State V. Johnson
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{¶96} “‘The statement of a co-conspirator is not admissible pursuant to Evid.R. 801(D)(2)(e) until the proponent of the statement has made a prima facie showing of the existence of the conspiracy by independent proof.”’ State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 116, quoting State v. Carter, 72 Ohio St.3d 545, 1995-Ohio-104, 651 N.E.2d 965, paragraph three of the syllabus. Evid.R. 801(D)(2)(e) does not require that explicit findings of the conspiracy be made on the record. Were. “The premature admission of such a statement is harmless error if the state subsequently supplies the requisite independent proof of a conspiracy.” Carter at 550. {¶97} A prima facie case is made where the evidence introduced is sufficient to support, but not compel, a particular conclusion, and which only furnishes evidence that the jury may consider and weigh, but need not accept. State v. Braun, 8th Dist. Cuyahoga No. 91131, 2009-Ohio-4875, ¶ 107, citing State v. Martin, 9 Ohio App.3d 150, 458 N.E.2d 898 (11th Dist.1983), citing Cleveland v. Keah, 157 Ohio St. 331, 105 N.E.2d 402 (1952). {¶98} “The proponent of the statement must establish: (1) the existence of a conspiracy; (2) the defendant’s participation in the conspiracy; (3) the declarant’s participation in the conspiracy; (4) that the statement was made during the course of the conspiracy; and (5) that the statement was in furtherance of the conspiracy.” Braun at ¶ 108, citing State v. Milo, 6 Ohio App.3d 19, 451 N.E.2d 1253 (10th Dist.1982).
conspiracy, at the very least, between Johnson and Coleman. Johnson participated in the conspiracy because he traveled to Cleveland at Coleman’s request, and Coleman participated in the conspiracy because she orchestrated the events by calling Johnson. Green and Howard both testified that Coleman was calling and texting Johnson while they were in the Dog Pound bar after her confrontation with Coates. When Howard was asked how he knew she was calling Johnson, Howard responded, “cuz she was mad” and because Coates “had hit her.” Green further testified that after Coates pushed Coleman up against a wall, Coleman stated “that Coates wanted to fight like a bitch,” so she was going to call her “brother,” who was later identified as Johnson. {¶100} Coleman’s statements to Gale were made in the course of the conspiracy because Coleman had already called Johnson to come to Cleveland; and the statement was made in furtherance of the conspiracy because it explained why Johnson was coming to Cleveland and would explain why Coleman was “calm,” according to Gale. Additional evidence of a conspiracy existed because Coleman, her children, and Gale left the scene with Johnson after Coates was shot. {¶101} Even if the admission of Gale’s testimony regarding Coleman’s statements was error, the jury heard testimony that Johnson approached Coates with a gun and admitted to shooting Coates. Therefore, Coleman’s purpose in having Johnson come to Cleveland was irrelevant. {¶102} As for Johnson’s argument that this testimony violated his right to confrontation, this court explained in Braun that “the Confrontation Clause is not violated by the admission of statements made by a co-conspirator in furtherance of the
conspiracy.” Braun, 8th Dist. Cuyahoga No. 91131, 2009-Ohio-4875, ¶ 115-118. Furthermore, we note that Coleman, the declarant, testified at trial and was subject to cross-examination; thus, Johnson was able to confront Coleman about the statements she made to Gale. {¶103} Accordingly, Johnson’s second assignment of error is overruled. III. Jury Instruction {¶104} In his third assignment of error, Johnson contends that the trial court erred in giving a flight instruction to the jury because no evidence existed showing that he took additional affirmative steps to evade detection and apprehension by the police.
of error will be addressed under the plain error standard of review. Crim.R. 52(B); In re: J.G., 2013-Ohio-583, 986 N.E.2d 1122, ¶ 10 (8th Dist.), citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. {¶106} In this case, the trial court gave the following instruction to the jury on flight:
Consciousness of guilt. Testimony has been admitted indicating that the defendant fled the scene. You are instructed that the fact that defendant fled the scene alone does not raise a presumption of guilt, but it may tend to indicate the defendant’s consciousness and/or awareness of guilt. If you find that the facts do not support that the defendant fled the scene or if you find that some other motive prompted the defendant’s conduct, or if you are unable to decide what the defendant’s motivation was, then you should not consider this evidence for any purpose. However, if you find that the facts support that the defendant engaged in such conduct, and if you decide that the defendant was motivated by consciousness and/or an awareness of guilt, you may, but are not required to consider that evidence in deciding whether the defendant is guilty of the crime charged. You alone will determine what weight, if any, to give this evidence.
