[Cite as State v. Caldwell, 2014-Ohio-4486.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :     Hon. Sheila G. Farmer, J.
                                               :     Hon. John W. Wise, J.
-vs-                                           :
                                               :
CALVIN CALDWELL, JR.                           :     Case No. 14CA22
                                               :
        Defendant-Appellant                    :     OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2013-CR-0293




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    October 7, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN C. NEIFT                                        JAMES R. WILLIS
38 South Park Street                                 420 Lakeside Place
Mansfield, OH 44902                                  323 Lakeside Avenue, NW
                                                     Cleveland, OH 44113
Richland County, Case No. 14CA22                                                         2

Farmer, J.

       {¶1}   On May 10, 2013, the Richland County Grand Jury indicted appellant,

Calvin Caldwell, Jr., on two counts of trafficking in cocaine in violation of R.C. 2925.03.

Count 1 pertained to acts that occurred on November 21, 2012, and Count 2 pertained

to acts that occurred on November 28, 2012. The two counts involved the sale of

cocaine to a confidential informant, Duvall Williams.

       {¶2}   A jury trial commenced on February 24, 2014. The jury found appellant

guilty of Count 1 and not guilty of Count 2.

       {¶3}   On March 4, 2014, appellant filed an application for bail pending appeal.

A sentencing hearing was held on March 6, 2014 wherein the trial court denied

appellant's motion for bail.   By judgment entry filed March 7, 2014, the trial court

sentenced appellant to thirty months in prison.

       {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                               I

       {¶5}   "DUE PROCESS IS DENIED, ALONG WITH THE RIGHTS OF AN

ACCUSED TO EQUAL PROTECTION OF THE LAW, WHEN THE COURT FAILED TO

MAKE AND ARTICULATE EXPRESS FINDINGS (ORAL OR OTHERWISE) BEFORE

IT DENIED BAIL PENDING APPEAL. WITH THIS BEING SO THE TRIAL COURT

ERRED, AS DID THIS COURT, WHEN (FOR AUGHT THAT APPEARS) IT

SUMMARILY, AND WITHOUT ANY EXPLANATION WHATSOEVER, DENIED BAIL."
Richland County, Case No. 14CA22                                         3


                                    II

      {¶6}   "THE COURT ERRED IN ALLOWING, AND THUS ENABLING THE

STATE, UNDER THE GUISE OF REFRESHING RECOLLECTION, TO SUBSTITUTE

INADMISSIBLE HEARSAY EVIDENCE EXTRICATED FROM A PRIOR WRITTEN

STATEMENT MADE BY A STATE'S WITNESS AS SUBSTANTIVE PROOF OF THE

GUILT OF THE ACCUSED."

                                    III

      {¶7}   "DUE   PROCESS   WAS   VIOLATED      AND   THE   ACCUSED WAS

DEPRIVED OF A FAIR TRIAL WHEN THE TRIAL COURT IMPROPERLY AND

FAULTILY ADVISED AN ARGUABLY RECALCITRANT STATE'S WITNESS (WHO

HAD   FORTHRIGHTLY      ASSERTED    THE   FIFTH    AMENDMENT     AND   WHO

COMPLAINED HIS COUNSEL WAS NOT PRESENT) THAT HE WAS BEING

REQUIRED TO TESTIFY, AND TO TELL THE TRUTH, OR BE HELD IN CONTEMPT

FOR REFUSING TO DO SO."

                                    IV

      {¶8}   "THE COURT ERRED WHEN IT DENIED THE DEFENSE'S VARIOUS

OBJECTIONS TO QUESTIONS PROPOUNDED BY THE PROSECUTOR THAT

IMPROPERLY SUGGESTED, AND OTHERWISE INSINUATED, THAT SOMEONE

'HAD GOTTEN TO' ITS CHIEF WITNESS TO CHANGE HIS TESTIMONY (I.E., HE

HAD BEEN, EITHER, BRIBED, COERCED, OR EVEN THREATENED OR THE LIKE)."

                                    V

      {¶9}   "THE COURT ERRED AND DUE PROCESS WAS VIOLATED WHEN

THE COURT LITERALLY COMPELLED A STATE'S WITNESS (WHO HAD
Richland County, Case No. 14CA22                                                       4


ASSERTED THE FIFTH AMENDMENT AND FURTHER ADVISED THE COURT HIS

COUNSEL WAS NOT PRESENT) TO TESTIFY, WHICH HAPPENED AFTER THE

WITNESS WAS SENTENCED FOR CONTEMPT FOR AN INDEFINITE AND

UNSPECIFIED PERIOD OF TIME."

