         [Cite as State v. White, 2016-Ohio-3329.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO                                        :   APPEAL NO. C-150250
                                                         TRIAL NO. B-1306375
        Plaintiff-Appellee,                          :

  vs.                                                :
                                                            O P I N I O N.
JULIUS WHITE,                                        :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 10, 2016


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Wendy R. Calaway, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Judge.

       {¶1}   Defendant-appellant Julius White appeals from the judgment of the

Hamilton County Court of Common Pleas convicting him, after a jury trial, of

aggravated murder, in violation of R.C. 2903.01(B), and a firearm specification.

White argues (1) that he was denied his right to a trial by an impartial jury because

the trial court refused to dismiss a juror who expressed concern over retribution, (2)

that his conviction was not supported by sufficient evidence and was against the

manifest weight of the evidence, (3) that he was denied his right to the effective

assistance of trial counsel, (4) that the trial court improperly instructed the jury, and

(5) that the prosecutor engaged in misconduct during closing argument. For the

reasons that follow, we affirm.

                      I. Background Facts and Procedure

       {¶2}   Fourteen-year-old Dwayne Lewis was shot multiple times and killed

on Knox Street in a secluded corner of the Fairmount area in Cincinnati late in the

afternoon of October 15, 2013. Lewis, who lived in the Hawaiian Terrace housing

complex located in the Mt. Airy area of Cincinnati, was last observed walking home

from his school bus stop and reluctantly getting into a black Infiniti car with tinted

windows that was parked at the complex. Lewis’s friend Timothy Lindsey recalled

that before getting into the car, Lewis seemed distressed. When Lindsey asked him

what was wrong, Lewis replied, “Tell momma I love her, I’m about to go to my

daddy[’s] house.”

       {¶3}   Lindsey also recalled that around that time two individuals had asked

him about a break-in at “their people’s house” and offered him money for

information. When Lindsey replied that he did not know anything about it, the men

walked away. From a distance, Lindsey saw one of those individuals enter a black

Infiniti, along with another black male and Lewis. The car then drove off.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



         {¶4}    Two other eyewitnesses saw men canvassing the neighborhood that

afternoon for information about the break-in. One of those witnesses, 14-year-old

Traevon Harris, identified White as person who was also present that day around a

black Infiniti with Lewis. Harris additionally saw that when Lewis entered the black

Infiniti, an individual other than White had pointed a gun at Lewis. Harris was

interviewed by the police five days after the murder, and his interview was recorded.

         {¶5}    The day before Lewis was shot, White was in Paris, France, with his

girlfriend, Kaiya Issacs.     But he learned through his cousin Lakendra White

(“Lakendra”) that the townhouse in Hawaiian Terrace that he used and that

contained drug-trafficking materials had been broken into and money had been

taken.    The townhouse was rented by Lakendra, who had messaged White on

Facebook that “they broke into my fucking house.”

         {¶6}    Before leaving for France, White had been the subject of a drug

investigation.     As a result of this investigation, law enforcement officials had

obtained a warrant for a GPS tracker to be placed on the black Infiniti car registered

to Issacs but regularly driven by White. The GPS device was placed on the black

Infiniti after White had parked it in the long-term parking lot at the

Cincinnati/Northern Kentucky International Airport, located in Hebron, Kentucky.

         {¶7}    White returned to Cincinnati in the early afternoon of October 15. The

GPS tracker began to capture the location of the black Infiniti at 3:19 p.m. after the

car had exited from the long-term parking lot. The GPS records showed the car

travelled north to the Roselawn area in Cincinnati on Section Road where Issacs’s

mother lived. The car then travelled south to the downtown area and was recorded

on Stark Street, where White’s mother lived, at 4:19 p.m. According to these records,

the car was stopped on Stark Street for less than five minutes.

         {¶8}    Between 4:39 p.m. and 4:51 p.m., the black Infiniti was at Hawaiian

Terrace. This was the same time that Lewis was seen entering the car. The records



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                    OHIO FIRST DISTRICT COURT OF APPEALS



also show the car then travelled to the same secluded corner of Fairmount where

Lewis was shot, and it was in that area at the same time that Lewis was shot based on

a 911 call from a passerby that prompted a police dispatch at 5:11 p.m. The GPS

records were corroborated by a surveillance camera that capture the image of a black

Infiniti with tinted windows passing a residence down the road from where Lewis’s

body was found. The car passed the surveillance camera just before the residents

heard gun shots and a few minutes before Lewis’s body was discovered.

       {¶9}   On October 17, two days after the shooting, White hired a local

company to remove the window tint from the black Infiniti. Then, on October 19,

White was arrested. At the time of the arrest, the police located White’s iPhone

hidden behind a wall clock in the bathroom of the apartment where he was found.

The phone, which was in a case that incorporated a photo of White, was wrapped in

aluminum foil. A review of the web history on the device showed that White was

following coverage of the murder by local news organizations, and two headlines had

been saved as screenshots. All of the calling and text records for the time period of

the murder had been deleted from the device.

