Opinion
Court of Appeals No. E-18-048
11-13-2020
State of Ohio Appellee v. Joel T. Miles Appellant
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee. Eric J. Allen, for appellant.
Trial Court No. 2017-CR-369 DECISION AND JUDGMENT Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee. Eric J. Allen, for appellant. OSOWIK, J.
{¶ 1} This is an appeal from an August 7, 2018 judgment of the Erie County Court of Common Pleas, sentencing appellant to a total term of incarceration of 49 years to life, following appellant's jury convictions on one count of murder, in violation of R.C. 2903.02, an unclassified felony, with a repeat violent offender specification, two counts of having a weapon while under disability, in violation of R.C. 2923.13, felonies of the third degree, with firearms specifications, and one count of trafficking in cocaine, in violation of R.C. 2925.03, a felony of first degree.
{¶ 2} All of the above-described offenses, other than the drug trafficking offense, arise from the August 2, 2017 murder of Anthony Pearson at MacArthur Park in Sandusky. The cocaine trafficking offense occurred several days later.
{¶ 3} On August 2, 2017, appellant approached a parked vehicle in MacArthur Park. The victim was seated inside the vehicle. Appellant initiated a confrontation with victim, pulled out a firearm, and shot the victim in the head, killing him.
{¶ 4} On July 13-16, 2018, a three-day jury trial was conducted. Appellant was found guilty on all counts. On August 7, 2018, appellant was sentenced to a total term of incarceration of 49 years to life.
{¶ 5} For clarity, appellant does not allege on appeal that the underlying convictions were not supported by sufficient evidence, were against the manifest weight of the evidence, or that the sentence imposed was unlawful.
{¶ 6} The scope of this appeal is confined to appellant's challenge of the propriety of several trial court determinations in connection to witness issues at trial, and also a claim of ineffective assistance of trial counsel. For the reasons set forth below, this court affirms the judgment of the trial court.
{¶ 7} Appellant, Joel T. Miles, sets forth the following four assignments of error:
I. THE TRIAL COURT [ERRED] WHEN WITNESSES' OUT-OF-COURT STATEMENTS WERE PLAYED FOR THE JURY WITHOUT APPELLANT BEING ABLE TO CROSS EXAMINE THEM [] IN DIRECT VIOLATION OF CRAWFORD V. WASHINGTON.
II. APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSI[S]TANCE OF COUNSEL [].
III. THE TRIAL COURT [ERRED] WHEN IT CALLED COURT WITNESSES OVER THE OBJECTION OF THE DEFENSE IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION.
IV. THE TRIAL COURT [ERRED] WHEN HE FALSELY ACCUSED APPELLANT OF THREATENING A WITNESS.
{¶ 8} The following undisputed facts are relevant to this appeal. Prior to this incident, appellant moved to Sandusky in order to move in with his girlfriend.
{¶ 9} The record reflects that appellant's girlfriend has drug abuse issues and also reflects that appellant has a considerable criminal history, including multiple drug offenses.
{¶ 10} Appellant initially alleged a belief that the victim was supplying appellant's girlfriend with heroin. Appellant later acknowledged that the deceased was not his girlfriend's drug supplier.
{¶ 11} On the evening of August 2, 2017, appellant went into MacArthur Park, approached the victim, provoked a heated confrontation with the victim, shot the victim in the head at point-blank range, and killed him.
{¶ 12} On August 7, 2017, five days after the murder, appellant engaged in cocaine trafficking, resulting in his indictment on a separate offense which was packaged with the August 2, 2017 cases for trial purposes.
{¶ 13} A three-day jury trial, encompassing all pending offenses, was conducted from July 13-16, 2018. At the conclusion, the jury found appellant guilty on all counts. A presentence investigation was ordered.
{¶ 14} On August 7, 2018, the trial court sentenced appellant to a total term of incarceration of 49 years to life. This appeal ensued.
{¶ 15} In the first assignment of error, appellant maintains that the trial court erred in the admission of the out-of-court statements of three witnesses at a pretrial evidentiary hearing. We do not concur.
{¶ 16} It is well-established that appellate review of trial court decisions to admit hearsay evidence pursuant to the hearsay exception of Evid.R. 804(B)(6) is done on a de novo basis. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-19, 840 N.E.2d 151, ¶ 97.
{¶ 17} We note that although appellant's primary assertion in support of this assignment is a claim that the trial court's admission of the statements breached appellant's right of cross-examination, two of the three witnesses cited by appellant testified at trial, thereby negating claims of an inability to cross-examine those witnesses.
{¶ 18} With respect to the third witness, appellant speculates that this witness, "simply did not want to testify," thereby implying the lack of an adequate basis for the application of the Evid.R. 804(B)(6) hearsay exception to that witness.
