[Cite as State v. Agee, 2016-Ohio-7183.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 14 MA 0094
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
KEVIN D. AGEE, JR. )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 10 CR 1135
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Timothy Young
Ohio Public Defender
Atty. Kenneth R. Spiert
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: September 30, 2016
[Cite as State v. Agee, 2016-Ohio-7183.]
WAITE, J.
{¶1} Appellant Kevin D. Agee, Jr. appeals the June 17, 2014 decision of the
Mahoning County Court of Common Pleas denying his amended petition for
postconviction relief without an evidentiary hearing in this capital case. Appellant
was convicted of murder, in violation of R.C. 2903.02(A), (D), a felony of the first
degree, with an accompanying firearm specification pursuant to R.C. 2941.145(A);
attempted murder, in violation of R.C. 2923.02(A) and 2903.02(A), (D), a felony of the
first degree, with an accompanying firearm specification pursuant to R.C.
2941.145(A); felonious assault, in violation of R.C. 2903.11(A)(2), (D), a felony of the
second degree, with an accompanying firearm specification pursuant to R.C.
2941.145(A); and felonious assault, in violation of R.C. 2903.11(A)(1), (D), a felony of
the second degree, with an accompanying firearm specification pursuant to R.C.
2941.145(A). Appellant’s convictions resulted from his participation in the drive-by
shooting of an elderly couple on the south side of Youngstown. Appellant was
driving. His passenger fired a weapon into the victims’ 1990 Cadillac DeVille in the
mistaken belief that the automobile belonged to a neighborhood rival. Appellant was
sentenced to fifteen years to life in prison for the murder conviction, ten years for
attempted murder, plus three years on two merged firearm specifications, for an
aggregate sentence of 28 years to life of imprisonment. The felonious assault
charges were merged at sentencing. For the reasons that follow, the judgment of the
trial court is affirmed.
Facts and Procedural History
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{¶2} The procedural history and facts of this case were set forth in this
Court’s previous opinion in State v. Agee, 7th Dist. No. 12 MA 100, 2013-Ohio-5382:
Appellant’s friend, Aubrey Toney, was involved in an ongoing feud with
two individuals nicknamed Piru and OB. It seems that Piru believed
Aubrey Toney shot at his house, and Aubrey Toney believed that Piru
retaliated by shooting up his car. Aubrey Toney also believed that he
was once arrested due to Piru snitching on him. And, Aubrey Toney
was upset that OB punched him in the back of the head at a gas
station, causing him to suffer migraines. OB was known to drive a
burgundy 1990 Cadillac DeVille that was described as “old school” and
“flashy.” (Tr. 178, 482).
On September 25, 2010, Aubrey Toney was at a little league football
game with appellant Kevin Agee when he received a call from his
female cousin sometime around the noon hour, stating that Piru was
across the street from Toney’s father’s house on Ferndale Avenue. His
male cousin got on the phone as well to ask about the Piru situation.
Aubrey Toney and appellant soon arrived at the female cousin’s house
on Hilton Avenue and borrowed her reddish or burgundy Dodge
Durango, leaving the small car Toney had been driving at her house.
When the male cousin learned that Aubrey Toney borrowed the
Durango, he was concerned and called Toney who advised that he
would have to call him back because he has “dibs on somebody now.”
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(Tr. 375). Appellant Kevin Agee drove the Durango with Aubrey Toney
in the passenger seat. At some point, appellant drove down Southern
Boulevard and turned down a short dead-end portion of Philadelphia
Avenue. He then turned around and stopped at the stop sign at
Philadelphia Avenue and Southern Boulevard.
In the meantime, around 1:00 p.m., Thomas Repchic, age 74, was
sitting in his burgundy 1990 Cadillac DeVille outside of St. Dominic’s
church, on the corner of Southern Boulevard and Lucius Avenue
waiting for his wife, who worked as a secretary at the church.
Jacqueline Repchic, also 74, got in their Cadillac, and they proceeded
north on Southern Boulevard.
As the Cadillac approached the Durango at Philadelphia Avenue,
Aubrey Toney wrested a large .308 rifle from next to his seat and fired
seven shots into the Repchic vehicle. One shot went through the
passenger door and took off Mrs. Repchic’s right foot; her other foot
was also injured by bullet fragments. (Tr. 56-57). Another shot went
through the back of the driver’s seat and killed Mr. Repchic by entering
his lung and heart. Mrs. Repchic reached over and steered the car into
the curb just before the busy y-junction at Market Street.
The City of Youngstown’s Shotspotters system triangulated the seven
shots it heard as occurring near the Southern Boulevard and
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Philadelphia Avenue intersection and transmitted this information to its
patrol cars. Officers followed a blood trail leading from the car toward
the intersection where they found a fired .308 cartridge in the middle of
the street.
The police interviewed witnesses near that area who saw a red
Durango go down the street and saw gun smoke near the Durango
after the shots were fired. The Durango was also seen on various
security cameras at the time of the shooting. A witness said the
passenger was a dark-skinned black male with short hair and the driver
was a lighter-skinned black male with a bushy ponytail. (Tr. 96).
Appellant was a lighter-skinned black male with long dreadlocks, and
Toney’s female cousin stated that the person with Toney, whom she
believed would be driving her car that day, had his hair “locked up.” (Tr.
174, 381, 460).
Aubrey Toney returned the Durango to his cousin 20-35 minutes after
he borrowed it. (Tr. 175). Later that evening, Aubrey Toney apologized
to her for putting her in the middle of his feud and gave her money to
stay in a hotel. (Tr. 177, 184, 199). The police canvassed the area and
spoke to each person who owned a Durango. Aubrey Toney’s cousin
initially denied that she loaned out the vehicle, but she soon admitted
that she loaned him the vehicle at the time of the shooting and told
police what she knew about the feud.
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Aubrey Toney’s male cousin also spoke to police about the feud and
about Aubrey’s statements to him on the phone around the time of the
shooting, such as that he “had dibs” on someone. And, in the second
call, Toney stated, “I think I got him.” (Tr. 375, 405, 418). This male
cousin also told the police that appellant Kevin Agee was involved and
opined that the gun would be found in appellant’s garage, describing a
house on Garfield Street. (Tr. 381-383).
On September 28, 2010, the police executed a search warrant at the
house on Garfield just as appellant was exiting the house. They found
an unfired .308 cartridge on the living room bookshelf. A BCI agent
testified at trial that this unfired cartridge had been cycled through a gun
and had extractor marks that matched the fired cartridge found at the
scene of the shooting. The police also seized guns, other ammunition,
bullet proof vests, crack cocaine, drug paraphernalia, and a ball cap
with a red C on it which matched the description of the hat worn by one
of the occupants of the Durango.
When appellant was interviewed by police, he initially stated that he
saw Aubrey Toney at the game but left with someone else and that he
was not present during the shooting. (DVD Tr. 14-15, 27, 30, 32-33).
He stated that Aubrey Toney is one of his closest friends, that he loved
him, that Aubrey was constantly at his house, and that they often got
high together. (DVD Tr. 19-20, 26, 32, 61). He knew of Aubrey
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Toney’s feud with Piru and OB, and he knew that OB had a car like the
one on the news. (DVD Tr. 9-14). Regarding the unfired .308
cartridge, he stated that Aubrey Toney had a very long gun at his house
one night, that he heard Aubrey making metallic “clacking” noises with
it, and that Aubrey must have left some .308 ammunition behind. (DVD
Tr. 16, 35, 60).
Appellant’s grandmother then spoke to him. She stated that security
cameras on the streets showed him driving the vehicle and said that the
hat described by a witness was found in his house. (DVD Tr. 63, 65).
She disclosed that an eyewitness described one person as darker-
skinned and the other as lighter-skinned. (DVD Tr. 65). She advised
him to say he was driving but that he was in the wrong place at the
wrong time, urging that he did not owe the shooter anything. She said
she did not believe he knew what the shooter was going to do when he
saw that car. (DVD Tr. 64). They then spoke of what it meant to be an
accessory. (DVD Tr. 71-72). Appellant’s mother entered and told him
that Piru was watching her house. (DVD Tr. 77). His mother also told
him that Aubrey Toney’s female cousin worried that someone they
knew was talking to police. (DVD Tr. 81). His relatives then left the
room, and the detectives reentered.
At that point, appellant admitted that he had been driving the Durango
when Aubrey Toney fired at the Cadillac. Appellant explained that he
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left the game with Toney and they switched from the small black Dodge
Caliber that Toney was driving to the Durango because it was bigger.
(DVD Tr. 88, 97). He denied seeing the big gun in either car. (DVD Tr.
88, 98). Appellant said that he drove the cousin’s car because he had a
license. He insisted that he did not expect Aubrey Toney to shoot at a
car and that his only plan was to drive around while drinking and
smoking weed. (DVD Tr. 87-88, 111).
Appellant stated that they were about to stop at a house to buy weed
but the man they were meeting was not there yet so he turned around.
(DVD Tr. 106). He explained that while he was at the stop sign, Aubrey
Toney wrestled with the gun to bring it out of the window and then he
started shooting. (DVD Tr. 90-92, 122). Appellant said that he did not
have a “beef” with anyone and denied that there was talk of Aubrey
Toney’s feud in the car before the shooting. (DVD Tr. 108, 133).
When his relatives were permitted in the interrogation room again,
appellant made some phone calls. During one call, he talked about
someone telling everything to the police and said, “Tell every fucking
body, man. We gotta -- you all squeeze that mother fuckin’ rat.” (Tr.
158). Appellant was then booked into the jail. He and Aubrey Toney
were soon indicted for aggravated murder with a death specification for
the death of Thomas Repchic. Regarding Jacqueline Repchic, they
were indicted for attempted murder, felonious assault (deadly weapon),
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and felonious assault (serious physical harm). All four counts carried
firearm specifications.
Appellant’s case was tried to a jury. The state presented the testimony
of the police officers, detectives, and BCI agents involved in the case,
two neighbors from the area of the shooting, a 911 dispatcher, a
Shotspotters representative, two priests, the medical examiner, and
Aubrey Toney’s male and female cousins. The jury watched the DVD
of appellant’s time in the interrogation room, including his two
statements to police.
