[Cite as State v. Gerald, 2014-Ohio-3629.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA3519
:
vs. :
: DECISION AND JUDGMENT
: ENTRY
DAVID K. GERALD, :
:
Defendant-Appellant. : Released: 08/21/14
_____________________________________________________________
APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Julie Hutchinson,
Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Scioto County Common Pleas Court
judgment of conviction and sentence. A jury found David Gerald, defendant
below and Appellant herein, guilty of: (1) two counts of aggravated murder;
(2) murder; (3) aggravated arson; (4) arson; (5) three counts of tampering
with evidence; (6) kidnapping; and (7) conspiracy to commit aggravated
murder/murder. On appeal, Appellant raises eight assignments of error, as
follows:
Scioto App. No. 12CA3519 2
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED WHEN IT OVERRULED
APPELLANT’S MOTION TO DISMISS AND/OR TO
PREVENT THE STATE OF OHIO FROM INTRODUCING
EVIDENCE REGARDING THE ALLEGED MURDER
WEAPONS.
II. APPELLANT’S CONVICTIONS FOR (A) AGGRAVATED
MURDER, (B) FELONY MURDER, (C) MURDER, (D)
KIDNAPPING, (E) AGGRAVATED ARSON, (F) ARSON, AND
(G) TAMPERING WITH EVIDENCE WERE AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.
III. THE TRIAL COURT’S COMMENTS REGARDING THE
CITIZENSHIP STATUS OF THE DECEDENT, FELIPE LOPEZ,
WERE INDICATIVE OF JUDICIAL BIAS AND PREJUDICIAL
TO THE APPELLANT.
IV. THE TRIAL COURT ABUSED ITS DISCRETION IN
ADMITTING IMPROPER HEARSAY EVIDENCE FROM THE
STATEMENTS OF CO-DEFENDANTS RAYMOND LINKOUS
AND THOMAS STEINHAUER.
V. APPELLANT’S COUNSEL WAS INEFFECTIVE FOR FAILING
TO FILE A MOTION TO SUPPRESS, FAILING TO REQUEST
INDEPENDENT TESTING OF ALLEGED DNA EVIDENCE,
FAILING TO REQUEST A CURATIVE INSTRUCTION ON
HEARSAY, FAILING TO OBJECT TO IMPROPER OPINION
TESTIMONY, FAILING TO OBJECT TO THE TRIAL
COURT’S IMPROPER INSTRUCTION ON THE DECEDENT’S
IMMIGRATION STATUS, FAILING TO OBJECT TO THE
STATE OF OHIO PRESENTING AN ALTOGETHER
DIFFERENT THEORY OF EVENTS THAN WHAT WAS
DISCLOSED IN THEIR BILL OF PARTICULARS, AND
FAILED TO CALL ANY WITNESSES ON BEHALF OF THE
APPELLANT.
Scioto App. No. 12CA3519 3
VI. THE TRIAL COURT ERRED WHEN IT GRANTED THE
STATE OF OHIO’S MOTION IN LIMINE WHICH
PREVENTED THE APPELLANT FROM APPROPRIATELY
CROSS EXAMINING WITNESS STEVEN DRUMMOND.
VII. APPELLANT WAS DENIED DUE PROCESS OF LAW AND
THE RIGHT TO A FAIR TRIAL WHEN THE STATE OF OHIO
SET FORWARD A THEORY OF PROSECUTION AT TRIAL
THAT WAS INCONSISTENT WITH THE BILL OF
PARTICULARS PREVIOUSLY FILED.
VIII. CUMULATIVE ERRORS COMMITTED DURING
APPELLANT’S TRIAL DEPRIVED HIM OF A FAIR TRIAL
AND REQUIRE A REVERSAL OF HIS CONVICTIONS.”
FACTS
{¶2} The record before us reveals that on March 7, 2012, Appellant,
David Gerald, along with Thomas Steinhauer and Raymond “Jimmy”
Linkous met Felipe Lopez at Lopez's house. Lopez informed his wife, Kelly
Lopez, that he was going with Appellant, Steinhauer and Linkous to a
friend's house in Otway. Instead of Otway, however, Lopez was found dead
inside a pickup truck on Junior Furnace Powellsville Road, on the other side
of the county, the same pickup truck he left his house in with Appellant,
Steinhauer and Linkous. The record further indicates that it was determined
Lopez was stabbed with a knife, struck in the head with a hatchet, and
burned alive inside the pickup truck.
{¶3} After speaking with witnesses to the fire, it was quickly
determined that Raymond Linkous was involved in Lopez’ murder. After
Scioto App. No. 12CA3519 4
speaking with Linkous and others, the investigation led law enforcement to
suspect that Steinhauer and Appellant were also involved. When law
enforcement questioned Appellant, he initially denied any involvement;
however, by the end of his interrogation, he had admitted he was with
Lopez, Linkous and Steinhauer during the events which resulted in Lopez’
death, that he saw Steinhauer stab Lopez multiple times, and that Linkous
had set fire to the pickup truck with Lopez inside. Appellant, however,
denied contributing to Lopez’ murder first-hand, and specifically denied
striking Lopez in the head with a hatchet. The knife, hatchet, as well as two
cell phones belonging to the victim were eventually recovered and sent to
the Bureau of Criminal Investigation (BCI) for testing.
{¶4} On March 26, 2012, the Scioto County Grand Jury returned an
indictment that charged Appellant with (1) aggravated murder in violation of
R.C. 2903.01(A); (2) aggravated murder in violation of R.C. 2903.01(B); (3)
murder in violation of R.C. 2903.02(B); (4) aggravated arson in violation of
R.C. 2909.02(A)(1); (5) arson in violation of R.C. 2909.03(A)(1); (6) three
counts of tampering with evidence in violation of R.C. 2921.12(A)(1); (7)
kidnapping in violation of R.C. 2905.01(A)(2); and (8) conspiracy to commit
aggravated murder/murder in violation of R.C. 2923.01/2903.01 (A)(1)/
(A)(2)/ 2903.02(B). Appellant denied the charges and on April 4, 2012,
Scioto App. No. 12CA3519 5
filed a motion for a bill of particulars, and a motion to preserve evidence.
The trial court granted the motion to preserve evidence and a bill of
particulars was filed on May 1, 2012.
{¶5} Beginning on October 9, 2012, and continuing through October
11, 2012, the trial court held a jury trial. A few weeks prior to the beginning
of trial, and after Appellant’s co-defendant Raymond Linkous’ trial had
begun, the State informed the court that the hatchet and knife had been lost
after the Bureau of Criminal Identification and Investigation (BCI & I)
analyzed the items. Nevertheless, the State indicated that it intended to
present testimony from the analyst who tested the hatchet and knife. As a
result of the evidence being lost, on October 2, 2012, Appellant filed a
motion to dismiss, or in the alternative, requested an order prohibiting the
use of any and all testimony regarding the hatchet and knife. The trial court
denied Appellant’s motion and the matter proceeded to trial.
{¶6} At trial, the State presented the following evidence. On March 7,
2012, Lopez told his wife that he was going with Appellant, Steinhauer, and
Linkous to Otway to meet a friend. The four left in a red Chevy S-10 pickup
truck. Later that evening, witnesses observed a red or maroon Chevy S-10
pickup truck with one person inside and a white car, or silver PT Cruiser,
with two people inside, parked along Junior Furnace Powellsville Road.
Scioto App. No. 12CA3519 6
Shortly after 8:00 p.m., Jeff Huffman witnessed a vehicle being set on fire.
He testified that he saw something light, then heard an explosion. As he
approached, he testified that a PT Cruiser with one tail light out took off. He
testified he tried to approach the truck but that he could not get close as
“stuff started popping.” Huffman returned to his house and called 911. The
Green Township Fire Department responded to the call. Fire Chief, George
Moore, testified that the fire originated inside the cab, was very intense and
created a hazard to those around it. Then, when emergency personnel
arrived, they discovered a body inside the truck's passenger compartment,
was later determined to be Lopez. Law enforcement officials learned that the
pickup truck contained Lopez's body, and quickly suspected Raymond
Linkous’ involvement due to prior experience with him driving the S-10
pickup truck1 that was burned, as well as the silver PT Cruiser.
{¶7} When investigators arrived at Linkous’ residence, they found a
silver PT cruiser and verified that it did, indeed, have one tail light out.
They also observed a burn pile on the property. They found Linkous exiting
a trailer located in the rear of the property, in which Appellant resided.
Linkous appeared to have just showered, shaved his head, and also had nicks
that were bleeding, as well as singed eyebrows and burn marks on his face
1
It was determined that the S-10 pickup truck was owned by Debra Conn. When investigators found Conn
that evening, she initially reported the vehicle had been stolen, but then reported that Steinhauer had
borrowed it and failed to return it.
Scioto App. No. 12CA3519 7
and arms. Linkous was then taken into custody and transported to the
Sheriff’s Department for questioning. As a result of information gained
from Linkous, investigators located Steinhauer, who handed investigators a
bag of clothes and a knife upon their arrival. Steinhauer then led
investigators to an area in Kentucky where Lopez’s cell phones and a
hatchet were recovered.
{¶8} When investigators spoke with Appellant, he blamed Steinhauer
and Linkous for Lopez's murder. Appellant initially denied any knowledge
of how the murder occurred, but then admitted to being present and
witnessing Steinhauer stab Lopez and Linkous set fire to the truck. He
further admitted to being in the truck with the group while they drove from
Lopez’s residence, through Kentucky, back into Ohio, stopped at a gas
station and then went to Junior Furnace Powellsville Road. Appellant
denied participation in the murder, but admitted that the group had planned
to meet at Lopez’s house because Steinhauer owed him money for drugs.
Appellant specifically denied any knowledge of a hatchet and denied hitting
Lopez with a hatchet.
{¶9} The State presented expert testimony at trial related to the DNA
analysis that was performed on the evidence and the victim’s cause of death.
Dr. Bryan Casto, the deputy coroner and forensic pathologist who performed
Scioto App. No. 12CA3519 8
the autopsy on Lopez testified that he identified multiple stab wounds, as if
from a knife, and multiple chop wounds accompanied by crushing of the
skull, as if from a hatchet. He further testified that Lopez suffered inhalation
thermal injuries. Casto opined that the cause of death was multiple stab and
chop wounds of the head and torso, contributed to by inhalation thermal
injuries, which indicated Lopez was alive during the fire.
{¶10} Additionally, Raymond Peoples, a BCI & I forensic scientist
testified regarding his performance of DNA analysis on both the knife and
the hatchet. He testified that the DNA profile from the swab of the knife
blade was a mixture, with a major profile consistent with that of the victim.
He further testified that the DNA profile from the handle of the knife was a
mixture of two individuals, the victim and Steinhauer. With regard to the
hatchet, Peoples testified that the DNA profile from the swab of the blade
was consistent with the victim, and that the handle included a mixture
consistent with the victim, Appellant and Linkous. Thus, Appellant’s DNA
was present on the handle of the hatchet, despite Appellant having denied
knowledge of a hatchet.
{¶11} Finally, the State presented the testimony of Steven
Drummond, an individual who was in jail at the same time as Appellant.
Drummond testified that he was bunkmates with Appellant at one point and
Scioto App. No. 12CA3519 9
that during the time they were in jail together, Appellant stated, with respect
to his pending charges, that “[h]e hit him in the back of the head with a
hatchet.” He also testified that at one point, Appellant referred to the action,
stating that his head split open like a watermelon. Drummond further
testified that Appellant told him that he and the others went to Lopez’s house
in a borrowed vehicle with a hatchet and a knife in an effort to scare him so
he would not try to collect the money they owed him for drugs. Drummond
testified that Appellant told him that they disarmed Lopez and hit him in the
back of the head.
{¶12} On October 11, 2012, the jury found Appellant guilty of all
charges. On October 18, 2012, the trial court sentenced Appellant to: (1) life
without parole for the R.C. 2903.01(A) aggravated murder offense; (2) ten
years for committing aggravated arson; (3) eighteen months for committing
arson; (4) three years for each count of tampering with evidence in violation
of R.C. 2921.12(A)(1); and (5) ten years for kidnapping. The court merged:
(1) the R.C. 2903.01(B) aggravated murder, the R.C. 2903.02(B) murder,
and the conspiracy to commit aggravated murder/murder offenses with the
R.C. 2903.01(A) aggravated murder offense; and (2) the tampering with
evidence offense involving the motor vehicle with the arson offense. The
Scioto App. No. 12CA3519 10
court ordered the sentences to be served consecutively for a total sentence of
life without parole plus twenty-nine years. This appeal followed.
ASSIGNMENT OF ERROR I
{¶13} In his first assignment of error, Appellant contends that the trial
court erred when it overruled his motion to dismiss and/or prevent the State
from introducing evidence regarding the alleged murder weapons.
Appellant argues that the State, in losing the knife and hatchet, failed to
preserve evidence in accordance with the trial court’s order filed on April 5,
2012, and, as a result, he was deprived of due process. He further argues
that he was prevented from seeking independent DNA testing of the alleged
murder weapons, a hatchet and a knife, because the State consumed the
entire DNA sample prior to losing the weapons. The State responds by
contending that Appellant has not demonstrated bad faith on the part of the
State with respect to the loss of the evidence, and, as such, has not suffered a
deprivation of due process.
{¶14} Appellant cites R.C. 2933.82 "Securing biological evidence" in
support of his contention that the State had an obligation to preserve the
DNA evidence on the murder weapons that were in the State's possession.
There is no argument on appeal that the State had such an obligation.
Further, Appellant points out that he filed a motion to preserve evidence on
Scioto App. No. 12CA3519 11
April 4, 2012, which motion was granted by the trial court on April 5, 2012.
