[Cite as State v. Phillips, 2016-Ohio-3105.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-15-43

        v.

JAQUONE L. PHILLIPS,                                       OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR20140180

                                       Judgment Affirmed

                               Date of Decision: May 23, 2016




APPEARANCES:

        Kenneth J. Rexford for Appellant

        Jana E. Emerick for Appellee
Case No. 1-15-43


SHAW, P.J.

        {¶1} Defendant-appellant, Jaquone L. Phillips, appeals the June 17, 2015

judgment of the Allen County Court of Common Pleas journalizing his conviction

by a jury for one count of murder with a firearm specification and one count of

having weapons while under disability. The trial court sentenced Phillips to an

indefinite prison term of fifteen years to life for the murder conviction, a

mandatory three-year prison term for the firearm specification, and a thirty-month

prison term for having weapons while under disability. The trial court ordered the

sentences to run consecutive for a total prison term of twenty and a half years to

life.

        {¶2} On April 22, 2014, the Allen County Grand Jury returned a three-

count indictment against Phillips for one count of murder with a firearm

specification, one count of felonious assault with a deadly weapon, also with a

firearm specification, and one count of having weapons while under disability.

The charges stemmed from an incident occurring on April 12, 2014, at

approximately 3:55 a.m., at H&R’s Lounge in Allen County, Ohio, where then

eighteen-year-old Phillips was alleged to have shot and killed eighteen-year-old

Marcus D. Simpson, Jr. during a physical altercation. The felonious assault charge

arose from the allegation that Phillips also shot Devontae K. Williams, who

suffered a non-lethal gunshot wound as a result of the same incident. Phillips had


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been previously adjudicated a delinquent child due to his commission of an

aggravated robbery as a juvenile and was prohibited from lawfully carrying a

firearm.

         {¶3} Phillips appeared for arraignment, was appointed counsel, and entered

pleas of not guilty. The trial court subsequently granted counsel’s motion to

withdraw from Phillip’s representation based upon a breakdown of trust and

appointed Phillips new counsel.

         {¶4} On March 9, 10, and 11, 2015, the trial court conducted a three-day

jury trial. Prior to empaneling the jury, the prosecution dismissed Count Two, the

felonious assault charge with respect to Devontae Williams.1 The prosecution

proceeded with its case as to Count One, the murder of Marcus Simpson, Jr., with

a firearm specification, and as to Count Three, having weapons while under

disability. Several witnesses testified for the prosecution to establish that Mr.

Simpson died from a single gunshot wound to the chest and that Phillips was the

shooter. As for proving the identity of the shooter, the prosecution presented the

testimony of Emily W., a witness to the events at H&R’s lounge, and Detective

Mark Baker, the lead investigator in the case. On the stand, these witnesses

reviewed and discussed surveillance video footage from the parking lot at H&R’s

lounge depicting the shooting and identified Phillips in the videos. Detective


1
  The record indicates that Mr. Williams refused to speak to law enforcement during the investigation of the
incident and that he died in a car accident prior to trial.

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Baker’s testimony also included a discussion of a video recording of Phillips’

Mirandized statements to law enforcement after the incident. In his defense,

Phillips presented the testimony of his sister and two friends, who were also at

H&R’s lounge on the night of Simpson’s death and who all claimed that Phillips

was not the person who shot Simpson.

       {¶5} The jury heard evidence from both sides on the first two days of trial.

Closing arguments were set to begin the next day. Prior to the jury convening for

the third day, it was brought to the trial court’s attention that a juror had been

contacted by an individual inquiring about her status as a member of the jury.

Outside of the jury, the trial court conducted an inquiry regarding the

circumstances of the phone call with the juror and with counsel present. Defense

counsel moved for the juror to be excused. The trial court overruled the request,

being satisfied by the juror’s representations that the brief phone call did not

impede her ability to be fair and impartial in rendering a verdict in the case. The

case continued to closing arguments and the reading of the court’s jury

instructions.

       {¶6} On March 11, 2015, the jury returned a verdict of guilty on both

Counts One and Three and the firearm specification. The trial court continued

sentencing pending the completion of a pre-sentence investigation report. On

March 13, 2015, the Journal Entry of Conviction was filed.


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         {¶7} On April 29, 2015, Phillips sought leave to file a delayed motion for a

new trial based upon two allegations of juror misconduct and/or bias. In support,

defense counsel asserted that he was not notified of the juror misconduct or bias

claims by Phillips’ family members until after the fourteen-day time limit for

filing a motion for a new trial had expired. Accordingly, defense counsel asserted

that he was unavoidably prevented from discovering these alleged facts which

formed the basis for a new trial request. See Crim.R. 33(B).

         {¶8} On May 19, 2015, the trial court overruled Phillips’ motion for leave

finding he failed to prove by clear and convincing evidence that he was

unavoidably prevented from filing his motion for a new trial within fourteen days

of the jury rendering its verdict as required by the criminal rules and that Phillips

failed to provide any evidentiary support for his claims that juror misconduct or

bias occurred.