The defense presented expert testimony that disagreed with the BCI
agent’s testimony regarding matching extractor marks, as he opined
that it could not be concluded that the live cartridge and the fired
cartridge had been cycled through the same gun. (Tr. 592-593). It was
stipulated to the jury that appellant had been legally blind in his right
eye since 1994. (Tr. 602).
On April 4, 2012, the jury found appellant guilty of the murder, but not
the aggravated murder, of Thomas Repchic. The jury found appellant
guilty of all three counts involving Jacqueline Repchic and all four
firearm specifications. At sentencing, the state agreed that the two
counts of felonious assault committed against Jacqueline Repchic
would merge with each other. The state argued that the remaining
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felonious assault would not merge with the attempted murder of the
same victim because the evidence shows that Jacqueline was shot in
the leg and the shooter then continued to fire shots at the vehicle after it
drove past so that her life remained in danger after she was shot.
(Sent. Tr. 6-7). The defense countered that the remaining felonious
assault would merge with the attempted murder as there was no
separate animus for each offense against the same victim. (Sent. Tr.
9).
In a May 23, 2012 sentencing entry, the court imposed fifteen years to
life for murder plus three years for the attached firearm specification,
ten years for attempted murder plus three years for that attached
firearm specification, and eight years for one count of felonious assault
(merging one felonious assault into the other and merging both firearm
specifications attached to the felonious assaults into the other two
firearm specifications). The sentences were run consecutive for a total
sentence of 39 years to life.
Id. ¶ 3-21. On direct appeal, this Court sustained a single assignment of error, and
remanded the case to allow the trial court to merge the attempted murder and
remaining felonious assault charge committed against Jacqueline Repchic. Id. ¶ 105.
{¶3} In this appeal of his amended petition for postconviction relief, Appellant
first argues that he was denied both due process of law and his right to counsel when
his trial counsel failed to obtain the services of a neuropsychologist and/or
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neurologist to evaluate and provide evidence of his traumatic brain injury (“TBI”) and
residual conditions. Appellant contends that these constitutional deprivations
prevented him from challenging the knowing waiver of his right to counsel and right
against self-incrimination, and prohibited him from offering testimony regarding his
cognitive deficits at trial in order to explain his unwitting participation in the crimes.
Appellant further contends that he was denied due process of law when the trial court
denied the motion to suppress his confession, due to the state’s overreaching in
manipulating his mother and grandmother to convince him to admit his involvement in
the crimes.
{¶4} Next, Appellant contends that both his rights to counsel and due
process of law were violated when his trial counsel failed to recognize or challenge a
key piece of physical evidence underpinning his conviction. Appellant argues that his
right to due process was violated by the trial court’s decision to place a witness in
handcuffs during her testimony, and to allow the state to display to the jury numerous
firearms found at the residence of Appellant’s mother, including a .308 rifle, despite
the fact that the rifle actually used in the drive-by shooting was never found.
{¶5} Appellant also challenges the trial court’s dismissal of his amended
petition because the trial court allegedly relied on incorrect facts, and the court failed
to address his fourth ground for relief in its entirety. Finally, Appellant argues that the
cumulative effect of the foregoing errors and omissions demonstrate sufficient
prejudice to warrant a hearing before the trial court.
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{¶6} At oral argument, Appellant withdrew his seventh assignment of error,
which was based on the trial court’s denial of his postconviction motion for
appropriation of funds for a defense neurological expert to testify and refusal to stay
proceedings on the postconviction petition pending the results of this neurological
testing.
{¶7} Attached to the amended petition are: the affidavit of Kort Gatterdam, a
criminal defense attorney licensed in Ohio; the affidavit of Valerie Kunze, Assistant
Public Defender and co-counsel in this appeal; the affidavit of Appellant; the affidavits
of Rhys Cartwright-Jones and James Gentile, Appellant’s trial counsel; and the
affidavit of Barbara Nocho, Appellant’s grandmother. In addition, several
photographs are attached to the Gatterdam, Kunze, and Cartwright-Jones affidavits.
Medical records from 2004-2005 relating to injuries Appellant suffered in a 2004
automobile accident are attached to the amended petition, as well as a decision of
the Social Security Administration awarding Appellant supplemental social security in
2007.
Law
{¶8} Pursuant to R.C. 2953.21(A)(1)(a), a person convicted of a criminal
offense who asserts a violation of his or her constitutional rights may petition the
court that imposed sentence for appropriate relief. A postconviction petition is not an
appeal of the underlying matter; instead, it is a civil action that collaterally attacks a
criminal judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994).
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State postconviction review is not a constitutionally protected right, even in capital
cases. Thus, the petitioner receives only those rights established by statute. Id.
{¶9} To prevail on a claim for postconviction relief, the petitioner must
demonstrate a denial or infringement of his rights in the proceedings resulting in his
conviction sufficient to render the conviction void or voidable under the Ohio or
United States Constitutions. R.C. 2953.21(A)(1). A postconviction petitioner bears
the initial burden of demonstrating in the petition, any supporting affidavits, and in the
trial record that there are “substantive grounds for relief.” R.C. 2953.21(C), State v.
Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980). A postconviction claim is
subject to dismissal without a hearing if the petitioner fails to support the claim with
evidentiary material setting forth sufficient operative facts to demonstrate substantive
grounds for relief. R.C. 2953.21(C) and (E). Hence, a criminal defendant challenging
his conviction via a petition for postconviction relief is not automatically entitled to a
hearing. Id., see, also, State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982).
{¶10} The purpose of the postconviction relief statute is to provide criminal
defendants with a clearly defined method by which they may raise claims of denial of
federal rights. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999),
citing Young v. Ragen, 337 U.S. 235, 239, 69 S.Ct. 1073, 1074, 93 L.Ed. 1333
(1949). However, a postconviction petition is not a forum to relitigate issues that
could have been raised on direct appeal. See Steffen at 410; Cole, supra, at 113.
Accordingly, many claims are barred by res judicata.
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Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising or
resurrecting issues in collateral review that could have been raised and
fully litigated on direct appeal. State v. Reynolds (1997), 79 Ohio St.3d
158, 161, 679 N.E.2d 1131; State v. Perry (1967), 10 Ohio St.2d 175,
O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus. Where,
however, an alleged constitutional error is supported by evidence that is
de hors the record, res judicata will not bar the claim because it would
have been impossible to fully litigate the claim on direct appeal. State
v. Smith (1985), 125 Ohio App.3d 342, 348, 708 N.E.2d 739.
State v. Green, 7th Dist. No. 02 CA 35, 2003-Ohio-5142, at ¶ 21.
{¶11} “Evidence outside the record by itself, however, will not guarantee a
right to an evidentiary hearing. To overcome the res judicata bar, the evidence must
show that the petitioner could not have appealed the constitutional claim based on
the information in the original trial record.” State v. Combs, 100 Ohio App.3d 90, 97,
652 N.E.2d 205 (1st Dist.1994), citing Cole, syllabus.
{¶12} Further, evidence dehors the record must meet a minimum level of
cogency in support of the claim so as to require a hearing. Combs at 98, citing Cole
at 115. Accordingly, although in “reviewing a petition for postconviction relief * * *, a
trial court should give due deference to affidavits sworn to under oath and filed in
support of the petition, [it] may, in the sound exercise of discretion, judge the
credibility of the affidavits in determining whether to accept the affidavits as true
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statements of fact.” State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999),
syllabus. Thus, “[t]he trial court may, under appropriate circumstances in
postconviction relief proceedings, deem affidavit testimony to lack credibility without
first observing or examining the affiant. That conclusion is supported by common
sense, the interests of eliminating delay and unnecessary expense, and furthering
the expeditious administration of justice.” Id. at 284.
Analysis
{¶13} Appellant’s first and fourth assignments of error are based on trial
counsel’s failure to request the appointment of a neurological expert to testify at the
hearing on the motion to suppress Appellant’s confession and during the guilt phase
of the trial. They also involve the trial court’s denial of the motion to suppress,
despite Appellant’s cognitive impairment and the state’s overreaching by
manipulating Appellant’s mother and grandmother into encouraging his confession.
For the purpose of judicial economy and clarity of analysis, the first and fourth
assignments of error will be addressed together.
Appellant’s cognitive impairments
{¶14} Appellant contends that a neuropsychologist and/or neurologist should
have been appointed to offer testimony regarding his TBI and dementia, allegedly
sustained as a result an automobile accident that occurred roughly six years prior to
the criminal offense at issue in this case. Following the accident, Appellant
underwent brain surgery. At the hearing on the motion to suppress Appellant’s
confession, trial counsel relied on the opinion of Appellant’s defense mitigation
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expert, Sandra McPherson, Ph.D., a psychologist, to evaluate and present evidence
as to the effect of Appellant’s TBI and dementia on his ability to understand his
Miranda warning and waive his right to self-incrimination.
{¶15} At the suppression hearing held on August 23, 2011, Dr. McPherson
provided the following testimony regarding the injuries suffered by Appellant in the
2004 automobile accident:
He suffered fairly severe and diffuse brain injury involving a number of
areas of function. He was treated for that and he was subsequently
evaluated over a period of about a year or so for his degree of
functional capacity. And those records also documented his 100
percent blindness in the right eye which was an injury occurring prior to
the auto accident at his age of 9. The records indicated that his
cognitive capacities were affected in various ways, including what the
examining doctors referred to as dementia or the ability to think
coherently and rationally, the ability to do those things that are
necessary to obtain a general equivalence degree which is a way a
person that has not completed high school can complete a high school
rating. He was judged to be incapable of taking that course and
achieving that status.
He seemed to have memory deficit but also what is known as memory
and sensory issues. He had symptoms that reflected the action of his
nervous system creating discomforts of various kinds, not because
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there was a tissue injury but because the nerves are providing
symptomatic outputs to him. It is part of the brain damage. He had
problems with gate, which over time did show some improvement.
