[Cite as State v. Hawthorne, 2018-Ohio-1180.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105121
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL G. HAWTHORNE
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-603041-A
BEFORE: Jones, J., Keough, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: March 29, 2018
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Andrea N. Isabella
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Michael Hawthorne (“Hawthorne”), appeals his
convictions on two counts of felonious assault with firearm specifications. For the
reasons that follow, we reverse and remand.
{¶2} In 2016, Hawthorne was charged with attempted murder and felonious assault
with one- and three-year firearm specifications and with an additional count of felonious
assault. He was charged in a separate case with having weapons while under disability.
The trial court consolidated the two cases for trial over the objection of defense counsel.
The following pertinent facts were presented at the jury trial.
{¶3} Brittany Austin (“Austin”) and Hawthorne dated on and off through high
school until 2015 and had three children together. Austin started dating James
Cooperwood (“Cooperwood”) in November 2015.
{¶4} On January 10, 2016, Hawthorne dropped the children off at their mother’s
house after spending some time with them. Soon thereafter, Austin called Hawthorne to
inquire about Cooperwood’s duffel bag, which contained CDs and DVDs Cooperwood
sold for cash. The couple alleged that Hawthorne stole it. After Austin’s attempts to
get Hawthorne to come over failed, Cooperwood called Hawthorne, and Hawthorne
agreed to come over.
{¶5} Cooperwood went downstairs to meet Hawthorne. On his way, he grabbed a
bat and told Austin he was “about to bust the b[***] head open.” Moments later, Austin
heard gunshots and went downstairs to find Cooperwood bleeding on the front porch.
She did not see who shot Cooperwood.
{¶6} Cooperwood sustained a gunshot injury to both legs and a shattered femur.
He initially identified Hawthorne as the shooter, but during trial, Cooperwood testified
that he had never met Hawthorne and did not remember telling police that Hawthorne had
shot him. After further questioning, however, Cooperwood testified that Hawthorne
shot him. According to Cooperwood, he argued with Hawthorne on the phone about the
duffel bag and told Hawthorne “to come back over and return my things, or it was going
to be a problem. He actually came back, but he came back empty handed. When I
approached him, he shot me. That’s it. That’s what happened.” Cooperwood
admitted he had a bat, but denied threatening Hawthorne with the bat, testifying that the
bat was “laying up against the rail.”
{¶7} After the state presented its evidence, the court asked defense counsel if
anyone would be testifying for the defense. Counsel indicated that he had subpoenaed a
witness who had shown up to court on previous occasions but did not appear pursuant to
the current subpoena. According to defense counsel, this witness would support the
claim that Hawthorne was attacked by Cooperwood. The court stated it would issue a
material witness warrant for the witness, but, before the warrant was issued, the court
informed counsel that the defense of self-defense applied only in cases where the
defendant him or herself took the stand. The court told defense counsel that it
would give “as much time as you want to try to secure this person, but that person isn’t
the person who can testify and give you the self-defense argument. So if you’re going to
argue self-defense to this jury * * * then the only way that comes in is if Mr. Hawthorne
testifies.”
{¶8} Hawthorne chose not to testify in his own defense, and the court did not
instruct the jury on self-defense.
{¶9} The jury convicted Hawthorne of one count of felonious assault and one
count of felonious assault with one- and three-year firearm specifications and acquitted
him of the remaining charges. The trial court sentenced him to a total of five years in
prison.
{¶10} Hawthorne filed a notice of appeal and has raised the following assignments
of error for our review:
I. The trial court denied the appellant due process and his right under
Crim.R. 30(A) when the trial court failed to instruct the jury on self-defense
and aggravated assault.
II. The appellant was denied effective assistance of counsel in violation of
Amendments VI and XIV, United States Constitution and Article I, Section
10, Ohio Constitution.
III. Appellant was denied due process and a fair and impartial trial as
guaranteed by the 5th, 6th, and 14th Amendments of the U.S. Constitution
and Article I, Section 16 of the Ohio Constitution based on prosecutorial
misconduct.