         {¶9} On June 17, 2015, the trial court sentenced Phillips to an aggregate

prison term of twenty and a half years to life.

         {¶10} Phillips filed this appeal, asserting the following assignments of

error.

                         ASSIGNMENT OF ERROR NO. I

         MR. PHILLIPS WAS DENIED HIS RIGHT TO EFFECTIVE
         ASSISTANCE OF COUNSEL AND HIS CONFRONTATION
         CLAUSE RIGHTS, AS GUARANTEED BY BOTH THE
         UNITED STATES CONSTITUTION AND THE OHIO

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      CONSTITUTION, WHEN THE TRIAL COURT ALLOWED
      DET. BAKER TO TESTIFY ABOUT A VIDEO TAPE WITH
      HIS KNOWLEDGE PURPORTEDLY BASED ON THE
      STATEMENTS OF OTHERS NOT PRESENTED AS
      WITNESSES BY THE STATE WITH NO OBJECTION FROM
      DEFENSE COUNSEL.

                      ASSIGNMENT OF ERROR NO. II

      MR. PHILLIPS WAS DENIED HIS RIGHT TO EFFECTIVE
      COUNSEL AND HIS JURY TRIAL RIGHTS, AS
      GUARANTEED BY BOTH THE UNITED STATES AND THE
      OHIO CONSTITUTION, WHEN THE DEFENSE COUNSEL
      FAILED TO PROPERLY AND TIMELY INVESTIGATE
      MULTIPLE INSTANCES OF JUROR BIAS AND
      IMPROPRIETY AND WHEN WEAK OBJECTIONS WERE
      OVERRULED.

                                Standard of Review

      {¶11} The issues raised by Phillips on appeal both involve allegations that

he received ineffective assistance of counsel during the trial court proceedings. To

establish his claims, Phillips must show that counsel’s performance was deficient

and that counsel’s deficient performance prejudiced him. State v. Jackson, 107

Ohio St.3d 53, 2005–Ohio–5981, ¶ 133, citing Strickland v. Washington, 466 U.S.

668, 687 (1984). The failure to make either showing defeats a claim of ineffective

assistance of counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting

Strickland at 697. (“[T]here is no reason for a court deciding an ineffective

assistance claim to approach the inquiry in the same order or even to address both




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components of the inquiry if the defendant makes an insufficient showing on

one.”).

          {¶12} In order to show counsel’s performance was deficient, appellant must

prove that counsel’s performance fell below an objective standard of reasonable

representation.     Jackson at ¶ 133.    The appellant must overcome the strong

presumption that defense counsel’s conduct falls within a wide range of

reasonable professional assistance. Strickland at 689. With respect to prejudice, a

challenger must demonstrate “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.”      Id. at 694.   It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel’s

errors must be “so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. at 687.

                               First Assignment of Error

          {¶13} The first instance of ineffective assistance of counsel alleged by

Phillips involves his claim that counsel failed to object to certain statements made

at trial by Detective Mark Baker identifying Phillips as the person who shot and

killed Marcus Simpson, Jr. in the parking lot surveillance footage. Specifically,

Phillips argues that Detective Baker’s statements identifying Phillips in the video


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were inadmissible because they were based upon hearsay due to the fact that

Detective Baker only learned of Phillips’ identity through his investigation by

speaking with others who were able to identify Phillips on the surveillance video.

Phillips also contends that his confrontation rights were impinged upon when

these individuals were not called to testify and therefore should have prompted an

objection from defense counsel. In order to properly address Phillips’ claim, it is

necessary to examine all the evidence at trial establishing Phillips’ identity as the

individual who shot and killed Simpson at H&R’s lounge on April 12, 2014.

1. Emily’s W. Testimony

         {¶14} Emily W. was called as a witness for the prosecution and was the

first witness to provide testimony before the jury regarding Phillips’ identity on

the video surveillance footage. Emily stated that at the time of the shooting in

April 2014 she was best friends with Phillips’ younger sister, Latavia (“Tavi”),

and as a result saw Phillips on a regular basis. She explained that Phillips was the

leader of a “gang” called the “Cash Crew” or “CCE,” which had a well-known

rivalry with another group called the “Eastside” or “Eastsiders.” (Tr. at 286-87).

According to Emily, both Simpson and Williams were affiliated with the Eastside

group.2


2
  At trial, the prosecution introduced a video posted on social media a few weeks prior to the April 12, 2014
incident at H&R’s lounge which depicted several members of the Eastside. One member identified by
Emily as Carrington L. is heard threatening Phillips and other CCE members. Specifically, Carrington
states that Phillips is “going to die this summer” and that the next time he shoots he intends to kill one of

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        {¶15} Emily recalled meeting Tavi at Phillips’ family home on Madison

Avenue on April 11, 2014, at around 10:30 p.m., when she finished her shift at

work. She observed Phillips dancing outside the home with friends and waving a

gun in the air. That night, Emily drove a rental car and volunteered to drive a

group of individuals, which included Phillips and Tavi, and two others, Jariay T.

and Drake J., to AJ’s, a local bar. After the bar closed, Emily drove the group to

H&R’s Lounge, an afterhours club. The prosecution introduced surveillance video

taken from inside the entrance to the club. (State’s Ex 15). Emily identified

Phillips on the interior surveillance footage at 3:05 a.m. attempting to gain entry

into the club, being denied access, and exiting through the front door.                        She

identified Phillips wearing a dark grey sweatshirt with a white Nike “swoosh”

symbol and a black hat.