(Suppression Hrg. Tr., pp. 57-58.)
{¶16} Dr. McPherson testified that she performed cognitive testing, including
the Wechsler Adult Intelligence Scale, fourth revision, which she opined was “a
standard state of the art instrument for mapping cognitive function for [a] variety of
purposes, but it is standardly used as part of assessing cognition in cases of brain
damage.” Id. at 60. She also performed the Bender Gestalt Test of Visual Motor
Ability and a Grisso Understanding and Appreciation of Miranda Rights Examination.
Id.
{¶17} According to Dr. McPherson’s testimony, Appellant was “not a quick
responder,” during her examination and needed some words in the Miranda waiver to
be defined, for instance, the word “entitle.” Id. at 62. She further testified that
Appellant frequently sought reassurance that he was answering her questions
correctly. Id. at 62-63.
{¶18} Despite McPherson’s concession on cross-examination that Appellant
clearly understood his right to remain silent, Id. at 63, she concluded that Appellant
did not understand the Miranda warning provided by the detectives who questioned
him. Referring to the videotaped confession, Dr. McPherson explained that it took
Appellant “many seconds” to respond to questions regarding his understanding of
each separate part of the Miranda warnings. She testified, “I suppose it is possible
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that he immediately understood the statement and just didn’t say anything for a long
period of time but I don’t think so.” Id. at 65.
{¶19} Next, Dr. McPherson observed that, although Appellant’s variability in
response time would be superior to a congenitally disabled individual, he was still
likely to be a yay-sayer, that is, a person who says he understands statements even
when he does not. Id. at 69-70. She further testified that Appellant’s ability to
understand the Miranda warnings would likely have been even more compromised
due to stress and his use of marijuana, alcohol and cough syrup in the days before
he was questioned. Id. at 73-74. Dr. McPherson concluded that “at the time that the
Miranda rights were done, based on the [videotape of the confession] that [she] saw,
he was not given any of the information and time to manage the information that
would have been necessary for him to come to that understanding.” Id. at 78-79.
{¶20} On cross-examination, Dr. McPherson acknowledged that Appellant
has previously been found competent to stand trial and conceded that her inquiry into
Appellant’s ability to understand the legal process was “within the same [analytical]
ballpark.” Id. at 81. Dr. McPherson further acknowledged that the car accident at
issue resulted in a criminal charge for cocaine possession, to which Appellant
ultimately pleaded guilty. Due to this conviction and the fact that Appellant
repeatedly violated his probation stemming from that conviction, Dr. McPherson
conceded that Appellant had considerable exposure to the legal process following his
brain injury. Id. at 84-85. Likewise, Dr. McPherson conceded that Appellant was
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sufficiently aware of his circumstances to deny any involvement in the crime during
the first forty minutes of the videotaped confession. Id. at 90-91.
First Assignment of Error
The trial court violated Kevin Agee's rights to counsel and due process
by summarily denying his claim that trial counsel were ineffective in
failing to obtain the services of a neuropsychologist and/or neurologist
to evaluate Kevin and present evidence regarding his traumatic brain
injury and the dementia it caused. This violated Kevin Agee's rights
under the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.
{¶21} According to the U.S. Supreme Court, “the Sixth Amendment right to
counsel exists ‘in order to protect the fundamental right to a fair trial.’ ” Lockhart v.
Fretwell, 506 U.S. 364, 368 (1993), quoting Strickland v. Washington, 466 U.S. 668,
684 (1984), and citing Nix v. Whiteside, 475 U.S. 157 (1986); United States v. Cronic,
466 U.S. 648, 653 (1984), and United States v. Morrison, 449 U.S. 361 (1981). And
“[a]bsent some effect of challenged conduct on the reliability of the trial process, the
Sixth Amendment guarantee is generally not implicated.” Lockhart, 506 U.S. at 369,
quoting Cronic, 466 U.S. at 658.
{¶22} To prove a claim of ineffective assistance of counsel under Strickland,
the defendant must show that: (1) counsel's performance was deficient (falling below
an objective standard of reasonableness), and (2) the deficient performance
prejudiced the defense. See Strickland, 466 U.S. at 388; State v. Madrigal, 87 Ohio
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St.3d 378, 388-389 (2000); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph
two of the syllabus.
{¶23} A reviewing court must first determine whether trial counsel's
assistance was actually ineffective, in other words, whether counsel's performance
fell below an objective standard of reasonable advocacy or fell short of counsel's
basic duties to the client. See Bradley at 141. To prove deficient performance, the
defendant must show that counsel made errors which were so serious that counsel
was not acting in a manner guaranteed by the Sixth Amendment. Id. at 141-142.
{¶24} “Because of the difficulties inherent in making the evaluation, a court
must 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, quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955); accord Bradley, 42 Ohio St.3d at 142; State v. Thompson, 33
Ohio St.3d 1, 10 (1987); State v. Smith, 17 Ohio St.3d 98, 100 (1985); Vaughn v.
Maxwell, 2 Ohio St.2d 299, 301 (1965) (stating, “certainly there is a reasonable
inference that one licensed by the state to practice law and appointed by a court to
represent an accused did competently and properly represent such accused during
his trial.”)
{¶25} In State v. Mason, the Supreme Court of Ohio set forth a two-prong test
to determine whether an indigent defendant was entitled to funding for expert
assistance:
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Due process, as guaranteed by the Fifth and Fourteenth Amendments
to the United States Constitution and Section 16, Article I of the Ohio
Constitution, requires that an indigent criminal defendant be provided
funds to obtain expert assistance at state expense only where the trial
court finds, in the exercise of a sound discretion, that the defendant has
made a particularized showing (1) of a reasonable probability that the
requested expert would aid in his defense, and (2) that denial of the
requested expert assistance would result in an unfair trial.
State v. Mason, 82 Ohio St.3d 144, syllabus (1998).
{¶26} Appellant cites Powell v. Collins, 332 F.3d 376 (6th Cir.2003) in support
of his argument that trial counsels’ failure to request the appointment of a
neuropsychologist and/or neurologist constituted ineffective assistance of counsel. In
Powell, the Sixth Circuit held that an Ohio trial court’s failure to appoint a neurological
expert for a petitioner with organic brain damage violated due process. The state trial
court in that case appointed a clinical psychologist to assess Powell’s competency to
stand trial, and also to provide testimony on behalf of the defense during the guilt and
mitigation phases of the trial. Although the Powell Court found harmless error with
respect to the guilt phase of the trial (Powell had confessed his intention to rape and
kill the victim to a witness), the Court concluded that the psychologist’s testimony at
the mitigation phase fell short of the constitutional requirements.
{¶27} However, the Sixth Circuit’s decision in Powell was based on the
psychologist’s admission that she “was not equipped to conduct the appropriate
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examination required for her to set forth all of the facts or information the jury should
have considered at mitigation.” Id. at 395. The Powell Court wrote:
Dr. Schmidtgoessling began by acknowledging that “mitigation is a
much broader question than addressed to date ... and if the Court
wants a full understanding, I feel it is important to use the techniques to
answer those questions.” (J.A. at 1026.) She then went on to explain
that neither she nor any other staff member at the court's psychiatric
clinic were qualified to conduct the type of testing and evaluation that
was required to diagnose Petitioner with organic brain damage for the
purpose of showing the effect of that factor at mitigation. Dr.
Schmidtgoessling indicated that such testing would require a referral to
a comprehensive medical facility and specialists in the appropriate
fields-precisely the type of assistance Petitioner sought but was denied.
Accordingly, under these facts, unlike with the guilt phase of Petitioner's
trial, the testimony of an independent psychiatrist─particularly one who
was qualified to conduct the appropriate testing of which Dr.
Schmidtgoessling spoke─may have provided facts and information for
the jury to consider at mitigation, which may have led to a different
recommendation by the jury at sentencing. We therefore believe that
the lack of the expert assistance which Petitioner sought, and which he
was entitled under Ake [v. Oklahoma, 470 U.S. 68 (1985)], “had a
substantial and injurious effect or influence in determining the jury's”
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decision at sentencing, see Brecht, 507 U.S. at 637, 113 S.Ct. 1710,
such that we are left in “grave doubt” as to the harmlessness of this
error, thereby requiring that relief be granted to Petitioner on this issue.
See O'Neal, 513 U.S. at 437, 115 S.Ct. 992.
Id. at 395-396. No similar admission was made in the present case, and, therefore,
Powell is not helpful in our analysis.
{¶28} In order to overcome the res judicata bar to his ineffective assistance of
counsel claim, Appellant offered the affidavit of Kort Gatterdam, a criminal defense
attorney licensed in Ohio. Gatterdam opines that trial counsel was deficient due to
their failure to obtain the services of a neuropsychologist and/or neurologist to
evaluate Appellant’s TBI and dementia, and the combined effect of these on his
ability to knowingly waive his rights to counsel and against self-incrimination.
According to Gatterdam, a criminal defense lawyer and former public defender,
Appellant’s medical records establish cognitive impairments that required the expert
testimony of a neuropsychologist or neurologist. Gatterdam Aff., ¶ 7-8. Gatterdam
explained that a neurologist could have performed an MRI and used other techniques
to “see what was actually going on in [Appellant’s] brain at or near the time of his
arrest.” Gatterdam Aff., ¶ 8.
{¶29} The trial court concluded that the Gatterdam affidavit offered no new
evidence regarding the need for a neurological expert. Gatterdam’s affidavit merely
offered his opinion on the ultimate question: whether trial counsel’s performance was
deficient and whether Appellant was prejudiced. The trial court stated that the
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argument Appellant did not understand his Miranda warning was absurd, based on a
colloquy between Appellant and the trial court on August 25, 2011, two days after the
suppression hearing, where Appellant quoted Albert Einstein. Appellant provided the
following testimony at the August 25, 2011 pre-trial conference:
When I first went to jail, I really didn't know the situation I was in and
how deep. * * * I was blessed enough to have a family member [Agee’s
uncle] actually in the pod when I got there. He already knows my
situation, everything, my brain situation.
