that defense counsel could have reasonably determined that he had no basis to seek Juror #15's dismissal for cause. Id. We further concluded that Leigh had no claim of ineffective assistance of counsel based on counsel's failure to exercise a peremptory challenge to remove Juror #15, reasoning that defense counsel's decision was within the realm of trial strategy, which we would not second-guess. Id. at ¶ 101.
Leigh argues that we should have found ineffective assistance of counsel based on the doctrine of "implied bias." Under that doctrine, bias may be presumed in "extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his [or her] deliberations under the circumstances." Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988); United States v. Banks, N.D.W.Va. No. 1:18CR50-3, 2023 WL 1786113, *6 (Feb. 6, 2023). Such circumstances include "where the prospective juror has been the victim of a crime or has experienced a situation similar to the one at issue in the trial." Hunley v. Godinez, 975 F.2d 316, 319 (7th Cir.1992). Emphasizing the similarities between Juror #15's drive-by shooting incident and the shooting of Mooty's residence, Leigh contends that Juror #15 should have been presumed to be biased and, therefore, excluded from the jury.
Upon consideration of Leigh's argument, we find no obvious error in our Opinion. It is well established that every litigant has the right to a trial by an impartial jury. E.g., State v. Anderson, 30 Ohio St.2d 66, 71, 282 N.E.2d 568, 571 (1972). To protect this right, Ohio provides defendants the right to exercise both challenges for cause and preemptory challenges. State v. Wilson, 2d Dist. Montgomery No. 29349, 2023-Ohio-27, ¶ 34, citing R.C. 2945.23, R.C. 2945.25, and R.C. 2945.26; see Crim.R. 24. Consistent with this process, "[v]oir dire serves the purposes of allowing the court and the parties to identify and remove jurors to ensure an impartial jury." State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, 165 N.E.3d 1198, ¶ 49; see also Anderson at 72. A prospective juror may be removed for cause upon a showing of "enmity or bias toward the defendant or the state," R.C. 2945.25(B), or if the juror "is unsuitable for any other cause to serve as a juror," R.C. 2945.25(O). See also Crim.R. 24(C)(9), (14).
A court will find actual bias when a prospective juror's unambiguous statement of partiality is "coupled with a lack of juror rehabilitation or juror assurances of impartiality." State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 74, quoting Miller v. Webb, 385 F.3d 666, 675 (6th Cir.2004). "A juror will be considered unbiased if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." (Citations omitted.) State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 58. When a prospective juror gives contradictory answers, the trial judge must determine the juror's true state of mind. Kirkland at ¶ 76.
"Although counsel and the trial court have broad discretion in determining a juror's ability to be impartial, the decision whether to seat a biased juror cannot be a discretionary or strategic decision. Thus, when a juror who has exhibited actual bias against a defendant is seated on the jury, the defendant's Sixth Amendment right to an impartial jury has been violated." Froman at ¶ 49. The Ohio Supreme Court has made clear, however, that "[w]hen a defendant bases an ineffective-assistance claim on an assertion that his counsel allowed the impanelment of a biased juror, the defendant 'must show that the juror was actually biased against him.'" (Emphasis added in Mundt.) State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 67, quoting Miller v. Francis, 269 F.3d 609, 616 (6th Cir.2001); State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 60.
In this case, Juror #15 expressed that he could be fair and impartial and would judge the case based on the evidence presented. While a prospective juror's assurances of impartiality are not binding on the trial court, see State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 98, there is no indication in the record that Juror #15 was actually biased due to his past experience. Accord, e.g., State v. T.L., 10th Dist. Franklin No. 19AP-196, 2020-Ohio-3430 (rejecting per se rule excluding victims of sexual assault from serving as jurors in cases involving sexual assault).
Leigh contends that we should apply the doctrine of implied bias to presume bias. Historically, challenges for cause in Ohio were governed by common law. As described by the Ohio Supreme Court:
At common law, jurors could be challenged propter affectum "because some circumstance, such as kinship with a party, render[ed] the potential juror incompetent to serve in the particular case." Black's Law Dictionary (8th Ed.2004) 245. Challenges propter affectum took two forms: principal challenges and challenges to the favor. 2 Blackstone, Commentaries on the Laws of England, *363. A principal challenge is one "where the cause assigned carries with it prima facie evident marks of suspicion either of malice or favor * * *, which, if true, cannot be overruled, for jurors must be omni exceptione majores" (above all challenge). Id. * * * In contrast to principal challenges, challenges to the favor permit a party to assert a challenge for cause when no principal challenge exists, but when the party "objects only some probable circumstances of suspicion, as acquaintance and the like." Id.Hall v. Banc One Mgt. Corp., 114 Ohio St.3d 484, 2007-Ohio-4640, 873 N.E.2d 290, ¶ 28-29. These principles have been incorporated into Ohio's statutory challenges for cause. See id. at ¶ 36.
As reflected in the case law cited by Leigh, the doctrine of implied bias now is more commonly a matter of federal law. See, e.g., Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); United States v. Torres, 128 F.3d 38, 41 (2d Cir.1997); Hunley v. Godinez, 975 F.2d 316 (7th Cir.1992). Unlike R.C. 2945.25 and Crim.R. 24(C), which set forth bases for challenging a juror for cause in a criminal case, Fed.R.Crim.P. 24 contains no analogous provision. The "implied bias" doctrine appears to fill that void, creating conclusive presumptions of bias in situations that, in Ohio, would be covered by "for cause" challenges under Crim.R. 24(C) and R.C. 2945.25. Applying relevant Ohio precedent, we find no obvious error in our conclusion that Leigh did not establish ineffective assistance of counsel.