        {¶16} Emily explained that after she dropped off Phillips and Drake at the

club, she, Tavi, and Jariay remained in the vehicle because they were underage

and knew they could not get in. They were also waiting to see if Phillips and

Drake could get into the club. Emily recalled Tavi receiving a text from Phillips

and remembered seeing Phillips’ name appear on the phone. Tavi then read the

text out loud to Emily, which asked Tavi to retrieve Phillips’ gun from their home

on Madison Avenue, less than a ten minute drive from the club.

the CCE members. (State’s Ex. 16). Notably, Carrington was not involved in the April 12, 2014
incident—the record suggests he was in jail at the time—and neither Simpson nor Williams appeared in
this video.

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           {¶17} Emily drove Tavi and Jariay to the Madison Avenue house. Emily

observed Tavi get out of the car and go to the side of the house where some

vehicles were parked. She recalled Tavi’s hands being empty when she exited the

vehicle. In the meantime, Emily went into the house to use the bathroom, when

she returned to her vehicle Tavi was still outside the home searching for

something. Tavi eventually came back to the vehicle holding a maroon case with

a zipper in her hands. Upon sitting in the vehicle, Tavi placed the case in her lap.

Emily asked Tavi to hide the case somewhere because she did not want the case in

plain view in the event that they were stopped by law enforcement.            Emily

observed Tavi place the case in the side compartment of the passenger door.

           {¶18} Emily, Tavi, and Jariay returned to H&R’s after stopping at the

Madison Avenue home. Phillips and Drake were standing outside of the club and

climbed into the vehicle. According to Emily, Drake sat in the middle back seat

and Phillips sat in the passenger back seat, behind Tavi. Emily recalled that

Phillips was not in the car very long before Tim W., a fellow CCE member and

Jariay’s boyfriend, informed Phillips through the car window that Aaron J. or

“Red,” a member of Eastside, was also in the parking lot of the club.3 Shortly

thereafter, Emily observed Phillips exit the car and remembered seeing him talking

with some friends in the parking lot.



3
    The record indicates that Red is also Carrington L.’s brother.

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       {¶19} Emily moved the vehicle and parked it to the side of the club’s

entrance. The prosecution played surveillance video footage of the parking lot and

asked Emily to identify her vehicle. (State’s Ex. 14). At the time, Tavi, Jariay,

and Drake were still in the vehicle. Emily narrated what occurred on the video as

she remembered it from that night. Emily reversed the vehicle from the parking

space on the side of the club and turned it to face a different direction. She

explained that she did this at Tavi’s request so that Tavi could get a better look at

an impending physical altercation brewing in the parking lot between Tim W. and

Red. Emily then witnessed Tim W. hit Red through the window of a white vehicle

Red was sitting in. Emily recalled that Tavi and Jariay exited the vehicle as a fight

broke out in the crowd that had amassed around the vehicle where Red was seated.

She identified the location on the video where Tavi and Jariay were standing in the

parking lot.

       {¶20} Emily backed her vehicle into where she was previously parked and

faced the parking lot as the fight escalated to involve several more individuals.

Emily recalled hearing three gunshots, watching people scatter, and observing

Phillips run towards her vehicle shortly thereafter. She identified Phillips on the

surveillance footage as the individual running toward her vehicle. (Tr. at 318). At

this point only Emily and Drake were in the car when Phillips jumped into the

front passenger seat of the vehicle.      She testified that Phillips immediately


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instructed her to “Go, Go, Go.” (Tr. at 319). Emily asked about Tavi, whose cell

phone and other personal effects were still in the vehicle. Phillips told her “It’s

okay. She’ll find a ride. Just keep going.” (Id.).

       {¶21} Emily drove the vehicle out of H&R’s parking lot and began driving

toward Drake’s house at Phillips’ direction. Phillips changed his mind and told

her to drop them off at a park near Drake’s house. Emily, now alone in the

vehicle, drove back to H&R’s to look for Tavi, but at that point law enforcement

had arrived to secure the scene. Phillips contacted Emily and she picked Phillips

and Drake up from Drake’s home. While in the vehicle, Emily answered a call

from Divante H. on Tavi’s phone, who directed Emily to drive Phillips and Drake

to his house. There, various individuals who had been at H&R’s gathered and

discussed what had transpired. Emily recalled several people bragging about who

they were fighting with in H&R’s parking lot. She remembered Phillips talking

about fighting with Simpson. While at Divante’s home, the group learned through

social media of Simpson’s death. Emily identified Simpson from a photograph

taken at the scene, which depicts him lying in the doorjamb of the driver side door

of his vehicle shortly before his death.