numerous cases, including State v. Gibson, 8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762, ¶ 55, and State v. Hamilton, 8th Dist. Cuyahoga No. 86520, 2006-Ohio-1949. However, the instructions given in those cases were upheld because the evidence demonstrated that the instruction was warranted. {¶108} “[A] mere departure from the scene of the crime is not to be confused with deliberate flight from the area in which the suspect is normally to be found.” State v. Santiago, 8th Dist. Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 30, quoting State v. Norwood, 11th Dist. Lake Nos. 96-L-089 and 96-L-090, 1997 Ohio App. LEXIS 4420 (Sept. 30, 1997). {¶109} In Norwood, the court found that the flight instruction was error, albeit harmless error, because the defendant did not “leave the general area in which he may have normally been found. Additionally, we do not equate appellant’s attempt to hide in
[a friend’s] kitchen with flight.” Id. at *15. The court further found that “the facts are also insufficient to justify a flight instruction because appellant did not flee to a situs where he could not have been easily located.” Id. at *15-16. Accordingly, it must be clear that the defendant took affirmative steps to avoid detection and apprehension beyond simply not remaining at the scene of the crime.
leaving the scene was not deliberate flight in the sense of evading police and detection. In fact, everyone except Green and Fussell left the scene of the shooting. After leaving Green’s house, Johnson drove Coleman and Gale home, then went to his own home. Johnson did “not flee to a situs where he could not have been easily located”; rather he went home — a location where he normally could be found until he turned himself in after being apprised of the warrant for his arrest. Accordingly, we find the trial court erred in giving the jury the flight instruction. {¶111} Under our plain error review, however, we cannot say that this error by the trial court affected the outcome of the case. The instruction, although improper, ultimately allowed the jury to determine the defendant’s motivation in leaving the scene. The jury heard the testimony that everyone left the scene of the shooting, with Johnson driving Coleman, her children, and Gale (who had been stabbed) home.
{¶113} Johnson moved for a mistrial after the jury began deliberations on the basis that the prosecutor used the cell phone records for exactly what the trial court suggested should be avoided during closing arguments — the cellular towers and the significance of their locations. Johnson found issue not in the prosecutor pointing out the cell phone towers on the map, but that the prosecutor used the information to infer that Johnson was “lying in wait” to murder Coates. What is at issue is he said that, therefore, then can be interpreted as proof that the defendant lying in wait. And then looked at the jury and said, if a person lies in wait, it’s premeditated, it’s aggravated, it’s murder. And I believe that that misconduct rises to the level of a mistrial.
(Tr. 967.) {¶114} The trial court denied the motion, stating that it was most concerned that the cell phone records would be used to track Johnson’s travel from Akron to Cleveland. Having found that the prosecutor did not use the records for this purpose, the court found no misconduct. Furthermore, the court noted the independent testimony that placed Johnson at the scene and that the testimony revealed he was there only for pickup purposes and not for any nefarious reasons, such as to commit a crime. Accordingly, the court found no material prejudice.
erred in failing to grant a mistrial due to prosecutorial misconduct, in violation of defendant’s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.” {¶116} Specifically, Johnson contends that the state engaged in misconduct during closing argument when it used the cell phone records improperly by creating new demonstrative evidence by enlarging the phone records which, according to Johnson, were manipulations of the actual records. Johnson argues that these enlarged versions of the cell phone records included information provided by the state that caused them to be “labeled” and included a “legend” to interpret the calls, and “a map.” {¶117} The test for prosecutorial misconduct is whether the conduct was improper and, if so, whether it prejudicially affected the substantial rights of the accused. State v. Jones, 90 Ohio St.3d 403, 420, 2000-Ohio-187, 739 N.E.2d 300. The affect of the alleged misconduct must be judged in the context of the entire trial and not treated as an isolated incident in an otherwise properly tried case. State v. Singleton, 8th Dist. Cuyahoga No. 98301, 2013-Ohio-1440, ¶ 58. Accordingly, an appellate court should only reverse a conviction if the effect of the misconduct “permeates the entire atmosphere of the trial,” such that the defendant has been denied a fair trial. Id., citing State v. Tumbleson, 105 Ohio App.3d 693, 696, 664 N.E.2d 1318 (12th Dist.1995). In analyzing whether a defendant was deprived of a fair trial, an appellate court must determine beyond a reasonable doubt whether, absent the improper conduct of the prosecutor, the jury would have found the defendant guilty. See Maurer, 15 Ohio St.3d at 266-267, 473 N.E.2d 768.
explanations were questionable, we cannot find the harm to Johnson, nor has Johnson explained how these enlargements were prejudicial or affected the outcome of the case. First, our review of the record shows that the state used the cell phone records to support its theory that Johnson’s conduct was premeditated — with prior calculation and design, to prove their case for aggravated murder. The jury found Johnson not guilty of aggravated murder; thus, it can be necessarily inferred that they felt that Johnson’s conduct was not premeditated, and any inference about him “lying in wait” was harmless. {¶119} Morever, the defense theory of the case was that Johnson was present at Green’s house that evening, but that he was not the shooter. Therefore, the route that Johnson took from Akron to Cleveland was irrelevant. Finally, because the jury acquitted Johnson of aggravated murder, Johnson’s challenge to the trial court’s denial of his request for a mistrial is without merit.