IV. The trial court erred by prejudicially joining two cases which
effectively violated appellant’s due process and right to a fair trial.
{¶11} After oral arguments were heard in this case, we issued the following order:
“Sua sponte the parties are ordered to brief the issue of whether the trial court erred to
the prejudice of Hawthorne when it informed him that he had to testify in order to
advance a claim of self-defense.”
{¶12} The parties complied with our order and submitted supplemental briefs.
The above sua sponte order will be addressed with the first assignment of error, which is
dispositive of this appeal.
{¶13} The Fifth and Fourteenth Amendments to the Constitution guarantee every
criminal defendant the right to remain silent. Although a criminal defendant has a Fifth
Amendment right not to testify, self-defense is an affirmative defense that requires the
defendant to prove all the elements. See R.C. 2901.05(A) (“The burden of going
forward with the evidence of an affirmative defense, and the burden of proof, by a
preponderance of the evidence, for an affirmative defense, is upon the accused.”)1
{¶14} The United State Supreme Court has held that Ohio’s self-defense statute
does not violate due process by placing the burden of proof on the defendant. Martin v.
Ohio, 480 U.S. 228, 230, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). But because the
burden of proving a claim of self-defense is on the defendant, it may be necessary for a
defendant to testify in order to establish that defense. State v. Seliskar, 35 Ohio St.2d
95, 96, 298 N.E.2d 582 (1973), citing State v. Champion, 109 Ohio St. 281, 142 N.E. 141
(1924). By the very nature of a claim of self-defense, “no one is in a better position than
the defendant to provide evidence to aid the jury in determining whether the defendant’s
acts were justified.” Id. citing id. If a defendant cannot provide evidence on the issue of
1
Self-defense will justify the use of force where the defendant can establish, by a
preponderance of the evidence, that he or she was not the instigator of the altercation, acted under a
reasonable belief that force was necessary to repel the imminent use of force by another, and did not
violate any duty to retreat or avoid the danger. State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d
1240 (2002).
self-defense other than his or her own testimony, then, in order to avail him or herself of
the defense, he or she must testify. “In such event, the choice is that of the defendant,
and, once he [or she] has decided to rely on self-defense and is required by the
circumstances to testify in order to prove that defense, he [or she] necessarily must waive
his [or her] constitutional right to remain silent.” Seliskar at id.
{¶15} Thus, a defendant who does not testify is not precluded from requesting an
instruction on self-defense if the evidence otherwise supports the defense. State v.
Eichelbrenner, 1st Dist. Hamilton No. C-110431, 2013-Ohio-1194, ¶ 24. In
Eichelbrenner, the trial court denied the defendant’s request for a self-defense instruction
on the ground that he did not testify. The First District found that the trial court erred in
that determination but that the error would be harmless unless the evidence otherwise
supported an instruction on self-defense. The court reviewed the record and determined
that it did not contain sufficient evidence to support a self-defense instruction, and
therefore, although the trial court erred, the error was harmless pursuant to Crim.R. 52(A)
because the instruction was not warranted. Id. at ¶ 30.
{¶16} This case is distinguishable from Eichelbrenner. Here, the trial court
expressly told Hawthorne that in order to establish his defense, he had to testify.
Hawthorne had a witness subpoenaed that he said would support his claim of
self-defense. But the court told Hawthorne specifically that no one other than him could
come into court and establish his state of mind at the time of the shooting.
{¶17} During trial, after the state rested its case, the trial court inquired whether
defense counsel would be calling any witnesses:
Court: * * * [Y]ou claim self-defense. Are you going to be calling any
witnesses?
Defense: If the witness shows up. We subpoenaed the witness.
***
Court: You claim self-defense for this jury. Is your Defendant going to
testify?
Defense: No. She [the witness] would support the self-defense. She was
the one witness who said there is somebody in the car. And she supports a
claim that -- that Mr. Hawthorne was attacked by James Cooperwood.
Court: [Prosecutor], would you like to respond? Well, * * * [defense
counsel] made an opening statement to this Jury and argued self-defense. Is
self-defense a valid defense when someone else comes in and testifies and
not the Defendant?