Again, the fact that the State was under a statutory obligation, as well as a
court ordered duty to preserve the biological evidence at issue herein is not
in dispute. The record reveals, however, that a knife and a hatchet, both
alleged murder weapons, were lost after DNA testing was performed by
BCI. Thus, based upon the following, the question at issue herein is whether
Appellant has demonstrated bad faith on the part of the State in failing to
preserve this evidence, which must be demonstrated in order to prove a
deprivation of due process.
{¶15} In State v. Lupardus, 4th Dist. Washington No. 08CA31, 2008-
Ohio-5960, ¶ 8, we stated as follows with respect to the standard of review
to be applied when reviewing a trial court's denial of a motion to dismiss on
the ground that the State failed to preserve evidence:
“ ‘We review de novo a trial court's decision involving a motion
to dismiss on the ground that the state failed to preserve
exculpatory evidence.’ (Cites omitted.) State v. Sneed,
Lawrence App. No. 06CA18, 2007-Ohio-853, ¶ 19.” But see,
State v. Fox, 4th Dist. Ross No. 11CA3302, 2012-Ohio-4805,
985 N.E.2d 532, ¶ 22 (declining to follow the reasoning in
Lupardus employing a de novo review and instead employing a
Scioto App. No. 12CA3519 12
"hybrid standard of review that appellate courts apply to
suppression motions and motions to dismiss on the basis of a
violation of a defendant's speedy trial right[.]”)2
Despite the apparent departure from this standard in State v. Fox, we
continue to apply a de novo standard of review to a trial court's denial of a
motion to dismiss on the ground that the State failed to preserve evidence.
{¶16} The Due Process Clause of the Fourteenth Amendment to the
United States Constitution provides that no State shall “deprive any person
of life, liberty, or property, without due process of law[.]” To determine if a
defendant's alleged due process rights are violated, courts characterize lost
or destroyed evidence as (1) “materially exculpatory” or (2) “potentially
useful.” See, State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878
N.E.2d 1. “The Due Process Clause protects a defendant from being
convicted of a crime where the state has failed to preserve materially
exculpatory evidence or has destroyed, in bad faith, potentially useful
evidence.” (Cite omitted.) Sneed at ¶20.
2
State v. Fox involved the review of a trial court's decision regarding a motion to dismiss on the basis that
the state failed to disclose materially exculpatory evidence. Fox at ¶22. The Fox court cited Lupardus in
support of its departure from applying a de novo standard of review, characterizing the issue in Lupardus as
one in which the state failed to produce exculpatory evidence. Id. However, Lupardus actually involved a
situation where a dashboard tape from a dashboard cam was accidentally erased while trying to make a
copy of it. Lupardus at ¶3. Thus, the issue in Lupardus was more appropriately characterized as a failure
to preserve evidence, rather than a failure to produce evidence, which we believe is the appropriate
characterization of the situation sub judice. As such, we apply a de novo standard of review in accordance
with our prior reasoning in Lupardus.
Scioto App. No. 12CA3519 13
{¶17} Here, Appellant has conceded that the evidence at issue is not
materially exculpatory. In his motion to dismiss that was filed on October 2,
2012, Appellant stated that the question of whether the lost evidence was
materially exculpatory was not at issue. Appellant instead argued that the
evidence at issue was potentially useful and that the State had acted in bad
faith by losing it in violation of a court order requiring it preserve the
evidence. However, “[u]nless a defendant can show that the state acted in
bad faith, the state's failure to preserve potentially useful evidence does not
violate a defendant's due process rights.” Geeslin, supra, syllabus, following
Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281
(1988).
{¶18} Appellant has equated the State's loss of the knife and hatchet to
bad faith, essentially arguing it amounted to bad faith, per se, to lose the
evidence when there was an order to preserve evidence. We reject this
argument and instead find that the State's actions in losing the evidence did
not rise to the level of bad faith, which has been defined as follows:
“ ‘The term “bad faith” generally implies something more than
bad judgment or negligence. “It imports a dishonest purpose,
moral obliquity, conscious wrongdoing, breach of a known duty
through some ulterior motive or [ill] will partaking of the nature
Scioto App. No. 12CA3519 14
of fraud. It also embraces the actual intent to mislead or deceive
another.” State v. Buhrman (Sept. 12, 1997), Greene App. No.
96 CA 145, unreported (citations omitted).' [State v. Christian
2nd Dist. Montgomery No. 17824, 1999 WL 1206651 (Dec. 17,
1999.]” State v. Barron, 2nd Dist. Greene No. 10CA28, 2011-
Ohio-2425, ¶ 17.
Aside from its contention that the mere act of losing the evidence constitutes
bad faith, Appellant has failed to demonstrate bad faith on the part of the
State. In fact, the record reveals that this loss of evidence was simply
accidental, and there is nothing in the record to suggest otherwise. For
instance, Paul Blaine, the officer in charge of the Sheriff’s evidence room,
testified that in twelve years he had never lost a piece of evidence.
{¶19} Appellant further argues that he was deprived of due process
because he was unable to obtain independent testing of the DNA evidence
on the alleged murder weapons due to the State's consumption of the DNA
sample during its testing, which was conducted prior to the loss of the
weapons. However, as pointed out by the State:
"The consumptive testing of evidence violates a defendant's due
process rights only when the evidence possesses an exculpatory
value that was apparent before the evidence was destroyed."
Scioto App. No. 12CA3519 15
State v. Rios, 2nd Dist. Clark No. 10CA0099, 2012-Ohio-3289,
*3; citing California v. Trombetta, 467 U.S. 479, 488-489, 104
S.Ct. 2528, 81 L.Ed.2d 413 (1984).
Further, as reasoned by the Eighth District Court of Appeals in State v.
Abercrombie, 8th Dist. Cuyahoga No. 88625, 2007-Ohio-5071, ¶ 23:
"Unless a criminal defendant can show bad faith, the State's
failure to preserve potentially useful evidence-of which no more
can be said than that it could have been subjected to tests, the
results of which might have exonerated the defendant-does not
constitute a violation of the due process clause of the United
States Constitution's Fourteenth Amendment. Arizona v.
Youngblood (1988), 488 U.S. 51."
{¶20} Here, we have already determined that Appellant has not
demonstrated bad faith on the part of the State and that the State's accidental
loss of the evidence, despite the existence of a court order requiring it to
preserve the evidence at issue, does not rise to the level of bad faith. With
respect to the consumptive testing of the DNA evidence that was collected
prior to the loss of the knife and hatchet, the State's forensic scientist,
Raymond Peoples, testified that the DNA evidence collected from the knife
Scioto App. No. 12CA3519 16
handle and hatchet handle was consumed during testing. Mr. Peoples
testified at trial as follows:
“Q. * * * And then there are some listed at the end of your
report under remarks, that say they were consumed
during analysis. What does that mean?
A. There are some samples -- usually when there is a body
fluid, and a good amount of it, such as blood, a lot of
times we don't need to consume the sample to do our
testing, but there are times where in the process of testing
we need to consume, whether it cutting -- using the
whole outer layer or the swab. So we list it in our report
as consumed during analysis.
Q. Okay. So if that's consumed we would not get an
envelope back, is that correct?
A. No, you would not.”
The trial transcript further reflects that the samples taken from the knife and
hatchet handles were consumed during analysis. However, there is nothing
in the record to indicate any bad faith on the part of the State with respect to
the consumptive testing, but rather that consumption of the sample is
sometimes required during testing.
Scioto App. No. 12CA3519 17
{¶21} Finally, Appellant cannot demonstrate that the evidence at issue
possessed any exculpatory value prior to its loss. As discussed above,
Appellant has not argued that the evidence was materially exculpatory, but
rather, that it was potentially useful. Additionally, if anything, the evidence
was inculpatory, as the testing performed by the State indicated the presence
of Appellant's DNA on the hatchet, when Appellant claimed that he did not
touch the hatchet.
{¶22} Based upon the foregoing, we find no merit to Appellant's first
assignment of error and it is, therefore, overruled.
ASSIGNMENT OF ERROR II
{¶23} In his second assignment of error, Appellant contends that all of
his convictions, with the exception of his conviction for conspiracy to
commit aggravated murder/murder, were against the manifest weight and
sufficiency of the evidence. Thus, we begin our analysis by considering the
proper standards of review when faced with sufficiency and manifest weight
challenges.
{¶24} “ ‘When an appellate court concludes that the weight of the
evidence supports a defendant's conviction, this conclusion necessarily
includes a finding that sufficient evidence supports the conviction.’ ” State v.
Leslie, 4th Dist. Nos. 10CA17, 10CA18, 2011-Ohio-2727, ¶ 15; quoting
Scioto App. No. 12CA3519 18
State v. Puckett, 191 Ohio App.3d 747, 2010-Ohio-6597, 947 N.E.2d 730, ¶
34 (4th Dist.). Thus, a conclusion that a conviction is supported by the
weight of the evidence will also determine the issue of sufficiency.3 Leslie
at ¶ 15. Accordingly, we address whether Appellant's convictions are against
the manifest weight of the evidence.
{¶25} When considering whether a criminal conviction is against the
manifest weight of the evidence, an appellate court must review the entire
record, weigh the evidence and all reasonable inferences, and consider the
credibility of witnesses to determine “whether in resolving conflicts in the
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. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854
N.E.2d 1038, ¶ 193.
{¶26} The reviewing court must bear in mind; however, that
credibility generally is an issue for the trier of fact to resolve. See State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). “ ‘If the prosecution
presented substantial evidence upon which the trier of fact reasonably could
conclude, beyond a reasonable doubt, that the essential elements of the
offense had been established, the judgment of conviction is not against the
3
As we noted in Leslie, the inverse proposition is not always true. For example, a conviction may pass a
sufficiency analysis yet still fail to satisfy a manifest weight of the evidence challenge. State v. Thompkins,
78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
Scioto App. No. 12CA3519 19
manifest weight of the evidence.’ ” State v. Tyler, 196 Ohio App.3d 443,
2011-Ohio-3937, 964 N.E.2d 12, ¶ 43 (4th Dist.); quoting Puckett at ¶ 32.
Thus, we will exercise our discretionary power to grant a new trial only in
the exceptional case where the evidence weighs heavily against the
conviction. Drummond at ¶ 193.
{¶27} Here, Appellant was convicted of ten felony offenses and he
now raises sufficiency and manifest weight challenges to nine of the ten
convictions. Specifically, Appellant claims his convictions for two counts of
aggravated murder, murder, aggravated arson, arson, three counts of
tampering with evidence and kidnapping were based upon insufficient
evidence and were against the manifest weight of the evidence. He does not
challenge his conviction for conspiracy to commit murder.
Counts One, Two, Three, Four and Five: Aggravated Murder,
Aggravated Murder, Murder, Aggravated Arson, Arson
{¶28} Appellant was charged and convicted of two counts of
aggravated murder, murder, aggravated arson and arson and although he was
indicted as a principal offender, the State pursued a complicity theory at
trial. R.C. 2903.01(A) and (B) set forth the essential elements of aggravated
murder as charged in counts one and two of Appellant's indictment:
Scioto App. No. 12CA3519 20
"(A) No person shall purposely, and with prior calculation and
design, cause the death of another or the unlawful termination
of another's pregnancy.
(B) No person shall purposely cause the death of another or the
unlawful termination of another's pregnancy while committing
or attempting to commit, or while fleeing immediately after
committing or attempting to commit, kidnapping, rape,
aggravated arson, arson, aggravated robbery, robbery,
aggravated burglary, burglary, trespass in a habitation when a
person is present or likely to be present, terrorism, or escape."4
(Emphasis added).
Here, the indictment with respect to count two, aggravated murder in
violation of R.C. 2903.01(B), specified predicate offenses of
aggravated arson and arson.
{¶29} Appellant was also charged and convicted of one count of
murder. R.C. 2903.02 (B) sets forth the essential elements of murder as
charged in count three of Appellant's indictment:
4
R.C. 2901.22(A) provides as follows: “A person acts purposefully when it is his specific intention to
cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature,
regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in
conduct of that nature”.
Scioto App. No. 12CA3519 21
"(B) No person shall cause the death of another as a proximate
result of the offender's committing or attempting to commit an
offense of violence that is a felony of the first or second degree
and that is not a violation of section 2903.03 or 2903.04 of the
Revised Code."
Here, the predicate offenses for the murder charge, as specified in the
indictment, were "Felonious Assault and/or Aggravated Arson or
Arson[.]"
{¶30} Appellant was also charged and convicted of one count of
aggravated arson and one count of arson. R.C. 2909.02(A)(1) sets forth the
essential elements of aggravated arson, as charged in count four of
Appellant's indictment:
"(A) No person, by means of fire or explosion, shall knowingly
do any of the following:
(1) Create a substantial risk of serious physical harm to any
person other than the offender[.]"
R.C. 2909.03(A)(1) sets forth the essential elements of arson, as charged in
count five of Appellant's indictment:
"(A) No person, by means of fire or explosion, shall knowingly
do any of the following:
Scioto App. No. 12CA3519 22
(1) Cause, or create a substantial risk of, physical harm to any
property of another without the other person's consent[.]"
{¶31} The State's theory at trial was that Appellant and two others,
Raymond Linkous and Thomas Steinhauer, aided and abetted and conspired
with one another in murdering the victim, Felipe Lopez. Thus, although
Appellant was charged with the principal offenses of aggravated murder,
murder, aggravated arson and arson, the State's theory at trial was one of
complicity and the jury was instructed accordingly.