IV. Sufficiency of the Evidence, Williams's Testimony, and Character Evidence
In his application, Leigh further claims that we made obvious errors in our conclusions that (1) there was sufficient evidence to support his convictions; (2) the trial court did not err in declaring Williams an unavailable witness; and (3) the trial court did not improperly allow character evidence. We disagree.
With respect to the sufficiency of the evidence against him, Leigh asserts that the State failed to present evidence of prior calculation and design for purposes of his homicide conviction. However, Leigh was convicted of murder in violation of R.C. 2903.02(B) and involuntary manslaughter in violation of R.C. 2903.04(A). Neither offense required evidence of prior calculation and design. We find no error, obvious or otherwise, in our conclusion that Leigh's convictions were based on sufficient evidence.
Leigh next claims that law enforcement took rudimentary steps to locate Williams, and she should not have been declared an unavailable witness. We thoroughly addressed this argument in Leigh's direct appeal, and Leigh's application simply reflects his disagreement with our conclusion. We find no basis to reconsider our conclusions that the detective made reasonable efforts to secure Williams's presence at trial, and that the trial court did not commit error, plain or otherwise, when it determined that Williams was unavailable.
Leigh further contends that the trial court erred in admitting character evidence. In his direct appeal, Leigh argued that the trial court impermissibly allowed testimony that Leigh planned to smoke marijuana, planned to rob people, and had a gun. We addressed each of those arguments in our Opinion, and his application fails to identify any obvious error in our reasoning. We will not reconsider our analysis of those issues.
V. Leigh's Warrantless Arrest
Finally, Leigh claims that his Fourth Amendment rights were violated when he was subjected to a warrantless arrest. However, Leigh did not challenge his arrest on direct appeal, and we did not address that issue. Consequently, an application for reconsideration, pursuant to App.R. 26(A), is not the appropriate vehicle for raising this new argument.
Leigh's application suggests that he is seeking "reconsideration" due to deficiencies by appellate counsel, pursuant to State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). Since 1993, the proper procedure for raising ineffective assistance of appellate counsel is the filing of an application for reopening pursuant to App.R. 26(B).
To warrant reopening a direct appeal, an applicant must demonstrate that "there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5). The Ohio Supreme Court has held that the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the appropriate standard to assess a request for reopening under App.R. 26(B)(5). State v. Leyh, 166 Ohio St.3d 365, 2022-Ohio-292, 185 N.E.3d 1075, ¶ 17; State v. Spivey, 84 Ohio St.3d 24, 701 N.E.2d 696 (1998), citing State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996).
Pursuant to this standard, Leigh must prove that his prior appellate counsel's performance was objectively unreasonable and that there was a "reasonable probability" that, but for counsel's unprofessional errors, the outcome of the appeal would have been different. See Leyh at ¶ 18; App.R. 26(B)(2)(d). In addressing Leigh's application, we must determine whether there is a "genuine issue" as to whether he was deprived of the effective assistance of counsel on appeal. App.R. 26(B)(5). A genuine issue exists if there are "legitimate grounds" to support a claim of ineffective assistance of appellate counsel. Leyh at ¶ 25.
Even if we were to construe Leigh's argument as an application for reopening, Leigh has not demonstrated that a genuine issue exists as to whether he was deprived of the effective assistance of counsel on appeal. "An arrest that is based on probable cause is a reasonable intrusion under the Fourth Amendment[.]" State v. Jordan, 166 Ohio St.3d 339, 2021-Ohio-3922, 185 N.E.3d 1051, ¶ 19, citing United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). However, unlike a warrantless arrest in a public place, a warrantless arrest conducted inside a suspect's home is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371 (1980). Therefore, "[t]he Fourth Amendment generally prohibits police from making a warrantless, nonconsensual entry into a suspect's home to make a felony arrest." State v. Cooks, 2d Dist. Clark No. 2016-CA-40, 2017-Ohio-218, ¶ 10, citing Payton at 588-589.
Fourth Amendment rights are personal rights, and they may not be asserted vicariously by third parties. Rakas v. Illinois, 439 U.S. 128, 133-134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); e.g., State v. Farra, 2d Dist. Montgomery No. 28950, 2022-Ohio-1421, ¶ 46. A person's ability to claim Fourth Amendment protection depends on whether the person has a legitimate expectation of privacy in the invaded place. See Rakas at 143; Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).
At trial, Detective David House testified that, on February 23, 2018, detectives went to the residence of Aleea Lee after receiving information that Leigh was there. After they surveilled the residence, House and a uniformed officer knocked on the front door. Williams ultimately answered the door, followed by Lee, and Lee permitted the officers to enter her home. Detective House located Leigh in Lee's home and arrested him.
In his application, Leigh concedes: "[E]ven though Mr. Leigh was arrested without an arrest warrant, the arrest was not made at his residence. As such, Mr. Leigh will likely be deemed to have been in a 'public place,' thus permitting a warrantless arrest." Leigh does not claim that he had a reasonable expectation of privacy in Lee's residence. Leigh, therefore, has not made a colorable claim that had a Fourth Amendment interest in the location where he was arrested. Consequently, he has not demonstrated that a genuine issue exists as to whether appellate counsel acted deficiently by failing to challenge Leigh's warrantless arrest on direct appeal.
VI. Conclusion
Leigh's application for reconsideration is denied.
SO ORDERED.
JEFFREY M. WELBAUM, PRESIDING JUDGE, CHRISTOPHER B. EPLEY, JUDGE, RONALD C. LEWIS, JUDGE