{¶ 19} Contrary to appellant's position, the record reflects that this witness conveyed to the police that he did not want to testify in-person against appellant as the witness had learned that appellant appeared at the home of another witness shortly after the murder bearing a firearm, confronted the witness, and demanded to know if she had spoken with the police.
{¶ 20} The record consistently reflects a telephone conversation recorded by the police between several witnesses discussing the above-described incident.
{¶ 21} Here, the trial court allowed hearsay evidence to be offered against appellant pursuant to the "forfeiture by wrongdoing" exception set forth in Evid.R. 804(B)(6), which allows introduction of such hearsay evidence if the declarant is unavailable as a witness "due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying." In State v. Gonzales, 6th Dist. Wood Nos. WD-19-068, WD-19-069, 2020-Ohio-4495, ¶ 35, we recently noted the established jurisprudence of this rule:
Forfeiture by wrongdoing has long been recognized as an equitable exception to a defendant's constitutional right to confront the witnesses against him. See Giles v. California, 554 U.S. 353, 366, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); Reynolds v. United States, 98 U.S. 145, 158, 25
L.Ed.2d 244 (1878). Ohio codified this doctrine in 2001 as a hearsay exception under Evid.R. 804(B)(6). To admit statements under this exception, a prosecutor must show by a preponderance of the evidence that (1) the defendant engaged in wrongdoing that caused the witness to be unavailable and (2) one purpose for the wrongdoing was to make the witness unavailable to testify. See State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 106; State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 84.
{¶ 22} Like we did in Gonzales, we have reviewed the record in this case in its entirety. We conclude after that review that there has been no violation of appellant's right of confrontation.
{¶ 23} The record shows that the day after the murder, appellant unexpectedly appeared at the home of a witness bearing a firearm and interrogated the witness in order to learn whether that witness, or any witnesses, had spoken to the police.
{¶ 24} Similarly, another witness conveyed to police that on the night of the murder appellant asked that witness to monitor all of the other witnesses and alert appellant if any witnesses were communicating with the police.
{¶ 25} In addition, another witness disclosed to the police that she was fearful of retribution from appellant. The witness conveyed her fear that if she cooperated, she would, "end up dead."
{¶ 26} By contrast, appellant's arguments in support of the first assignment are rooted in conjecture.
{¶ 27} One of the witnesses cited by appellant in this assignment of error had advised the police that appellant had directly threatened to kill him if he "crossed" appellant.
{¶ 28} In response, appellant asserts that, "There is no indication that this [threat] related in any way to the testimony he would give at the trial of the appellant. There is no indication that [the threat by appellant] was intended to keep [the witness] from testifying." We are not persuaded.
{¶ 29} The record shows clear evidence of Evid.R. 804(B)(6) wrongdoing by appellant for purposes of preventing witness testimony. As such, we find that the disputed witness statements were properly admitted into evidence pursuant to the hearsay exception of Evid.R. 804(B)(6).
{¶ 30} We find appellant's first assignment of error not well-taken.
{¶ 31} In appellant's second assignment of error, appellant asserts that trial counsel was ineffective. We do not concur.
{¶ 32} It is well-established that in order to demonstrate ineffective assistance of counsel, one must satisfy a two-prong test. It must be shown that counsel's representation was deficient, falling below an objective standard of reasonableness, and it must further be shown that, but for those deficiencies, the outcome of the matter would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 33} In support of the second assignment of error, appellant cites the trial counsel decision not to seek severance of the August 7, 2017 cocaine trafficking offense from the August 2, 2017 murder offense. Appellant unilaterally concludes, "The murder charge has absolutely nothing to do with the drug charge."
{¶ 34} We note that the record is devoid of evidence in support of the conclusion that there was no connection between the offenses. Regardless, no evidence has been submitted reflecting that the outcome would have been different if the offenses had been tried separately.
{¶ 35} Joinder is liberally permitted to conserve judicial resources, reduce the chance of incongruous results in successive trials, and diminish inconvenience to the witnesses." State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992), citing State v. Torres, 66 Ohio St.2d 340, 343 (1981) and 2 LaFave & Israel, Criminal Procedure, Section 17.1, at 354-355 (1984).
{¶ 36} Notwithstanding this notion that joinder is favored, if it appears that a defendant or the state is prejudiced by such joinder for trial together of indictments, the trial court shall order an election or separate trial of counts or provide such other relief as justice requires. Crim.R. 14.