The first couple weeks I was in there, I was very frustrated, and he had
* * * me read a quote, and he had me write it down and put it in my cell,
and I read it every day. It's by Albert Einstein. * * * [“A] problem can
never be solved at the same level of intelligence in which it was
created.[”] When I finally figured out what my uncle was trying to tell
me, he started having me try to understand the constitution[.]
(8/25/11 Tr., pp. 5-6.)
{¶30} In fact, Ohio appellate districts have consistently concluded that an
affidavit by a legal expert does not constitute cogent evidence dehors the record
sufficient to overcome procedural default. State v. Group, 7th Dist. No. 10 MA 21,
2011-Ohio-6422, ¶ 86-87; State v. Hill, 1st Dist. No. C961052 (Nov. 21, 1997)
(“Attorney's affidavits explaining prevailing norms do not constitute evidence dehors
the record and are akin to a notarized legal argument.”); State v. Davis, 5th Dist. No.
2008-CA-16, 2008-Ohio-6841, at ¶ 161-162 (quoting Hill and advocating that instead
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of a countervailing attorney opinion, a more objective test for attorney ineffectiveness
is that set forth in Strickland); State v. Franklin, 2d Dist. No. 19041, 2002-Ohio-2370,
at ¶ 12 (“the affidavit of an attorney giving an opinion based on facts in the record
does not constitute evidence outside the record, but merely legal argument[.]”)
Accord State v. Jones, 11th Dist. No. 2000-A-0083, 2002-Ohio-2074; State v.
Scudder, 131 Ohio App.3d 470, 722 N.E.2d 1054 (10th Dist.1998); State v. Lawson,
103 Ohio App.3d 307, 659 N.E.2d 362 (12th Dist.1995). Accordingly, the trial court
correctly concluded that Appellant failed to overcome the procedural bar.
{¶31} Even assuming that the Gatterdam affidavit constituted valid evidence
dehors the record, Appellant failed to offer sufficient operative facts to show that trial
counsels’ failure to request the appointment of a neuropsychologist and/or
neurologist resulted in an unfair trial. There is no evidence in the record before us to
show that Appellant’s cognitive impairments affected his ability to understand the
Miranda waiver. On the contrary, the record establishes that Appellant was aware of
both the effect and the consequences of his confession.
{¶32} After waving his right to counsel and his right against self-incrimination,
Appellant had the presence of mind to deny any involvement in the crime. (DVD Tr.,
p. 13.) When asked why .308 ammunition and a baseball cap identified by
eyewitnesses at the crime scene as being worn by one of the assailants was found at
his mother’s house, Appellant explained that he and Toney were close friends, and
that he let Toney “chill” at the Garfield address. (DVD Tr., pp. 15-16, 21.) He further
explained that Toney often left guns and ammunition at the Garfield address because
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he considered it a safe place. (DVD Tr., pp. 56, 60-61.) When asked about
eyewitness testimony placing him in the vehicle at the crime scene, Appellant stated
that he frequently drove around town with Toney, and the eyewitnesses were
probably mistaken as to the day they saw them together. (DVD Tr., pp. 18, 32.)
{¶33} Appellant told police that, when he learned about the crime on the local
news, he was disappointed that he did not have any information regarding the crime,
because there was a reward offered. (DVD Tr., p. 31.) He did not realize Toney was
the shooter until the following day, when friends told him that OB drove a Cadillac
that was the same color and model as the vehicle targeted in the drive-by shooting.
(DVD Tr., p. 33.) When Detective Sergeant Daryl Martin told Appellant that the
Durango was being swept for DNA and prints and asked how Appellant would
explain the existence of his fingerprints on the steering wheel, Appellant responded
that he drove the Durango a few weeks earlier. (DVD Tr., p. 58.)
{¶34} Appellant’s grandmother spoke to him outside of the presence of the
detectives. She informed Appellant that he had been caught on camera, and that he
should tell the truth. (DVD Tr., p. 63.) She also informed him that eyewitnesses
placed him at the scene of the crime. (DVD Tr., p. 66.) Appellant told his
grandmother that he would be looking at “football numbers * * * [b]ig numbers” for jail
time. (DVD Tr., p. 67.) When his grandmother pressed him to confess, Appellant
told her that he was not being stubborn, he was “thinking.” (DVD Tr., p. 70.) He
observed that he was going to get the same number of years whether he was the
driver or the shooter. Id.
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{¶35} When Appellant spoke to his mother, he told her that he would receive
a high bond and suggested that his girlfriend, whose mother had just died, might
have enough money from her mother’s estate to provide his bail. (DVD Tr., p. 78.)
Agee also told his mother that someone “in the click” was talking, because the
detectives had information that eyewitnesses could not have provided. (DVD Tr., p.
83.)
{¶36} All of the foregoing evidence reveals that Appellant was processing
information quite clearly during the police interrogation. He not only provided
succinct excuses for the presence of evidence implicating him in the crime, but also
recognized the degree of punishment he would face if convicted, as well as the high
bond that would likely be assigned. Of equal import, Appellant had entered a guilty
plea to charges of drug possession after his automobile accident, so he was also
familiar with the state justice system.
{¶37} Appellant has failed to offer evidence dehors the record in support of
his right to counsel and due process claims regarding the appointment of a
neuropsychologist and/or neurologist, which could have been raised on direct appeal.
In the alternative, Appellant has failed to offer evidentiary material setting forth
sufficient operative facts to demonstrate a reasonable probability that a neurological
expert would have aided his defense, and that the denial of expert assistance
resulted in an unfair trial. Accordingly, Appellant’s first assignment of error based on
claims of ineffective assistance of counsel is overruled.
Fourth Assignment of Error
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The trial court abused its discretion and violated Kevin Agee's rights
under the Fifth and Fourteenth Amendments to the United States
Constitution, and Section 16, Article I of the Ohio Constitution by failing
to grant relief on the fourth ground for relief, i.e., that he was denied a
fair trial when the court overruled the motion to suppress his statement
and admitted the statement at trial.
{¶38} In his fourth assignment of error, Appellant asserts that his confession
was not freely and voluntarily obtained, both because the expert testimony offered
regarding his cognitive difficulties fell short of the constitutional mandate and due to
the state overreaching involving his mother and grandmother in the police interview.
{¶39} Appellant’s fourth assignment of error corresponds to his fourth ground
for relief in the amended petition. Appellant’s original petition set forth only three
grounds for relief. The trial court did not address Appellant’s fourth ground in the
June 17, 2014 judgment entry. It appears that the trial court reviewed the original
petition, rather than the amended petition. The June 17th judgment entry reads, in
pertinent part, “Petitioner asserts three grounds for relief in his brief.” (6/17/14 J.E.,
p. 1.) It is important to note that the state did not respond to the original petition
before the amended petition was filed. Accordingly, the trial court must have
reviewed the state’s motion for judgment on the pleadings, as it was the only
responsive pleading filed by the state and it contained argument addressing the
fourth ground for relief.
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{¶40} In order to overcome the res judicata bar, Appellant offers the affidavit
of Barbara Nocho, his grandmother, who was present with his mother at the police
station during his interrogation. The affidavit, reads, in pertinent part:
7. On at least one occasion, Detective Martin left the interrogation
room and was pacing up and down the hallway in front of me and
[Appellant’s mother] saying, “if only [Appellant] would admit to being the
driver it would help him with the prosecutor.” He said that they would
go easier on him, since they had a video showing [Appellant] in a cap
and had an eyewitness.
8. Detective Martin asked me a number of times to get [Appellant] to
admit being the driver. He then let me go into the interrogation room
with [Appellant]. I regret to this day that I did not tell [Appellant] to get
an attorney. Because I believed what Detective Martin had told me, I
encouraged [Appellant] to talk to the police. I told [Appellant] to tell
them that he was the driver, not only because it was the truth, but also
because Detective Martin told [Appellant’s mother] and me that it would
help with the prosecutor and they would go easier on [Appellant] if he
did talk.
(Nocho Aff., ¶ 7-8.)
{¶41} The Nocho affidavit directly contradicts the testimony offered by
Detective Martin at the suppression hearing:
Q Then did you talk to the grandmother outside of the interview room?
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A Yes.
Q Did you urge her to go in there and give him some advice?
A No.
Q No?
A No.
Q The information that she gave [Appellant], that they had picked his
name out of a lineup -- that they picked your picture out of a lineup, that
you told people that you were involved, and that they have you on
camera, did you tell her those things?
A I never said anything about a lineup and I never said they picked him
out on camera.
Q What did you tell her?
A I told her there was video surveillance in the area and we had
information that he was the driver, and it was seen fleeing the area.
Q The video surveillance that is in the area does show the Durango
leaving the area; correct?
A Correct.
Q It does not -- you are unable to see who is in the car at that point?
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A Correct.
Q So you think you were factually accurate when you told her that?
A Told her what?
Q That there is a video showing [Appellant] in the car?
A I didn't say that.
Q What did you say?
A I said that there was video of the vehicle fleeing the scene and that
we had people telling us he was the driver of the vehicle.
Q Okay. That's apparently not what she told him; correct?
A Correct.
(Suppression Hrg. Tr., pp. 47-48.) Nocho did not testify at the suppression hearing.
{¶42} It is well established that “[a] suspect's waiver of his right not to
incriminate himself, and his subsequent confession, must be made voluntarily,
knowingly, and intelligently.” State v. Shakoor, 7th Dist. No. 01 CA 121, 2003-Ohio-
5140, ¶ 18, citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).
{¶43} “In determining whether a pretrial statement is involuntary, a court
‘should consider the totality of the circumstances, including the age, mentality, and
prior criminal experience of the accused; the length, intensity, and frequency of
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interrogation; the existence of physical deprivation or mistreatment; and the existence
of threat or inducement.’ ” State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796
N.E.2d 506, ¶ 13, quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051
(1976), paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98
S.Ct. 3147, 57 L.Ed.2d 1155 (1978).