{¶32} Under R.C. 2923.03(F), a defendant “may be convicted of [an]
offense upon proof that he was complicit in its commission, even though the
indictment ‘is stated * * * in terms of the principal offense’ and does not
mention complicity.” State v. Herring, 94 Ohio St.3d 246, 251, 762 N.E.2d
940 (2002). R.C. 2923.03 defines complicity and provides, in relevant part,
as follows:
“(A) No person, acting with the kind of culpability required for
the commission of an offense, shall do any of the following: * *
*
(2) Aid or abet another in committing the offense;
Scioto App. No. 12CA3519 23
(3) Conspire with another to commit the offense in violation of
section 2923.01 of the Revised Code.”5
In order to support a conviction for complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), it has been held that the evidence must
show that the defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. State v. Johnson, 93
Ohio St.3d 240, 245, 754 N.E.2d 796 (2001), syllabus. The defendant's
intent may be inferred from the circumstances surrounding the crime. Id.;
see also State v. Markins, 4th Dist. Scioto No. 10CA3387, 2013-Ohio-602,
¶32. Further, the defendant's “ ‘[p]articipation in criminal intent may be
inferred from presence, companionship and conduct before and after the
offense is committed.’ ” Johnson at 245; quoting State v. Pruett, 28 Ohio
App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971); see also Markins at ¶33.
{¶33} As such, we must consider the circumstances surrounding the
victim’s death as well as Appellant's presence, companionship and conduct
before and after the victim’s death to determine whether Appellant
supported, assisted, encouraged, cooperated with, or advised the principals,
in this case Steinhauer and Linkous, in the aggravated murder and murder of
5
R.C. 2923.01 governs conspiracy to commit aggravated murder/murder, of which Appellant was
convicted in count ten of his indictment. Appellant does not challenge his conspiracy conviction on appeal.
Scioto App. No. 12CA3519 24
the victim, as well as the aggravated arson and arson that served as the
predicate offenses, if we are to conclude Appellant was complicit under
(A)(2) of the complicity statute. We further note, however, that section
(A)(3) of the complicity statute provides that complicity may be proven by
demonstrating that Appellant conspired with the others to commit the
offenses, in violation of section 2923.01 of the Revised Code.
{¶34} R.C. 2923.01 governs conspiracy, and in this case, conspiracy
to commit aggravated murder and murder, per count ten of Appellant’s
indictment. Appellant was indicted and convicted of conspiracy to commit
aggravated murder and murder and he does not challenge that conviction on
appeal. Thus, he has conceded that he conspired to commit the crimes of
aggravated murder and murder, and implicit in that concession, aggravated
arson and arson, by virtue of the fact that those were the predicate offenses
for the aggravated murder and murder charges for which Appellant has
conceded he conspired to commit. Thus, by conceding his conspiracy
conviction, he has also conceded to the (A)(3) prong of the complicity
statute. Having conceded to being complicit in these crimes, Appellant
cannot now complain of being convicted as a principal offender of the
crimes of aggravated murder, murder, aggravated arson and arson.
Scioto App. No. 12CA3519 25
{¶35} However, assuming Appellant has not waived his right to
challenge these convictions based upon sufficiency and manifest weight
grounds, we nevertheless conclude there was ample evidence to support a
verdict that Appellant was complicit in the killing of Felipe Lopez and that
Appellant purposefully, and with prior calculation and design, caused the
death of Felipe Lopez, and also that Appellant was complicit in purposefully
causing Felipe Lopez’ death while committing or attempting to commit
aggravated arson and arson. By Appellant’s own admissions during his
interrogation and through the testimony of Steven Drummond, Appellant
was in the truck with Lopez, Steinhauer and Linkous, with weapons, for the
purpose of at least intimidating Lopez, and which ultimately resulted in
Lopez being stabbed, struck with a hatchet and burned alive. Additionally,
the State introduced evidence that the truck was destroyed, which was
owned by Debra Conn, and that in trying to put the fire out, several people
were put at risk, including Jeff Huffman and the fire department personnel
who responded to the blaze.
{¶36} During his interrogation, Appellant admitted his presence 1)
during the stabbing; 2) during the trip to Kentucky to dispose of evidence; 3)
during the stop at the gas station; 4) and during the burning of the victim and
the truck. Further, although Appellant denied that he struck the victim with
Scioto App. No. 12CA3519 26
a hatchet and denied knowledge of a hatchet, Drummond’s testimony
contradicted Appellant’s denial, and the evidence at trial indicated that
Appellant’s DNA was present on the handle of the hatchet, which confirmed
the State’s theory. Finally, after the commission of the crime, Linkous was
found exiting Gerald’s residence, where it was obvious Linkous had
showered and shaved his singed hair.
{¶37} In light of the foregoing, we find there was substantial evidence
upon which the trier of fact reasonably could conclude, beyond a reasonable
doubt, that the essential elements of the offenses of aggravated murder,
murder, aggravated arson and arson had been established, and that Appellant
and the others were in complicity by virtue of their presence, cooperation,
companionship and conduct both before and after the victim’s death. As
such, the judgments of conviction on counts one, two, three, four and five
are not against the manifest weight of the evidence. Further, as set forth
above, this conclusion necessarily means sufficient evidence supports his
convictions.
Counts Six, Seven and Eight:
{¶38} Appellant was charged and convicted of three counts of
tampering with evidence. R.C. 2929.12 (A)(1) sets forth the essential
Scioto App. No. 12CA3519 27
elements of tampering with evidence as charged in counts six, seven and
eight of Appellant's indictment:
"(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be
instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document,
or thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation."
{¶39} Appellant was convicted of three counts of tampering with
evidence based upon the State’s allegations that he 1) destroyed clothing and
other personal items, with purpose to impair their availability as evidence; 2)
destroyed and concealed cell phones, a knife and a hatchet, with purpose to
impair their availability as evidence; and 3) destroyed a motor vehicle, with
purpose to impair its availability as evidence.
{¶40} The State presented evidence at trial that Appellant conspired
with Linkous and Steinhauer in the commission of the aggravated murder of
Lopez. The record contains evidence that Appellant was present and
cooperated with those individuals in killing Lopez, driving to Kentucky,
where the murder weapons and the victim’s cell phones were destroyed and
concealed and ultimately recovered, and then driving back to Ohio, stopping
Scioto App. No. 12CA3519 28
at a gas station and then meeting at a location on Junior-Furnace
Powellsville Road, where the truck containing Lopez’ severely injured body
was set on fire and destroyed. Appellant admitted to being present during
the trip to Kentucky where the items were disposed of, and based upon his
conduct and the facts in evidence we can infer his participation in the
destruction and concealment of that evidence. Further, despite Appellant’s
denial in the participation of setting the truck on fire, we can infer from his
conduct his support, assistance and cooperation in setting the fire.
{¶41} Finally, although Appellant denied that he destroyed the
clothing he wore during the commission of the crimes, the presence of a
burn pile at the Gerald and Linkous’ residence and the fact that their clothing
was never recovered supports an inference that they burned their clothes.
This is bolstered by the fact that both Gerald and Linkous appeared to have
just showered when law enforcement encountered them and Linkous had
shaved his hair and had singe marks on his body. Further, Steinhauer, who
was found in a different location, one without a burn pile, had bagged his
blood-saturated clothes up and handed them to law enforcement when they
arrived. Appellant’s clothes were never recovered and we conclude that
evidence supports an inference that they were burned in the burn pile.
Scioto App. No. 12CA3519 29
{¶42} At the time Appellant would have tampered with evidence, an
official proceeding or investigation was not yet in progress; however, “
‘[w]hen an offender commits an unmistakable crime, the offender has
constructive knowledge of an impending investigation of the crime
committed.’ ” State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-
3170, ¶ 89; quoting State v. Schmitz, 10th Dist. No. 05AP-200, 2005-Ohio-
6617, ¶ 17. Further, with respect to the element of the offense requiring
purpose to impair the value or availability of the evidence in such a
proceeding or investigation, “the offender does not have to actually impair
the evidence's value or availability. It is sufficient that the offender alters,
destroys, conceals, or removes the item ‘with purpose’ to impair its value or
availability.” Id. at ¶ 91. Thus, it makes no difference that the cell phones
and murder weapons were ultimately recovered.
{¶43} Here, the jury could logically conclude that the essential
elements of tampering with evidence were proven with respect to counts six,
seven and eight of Appellant’s indictment. As such, Appellant's convictions
are not against the manifest weight of the evidence. As set forth above, this
conclusion necessarily means sufficient evidence supports his convictions.
Accordingly, Appellant's sixth, seventh and eighth assignments of error are
without merit and are, therefore, overruled.
Scioto App. No. 12CA3519 30
Count Nine: Kidnapping
{¶44} Appellant was charged and convicted of one count of
kidnapping. R.C. 2905.01 (A)(2) sets forth the essential elements of
kidnapping as charged in count nine of Appellant's indictment:
“(A) No person, by force, threat, or deception, or, in the case
of a victim under the age of thirteen or mentally incompetent,
by any means, shall remove another from the place where the
other person is found or restrain the liberty of the other person,
for any of the following purposes:
***
(2) To facilitate the commission of any felony or flight
thereafter[.]”
{¶45} Appellant contends that the evidence at trial indicates that he
left Lopez’s house in the bed of the truck and remained in the bed of the
truck throughout the ordeal. He further argues that Lopez entered the truck
voluntarily and that there was no evidence introduced that Lopez was forced
into the truck or that his liberty was restrained after he entered the truck.
The State contended at trial, and also on appeal, that Appellant and his co-
defendants attacked Lopez at some point after they all left in the truck and
then restrained Lopez’s movement thereafter by transporting him over forty
Scioto App. No. 12CA3519 31
five miles to the location in which he was burned, unbeknownst to them,
alive.
{¶46} In State v. Linkous, 4th Dist. No. 12CA3517, 2013-Ohio-5853, a
decision issued by this Court in connection with the appeal of one of
Appellant’s co-defendants, we reasoned as follows at ¶ 37 with respect to
the same argument related to the kidnapping conviction:
“In State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6405, 858
N.E.2d 1144 (2006), the Ohio Supreme Court held that
sufficient evidence supported a defendant's kidnapping
conviction, even though the defendant mistakenly believed the
victim was dead before he ‘gagged and hogtied the victim’ and
concealed the victim's body in the basement. In Johnson, the
defendant was charged with aggravated murder and kidnapping
of a thirteen-year old child. On appeal, he asserted that
sufficient evidence did not support his kidnapping conviction
because the evidence showed the he ‘beat [the victim] to death’
in the living room before he restrained the victim and moved
his body to the basement. Id. at ¶ 11, 942 N.E.2d 1061. The
defendant argued ‘that he could not have kidnapped [the
victim], because [the victim] died before [the defendant]
Scioto App. No. 12CA3519 32
hogtied him.’ Id. at ¶ 40, 942 N.E.2d 1061. In rejecting the
defendant's argument, the court explained: ‘ * * * [T]he
evidence does not support [the defendant's] contention that [the
victim] had died before being restrained. [The coroner] testified
that [the victim] was still alive when [the defendant] tied his
hands and feet, and this testimony supports the jury's finding
that [the defendant] restrained [the victim] of his liberty.’ Id. at
¶ 41, 942 N.E.2d 1061.”
{¶47} We determined that the facts in Linkous involved facts similar
to Johnson in that the evidence indicated that the victim was not dead when
the appellant and his accomplices restrained him. Id. at ¶ 38. Based upon
those facts, we determined in Linkous that “the evidence support[ed] the
jury's finding that appellant and his accomplices restrained the victim's
liberty.” Id. We find the reasoning employed in both Johnson and Linkous
to be applicable here where the State presented expert testimony that even
though Lopez had sustained severe stab and chop wounds, he was still alive
during the fire. Thus, we conclude the evidence supports the jury’s finding
that Appellant and his accomplices restrained the victim’s liberty. Again,
even if Appellant was not driving the truck and even if Appellant did not
light the match, we have sustained his convictions for aggravated murder,
Scioto App. No. 12CA3519 33
murder and aggravated arson under a theory of complicity. As such, we also
conclude that his conviction for kidnapping is not against the manifest of the
evidence and is supported by sufficient evidence.
{¶48} Having found no merit to these sufficiency and manifest weight
arguments, Appellant’s second assignment is overruled.
ASSIGNMENT OF ERROR III
{¶49} In his third assignment of error, Appellant contends that the
trial court’s comments regarding the citizenship status of the victim, Felipe
Lopez, were indicative of judicial bias. Appellant contends that a statement
made, or rather, a curative instruction given, by the trial court to the jury was
prejudicial. The State responds by acknowledging the statement made by
the trial court, but contends that it did not rise to the level of judicial bias,
and did not prejudice Appellant, especially in light of a further curative
instruction given to the jury prior to deliberations.
{¶50} A review of the record indicates that Appellant’s counsel
attempted to cross-examine Detective Conkel regarding the citizenship
status of the victim, Felipe Lopez. When counsel inquired as to the
expiration of the victim’s work visa, an objection was made and a bench
conference was held. After discussion with counsel, the trial court stated,
outside the presence of the jury, that “his citizenship status does not matter.
Scioto App. No. 12CA3519 34
It is no relevance to this case.” The objection was then sustained and the
court stated as follows to the jury: “I’m going to instruct the jury at this time
that citizenship status has no bearing on this case. I don’t know whether
he’s a citizen or not, but everybody has a right to live. Okay.” Appellant
argues that this statement was not only prejudicial, but was an incorrect
statement of the law, as Ohio law recognizes the doctrine of self-defense and
defense of others. Appellant further argues that comments made by the trial
court at Appellant’s eventual sentencing hearing indicating that this was the
“most heinous crime” it had seen were prejudicial and indicative of bias.
{¶51} As this Court recently observed:
“ ‘Judicial bias has been described as “a hostile feeling or
spirit of ill will or undue friendship or favoritism toward one of
the litigants or his attorney, with the formation of a fixed
anticipatory judgment on the part of the judge, as
contradistinguished from an open state of mind which will be
governed by the law and the facts.” State ex rel. Pratt v.