       {¶10} Although the calling and texting records for the relevant time period
had been deleted from the iPhone, the police were able to subpoena those records as

well as the cell-phone-location records of the iPhone from Verizon Wireless, White’s

cellular service provider. Those location records corroborated the GPS records and

placed White at Hawaiian Terrace and in Fairmount at all relevant time periods.

And the call log for the iPhone showed a call from that phone to Issacs’s phone at

5:10 p.m. and to White’s mother’s phone at 5:25 p.m.

       {¶11} At one point after White’s arrest, White was incarcerated in the Butler
County jail. White told Charles Sullivan, another inmate, that he had shot a 14 year

old who had “broke[n] in his spot” in Hawaiian Terrace and stolen $100,000 to

$200,000 in cash while White was in Paris. According to Sullivan, White also



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mentioned other details of the crime, including that the victim had just arrived home

from school on the bus when he was abducted by White and a man named Aundon.

Additionally, White said that the victim was taken to the North Fairmount area in a

black sports car. Sullivan shared this information with the police.

       {¶12} Later, Sullivan received from another inmate a threatening note
handwritten by White. White made reference to Sullivan “show[ing] up at [his] court

date,” and relayed to Sullivan that he had been told by “lil sticks” that “it wouldn’t be

nothing to get at yo mama a[nd] yo kids” in Cincinnati. White further threatened

that a funeral would follow.

       {¶13} White’s DNA was found inside the black Infiniti, along with a
photograph of White with two individuals known as Aundon and Young Sticks.

Gunshot residue was found on the exterior of the car, indicating that a weapon had

been fired nearby.

       {¶14} Lewis’s deceased body was discovered on Knox Street near empty shell
casings, indicating that he was shot on the street. The location of his bullet wounds—

in the nonvital areas of his ear, elbow, and thigh, and the fatal shot to his head—

indicted that he may have been tortured during an interrogation.

       {¶15} At White’s trial, the state called various witnesses including Harris.
Initially, Harris testified inconsistently with his prior statement to the police and was

uncooperative. He claimed that he did not remember the police interview, but he

later explained that he was afraid to testify about what he had seen. The court

allowed Harris to consult with an attorney. Subsequently, Harris agreed to testify

truthfully if granted immunity from prosecution for his perjury.

       {¶16} After the trial court granted Harris immunity, Harris testified that,
consistent with his earlier statement to the police, White was one of the men he had

seen forcing Lewis into the black Infiniti. Harris admitted, however, that when he

identified White during the photographic lineup during the police interview five days



                                           5
                     OHIO FIRST DISTRICT COURT OF APPEALS



after the murder, he had also recognized White’s face from a news report announcing

White’s arrest in conjunction with the case.

       {¶17} Sullivan testified as to the information he had learned from White at
the Butler County jail about the crimes, including White’s admission to shooting

Lewis. The cross-examination of Sullivan revealed some conflicts between what

Sullivan testified to and his statement to the police. But Sullivan maintained that

White had admitted to pulling the trigger, and that he had told the police that,

although he may not have communicated the information as clearly in his police

statement.

       {¶18} The final witness during the state’s case-in-chief was Detective
Gehring, who had investigated the homicide. Detective Gehring presented testimony

explaining the significance of the GPS and cell-phone-location records. During his

testimony, he detailed the path of the black Infiniti from the airport parking lot at

3:19 p.m. to a location on Section Road where White’s girlfriend’s mother lived.

Later that day, the defense presented Tonya White (“Tonya”), the defendant’s

mother, as the first witness for the defense. Her testimony was elicited to support the

defense’s theory that White’s cousin Demetrius White (“Demetrius”) had killed Lewis

after driving off in the black Infiniti with White’s iPhone.

       {¶19} Contrary to the GPS and cell-phone records, Tonya testified that after
White had returned from Paris, he had arrived at her home on Stark Road in the

“early afternoon,” around 2:30 p.m. At the time, Demetrius was inside her home.

She recalled that White and Demetrius, who goes by “Money Meech,” had a heated

discussion, and Demetrius left about four or five minutes later in the black Infiniti,

but White stayed behind and was still at her home when she left for dinner. Tonya

was adamant that she had left for dinner no later than 4:00 p.m., but the GPS and

cell records did not place the black Infiniti at her home until 4:19 p.m.




                                            6
                      OHIO FIRST DISTRICT COURT OF APPEALS



         {¶20} Tonya further testified that White’s girlfriend typically drove the black
Infiniti and White typically used a white Nissan registered to his cousin Lakendra.

But Tonya conceded that White also regularly drove the black Infiniti.

         {¶21} The jury subsequently found White guilty of aggravated murder,
murder, kidnapping, and felonious assault, all with firearm specifications. The trial

court convicted White of aggravated murder with a firearm specification and merged

the other offenses into that offense. White now appeals, raising five assignments of

error.

                                 II. Biased-Juror Claim

         {¶22} In his first assignment of error, White argues that his right to an
impartial jury was violated by the trial court’s failure to excuse a juror who expressed

a concern over safety during the trial.