{¶ 37} To prevail on a claim of prejudicial joinder, the appellant must affirmatively demonstrate that (1) his rights were prejudiced by the failure to sever, (2) he provided the trial court with sufficient information to allow it to weigh the benefits of joinder against the defendant's right to a fair trial, and (3) the trial court abused its discretion by refusing to sever the charges for trial. State v. Jeffries, 1st Dist. Hamilton No. 2018-Ohio-2160, ¶ 57, citing Schaim at 59 (additional citation omitted). Appellant has not met his burden with respect to any of these elements.
{¶ 38} Appellant also maintains that trial counsel was ineffective for failing to request a mistrial. In support, appellant asserts that, "Counsel not only failed to request a mistrial, but he applauded the judge for making this spectacle at trial." (Emphasis added.)
{¶ 39} Appellant provides no evidence in support of this characterization. Appellant provides no evidence that meritorious grounds for a mistrial were present, but not pursued. Appellant has not shown that the outcome of this case would have been different had trial counsel moved for a mistrial.
{¶ 40} Appellant further objects to trial counsel's failure to request a bench trial on the two counts of having a weapon while under disability. Again, appellant presents no evidence in support of the notion that the outcome on those offenses would have been different pursuant to a bench trial.
{¶ 41} Lastly, appellant objects to trial counsel's decision to not utilize a peremptory strike to eliminate a specific juror from the panel. In support, appellant cites that juror's familiarity with the decedent and relatives of the decedent. The juror at issue never expressed any doubt as to the ability to render a fair and impartial judgment. The juror responded by indicating that knowledge of the victim would not have any "effect on me about judging who's right or wrong."
{¶ 42} Under Strickland, in essence, appellant must show that his trial, due to his attorney's ineffectiveness, was so demonstrably unfair that there is a reasonable probability that the result would have been different absent his attorney's deficient performance. Id. at 693.
{¶ 43} However, a court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" in reviewing a claim of ineffective assistance of counsel. Id. at 689. A properly licensed attorney in Ohio is presumed to execute his duties in an ethical and competent manner. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988). Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel. State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). Even if the wisdom of an approach is debatable, "debatable trial tactics" do not constitute ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 48-49, 402 N.E.2d 1189 (1980). State v. Watkins, 6th Dist. Lucas No. L-11-1085, 2013-Ohio-2030, ¶ 35-36.
{¶ 44} In this case, since appellant's counsel did not utilize a peremptory challenge to remove this specific juror, he thereby acquiesced in the juror being seated. See State v. Carter, 21 Ohio St.2d 212, 214, 256 N.E.2d 714 (1970).
{¶ 45} Appellant's argument is identical to the one presented to the Supreme Court of Ohio in State v. Dean, 146 Ohio St. 3d 106, 118, 2015-Ohio-4347, 54 N.E.3d 80, 103-104.
{¶ 46} In that case, appellant argued that his counsel was deficient for failing to exercise a peremptory challenge. Like the facts before us today, a juror had not exhibited a bias or prejudice toward the appellant and therefore, could not have been challenged for cause. The court stated:
Dean also failed to establish that his counsel were ineffective by failing to peremptorily challenge juror No. 357. Juror No. 357 exhibited neither bias nor prejudice. Therefore, counsel's failure to challenge this juror was not deficient. See State v. Lindsey, 87 Ohio St.3d 479, 721 N.E.2d 995 (2000).
{¶ 47} Similarly, in Lindsey, appellant argued that his counsel was deficient in the manner in which his peremptory challenges were utilized. The court succinctly stated:
As set forth above, however, the jurors who were seated exhibited neither prejudice nor bias and therefore it was unnecessary to excuse them. Thus, even if appellant's use of his peremptory challenges on these jurors was deficient, it had no effect on the outcome of the case. Because the seated jurors were neither biased nor prejudiced, their removal was unnecessary. Id. at 490.
{¶ 48} Likewise, appellant herein has failed to establish how the failure to exercise a peremptory challenge with respect to this particular juror had any effect on the outcome of his case. We find no merit in this argument. We find appellant's second assignment of error not well-taken.
{¶ 49} In appellant's third assignment of error, appellant alleges that the trial court abused its discretion by calling three court witnesses, pursuant to Evid.R. 614(A), to testify at trial. We do not concur.
{¶ 50} In order to demonstrate an abuse of discretion, one must demonstrate more than a mere error of law or judgment. It must be shown that the trial court's action was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 51} Evid.R. 614(A) establishes, "The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called."
{¶ 52} It is well-established that it is proper for a trial court to utilize Evid.R. 614(A) in order to call witnesses that the trial court determines are necessary, "[T]o allow for a proper determination in a case where a witness is reluctant or unwilling to testify." State v. Curry, 8th Dist. Cuyahoga No. 89075, 2007-Ohio-5721, ¶ 18. See State v. Schultz, 11th Dist. Lake No. 03-L-156, 2005-Ohio-345, ¶ 29.