V. Effective Assistance of Counsel {¶121} In his fifth assignment of error, Johnson contends that he “was denied the effective assistance of counsel, in violation of his right to counsel, and defendant’s right to due process of law, as protected by the Sixth and Fourteenth Amendments to the United States Constitution.” {¶122} Johnson claims his counsel was ineffective for failing to object to (1) the hearsay testimony, which was his second assigned error; (2) the jury instruction on flight, which was his third assigned error; and (3) the state’s closing argument, which was his fourth assigned error. {¶123} To establish ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance fell below an objective standard of reasonable representation and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. (1984). Prejudice is established when the defendant demonstrates “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland at 694.
hearsay testimony. As discussed in his second assignment of error, the testimony was admissible as non-hearsay because it was made by a co-conspirator. Therefore, counsel’s failure to object would have been futile. {¶125} Nevertheless, a review of the record demonstrates that counsel did object when the state attempted to question Gale again about Coleman’s statements. See tr. 632. However, after a side-bar discussion, counsel withdrew his objection. On cross-examination, counsel explained why he withdrew his objection — as a strategic tactic to support the defense theory that Gale actually called Johnson that evening. See tr. 640. According to the defense, the cell phone records indicated that Gale’s phone was used to call Johnson, and although the state argued that Coleman was using Gale’s phone while seated in Gale’s car, Gale’s records further showed that the calls were being made to Johnson prior to Coleman allegedly using Gale’s phone. Accordingly, we find counsel’s failure to object or his subsequent withdrawal of the objection was for strategic purposes; thus, it cannot be deemed as ineffective.
jury instruction. As discussed under Johnson’s second assignment of error, the trial court erred in instructing the jury on flight because the evidence did not support such instruction; therefore, an objection to that instruction would not have been futile. However, the error was harmless considering the instruction as a whole allowed for the jury to conclude that Johnson’s departure from the scene was motivated by other factors, including that Gale had been stabbed or to remove Coleman’s children from the scene.
to object to the state’s closing argument, specifically about the cell phone records. Johnson also contends that counsel should have requested a curative instruction after their use in closing argument. As discussed under Johnson’s fourth assignment of error, the state was unsuccessful in its use of the enlarged cell phone records. Therefore, the failure to object was harmless. {¶128} Moreover, counsel’s request for a curative instruction at that point would have been prejudicial. Asking for a curative instruction would have heightened the juror’s awareness of the significance of the cell phone records and their importance in proving premeditation. Rather, counsel acted appropriately in requesting a mistrial based on the perceived prejudicial effect of the enlarged and summarized cell phone records.
{¶129} Based on the record before this court, we cannot say that Johnson was denied the effective assistance of counsel to the extent that he was prejudiced and the result of the trial would have been different. Johnson’s fifth assignment of error is overruled. VI. Cumulative Error
below denied [him] of his right to a fair trial under [the] Fifth, Sixth and Fourteenth Amendments to the United States Constitution, because of cumulative errors during the trial of this case.” {¶131} The “cumulative error” doctrine states that a “conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of the numerous instances of the trial court errors do not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 1995-Ohio-168, 656 N.E.2d 623. In order to find cumulative error, we must find: (1) that multiple errors were committed at trial, and (2) there is a reasonable probability that the outcome of the trial would have been different but for the combination of the separately harmless errors. State v. Viceroy, 8th Dist. Cuyahoga No. 97031, 2012-Ohio-2494, ¶ 21, citing State v. Clark, 8th Dist. Cuyahoga No. 89371, 2008-Ohio-1404, ¶ 62. {¶132} Although we found that the trial court erred in giving a flight jury instruction, we found that this error did not rise to the level of reversible error. Accordingly, having found no other causes for reversal, this doctrine is not applicable to this case. Johnson’s sixth assignment of error is overruled. {¶133} Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and EILEEN A. GALLAGHER, J., CONCUR
KEY WORDS:
Confrontation clause, hearsay, statement by co-conspirator, Evid.R. 801(D)(2)(e), flight jury instruction. Defendants right to confront witnesses was not violated where statement was admissible pursuant to Evid.R. 801(D)(2)(e), a statement made by a co-conspirator. Additionally the declarant of the statement testified at trial and was subject to cross-examination. Trial court erred in giving the jury an instruction on flight
because the evidence did not support such instruction. However, this error did not rise to the level of plain error to warrant reversal.
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