       {¶22} Emily recalled seeing the maroon zippered case again when she

dropped off Marquise G. at his home. This was the first time Marquise was in her

vehicle. As Marquise walked onto the porch, Drake, who was seated in the back


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seat of the car, noticed the maroon case on the floor in the back seat on the

passenger side. Emily observed Drake lobbing the case out of the car to Marquise,

stating “Hey, he left this in the car.” (Tr. at 380). She noticed that the case

appeared empty because of the way Drake tossed it to Marquise. Phillips was not

in the vehicle at the time.

       {¶23} A few days after the incident, Emily called Phillips to inform him

that she was going to see a lawyer because a detective wanted to speak to her

about the incident at H&R’s lounge. She warned Phillips that law enforcement

may also be looking for him. Phillips instructed Emily to tell her attorney that

none of the individuals in her car that night were involved in the fight in the

parking lot. Later that day, after speaking to her attorney and law enforcement,

she drove to her parents’ house. As she exited her car, she noticed Phillips sitting

in a nearby parked car, smiling at her. Phillips asked her how the meeting with her

attorney went and if she repeated the story he told her to tell. Emily responded

“Yeah” and then her father came outside. (Tr. at 327). Phillips asked her if the

man was her father to which she responded “Yeah” and then Phillips left. (Id).

Emily went inside the house and looked out the window. She observed Phillips

drive past her house again.




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2. Phillips’ Statements to Law Enforcement

       {¶24} On April 15, 2014, Detective Baker conducted an interview with

Phillips regarding the shooting at H&R’s Lounge. At trial, a video recording of

this interview was introduced by the prosecution during Detective Baker’s

testimony. (State’s Ex. 20). In the interview, Phillips recalled driving from AJ’s

to H&R’s on April 12, 2014. On that night, he said he wore a grey hooded

sweatshirt with a Nike “swoosh,” camo pants or “black Levi’s.” He recounted his

attempts to get into the club which were eventually rejected. Phillips remembered

he and Drake returned to Emily’s vehicle which was parked in the club’s parking

lot. Phillips acknowledged that he exited Emily’s car before she moved to park

near the club as seen on the parking lot surveillance footage.

       {¶25} Phillips described the fight breaking out involving Tim W. and Red,

which escalated to involve several other individuals including Simpson and

Williams. He admitted to being part of the group fighting, however, he denied

having a gun that night and he denied shooting Simpson. Instead, Phillips claimed

he was engaged in the brawl hitting Williams when he heard two gun shots.

Phillips recalled seeing Simpson fall to the ground after he heard the shots.

(State’s Ex. 20 at 59:20). He stated that he started to run and noticed his phone

falling out of his hooded sweatshirt. (Id. at 59:29). Phillips admitted to bending

down by a car to pick up his phone. (Id. at 59:35). He then ran to where he


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thought Emily’s car was parked in the parking lot, but found it was no longer

there. That is when he ran over to Tavi and asked, “Where’s the car at. Come

on!” and Tavi showed him where Emily’s vehicle was now parked, however, Tavi

remained in the parking lot engaged in the fight. (Id. at 59:45; 1:07:42). Phillips

admitted that he then ran to Emily’s car, got in, and left H&R’s. (Id. at 59:50).

3. Video Surveillance Footage of H&R’s Parking Lot

       {¶26} The video surveillance footage of H&R’s parking lot was played

during the testimony of Emily and Detective Baker. The video is approximately

five minutes long and depicts the events immediately before, during, and after the

shooting of Simpson. At the beginning of the video, an individual wearing a dark

grey hooded sweatshirt, camo pants, and dark shoes can be seen congregating with

two other individuals near Simpson and Williams at the entrance of the club. The

three individuals begin to follow Simpson and Williams as they walk away and

appear to engage in a dialogue with them as they all continue to walk toward the

parking lot. During this time more individuals approach to form a group around a

white car attempting to leave a parking space next to Simpson’s gold Tahoe in the

parking lot.

       {¶27} At this time, Emily’s car, which is parked near the club’s entrance,

can be seen reversing out of the parking space and changing direction to face

toward the now amassed group of people surrounding the white vehicle. As the


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activity of the group begins to escalate, two females exit Emily’s vehicle—one

from the front passenger door and one from the rear driver side door. The two

females join the group surrounding the white car, which is now in the driveway

blocking the flow of traffic. Emily reverses her vehicle into the same parking

space where she was previously parked. The group of individuals begins to push

and shove one another and move as a group behind Simpson’s parked vehicle. As

they round the front of the vehicle, the flurry of activity intensifies into punches

being thrown between Simpson, Williams, and several other individuals.