         {¶23} The issue arose during a break in the course of White’s mother’s
testimony.    Juror One notified the bailiff that the witness’s testimony raised a

concern. The trial court called Juror One into chambers for questioning. During this

questioning, Juror One informed the court that he believed the defendant’s mother

lived on Section Road near him and he was concerned that someone in the

neighborhood might recognize him as a member of White’s jury. The court informed

the juror that the witness testified she lived on Stark Street in a different

neighborhood. The attorneys noted that Section Road may have been mentioned

earlier in the day with respect to the GPS evidence or cell-phone records. Defense

counsel then asked Juror One, with the court’s permission, “Now that we’ve settled

that, this isn’t going to affect your ability to remain fair and impartial, is it?”

         {¶24} Although Juror One had indicated during voir dire that he could be
fair and impartial to both parties, he replied, “I’m still questioning when I have all of

the facts straight in my head now. But if there is some connection to the Defendant

that is close to my address, I do have some concerns, yes. That is why I’m here.”



                                              7
                     OHIO FIRST DISTRICT COURT OF APPEALS



After recognizing that it was late in the case, he continued, “I have a very strong

commitment to do a duty here but I have a family as well.           And I have some

concerns.”

       {¶25} The court then informed Juror One that no one but counsel knew his
address.     Yet Juror One persisted in expressing concern for his family. The

prosecutor then confirmed that no one had approached Juror One and that Juror

One had given his full attention to the case. The prosecutor next asked, “[t]he only

issue is your ability to listen to the evidence, come back with a verdict based on what

you hear in this courtroom, and do so with the understanding that—that you are

doing so openly and honestly towards all parties involved. And do you believe that

you could do that?” Juror One replied, “Yes. This is kind of sudden to me. So I’m

kind of processing this all right now.”

       {¶26} Upon further questioning by defense counsel, Juror One clarified that
his concern was not about the defendant, but instead involved a fear of retribution on

behalf of the defendant from someone who recognized him in the neighborhood.

       {¶27} Defense counsel requested the trial court excuse Juror One,
contending that “he’s already found [the defendant] guilty” and “is worried about

retribution.” The state opposed the request, arguing that Juror One never indicated

that he had arrived at a conclusion, and Juror One’s concern involved his erroneous

belief that the defendant’s mother lived on Section Road near him.          The court

corrected the prosecutor and said Juror One was concerned about “living next to an

address that was connected to the case,” and decided to take the matter under

advisement.

       {¶28} At the conclusion of testimony for the day, the trial court told the
parties that it had reviewed the transcript from Detective Gehring’s testimony and

confirmed that Section Road was mentioned in connection with the address of

Kaiya’s mother. The court then inquired about and learned that neither Kaiya nor



                                          8
                     OHIO FIRST DISTRICT COURT OF APPEALS



her mother was scheduled to testify in the case. The court expressly stated that it

would consider that information when ruling on the motion.

       {¶29} The following morning, defense counsel asked the court when it
wished to address the motion to excuse Juror One. The court indicated that it would

address it just before submitting the case to the jury. The court then stated, “[i]f I’m

down to 12 jurors for some reason, * * * I’m probably not going to excuse him. You’ll

have an issue for appeal. * * * If we have 12 jurors plus one, I will more likely grant

it. I haven’t made my mind up on it.”

       {¶30} Three days later, before submitting the case to the jury, the court
denied the motion to excuse Juror One. The court also noted that the alternate juror

was with her husband in the hospital that morning, and that they would proceed with

just 12 jurors. Defense counsel then unsuccessfully moved for a mistrial.

       {¶31} White maintains that the court erred by failing to dismiss Juror One,
contending that the juror demonstrated bias and prejudice and an inability to be

impartial by expressing a concern for his safety. According to White, the trial court

based the decision on expediency and without regard for his constitutional rights.

       {¶32} White had a right under the federal and state constitutions to a trial
before an “impartial jury.” See State v. Jaryga, 11th Dist. Lake No. 2003-L-023,

2005-Ohio-352, ¶ 72. Before the conclusion of a trial, a trial judge is empowered to

remove a juror and replace the juror with an alternate whenever facts are presented

that convince the trial judge that the juror’s ability to perform his duty—including

the duty to be impartial—is impaired. State v. Hopkins, 27 Ohio App.3d 196, 197,

500 N.E.2d 323 (11th Dist.1985); see Crim.R. 24(G); R.C. 2945.29. A juror’s concern

for safety, standing alone, is not sufficient to demonstrate a juror’s impairment and

warrant a new trial. State v. Garcia, 8th Dist. Cuyahoga No. 79917, 2002-Ohio-4179,

¶ 86, quoted in State v. Carter, 7th Dist. Jefferson No. 05JE7, 2007-Ohio-3502, ¶ 17.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} Generally, the test for juror impartiality is whether a juror’s views will
impair the juror’s judgment to the extent that the juror would not be able to faithfully

and impartially determine the facts and apply the law according to instruction of the

court by “render[ing] a verdict based on the evidence presented in court.” Irvin v.

Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Dayton v. Gigandet, 83

Ohio App.3d 886, 891-892, 615 N.E.2d 1131 (2d Dist.1992).

       {¶34} The trial court is vested with “broad discretion” when determining a
juror’s ability to be impartial. State v. Dennis, 79 Ohio St.3d 421, 427, 683 N.E.2d

1096 (1997), citing State v. Williams, 6 Ohio St.3d 281, 288, 452 N.E.2d 1323 (1983).

The resolution of the impartiality issue relies in large part on the trial court’s

assessment of the juror’s credibility and demeanor and the context in which the issue

arises. See Skilling v. United States, 561 U.S. 358, 386, 130 S.Ct. 2896, 177 L.Ed.2d

619 (2010); State v. Williams, 79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997). See also

United States v. Ruggiero, 928 F.2d 1289, 1300 (2d Cir.1991) (refusing to “second

guess the conclusion of the experienced trial judge, based in large measure upon

personal observations that cannot be captured on a paper record, that [the juror] was

disabled by fear from continuing to participate in the jury’s deliberations”).

       {¶35} We review the trial court’s decision on whether to remove a juror for
bias only for an abuse of discretion. State v. Wyatt, 9th Dist. Summit No. 22070,

2004-Ohio-6546, ¶ 6, citing State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804

N.E.2d 433, ¶ 80; Hopkins, 27 Ohio App.3d at 198, 500 N.E.2d 323. The court

abuses its discretion when it issues a decision that is “unreasonable, arbitrary or

unconscionable.”    State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986

N.E.2d 971, ¶ 34, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980).

       {¶36} White has failed to demonstrate that the trial court abused its
discretion in retaining Juror One. Admittedly, the juror cited safety concerns, but



                                           10
                     OHIO FIRST DISTRICT COURT OF APPEALS



those concerns were not tied to any actual threats. Consistent with the law, the trial

court questioned Juror One in chambers about his concern for safety, reassured him

that his address was not shared, and learned that the juror was likely mistaken about

the basis for his concerns. The juror’s only specific concern involved a witness—the

defendant’s mother—whom he believed lived on his street and could recognize him

for that reason. But as the trial court later reported to the parties, the juror was

mistaken about where the witness lived. And the court confirmed that no one living

on the juror’s street would be testifying.

       {¶37} Importantly, the juror also indicated, upon questioning, that he could
return a verdict based on the evidence—what he heard in the courtroom—and that he

would act “openly and honestly towards all parties involved.” Significantly, the juror

did not come forward again with any similar concerns, and he never indicated that

he could not be impartial. The trial court was in the best position to assess the

juror’s credibility and demeanor and place the issue into context.

       {¶38} The trial court did consider the number of available potential jurors in
exercising its discretion. This does not, alone, demonstrate reversible error. “A valid

concern [for the trial court when exercising its duties with respect to the jury] may be

the expense and loss of time associated with a new trial,” but “the court must give

primary attention to the possibility of a biased juror.” United States v. Thompson,

744 F.2d 1065, 1068 (4th Cir.1984), citing United States v. Taylor, 554 F.2d 200 (5th

Cir.1997).

       {¶39} Here, the record demonstrates that White’s constitutional right to an
impartial jury dominated over the concern of expediency. The trial court mentioned

the expediency factor only after the in-chambers questioning and after the court’s

confirmation of the relevant factual context demonstrated that the removal of the

juror was unnecessary. Under these circumstances, we find no abuse of discretion,

and we overrule the first assignment of error.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



               III. Sufficiency and Weight-of-the-Evidence Claims

       {¶40} In his second assignment of error, White argues that his conviction
was not supported by sufficient evidence and was against the manifest weight of the

evidence. White was convicted of aggravated felony murder in violation of R.C.

2903.01(B), with a three-year firearm specification. The state’s theory was that

White had purposely caused Lewis’s death during the kidnapping. The state

proceeded against White as either a principal offender or as an accomplice who had

aided and abetted in the commission of the offense, as defined in R.C.

2923.03(A)(2).

       {¶41} White essentially raises two arguments when challenging the
sufficiency of the evidence. First, he contends that the state’s case against him was

based entirely on speculation, as evinced in part by the state’s decision to proceed

against White as a principal and as an accomplice. Second, White argues that there

was no evidence that Lewis was removed from the Hawaiian Terrace by “force,

threat, or deception”—as required by R.C 2905.01, the kidnapping statute. We reject

both arguments.

       {¶42} When reviewing a claim based on the sufficiency of the evidence, this
court must view all evidence and reasonable inferences in the light most favorable to

the state, and determine whether the trier of fact could have found all the elements of

the offense proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259,

574 N.E.2d 492 (1991), paragraph two of the syllabus. “Circumstantial evidence and

direct evidence inherently possess the same probative value.” Id. at paragraph one of

the syllabus. Here, the record contains substantial evidence of White’s guilt with

respect to the aggravated murder of Lewis, and his conviction was not based on mere

speculation.

       {¶43} Although no one testified to seeing White shoot Lewis, the state
presented overwhelming evidence that White committed the aggravated murder as



                                          12
                     OHIO FIRST DISTRICT COURT OF APPEALS



the principal or as an accomplice. With respect to complicity by aiding and abetting,

“the evidence must show that the defendant supported, assisted, encouraged,

cooperated with, advised, or incited the principal in the commission of the crime,

and that the defendant shared the criminal intent of the principal. Such intent may

be inferred from the circumstances surrounding the crime.” State v. Johnson, 93

Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus.

       {¶44} The evidence included testimony from Sullivan that White had
admitted to pulling the trigger when talking to him in the Butler County jail. Further,

there was a plethora of circumstantial evidence tying White to the crime.           Of

significance, there was evidence that White used his cousin’s townhouse that had

been broken into for drug activities, and that several individuals were canvassing the

Hawaiian Terrace housing complex asking about the break-in just before Lewis had

been driven away in a black Infiniti and shot.

       {¶45} More importantly, compelling evidence supported the conclusion that
White was in the black Infiniti that was used to kidnap Lewis and that was captured

around the time of the shooting on a surveillance camera located near the scene.

This included the cell-phone records for the cell-phone number associated with

White and the GPS records for the tracker placed on the black Infiniti that White

used. Additionally, Harris identified White as a person with Lewis when he had been

kidnapped in the black Infiniti.

       {¶46} White’s evasive conduct after the shooting is also strongly indicative of
his guilt. He had the dark tint on the Infiniti removed after news reports indicated

that the police were searching for a black Infiniti with tinted windows. And White

hid his cell phone, which had been wrapped in aluminum foil, behind a clock in his

bathroom. The text and calling history on the phone had been deleted. Further,

after confessing to Sullivan, White sent Sullivan a threatening letter related to

Sullivan’s potential testimony in court.



                                           13
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶47}    We conclude that the state met its burden with respect to proving that

White was either a principal or accomplice in the aggravated felony murder of Lewis.

       {¶48} We also conclude that the state presented sufficient evidence that
Lewis was kidnapped. For instance, Harris testified that one of Lewis’s assailants

showed a gun after Lewis was directed to get into the black Infinity. And Lindsey

and Harris testified that Lewis asked Lindsey to “tell my momma I love her” before

entering the car. This evidence demonstrates that Lewis was taken by force.

       {¶49} Alternatively, the evidence supported a determination that Lewis was
taken by deception. One may reasonably infer based on Lindsey’s testimony that

Lewis’s reference at that time to “going to [his] daddy’s house” indicated Lewis was

unaware that after entering that car he was going to be taken to a secluded area and

shot. In sum, we reject White’s sufficiency claim.

       {¶50} We also reject White’s claim that his conviction was against the
manifest weight of the evidence.        White attacks the credibility of the state’s

witnesses, and specifically Harris. But the jury was free to believe or disbelieve these

witnesses, whose testimony was corroborated by the other evidence. We note that the

weight to be given the evidence and the credibility of the witnesses are primarily for the

trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of

the syllabus.

       {¶51} Ultimately, we find nothing in the record of the proceedings below to
suggest that the jury, in resolving the conflicts in the evidence adduced on the charged

offense, lost its way and created such a manifest miscarriage of justice as to warrant the

reversal of White’s conviction. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). Accordingly, we overrule the second assignment of error.

                IV. Ineffective-Assistance-of-Trial-Counsel Claim

       {¶52} In his third assignment of error, White argues that he was denied the
right to the effective assistance of trial counsel, because counsel failed to file a



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                     OHIO FIRST DISTRICT COURT OF APPEALS



motion to suppress Harris’s out-of-court identification of White and to challenge the

admissibility of Sullivan’s jailhouse-informant testimony. We address each of these

arguments in turn, after setting forth the law applicable to both arguments.

       {¶53} To prevail on a claim of ineffective assistance of counsel, an appellant
must show both that counsel’s performance “fell below an objective standard of

reasonableness,” and “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” State

v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), citing Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “ ‘A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ ” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting

Strickland at 694.

       {¶54} White first contends that counsel was ineffective for failing to move for
the suppression of Harris’s out-of-court identification of White. But trial counsel’s

“ ‘failure to file a suppression motion does not constitute per se ineffective assistance

of counsel.’ ” State v. Magrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000),

quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305

(1986). To demonstrate that counsel’s performance was deficient with respect to a

suppression motion, the facts must demonstrate that the failure to move for

suppression was not a reasonable tactical decision and that the motion would have

been granted if filed.    See id.   With respect to prejudice, the defendant must

demonstrate a “ ‘reasonable probability’ ” that without the deficient performance, the

trier of fact would have had a “ ‘reasonable doubt concerning guilt.’ ” Madrigal,

quoting Strickland at 695. Generally, there is no prejudice where “ ‘compelling

evidence’ ” remains to support the conviction assuming the suppression motion

would have been granted. Id.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶55} Whether the Due Process Clause requires the suppression of an
eyewitness identification involves a two-step inquiry.        First, the court must

determine whether “law enforcement officers use[d] an identification procedure that

is both suggestive and unnecessary.” Perry v. New Hampshire, __ U.S. __, 132

S.Ct. 716, 724, 181 L.Ed.2d 694 (2012). If so, the court must determine whether

under the “ ‘totality of the circumstances,’ ” id. at 725, quoting Manson v.

Brathwaite, 432 U.S. 98, 110, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the identification

was nonetheless “reliable,” and admissible, even though the confrontation procedure

was “unnecessarily suggestive.” Id., citing Neil v. Biggers, 409 U.S. 188, 199-200, 93

S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Neal, 1st Dist. Hamilton No. C-140677,

2015-Ohio-4705, ¶ 28.

       {¶56} Six days after the murder, and two days after White had been arrested,
Harris identified White from a sequential lineup involving six photos shown to him

by Detective James Lewis, an officer uninvolved in the investigation.          Before

proceeding, Detective Lewis, a “blind administrator,” had read information to Harris,

consistent with R.C. 2933.83. This information included that Detective Lewis would

be showing Harris a group of photographs, and that “this group of photographs may

or may not contain the photograph of the alleged perpetrator of the offense now

being investigated.” Detective Lewis then instructed Harris, both orally and in

writing, to “[i]ndicate whether the photograph being viewed is of the perpetrator of

the offense being investigated.”

       {¶57} After receiving these oral and written instructions, Harris picked photo
number 3, which was a filler photo, and photo number 4, White’s photo. Referring to

White’s photo, Harris said, “I know him, I’ve seen him,” Detective Lewis then asked,

“You know him?” Harris replied that he didn’t personally know him and asked if he

was the person “that got locked up.” Detective Lewis indicated that he did not know,

and then said, “So you have seen him before?” Harris replied, “[t]his one, yes.”



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         {¶58} Although White argues that Harris identified White only after
“inappropriate prompting” by “the officer,” he does not specify what was

inappropriate about the procedure used by Detective Lewis. Instead, White provides

citation to the trial transcript containing defense counsel’s cross-examination of

Detective Gehring, one of the investigators, about the allegedly improper prompting

of Harris to implicate White during a follow-up interview.         But at the time of

Gehring’s follow-up interview, Harris had already identified White as an individual

present at the scene. Thus, Detective Gehring’s conduct did not steer Harris to

White.

         {¶59} However, the testimony referenced by White shows two potentially
questionable practices by the police before the follow-up interview. Just prior to

Detective Lewis’s meeting with Harris for the photo lineup, another detective had

told Harris that he would be shown “several groups of photos” and that “each group

of photos will have one of the people that we think did it * * * [but] [i]t doesn’t mean

they did it.” Additionally, the photograph of White that Detective Lewis showed

Harris was the same photograph the police had included in a press release

announcing White’s arrest two days earlier. We assume for purposes of argument

only, and without deciding the issue, that under these circumstances, the police used

“an identification procedure that [wa]s both suggestive and unnecessary,” Perry at

724, and apply the second part of the Perry test.

         {¶60} Thus, we inquire as “to whether under the totality of the
circumstances, the identification was reliable even through the confrontation

procedure was suggestive.”       Perry at 724.       To evaluate the likelihood of

misidentification, we focus on several factors, including but not limited to, Harris’s

opportunity to view the perpetrator at the time of the crime, the witness’s degree of

attention, the accuracy of the witness’s description of the perpetrator, the level of

certainty demonstrated by the witness at the time of the confrontation, and the time



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                     OHIO FIRST DISTRICT COURT OF APPEALS



between the crime and confrontation. Neal, 1st Dist. Hamilton No. C-140677, 2015-

Ohio-4705, at ¶ 28, citing Perry at fn. 5, and Biggers, 409 U.S. 188, 93 S.Ct. 375, 34

L.Ed.2d 401. If an identification is deemed reliable, it is admissible, notwithstanding

the improper procedure used by the police. Neal at ¶ 28, citing Perry at 725.

       {¶61} White argues that the identification was not reliable because Harris
was a distance away from the car and was under the influence of marijuana when he

witnessed the incident, he admitted that he was focused on the gun, it was dark

outside, and the incident occurred quickly. He also notes that Harris picked a filler

photo of a person who was not there. But Harris was certain of his identification of

Lewis when Detective Gehring questioned him about it in the follow-up interview

and when he testified. Moreover, the record indicates that Harris was familiar with

White—he was not a stranger. Thus, we agree with the state and conclude that under

the totality of these circumstances the identification was reliable, even if the police

employed a procedure that was unduly suggestive.

       {¶62} Finally, even assuming that suppression was warranted, in light of the
overwhelming proof of White’s identity from the GPS and phone records and

Sullivan’s testimony, we cannot say a “reasonable probability” exists that without

counsel’s allegedly deficient performance, the jury would have had a reasonable

doubt concerning guilt.

       {¶63} Ultimately, White cannot demonstrate that defense counsel’s failure to
file a motion to suppress constituted the ineffective assistance of trial counsel.

       {¶64} Next, White argues that trial counsel was ineffective for failing to
challenge the admissibility of Sullivan’s informant testimony. Sullivan testified that

White had confessed to him while they were both housed in the Butler County jail,

after White had been charged with aggravated murder.

       {¶65} White first contends that Sullivan’s testimony was inadmissible under
a theory that Sullivan elicited the statement from White after White had allegedly



                                           18
                     OHIO FIRST DISTRICT COURT OF APPEALS



asserted his right to counsel.      The state may not, consistent with the Sixth

Amendment, use a jailhouse informant to deliberately elicit post-indictment

incriminating statements from another inmate. See United States v. Henry, 447 U.S.

264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).

       {¶66} But here, the facts show no Sixth Amendment violation by the state.
There is no evidence that the state deliberately elicited the information from White

through Sullivan. The evidence instead shows White shared the information with

Sullivan during a casual, spontaneous conversation, and that Sullivan then contacted

the police and subsequently shared the information with the police. Thus, White has

failed to establish that counsel was ineffective for failing to challenge the

admissibility of Sullivan’s testimony on this ground.

       {¶67} White contends that trial counsel should have challenged the
admission of Sullivan’s testimony for an additional reason, suggesting that jailhouse-

informant testimony is always unreliable and inadmissible when the informant is

offering the testimony in exchange for consideration in a criminal case. Although

Sullivan testified that he did not contact the police to receive a reduction in a federal

prison sentence, Detective Gehring testified that Sullivan’s attorney had raised the

issue when Sullivan met with the police.

       {¶68} But White has failed to present any case law in support of his
argument that Sullivan’s testimony was per se unreliable and inadmissible for that

reason.   Even the testimony of a cooperating accomplice who is provided case

consideration is not per se unreliable. See State v. McCoy, 1st Dist. Hamilton No. C-

090599, 2010-Ohio-5810, ¶ 18-20.

       {¶69} Here, trial counsel vigorously cross-examined Sullivan and requested a
special cautionary jury instruction with respect to Sullivan’s testimony. The trial

court did not give the inappropriate special instruction, but it did instruct the jury to

apply the “tests of truthfulness” when evaluating credibility, including any “interest



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                      OHIO FIRST DISTRICT COURT OF APPEALS



and bias.” In light of this record, White has failed to show that trial counsel’s

performance was deficient because counsel did not object to the admission of

Sullivan’s testimony.

       {¶70} White also contends that he was denied the effective assistance of
counsel by the trial court’s grant of the state’s certification of nondisclosure of

witnesses, the trial court’s denial of defense counsel’s request for a continuance, and

the trial court’s failure to allow access to discovery to permit counsel to challenge

Sullivan’s testimony. But as the state notes, these claims are not appropriately

characterized as failures of White’s counsel, who advocated on behalf of White with

respect to the specified rulings. Because White failed to establish a claim based on

the ineffective assistance of trial counsel, we overrule the third assignment of error.

                        V. Erroneous-Jury-Instructions Claim

       {¶71} White’s fourth assignment of error assails the trial court’s instructions
to the jury. He challenges both the court’s refusal to give two instructions that he

sought and the court’s granting of the state’s request for an instruction on complicity

over his objection.

       {¶72} “Requested jury instructions should ordinarily be given if they are
correct statements of the law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the requested instruction.”

State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240. This

court reviews a trial court’s decision with respect to requested instructions under an

abuse-of-discretion standard. Id.

       {¶73} At trial, White sought a specific instruction cautioning the jury with
respect to Sullivan’s testimony as a jailhouse informant. The instruction was taken

from a federal jury instruction provided in cases involving a cooperating accomplice

witness who provides the only evidence connecting the defendant to the alleged

crimes. The instruction also incorporates parts of Ohio Jury Instructions, CR Section



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                      OHIO FIRST DISTRICT COURT OF APPEALS



409.17, which governs the testimony of an accomplice witness in Ohio. But here,

Sullivan was an informant, not a complicitor, and his testimony was not the only

evidence that connected White to the crimes alleged in this case. Therefore, the

requested instruction was not appropriate. See State v. Jackson, 2d Dist. Greene No.

2009CA21, 2010-Ohio-1127, ¶ 15.

         {¶74} White also requested that the jury be instructed to consider Harris’s
testimony with “more caution” than the testimony of the other witnesses because he

“may have been influenced by his grant of immunity.” But White cites no authority

establishing that this is a correct statement of the law. We note that the jury was

informed of the grant of immunity by stipulation and that it was free to consider that

fact in determining what weight to give Harris’s testimony, as instructed by the

court.

         {¶75} Because White was not entitled to the special instructions that he
requested, we find no abuse of the trial court’s discretion in denying his requests.

         {¶76} Finally, White argues that the trial court erred by giving the
complicitor instruction over his objection. According to White, the evidence in this

case did not show any complicity by White and only supported an instruction that

White acted as a principal offender. See State v. Wood, 48 Ohio App.3d 1, 548

N.E.2d 954 (1st Dist.1998). But we cannot say the trial court abused its discretion by

instructing the jury on complicity. No witness testified to seeing White shoot Lewis.

The state’s case against White was circumstantial other than Sullivan’s testimony

that White told him that he was the triggerman, testimony that was vigorously

challenged by White as unbelievable. And Harris testified that someone other than

White had the gun when Lewis entered the black Infiniti.

         {¶77} Because White has not demonstrated error in the trial court’s
instructions to the jury, we overrule the fourth assignment of error.

                       VI. Prosecutorial-Misconduct Claim



                                           21
                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶78} In his fifth assignment of error, White claims that prosecutorial
misconduct during closing argument deprived him of a fair trial. White argues that

the prosecuting attorney improperly vouched for the credibility of witnesses and, in

so doing, he made an argument not supported by the evidence. White further claims

that the prosecuting attorney denigrated defense counsel and improperly shifted the

burden of proof.

       {¶79} “The test regarding prosecutorial misconduct is whether the remarks
were improper and, if so, whether they prejudicially affected the accused’s

substantial rights.”    State v. Dean, ___ Ohio St.3d ___, 2015-Ohio-4347, ___

N.E.3d ___, ¶ 238, citing State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883

(1984). The analysis focuses on the fairness of the proceedings, not the prosecutor’s

culpability. Id. When reviewing a prosecutor’s comments in closing argument, we

must judge their effect in the context of the entire argument and the entire case. See

State v. Hart, 94 Ohio App.3d 665, 674, 641 N.E.2d 755 (1st Dist.1994); State v.

Curtis, 1st Dist. Hamilton No. C-150174, 2016-Ohio-1318, ¶ 13. White did not object

to any of the alleged misconduct and has waived all but plain error. Dean at ¶ 237.

       {¶80} It is improper for the prosecutor to vouch for a witness—to express an
opinion or personal belief as to the credibility of that witness by “imply[ing]

knowledge of facts outside the record or by plac[ing] the prosecutor’s personal

credibility in issue.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836

N.E.2d 1173, ¶ 117, citing State v. Keene, 81 Ohio St.3d 646, 666, 693 N.E.2d 246

(1998); see State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997). But the

prosecutor may argue that the other evidence corroborates the witness’s testimony,

especially when the witness’s credibility is attacked. Jackson at ¶ 120. And the

prosecutor may note that the witness lacked a motive to lie, because the witness was

testifying against the self-interest of safety, where the comment is supported by the




                                         22
                     OHIO FIRST DISTRICT COURT OF APPEALS



record. See id. That is what occurred in this case, not improper vouching or improper

reference to matters outside of the evidence.

       {¶81} The prosecutor must also refrain from denigrating defense counsel.
See Hart at 674, citing State v. Keenan, 66 Ohio St.3d 402, 405-406, 613 N.E.2d 203

(1993). Here, the prosecutor asked the jury to remember the cross-examination and

to consider whether there was “any attempt [by the defense] to twist Charles Sullivan

in what he said.” The prosecutor later stated in reference to Harris’s testimony that

the defense “put up their little screen of immunity to argue that that is why he is

lying.” While we do not condone this commentary on the tactics of the defense,

considering the argument as a whole, and the failure to object, we do not characterize

that isolated commentary as rising to the level of plain error.

       {¶82} Finally, White argues that the prosecutor improperly shifted the
burden of proof.     In the rebuttal portion of closing argument, the prosecutor

reiterated to the jurors that the evidence they could rely on was limited to testimony

of the witnesses and the admitted exhibits. The prosecutor then stated:

       Why is that important? Because in closing argument defense got up here and

       showed you a bunch of maps and places and locations of places that there was

       never a single bit of evidence about, except for document 25, [the GPS log],

       which gives you an address. If these addresses were so important to their

       theory of the defense in this case why didn’t they ask any questions about it?

Next the prosecutor argued that defense counsel had failed to ask the questions of

certain witnesses because the answers would not support the argument the defense

wanted to make.

       {¶83} Upon our review of these comments, and the context in which they
were made, we cannot say that the prosecutor improperly shifted the burden of

proof. Just before those comments, the prosecutor reiterated that the state had the

“burden to show beyond a reasonable doubt that the defendant committed the[]



                                           23
                      OHIO FIRST DISTRICT COURT OF APPEALS



crimes.” And the comments were directed to defense counsel’s argument in closing

argument that the state had not met its burden of proof because it had not explained

all the information in the GPS records. In commenting on the defense’s choice to

avoid asking certain questions, the prosecutor merely rebutted defense counsel’s

argument that the state had failed to meet its burden. This was not improper.

       {¶84} Accordingly, we overrule White’s fifth assignment of error.
                                    VII.      Conclusion

       {¶85} Having overruled each of White’s five assignments of error, we affirm
the trial court’s judgment in all respects.

                                                                     Judgment affirmed.



FISCHER, P.J., and HENDON, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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