[Cite as State v. Lampley, 2012-Ohio-4071.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 10CA30
THOMAS LAMPLEY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from Richland County Court of
Common Pleas, Case No. 09-CR-650D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 5, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. OFFICE OF THE PUBLIC DEFENDER
PROSECUTING ATTORNEY MELISSA M. PRENDERGAST
RICHLAND COUNTY, OHIO Assistant State Public Defender
250 East Broad Street, Suite 1400
BY: JILL M. COCHRAN Columbus, Ohio 43215
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 10CA30 2
Hoffman, P.J.
{¶1} Defendant-appellant Thomas Lampley appeals his conviction entered by
the Richland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 28, 2009, Appellant was employed at the Mary McLeod
Bethune Center (“MBCC”) owned by his wife. On that day, Appellant and his wife
became involved in an argument, during which Appellant operated a vehicle in the
MBCC parking lot coming close to and almost hitting LaShona Bronson who was also
an employee of MBCC and an acquaintance of Appellant. A dispute then arose between
Bronson and Appellant as to how close Appellant was to hitting her, and Appellant
called Bronson a “bitch.” Bronson telephoned her husband, David Jermain Bronson, aka
J.B. Bronson. She then told Appellant “We going to have somebody to take care of you”
and “We got something for you.” J.B. subsequently came to the parking lot, but
Appellant had already left the scene.
{¶3} When Appellant returned to the MBCC parking lot, he encountered
LaShona Bronson and her husband, J.B., who approached Appellant at the vehicle
Appellant was driving. An altercation ensued. Appellant maintains J.B. approached the
vehicle and began striking Appellant through the open window. J.B.'s friend, Danny
McClain, had accompanied J.B. to the parking lot, and was outside the vehicle on the
driver's side. Appellant accessed a firearm stored in the MBCC's van, and used the
firearm to shoot and fatally wound J.B.
{¶4} Appellant was indicted by the Richland County Grand Jury on four counts:
murder, in violation of R.C. 2903.02(A), with a firearm specification; murder, in violation
Richland County, Case No. 10CA30 3
of R.C. 2903.02(B), with a firearm specification; having a weapon under disability, in
violation of R.C. 2923.13(A)(2); and tampering with evidence, in violation of R.C.
2921.12(A)(1).
{¶5} A jury trial commenced on February 23, 2010, and the jury returned a
verdict of guilty on all four counts. The jury also returned a finding of guilt on the firearm
specifications.
{¶6} The trial court imposed a sentence of fifteen years to life imprisonment on
count one, merging counts one and two. The court also imposed a five year sentence
on count three and a two year sentence on count four, to be served consecutively. An
additional three year mandatory consecutive prison sentence was imposed for the
firearm specifications, for a total sentence of twenty-five years to life.
{¶7} On March 10, 2010, Appellant filed a notice of appeal with this court in
Case No. 10–CA–30. Subsequently, on April 26, 2010, Appellant filed a petition to
vacate or set aside his sentence in the trial court.
{¶8} On August 10, 2010, the trial court overruled Appellant's petition for post-
conviction relief. On October 29, 2010, this Court dismissed Appellant's direct appeal for
failure to prosecute because Appellant failed to submit a brief.
{¶9} Appellant appealed the trial court's August 10, 2010 denial of his motion
for post-conviction relief. Via Judgment Entry of March 9, 2011, this Court affirmed the
trial court's denial of the motion for post-conviction relief. State v. Lampley, Richland
App. No. 10CA30, 2011-Ohio-3814.
{¶10} On December 9, 2011, this Court granted Appellant's application to
reopen the direct appeal finding Appellant's appellate counsel was ineffective in failing
Richland County, Case No. 10CA30 4
to raise a potentially meritorious claim. This Court reopened Appellant's appeal for the
limited purpose of considering whether trial counsel was ineffective in failing to request
a jury instruction on the Castle Doctrine, as codified in R.C. 2901.05 and R.C. 2901.09.
{¶11} Appellant assigns as error:
{¶12} “I. TRIAL COUNSEL WAS INEFFECTIVE FOR ARGUING COMMON-
LAW SELF-DEFENSE AND FOR FAILING TO REQUEST THAT THE JURY BE
INSTRUCTED ON THE CASTLE DOCTRINE, AS CODIFIED IN R.C. 2901.05 AND
R.C. 2901.09. SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION; STRICKLAND V.