{¶44} In Shakoor, this Court recognized that an “officer’s suggestion of
leniency is not enough to invalidate a confession, but is merely one factor which
bears on whether the confession was voluntary.” Id. at ¶ 23, citing State v. Cooey,
46 Ohio St.3d 20, 544 N.E.2d 895 (1989). Accordingly, “[w]hen a police officer
promises that a defendant's cooperation will be considered in resolving the case, or
that a confession will be helpful in reducing the charges, a resulting confession is not
automatically invalidated.” Shakoor at ¶ 23, citing State v. Loza, 71 Ohio St.3d 61,
641 N.E.2d 1082 (1994), certiorari denied, 514 U.S. 1120, 115 S.Ct. 1983, 131
L.Ed.2d 871 (1995). For example, the Supreme Court of Ohio found that a
confession was voluntary where the police offered the defendant “help” if he
confessed. See Shakoor at ¶ 23, citing State v. Chase, 55 Ohio St.2d 237, 378
N.E.2d 1064 (1978).
{¶45} Appellant provides no explanation for the failure to call Nocho as a
witness at the suppression hearing. Further, the Nocho affidavit is directly at odds
with Detective Martin’s testimony at that hearing. Even if the trial court gave credit to
Nocho’s statements, it is permissible for the police to suggest that “help” will be
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provided to a suspect if he confesses his involvement in a crime, and this does not
affect the knowing and voluntary nature of the confession.
{¶46} The second prong of Appellant’s suppression argument fails as well.
As addressed in the analysis of the first assignment of error, Appellant has failed to
demonstrate that the failure to appoint neuropsychologist and/or neurologist resulted
in an unfair trial.
{¶47} Finally, the trial court's failure to review the entire transcript of
proceedings or address each ground for relief before denying a postconviction
petition does not necessarily constitute reversible error. See State v. Davis, 133
Ohio App.3d 511, 518 (8th Dist.1999), citing State v. Broom, 8th Dist. No. 72581,
1998 WL 230425 (May 7, 1998). For instance, in State v. McNeill, the Ninth District
specifically concluded that a review of record is not required every time a
postconviction petition is filed, writing: “[A] review of record, however, is not
necessitated by the mere filing of a petition for post-conviction relief. If the petition is
baseless on its face, the trial court need not review the record to establish that
dismissal is warranted.” State v. McNeill, 137 Ohio App.3d 34, 40 (9th Dist.2000),
citing State v. Braxton, 6th Dist. No. L-98-1032, 1998 WL 351877, at *1 (June 19,
1998). We have likewise concluded that “if the petition is baseless on its face, the
trial court may dismiss it without reviewing the record, and without waiting for a
response from either the petitioner or the state.” State v. Tribble, 7th Dist. No. 08 MA
145, 2009 Ohio 2651, ¶ 15, citing McNeill.
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{¶48} Appellant has failed to offer evidentiary material setting forth sufficient
operative facts to demonstrate that his confession was neither knowing nor voluntary.
Appellant’s fourth assignment of error regarding the trial court’s denial of his motion
to suppress is overruled.
Second Assignment of Error
The trial court violated Kevin Agee's rights to counsel and due process
by summarily denying his claim that counsel were ineffective in failing:
1) to recognize before trial that the bullet depicted in State's Exhibit 103
is not the bullet identified and admitted as State's Exhibit 113 and to
present the defense accordingly; and 2) to recognize this discrepancy
during trial, bring it to the court's and the jury's attention when Kevin
Agee discovered it, and take other appropriate action. This violated
Kevin Agee's rights under the Fifth, Sixth, and Fourteenth Amendments
to the United States Constitution, and Sections 10 and 16, Article I of
the Ohio Constitution.
{¶49} At trial, the state offered two pieces of evidence: an unfired .308
cartridge (Exhibit 113), which the state’s expert testified had been cycled through a
rifle and bore extraction marks that matched extraction marks on a fired cartridge
found at the crime scene; and a photo of the unfired .308 cartridge that the state
attested was found on a bookshelf at the residence of Appellant’s mother on Garfield
Street. (Exhibit 103).
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{¶50} On direct appeal, this Court referred to the house on Garfield Street as
Appellant’s residence. In fact, it was his mother’s residence. Appellant stated during
his police interview that he did not live at the Garfield address but did spend a lot of
time there. At the time, Appellant was living with his grandmother, who was
recuperating from surgery. (DVD Tr., p. 4.)
{¶51} In his second assignment of error, Appellant contends that the unfired
cartridge depicted in Exhibit 103 is not Exhibit 113. In other words, the actual
cartridge, upon which ballistic tests were conducted by both parties, was not the
same cartridge that was found at his mother’s residence. In order to avoid the
procedural bar, Appellant offers his own affidavit and the affidavits of attorneys
Cartwright-Jones and Gentile to establish that he discovered the alleged discrepancy
during the trial testimony of the defense’s ballistics expert.
{¶52} Despite Appellant’s purported discovery, trial counsel did not raise the
issue at trial. Instead, Cartwright-Jones used his camera phone to photograph
Exhibit 113 (the .308 bullet) lying on top of Exhibit 103 (the purported photograph of
Exhibit 113 found at the residence of Appellant’s mother). This is attached as Exhibit
D-A to the Cartwright-Jones affidavit. Cartwright-Jones attached the photograph
taken at trial in support of Appellant’s motion for new trial, which was filed on June 4,
2012, the same day as Appellant’s direct appeal. (Cartwright-Jones Aff., ¶ 5.) The
motion for new trial and the response brief cannot be located by the Clerk of Courts.
In this assignment of error, Appellant also relies on additional photographs of rounds
taken by Assistant Public Defender Valerie Kunze, which include a photograph of the
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bottom of the Exhibit 113, which reads, “R R 308 WIN”, see Exhibit B-5 to Kunze
affidavit, and a photograph of the bottom of a 7.62 cartridge, which reads “WA 80
7.62 R1M1,” see Exhibit B-4 to Kunze affidavit.
{¶53} Although Appellant contends that he discovered the alleged
discrepancy during trial, it is apparent that inquiries were made by Appellant to
Detective Martin regarding Exhibit 113 at the August, 2011 suppression hearing:
Q All right. Now, this .308 round that you say was found in this
residence -- correct?
A Correct.
Q Does it say .308 round on it?
A Yes.
Q Winchester .308?
A I don't recall if it was a Winchester but I know it said .308.
Q Have you looked at that round recently?
A Not recently, no.
Q Does it say Winchester 7.62?
A I don't recall.
Q But you think it is a .308?
-36-
A Right.
(Suppression Hrg. Tr., pp. 44-45.)
{¶54} Appellant relies on the Gatterdam affidavit to establish that trial
counsel’s failure to seek exclusion of Exhibit 113, move for a mistrial, or submit the
matter to the defense expert who could testify about the alleged discrepancy
constituted ineffective assistance of counsel. (Gatterdam Aff., ¶ 18.) Gatterdam
opines that Exhibits 103 and 113 were the sole means to connect Appellant to the
weapon used at the crime scene. Had Exhibit 113 been excluded, the weapons and
ammunition from Appellant’s mother’s residence would likely have been excluded
from evidence.
{¶55} Although the motion for new trial was filed on the same day as the
notice of direct appeal, June 4, 2012, Appellant could have raised his ineffective
assistance of counsel claim on direct appeal. App.R. 4(A) requires that the notice of
appeal must be filed within thirty days of the final entry. However, in a criminal case
where a timely motion for new trial is filed pursuant to Crim. R.33 for a reason other
than newly discovered evidence, the time for filing a notice of appeal from the
judgment or final order in question begins to run as to all parties when the trial court
enters an order resolving the motion for new trial.
{¶56} In the alternative, Appellant could have amended his notice of appeal to
include the trial court’s July 17, 2012 denial of the motion for new trial pursuant to
App.R. 3(F). A party may amend a notice of appeal without leave if the time to
appeal from the order that was the subject of the initial notice of appeal has not yet
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lapsed under App.R. 4. Thereafter, the court of appeals, within its discretion and
upon such terms as are just, may allow the amendment of a notice of appeal, so long
as the amendment does not seek an appeal from a trial court order beyond the time
requirements of App.R. 4.
{¶57} According to his affidavit, Cartwright-Jones’ photograph of Exhibits 103
and 113 was attached to the motion for new trial. Therefore, it would have been part
of the record on direct appeal, and the issue could have been raised on direct
appeal. Hence, res judicata bars the second ground for relief.
{¶58} Even assuming that the affidavits and photographs can amount to new
evidence, the two trial exhibits and the various additional photographs do not
constitute evidentiary material setting forth sufficient operative facts to demonstrate
that Exhibit 103 is not a photograph of Exhibit 113. Appellant contends that the
round in the photograph appears shiny with a copper head, whereas Exhibit 113
appears dull and scratched. However, the alleged distinctions in coloration appear to
be the result of the photographic process. In fact, there is no evidence to suggest
that Exhibit 103 does not depict Exhibit 113. Moreover, although it was suggested at
the hearing on the motion to suppress that the bullet found at Appellant’s mother’s
house was a 7.62 round, and there is a photograph of 7.62 round attached to the
Kunze affidavit, there is no evidence in the record or in the affidavits, explaining the
existence of this round at the home of Appellant’s mother.
{¶59} As Appellant could have raised his constitutional challenge to trial
counsels’ failure to raise the evidentiary issue on direct appeal, his second ground for
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relief is barred by res judicata. Assuming that Appellant has provided new evidence
overcoming the procedural bar, Appellant has failed to set forth sufficient operative
facts to demonstrate that the round depicted in Exhibit 103 is not the round marked
Exhibit 113. Accordingly, Appellant’s second assignment of error is without merit and
is overruled.
Third Assignment of Error:
The trial court violated Kevin Agee's right to due process by summarily
denying his claim that he was deprived of a fundamentally fair trial by
the combined effect of: 1) the court's ordering witness Clinkscale to be
placed in handcuffs and to testify while having two deputy sheriffs
standing beside her; 2) the court's allowing the State to parade before
the jury numerous guns found in Kevin's house, and to stack them on
counsel's table in plain view of the jury, even though they were not
relevant to the charged offenses; and 3) the court's allowing the State
to use as demonstrative evidence a .308 rifle during closing argument.