Weygandt (1956), 164 Ohio St. 463, 58 O.O. 315, 132 N.E.2d
191, paragraph four of the syllabus.
In Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147,
127 L.Ed.2d 474 (1994), the Supreme Court held that “opinions
Scioto App. No. 12CA3519 35
formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.”
On the other hand, “[t]hey may do so [support a bias challenge]
if they reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.”
(Emphasis sic.) Id.’ ” Culp v. Olukoga, 3 N.E.3d 724, 2013-
Ohio-5211, ¶ 55; quoting State v. Dean, 127 Ohio St.3d 140,
2010-Ohio-5070, 937 N.E.2d 97, ¶¶ 47-48.
Further, as we noted in Culp at ¶ 55:
“ ‘A trial judge is presumed not to be biased or prejudiced, and
the party alleging bias or prejudice must set forth evidence to
overcome the presumption of integrity. Corradi v. Emmco
Corp. (Feb. 15, 1996), Cuyahoga App. No. 67407, unreported,
Scioto App. No. 12CA3519 36
1996 WL 65822 [at 3] citing State v. Wagner (1992), 80 Ohio
App.3d 88, 93, 608 N.E.2d 852; citing State v. Richard (Dec. 5,
1991), 1991 WL 261331, Cuyahoga App. No. 61524. Bias
against a party is difficult to question unless the judge
specifically verbalizes personal bias or prejudice toward a
party. In re Adoption of Reams (1989), 52 Ohio App.3d 52, 59,
557 N.E.2d 159.’ Frank Novak & Sons, Inc. v. Brantley, Inc.,
8th Dist. Cuyahoga No. 77823, 2001 WL 303716 (Mar. 29,
2001)[.]”
{¶52} Here, a review of the trial transcript does not indicate that the
trial judge displayed any “deep-seated favoritism or antagonism that would
make fair judgment impossible.” Although the trial court judge may have
gone, as Appellant argues, a step too far, in making the statement that
everyone deserves to live, we cannot find that this remark supports a bias or
partiality challenge. Further, we reject Appellant’s suggestion that such a
statement is contrary to a claim of self-defense or defense of others.
Additionally, as pointed out by the State, the trial court provided a limiting
instruction to the jury prior to deliberations as follows:
“If, during the course of the trial, I said or did anything which
you consider an indication of my view on the facts, you are
Scioto App. No. 12CA3519 37
instructed to disregard it. The Judge must be, and sincerely
desires to be, impartial in presiding over this and every other
trial before a jury and without a jury. The Court does not have
the right and does not desire to invade the province of the jury
by indicating in any way a preference between the State and the
{¶53} Defendant and the Court has not done so at any time.”
Courts have long held that juries are presumed to follow limiting, or
curative, instructions. See e.g. State v. Martin, 4th Dist. Scioto No.
04CA2946, 2005-Ohio-4059, ¶ 17; State v. Wasmer, 4th Dist. Jackson No.
714, 1994 WL 90400 (Mar. 16, 1994).
{¶54} Further, we find no merit to Appellant’s argument that the trial
court’s statements at sentencing were prejudicial. A review of the record
indicates that this statement made by the trial court was made after the jury
had already rendered its decision. Thus, it could not have influenced the
jury. R.C. 2929.11(A) requires that the trial court, in imposing sentence, be
guided by the overriding principles and purposes of felony sentencing,
which include the need to protect the public from future crime by the
offender, and also to punish the offender. Further, 2929.12 requires the trial
court to consider certain factors in imposing sentences for felony offenses.
These factors include the seriousness of the offender’s conduct, the danger
Scioto App. No. 12CA3519 38
posed to the public, and the degree of harm caused. We find that the
statement by the trial court with respect to the seriousness of the offense was
consistent with the court’s duties under the felony sentencing statutes and in
no way reflects judicial bias.
{¶55} Finally, R.C. 2701.03 provides the exclusive means by which a
litigant can assert that a common pleas judge is biased or prejudiced.6 Jones
v. Billingham, 105 Ohio App.3d 8, 11, 663 N.E.2d 657 (1995).
Consequently, a court of appeals lacks “authority to pass upon
disqualification or to void the judgment of the trial court upon that basis.”
Beer v. Griffith, 54 Ohio St.2d 440, 441-442 377 N.E.2d 775 (1978). As we
noted in In re Adoption of C.M.H, 4th Dist. Hocking No. 07CA23, 2008-
Ohio-1694 and Hirzel v.Ooten, 4th Dist. Meigs Nos. 06CA10, 07CA13,
2008-Ohio-7006, ¶ 63, “challenges of judicial prejudice and bias are not
properly brought before this Court. Rather, appellant must make such a
challenge under the provisions of R.C. 2701.03, which requires an affidavit
of prejudice to be filed with the Supreme Court of Ohio.’ ” Quoting Baker v.
Ohio Dept. of Rehab. and Corr., 144 Ohio App.3d 740, 754, 761 N.E.2d 667
(4th Dist.2001). Furthermore, ‘any allegations of judicial misconduct are not
6
R.C. 2701.03(A) provides: “If a judge of the court of common pleas allegedly is interested in a
proceeding pending before the court, allegedly is related to or has a bias or prejudice for or against a party
to a proceeding pending before the court or a party's counsel, or allegedly otherwise is disqualified to
preside in a proceeding pending before the court, any party to the proceeding or the party's counsel may file
an affidavit of disqualification with the clerk of the supreme court in accordance with division (B) of this
section.”
Scioto App. No. 12CA3519 39
cognizable on appeal, but [are] a matter properly within the jurisdiction of
the Disciplinary Counsel.’ ” Wilburn v. Wilburn, 169 Ohio App.3d 415, 421,
2006-Ohio-5820, 863 N.E.2d 204, ¶ 10 (9th Dist.); quoting Szerlip v.
Spencer, 5th Dist. No. 01CA30, 2002 WL 433442 (Mar. 14, 2002).
{¶56} Based upon the foregoing, we find no merit to Appellant's third
assignment of error and it is, therefore, overruled.
ASSIGNMENT OF ERROR IV
{¶57} In his fourth assignment of error, Appellant contends that the
trial court abused its discretion in admitting improper hearsay evidence in
the form of statements of co-defendants Raymond Linkous and Thomas
Steinhauer. More specifically, Appellant contends that the trial court erred
by allowing Detective Conkel to repeat incriminating statements made by
his co-defendants as part of her interrogation of him during the investigation
of Felipe Lopez’s death. Appellant further argues that the trial court failed
to give the jury an instruction that they could not consider Detective
Conkel’s statements for the truth of the matter asserted. A review of the
record indicates that Appellant’s counsel objected to the State’s attempt to
use this videotaped interview at trial on constitutional grounds, claiming that
statements contained in the video violated the confrontation clause.
Scioto App. No. 12CA3519 40
{¶58} In response, the State argues that the statements made by
Detective Conkel were not hearsay, as they were not offered to prove the
truth of the matter asserted. The State further argues that the record
indicates that some of the statements made by Conkel during the
interrogation were false, and were designed to elicit a response from
Appellant. The State also points out that the trial court did, in fact, provide a
lengthy instruction to the jury, which instructed them that the State was not
offering the officer’s statements to prove the truth of the matter asserted.
{¶59} “[T]he admission or exclusion of evidence generally rests in the
trial court's sound discretion.” State v. Jeffers, 4th Dist. No. 08CA7, 2009-
Ohio-1672, ¶ 17; citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343
(1987). “However, questions concerning evidentiary issues that also involve
constitutional protections, including confrontation clause issues, should be
reviewed de novo.” Jeffers at ¶ 17; citing State v. Hardison, 9th Dist.
Summit No. 23050, 2007-Ohio-366.
{¶60} The Sixth Amendment to the United States Constitution
provides, “[i]n all criminal prosecutions, the accused shall enjoy the right * *
* to be confronted with the witnesses against him.” The Supreme Court of
the United States has “held that this bedrock procedural guarantee applies to
both federal and state prosecutions.” Crawford v. Washington, 541 U.S. 36,
Scioto App. No. 12CA3519 41
42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); citing Pointer v. Texas, 380
U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Likewise, Section 10,
Article I of the Ohio Constitution provides, “[i]n any trial, in any court, the
party accused shall be allowed * * * to meet the witnesses face to face.”
Before its admission, “[w]here testimonial evidence is at issue * * * the
Sixth Amendment demands what the common law required: unavailability
and a prior opportunity for cross examination.” Crawford, 541 U.S. at 68.
{¶61} The threshold inquiry is whether the challenged out-of-court
statements were testimonial in nature and needed to be tested by
confrontation. See State v. Lewis, 1st Dist. Hamilton Nos. C-050989 and C-
060010, 2007-Ohio-1485, ¶ 30. Statements are “testimonial when the
circumstances objectively indicate that there is no * * * ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later prosecution.” Davis v. Washington, 547
U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); see also State v.
Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph one
of the syllabus. Here, there was no ongoing emergency, but rather, the
circumstances indicate that the purpose of the interrogation was to prove
past events relevant for later prosecution. As such, we find the statements at
issue to be testimonial.
Scioto App. No. 12CA3519 42
{¶62} Confrontation Clause violations, however, are subject to
harmless error analysis. See State v. Kraft, 1st Dist. Hamilton No. C-060238,
2007-Ohio-2247, ¶ 67; citing United States v. Summers, 414 F.3d 1287,
1303 (10th Cir.2005). “A constitutional error can be held harmless if we
determine that it was harmless beyond a reasonable doubt.” State v. Conway,
108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 78; citing Chapman
v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
However, the question of whether a Sixth Amendment error was harmless
beyond a reasonable doubt is not simply an inquiry into the sufficiency of
the remaining evidence. Conway at ¶ 78. Rather, it is a question of whether
there is a reasonably possibility that the evidence complained of might have
contributed to the convictions. Id.; citing Chapman at 23.
{¶63} Hearsay is defined as, “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Evid.R. 801(C). Hearsay is inadmissible at
trial, unless it falls under an exception to the Rules of Evidence. Evid.R.
802. Evid.R. 801(D)(2)(a) provides that a statement is “not hearsay” if,
“The statement is offered against a party and is * * * the party's own
statement * * *.” The statements at issue herein are not Appellant’s own
statements, but rather are statements purportedly made by Appellant’s co-
Scioto App. No. 12CA3519 43
defendants to law enforcement during the investigation of the homicide of
Felipe Lopez.
{¶64} Appellant does not cite to the specific statements made by
Conkel, but rather refers to a span of nearly fifty pages in the trial transcript
in which he argues these statements are contained. As Appellant does not
set forth and argue each statement separately, neither do we. However, after
reviewing the transcript we identified several statements by Conkel that
incorporate statements purportedly made by Linkous and Steinhauer.
Implicit in the State’s argument that some of the statements weren’t even
actually made by the co-defendants, is the fact that some of them ostensibly
were. Assuming that any of these statements were, in fact, made by the co-
defendants, we find that the trial court should not have allowed into evidence
the portions of the tape where Detective Conkel stated that Appellant's co-
defendants implicated him in the crimes.
{¶65} Prior to interrogating Appellant, it appears that Detective
Conkel interviewed Appellant's co-defendants, Linkous and Steinhauer,
about Felipe Lopez’s death. During Appellant's recorded interview,
Detective Conkel made multiple references to statements made by
Appellant’s co-defendants indicating Appellant was involved in the crimes,
specifically suggesting that Linkous and Steinhauer said Appellant struck the
Scioto App. No. 12CA3519 44
victim with a hatchet. Neither Linkous nor Steinhauer testified at
Appellant’s trial and thus were not subject to cross-examination. As such,
these testimonial statements are barred by the Confrontation Clause and their
admission violated Appellant's Sixth Amendment rights. See Crawford and
Davis, supra. Although the trial court did provide a limiting instruction to
the jury informing the jury that Conkel’s statements were not to be
considered as evidence, were not offered to prove the truth of the matter
asserted, and were simply designed to elicit responses from Appellant, we
find that this instruction was insufficient to cure this constitutional violation.
{¶66} It has been observed that “[m]ost testimonial statements are too
damaging for a lay juror to separate and/or ignore.” State v. Edwards, 11th
Dist. Lake No. 2012-L-034, 2013-Ohio-1290, ¶ 38; citing Bruton v. United
States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). “ ‘The rationale
of Bruton was that the introduction of a potentially unreliable confession of
one defendant which implicates another defendant without being subject to
cross-examination deprives the latter defendant of his right to confrontation
guaranteed by the Sixth Amendment.’ ” Edwards at ¶ 38; quoting United
States v. Fleming, 594 F.2d 598, 602 (7th Cir.1979). The Bruton rule also
applies to statements of co-defendants that are not confessions. State v.
Moritz, 63 Ohio St.2d 150, 155, 407 N.E.2d 1268 (1980).
Scioto App. No. 12CA3519 45
{¶67} However, “[c]ases following Bruton have established that the
error may be harmless.” Edwards at ¶39 (internal citation omitted). As such,
Bruton violations are subject to harmless error review. See State v. Burney,
10th Dist. No. 06AP-990, 2007-Ohio-7137, ¶53; citing Harrington v.
California, 395 U.S. 250, 252–254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
“ ‘The mere finding of a violation of the Bruton rule in the
course of the trial * * * does not automatically require reversal
of the ensuing criminal conviction. In some cases the properly
admitted evidence of guilt is so overwhelming, and the
prejudicial effect of the codefendant's admission [or statements]
is so insignificant by comparison, that it is clear beyond a
reasonable doubt that the improper use of the admission was
harmless error. (* * *)’ ” Moritz at 156; citing Schneble v.
Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340
(1972).
{¶68} Based on the facts of this case, the limiting instruction alone
was not enough to cure the Bruton violation because the jury had already
heard the testimonial statements of Detective Conkel that Appellant's co-
defendants had implicated Appellant in the crimes resulting in the death of
Felipe Lopez. Although such testimonial statements may have been too
Scioto App. No. 12CA3519 46
damaging for a lay juror to separate and/or ignore, we are mindful that
Bruton violations are sometimes harmless error. Here, we conclude the
Bruton violation was harmless error and did not prejudice Appellant as there
was overwhelming evidence of his guilt. As set forth above, we have
already determined that Appellant’s convictions were not against the
manifest weight of the evidence and were supported by sufficient evidence.
We further note that in reaching that decision, we were careful to only
consider evidence properly admitted at trial, and did not consider the
statements complained of under this assignment of error. Thus, the trial
court's error was harmless beyond a reasonable doubt.
{¶69} Finally, we address Appellant’s argument that Detective Conkel
was improperly permitted to testify generally about the results of her
investigation. Appellant contends that Detective Conkel repeatedly used the
phrase “during the course of my investigation” and “through my
investigation” as a means of introducing hearsay. Initially we note that
Appellant did not object to this general testimony by Conkel during trial.
Thus, it must be reviewed under a plain error analysis. “To constitute plain
error, a reviewing court must find (1) an error in the proceedings, (2) the
error must be a plain, obvious or clear defect in the trial proceedings, and (3)
the error must have affected ‘substantial rights' (i.e., the trial court's error
Scioto App. No. 12CA3519 47
must have affected the trial's outcome).” State v. Dickess, 174 Ohio App.3d
658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 31 (4th Dist.); citing State v. Hill, 92
Ohio St.3d 191, 749 N.E.2d 274 (2001); and State v. Barnes, 94 Ohio St.3d
21, 27, 2002-Ohio-68, 759 N.E.2d 1240. “Furthermore, notice of plain error
must be taken with the utmost caution, under exceptional circumstances, and
only to prevent a manifest miscarriage of justice.” Id.; citing State v.
Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990); and State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus. “A reviewing court should notice plain error only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
{¶70} A review of the record reveals that prior to the interview tape
being played for the jury, Conkel was asked to recite a summary of the
results of her investigation. After reviewing the transcript, it appears
Conkel’s testimony served to illustrate and explain the steps taken during the
course of her investigation, leading up to the point in which Appellant was
interrogated. There were a few times during that recitation that Conkel
began to include statements by Appellant’s co-defendants, however,
objections were promptly made and Conkel was re-directed in giving her
testimony. “[I]t is well-settled that statements offered by police officers to
Scioto App. No. 12CA3519 48
explain their conduct while investigating a crime are not hearsay because
they are not offered for their truth, but rather, are offered as an explanation
of the process of investigation.” State v. Spires, 4th Dist. Gallia No. 10CA10,
2011-Ohio-3661, ¶ 13; quoting State v. Warren, 8th Dist. Cuyahoga No.
83823, 2004-Ohio-5599 at ¶ 46; citing State v. Price, 80 Ohio App.3d 108,
110, 608 N.E.2d 1088 (1992); State v. Braxton, 102 Ohio App.3d 28, 49,
656 N.E.2d 970 (1995); State v. Blevins, 36 Ohio App.3d 147, 149, 521
N.E.2d 1105 (1987). Thus, we find no error, let alone plain error, related to
the admission of these statements.
{¶71} Having found no merit to any of the arguments raised under
Appellant’s fourth assignment of error, it is overruled.
ASSIGNMENT OF ERROR V
{¶72} In his fifth assignment of error, Appellant contends that his
counsel was ineffective for failing to file a motion to suppress, failing to
request independent DNA testing, failing to request a curative instruction on
hearsay, failing to object to improper opinion testimony, failing to object to
the trial court’s improper instruction on the victim’s immigration status,
failing to object to the State presenting an altogether different theory of
events that what was disclosed in their bill of particulars, and failing to call
any witnesses on his behalf.
Scioto App. No. 12CA3519 49
{¶73} To prevail on an ineffective assistance of counsel claim, an
appellant must show 1.) counsel's performance was deficient and 2.) the
deficient performance prejudiced the defense so as to deprive the accused of
a fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854
N.E.2d 1038, ¶205; citing Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, an
appellant must show that counsel's performance fell below an objective level
of reasonable representation. State v. Conway, 109 Ohio St.3d 412, 2006-
Ohio-2815, 848 N.E.2d 810, ¶95. To establish prejudice, an appellant must
show a reasonable probability exists that, but for the alleged errors, the result
of the proceeding would have been different. Id. “A defendant's failure to
establish one prong of the Strickland test negates a court's need to consider
the other.” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶74} In reviewing the claim of ineffective assistance of counsel, we
are admonished to indulge “a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ” Strickland at
689.
FAILURE TO FILE A MOTION TO SUPPRESS
Scioto App. No. 12CA3519 50
{¶75} Appellant contends that trial counsel was ineffective for failing
to file a motion to suppress. Specifically, Appellant argues that he clearly
invoked his right to counsel on two back-to-back occasions while being
interrogated by Detective Conkel. The State responds by arguing that a
motion to suppress would have been meritless as Appellant continued
talking to Detective Conkel after saying that he wanted a lawyer.
{¶76} We initially note that the failure to file a motion to suppress
does not constitute per se ineffective assistance of counsel. State v. Madrigal
at 389. Rather, the failure to file a motion to suppress amounts to ineffective
assistance of counsel only when the record demonstrates that the motion
would have been successful if made. State v. Walters, 4th Dist. Adams No.
12CA949, 2013-Ohio-772, ¶20; citing State v. Resendiz, 12th Dist. No.
CA2009-04-012, 2009-Ohio-6177, ¶29; citing, State v. Brown, 12th Dist.
Warren No. CA2002-03-026, 2002-Ohio-5455, ¶11. According to Resendiz,
we are to presume that trial counsel was effective if he could have
reasonably decided that filing a suppression motion would be a futile act,
even if there is some evidence in the record to support a motion. Resendiz at
¶ 29.
{¶77} Thus, this Court must review the record to determine whether a
motion to suppress, if filed, would have been successful. The trial transcript
Scioto App. No. 12CA3519 51
includes a transcription of Appellant’s interview video that was played for
the jury. The interview begins with Detective Conkel informing Appellant
that she had already spoken with Linkous and Steinhauer, had been informed
that the victim’s cell phones and a hatchet had been recovered, and that there
was a video of Appellant and the others getting gas at Kroger. It was after
Conkel next represented to Appellant that Steinhauer had admitted to
stabbing the victim, and then suggested that Appellant was in the truck, and
had hit the victim in the head with a hatchet, that Appellant made his first
mention of desiring an attorney. The transcript indicates that during
Appellant’s interrogation, the following exchange took place between
Appellant and Detective Conkel:
“Conkel: Tell me what happened. There’s four people in
this vehicle. Okay. You’re one of them.
Defendant: I want a lawyer.
Conkel: Okay. That’s your choice.
Defendant: I want a lawyer because I don’t feel like anybody’s
going to go to bat for me at all. You guys are just
going to charge me with some murder that I didn’t
do.
Conkel: Okay.
Defendant: And lock me up and throw away the key. I mean, I
understand –
Scioto App. No. 12CA3519 52
Conkel: Okay. You want an attorney, so we’re going to
give you a chance to get an attorney.
Defendant: Well, I’m just saying I understand how you guys
do things. You know, you’re saying I’m guilty,
but I’m not.
Conkel: Well, I’m going to tell – what I’m going to tell you
is we’ve got eyewitnesses who can place you out
on 104, who can place you at the place where it
was burnt, and place you where the gas was
bought. Okay, I’m just –
Defendant: But I didn’t buy gas. I bought cigarettes.
Conkel: Right. Jimmy paid for the gas. I know that. Like
said, you want an attorney. We’ll take you over to
jail. I’ll tell you what you’ll be charged with
tonight. It looks like it will be aggravated murder
–
Defendant: Jesus Christ, you’re kidding me?
Conkel: It’ll be tampering with evidence.
Defendant: Tampering with evidence?
Conkel: Abuse of a corpse.
Defendant: What do you mean abuse of a corpse?
Conkel: Those are all charges involved in the crimes that
were done tonight.
Defendant: But I didn’t do none of those things.
Conkel: Like I said, you – do you want to talk to me
without an attorney or do you want an attorney,
because I can hear your side of the story, but that’s
Scioto App. No. 12CA3519 53
only if you want to talk to me. That’s totally up to
you.
Defendant: But my side of the story – you’re going to hang me
out to dry.
Conkel: Honey, I’m not hanging you out to dry.
Defendant: I don’t understand.
Conkel: I wasn’t there. I didn’t do this. I didn’t see
anything. I’m just telling you what the evidence
says, and I’m just telling you what we’ve got.
What we’ve seen. We’ve got people who places
you where the – where the vehicle was on fire,
which I already know Jimmy set it on fire.
Jimmy’s the one who set it on fire. He’s admitted
to that. Lit a rag, threw it in the truck. He’s – he’s
taking the blame for that. Okay. I’ve got
witnesses placing you there, I’ve got you at
Kroger’s, and I’ve got witnesses drove by that seen
you on 104 where the incidents were taking place.
Defendant: I didn’t kill the man.
Conkel: Its up to you – do you—do you want to continue –
do you want to talk to me without an attorney or
do you want me to take you on over? That’s your
choice, because you told me you wanted an
attorney, so I have to ask you.
Defendant: Him and Thomas got into a fight in the truck and
he stabbed the living shit out of him.”
{¶78} When dealing with a claim that law enforcement continued to
interrogate the accused after he invoked his right to counsel, the first
question is “whether the accused actually invoked his right to counsel.”
Scioto App. No. 12CA3519 54
Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d. 488 (1984). “It
is fundamental that once a suspect invokes his right to counsel, all
interrogation must cease.” State v. Colquitt, 188 Ohio App.3d 509, 2010-
Ohio-2210, 936 N.E .2d 76, ¶12; citing State v. Turvey, 84 Ohio App.3d
724, 732, 618 N.E.2d 214 (4th Dist.1992); State v. Jobe, 6th Dist. Lucas No.
L-07-1413, 2009-Ohio-4066, ¶67. “Invocation of the Miranda right to
counsel ‘requires, at a minimum, some statement that can reasonably be
construed to be an expression of a desire for the assistance of an attorney.’ ”
Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d. 362
(1994); quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204,
115 L.Ed.2d 158 (1991). “But if a suspect makes a reference to an attorney
that is ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might be
invoking the right to counsel, [the Court's] precedents do not require the
cessation of questioning.” Id. “Rather, the suspect must unambiguously
request counsel.” Id. As the Supreme Court observed, “ ‘a statement either is
such an assertion of the right to counsel or it is not.’ ” Id.; quoting Smith v.
Illinois, 469 U.S. 91, 97-98.
{¶79} Second, if we find that the accused did invoke his right to
counsel, we “may admit his responses to further questioning only on finding
Scioto App. No. 12CA3519 55
that he (a) initiated further discussions with the police, and (b) knowingly
and intelligently waived the right he had invoked.” Smith v. Illinois at 95;
citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d. 378
(1981). “[A]n accused * * * having expressed his desire to deal with the
police only through counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with
the police.” Edwards at 484-485; See, also, State v. Van Hook, 39 Ohio St.3d
256, 530 N.E.2d 883 (1988). “[I]nquiries or statements, by either an accused
or a police officer, relating to routine incidents of the custodial relationship,
will not generally ‘initiate’ a conversation in the sense in which that word
was used in Edwards [v. Arizona].” Oregon v. Bradshaw, 462 U.S. 1039,
1045, 103 S.Ct. 2830 (1983). Though the Supreme Court declined to fully
define the term “initiate,” it did note that “a willingness and a desire for a
generalized discussion about the investigation * * * not merely a necessary
inquiry arising out of the incidents of the custodial relationship” was
sufficient to show initiation. Bradshaw at 1045-1046.
{¶80} Here, there has been no argument made that Appellant was not
advised of his Miranda rights; thus, that issue is not in dispute. Further, the
fact that Appellant made an unequivocal request for counsel soon after the
Scioto App. No. 12CA3519 56
interrogation began is not in dispute. At issue, however, is whether
Appellant subsequently waived his right to counsel and to remain silent after
initially invoking those rights, by re-initiating conversation with Detective
Conkel regarding the incident.
{¶81} A review of the transcript indicates that Appellant made
unequivocal statements that he wanted a lawyer; however, the transcript also
reveals that Detective Conkel responded “okay” each time, only for
Appellant to continue talking and engaging with her. In fact, after Appellant
made two requests, but continued to talk, Detective Conkel then followed up
by specifically asking Appellant two different times whether he wanted to
talk to an attorney or whether he wanted to talk to her. Both times Appellant
continued to talk to Conkel.
{¶82} Although Detective Conkel continued to engage with Appellant
when he continued talking with her, her comments were statements, rather
than questions, regarding the crimes Appellant would be charged with once
he was taken over to the jail, based upon the evidence gathered at the time.
We believe these statements are properly classified as statements by a police
officer relating to routine incidents of the custodial relationship, as described
in Oregon v. Bradshaw. The only questions asked by Detective Conkel after
Appellant requested counsel were made in response to Appellant’s continued
Scioto App. No. 12CA3519 57
conversation, and were asked to clarify whether Appellant wanted to keep
talking to her, or whether he did, in fact, want counsel. Both times he was
asked, Appellant made substantive statements about the investigation, rather
than re-asserting his desire for counsel. For instance, Appellant continued to
state that he didn’t believe anyone would “go to bat” for him, that he bought
cigarettes, not gas, at Kroger, that he had not committed any crimes, and
ultimately that he didn’t kill the victim but that Steinhauer stabbed him.
{¶83} We believe, based upon these facts, that despite Appellant’s
unequivocal request for counsel, Appellant subsequently waived his right to
counsel by re-initiating conversation with Detective Conkel. We further
believe that this decision is consistent with our prior decision in State v.
Adkins, 4th Dist. Scioto No. 10CA3367, 2011-Ohio-5360, ¶¶25 and 27
(finding defendant waived his prior invocation of the right to counsel by re-
initiating the interrogation with discussion of his innocence). In light of this
determination, we necessarily must conclude that the filing of a motion to
suppress would have been futile. Thus, we cannot conclude that trial
counsel’s failure to file a motion to suppress on these grounds constituted
deficient performance. As such, we reject this portion of Appellant's
argument under this assignment of error.
FAILURE TO REQUEST INDEPENDENT DNA TESTING
Scioto App. No. 12CA3519 58
{¶84} Appellant contends that trial counsel was ineffective for failing
to request independent DNA testing of the hatchet prior to the hatchet being
lost by the Scioto County Sheriff’s Office. The State counters by arguing
that an independent test would likely have confirmed the State’s DNA test
result and could have resulted in a scenario in which the State could have
called Appellant’s expert as a witness against him. The State suggests this
may have been a scenario in which Appellant’s trial counsel elected to avoid
such a result by not having independent testing performed.
{¶85} Here, there is no way Appellant’s trial counsel could have
known or anticipated that the hatchet would be lost. Appellant was indicted
for the crimes at issue on March 26, 2012. Appellant’s counsel promptly
filed a motion to preserve evidence on April 4, 2012, which was granted the
next day. As soon as trial counsel was informed of the loss of the hatchet,
on October 2, 2012, he filed a motion to dismiss based upon the loss of the
evidence, and in the alternative, a motion prohibiting the use of any and all
testimony about the knife and hatchet. These motions were denied by the
trial court and we have determined, in our analysis under Appellant’s first
assignment of error, the trial court did not err in denying those motions, as
Appellant has not demonstrated bad faith on the part of the State in
connection with the loss of the evidence.
Scioto App. No. 12CA3519 59
{¶86} Based upon the information before us, it appears trial counsel
intended to request independent DNA testing as a motion to preserve
evidence was filed. Whether trial counsel simply ran out of time when it
was determined the hatchet was missing, or whether trial counsel made a
strategical decision not to have the evidence independently tested in light of
the State’s test results cannot be determined and calls for speculation, which
is not a proper function of this Court. Although trial counsel could have
requested independent testing in a more timely fashion, had it been his plan
and intention to do so, as set forth above, there was no way that the loss of
the evidence could have been anticipated.
{¶87} Additionally, other courts have reasoned that “ ‘[t]he failure to
call an expert and instead rely on cross-examination does not constitute
ineffective assistance of counsel.’ ” State v. Jones, 9th Dist. Summit No.
26226, 2012-Ohio-2744, ¶18; quoting State v. Nicholas, 66 Ohio St.3d 431,
436, 613 N.E.2d 225 (1993). Here, the State presented Raymond Peoples as
their expert and defense counsel cross-examined Peoples regarding the DNA
tests he performed. Further, as in Jones, Appellant fails to set forth any
argument that the DNA testing the State’s expert performed was faulty or
unreliable. Id.
Scioto App. No. 12CA3519 60
{¶88} Under these facts, we cannot conclude that counsel’s
performance was deficient or prejudicial. Further, it is reasonable that once
it was determined by the State’s expert that Appellant’s DNA was present on
the hatchet, contrary to Appellant’s claim that he never touched the hatchet,
that counsel made a strategical decision not to obtain independent testing.
As such, we reject this portion of Appellant's argument under this
assignment of error.
FAILURE TO REQUEST A CURATIVE INSTRUCTION ON HEARSAY
{¶89} Appellant contends that trial counsel was ineffective for failing
to request a curative instruction in regards to the hearsay statements
attributable to his co-defendants that were admitted into evidence through
the testimony of Detective Conkel, which were contained in the videotape of
the Appellant’s interview that was played for the jury. In response to this
argument, the State points out that the trial court instructed the jury, though
generally and not in curative fashion, regarding the statements made by
Detective Conkel during the interrogation.
{¶90} In light of our disposition of Appellant’s fourth assignment of
error, which determined that Appellant’s confrontation rights were
technically violated by virtue of the allowance into evidence of Appellant’s
co-defendants hearsay statements through the testimony of Detective
Scioto App. No. 12CA3519 61
Conkel, this argument is arguably moot. However, we are unwilling to
conclude counsel was ineffective in any regard with respect to the admission
of these statements as trial counsel for Appellant specifically objected to the
admission of these statements prior to the interview tape being played for the
jury, and the objection was the subject of a hearing in chambers which was
ultimately overruled by the trial court. Further, trial counsel renewed his
objection at the start of the tape being played.
{¶91} Additionally, as noted by the State and as discussed more fully
under Appellant’s fourth assignment of error, the trial court gave a lengthy
instruction of a limiting nature regarding the statements made by Detective
Conkel during the interview. Thus, as the trial court provided an instruction
to the jury prior to deliberations, there was no need for counsel to request a
further instruction. As such, we reject this portion of Appellant's argument
under this assignment of error.
FAILURE TO OBJECT TO IMPROPER OPINION TESTIMONY
{¶92} Appellant contends that trial counsel was ineffective for failing
to object to improper opinion testimony. Specifically, Appellant argues
expert fire investigator, Roman Brandau, was permitted to testify regarding
physical injuries sustained by the victim, and that his testimony included his
opinion that the wounds on the victim’s head were from trauma likely
Scioto App. No. 12CA3519 62
related to a hatchet. Although Appellant argues that trial counsel likely
would have prevailed on this objection, had it been made, he fails to
articulate how the result of the trial would have been different if this
testimony had been excluded.
{¶93} At trial, the State presented the testimony of Dr. Brian Casto,
the deputy coroner and forensic pathologist who performed the autopsy on
the victim. Dr. Casto was qualified as an expert, without objection, and
opined that the injuries sustained by the victim were “created with a sharp
instrument for the stab wounds, like a knife. The chops [sic] wounds are
created with a [sic] instrument that has a cutting edge and is heavy. Okay.
Like a hatchet or something like that.” Dr. Casto further opined as follows:
“there’s multiple chop style wounds of the head. And these are
cuts of the scalp of the head accompanied by underlying
crushing of the skull. And that’s why they’re designated as
chop wounds rather than just a simple stab.”
{¶94} In light of this expert opinion testimony that was properly
admitted without objection, Appellant cannot demonstrate how the result of
the proceeding would have been different if a statement by the fire
investigator regarding what he perceived to be hatchet wounds on the
victim’s head would have been objected to and thus excluded. As such, we
Scioto App. No. 12CA3519 63
again reject this portion of Appellant's argument under this assignment of
error.
FAILURE TO OBJECT TO THE TRIAL COURT'S
IMMIGRATION COMMENTS
{¶95} Appellant contends that trial counsel was ineffective for failing
to object to the trial court's "immigration comments." As set forth above,
during trial the trial court stated as follows after Appellant attempted to elicit
testimony from Detective Conkel that the victim's work visa has expired:
“I’m going to instruct the jury at this time that citizenship status
has no bearing on this case. I don’t know whether he’s a citizen
or not, but everybody has a right to live. Okay.”
However, in light of our determination under Appellant’s third assignment
of error that the trial court's instruction to the jury regarding Appellant's
citizenship status did not merit a challenge based upon judicial bias or
partiality, we cannot conclude that trial counsel's failure to object to the trial
court's statements constituted ineffective assistance of counsel. This is true
especially in light of the trial court's later limiting instruction given to the
jury prior to deliberations. As such, we also reject this portion of
Appellant's argument under this assignment of error.
FAILING TO CALL ANY WITNESSES ON APPELLANT’S BEHALF
Scioto App. No. 12CA3519 64
{¶96} Although Appellant sets forth this argument under this
assignment of error in his statement of his assignments of error, he fails to
argue this alleged error in the body of his brief. App.R. 16(A)(7) requires an
appellant’s brief to include the “contentions of the appellant with respect to
each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies.” Further, App.R. 12(A)(2) provides that
“[t]he court may disregard an assignment of error presented for review if the
party raising it fails to identify in the record the error on which the
assignment of error is based or fails to argue the assignment separately in the
brief, as required under App.R. 16(A).” Based upon this authority set forth
in the appellate rules, we decline to address this portion of Appellant’s
argument under this assignment of error.
{¶97} Accordingly, we have found no merit to any of the claims of
ineffective assistance of counsel raised by Appellant. Thus, we find no
merit to Appellant's sixth assignment of error and it is, therefore, overruled.
ASSIGNMENT OF ERROR VI
{¶98} In his sixth assignment of error, Appellant contends that the
trial court erred when it granted the State’s motion in limine which
prevented him from appropriately cross examining witness Steven
Scioto App. No. 12CA3519 65
Drummond. Appellant argues that he should have been permitted, under
Evid.R. 608(B) to cross-examine Drummond regarding statements made to
law enforcement during their investigation of an incident which
subsequently led to a felony charge filed against Drummond, which
Appellant argued were probative of Drummond's character for truthfulness
or untruthfulness. Appellant further argues that his trial counsel was
ineffective for failing to cross examine Drummond regarding any plea deals
he had been offered in exchange for his testimony.
It appears from the record that the charge against Drummond was still
pending at the time of trial, and that he had not been convicted of the charge
at that time.
{¶99} Generally, appellate courts do not directly review in limine
rulings. State v. Hapney, 4th Dist. Washington No. 01CA30-31, 2002-Ohio-
3250, ¶55; citing State v. White, 4th Dist. Gallia No. 95CA08, 1996 WL
614190. Such rulings are tentative and interlocutory and made by a court
only in anticipation of its actual ruling on evidentiary issues at trial. See
McCabe/Marra Co. v. Dover, 100 Ohio App.3d 139, 160, 652 N.E.2d 236,
250 (8th Dist.1995); Collins v. Storer Communications, Inc., 65 Ohio App.3d
443, 446, 584 N.E.2d 766 (1989). Thus, the grant or denial of a motion in
limine does not preserve any error for review. See State v. Hill, 75 Ohio
Scioto App. No. 12CA3519 66
St.3d 195, 202-203, 661 N.E.2d 1068 (1996). Rather, in order to preserve the
error, the evidence must be presented at trial, and a proper objection lodged.
See State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph three of
the syllabus (1988); State v. Grubb, 28 Ohio St.3d 199, 503 N.E.2d 142,
paragraph two of the syllabus (1986). An appellate court will then review the
correctness of the trial court's ruling on the objection rather than the ruling
on the in limine. See White, supra; Wray v. Herrell, 4th Dist. Lawrence No.
93CA08, 1994 WL 64293.
{¶100} Here, the State's motion in limine was filed at 7:51 a.m. on
October 9, 2012, the morning of the first day of trial. The trial court and
counsel discussed the motion at length in chambers prior to the start of jury
selection and the trial court granted the State's motion. Mr. Drummond
testified just three days later. Because this was a situation in which a motion
in limine was granted in favor of the State thereby preventing Appellant
from asking certain questions of the witness, rather than a situation in which
a motion in limine was denied, thereby making it incumbent upon defense
counsel to renew his objection, we believe the issue was sufficiently
preserved for appellate review. Thus, we will address Appellant's argument
not in terms of the grant or denial of the motion in limine, but instead in
terms of whether or not the trial court abused its discretion in excluding
Scioto App. No. 12CA3519 67
evidence which Appellant contends would have called Drummond's
character for truthfulness and thus, his credibility, into question.
{¶101} “A trial court has broad discretion in the admission or
exclusion of evidence, and so long as such discretion is exercised in line
with the rules of procedure and evidence, its judgment will not be reversed
absent a clear showing of an abuse of discretion with attendant material
prejudice to defendant.” State v. Green, 184 Ohio App.3d 406, 2009-Ohio-
5199, 921 N.E.2d 276, ¶ 14 (4th Dist.); citing State v. Powell, 177 Ohio
App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212, ¶ 33 (4th Dist).
{¶102} Abuse of discretion is more than an error of law or judgment;
rather, it implies that the court's attitude is unreasonable, arbitrary or
unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796,
762 N.E.2d 940; State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980). When an appellate court applies this standard, it cannot substitute its
judgment for that of the trial court. State v. Jeffers, 4th Dist. Gallia No.
08CA7, 2009-Ohio-1672, ¶12; In re Jane Doe I, 57 Ohio St.3d 135, 137-
138, 566 N.E.2d 1181 (1991); citing Berk v. Matthews, 53 Ohio St.3d 161,
169, 559 N.E.2d 1301 (1990).
{¶103} Evid.R. 608 governs evidence of character and conduct of a
witness and provides in (B) that “[s]pecific instances of conduct of a
Scioto App. No. 12CA3519 68
witness, for the purpose of attacking or supporting the witness's character for
truthfulness, other than conviction of a crime as provided in Evid.R. 609,
may not be proved by extrinsic evidence.” “ ‘Other than the Evid.R. 609
exception for certain criminal convictions, a witness's credibility may not be
impeached by extrinsic proof of special instances of his conduct; such
conduct may be inquired into only by the intrinsic means of cross-
examination within the guidelines set forth in Evid.R. 608(B). Criminal
activities not resulting in conviction cannot ordinarily form the basis for an
attack upon a witness's credibility.’ ” State v. Jacobs, 4th Dist. Highland No.
11CA26, 2013-Ohio-1502, ¶31; citing State v. Hurt, 158 Ohio App.3d 671,
2004-Ohio-4266, 821 N.E.2d 1033, ¶11; citing State v. Skatzes, 2nd Dist.
Montgomery No. 15848, 2003-Ohio-516, ¶183.
{¶104} Of importance, we initially note that the pending felony of
which Drummond was charged has not been identified in the record.
However, in Appellant's memorandum contra the State's motion in limine,
Appellant stated that "[t]he charges for which the witness is currently
indicted for do not appear to be charges of dishonesty." Nonetheless,
Appellant argues he should have been able to cross examine Drummond on
an allegedly false statement provided to law enforcement during the course
of the investigation related to Drummond's pending felony charge. In
Scioto App. No. 12CA3519 69
making this argument, Appellant reasoned that if Drummond lied to police
during the investigation, such conduct was probative of his character for
truthfulness.
{¶105} We reject Appellant's argument. Drummond had not been
convicted of the crime for which he was charged at the time of trial and,
further, Appellant has conceded that crime was not a crime of dishonesty.
See State v. Drummond, 111 Ohio St.3d 14 at ¶101 (holding that the trial
court did not abuse its discretion by rejecting cross examination of three
witness regarding their pending charges where the charges were not
probative of their character for truthfulness or untruthfulness). Additionally,
it had not been determined that the statement given to law enforcement by
Drummond during the course of the investigation of his pending felony,
which Appellant sought to introduce, was false. As noted by the trial court
in ruling on the motion in limine, “[w]e're -- we're not trying a separate case
here. This -- will be up to the jury to try it on his own case -- his own case
to make that determination.” The trial court further stated “[w]hether he told
a lie or told the truth is a separate matter, and to be decided by a separate
jury. This is a whole completely different case here today, so I'm going to
grant the State's motion.” Based upon the foregoing, we find no abuse of
discretion on the part of the trial court in excluding evidence of Drummond's
Scioto App. No. 12CA3519 70
pending charges or statements made to law enforcement during the
investigation of those pending charges.
{¶106} We now address Appellant's argument that his counsel
provided ineffective assistance by failing to cross examine Drummond as to
whether he had been offered a plea deal in exchange for his testimony. “The
pendency of charges in another case or the witness's plea arrangement with
the prosecutor is admissible to prove the bias of the witness.” State v.
Drummond at ¶104; citing State v. Brooks, 75 Ohio St.3d 148, 152, 661
N.E.2d 1030 (1996); State v. Hector (1969), 19 Ohio St.2d 167, 249 N.E.2d
912, paragraph five of the syllabus (1969) (predates evidentiary rules); see 1
McCormick, Evidence (5th Ed.1999) 147, Section 39 (bias includes
evidence that “an indictment is pending against [the witness], the witness
has not been charged with a crime, has been promised leniency, * * * [or] is
awaiting sentence”); see, also, Giannelli & Snyder, Evidence (2d Ed.2001)
562, Section 616.3.
{¶107} Here, there was no evidence that Drummond was offered a
plea bargain or any other inducement to testify. In fact, the State expressly
stated in its motion in limine as follows:
"The State of Ohio did not enter into any negotiations with
Drummond in exchange for his testimony; therefore, the
Scioto App. No. 12CA3519 71
admission of evidence or testimony regarding Drummond's
charges would not be for legitimate purpose, such as bias."
We conclude that trial counsel could have reasonably relied upon this
representation by the State, made in an official document filed with the
court. Further, the fact that Drummond was incarcerated was disclosed to
the jury during trial. As such, the jury was aware that Drummond may have
some incentive to assist the State. Based upon these facts, we conclude
Appellant's failure to cross-examine on this issue does not constitute
ineffective assistance of counsel.
{¶108} In light of the foregoing, we find no abuse of discretion on the
part of the trial court in excluding the evidence at issue. Further, Appellant
has failed to demonstrate ineffective assistance of trial counsel. Thus, we
find no merit to Appellant's sixth assignment of error and it is, therefore,
overruled.
ASSIGNMENT OF ERROR VII
{¶109} In his seventh assignment of error, Appellant contends that he
was denied due process of law and the right to a fair trial when the State set
forward a theory of prosecution at trial that was inconsistent with the bill of
particulars previously filed. In support of his argument, Appellant sets forth
the bill of particulars, as provided by the State, and then argues that contrary
Scioto App. No. 12CA3519 72
to the bill of particulars, the State’s theory at trial was that the death of the
victim occurred while he was standing outside of the vehicle, and that he
was killed as a result of ambush. Because we conclude Appellant has
mischaracterized the evidence presented at trial, and further because we have
found no discrepancy between the bill of the particulars and the State’s
theory at trial, we reject Appellant’s argument.
{¶110} A review of the record reveals that the State filed a bill of
particulars on May 1, 2012, which stated as follows:
“On or about the 7th day of March, 2012, in Scioto
County, Ohio defendant did, with purpose to commit, promote,
or facilitate the commission of a [sic] aggravated murder, with
Raymond J. Linkous and Thomas Steinhauer, plan or aid in
planning the commission of such offense and/or agree with
each other that one or more of them would engage in conduct
that facilitated the commission of aggravated murder or murder,
and in furtherance of said conspiracy the defendant and the
other conspirators, did, among other things, procure weapons
and travel to the residence of the deceased, Felipe Lopez. The
defendants then entered a vehicle with the victim and headed
towards Otway, Ohio. Defendant’s [sic] then attacked the
Scioto App. No. 12CA3519 73
victim by stabbing him repeatedly, striking him in the head with
a hatchet, drove to Kentucky and then back to Ohio with the
victim still in said vehicle. The defendants, positioned the
victim in the vehicle which they doused with gasoline and set
on fire causing the death of the victim, Felipe Lopez.
Defendant with Raymond J. Linkous and Thomas Steinhauer
did dispose of cell phones, a knife, a hatchet, clothing and other
personal items, with purpose to impair its availability as
evidence in such proceeding or investigation.”
Thus, the bill of particulars filed by the State specified that the victim was
stabbed with a knife and struck with a hatchet, and did not specify the exact
location in which these events occurred. Further, the bill of particulars
alleged that the death of the victim was ultimately caused by the fire.
{¶111} At trial, the State, in its opening statement, set forth a theory
that included injuries to the victim from a knife and hatchet, but then stated
that the victim was still alive when he was set on fire, based upon inhalation
injuries that were also present. This theory is consistent with the bill of
particulars. Further, the State presented expert testimony from deputy
coroner and forensic pathologist Dr. Bryan Casto. Dr. Casto testified that he
performed the autopsy on the victim and that in performing the autopsy he
Scioto App. No. 12CA3519 74
identified multiple stab wounds, as if from a knife, as well as chop wounds,
as if from a hatchet. He also testified that part of the purpose of the autopsy
was to determine whether the victim was alive or dead during the fire. Dr.
Casto testified that due to the presence of inhalation thermal injuries, the
victim “was alive during the fire, and actually inhaled hot gases and soot.”
As such, the expert testimony presented by the State was also consistent with
the bill of particulars.
{¶112} In light of the foregoing, we reject Appellant’s contention that
the State’s theory at trial was inconsistent with the bill of particulars.
Although the State did, at times, use the word “ambush” to describe the way
in which the victim was initially attacked, we see no inconsistency with the
bill of particulars. As such, we find no merit to Appellant’s argument.
Further, we agree with the State that they are not bound to the exact
information contained in the bill of particulars.
{¶113} As noted by the State, in State v Lantz, 4th Dist. Vinton No.
475, 1992 WL 129327, *6 (June 10, 1992), this Court was presented with
the argument that “the purpose of the bill of particulars is “entirely defeated
when evidence contrary to the bill of particulars is offered by the state.’ ” In
rejecting that argument, we noted that “[a] defendant must not rely upon the
bill of particulars for the specification of evidence. The defendant must not
Scioto App. No. 12CA3519 75
use the bill of particulars as a substitute for discovery.” Id.; see also State v.
Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985) (“ * * * A bill of
particulars is not designed to provide the accused with specifications of
evidence or to serve as a substitute for discovery.”) Thus, even if the State
had introduced evidence or advanced a theory inconsistent with that set forth
in the bill of particulars, Appellant cannot rest on the bill of particulars alone
to determine and prepare his defense. Accordingly, and in light of the
foregoing, Appellant's seventh assignment of error is without merit and is,
therefore, overruled.
ASSIGNMENT OF ERROR VIII
{¶114} In his eighth assignment of error, Appellant contends that
cumulative errors committed during his trial deprived him of a fair trial and
require reversal of his convictions. The cumulative-error doctrine states that
a conviction will be reversed if the cumulative effect of all the errors in a
trial deprive a defendant of the constitutional right to a fair trial, even though
each alleged instance of error may not individually constitute cause for
reversal. State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995); also
see State v. Jackson, 4th Dist. Pickaway No. 11CA20, 2012-Ohio-6276 ¶51.
Scioto App. No. 12CA3519 76
{¶115} Although we found, under Appellant's fourth assignment of
error, that the trial court abused its discretion in admitting improper hearsay
evidence in the form of statements by Appellant's co-defendants and, as
such, that his Sixth Amendment rights under the Confrontation Clause were
violated, we determined that sufficient other evidence in the record
supported Appellant's convictions. Further, we have not found merit in any
of the other assignments of error raised by Appellant. Although the trial
court did err, as discussed above, the error was harmless beyond a
reasonable doubt in light of the other evidence in the record supporting
Appellant's convictions. As such, Appellant's eighth and final assignment of
error is without merit and is, therefore, overruled.
JUDGMENT AFFIRMED.
Scioto App. No. 12CA3519 77
Harsha, J., concurring:
I. Assignment of Error I – Standard of Review
{¶116} I concur in the judgment overruling Gerald’s assignments of
error and affirming his convictions and sentence. But in the first assignment
of error I would apply the hybrid standard of review set forth in Judge
Abele’s principle opinion in State v. Fox, 4th Dist. Ross No. 11CA3302,
2012-Ohio-4805, 985 N.E.2d 532, ¶22:
We believe, however, that the hybrid standard of review that
appellate courts apply to suppression motions and motions to
dismiss on the basis of a violation of a defendant's speedy trial
right is the more appropriate standard of review to apply when
reviewing a trial court's decision regarding a motion to dismiss
on the basis that the state failed to disclose materially
exculpatory evidence. See State v. Geeslin, 116 Ohio St.3d 252,
2007-Ohio-5239, 878 N.E.2d 1, ¶ 14 (not specifically setting
forth any standard of review, but deferring to trial court's
factual finding that tape erasure accidental when reviewing
motion to dismiss on basis that state failed to turn over
materially exculpatory evidence).
{¶117} Nevertheless, I agree that Gerald’s first assignment of error is
meritless even under that standard of review.
II. Assignment of Error IV – Constitutional Harmless Error
{¶118} I agree the trial court erred in admitting the
hearsay/testimonial statements of Gerald’s co-defendants. Under a
harmless-error analysis the state bears the burden of demonstrating that the
Scioto App. No. 12CA3519 78
error in admitting the hearsay statements of his co-defendants through the
testimony of Detective Conkel did not affect Gerald’s substantial rights. See
State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶15;
State v. Lusher, 2012-Ohio-5526, 982 N.E.2d 1290, ¶63 (4th Dist.).
“‘Whether a Sixth Amendment error was harmless beyond a reasonable
doubt is not simply an inquiry into the sufficiency of the remaining
evidence. Instead, the question is whether there is a reasonable possibility
that the evidence complained of might have contributed to the conviction.’”
State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶46,
quoting Conway at ¶78.
{¶119} There are several reasons that I join the principal opinion in
finding that the error was harmless beyond a reasonable doubt. First, the
remaining evidence standing alone constitutes overwhelming proof of
Gerald’s guilt. This evidence includes: (1) the testimony of Kelly Lopez,
the wife of the decedent, that on the day the crimes occurred, she saw Gerald
with Lopez and that Lopez told her that he was leaving with Gerald,
Steinhauer, and Linkous; (2) Detective Conkel’s testimony, admitted
without objection, that her investigation disclosed that the defendants had
planned to attack Lopez and brought weapons with them, that they all left in
a truck with Lopez, that Steinhauer stabbed Lopez, that Gerald hit Lopez in
Scioto App. No. 12CA3519 79
the head with a hatchet, that they disposed of the hatchet and showered, and
that Gerald changed his story several times, (3) the taped interview of Gerald
by Detective Conkel, in which he changed his story, eventually admitting
that he was present when Lopez was attacked and killed; (4) the testimony of
BCI DNA expert Raymond Peoples, who testified that the hatchet submitted
included Gerald’s DNA on its handle; and (5) the testimony of Gerald’s
county jail cellmate Steven Drummond stating that Gerald told him that he
hit Lopez in the back of his head with the hatchet and that the three
defendants disarmed him, attacked him, and set the truck with his body in it
on fire because they could not pay off a $5,000 drug debt.
{¶120} Notably, in the absence of an objection by Gerald’s trial
counsel to Detective Conkel’s testimony concerning the conclusions of her
investigation, Gerald forfeited all but plain error on that issue. Insofar as
Gerald argues in part in his fourth assignment of error that this testimony
constituted hearsay, his failure to object (which he fails to mention) forfeits
the error. And because Gerald does not specifically argue that the admission
of this testimony constituted plain error, I would not address it. See State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, (2002), See also State v.
Maple, 9th Dist. Summit No. 25313, 2011-Ohio-1216, ¶12 (appellant
forfeited the argument that the trial court erred by admitting hearsay by
Scioto App. No. 12CA3519 80
failing to object at the trial court; appellate court would not address it as
plain error because it was not argued as such on appeal); Faulks v. Flynn,
4th Dist. Scioto No. 13CA3568, 2014-Ohio-1610, ¶35 (finding lack of
exceptional circumstances under similar facts). And, because Gerald
repeatedly reinitiated his conversation with Detective Conkel, the trial court
did not err in admitting Gerald’s statements to Detective Conkel as he
contends in his fifth assignment of error. Therefore, these statements
contributed substantial proof of Gerald’s guilt.
{¶121} Finally, the jurors did not have to rely upon the improper
testimonial evidence to find him guilty of the charged crimes; untainted
evidence established his guilt as an accomplice. See Hood at ¶44 (holding
that constitutional error in admitting evidence was harmless beyond a
reasonable doubt by noting that, among other reasons, the jurors did not
have to believe that Hood pulled the trigger to find him responsible for the
victim’s death). As the principal opinion notes in overruling the second
assignment of error, Gerald in effect concedes that his conviction for
conspiracy to commit aggravated murder and murder is supported by the
evidence; he cannot now complain of being convicted as an accomplice to
the remaining crimes of aggravated murder, murder, aggravated arson, and
arson. Gerald admitted that he was in the truck with Lopez, Steinhauer, and
Scioto App. No. 12CA3519 81
Linkous, with weapons, for the purpose of at least intimidating Lopez. This
confrontation ended with Lopez being stabbed with a knife, struck in the
head with a hatchet, and burned alive in the truck. Gerald was present
during the crimes and assisted in their perpetration.
{¶122} Consequently, I conclude there is no reasonable possibility
that the tainted evidence might have contributed to Gerald’s convictions.
Therefore, I concur in the court’s judgment.
Scioto App. No. 12CA3519 82
Hoover, J.: Dissents.
{¶123} I respectfully dissent.
{¶124} I agree with the principal opinion that the testimonial
statements of Detective Conkel that co-defendants Linkous and Steinhauer
had implicated Gerald in the crimes should have been barred by the
Confrontation Clause. The admission of the statements violated Gerald’s
Sixth Amendment right to confrontation. A constitutional error is not
prejudicial if the error is “ ‘harmless beyond a reasonable doubt.’ ” State v.
Love, 4th Dist. Ross No. 05CA2838, 2006–Ohio–1824,
¶34, quoting Chapman v. California, 386 U.S. 18, 24. 87 S.Ct. 824, 17
L.Ed.2d 705 (1967). “[E]rror is harmless beyond a reasonable doubt if the
remaining evidence, standing alone, constitutes overwhelming proof of
defendant's guilt.” State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323
(1983), at paragraph six of the syllabus; State v. Woods, 4th Dist. Ross No.
09CA3090, 2009–Ohio–6169, ¶27; see also, State v. Conway, 108 Ohio
St.3d 214, 2006–Ohio-791, 842 N.E.2d 996, ¶78. In light of the
constitutional violation along with other problematic issues in this case, I
would find that the error was not harmless beyond a reasonable doubt. I
would reverse and remand this case for a new trial.
Scioto App. No. 12CA3519 83
{¶125} First of all, we must look to the evidence that was actually
presented and that was properly admitted. The only other witness other than
Detective Conkel that actually testified regarding Gerald striking Lopez with
the hatchet was Steven Drummond who was an inmate in the Scioto County
Jail during the same time that Gerald was incarcerated. Testimony of a
fellow inmate may not necessarily be considered as “overwhelming proof of
defendant’s guilt.” At the very least, Drummond, as a fellow inmate, would
have credibility issues and one may not believe him “beyond a reasonable
doubt.”
{¶126} Raymond Peoples, a BCI & I forensic scientist testified that
Gerald’s DNA was on the handle of the hatchet; however, Linkous’s DNA
was also on the hatchet’s handle. Gerald was unable to independently test
the hatchet due to the fact that the hatchet was lost while in the State’s
custody and the State completely consumed the DNA sample. Given the lost
evidence and consumption of evidence issues, including the Scioto County
Sheriff’s Department loss of the hatchet, a knife, and a gun that Lopez
supposedly had with him, Peoples’ testimony may not necessarily be
considered as “overwhelming proof of defendant’s guilt.”
{¶127} Lastly, statements were introduced in which Gerald
incriminated himself by admitting to Detective Conkel that he was present
Scioto App. No. 12CA3519 84
and witnessed Steinhauer stab Lopez and Linkous set fire to the truck.
Further statements included his admission to being in the truck with the
group. Gerald specifically denied any knowledge of the hatchet and denied
hitting Lopez with the hatchet, although through Raymond Peoples’
testimony, Gerald’s DNA was on the handle of the hatchet. If this were the
end of the analysis, a reasonable person could find that these statements and
the expert’s testimony together showed “overwhelming proof of defendant’s
guilt.” However, Gerald also claimed ineffective assistance of counsel when
his counsel failed to file a motion to suppress his statements after he had
invoked his right to counsel.
{¶128} “It is fundamental that once a suspect invokes his right to
counsel, all interrogation must cease.” State v. Colquitt, 188 Ohio App.3d
509, 2010-Ohio-2210, 936 N.E.2d 76, ¶12 (4th Dist.), citing State v. Turvey,
84 Ohio App.3d 724, 732, 618 N.E.2d 214 (4th Dist.1992); State v. Jobe, 6th
Dist. Lucas No. L–07–1413, 2009-Ohio-4066, ¶67. If the police proceed to
interrogate the suspect after he initiates communication, then a court must
determine whether the suspect validly waived his previously-invoked right
to counsel. Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 77
L.Ed.2d 405 (1983); State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548,
819 N.E.2d 1047, ¶ 52. “[T]he burden [is] upon the prosecution to show that
Scioto App. No. 12CA3519 85
subsequent events indicated a waiver of the Fifth Amendment right to have
counsel present during the interrogation.” Bradshaw at 1044. Such a waiver
must be knowing and intelligent and a court must find it to be so “ ‘under the
totality of the circumstances, including the necessary fact that the accused,
not the police, reopened the dialogue with the authorities.’ ” Bradshaw at
1046, quoting Edwards v. Arizona, 451 U.S. 477, 486, 101 S.Ct. 1880, 68
L.Ed.2d 378 (1981), fn. 9.
{¶129} In the case sub judice, it is clear that Gerald invoked his right
to counsel. The transcript demonstrates that the following dialogue took
place between Gerald and Detective Conkel:
***
“DEFENDANT: I want a lawyer.
CONKEL: Okay. That’s your choice.
DEFENDANT: I want a lawyer because I don’t feel like
anybody’s going to go to bat for me at all. You
guys are just going to charge me with some murder
I didn’t do.
CONKEL: Okay.
DEFENDANT: And lock me up and throw away the key. I mean, I
understand—
Scioto App. No. 12CA3519 86
CONKEL: Okay. You want an attorney, so we’re going to
give you a chance to get an attorney.
DEFENDANT: Well, I’m just saying I understand how you guys
do things. You know, you’re saying I’m guilty, but
I’m not.
CONKEL: Well, I’m going to tell—what I’m going to tell you
is we’ve got eyewitnesses who can place you out
on 104, who can place you at the place where it
was burnt, and place you where the gas was
bought. Okay. I’m just—
DEFENDANT: But I didn’t buy gas. I bought cigarettes.
CONKEL: Right. Jimmy paid for the gas. I know that. Like I
said, you want an attorney. We’ll take you over to
jail. I’ll tell you what you’ll be charged with
tonight. It looks like it will be aggravated
murder—
DEFENDANT: Jesus Christ, you’re kidding me?
CONKEL: It’ll be tampering with evidence.
DEFENDANT: Tampering with evidence?
CONKEL: Abuse of a corpse.
Scioto App. No. 12CA3519 87
DEFENDANT: What do you mean abuse of a corpse?
CONKEL: Those are all charges involved in the crimes that
were done tonight.
DEFENDANT: But I didn’t do none of those things.
CONKEL: Like I said, you—do you want to talk to me
without an attorney or do you want an attorney,
because I can hear your side of the story, but that’s
only if you want to talk to me. That’s totally up to
you.
DEFENDANT: But my side of the story—you’re going to hang me
out to dry.
CONKEL: Honey, I’m not hanging you out to dry.
DEFENDANT: I don’t understand.
CONKEL: I wasn’t there. I didn’t do this. I didn’t see
anything. I’m just telling you what the evidence
says, and I’m just telling you what we’ve got.
What we’ve seen. We’ve got people who places
you where the –where the vehicle was on fire,
which I already know Jimmy set it on fire.
Jimmy’s the one who set it on fire. He’s admitted
Scioto App. No. 12CA3519 88
to that. Lit a rag, threw it in the truck. He’s—he’s
taking the blame for that. Okay. I’ve got witnesses
placing you there. I’ve got you at Kroger’s, and
I’ve got witnesses drove by that seen you on 104
where the incidents were taking place.
DEFENDANT: I didn’t kill the man.
CONKEL: It’s up to you—do you—do you want to continue-
do you want to talk to me without an attorney or
do you want me to take you on over? That’s your
choice, because you told me you wanted an
attorney, so I have to ask you.
DEFENDANT: Him and Thomas got into a fight in the truck and
he stabbed the living shit out of him.
CONKEL: Okay. Back me up from the beginning. How did
you guys end up over there?”
***
Gerald then proceeded to give a full statement to Detective Conkel.
{¶130} In Oregon v. Bradshaw, supra, the United States Supreme
Court explained that inquiries or statements by the defendant relating to
routine incidents of the custodial relationship, such as requesting a drink of
Scioto App. No. 12CA3519 89
water or requesting to use the telephone, are generally not deemed to have
initiated a conversation. Id. at 1045. On the other hand, a question regarding
what is going to happen next “evince[s] a willingness and a desire for a
generalized discussion about the investigation [and is] not merely a
necessary inquiry arising out of the incidents of the custodial relationship.”
Id. at 1045-1046. In this case, the questioning continued after Gerald
invoked his right to counsel; the issue then is who reopened the dialogue,
Gerald or Detective Conkel? Viewing the quoted dialogue, the statements
made by Gerald after he asked for a lawyer do not fit squarely under
“routine incidents” nor does he ask, “What is going to happen next?”
{¶131} Since the right to counsel as guaranteed by the United States
Constitution and the Ohio Constitution, is a cornerstone of our criminal
justice system, the issue of whether Gerald’s Fifth Amendment right to
counsel was waived must be scrutinized. After Gerald invoked his right to
counsel, Detective Conkel did not stop the interrogation. It appears that
Detective Conkel is an extremely skilled interviewer that knows how to keep
the interviewee speaking. After Gerald requested a lawyer, Detective
Conkel answered him with an “Okay. That’s your choice.” However, she
then continued to tell him about evidence that the State already had against
him. She also continued the dialogue by telling Gerald about the particular
Scioto App. No. 12CA3519 90
charges with which he would be charged such as aggravated murder,
tampering with evidence, and abuse of a corpse. Being experienced and
trained in interviewing, Detective Conkel’s interviewing techniques were
designed to elicit a response from Gerald. Gerald then responded by
wanting to “tell his side of the story.” Keeping in mind that the burden is on
the prosecution to show that subsequent events indicated a waiver of the
Fifth Amendment right to have counsel present during interrrogation, I
would find that Gerald did not reopen the dialogue. The dialogue never
stopped as it should have once Gerald requested an attorney.
{¶132} Gerald’s assignment of error is couched in terms of ineffective
assistance of counsel. To establish constitutionally ineffective assistance of
counsel, a defendant must show (1) that his counsel's performance was
deficient and (2) that the deficient performance prejudiced the defense and
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Issa, 93 Ohio St.3d
49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694
N.E.2d 916 (1998).
{¶133} Even being cognizant of trial counsel’s possible strategies in
not filing a motion to suppress, I would find that, in this particular case,
Gerald’s trial counsel’s performance was deficient by failing to file the
Scioto App. No. 12CA3519 91
motion to suppress his statements since Gerald had invoked the right to
counsel without waiving that right. Gerald must next show that, but for the
alleged errors, the result of the proceeding would have been different.
{¶134} “The cumulative-error doctrine that Gerald argues in his
assignment of error VIII should then be considered. The cumulative error
doctrine states that a conviction will be reversed if the cumulative effect of
all the errors in a trial deprive a defendant of the constitutional right to a fair
trial, even though each alleged instance of error may not individually
constitute cause for reversal.” State v. Mockbee, 2013-Ohio-5504, 5 N.E.3d
50, ¶43 (4th Dist.), citing State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d
623 (1995); see also State v. Jackson, 4th Dist. Pickaway No. 11CA20,
2012-Ohio-6276, ¶51. Viewing the trial as a whole, and considering that a
Confrontation Clause violation occurred when the court allowed the jury to
hear the statements of the co-defendants without Gerald being able to cross-
examine the co-defendants; along with the fact that Gerald’s Fifth
Amendment right to counsel was violated; and the fact that the hatchet,
knife, and a gun were lost during the case, I would find that the cumulative
error doctrine is applicable in this case.
{¶135} Going back full circle to the harmless error test, if we do not
consider the testimony of Detective Conkel where she quotes Gerald’s co-
Scioto App. No. 12CA3519 92
defendants in violation of the Confrontation Clause; and Raymond Peoples’
testimony is considered in light of the lost hatchet; and if Gerald’s statement
is not considered given his Fifth Amendment right to counsel, then the trier
of fact is left with the inmate, Steven Drummond’s testimony to find Gerald
guilty beyond a reasonable doubt. It is difficult to find that the errors were
harmless in this case. After considering the entire record and the
constitutional violations, I would sustain Gerald’s Assignments of Error IV,
V with respect to the failure to file the motion to suppress and VIII. I would
find all other assignments of error moot. I would reverse and remand the
case for a new trial.
Scioto App. No. 12CA3519 93
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs with Concurring Opinion.
Hoover, J: Dissents with Dissenting Opinion.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
State v. Gerald
Combined Opinion