WASHINGTON, 466 U.S. 668 (1984).
{¶13} “II. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO
RAISE A MERITORIOUS ASSIGNMENT OF ERROR IN MR. LAMPLEY’S DIRECT
APPEAL OF RIGHT. SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION;
EVITTS V. LUCEY, 469 U.S. 387 (1985).”
I. and II.
{¶14} Appellant's assigned errors raise common and interrelated issues;
therefore, we will address the arguments together.
{¶15} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio
adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373. These cases require a two-pronged analysis: First, we must determine
whether counsel's assistance was ineffective; whether counsel's performance fell below
Richland County, Case No. 10CA30 5
an objective standard of reasonable representation and was violative of any of his
essential duties to the client. If we find ineffective assistance of counsel, we must then
determine whether or not the defense was actually prejudiced by counsel's
ineffectiveness such that the reliability of the outcome of the trial is suspect. This
requires a showing that there is a reasonable probability that but for counsel's
unprofessional error, the outcome of the trial would have been different. Id. Trial counsel
is entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693
N.E.2d 267.
{¶16} Ohio Revised Code section 2901.05(B)(1) provides,
{¶17} "Subject to division (B)(2) of this section, a person is presumed to have
acted in self defense or defense of another when using defensive force that is intended
or likely to cause death or great bodily harm to another if the person against whom the
defensive force is used is in the process of unlawfully and without privilege to do so
entering, or has unlawfully and without privilege to do so entered, the residence or
vehicle occupied by the person using the defensive force.
{¶18} "***
{¶19} "(3) The presumption set forth in division (B) (1) of this section is a
rebuttable presumption and may be rebutted by a preponderance of the evidence."
{¶20} Revised Code section 2901.09, codifies specific circumstances under
which a person has no duty to retreat. The statute provides,
{¶21} "(B) For purposes of any section of the Revised Code that sets forth a
criminal offense, a person who lawfully is in that person's residence has no duty to
Richland County, Case No. 10CA30 6
retreat before using force in self-defense, defense of another, or defense of that
person's residence, and a person who lawfully is an occupant of that person's vehicle or
who lawfully is an occupant in a vehicle owned by an immediate family member of the
person has no duty to retreat before using force in self-defense or defense of another."
{¶22} Appellant maintains by failing to request the appropriate jury instructions
and failing to object to the instruction given, Appellant's trial counsel failed to present
what might have been a crucial statutory defense available to Appellant. Essentially,
Appellant contends his counsel's failure lead to Appellant having the burden of proving
he acted in self-defense; rather than the fact he acted in self-defense presumed
according to the Castle Doctrine.
{¶23} At trial herein, Angela Davis, a witness to the incident at issue, testified:
{¶24} “Q. Can you tell us what is the fact as to whether you heard loud voices
down in that area where Thomas and JB were?
{¶25} “A. Yes.
{¶26} “Q. Could you make out anything that was being said at that time?
{¶27} “A. No.
{¶28} “Q. Did you at any time ever see JB reach out or put his arm inside that
van?
{¶29} “A. Yes.
{¶30} “Q. How was he doing this? Could you describe that?
{¶31} “A. He was pointing his hand in there towards his face.
{¶32} “Q. And did there come a time then that that van driven by Thomas
Lampley moved from that area?
Richland County, Case No. 10CA30 7
{¶33} “A. Yes.
{¶34} “Q. And where did the van go at that point in time?
{¶35} “A. He went up and parked behind my vehicle.
{¶36} “Q. Did he have to go up and turn around?
{¶37} “A. Yes.
{¶38} “Q. Do you know where he turned around?
{¶39} “A. I assumed that he did a u-turn.
{¶40} “Q. But he parked behind your vehicle?
{¶41} “A. Yeah.
{¶42} “Q. Do you know a person named or called Danny McClain?
{¶43} “A. Yes.
{¶44} “Q. And did you see him there that day?
{¶45} “A. Yes.