This violated Kevin Agee's rights under the Sixth and Fourteenth
Amendments to the United States Constitution, and Sections 10 and
16, Article I of the Ohio Constitution.
{¶60} Agee challenged the introduction of the guns at trial on direct appeal.
Agee’s challenge rested on the Ohio Rules of Evidence; he raised no constitutional
challenge on direct appeal. This Court provided the following analysis:
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Appellant sets forth four assignments of error, the first of which
provides:
“The trial court erred when it admitted irrelevant and prejudicial
evidence and thus denied Kevin Agee his rights to due process and a
fair trial.” (Citations omitted.)
Under this assignment of error, appellant contests the admission of a
.308 rifle used as demonstrative evidence. He also contests the
admission of guns, ammunition, and drugs found in the search of his
residence, stating that the only relevant evidence introduced from the
search was the unfired .308 cartridge. He urges that the admission of
this evidence was irrelevant in violation of Evid.R. 401 and 402, any
probative value was substantially outweighed by the danger of
prejudice and confusion of the issues in violation of Evid.R. 403, and
improper other acts evidence was used to suggest he was a dangerous
criminal in violation of Evid.R. 404(B).
Relevant evidence is that which has any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence. Evid.R. 401. Relevant evidence is admissible unless
prohibited by another rule, statute, or the constitution. Evid.R. 402.
Evidence which is not relevant is not admissible. Evid.R. 402.
-40-
Although relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion
of the issues, or of misleading the jury. Evid.R. 403(A).
We begin with the State Exhibit 134, a .308 rifle the state used as
demonstrative evidence. This was a rifle purchased during a controlled
buy in Portage County. As .308 rifles are not common, Portage County
contacted Youngstown regarding the Repchic shooting. A Youngstown
police officer testified that he went to Portage County to test-fire the
weapon and retrieved it later for retesting by BCI. (Tr. 163, 166).
A BCI agent had concluded that the Portage County weapon was not
the gun used to fire the cartridge found at the scene. (Tr. 315). He
decided to conduct his own test-fire of the Portage County .308 rifle
with the exact brand of ammunition used in the shooting to see if the
officer’s use of a different brand of ammunition affected the breech
pattern. (Tr. 315). The second test-fire also came back as negative for
a match. (Tr. 316).
As the rifle was not related to this shooting, appellant urges that it was
irrelevant and prejudicial. Initially, we note that no objection was
entered when the .308 was first introduced during the testimony of the
officer who test-fired the weapon. (Tr. 162-166). By the time an
objection was entered during the BCI agent’s introduction of the .308,
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the item had already been introduced without objection. (Tr. 314).
Error may not be predicated upon a ruling that admits evidence unless
the party opposing the admission timely objects. Evid.R. 103(A)(1).
We note that the matter was not raised by the defense in the motion in
limine. The court did address the matter in its judgment entry thereon
(as it was raised in the state’s response), but a motion in limine or ruling
thereon does not preserve an objection.
Regardless, demonstrative evidence is admissible if it satisfies the
general standard of relevance set forth in Evid.R. 401, it is substantially
similar to the object or occurrence that it is intended to represent, and it
is not violative of Evid.R. 403. State v. Jones, 135 Ohio St.3d 10, 2012-
Ohio-5677, 984 N.E.2d 948, ¶ 82. The admission of demonstrative
evidence is within the trial court’s sound discretion. State v. Herring, 94
Ohio St.3d 246, 255, 762 N.E.2d 940 (2002); State v. Palmer, 80 Ohio
St.3d 543, 564-566, 687 N.E.2d 685 (1997).
Thus, the Supreme Court has permitted the state to introduce a .22
caliber revolver as a demonstrative exhibit where the jury was
instructed that the gun was similar to but not the actual gun used in the
murder and was advised that it was being used for the limited purpose
to show that the method of firing entailed pulling back the hammer to
cock the gun. Id. at 565-566 (with an instruction that the energy
needed to pull the trigger may be different). The Court stated that the
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handgun was relevant to intent, purpose, prior calculation design, and
absence of mistake or accident. Id. at 566, upholding this court’s
decision in State v. Palmer, 7th Dist. No. 89-B-28 (Aug. 29, 1996)
(where we held that state can introduce a handgun as a “model” to
show that the type of gun used in the murder required a certain process
to be fired to refute a claim that the gun accidentally fired).
Here, a .308 firearm was used to shoot the victims. A fired .308
cartridge was found in the middle of the street where witnesses put the
vehicle from which the shots were fired. An unfired .308 cartridge was
found in appellant’s house, which had extractor marks said to match
those on the fired cartridge.
In maintaining his defense that he was not aware of the plan to shoot at
Piru or OB, appellant insisted that he did not see the gun until Aubrey
Toney pulled it out just prior to shooting. (DVD Tr. 105). The state
wanted to rebut this claim by showing how big a .308 rifle is in order to
suggest that appellant had to have seen the gun being transferred from
the small car into the Durango or had to see it in the front of the
Durango.
Testimony established that a .308 rifle is a rare weapon to encounter on
the streets; it was said to be shoulder-fired, high-powered, and at least
semi-automatic. (Tr. 152-153, 310, 312, 318, 512). A detective who
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owned a .308 rifle described the ammunition as big caliber or big bore
that is very loud and very powerful with a lot of powder and a big
“blowup” and which was mostly used in light machine guns, big hunting
rifles, or police sniper rifles. (Tr. 152-153). Witnesses testified to a
large amount of gun smoke around the Durango during the shooting.
The BCI agent recited the FBI-generated list of firearms that could fire
the cartridge, and the type in State Exhibit 34 was on the list. (Tr. 313,
316). He stated that all of the rifles on the list eject the cartridge and
reload another upon firing. (Tr. 318-319). He noted that the cartridge
showed fluted chamber marks which occur only with a semiautomatic or
above and not with a bolt action or manual ejection firearm. (Tr. 310).
Moreover, appellant admitted that Aubrey Toney previously had a “big
ass” .308 at appellant’s house and that Aubrey Toney left the .308
cartridge there. (DVD Tr. 16, 35). He indicated that Aubrey Toney was
“clacking” the metal parts of his gun one night, which suggests this is
when the unfired cartridge was cycled through the gun.
Appellant also variously described the gun as “pretty big,” “big ass,” and
“pretty fucking long.” (DVD Tr. 60). Appellant stated that he did not
know that “big motherfucker” was wedged in the front of the Durango
when he got in. (DVD Tr. 88). He also stated that Aubrey Toney had to
wrestle with the gun to bring it up to the car window. (DVD Tr. 122). In
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addition, he mentioned that Toney rested it all the way out between the
mirror and the door.
The trial court could reasonably find that State Exhibit 134 was
substantially similar to the .308 rifle used in the shooting. In order to
show just how big a .308 rifle is and thus help rebut appellant’s
defense, the state could properly admit a .308 rifle. The state wanted to
show that appellant knew the gun was in the vehicle and that they
switched from a small car to a large SUV specifically to utilize the large
gun in their pursuit of Piru and OB. The state notes that the laughter
heard by witnesses coming from the Durango as it drove down the road
just before the shooting combined with appellant’s statement that
Aubrey Toney had to wrestle with the gun to get it out the window
suggests that they were laughing about Aubrey Toney’s struggle with
the weapon.
We have viewed the .308 rifle identified as State Exhibit 134. It is
nearly three and a half feet in length. Besides being very long, it is
bulky. The butt of the stock is wide. Even wider is the distance from
the bottom of the grip to the top of the barrel, which appears to span
more than 8 inches. Upon seeing such a representation of a .308 rifle,
a person can tend to disbelieve appellant’s claim that he did not notice
the gun in the front of the Durango until Aubrey Toney pulled it out
seconds before shooting or that he did not see Aubrey Toney load the
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rifle into the Durango after he borrowed it. Thus, it was relevant. See,
e.g., Jones, 135 Ohio St.3d 10 at ¶ 84-96.
There is no indication that the introduction of the .308 rifle as
demonstrative evidence would confuse or mislead the jury. See, e.g.,
Jones, 135 Ohio St.3d 10 at ¶ 110. A police officer, a detective, and a
BCI agent all testified that State Exhibit 134 was not the actual .308 rifle
used in the shooting. (Tr. 167, 315-316, 513). And, the court gave a
demonstrative evidence instruction formulated by both sides, which
explained that demonstrative evidence is an object, picture, model, or
other device intended to clarify or qualify facts for the jury, that such
evidence is merely an aid in understanding certain facts, and that it is
up to the jury to decide what weight to give such evidence. (Tr. 560,
651-652). Also notable here is that this particular piece of
demonstrative evidence was actually scientifically excluded as the
murder weapon by the state’s witnesses, lessening any confusion and
adding to background investigation relevance.
Finally, evidence against a defendant is meant to be prejudicial; it is
only unfair prejudice that concerns the court and only unfair prejudice
that can substantially outweigh the probative value. See Evid.R.
403(A). The probative value of the demonstrative evidence here was
high. We find that the trial judge could reasonably conclude that the
probative value of the demonstrative evidence was not substantially
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outweighed by the danger of unfair prejudice. We refuse to substitute
our judgment for that of the trial court on this matter as the decision was
not unreasonable, arbitrary, or unconscionable. See, e.g., Jones, 135
Ohio St.3d 10 at ¶82; Herring, 94 Ohio St.3d at 255.
We now turn to the introduction of the evidence relating to guns and
drugs (besides the unfired .308 cartridge for which no argument is or
could be made). An officer testified that, during the search of
appellant’s residence at 537 Garfield Street, he discovered the following
items in the following locations: from a cigar box, a pipe, suspected
cocaine, and live and spent cartridges; from beside the living room
couch, a 12-gauge shotgun; from the garage rafters, two magazines;
from the living room hutch, two bullet proof vests; from the top of the
refrigerator, a .9mm; from the attic, a .30 caliber, a .9mm, a 12-gauge
shotgun, and a bag containing ammunition and a pistol magazine. (Tr.