Tr. 804-805.
{¶18} During a short break in trial, defense counsel prepared a
material witness warrant for the court to sign. Prior to
issuing the warrant, the court stated:
Court: Self-defense applies only when the Defendant takes the stand. It is
not a Defense based on what someone else believed the Defendant believed
he was in fear for his life. It is what the Defendant believed he was in fear
for his life. He admits — it’s an admission and a defense. I admit I
committed the crime, but I believe I was in fear of my life. That is
self-defense. So no witness can come in here and testify as to what Mr.
Hawthorne believed he was in fear for his life or not. So I don’t care — I
mean, I’ll give you as much time as you want to try to secure this person,
but that person isn’t the person who can testify and give you the
self-defense argument.
So if you’re going to argue self-defense to this Jury, and if you’re going to
argue self-defense, then the only way that comes in is if Mr. Hawthorne
testifies. Now, he doesn’t have to testify, but if he wants to testify, he can
testify, and then you can argue self-defense. I’m going to put that on the
record at this time.
Prosecutor: Do you want to question the Defendant if that’s his decision?
Court: I should. Mr. Hawthorne, do you understand what I’m saying?
Hawthorne: Yes, I do.
Court: If you want to testify, and you believe that this is self-defense,
you’re the individual that has to testify —
Hawthorne: I understand.
Court: — as to that. I’ll let you consult with your lawyers about that, and
as soon as you come back with consulting, let me know, and we’ll move
forward here.
T. 825-826. (Emphasis added.)
{¶19} After the lunch recess, the trial court inquired whether the defense had any
witnesses and defense counsel stated that they were unable to produce their witness.
The court asked Hawthorne whether he was going to testify and he answered, “No.”
The court responded: “Okay. You don’t wish to testify, and that’s your choice. I’m not
trying to force you one way or the other, but I just want to make sure it’s your decision,
okay?”
{¶20} Again, in Seliskar, 35 Ohio St.2d at 96, 298 N.E.2d 582, the Ohio Supreme
Court foresaw a situation where a defendant may have to testify in order to prove
self-defense. But the Seliskar court did not make testifying a requirement; on the
contrary, the court stated that the “choice is that of the defendant” and that in proving, by
a preponderance of the evidence, that he or she acted in self-defense, the defendant can
offer his or her own testimony if necessary. In this case, Hawthorne was not given that
choice. This was not a situation where the trial court told the defendant that there was
insufficient evidence to support his claim of self-defense and, therefore, Hawthorne
needed to testify in order to establish his defense. Here, the trial court told Hawthorne
that it was his “choice” whether to testify but Hawthorne was required to testify in his
own defense in order to establish a claim of self-defense. The trial court misstated the
law when it told Hawthorne that
[s]elf-defense applies only when the Defendant takes the stand. * * * So
no witness can come in here and testify as to what Mr. Hawthorne believed
he was in fear for his life or not. So I don’t care – I mean, I’ll give you as
much time as you want to try to secure this person, but that person isn’t the
person who can testify and give you the self-defense argument.
Thus, according to the trial court, the only way Hawthorne could claim self-defense was if
he testified in his own defense.
{¶21} This court has previously noted that a defendant does not have to testify in
his or her own defense in order to establish the defense of self-defense. In State v.
Lyons, 8th Dist. Cuyahoga No. 43513, 1981 Ohio App. LEXIS 13428 (Dec. 3, 1981), this
court stated: “The accused is free to choose between exercising his [or her] right to
silence and pursuing his [or her] affirmative defense. Moreover, in many cases an
accused may exercise his [or her] right to silence and still prove self-defense through the
testimony of other witness.” Id. at 4.
{¶22} We are cognizant of the fact that Hawthorne’s subpoenaed witness did not
appear to testify for trial. But there is no requirement that the testimony with regard to a
claim of self-defense come solely from defense witnesses. Again, the outcome would be
different if the trial court, after listening to all of the evidence, and finding out that the
defense had no witnesses to present, informed Hawthorne that he would have to testify in
order to claim self-defense. But, here, the trial court erroneously told Hawthorne it was
a requirement for him to testify prior to knowing with certainty that the defense had no
other witnesses or evidence to present and without considering the testimony of the state’s
witnesses.
{¶23} Therefore, we find that the trial court erred to the prejudice of Hawthorne
when it informed him that he had to testify in order to advance a claim of self-defense.
{¶24} Next, we consider Hawthorne’s claim that the trial court erred when it did
not instruct the jury on the theory of self-defense. The state correctly points out that
defense counsel did not object when the trial court said it was not including an instruction
on self-defense. Thus, our review is for plain error. Crim.R. 30(A) provides that “[o]n
appeal, a party may not assign as error the giving or the failure to give any instructions
unless the party objects before the jury retires to consider its verdict, stating specifically
the matter objected to and the grounds of the objection.” Noncompliance with Crim.R.
30(A) waives all but plain error. State v. Phillips, 10th Dist. Franklin No. 14AP-79,
2014-Ohio-5162, ¶ 165. See also Crim.R. 52(B).
{¶25} “Notice of plain error * * * is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State
v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “For
a court to notice plain error, the error must be an obvious defect in a trial’s proceedings, it
must have affected substantial rights, and it must have affected the outcome of the trial.”
State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 30, citing State v.
Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 11. Even if an error
satisfies these three requirements, a reviewing court is not obliged to correct them. State
v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240, citing Crim.R. 52(B).
{¶26} Here, a confluence of errors occurred. The trial court told Hawthorne that
self-defense applies only when the defendant takes the stand. Hawthorne exercised his
constitutional right not to testify, and the trial court failed to consider the testimony of
other witnesses — specifically the victim, Cooperwood, and his girlfriend, Austin — in
determining whether a jury instruction on self-defense was warranted. The failure to
consider Cooperwood’s and Austin’s testimony was based on the court’s erroneous belief
that only Hawthorne’s testimony could establish the defense.
{¶27} Austin testified that Cooperwood asked where his bat was and told Austin
he was going to “bust” Hawthorne’s head open and “whoop his a**.” She further
testified that she was trying to keep Cooperwood from going outside to confront
Hawthorne but her boyfriend told her to “get the f*** off him before he beat [her] a**.”
{¶28} Cooperwood testified that he called Hawthorne and told him, “I was going
to put him over my knee and whoop him like the kid he was.” When the state inquired
why Cooperwood needed his bat, he replied, “It’s called a weapon. It’s called
protection. I don’t know what that man [was] about to pull up with in his hand. * * *
I’m not a gun toter, never been a gun toter. I’m a fighter. I’m a brawler. That’s what
I do. He came with the gun. I came for fisticuffs. He came to shoot. I came to
fight.” Cooperwood admitted that he was “highly upset” and was “expecting a fight”
with Hawthorne. Cooperwood further admitted that he told Hawthorne that he
(Cooperwood) was going to “kick his a**” and “I came out here to beat you up, pretty
much, but you bring a gun, like I said before, I came to fight, I’m a fighter.”
{¶29} The trial court failed to take the witnesses’ testimony into consideration in
determining whether to instruct on the theory of self-defense. The state contends that
the trial court did not commit plain error because Hawthorne never requested a jury
instruction on self-defense and did not object to the fact that the trial court indicated it
would not give the instruction.
{¶30} It is clear from the record, however, and admitted to by the state, that the
defense’s theory at trial was one of self-defense. The state actually requested a curative
instruction be given to the jury to explain why the court was not instructing the jury on
self-defense. During this oral request, the state noted that the defense had introduced its
theory of self-defense during opening arguments.
{¶31} The state claims in its supplemental brief that the defense changed its
strategy at some point when Hawthorne decided not to testify. But, as counsel told the
court in response to the state’s request, the defense did not introduce its theory of
self-defense in opening arguments based on its belief that Hawthorne would testify, but
rather raised it “assuming the other lady would come in” to testify. Once the trial court
erroneously told Hawthorne he had to testify in order to raise the defense of self-defense,
the defense’s entire theory of the case was essentially hamstrung. While we
acknowledge that part of the defense’s problem was due to the subpoenaed witness failing
to appear, this fact does not negate that the court erred in telling Hawthorne he had to
testify in order to claim self-defense and in failing to consider other witness testimony as
it related to the defendant’s self-defense claim.
{¶32} Because the trial court failed to take witness testimony into consideration
based on its erroneous assumption that a defendant must testify in order to claim the
defense of self-defense and did not give a jury instruction based on that assumption, we
find that the court’s error prejudiced Hawthorne and prevented him from receiving a fair
trial.
{¶33} The dissent contends that the trial court’s incorrect statement of law had no
impact on the scope of evidence introduced at trial. That may be, but it had an impact
on what the court itself considered when it decided not to instruct on self-defense. The
court refused to give the self-defense instruction not because it did not believe that the
testimony presented failed to support the instruction. The court refused to give the
instruction because the defendant did not testify. This point is highlighted in the court’s
denial of the defense’s request to instruct on aggravated assault. During the discussion
on this point, the court considered the testimony of the state’s witnesses. The same
cannot be said for its decision not to instruct on self-defense.
{¶34} The first assignment of error is sustained. Because we sustain the first
assignment of error as to Hawthorne’s argument on self-defense and reverse and remand
the case based on this argument, his other contention under this assignment of error —
that the court erred in denying his request to instruct the jury on aggravated assault — is
moot. See App.R. 12(A)(1)(C).
{¶35} Likewise, based on the outcome of the first assignment of error, the second
assignment of error in which Hawthorne claims he received ineffective assistance of
counsel, and the third assignment of error, claiming prosecutorial misconduct, are also
moot.
{¶36} In the fourth assignment of error, Hawthorne contends that the trial court
erred in joining his two cases for trial. In Case No. CR-16-603041-A, Hawthorne was
convicted of two counts of felonious assault, one count with one- and three-year firearm
specifications. In Case No. CR-16-603867-A, Hawthorne was acquitted of having
weapons while under disability. Thus, because he was acquitted of having weapons
while under disability and we are reversing his felonious assault convictions, this
assignment of error is likewise moot.
{¶37} Judgment reversed and case remanded for proceedings consistent with this
opinion.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
KATHLEEN ANN KEOUGH, P.J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS WITH
SEPARATE OPINION
EILEEN T. GALLAGHER, J., DISSENTING:
{¶38} I respectfully dissent from the majority’s determination that the trial court
erred to the prejudice of Hawthorne when it informed him that he had to testify in order to
advance a claim of self-defense. I agree that the trial court erroneously instructed
Hawthorne that he would have to testify in order to claim self-defense. However, under
the circumstances of this case, I believe we are required to review the testimony presented
at trial in an effort to determine whether the trial court’s misstatement of law was
harmless.
{¶39} In this case, Hawthorne exercised his right to not testify at trial despite the
trial court’s misstatement of law. In addition, the record reflects that defense counsel
rested without presenting any witnesses. Significantly, there is nothing in the record to
suggest that the trial court’s misstatement of law impacted or altered the witnesses or
evidence defense counsel planned on presenting at trial. Accordingly, I find no basis to
remand the matter where there is no indication that any new testimony or evidence would
be introduced at a new trial. In my view, this court has the necessary information to
determine whether the evidence supported a self-defense instruction. The trial court’s
incorrect statement of law had no impact on the scope of the evidence introduced at trial
and reversing on these grounds merely delays appellate review for a later date.
{¶40} For the purposes of clarity, I note that if for example, Hawthorne would
have testified on his own behalf based on the trial court’s misstatement of law, I believe
reversible error would have existed. However, that did not occur in this case.
{¶41} Based on the forgoing, this court is obligated to review the state’s evidence
in order to determine whether Hawthorne could satisfy his burden of proving
self-defense. If the evidence does not support the instruction, the trial court’s
misstatement of law would be harmless and a new trial would not be required.