{¶46} “Q. And once Thomas moved his van from where you described it an
proceeded up and ended up parking behind your vehicle, what did JB do at that time?
{¶47} “A. He ran down towards his vehicle again.
{¶48} “Q. The van?
{¶49} “A. The van.”
{¶50} Tr. at 806-808.
{¶51} On cross-examination, Davis testified:
{¶52} “A. I pulled my vehicle in at I77 East (sic) 2nd Street. When I got out, I
heard a bunch of yelling and commotion going on, and I walked down toward the
building, and I seen Sylvia and I saw Lashonna, and I asked them what was going on. I
Richland County, Case No. 10CA30 8
asked them who they was arguing with, they said Thomas. I asked them why would
you be arguing with the boss’ husband. I asked them did anybody call Miss Alverta.
They said something about her cell phone wasn’t working.
{¶53} “I looked over and I seen Thomas in the white van, and I seen JB. And JB
had his hand inside the window, just pointing. I don’t know what he was doing, but he
had his hand inside the window.”
{¶54} “* * *”
{¶55} Tr. at 827.
{¶56} Appellant himself testified at trial relative to the incident,
{¶57} “Q. When he mentioned for you to come on up here, was he yelling to get
your attention?
{¶58} “A. Yeah, he was. And I was going to go to my sister’s house, but I didn’t
want the confrontation to come down to her house. So that’s why I just said I might as
well go up there and talk to him.
{¶59} “Q. You say when you were talking and he’s telling you, “You crossed the
line, you disrespected my wife,” things like this - -
{¶60} “A. That’s what he was saying.
{¶61} “Q. - - during that time, he didn’t double up his fists and punch you, did
he?
{¶62} “A. No, he had his hands open like that, and straight.
{¶63} “Q. Jabbing at you?
{¶64} “A. Yes, sir.
{¶65} “Q. Did he make contact with you?
Richland County, Case No. 10CA30 9
{¶66} “A. Yes, he did.
{¶67} “Q. Where at?
{¶68} “A. Right above my glasses. He done it a couple times, and one time he
actually hit my glasses. So I had my glasses on my face.
{¶69} “* * *
{¶70} “Q. Okay. Now, at that point in time when you stopped there in the street
and JB comes out of the street and this altercation, whatever, goes on, between the two
of you - -
{¶71} “A. Yes, sir.
{¶72} “Q. - - did there come a time that he left your driver’s side door and walked
away?
{¶73} “A. No, he didn’t leave. Danny McClain came to the side door with him,
and when I looked and glanced out of the side mirror I seen Danny McClain
approaching the vehicle, too. So I pulled up and turned around - - actually I pulled into
my driveway at the office, but it was blocked. [emphasis added]
{¶74} “* * *
{¶75} “Q. Now, you’ve turned around, you have parked behind Angela Davis’
vehicle, and what happens then after you turn around, park the white van behind
Angela's car alongside the curb, what happens then?
{¶76} “A. I look up and JB is coming up on this side and he comes to my driver’s
side window. And I said, ‘Look, JB, I don’t want to fight with you. I already apologized
to you, I’m [sic] apologized to your wife.’
{¶77} “Q. Stop there a minute. Now, which window did he come to?
Richland County, Case No. 10CA30 10
{¶78} “A. He came to the passenger side.
{¶79} “Q. The passenger side window. Okay, go ahead.
{¶80} “A. So I kept on saying, ‘JB, I’m apologizing to you. I already apologized
to your wife. I don’t want to fight.’ I kept telling him, ‘I don’t want to fight with you at all.’
When I looked up, glanced this way, Danny McClain was approaching me from the
driver’s side, and he was close, about two feet off, but JB was right in my window.
{¶81} “Q. Was Danny McClain, was he egging this thing on, so to speak,
agitating, talking?
{¶82} “A. He kept on saying, ‘Just get out of the car, just get out of the car.’
{¶83} “Q. Talking to you?
{¶84} “A. Yeah.
{¶85} “Q. JB is at the open window of your passenger door?
{¶86} “A. Yes, sir.
{¶87} “Q. And did there come a time that you reached down and picked up the
gun and fired it in his direction?
{¶88} “A. Yes, there was.