244-245).
The officer identified photographs depicting this evidence, and the
evidence was then itself admitted. (Tr. 246-257). A detective testified
that he recovered the following items from the kitchen during the
search: crack cocaine, a digital scale, and black Ziploc baggies. (Tr.
457). He also recovered marijuana on appellant’s person during the
arrest. (Tr. 458).
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Objections were entered during the testimony of these two witnesses.
(Tr. 244, 456, 458). As the officer began to testify about these items,
the defense objected by referring back to the mid-trial motion in limine
which had been overruled. (Tr. 244). The motion in limine asked to
prohibit the admission of firearms, ammunition, and cocaine recovered
in the search and not used in the murder. The motion raised relevance
and degree of prejudice and argued that the state was trying to convict
him by association with nefarious objects. (03/28/12 Motion In Limine).
The state responded that the police were told that appellant’s house is
where Aubrey Toney and appellant kept their guns and a .308 cartridge
was in fact found there. The state argued that the evidence of guns
and ammunition is relevant to appellant being the provider of the
murder weapon, besides allowing his house to be used for its storage.
As for the drugs, the state responded that the discovery of 8 packets of
crack cocaine individually wrapped for sale on appellant’s table put into
question appellant’s claim that he drove to Philadelphia Avenue to meet
with a marijuana dealer so that they could drive around and smoke
marijuana.
The court’s judgment entry denying the motion in limine concluded that
the opening statement of the defense raised the issue of appellant
looking for drugs, thus opening the door for the state to rebut that story
with the introduction of the cocaine. (See Tr. 37). As to the guns, the
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court agreed that they could be admitted to rebut appellant’s claims that
he was not part of any dispute, that he had no idea what was going on,
and that he was merely a witness with no intention of harming anyone.
(03/29/12 J.E.).
Appellant urges that since he was not charged with offenses related to
these items, they were irrelevant, overly prejudicial, and improper other
acts evidence. “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith.” Evid.R. 404(B). It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. Id.
It can also be used to respond to arguments already raised, such as to
bolster credibility after an attack thereon or to delve into a line of inquiry
already raised. See, e.g., State v. Conway, 109 Ohio St.3d 412, 2006-
Ohio-2815, 848 N.E.2d 810, ¶ 75-78. The state contends that the
evidence from the search was not used to show appellant’s character
but was used to outline the methods of investigation to establish that
the police conducted a thorough investigation. The state also notes
that the relevancy test does not require the evidence to directly prove
an element of the offense. See State v. Tapscott, 7th Dist. No.
11MA26, 2012-Ohio-4213, ¶ 23.
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As to the bulletproof vests, appellant told police that Aubrey Toney wore
a bulletproof vest for protection, that he left it at appellant’s house, and
that he sometimes forgot to wear it when they got high. (DVD Tr. 114).
Appellant stated that Aubrey Toney had a feud with Piru and OB and
insisted that he was not involved in the feud. As Toney was said to
wear a vest as protection against the feud, the fact that two vests were
found in appellant’s house is pertinent to the question of whether
appellant was affected by or involved in the feud. It is not unfairly
prejudicial or improper other acts evidence. It confirms a statement of
appellant while also rebutting a key claim of his defense and constitutes
evidence of knowledge of the feud and even preparation for
involvement in that feud.
As for the guns and ammunition found in appellant’s house, these items
were not alleged to be used in the shooting. The Supreme Court has
suggested that other firearms are not admissible merely to show a
defendant had access to guns where those guns are not said to be the
murder weapon. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-
2961, 911 N.E.2d 242, ¶ 107. That Court did find some merit to the
state’s contention that a cache of weapons found in a suspect’s home
can be introduced to show familiarity with weapons in a case where the
defendant claimed that he accidentally pulled the trigger on a different
weapon. Id. at ¶ 110. The Court alternatively stated that the admission
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would have been harmless due to overwhelming evidence of
appellant’s guilt. Id. at ¶ 111 (a death penalty case).
Here, the guns and ammunition were found in appellant’s house where
a .308 cartridge was also discovered. Appellant admitted that he was
the driver during the shooting with a .308 and admitted that said rifle
and its ammunition had previously been in his house. The ammunition
magazines found in the rafters of appellant’s garage bolstered the
credibility of Aubrey Toney’s male cousin, who told police that the
murder weapon was likely in the rafters of appellant’s garage. That
witness told police that Aubrey Toney and appellant both kept guns at
appellant’s house. (Tr. 488-489). The guns and related evidence tend
to show that appellant supplied or at least stored the murder weapon in
which case he would be more aware of its removal prior to the shooting
rather than a mere innocent driver.
Moreover, appellant admitted that his house was Aubrey Toney’s “safe
spot” when he was “beefing.” (DVD Tr. 56). He had a security system
set up on a monitor showing four views of the exterior of his house. (Tr.
491). Notably, the shotgun lying in the open right next to appellant’s
living room couch, the same room containing Aubrey Toney’s
bulletproof vest, the security monitors, and the unfired .308 cartridge
(with extractor marks matching those made by the murder weapon),
could be seen as evidence that appellant was involved in the feud at
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issue due to his friendship with Aubrey Toney. And, the choosing of
this gun over the other available weapons could show intent to kill as
opposed to scare, especially considering how unwieldy the gun is and
in combination with the switching to a larger vehicle prior to the
shooting.
Although alone each of these theories may be insufficient support for
the admission of the guns and ammunition, using a combination of all of
the elements existing here, we conclude that the guns and ammunition
found in the same house as the .308 cartridge were relevant and
admissible to rebut appellant’s defense, which revolved a claim that he
was not involved in the shooter's feud with Piru and OB and to show
that he had a plan in place to protect himself against the feud and/or
further it. The probative value of this evidence was not substantially
outweighed by dangers of unfair prejudice, especially considering that
appellant had admitted that the .308 was present in his house before
the shooting (and that Aubrey Toney even utilized it in his house in a
manner that produced a “clacking” of metal sound).
The drugs and paraphernalia found in appellant’s house tend to rebut
appellant’s claim that he was driving around Philadelphia Avenue, not in
search of the red Cadillac, but in order to meet a marijuana dealer
whom he allegedly needed Aubrey Toney to find for him because he
could not find any himself. (DVD Tr. 101-102). Notably, Aubrey
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Toney’s cousin testified that he originally met appellant one night, when
he and Aubrey Toney went to the house on Garfield to buy marijuana
off appellant. (Tr. 379-380).
Appellant insisted to police that his point in driving around with Aubrey
Toney was to drink, do pills that he already possessed, find marijuana
from Toney’s dealer, and then return to appellant’s house to watch a
game together. That drugs and tools for not only drug-using but also
for drug-distributing were found in his house is relevant and probative to
an evaluation of the credibility of his defensive claims.
Appellant made these claims in his statement to police, which was
introduced by the state at trial. These claims were also made in the
defense’s opening statement. The Supreme Court has concluded that
after the defense raised the subject of defendant's drug use in opening
statements, “the topic became open to all relevant inquiry in the
discretion of the trial court”. State v. Kamel, 12 Ohio St.3d 306, 312,
466 N.E.2d 860 (1984). Under the particular facts of this case, we
overrule the argument regarding the admission of the drugs discovered
during the search of appellant’s residence. This assignment of error is
overruled.
Agee, supra, at ¶ 22-55.
{¶61} In order to overcome the res judicata bar, Appellant offers the affidavits
of attorneys Cartwright-Jones and Gentile, which state that the guns were placed on
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the state’s table after identification in close proximity to the jury. (Cartwright-Jones
Aff., ¶ 4.) Cartwright-Jones also states that the assistant prosecutor “slowly walked
from the table to the witness stand, displaying the weapon to the jury as he passed
the jury box,” and that these actions occurred despite “strenuous, repeated
objections” from the defense. Id. The Cartwright-Jones and Gentile affidavits also
aver that Tequi Clinkscale was placed in handcuffs and flanked by two Deputy
Sheriff’s during her testimony. Id. at ¶ 3.
{¶62} As stated above, “[a] postconviction petition may also be dismissed
without a hearing where the claims are barred by res judicata.” West, supra, at ¶ 24.
Res judicata bars any claim or defense that was raised or could have been raised in
an earlier proceeding. See Perry, 10 Ohio St.2d at 180-181. Further, “[t]he doctrine
of res judicata excludes subsequent actions or postconviction petitions involving the
same legal theory of recovery as the previous action or petition as well as claims
which could have been presented in the first action or postconviction petition.” State
v. Sawyer, 8th Dist. No. 91946, 2009-Ohio-2391, ¶ 19, citing Cole, at syllabus.
{¶63} In regard to Appellant’s current argument, the record contains the trial
court's statement, made outside of the hearing of the jury, concerning the State's use
of the firearms found inside Appellant’s mother’s house and the .308 rifle used for
demonstrative purposes only:
On the record. I just want the record to reflect that the guns that were
seized at the residence in this matter were only being displayed to the
jury while they were being identified, and that the gun that was testified
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to was only displayed to the jury while the person from BCI testified
about it when it was taken from Portage County to establish the chain of
custody. It was not taken out of the box by the officer; correct?
(Trial Tr., p. 426.) Both parties agreed that this statement portrayed an accurate
summary of events. The jury was later instructed on the use of demonstrative
evidence. (Trial Tr., pp. 651-652.) Thus, the trial record contains evidence that the
state displayed multiple firearms to the jury and used the .308 rifle for demonstrative
purposes. Appellant has failed to offer relevant evidence found outside of the record
to overcome res judicata.
{¶64} This Court has previously concluded that the .308 caliber rifle (Exhibit
134) was properly introduced as demonstrative evidence, and the drugs, guns, and
ammunition found in the same house as the .308 cartridge were relevant and
admissible to rebut Appellant’s defense. There is no reason why a constitutional
challenge could and should not have been raised on direct appeal. Even the
Cartwright-Jones affidavit clearly states that there were strenuous and repeated
objections during trial regarding the display of the guns.