                                                  I

       {¶10} Appellant claims the trial court erred in denying bail pending appeal

without express findings. We disagree.

       {¶11} Continuing bond pending disposition of the case on review lies in a trial

court's sound discretion. Crim.R. 46(H). In order to find an abuse of discretion, we

must determine the trial court's decision was unreasonable, arbitrary or unconscionable

and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217

(1983).

       {¶12} Appellant's March 4, 2014 application for bail set forth fourteen averments

for consideration.   In its March 6, 2014 response, the state pointed out appellant's

lengthy criminal history and various failures to appear and bench warrants. Attached to

the response was State's Exhibit B, Arrestee Search Information.           Appellant was

involved in a pending forfeiture action in the United States District Court for the

Southern District of Florida (State's Exhibit A), and did not have any ties to Richland

County. At the conclusion of the March 6, 2014 sentencing hearing, the trial court

denied bail, stating the following (T. at 285):



              THE COURT: Thank you. In looking through Mr. Caldwell's arrest

       information from the Richland County Jail, it goes back to '76. I see six - -
Richland County, Case No. 14CA22                                                             5


       let me count them. I want to make sure I get them all. One, two, three,

       four, six different times since '76 that warrants were issued for him for

       failure to appear. That does trouble me in giving him a bond, so at this

       time I'll be denying his request for appellate bond. That's it. We're done.



       {¶13} On March 24, 2014, appellant filed an application for bail pending appeal

in this court, which was denied on April 3, 2014.              A subsequent motion for

reconsideration was denied on May 12, 2014.

       {¶14} Apart from the mootness of this argument given this court's decision on

bond, we find the record establishes sufficient findings for the denial of appellate bond.

       {¶15} Assignment of Error I is denied.

                                        II, III, IV, V

       {¶16} These assignments center on the testimony of the confidential informant,

Duvall Williams. Appellant argues the state improperly used Evid.R.611(C) to refresh

Mr. Williams's memory, the trial court did not permit Mr. Williams to claim his Fifth

Amendment right against self-incrimination or to have his attorney present and forced

him to testify, and permitted questioning by the state suggesting "someone had gotten"

to Mr. Williams. We disagree.

       {¶17} Because these issues are intertwined, we will address them collectively.

       {¶18} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage, 31 Ohio St.3d 173 (1987); Blakemore, supra.

       {¶19} Evid.R. 611 governs mode and order of interrogation and presentation.

Subsection (C) states the following:
Richland County, Case No. 14CA22                                                        6




       (C) Leading questions. Leading questions should not be used on the

       direct examination of a witness except as may be necessary to develop

       the witness' testimony. Ordinarily leading questions should be permitted

       on cross-examination. When a party calls a hostile witness, an adverse

       party, or a witness identified with an adverse party, interrogation may be

       by leading questions.



       {¶20} The state argues even if there was error, it was harmless given that Mr.

Williams's testimony was cumulative evidence. Harmless error is described as "[a]ny

error, defect, irregularity, or variance which does not affect substantial rights shall be

disregarded." Crim.R. 52(A). Overcoming harmless error requires a showing of undue

prejudice or a violation of a substantial right.

       {¶21} After a lengthy discussion outside the hearing of the jury, Mr. Williams

testified to direct questions asked by the state. T. at 175-180. Mr. Williams agreed that

he was a confidential informant on November 21, 2012. T. at 180. When asked about

appellant's participation in the drug buy on said date, Mr. Williams denied any

conversation with appellant about the purchase of cocaine. T. at 181-183. Mr. Williams

denied ever talking to appellant about it. Id. The state then proceeded to impeach its

own witness by using a prior statement given by Mr. Williams to Mansfield Police

Detective Steve Blust and asking Mr. Williams to read the statement. T. at 183-185.
Richland County, Case No. 14CA22                                                      7


       {¶22} It is important to note that Mr. Williams was called by the state. Although

the "voucher" rule has been abolished in Ohio, Evid.R. 607 governs impeachment.

Subsection (A) states the following:



               The credibility of a witness may be attacked by any party except

       that the credibility of a witness may be attacked by the party calling the

       witness by means of a prior inconsistent statement only upon a showing of

       surprise and affirmative damage.        This exception does not apply to

       statements admitted pursuant to Evid. R. 801(D)(1)(a), 801(D)(2), or 803.



       {¶23} As the record reveals, Evid.R. 801(D)(1)(a) and (2) and 803 do not apply

to an unsworn prior statement subject to cross-examination or an admission by a party-

opponent or a recorded recollection. The record, although it demonstrates that Mr.

Williams did not want to testify or to even be there, does not affirmatively show

"surprise" by the state.

       {¶24} Prior to any testimony other than preliminary questions and answers, Mr.

Williams told the prosecutor he wanted to plead the "Fifth" (T. at 174-175):



               Q. Okay. I understand you don't want to be here. Would that be

       fair?

               A. I want to plead The Fifth.

               Q. I asked you if you understand that you don't want to be here?

       Do you agree you don't want to be here?
Richland County, Case No. 14CA22                                                     8


               A. I don't want to be here.

               Q. Okay. With that said, what I want to ask you is did you do an

       undercover buy for Metrich on November 21st, 2012? I know this is hard

       for you, sir.

               MR. WILLIS: Objection.

               THE COURT: Overruled.

               A. I don't want to.

               Q. Who got to you, sir?

               A. Nobody get to me.

               Q. Somebody must have got to you.

               A. Nobody get to me.

               Q. Did you do an undercover buy for Metrich on November 21st,

       2012?

               A. I don't want to talk.



       {¶25} The trial court then excused the jury and Mr. Williams stated he wanted to

plead the "Fifth" and did not want to testify. T. at 176. The trial court engaged Mr.

Williams in the following dialogue (T. at 176-177):



               THE COURT: Your job as a witness is to tell the truth and answer

       the questions.     If you have a Fifth Amendment right, if you're being

       accused of something, then that would be one thing.              But my
Richland County, Case No. 14CA22                                                      9


      understanding is you're not charged in this case. You weren't charged

      with anything to do with drugs.

             MR. WILLIAMS: Well, I don't want to - - I mean, I don't want to - - I

      just don't want to testify.

             THE COURT: Well, in this case you have to testify, because there's

      no legitimate reason not to. If you don't testify, then the Court has to hold

      you in contempt, which means go into the county jail in addition to the

      prison time you're already doing.      So what do you want to do, Mr.

      Williams? The choice is yours.

             MR. WILLIAMS: How long do I have to be in contempt for?

             THE COURT: For refusing to testify without a legitimate reason not

      to. You're not being accused of anything.



      {¶26} Defense counsel suggested Mr. Williams needed an attorney and Mr.

Williams stated he had an attorney. T. at 177-178. The trial court then ruled as follows

(T. at 179-180):



             THE COURT: Don't argue amongst yourselves. My ruling is you're

      not being accused of anything.      So my decision is you're going to be

      ordered to testify. If you choose not to testify and tell the truth, then you

      can be held in contempt of court.

             MR. WILLIAMS: I ain't got nothing to say.

             THE COURT: Are you refusing to testify?
Richland County, Case No. 14CA22                                                        10


              MR. WILLIAMS: I don't have nothing to say.

              THE COURT: Does that mean you're refusing to testify?

              MR. WILLIAMS: I didn't ask them to come get me from prison.

              THE COURT: I know that. You weren't asked - - you didn't want to

       be a witness. I understand that. But that's - - you know, you are a witness

       now, so the question is - -

              MR. WILLIAMS: All right. But this is - - I got the right - - I got the

       right to not come up here. I know all about this stuff. I got the right to not

       come up here and I don't even have my attorney.

              THE COURT: My question for you is, are you refusing to testify or

       not? That's all I need to know.

              MR. WILLIAMS: I don't want to testify.

              THE COURT: I take that as a refusal. I'm going to hold you in

       contempt of court. Take him back down to the jail. Bring them back in

       and bring the folks back in.



       {¶27} The trial court was about to have Mr. Williams removed, when a

discussion was held off the record. T. at 180. Mr. Williams was admonished to tell the

truth and the direct examination by the state commenced. Id.

       {¶28} Without the discussion off the record, we have no indication as to why Mr.

Williams began to testify. We can presume he gave up his Fifth Amendment claim and

right to an attorney.
Richland County, Case No. 14CA22                                                         11


      {¶29} Under the doctrine of "invited error," it is well settled that "a party will not

be permitted to take advantage of an error which he himself invited or induced the trial

court to make." State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663, 1995-Ohio-40,

citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359, 1994-Ohio-302. See, also,

Lester v. Leuck, 142 Ohio St. 91 (1943), paragraph one of the syllabus.             As the

Supreme Court of Ohio stated in Lester at 92-93, quoting State v. Kollar, 95 Ohio St. 89

(1915):



             'The law imposes upon every litigant the duty of vigilance in the trial

      of a case, and even where the trial court commits an error to his prejudice,

      he is required then and there to challenge the attention of the court to that

      error, by excepting thereto, and upon failure of the court to correct the

      same to cause his exceptions to be noted.

             'It follows, therefore, that, for much graver reasons, a litigant cannot

      be permitted, either intentionally or unintentionally, to induce or mislead a

      court into the commission of an error and then procure a reversal of the

      judgment for an error for which he was actively responsible.'



      {¶30} We question the trial court's decision not to afford Mr. Williams an attorney

when it was clear from the record that Mr. Williams was concerned by the possibility of

perjury. However, we find we cannot conclusively say it was error.

      {¶31} As we noted, the state's method of impeaching Mr. Williams and the

method used to refresh his recollection were incorrect and constitute error. We must
Richland County, Case No. 14CA22                                                      12


now examine the record to determine if the errors were harmless and mainly cumulative

evidence.

      {¶32} Mr. Williams's "impeached testimony" was that he had asked appellant in

person how much for a "zip" (ounce) of cocaine and appellant answered $1,200.00. T.

at 181-182. This was presented via Mr. Williams's statement to Detective Blust. T. at

181-184. The statement indicates prior to this encounter, Mr. Williams engaged in a

couple of controlled telephone calls to appellant's phone number. T. at 184-185.

      {¶33} The state's inquiry was whether the set-up of the controlled drug buy was

done through appellant. The testimony of Detective Blust, who was present during the

numerous back-and-forth telephone calls between appellant's phone and Mr. Williams's

phone, established that Mr. Williams received a call-back from appellant's number and

appellant told Mr. Williams where to go for the drug buy. T. at 38-41. Mr. Williams was

wired with audio and video. T. at 43. The controlled drug buy by Mr. Williams on

November 21, 2012 was overheard by Detective Blust, Mansfield Police Detective Perry

Wheeler, and Ohio State Highway Patrol Trooper James Tidaback. T. at 36, 43, 114,

117, 163, 169. Following the drug buy, Mr. Williams returned to Detective Wheeler's

vehicle with the cocaine from the buy.      T. at 44-45, 119.     The audio and video

recordings were admitted and played for the jury. T. at 52, 55; State's Exhibits 3 and 4.

Appellant is on the video during the drug buy and is observed talking to Mr. Williams. T.

at 53-54.   Appellant is identified in court by Detectives Blust and Wheeler as the

individual on the video. T. at 54, 116-118. The audio reveals Mr. Williams talking to

appellant about prices for the cocaine. T. at 55. Appellant then calls back to a third

party, Burke Webb. T. at 55-57, 118. On the video, Mr. Webb is observed handing the
Richland County, Case No. 14CA22                                                         13


cocaine to Mr. Williams.     T. at 56, 117-118.      A second controlled drug buy was

attempted by Mr. Williams to appellant's telephone number and appellant was identified

as being on the phone. T. at 58-59.

       {¶34} We concur with the state's position that any error was harmless. The

audio and video recordings, the observations of Detectives Blust and Wheeler and

Trooper Tidaback, and the identifications of appellant as the individual who set-up the

drug buy and participated in its direction are sufficient alone to establish proof beyond a

reasonable doubt. The testimony of Mr. Williams was cumulative.

       {¶35} Lastly, appellant argues the state improperly asked Mr. Williams, "Who got

to you, sir?" T. at 175, 185, 201. No objections were made to the first and third

reference. T. at 175, 201. Defense counsel objected to the second reference, and the

trial court determined it was already asked and answered, "[s]o let's move on." T. at

186. Although we find the questions constitute error, we do not find they rise to the

level of "a showing of undue prejudice or a violation of a substantial right" in the context

of the entire trial. State v. Lott, 51 Ohio St.3d 160 (1990); Darden v. Wainwright, 477

U.S. 168 (1986). Given all of the evidence presented, Mr. Williams's testimony was

cumulative.

       {¶36} Assignments of Error II, III, IV, and V are denied.
Richland County, Case No. 14CA22                                              14


      {¶37} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




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