{¶89} “Q. Why was that?
{¶90} “A. JB said, ‘If you ain’t going to get out I’m going to blow your head off
right here,’ and he reached behind his back like that, and that’s when I reached. I came
up and fired a shot. Then when I looked, Danny McClain was right on this side, so I got
out to go after him because he started running towards the hatchback that was open on
the SUV.
Richland County, Case No. 10CA30 11
{¶91} “When I see that he ran towards the SUV but I went and pursued him
and he started ducking, and he said, ‘I don’t got nothing, Cuz, I don’t got nothing.’ He
wasn’t no more a threat to me, so I turned around and went back to my vehicle.
{¶92} “Q. Now, during this verbal back and forth between you and JB, before
you picked the gun up and fired it as you described what he was doing - -
{¶93} “A. Yes, sir.
{¶94} “Q. - - did Angela Davis talk to you, do you recall?
{¶95} “A. She came up to the side window, which was what caused me to
glance and see Danny McClain, how close he was. She came up to the side window
and said, ‘Thomas, you all need to stop that.’ That’s all she got a chance to say. That’s
all she said to me. I heard her, but it was in the heat of that moment right before the
shot was fired, and so there wasn’t no way that I could respond or anything to what she
was saying. It was too late.
{¶96} “Q. Did you see JB fall?
{¶97} “A. Yeah, I did.
{¶98} “Q. And you got out of the van with the gun in your hand?
{¶99} “A. Yes, I did.
{¶100} “Q. And chased after McClain?
{¶101} “A. Yes, I did.
{¶102} “Q. And he said what to you, ‘Cuz, I don’t got nothing’?
{¶103} “A. He said, ‘I don’t got nothing Cuz, I don’t got nothing.’
{¶104} “Q. At that time you left and got back in your van?
{¶105} “A. Yes, I did.
Richland County, Case No. 10CA30 12
{¶106} “Q. Did you leave then.
{¶107} “A. Yes, I did.”
{¶108} Tr. at 857-859; 863-866.
{¶109} Appellant later testified,
{¶110} “Q. And at the time you bring it up and fire that round what’s JB doing?
{¶111} “A. JB is reaching.
{¶112} “Q. He was reaching?
{¶113} “A. Yes, sir.
{¶114} “Q. A reach that Cody Richards didn’t see?
{¶115} “A. Cody Richards didn’t see.
{¶116} “Q. But he should have saw it?
{¶117} “A. I don’t know. That’s what you say. I’m just saying that if he was
leaning inside my vehicle like that with his face inside my vehicle, why didn’t he get shot
in the face?
{¶118} “Q. that’s an excellent point because he got shot in the side, didn’t he?
{¶119} “A. That’s right.’
{¶120} Tr. at 919.
{¶121} Pursuant to the above testimony we find the evidence does not support a
conclusion J.B. was in the process of entering or inside the Appellant’s vehicle at the
time of the shooting. Rather, Appellant himself testified J.B. would not have been
leaning inside the vehicle at the time Appellant fired the gun because J.B. was shot in
the side, not in the face. And while Appellant claims J.B. had earlier reached inside
making contact with his face, this occurred prior to the shooting and after Appellant had
Richland County, Case No. 10CA30 13
moved his vehicle and parked behind Davis’ vehicle. The trial testimony of Angela
Davis and Appellant himself demonstrates although J.B. was “leaning” in the vehicle
during the first confrontation with J.B., the evidence indicates at the time of the
subsequent confrontation and shooting, J.B. approached the passenger side of the
vehicle, and was not in the process of entering or inside the vehicle. Appellant testified
J.B. was reaching behind his back, not reaching into his vehicle. Accordingly, we do not
find Appellant's trial counsel was ineffective in failing to request the jury instruction on
the Castle Doctrine, as codified in 2905.01 and 2901.09, where the evidence does not
warrant the instruction herein.
{¶122} Appellant's first and second assignments of error are overruled.
{¶123} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards ___________________
HON. JULIE A. EDWARDS
Richland County, Case No. 10CA30 14
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
THOMAS LAMPLEY :
:
Defendant-Appellant : Case No. 10CA30
For the reason stated in our accompanying Opinion, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS