[Cite as State v. West, 2020-Ohio-3434.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                  No. 19AP-90
v.                                               :            (C.P.C. No. 17CR-6048)

James R. West,                                   :           (REGULAR CALENDAR)

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                      Rendered on June 23, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee. Argued: Michael P. Walton.

                 On brief: Yeura R. Venters, Public Defender, and Robert D.
                 Essex, for appellant. Argued: Robert D. Essex.

                  APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.
        {¶ 1} Defendant-appellant, James R. West, appeals the judgment of the Franklin
County Court of Common Pleas finding him guilty of two counts of felonious assault with
firearm specifications and one count of having weapons while under disability, and
sentencing him to a total of 12 years' incarceration. West asserts three assignments of error:
he argues the trial court's questions to him during his testimony demonstrated bias and
constituted structural error; the trial court further erred by precluding the testimony of a
witness; and finally, that these two errors even if separately harmless were prejudicial when
viewed together.




2020-Ohio-3434.docx
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No. 19AP-90
       {¶ 2} The charges against West arise from an altercation that occurred a few
minutes just prior to 11:00 p.m. on October 2, 2017, at Beverage Warehouse on East 11th
Avenue in Columbus. Apparently angry from some perceived slight that occurred inside the
store, West threatened a fight with Patrick Akers and his friends in the store parking lot. It
is not entirely clear who threw the first punch but, in any event, after some punches were
thrown between them, Akers and West separated. But one of West's friends was armed and
after being handed the gun, West fired several shots at Akers and his friends. West then got
into a car with one of his friends and sped away. Akers was hit twice, both times in his right
leg. The police arrived on the scene almost immediately, because there is a substation close
by, but West and his friends were already gone by the time they arrived. Akers, who had
been shot, remained.
       {¶ 3} When later questioned, and after waiving his Miranda rights, West admitted
he was present at the scene and had an altercation with Akers and also that there was
gunfire, but denied that he was the shooter. But the initial altercation inside the store, the
fight in the parking lot, and the shooting were all captured on security camera footage from
multiple angles and established that West had fired a gun at Akers.
       {¶ 4} West decided to testify at his jury trial against the advice of his attorney.
During his testimony, he admitted to firing a gun in the direction of Akers, but claims he
was shooting at the ground and essentially asserts that all of his actions were taken in self-
defense because Akers had threatened to rob him.
       {¶ 5} During West's examination, the trial court interjected multiple times and
asked multiple questions, some of which were aggressive and seemed to elicit problematic
statements from West. There were no objections from West's counsel regarding any of the
trial court's questions, but on appeal West challenges several questions by the court. At one
point the trial court asks West in reference to the video "[i]s that you with the gun,
shooting?" and West responds affirmatively, which is the first time in the transcript that
West admits to firing a gun. (Tr. Vol. III at 367.) The trial court also questioned West
skeptically regarding the basis of his claim that Akers was threatening to rob him—"[Akers]
didn't say he was going to rob you. You thought that's what he was implying by saying the
'N' word, and I'm going to take your money?" Id. at 366. And toward the end of plaintiff-
appellee, the State of Ohio's cross-examination, this exchange occurred:
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No. 19AP-90
                 THE COURT: You lied to the police, didn't you?

                 THE DEFENDANT: Because I wanted to give myself a fighting
                 chance in court * * * I knew if I pled guilty that day, there would
                 be no way for me to come all the way to this point.

                 ***

                 THE STATE: Okay. You said, "[t]here was some shooting, but
                 it wasn't me," right?

                 THE DEFENDANT: I just told you what I said. I didn't have a
                 lawyer present, so why would I plead to anything?

                 THE COURT: It wasn't a question of pleading. You waived your
                 right, and you made a statement to the police. You didn't tell
                 them it was self-defense at that time. It's just that simple, right?

                 THE DEFENDANT: Yes, sir.

Id. at 411-12.

       {¶ 6} Following West's testimony, his attorney did not call any additional
witnesses. West was upset with this because he wanted to call witnesses to establish that at
the time he fired the shots, he could not see because his eyes were bloodied up from being
hit early in the fight. But although at least one such person was present to testify, that
witness was unknown to defense counsel, had not been previously disclosed to the state,
and apparently had been sitting in the gallery for the duration of the trial. After a sidebar
conference, the trial court brought the proposed witnesses into the courtroom, outside of
the presence of the jury, and confirmed the state objected to testimony by undisclosed
witnesses. The court concluded that the testimony would be duplicative, since West had
already testified that "he got hit hard in the face," that "he couldn't see out of his eye," and
that "he had a bloody nose." Id. at 419-20.
       {¶ 7} The trial court then ruled that "there's enough evidence to give the jury a self-
defense instruction, and it will be the instruction that deals with the use of deadly force."
Id. at 421-22. And apparently in an attempt to ensure the jury was not improperly
influenced by its questions to West, the trial court gave an additional curative instruction
to the jury:
                 THE COURT: The next part is important. Sometimes I ask
                 questions. However, any question that I ask of any tone in my
                                                                                           4
No. 19AP-90
              voice, because I can get aggravated, don't take that as any
              indication of how I think the case should come out.

              How I think a case should come out has no bearing on anything.
              Don't place any emphasis on any questions I asked, and don't
              put any emphasis on why I asked a question. It doesn't matter.
              What matters is your evaluation. If I did anything, disregard it.

Id. at 475.
       {¶ 8} The jury was sent to deliberate at 2:40 p.m. At 3:25 p.m., the jury sent the
court a written question and asked whether they could be escorted to their cars after they
returned a verdict and the court gave them an affirmative answer. The jury reached its
verdict at 4:35 p.m., and at 4:43 p.m. West was found guilty on both counts of felonious
assault with gun specifications. Shortly after the jury was excused, the court issued a bench
verdict finding West guilty of having weapons under disability.
       {¶ 9} The following day, the trial court sentenced West to a total of 12 years'
incarceration, and stated the following:
              THE COURT: And I think you lied on the stand. I do, sir, I'm
              sorry. I think you absolutely lied and changed your story. I get
              it, nobody wants to do 12 or 13 years. People do lie when they're
              facing heavy time. You're out there thugging. Maybe you're not
              a thug. I don't know.

              I know you have been in front of me before, and you only got a
              year. Maybe if I had given you more time, this young man
              wouldn't have been shot. You know, I give people breaks, and
              you've had a break in front of me.

              ***

              You went to fight. I think you lied on the witness stand. You're
              carrying a gun, and you have a prior gun case.

Id. at 495-96, 498.

       {¶ 10} This timely appeal followed, and West now asserts three assignments of
error. We will address each in turn.
              The appellant's trial was tainted by structural error when the
              court violated Mr. West's Sixth Amendment right to be tried by
              an impartial judge.
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No. 19AP-90
       {¶ 11} West first asserts that his right to be tried by an impartial judge was violated
in this case and cites as evidence the several questions he was asked by the trial court during
his testimony. "A fair trial in a fair tribunal is a basic requirement of due process. Fairness
of course requires an absence of actual bias in the trial of cases. But our system of law has
always endeavored to prevent even the probability of unfairness." In re Murchison, 349
U.S. 133, 136 (1955).
       {¶ 12} In State ex rel. Wise v. Chand, 21 Ohio St.2d 113 (1970), the Supreme Court
of Ohio stated:
              In a trial before a jury, the court's participation by questioning
              or comment must be scrupulously limited, lest the court,
              consciously or unconsciously, indicate to the jury its opinion on
              the evidence or on the credibility of a witness. While a trial
              judge may interrogate a witness as long as the questions relate
              to relevant matters and do not show or even suggest to the jury
              that he favors one side or the other, a judge may not interrogate
              a witness in such a manner that the jury's conclusions as to the
              credibility of the witness may thereby be influenced.

Id. at 119. But in State v. Batson, 85 Ohio St.3d 418 (1999), the court pulled back a bit on
this broad pronouncement. Quoting Evid.R. 614(B), the court observed:
              [Trial courts] "may interrogate witnesses in an impartial
              manner, whether called by itself or a party." * * * While it is
              possible to cross the line from helpful clarification to
              unwarranted intervention[.]

              The questioning here was limited, and consisted mostly of
              attempts to clarify the witnesses' testimony, as is contemplated
              by the rule. The questioning was neither excessive nor
              prejudicial to the defendant. "In absence of any showing of
              bias, prejudice, or prodding of a witness to elicit partisan
              testimony, it will be presumed that the trial court acted with
              impartiality [in propounding to the witness questions from the
              bench] in attempting to ascertain a material fact or to develop
              the truth."

(Citations omitted.) Id. at 425-426. The court has recently held that the " 'threshold inquiry
is whether, with reference to a range of acceptable, though not necessarily model, judicial
behavior, the [trial] court's conduct falls demonstrably outside this range so as to constitute
hostility or bias.' " State v. Cepec, 149 Ohio St.3d 438, 451, 2016-Ohio-8076, ¶ 74, quoting
McMillan v. Castro, 405 F.3d 405, 410 (6th Cir.2005).
                                                                                               6
No. 19AP-90
       {¶ 13} West argues the trial court was clearly biased against him and citing Arizona
v. Fulminante, 499 U.S. 279 (1991), West asserts this bias affected his entire trial and
constitutes "structural error" that is not susceptible to a harmless error analysis. In
Fulminante, the United States Supreme Court reversed a conviction that was based in part
on a coerced confession but held that the admission of the confession was "trial error"
subject to a harmless error analysis on remand. Id. at 309-10. Drawing a distinction
between "trial error" and "structural error," the court compared the situation with that
presented in Tumey v. Ohio, 273 U.S. 510 (1927), and observed that the error in Tumey
involved "a judge who was not impartial" which is a "structural defect[] in the constitution
of the trial mechanism" and "def[ies] analysis" by "harmless-error" standards. "The entire
conduct of the trial from beginning to end is obviously affected * * * by the presence on the
bench of a judge who is not impartial." Fulminante at 309-10.
       {¶ 14} West's basic argument is that the trial court's questions demonstrated bias,
that a biased judge is an error that infects the entire trial, and that his case must be reversed
without regard to the question of whether that error can be shown to be prejudicial. See,
e.g., State v. Brown, 2d Dist. No. 25285, 2013-Ohio-1579, ¶ 29-33 (citing Tumey and
Fulminante and holding that the trial court's "interrogation" of the defendant was
structural error). West's argument and citation to Brown also implies, but does not directly
assert, that a contemporaneous objection to the trial court's questions was not required to
preserve "structural error" for appellate review. Id. at 31-34 (citing People v. Sprinkle, 27
Ill.2d 398, 401 (1963), and holding that the contemporaneous-objection rule "has limited
application when the error is that the trial judge has ceased to be impartial" because a
"judge who has become partisan cannot be expected to correct the error.")
       {¶ 15} The state responds that West cannot rely on Tumey, because in that case "the
defendant had been tried and convicted by the mayor of the village, who had a pecuniary
interest in convicting the defendant." (Appellee's Brief at 4.) We agree that the situation at
issue in Tumey was very unusual—the city ordinance at issue provided that the mayor
"should receive or retain the amount of his costs in each case * * * as compensation for
hearing such cases [but only if] the defendant if convicted. There is, therefore, no way by
which the Mayor may be paid for his service as judge, if he does not convict those who are
brought before him." Tumey at 520. In that circumstance, it seems beyond question the
                                                                                              7
No. 19AP-90
court's bias is indeed "structural," since the factfinder obtains a direct monetary benefit
from finding the defendant to be guilty.
       {¶ 16} Instead, the state analogizes this case to State v. Baston, 85 Ohio St.3d 418
(1999), in which the Supreme Court applied the plain-error rule to a trial court's
questioning. In Baston, the defendant identified "four examples [of questioning] in the
transcript; however, not once was an objection entered to the court's questioning; therefore,
Baston waived all but plain error." Id. at 425. Additionally, the state argues the trial court's
curative instruction adequately addressed any concerns that may have arisen as a result of
the court's allegedly biased questioning. As in Cepec at ¶ 77, "even if a juror had thought
that the judge might have indicated which side he favored, the judge properly instructed
the jurors to ignore any such indication. A jury is presumed to follow the instructions,
including curative instructions, given it by a trial judge."
       {¶ 17} The trial court's questioning of West might well have been intemperate. But
we agree with the state that when viewed in the context of the record as whole, the trial
court's questions were limited, and came only after the trial court gave specific warnings to
West regarding testifying against his attorney's advice and the effect that would have on his
case. Moreover, under Baston, West has failed to demonstrate the trial court's questions
constituted plain error. And finally, any arguable problem was cured by the trial court's
curative instruction. Accordingly, West's first assignment of error is overruled.
       {¶ 18} West states under his second assignment of error:
              The appellant's right under the Sixth and Fourteenth
              Amendments and Article I, Sections 10 and 16 of the Ohio
              Constitution to present a defense was violated when the court
              refused to permit a witness to testify by immediately imposing
              the most severe sanction permissible for a discovery violation.

       {¶ 19} In his second assignment of error, West cites Lakewood v. Papadelis, 32
Ohio St.3d 1 (1987), and argues that his Sixth Amendment and Ohio Constitution right to
present a defense was violated by the trial court's decision to preclude the testimony of an
unnamed witness at the close of West's own testimony. In Papadelis, the trial court
excluded the testimony of all defendant's witnesses because defense counsel had not
responded to the state's discovery demand. Id. at 2. In response, defense counsel proffered
of the expected testimony into the record and rested his case. Id. The Supreme Court
reversed, holding that "[b]efore imposing the sanction of exclusion, the trial court must find
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No. 19AP-90
that no lesser sanction would accomplish the purpose of the discovery rules and that the
state would be prejudiced if the witnesses were permitted to testify." Id. at 5. The court
concluded the "trial court did not indicate that it balanced the state's interests against
Papadelis' Sixth Amendment right to present a defense by considering any sanction other
than excluding the testimony of his witnesses," and held that "a trial court must inquire into
the circumstances surrounding a violation of Crim.R. 16 prior to imposing sanctions * * *
and, when deciding whether to impose a sanction, must impose the least severe sanction
that is consistent with the purpose of the rules of discovery." Id. at 5. Such rulings are
analyzed by reviewing courts for an abuse of discretion. State v. Darmond, 135 Ohio St.3d
343, 2013-Ohio-966, ¶ 33-36 (interpreting Crim.R. 16 and quoting the staff note to hold
that under the 2010 amendments to the rule, "[t]he trial court continues to retain discretion
to ensure that the provisions of the rule are followed").
       {¶ 20} The record in this case regarding the excluded witness is sparse—it does not
contain the witness's name or identifying information, but it does indicate that the witness
had: 1) sat through the trial, 2) was not previously known to defense counsel, 3) was not
previously disclosed to the state, and 4) by West's own statement would "testify that I was
hurt, I was bloody, my eyes was black." (Tr. Vol. III at 416.) Neither West nor his attorney
gave any additional information about the witness on the record, and while the trial court
ruled that the witness would be excluded, it also stated that it was open to reconsidering
the ruling if necessary following the lunch break. Id. at 420-21. ("[I]f something changes, if
the prosecutor doesn't object and you interview the person, then maybe I'll talk about it.
But at this point, that's what we're doing.") When the court came back into session after the
break, West's attorney did not attempt to call the witness and instead rested. And unlike in
Papadelis, here there was no specific proffer regarding the substance of the witness'
testimony or how it would affect West's defense. Compare id. Papadelis, at 5.
       {¶ 21} Under these circumstances, we believe West failed to preserve his alleged
error for review by not proffering either the witness or the substance of the witness's
testimony after the lunch break and choosing instead to rest. Although the court did not
specifically find that there were no reasonable alternatives to excluding the witness, we
believe such a finding would have been superfluous given the trial court's lack of
information about the witness or the substance of the witness' testimony. Accordingly, we
                                                                                                  9
No. 19AP-90
conclude there is no error in the court's decision, harmless or otherwise, and overrule
West's second assignment of error.
       {¶ 22} West's third assignment of error states:
               The multiple violations of Mr. West's Constitutional rights rise
               to the level of cumulative error.

       {¶ 23} Under the doctrine of cumulative error, "a conviction will be reversed when
the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a
fair trial even though each of numerous instances of trial court error does not individually
constitute cause for reversal." State v. Garner, 74 Ohio St.3d 49, 64 (1995). However, the
cumulative error doctrine "does not apply to cases that are not marked by multiple
instances of harmless error." State v. Madden, 10th Dist. No. 16AP-259, 2017-Ohio-8894,
¶ 57, quoting State v. Banks, 10th Dist. No. 03AP-1286, 2005-Ohio-1943, ¶ 23, citing
Garner. There are not "multiple instances of harmless error" in this case, since any alleged
errors were not preserved. West's third assignment of error accordingly lacks merit and is
overruled.
       {¶ 24} For these reasons, West's three assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                             Judgment affirmed.
                                   BROWN, J., concurs.
                      NELSON, J., concurs in part and dissents in part.

NELSON, J., concurring in part and dissenting in part.
       {¶ 25} I agree with the majority that the trial court did not err with regard to the
unproffered potential witness, and therefore I concur in overruling Mr. West's second
assignment of error. But I reluctantly disagree with the majority's suggestion that the trial
court's "aggressive," "intemperate," and "skeptical[]" questioning of defendant West, see
supra at ¶ 5 and 16—repeated questioning that contradicted the defendant's interpretation
of events (see, e.g., Tr. at 366), challenged his credibility (see, e.g., id. at 395), and suggested
a prosecution line of inquiry that culminated in judicial cross-examination affirming that
the defendant had "lied to the police" (id. at 410-11, 412)—was within " 'a range of acceptable
* * * judicial behavior,' " see supra at ¶ 11 (quoting Cepec, 2016-Ohio-8076, at ¶ 74). I don't
think it was (although I am not unsympathetic to the trial court's having yielded to the
                                                                                             10
No. 19AP-90
cross-examination temptation under these circumstances), and I am constrained to find
that it created structural error. I therefore would sustain Mr. West's first assignment of
error and deem his third assignment of error moot.
       {¶ 26} Cepec reminds us that " 'a criminal trial before a biased judge is
fundamentally unfair and denies a defendant due process of law.' " 2016-Ohio-8076 at ¶ 73,
quoting State v. Lamar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 34. Cepec also defines
"biased" as implying a " 'spirit of ill will or undue * * * favoritism * * *, with the formation
of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an
open state of mind which will be governed by the law and the facts.' " Id., quoting State ex
rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph four of the syllabus. And Cepec
confirms that "[t]he presence of a biased judge [as thus defined] is structural error, which,
if demonstrated, requires reversal." Id., citing State v. Sanders, 92 Ohio St.3d 245, 278
(2001). Thus, where suggestions that the judge has picked a side sufficiently permeate a
jury trial, reversal is required. Id.; see also Chand, 21 Ohio St.2d 113 at paragraph four of
the syllabus ("In a jury trial, where the intensity, tenor, range and persistence of the court's
interrogation of a witness can reasonably indicate to the jury the court's opinion as to the
credibility of the witness or the weight to be given to his testimony, the interrogation is
prejudicially erroneous").
       {¶ 27} I take the teachings of our Supreme Court to mean that in Ohio, as in the
United States generally, a judge is to be a neutral arbiter, calling balls and strikes. Under
our state's system of separated powers, a judge at trial is not to take on the role of an
assistant prosecutor, or even of a Procurator General.
       {¶ 28} But in this case, things seem to have moved a bit in that direction. I need not
belabor the trial court's questioning, as described very fairly by the majority, but do note
that the judge's tendentious response to Mr. West's testimony that the victim had "said he
was going to rob me" ("He didn't say he was going to rob you," Tr. at 366), was promptly
adopted by the prosecution: "As the Judge correctly pointed out, he didn't say he was going
to rob you?" See Tr. at 388-89 (following up on defendant's characterization of what he
said was the victim's statement that "I'm going to take that shit [away from you]," see Tr. at
363, 366). And after the prosecutor had said, "Your Honor, I'm wrapping up, if the Court
will allow me a minute," the judge prompted: "Did he make a statement to a police officer?"
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No. 19AP-90
Tr. at 410. That inquiry of the prosecutor (which came after two officers had testified that
Mr. West denied having fired a weapon) was followed, perhaps not surprisingly, by the
prosecutor's then asking the defendant: "So you made a statement to the police officer,
right?" Tr. at 411. It was only two questions later that the judge personally interjected his
own cross-examination: "You lied to the police, didn't you?" When the defendant
acknowledged that he had done just that ("Because I wanted to give myself a fighting chance
at court"), the prosecutor again adopted the judge's language: "That's what you're doing,
you're lying to the Court to give yourself a fighting chance here?" Tr. at 411. It was after a
few more questions and answers that the judge reentered the examination with the rebuttal
and compound, leading question that the majority quotes at paragraph 5: "It wasn't a
question of pleading. You waived your right, and you made a statement to the police. You
didn't tell them it was self-defense at that time. It's just that simple, right?" Tr. at 412.
Mr. West responded: "Yes, sir." Id.
       {¶ 29} So I don't think that as a group, the judge's 17 or so questions of Mr. West
were appropriately "limited." Compare Majority Decision at ¶ 16. I don't think that they
were justified by the defendant's having disregarded the trial court's (well expressed)
"warnings * * * regarding testifying." Compare id. I read Cepec as placing us in the realm
of structural error, rather than directing plain error analysis. Compare id. And I do not
think, at all, that the problems created by the judge's repeated "intemperate" questions were
"cured" by his instruction reminding the jury that he had been "aggravated" during the
testimony. Compare id.
       {¶ 30} This is the unfortunate case contemplated but not represented by Baston of
judicial inquiry "cross[ing] the line from helpful clarification to unwarranted intervention."
85 Ohio St.3d at 426. In Baston, the panel's questioning "consisted mostly of attempts to
clarify the witnesses' testimony," as permitted under Evid.R. 614(B). Id. Not so here. To
quote from Learned Hand as invoked in Brown, " 'the judge was exhibiting a prosecutor's
zeal, inconsistent with that detachment and aloofness which courts have again and again
demanded, particularly in criminal trials. Despite every allowance he must not take on the
role of a partisan; he must not enter the lists * * * * Prosecution and judgment are two quite
separate functions in the administration of justice; they must not merge.' " 2013-Ohio-1579
at ¶ 17, quoting U.S. v. Marzano, 149 F.2d 923, 926 (2d Cir.1945) (emphasis omitted).
                                                                                          12
No. 19AP-90
       {¶ 31} It is perfectly fine and often desirable for a trial judge to pose questions
designed to clarify potentially ambiguous testimony or otherwise to provide impartial aid
to the jurors. See, e.g., State v. Johnson, 10th Dist. No. 03AP-1103, 2004-Ohio-4842, ¶ 10-
11 (rule "allows the trial court to ask questions of any witness in an impartial manner";
judge's two questions "did not reflect an assessment of * * * credibility or an assessment of
the evidence"). But as the Supreme Court of Ohio reiterated in Cepec: "In a trial before a
jury, the court's participation by questioning or comment must be scrupulously limited, lest
the court, consciously or unconsciously, indicate to the jury its opinion on the evidence or
on the credibility of a witness." 2016-Ohio-8076 at ¶ 72, quoting Chand, 21 Ohio St.2d 113
at paragraph three of the syllabus. And a criminal defendant is entitled to a real jury trial
no matter the quantum of the evidence against him.
       {¶ 32} Because I would sustain Mr. West's first assignment of error and remand this
case, I very respectfully dissent from the majority's decision to that extent.