       {¶28} The melee continues around to the driver side of Simpson’s vehicle

where Simpson is now located near the driver side door. The individuals engaged

in the skirmish with Williams break away from Simpson, continue past Simpson’s

vehicle and proceed into the gravel driveway. As the group involving Williams

passes the back end of Simpson’s vehicle, a person in a dark grey hooded

sweatshirt, dark pants, and dark shoes rises up from the ground, near a parked

white car, in a shooting stance with a gun pointed at Simpson, who is still located

by the driver side door of his vehicle. People scatter as the gun appears to be

fired. The individual seen in the shooting stance runs toward some parked cars

and then returns to where the gun was fired to pick something up from the ground.

The individual runs toward one of the females who earlier exited Emily’s vehicle.




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The female points to where Emily’s vehicle is parked and the individual runs to

Emily’s vehicle, which drives away shortly thereafter.

4. Detective Baker’s Testimony

        {¶29} At trial, Detective Baker testified that he was the lead investigator

assigned to the case. He explained that he obtained the surveillance video from

H&R’s lounge at around 8:00 a.m. on the morning of April 12, 2014—a few hours

after the shooting. He recalled reviewing the footage of the parking lot depicting

the shooting “hundreds” of times. (Tr. 416). He stated that the only people he

was able to identify from his initial review of the footage were Simpson and

Williams—the two shooting victims—and that the video itself was not enough to

reveal the identity of the person seen in the “two-hand high point shooting

position” firing at Simpson. (Tr. at 420). He explained that he interviewed

“numerous” individuals to assist him with identifying the shooter and the many

other individuals seen participating in the events surrounding the shooting. (Id. at

423).

        {¶30} After learning the identity of the key participants, Detective Baker

described the distinct clothing that many of these individuals wore that night

which assisted him in distinguishing the different figures in the footage. The

parking lot video was recorded on a camera located at some distance from where

the shooting occurred and did not provide a clear picture of these individuals’


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faces. Detective Baker used the distinctive clothing of each individual to follow

them through the video footage and observe their conduct. He was also able to

match some of these individuals to footage from inside the club’s entrance which

provided clearer picture of the individuals’ faces and was recorded from a much

closer distance. Phillips was one such individual.

       {¶31} Detective Baker observed Phillips from the interior surveillance

footage wearing a grey hooded sweatshirt with a Nike white “swoosh” and camo

pants. (Tr. 431). He explained that the same individual identified as Phillips is

also seen on the parking lot video footage standing near the club’s entrance

wearing the same clothes and dark shoes. Detective Baker explained the dark

shoes were significant in reviewing the parking lot video because the other

individuals seen near Phillips are wearing dark clothes and white shoes. On the

stand, Detective Baker narrated the actions taking place on the video and

identified the key participants for the jury. In particular, he tracked Phillips’

movements throughout the video and identified Phillips as the individual in the

shooting stance firing a gun at Simpson and eventually running to Emily’s vehicle.

       {¶32} Detective Baker explained how Phillips’ statements during the

interview with him corroborated his identification of Phillips as the shooter on the

video. He described “back tracking” the video from where the shooter ran to

Emily’s rental car to where the shooting took place which establishes that the


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same person running to that vehicle was the same person seen in the shooting

stance.      Detective Baker further noted that Phillips’ own recollection and

statement of his actions after the shooting during the interview mirrored those

taken by the shooter on the video. Specifically, that after the shooting, Phillips

said he picked up his phone which he dropped near a parked car, ran to where he

thought Emily’s car was parked, ran to his sister to find out where the car had been

moved, and then jumped into Emily’s vehicle. In his testimony, Detective Baker

thus demonstrated that these were the same actions taken by the individual in the

two-hand high point shooting position on the video.

                                       Discussion

          {¶33} On appeal, Phillips claims that his trial counsel should have objected

to Detective Baker’s testimony identifying Phillips on the video because Detective

Baker was only able to identify Phillips through the statements of others who did

not testify at trial. Thus, Phillips maintains that his trial counsel was ineffective

for failing to object on the basis of impermissible hearsay and a violation of his

rights protected by the Confrontation Clause. The prosecution argues, inter alia,

that Detective Baker’s testimony regarding the identification of Phillips as the

shooter on the parking lot video was not objectionable hearsay because his

testimony was not being offered for the truth of the matter asserted but to explain

the progress of the investigation.


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       {¶34} Hearsay is “a statement, other than one made by the declarant while

testifying at a trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). An out-of-court statement offered for reasons other

than the truth are not hearsay. State v. Lewis, 22 Ohio St.2d 125, 132-33, (1970).

As a general rule, a statement offered to explain a police officer’s reasons for

conduct while investigating a crime does not constitute hearsay. State v. Ricks,

136 Ohio St.3d 356, 2013-Ohio-3712, ¶ 24, citing State v. Thomas, 61 Ohio St.2d

223, 232 (1980). However, “[t]he conduct to be explained should be relevant,

equivocal and contemporaneous with the statements[, and] such statements must

meet the standard of Evid.R. 403(A).” State v. Blevins, 36 Ohio App .3d 147, 149

(10th Dist.1987).

       {¶35} It is apparent from the record that Detective Baker was able to

identify Phillips on the video from multiple sources, including the statements of

Phillips and Emily, together with other law enforcement and unspecified witnesses

during his investigative interviews. As a result, the record demonstrates that

Detective Baker’s testimony was not the only evidence establishing Phillips’

identity as the individual who shot Simpson.

       {¶36} Emily testified that Tavi received a text from Phillips asking her to

retrieve his gun from the family home—where Emily saw Phillips with a gun

hours earlier. She saw Tavi bring a maroon zippered case from the side of the


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home into the car. Emily observed Tavi hide the case in the passenger side door

compartment after she asked Tavi to conceal it from plain view. She recalled the

same maroon zippered case being found after the shooting where Phillips had been

sitting in the vehicle immediately after she and Tavi returned from Phillips’ home.

       {¶37} At trial, Emily identified Phillips on the interior surveillance video

wearing a dark grey sweatshirt with a white Nike “swoosh” symbol. Emily also

identified on the parking lot video where her car was parked at the time of the

shooting. She testified that Phillips ran to her car immediately after she heard gun

shots and told her to “Go, Go, Go.” She also specifically identified Phillips on the

video at trial as the individual seen running to her car following the shooting.

       {¶38} Phillips further developed the evidence establishing his identity as

the individual in the two-hand high point shooting position in the parking lot

surveillance footage by recounting the steps he took after the shots were fired.

The movements he described and the location in the parking lot where they

occurred were identical to the individual seen fleeing from the scene after firing

the shot that killed Simpson.

       {¶39} Specifically, Phillips stated (1) that he ran away from where the shots

were fired but realized he dropped his phone and ran back toward that direction to

retrieve it—the video depicts the shooter running away and then returning to the

place where the gun was fired to pick something off the ground; (2) that he ran to


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where Emily had previously been parked in the parking lot but not seeing her car

found Tavi and stopped to ask her where Emily was now parked—on the video the

shooter can be seen zig zagging between locations and then approaching a female

who earlier exited Emily’s car. The female points to where Emily’s car is parked;

and (3) that upon locating Emily’s vehicle, he ran to the car, jumped in the car and

left the scene—the video shows the shooter leave the female and run straight to

Emily’s vehicle and the vehicle drives away.

       {¶40} Phillips also admitted to wearing a dark grey sweatshirt with a white

Nike “swoosh” symbol and camo pants. This attire matched the one worn by the

shooter on the video and was the distinctive clothing described by Detective Baker

to initially identify Phillips on the video and to track his movements throughout

the recorded events.

       {¶41} Finally, the video itself clearly depicts the individual in the shooting

stance aiming at Simpson as the same individual who engages in conduct identical

to the conduct narrated by Phillips in his interview to law enforcement from the

moment of the shooting continuously to the point of entering Emily’s car.

       {¶42} In sum, Emily’s testimony, Phillips statements during his interview,

and the video each provided an independent basis, entirely apart from the

testimony of Detective Baker, for establishing Phillips’ identity as the person who

shot Simpson on the parking lot surveillance video. Thus, even if we were to find


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some of Detective Baker’s testimony to be impermissible hearsay, it was merely

cumulative to other direct non-hearsay evidence. Hearsay statements admitted

that are repetitious of admissible statements and are supported by overwhelming

evidence are not prejudicial. State v. Self, 56 Ohio St.3d 73, 82, (1990); see also

State v. Bump, 3d Dist. Logan No. 8-12-14, 2013-Ohio-1006, ¶ 98 (recognizing

that “[a]ny error in the admission of hearsay is generally harmless when the

declarant is cross-examined on the same matters and the seemingly erroneous

evidence is cumulative in nature”).         Accordingly, we cannot find that the

testimony was prejudicial, or that Phillips’ counsel was ineffective for failing to

object to it. Phillips first assignment of error is overruled.

                             Second Assignment of Error

       {¶43} The second instance of ineffective assistance of counsel asserted by

Phillips involves his claim that trial counsel mishandled alleged incidents of juror

misconduct or bias. Specifically, Phillips claims that trial counsel was ineffective

for failing to question potential jurors during voir dire as to whether they knew any

of the witnesses or other individuals involved in the case. Phillips identified three

instances of alleged jury misconduct or bias to support his claim that he received

ineffective assistance from his trial counsel.




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1. Juror Hughes

      {¶44} During the first two days of trial, the jury heard the evidence

presented by both sides. Closing arguments were anticipated to begin on the third

day of trial. Before the jury was brought into the courtroom, the Bailiff informed

the trial court that Juror Hughes had received a phone call the night before from a

person not involved the case inquiring about her status as a member of the jury.

The trial court discussed the issue with counsel. Defense counsel requested that

certain information regarding Juror Hughes be placed on the record. Specifically,

defense counsel relayed concerns from Phillips’ family regarding Juror Hughes’

purported connection to relatives of Devontae Williams, the non-fatal shooting

victim in the case. In particular, that Juror Hughes’ sister was rumored to be

dating one of Williams’ uncles.

      {¶45} The trial court called Juror Hughes into the courtroom, with the

remaining members of the jury still waiting in the jury room and with counsel

present. The following discussion was had on the record:

      Trial Court: * * * The Bailiff has brought to my attention the
      fact that you had reported to her what you believe to be a call
      related to this case or conceivably perhaps related to this case.

      Juror Hughes: Yes.

      Trial Court: Is that correct?

      Juror Hughes: Yes.


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Case No. 1-15-43


      Trial Court: Would you specifically tell us the nature of the
      call?

      Juror Hughes: I had received a text and it said, “Can you call
      me, please?” And it is one of my niece’s friends. So I called him
      and he said, “I heard that you was [sic] one of the jurors.” And
      I said, “I’m not allowed to talk about it,” and I hung up.

      Trial Court: Okay. How did that make you feel as it relates to
      an ability to continue to involve yourself in this case? Did that—
      did you cause that to be an attempt to sway you or an attempt to
      intimidate you?

      Juror Hughes: I don’t think—

      Trial Court:—Or in any way make you uncomfortable?

      Juror Hughes: I wasn’t uncomfortable. I don’t know if he was
      just trying to get information out of me, but, I mean, I’m fine. I
      don’t feel persuaded, or—

      Trial Court: You don’t feel intimidated?

      Juror Hughes: No.

      Trial Court: You’re still capable, you believe, despite the phone
      call, to continue to hear what transpires or goes on in the
      courtroom?

      Juror Hughes: Yes.

      Trial Court: And you can make a decision following the law that
      I’m going to give, is that correct?

      Juror Hughes: Yes.

      Trial Court: Consistent with your oath, of course?

      Juror Hughes: Yes.


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Case No. 1-15-43


       Trial Court: Now, [Defense Counsel] indicates that members of
       the other side of this case, Mr. Phillips’ family, indicates that you
       may have relatives that are friends of the Devontae William—of
       the Devontae Williams’ family whose name you’ve heard in this
       case. Do you know anything about that?

       Juror Hughes: No. I know the guy that called me yesterday is
       actually friends with two girls that was sitting on Mr. Phillips’
       side—

       Trial Court:—the left side—on the right side of the courtroom?

       Juror Hughes: Yes.

       Trial Court: Okay. Does that make you feel any—in any way,
       shape, form, uncomfortable about continuing to be involved in
       the case?

       Juror Hughes: No. Not at all.

       Trial Court: Do you—do you feel you wish to continue to be
       involved in the case, recognizing it’s obviously some interest here
       over what you’ve heard over the last two days?

       Juror Hughes: Yeah, I don’t mind continuing.

       Trial Court: Okay. And, again, you feel you can be fair and
       impartial?

       Juror Hughes: Yes.

(Tr. at 586-89).

       Trial Court: Okay. Do you know anyone that’s related to
       Devontae Williams in any way, shape, or form?

       Juror Hughes: I think it might be his cousin.

       Trial Court: So, you might know of a cousin?


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Case No. 1-15-43


      Juror Hughes: Yes.

      Trial Court: Do you actually know that—

      Juror Hughes: I’m not—

      Trial Court:—person’s name?

      Juror Hughes: Marcus. He hangs out with my nieces.

      Trial Court: Okay. Do you know who called you or texted you
      and asked you to call?

      Juror Hughes: Yes.

      Trial Court: What was that individual’s name?

      Juror Hughes: His name’s Jaden.        I think his last name is
      Goodin or Goodwin, or—

      Trial Court: Has that individual been in the courtroom?

      Juror Hughes: I don’t think so.

      ***

      Trial Court: Do you know about his age?

      Juror Hughes: Nineteen or twenty.

      Trial Court: Okay. Roughly the same age of the folks that have
      been largely involved in this case.

      Juror Hughes: Yes. And that’s the same ages as my nieces are.

      Trial Court: Did you sense in any way that he was intimidating
      of you?

      Juror Hughes: No, not at all.


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Case No. 1-15-43


       Trial Court:     Did it seem to you he was more curious than
       anything?

       Juror Hughes: Yes.

(Tr. at 590-93).

       {¶46} The trial court permitted Juror Hughes to return to the jury room and

instructed her not to discuss the matter with the other members of the jury. The

trial court then addressed the matter with counsel. Defense counsel requested that

Juror Hughes be excused “in an abundance of caution.” (Tr. 598). The trial court

brought Juror Hughes back into the courtroom for further inquiry. She reiterated

her ability to be fair and impartial consistent with her oath.

2. Motion for Leave to File a Delayed Motion for a New Trial: Juror Thompson

   and an Unspecified Member of the Jury.

       {¶47} The record reflects that defense counsel filed a Motion for Leave to

file a delayed motion for a new trial based upon two further allegations of juror

bias. The first claim of juror bias or misconduct stemmed from Phillips’ assertion

that Juror Thompson failed to disclose her relationship to Carrington L., one of the

individuals heard threatening Phillips on a video posted on social media. This

video was played for the jury and admitted as an exhibit. Phillips claimed that

Juror Thompson was an aunt to Carrington L. The second instance of juror bias

alleged in this motion was based upon the claim that an unspecified juror was seen

at a lunchtime recess talking to the mother of the victim while leaving a restaurant

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Case No. 1-15-43


across the street from the courthouse. Neither of the alleged instances of juror

misconduct or bias was supported by affidavit or by any independent,

corroborative evidence, but rather both allegations were entirely based upon the

mere assertions of Phillips and his family. Notably, the trial court overruled

Phillips’ motion on the basis that Phillips failed to establish that he was

unavoidably prevented from timely filing a motion for a new trial and that he

failed to substantiate his claims of juror misconduct.

         {¶48} On appeal, Phillips contends that his counsel was ineffective for

failing to timely file a motion for a new trial and for failing to question the jurors

about their possible relationships to any of the individuals involved in the case.

With respect to his first claim, the record demonstrates that trial counsel stated in

the motion for leave that he was not aware of the allegations of juror misconduct

until Phillips’ family members approached him on April 16, 2015—over a month

after the verdict was rendered and well past the expiration of the timeframe to

timely file a motion for a new trial. 4 Trial counsel maintained that prior to this

time he had no knowledge of these allegations. Nevertheless, upon learning of

these claims, trial counsel took the appropriate steps to pursue a delayed motion



4
  Criminal Rule 33(B) states in relevant part, “Application for a new trial shall be made by motion which,
except for the cause of newly discovered evidence, shall be filed within fourteen days after the verdict was
rendered, or the decision of the court where a trial by jury has been waived, unless it is made to appear by
clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new
trial, in which case the motion shall be filed within seven days from the order of the court finding that the
defendant was unavoidably prevented from filing such motion within the time provided herein.”

                                                   -29-
Case No. 1-15-43


for a new trial. Accordingly, we fail to see how trial counsel was ineffective on

this basis.

       {¶49} Regarding Phillips’ second contention, we note that during voir dire

the trial court asked the potential jurors if they were related to Phillips, to counsel

for either party, or to members of law enforcement.             The trial court also

specifically asked if the potential jurors harbored any prejudice or bias against

Phillips personally. Phillips contends that his trial counsel should have cast a

broader net than the trial court and asked potential jurors if they knew any of the

numerous people connected to the case—regardless of how tangential or remote

their involvement to events surrounding the murder of Simpson. Phillips also

maintains that trial counsel should have been more aggressive in handling the

situation with Juror Hughes and questioned her for bias.

       {¶50} It is an accepted fact that “voir dire is largely a matter of strategy and

tactics * * *.” State v. Keith, 79 Ohio St.3d 514, 521, 1997-Ohio-367. “The

conduct of voir dire by defense counsel does not have to take a particular form,

nor do specific questions have to be asked.” State v. Evans, 63 Ohio St.3d 231,

247 (1992). Additionally, we give deference to decisions by trial counsel during

voir dire because trial counsel sees and hears jurors and is in the best position to

determine whether voir dire questions are needed. State v. Sanders, 92 Ohio St.3d

245, 274, 2001-Ohio-189, citing State v. Bradley, 42 Ohio St.3d 136, 143 (1989).


                                         -30-
Case No. 1-15-43


Moreover, the Strickland test requires a finding of prejudice before this court can

find ineffective assistance. State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445,

¶ 213 citing Strickland at 693. To maintain a claim that he was prejudiced by

counsel’s failure to challenge an allegedly biased juror, Phillips “ ‘must show that

the juror was actually biased against him.’ ” State v. Mundt, 115 Ohio St.3d 22,

2007-Ohio-4836, ¶ 67, quoting Miller v. Francis, 269 F.3d 609, 616 (6th

Cir.2001).

       {¶51} Here, the record establishes that the trial court conducted a thorough

inquiry of Juror Hughes regarding the phone call she received from a third person

and her possible connection to a family member of Devontae Williams. Juror

Hughes said nothing to indicate that she harbored any bias against Phillips or that

her ability to be fair or impartial had been compromised. There is also nothing in

the record to substantiate Phillips’ claims that trial counsel was somehow

ineffective for failing to inquire further of Juror Hughes. To the contrary, Phillips’

trial counsel requested Juror Hughes be excused despite the lack of evidence of

her bias against Phillips. As to the other instances cited by Phillips in support of a

new trial, the record demonstrates that Phillips simply failed to provide any

evidence demonstrating that either of these jury members was actually biased

against him or that his trial counsel’s handling of the matter fell below an

objective standard of reasonableness.


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Case No. 1-15-43


       {¶52} Accordingly, Phillips cannot satisfy either prong of the test for

ineffective assistance of trial counsel; i.e., he is unable to show that the

performance of his counsel was deficient or that the outcome of his trial was

altered as a result of the inclusion of Juror Hughes, Juror Thompson or any other

member on the jury. For this reason, Phillips’ second assignment is without merit.

       {¶53} For all these reasons, the assignments of error are overruled and the

judgment and sentence are affirmed.

                                                             Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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