{¶65} Finally, following Tequi Clinkscale's testimony, defense moved for a
mistrial because she was handcuffed in front of the jury. (Trial Tr., p. 109.) The trial
court denied the motion. (Trial Tr., p. 111.) In support, the trial court made the
following findings on the record:
The Court, first of all, will note for the record that not only was the
witness evasive in her answers, as the record will reflect, the Court
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recessed, allowing her to refresh her memory, and she came back and
was evasive again, as well as raised her voice in speaking to the Court
and counsel. The Court will not permit any witness or anyone to disrupt
proceedings in this courtroom. The Court took the appropriate actions
necessary to ensure the safety of everyone present in the courtroom.
Therefore, the Defendant's motion is overruled.
The Court will, however, issue an instruction to the jury, which I believe
has been reviewed by the parties, ensuring that the jury is ensured that
they are not to take -- any actions taken against the witness, that they
are not to hold them against the Defendant.
The Court is also going to issue instructions to the jury about other
witnesses that may appear in handcuffs due to their lack of -- lack of
willingness to testify in this matter about statements previously given to
the police.
(Trial Tr., pp. 110-112.) The trial court then properly instructed the jury that its
actions, taken against Clinkscale, were not to be held against Defendant:
Next, ladies and gentlemen, yesterday you observed the Court having
to unfortunately order the deputies to handcuff a witness. The Court
informs the jury that after the witness began her testimony and was only
giving evasive answers, the Court ordered the witness to review her
videotaped statement to refresh her memory. The Court then explained
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to the witness the importance of testifying accurately and completely.
The Court cautioned the witness not to be disrespectful or disrupt these
proceedings. Upon her return to the Court, the witness continued to
answer the questions evasively and began to disrupt the Court in an
attempt to engage the Court in acrimonious colloquy.
It is the responsibility of the Court to maintain the proper decorum at all
times and to maintain the safety of everyone in the courtroom. The
Court instructs the jury that any action taken by the Court against that
witness is, in no way, to be held against the defense or the Defendant
Kevin Agee.
The Court is further going to instruct you that there may be other
witnesses that prove to be difficult, and that this action or similar actions
may have to be taken against those witnesses. I will once again give
you an instruction that if that happens, you are in no way to infer any
actions taken by the Court to be held against the Defendant or the
defense.
(Trial Tr., pp. 117-119.)
{¶66} Evidence that Tequi Clinkscale was placed in handcuffs during her
testimony is clearly contained within the trial record. Yet again, Appellant has failed
to offer relevant evidence found outside of the record to overcome res judicata.
Therefore, Appellant's third claim for relief is entirely barred by res judicata, because
he has failed to offer new evidence and had the ability to have raised his
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constitutional claims on direct appeal. Appellant’s third assignment of error is not
well-taken and is overruled.
Fifth Assignment of Error
The trial court violated Kevin Agee's statutory and due process rights to
meaningful consideration of the claims raised in his amended petition
when it disposed of the first three grounds for relief on the basis of
factual findings that contradict the record, and when it overlooked the
fourth ground for relief.
{¶67} In Appellant’s fifth assignment of error, he argues that he was denied
meaningful review of his petition because the trial court relied on errant facts to
dismiss his first three assignments of error, and failed entirely to address his fourth
assignment of error, which contained a challenge to the trial court’s ruling on the
motion to suppress. The trial court’s failure to address the fourth assignment of error,
predicated on the trial court’s denial of the motion to suppress, has been previously
addressed.
{¶68} As to his claim that the trial court made certain misstatements of fact in
deciding Appellant’s petition, he appears to be correct. With respect to the first
ground for relief, the trial court stated Appellant argued in his amended petition that
Appellant remembered an Einstein quotation because his uncle was in jail at the
same time as Appellant. This argument was not made in the amended petition. The
trial court concluded that “[Appellant] only remembered [the Einstein quote] because
his uncle – who was in jail with him – showed him the quote is unrealistic and
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unbelievable.” (6/17/14 J.E., p. 2.) Appellant testified at the August 25, 2011 hearing
that he posted the quotation in his cell and read it every day. Consequently, the trial
court’s findings with respect to the Einstein quotation appear to be made in error.
{¶69} With respect to the second ground for relief, Appellant relies on the trial
court’s observation that the alleged discrepancy between Exhibits 103 and 113 “was
litigated and briefed prior to trial.” (6/17/14 J.E., p. 3.) In fact, the alleged
discrepancy was raised for the first time in the motion for new trial. Accordingly, the
trial court mistakenly concluded that the matter had been resolved before trial.
{¶70} With respect to the third ground for relief, Appellant relies upon the trial
court’s statement that “the weapons found at Agee’s house and the .308 rifle were
not displayed in plain sight of the jury. The .308 rifle was not taken out of the box
and displayed to the jury.” (6/17/14 J.E., pp. 3-4.) This, too, contradicts the trial
record.
{¶71} Although all of the foregoing statements by the trial court in the June
17, 2014 judgment entry were made in error, this does not impact our determination
that Appellant failed to support the claims in his amended petition with evidentiary
material setting forth sufficient operative facts to demonstrate substantive grounds for
relief, as we have fully discussed in our Opinion in this matter. None of these
misstatements aids Appellant’s cause or impacts on the law to be applied. Despite
these minor errors, the trial court reached the correct conclusion regarding
Appellant’s claims. Accordingly, Appellant’s fifth assignment of error is without merit
and is overruled.
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Sixth Assignment of Error
The trial court abused its discretion in denying Kevin Agee's amended
petition because, even if none of the grounds for relief warrant relief
individually, the cumulative effect of the errors and omissions asserted
in the amended petition was prejudicial and denied Kevin's rights under
the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.
{¶72} The cumulative error doctrine provides that a conviction can be
reversed where the cumulative effect of trial errors deprives the defendant of the
constitutional right to a fair trial, even though each of the instances of error does not
individually constitute grounds for reversal. See State v. Garner, 74 Ohio St.3d 49,
64 (1995). The doctrine is inapplicable where Appellant fails to establish multiple
instances of error. See Id. Further, this Court has stated that the cumulative error
doctrine is inapplicable where cumulative errors are harmless beyond a reasonable
doubt. See State v. Bell, 7th Dist. No. 06 MA 189, 2008-Ohio-3959, ¶ 180, quoting
State v. Anderson, 7th Dist. No. 03 MA 252, 2006-Ohio-4618, at ¶ 80. And “[t]he
Supreme Court [of Ohio] has held that it is not enough to simply ‘intone the phrase
cumulative error.’ ” State v. Young, 7th Dist. No. 07 MA 120, 2008-Ohio-5046, ¶ 65,
quoting State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4843, ¶ 197. “Thus, where
an appellant raises the doctrine without further analysis, the assignment of error has
been held to lack substance.” Young, supra, at ¶ 65, citing State v. Sapp, 105 Ohio
St.3d 104, 2004-Ohio-7008 ¶ 103.
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{¶73} Appellant contends that, “[h]ere, the multiple instances of counsel’s
deficient performance involving [Appellant’s] TBI and the discrepancy between
Exhibits 103 and 113, the State’s overreaching in obtaining [Appellant’s] statement,
and the prejudicial impact of the court’s rulings described in the third ground
combined to deprive [Appellant] of the fair trial the Constitution promised him.”
(Appellant’s Brf., p. 32.) Appellant has invoked the phrase “cumulative error,” but
provides no argument in support of his claim. Further, only one of Appellant’s
assignments have revealed even harmless error. Therefore, the cumulative error
doctrine clearly does not apply. Accordingly, Appellant’s sixth assignment of error is
not well taken and is overruled.
Conclusion
{¶74} Appellant has failed to offer evidence dehors the record in support of
his right to counsel and due process claims regarding the appointment of a
neuropsychologist and/or neurologist, which could have been raised on direct appeal.
In the alternative, Appellant has failed to offer evidentiary material setting forth
sufficient operative facts to demonstrate a reasonable probability that a neurological
expert would have aided his defense, and that the denial of expert assistance
resulted in an unfair trial. Accordingly, Appellant’s first assignment of error
predicated upon ineffective assistance of counsel is overruled.
{¶75} Appellant has likewise failed to offer evidentiary material setting forth
sufficient operative facts to demonstrate that his confession was neither knowing nor
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voluntary. Accordingly, Appellant’s fourth assignment of error based on the trial
court’s judgment entry denying the motion to suppress is overruled.
{¶76} With respect to the alleged discrepancy of the evidence, Appellant
could have raised his constitutional challenge to his trial counsel’s failure to raise the
evidentiary issue on direct appeal, and, as a consequence, his second ground for
relief is barred by res judicata. Even assuming that Appellant provided new evidence
to overcome the procedural bar, he has failed to cite evidentiary material setting forth
sufficient operative facts to demonstrate that the round depicted in Exhibit 103 is not
the round marked Exhibit 113. Therefore, his second assignment of error is
overruled.
{¶77} Similarly, Appellant’s third claim for relief, based on the admission of
the guns at trial, display of the rifle during the state’s closing argument, and the
handcuffing of a witness during her testimony, is barred by res judicata. Appellant
has failed to offer new evidence and it is evident his constitutional claims could have
been raised on direct appeal. Thus, Appellant’s third assignment of error is
overruled.
{¶78} Appellant’s fifth assignment of error is based upon numerous minor
factual errors that do not impact the decision in this matter and the failure of the trial
court to analyze his fourth claim for relief in the judgment entry denying his amended
postconviction petition. Despite the factual errors and the omission, the trial court,
nonetheless, reached the correct conclusion regarding Appellant’s claims. As a
consequence, his fifth assignment of error is overruled.
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{¶79} Finally, as we find no error has occurred that even arguably rises to the
level of harmless error, Appellant’s sixth assignment of error predicated upon
cumulative error is overruled. Accordingly, the judgment of the trial court is hereby
affirmed.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.