{¶ 53} As set forth in response to appellant's first assignment of error, the record reflects evidence of intimidation by appellant directed towards the witnesses to this case, including the three Evid.R. 614(A) court-called witnesses: Pickens, Auterbridge, and Stowers.
{¶ 54} With respect to witness Pickens, appellant asserts that the testimony by Pickens that he was testifying, "[F]or my best friend I do it, that's why I'm here," constitutes convincing evidence that this witness was not reluctant to testify and should not have been called by the court to testify pursuant to Evid.R. 614. We do not concur.
{¶ 55} The record shows that Pickens came forward to testify pursuant to Evid.R. 614(A) as a way of honoring the decedent, despite fears and misgivings about doing do.
{¶ 56} With respect to witness Auterbridge, appellant concedes that this witness did not voluntarily testify. Appellant nevertheless concludes without supporting evidence that the, "questions asked by the prosecution were irrelevant." We are not persuaded.
{¶ 57} With respect to witness Stowers, appellant states, "There was nothing in her testimony that indicated she was not cooperating with law enforcement." We do not concur.
{¶ 58} The record reflects that appellant appeared at Stowers' home the day after the murder, displayed a firearm, and interrogated her regarding whether or not she had spoken with the police. We find that constitutes convincing evidence that this witness should be called pursuant to Evid.R. 614(A).
{¶ 59} Based upon the forgoing, we find that appellant has failed to demonstrate that the Evid.R. 614(A) calling of these witnesses by the trial court was unreasonable, arbitrary, or unconscionable. We find appellant's third assignment of error not well-taken.
{¶ 60} In appellant's fourth assignment of error, appellant maintains that the trial court abused its discretion in connection to reviewing physical gestures by appellant at trial. We do not concur.
{¶ 61} Evid.R. 611(A)(3) vests a trial court with the authority, during trial proceedings, to, "[P]rotect witnesses from harassment or undue embarrassment."
{¶ 62} Consistently, it is well-established that, "A trial court has discretion to control the flow of the trial, including questioning witnesses, in a search for the truth under Evid.R. 611." State v. Hugley, 2018-Ohio-1521, 111 N.E.3d 61, ¶ 30 (8th Dist.).
{¶ 63} In support of this assignment, appellant asserts that the trial court judge, "[I]nterrupted a murder trial, went into chambers, watched a video of the defendant scratching his head in order to find a way to remove the defendant under criminal rule 43. It is clear that the judge holds some hostile feeling towards the Appellant." (Emphasis added). The record is devoid of evidence in support of these claims.
{¶ 64} Contrary to appellant's attempt to characterize the events as prejudicial, the record of evidence reflects that upon observing appellant noticeably moving his arm during witness testimony, the trial court called counsel to the bench for a sidebar, outside of the hearing of the jury.
{¶ 65} During the sidebar, the trial court privately advised counsel that it would be reviewing the videotape in chambers in order to determine whether or not appellant may have been engaged in a nonverbal effort at witness intimidation.
{¶ 66} The testimony of the current witness then proceeded, and concluded. At the conclusion of the witness testimony, the witness was excused.
{¶ 67} At this juncture, the trial court recessed the case for lunch, and excused the jury for lunch. During the lunch recess, the trial court independently reviewed the video recording in chambers, determined that no violation had occurred, and privately advised all counsel of same before the trial resumed. This all occurred outside of the presence of the jury.
{¶ 68} Appellant asserts that, "This hypervigilance [on the part of the trial judge] belies an animosity or fear of the appellant that makes it impossible for the judge in this matter to be a fair and/or unbiased jurist." (Emphasis added.) The record reflects no evidence in support of this position.
{¶ 69} Acts or statements that suggest a trial judge's bias must be perceived by the jury to be prejudicial. State v. Wade, 53 Ohio St.2d 182, 187-188, 373 N.E.2d 1244 (1978), rev'd on other grounds Wade v. Ohio, 438 U.S. 911 (1978). All of the statements of which appellant complains occurred outside the hearing of the jury.
{¶ 70} We cannot attribute the actions of the trial judge under these circumstances to be prejudicial or to the impropriety that the appellant urges. State v. Siddell, 6th Dist. Erie No. E-05-094, 095, 2007-Ohio-1875, ¶ 19.
{¶ 71} We find appellant's fourth assignment of error not well-taken.
{¶ 72} On consideration whereof, the judgment of the Erie County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
Thomas J. Osowik, J.
Gene A. Zmuda, P.J.
CONCUR. /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE