[Cite as State v. Taylor, 2013-Ohio-186.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :            C.A. CASE NO.      23990

v.                                                  :            T.C. NO.     08CR1087

GUDONAVON J. TAYLOR                                 :             (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                            ..........

                                            OPINION

                          Rendered on the    25th       day of      January     , 2013.

                                            ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, 765 Troy Street, Dayton, Ohio
45404
      Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.

        {¶ 1}     This matter is before the Court on the Notice of Appeal of Gudonavon
                                                                                            2

Taylor. Taylor’s appeal was originally filed by counsel for Taylor on April 19, 2010.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967),

original appellate counsel for Taylor asserted that there were no meritorious issues for

review. Taylor then filed a pro se brief, asserting nine assignments of error, and an amended

brief, asserting one additional assignment of error, and this Court concluded that six of

Taylor’s assigned errors had arguable merit. This Court appointed new counsel for Taylor,

who asserts three assigned errors herein.

       {¶ 2}    On April 7, 2008, Taylor was indicted on three counts of murder, two counts

of felonious assault, and one count of having weapons while under disability, each with a

three-year firearm specification. On April 18, 2008, Taylor was charged by indictment with

an additional charge of discharging a firearm on or near prohibited premises, with a

three-year firearm specification.   On May 6, 2008, Taylor filed a Motion to Suppress

Pretrial Photographic Identification, and a hearing was held on October 14, 2008. On

January 29, 2009, Taylor filed a second motion to suppress. On September 9, 2009, the

State filed a motion requesting that the court rule on Taylor’s motions to suppress along with

a memorandum in opposition to the motions. On October 2, 2009, the trial court overruled

Taylor’s motions, except that it withheld its ruling relating to one witness, Iletha Veney,

until the witness could be produced by either party.

       {¶ 3}    On January 5, 2010, Taylor filed a motion to suppress all records relating to

a specific cell phone number, and on January 20, 2010, he filed a supporting memorandum,

which the State opposed. On February 2, 2010, the trial court overruled the motion.

       {¶ 4}    On March 9, 2010, the State filed a motion to exclude evidence. On March
                                                                                             3

19, 2010, Taylor filed a motion in limine, and he filed a second liminal motion on March 22,

2010. The State filed a motion in limine on March 22, 2010.

       {¶ 5}    Following a jury trial on all charges except having weapons while under

disability, Taylor was found guilty of each offense and specification. Following a bench trial,

Taylor was found guilty of having weapons while under disability. The court sentenced

Taylor to an aggregate term of 41 years to life.

       {¶ 6}    The events giving rise to this matter occurred on December 7, 2007, when

Taylor, also known as DonDon, shot and killed Jerod Bryson, also known as JB, after an

argument over drugs and money that began at 116 East Lincoln Street, a boarding house in

Dayton, and ended with Bryson’s death on nearby Warren Street. Taylor was 18 years old

at the time of the shooting.

       {¶ 7}    At trial, Susan Allen, a forensic pathologist from the Miami County

Coroner’s Office, who performed an autopsy on Bryson, testified that she recovered seven

bullets from Bryson’s body, namely two from his back, one from his right hand, one from

the left side of his chest, one from the right side of his head, one from his pelvis, and one

from his neck. She stated that she found 14 separate and distinct entrance wounds to

Bryson’s body, and she testified that Bryson died of “multiple gunshot wounds of the head

and torso.”

       {¶ 8}    On cross-examination, defense counsel asked Allen if, “in part of your

training and your experience you do and have learned and analyzed the effects that certain

drugs can have on the body?” Allen answered affirmatively and then stated, “my area of

focus is on the presence or absence of drugs after death and not particularly what the effects
                                                                                           4

are while the person is living. A toxicologist would perhaps be able to address behavior, for

example, while the person is alive.”   The following exchange occurred:

               Q. Doctor, I had asked you whether or not cocaine * * * affects the

       brain * * * when you ingest the cocaine * * *. What does it affect within the

       body. You’re aware that it affects the brain, are you not, Doctor?

               A. Well, the drug is going to go through your bloodstream, so it will

       have an effect on, you know, many different areas of your body. During the

       autopsy looking at the brain and - - you know, grossly, just with your eye,

       and then later looking at the brain underneath the microscope, you cannot see

       an effect of cocaine use. If there is something that is happening during life,

       that is possible, but again, a toxicologist would better be able to address that

       question.

               Q. * * * are you aware of any studies or articles that have indicated

       that cocaine constricts the blood vessels within the brain?

               ***

               A. I’m sure that cocaine does constrict blood vessels. If you’re

       specifically talking about the brain and specific articles, no, I’m not aware of

       a specific article.

               ***

               Q. And as part of your work at the Coroner’s Office and part of your

       scientific background and your education and your experience, you are aware,

       are you not, Doctor, that the constriction of blood vessels within the brain
                                                                                           5

       affects your memory?

                A. I - - I’m not going to address a question about behavior and

       memory. A toxicologist could better answer that question.

       {¶ 9}       Defense counsel then inquired whether Allen was familiar with two

articles involving the physiological effect of crack cocaine on an individual’s memory.

Allen viewed the articles, namely Defendant’s Exhibits A and B, and then stated that she

was unfamiliar with them. Exhibit A is an article entitled “How Does Cocaine Affect the

Body?” by Traci Vandermark, a “student of health, fitness and nutrition at the International

Institute of Holistic Healing,” which was published at Livestrong.com, and Exhibit B is

entitled, “Researchers See how Cocaine Affects The Brain,” by William Cromie, which was

published in the Harvard University Gazette in 1998.       After viewing the articles, Allen

stated, “If you would like for me to review the articles, I would be happy to review and give

an opinion if I can. I would have to read the articles in order to render an opinion.”

Defense counsel asked her to “take the time now to review” the articles, and the court

instructed, “[w]e’re not going to take the time to review that. The witness has testified

she’s not familiar with it.”

       {¶ 10} On redirect examination, the following exchange occurred:

       Q. You don’t have specific expertise on how drugs, albeit cocaine or other drugs,

       affect a living person’s behavior?

       A. That’s right.

       {¶ 11}     Louise Tamlyn, who was the only resident of 116 Lincoln Street, testified

that she allowed Taylor and Bryson to sell drugs from the common area of the home in
                                                                                           6

exchange for crack cocaine. According to Tamlyn, on the evening of December 7, 2007,

around 8:00 p.m., Taylor, Bryson, another man named “V,” and his girlfriend, Brittany, were

drinking and “shooting crap” in the common area of the home when they “commenced

arguing.” At the time, Tamlyn was in her bedroom, which was adjacent to the common

area, with her door open. She stated that “[m]ainly DonDon and JB” were arguing about

“[m]oney and territory.”   Tamlyn stated that she asked them to “quiet down,” and when the

arguing “erupted louder again,” she told everyone to leave. Tamlyn stated that everyone left

through the front door, and that Taylor and Bryson continued arguing for 10 or 20 minutes.

Tamlyn testified that she went upstairs to use the bathroom, at which time the arguing

“seemed to quiet down.”

       {¶ 12}    When Tamlyn returned to the first floor, she testified that she heard two

gunshots. Tamlyn stated that she looked out of the side window of the home toward the

intersection of Lincoln and Warren Streets, and she observed “JB dancing from foot to foot

 out in the middle of the street,” and no one else. Tamlyn stated that she proceeded to her

front door, which she opened. Tamlyn stated that she observed “a man in black slacks or

jeans and a black parka coat with a fur hood running across the field” across the street from

her home. Tamlyn testified that she observed “JB fall to the ground” at 238 Warren Street.

Tamlyn stated that she heard “five to seven shots,” and that she “see the man run back

through here. And there happens to be a streetlight there and I had my porch light on. I see

the side of the face and I see the orange lining and I see DonDon come back through the

field.” Tamlyn stated that she did not see anyone else besides Taylor and Bryson. Tamlyn

stated that the five to seven shots she heard were subsequent to the two she initially heard,
                                                                                             7

and that at the time they were fired, Bryson was on the ground and Taylor was “standing in

front of JB.”     Tamlyn stated that her porch light was on at the time, and that a streetlight

also illuminated the area. Tamlyn stated that she was wearing her glasses when she opened

her front door.

       {¶ 13} Tamlyn stated that on the evening of the incident, Taylor was wearing a

parka with a fur-trimmed hood and an orange lining, “V” was wearing a “black jacket”

without fur around the hood, and Bryson was wearing a “Carhart” jacket that was beige in

color. Tamlyn stated that she did not observe a gun in Taylor’s possession. She stated that

after Taylor ran back across the field, she heard a car door slam “further down Lincoln past

my house on the opposite side of the street, and it sounded like it proceeded down toward

Main Street.”

       {¶ 14} According to Tamlyn, she bought or was given crack cocaine by both Taylor

and Bryson on the date of the incident, and she smoked crack cocaine twice that day at about

4:30 and 8:00 p.m. Tamlyn stated that a “crack high” lasts about “a half an hour.” Tamlyn

stated that she was “not at all” high when she heard the gunshots and observed Taylor

running across the field. After she heard the car leave the scene, Tamlyn stated that she put

her boots on, left her home and approached Bryson, who was “laying on his back” in the area

of 238 Warren Street.       Tamlyn stated that before she reached Bryson, she observed the

owner of a nearby “catering place,” known as Benham’s, and she asked him to call 911.

Tamlyn stated that she then observed a police cruiser, which she flagged down, and she

stated that she showed the officer Bryson’s body, which had holes “in his head, shoulder and

his chest.” Tamlyn stated that Bryson was “barely breathing at the time.”
[Cite as State v. Taylor, 2013-Ohio-186.]
        {¶ 15} According to Tamlyn, Chris Brown approached the scene, and the officers

asked her if he was the man who shot Taylor, and Tamlyn responded negatively. Tamlyn

stated that she did not observe Brown at the shooting. In speaking with the responding

officer on the night of the shooting, Tamlyn testified that she did not tell them everything

that she had observed or identify Taylor or Bryson because she was scared. Tamlyn stated

that she subsequently provided Taylor’s name to police on December 10, 2007, and she

identified Taylor in a photo spread at the Safety Building on December 17, 2007. Tamlyn

identified State’s Exhibit 46 as the coat worn by Taylor on the night of the shooting.

        {¶ 16} On cross-examination, Tamlyn stated that in the six months prior to the

shooting, she used crack cocaine two or three times a month, and she did not consider her

usage to be “regular.” She stated that she suffers from bipolar disorder, anxiety and post

traumatic stress disorder and takes medication prescribed by a psychiatrist.

        {¶ 17} Tamlyn stated that she met Brown “through JB and DonDon,” and that

Brown “had been in and out of the house bringing DonDon and JB customers” on the day of

the shooting, and that he had been there “after dark.” She stated that Brown arrived on the

scene approximately eight minutes after she flagged down the police officer, and that he was

alone. Tamlyn stated that Brown asked her what had happened, and that she told him “JB

had got shot” while out of the earshot of the police officers. Tamlyn stated that when

Taylor ran back across the field, she observed the orange lining of his parka, as well as the

side of his face.

        {¶ 18}      On redirect examination, Tamlyn stated that on the night of the shooting,

“V” and Brown wore jackets that came to their waists, and that Taylor’s jacket was below

the waist. Tamlyn acknowledged that at a probable cause hearing on March 11, 2008, she
                                                                                             9

described Taylor’s coat as “‘a black thigh-waist hooded parka.’”

       {¶ 19}    On recross-examination, Tamlyn stated that she closed her front door when

Taylor ran back across the field after shooting Bryson, because he would have been able to

see her face since the area was illuminated by the streetlight and porch light. She stated that

the crack cocaine that she smoked on the day of the incident in combination with her

prescription medication did not affect her ability to perceive, understand and remember the

events of the evening.

       {¶ 20}    Chris Brown testified that he witnessed the shooting. At the time of trial,

he was incarcerated at the Montgomery County Jail. He testified that on the night of the

shooting, in exchange for crack cocaine, he was acting as a “runner,” bringing customers to

Bryson and Taylor to purchase crack cocaine. Brown stated that he smoked some crack that

night which Bryson and Taylor gave him, and that at that time he was smoking crack every

day. On December 7, 2007, Brown stated that Taylor was dropped off by his step-father at

the Lincoln Street address. Brown testified that on that date he was present inside the

Lincoln Street address with Taylor, Bryson, “V,” and his girlfriend, Brittany. Regarding the

argument that preceded the shooting, Brown testified that “JB break up V and his girl from

fighting.   And then he start getting at DonDon and everything, and then he threaten

DonDon, said he was going to get his gun and bring it down there and do something.”

Brown stated that Bryson and Taylor argued about money from the drug sales. After Tamlyn

told them to leave, Brown stated that Taylor, “V” and his girlfriend got into a car and left

“for like six minutes.” Brown stated that when the vehicle returned, Taylor got out of the

car, and Brown stated that he walked towards Taylor and said “‘Man, you need to let
                                                                                             10

everything go.’” Brown stated that Taylor “kept walking, and JB was standing right there,”

and Taylor shot Bryson. According to Brown, Bryson “get back up and cross the street.

He was on his cell phone. And I seen DonDon went back across following behind him and

pushed him down to shoot him some more.” Brown stated that he heard a total of eight

shots. Brown stated that he “went towards like the Gospel Mission. I went up a little more

till I seen [Taylor] run back across field and get in the car and they took off.”

       {¶ 21} Brown testified that after Taylor drove away, he “went back slowly to the

corner. Then I crossed over and went checking on him. And I was scared like walking up

on him and I was - - just started crying. And the police pulled up, told me to put my hands

up.” Brown stated that he did not see Tamlyn as he approached Bryson. Brown stated that

he was placed in a cruiser and was not truthful to officers about what he had seen. Brown

stated that he observed Tamlyn when he was in the back of the cruiser. He stated that he

was arrested on an outstanding warrant, and that he later told the police that Taylor killed

Bryson. Brown stated that Taylor wore dark clothes and a “jacket with a hoodie with fur

around it “ on the date of the shooting. Brown identified Exhibit 46 as Taylor’s jacket.

Brown stated that the crack cocaine he smoked did not affect his ability to perceive and

remember the shooting.

       {¶ 22} Finally, Brown testified that he had contact with Taylor in the Montgomery

County Jail within the last two weeks before trial, and Brown stated that Taylor told him,

“‘Don’t testify’ - - he said my name was in his discovery packet. He said don’t testify

against him because his life is on the line. And he said if I - - if I don’t testify against him

he’ll have his girl put $40 on my books.”
[Cite as State v. Taylor, 2013-Ohio-186.]
        {¶ 23} Larry Harris testified that at the time of the shooting, he resided at the

Marvin Gardens Apartments on Warren Street, on the second floor. Harris stated that he

knew Bryson and Taylor and had bought crack cocaine from them on Lincoln Street. He

testified that Taylor and “V” came to his apartment at about 6:00 p.m. on the date of the

shooting, and that they “started to gamble. Smoking weed, drinking.” Harris stated that

Albert Wynn, who is Bryson’s brother, also came by his apartment. Harris stated that he

owed Wynn five dollars, and that he gave him the money and told him to leave. He stated

that his landlord appeared at about 9:00 p.m., and that she told Taylor and “V” to leave.

Harris stated that he later went to the hospital and was not home when the shooting occurred.



        {¶ 24} Robert Hankey testified that he is a director of an alternative education

program called Twilight School at Wayne High School, and that the program is offered from

3:00 to 5:00 p.m. Hankey stated that Taylor was a student in the program, and that on the

date of the shooting, Taylor “took a half-day and he was dismissed early” at 4:00.

        {¶ 25}     Michael Daborde testified that he is a homicide detective with the Dayton

Police Department, and that he conducted a follow-up investigation of the shooting.

Daborde stated that while he was interviewing Taylor, on December 11, 2007, Taylor’s

mother arrived at the Safety Building “wearing a coat that fit a description that we had had

from the initial scene of the homicide.” He stated that the coat “was black with a fur hood.”

 According to Daborde, the coat “didn’t appear to fit her. So we thought that to be strange.”

Daborde testified that he took the coat from Taylor’s mother, and he identified Exhibit 46 as

that coat.

        {¶ 26} Albert Wynn testified that Bryson was his younger brother. Wynn testified
                                                                                            12

that he went to the home of Larry Harris, “to collect money on a drug debt” on December 7,

2010, at approximately 6:30 p.m. At the time, Wynn stated that he observed Taylor at the

apartment with “V” shooting dice. He further stated Bryson stopped by the apartment while

he was there, and that he and Bryson left the apartment together and then went their separate

ways, with Bryson walking toward Lincoln Street.

       {¶ 27}    Danyelle Allen, Bryson’s girlfriend, testified that she received a call on her

cell phone from Bryson at around 8:30 p.m on December 7, 2007, and according to her caller

ID, the call was placed from Taylor’s cell phone.

       {¶ 28}    Adrian Uloho testified that he witnessed a shooting on December 7, 2007,

from his apartment on Warren Street. He stated that he looked out of his window and

observed two men across the street, and that one of the men shot the other one. He stated

that the area where the men stood was well lit.     Uloho stated that after the man was shot,

he got up and walked in the direction of Uloho’s apartment. According to Uloho, the

shooter followed the victim, and the “guy that got shot, when he sees him, he falls to the

ground.” Uloho stated that he heard the shooter say, “Did I get you?” and “Why did you try

to play me?” Uloho stated that he did not observe anyone else in the area except the shooter

and the victim. Uloho stated that after the victim fell to the ground, the shooter stood over

him and shot him at least four more times. Uloho then observed the shooter “running across

the street.” On cross-examination, Uloho stated that he had met Bryson once before, but he

did not see his face well enough to identify him on the night of the shooting.

       {¶ 29} Dayton Police Detective Michael Galbraith testified that he was dispatched

to the scene of the shooting on December 7, 2007, after 11:00 p.m, and that when he arrived,
                                                                                              13

Bryson’s body had already been removed. Galbraith stated that the area was well lit, and he

observed footprints in the snow heading in the direction of Lincoln Street from Warren.

Galbraith testified that the Dayton Police have a policy to not release the name of homicide

victims until after their family is notified, and that Bryson’s family was notified on the 8th of

December, and that the shooting was reported in the Dayton Daily News on the 9th of

December.       Galbraith stated that he interviewed Tamlyn on December 10, 2007, and that

she provided Taylor’s name to him. Galbraith stated that he interviewed Taylor on December

11, 2007, after he observed him talking on his cell phone on Warren Street where Galbraith

had returned to continue the investigation. Galbraith stated that when he observed Taylor at

that location, he called for additional officers, and when approached, Taylor identified

himself as Gudonovan Taylor and agreed to go with the uniformed officers to the station.

       {¶ 30} After advising Taylor of his Miranda rights, Galbraith questioned Taylor

about his presence at the scene of the crime on December 7, 2007, and his use of the name

DonDon, both of which Taylor denied.          Taylor’s mother arrived in the course of the

interview, and Galbraith “immediately noticed that she was wearing an oversize parka” that

was “too big for her and it was dark colored with fur around the collar.” Galbraith stated

that he and Daborde “conferred about it and both thought that it was very like and similar to

one that was described.” Galbraith stated that he advised Taylor’s mother that the coat

“appeared to be evidence at this point and that I needed it.” Galbraith took possession of

the coat, and he identified it as State’s Exhibit 46. Galbraith stated that he interviewed

Tamlyn on December 17, 2007, and that she identified Taylor in a photo spread of six photos

“right away.”
                                                                                            14

       {¶ 31} James Wright testified that in November, 2009, while he was incarcerated at

the Montgomery County Jail, he came into contact with Taylor, from whom he had

previously bought drugs. Wright heard Taylor state that he had returned to the Lincoln Street

address after Bryson’s murder, and that “he seen that the detectives were there. So, he

proceeded up the street to the phone, he didn’t say what kind of phone. He just said the

phone. And he said then he seen an unmarked cruiser coming towards him so he got rid of

the weapon that he had.” Wright stated that Taylor indicated that detectives approached

him and questioned him. Wright stated that Taylor also “said he was going to have his

family come in and say he did not have his cell phone with him. He did not have his cell

phone, he loaned it to a friend and that he going to - - that they were going to say he was at

his mother’s house.”

       {¶ 32}    Taylor, who was nineteen at the time of trial, presented an alibi defense.

Latoya Stewart testified that Taylor is the brother of her boyfriend, Gujaun Payton. She

stated that she saw Taylor on December 7, 2007 at his mother’s house in Huber Heights.

According to Stewart, she went to the home after school to spend the weekend with Payton.

She stated that she arrived “after 6:30, maybe 7:00,” and that Taylor arrived 30 minutes later.

 Stewart testified that upon her arrival, Shabrandia Walder, Taylor’s girlfriend, “had did

my hair in the bathroom.” According to Stewart, Taylor’s “mom was cooking dinner,

chicken. We walked to Speedway to get some snacks.” She stated that she, “Gujuan,

Gudonavon, Guquaya, and Shabrandia” walked to Speedway together. Afterward, they

returned home for dinner, and “then my boyfriend and Gudonavon played a game in his

room. We all just played a game and laid down and watched TV.” Stewart stated that they
                                                                                          15

stayed up until 12:00, and that Taylor never left the residence.

       {¶ 33} Shabrandia Walder testified that she is Taylor’s girlfriend.    She stated that

Taylor lives in Huber Heights with his “mother, Gloria Close, Tommy Close, his stepfather,

his little brother, Elsie Lorenzo Close, his sister, Guquaya Payton.” In December, 2007,

Walder stated that she was “staying over there at Gloria Close’s house.” On December 7,

2007, Walder stated that Taylor arrived at the home at “around 8:00" p.m., and that she “was

still doing my hair because I had just finished doing Latoya’s hair. I was doing my hair in

the restroom. He walked in, said, ‘What’s up?’ He went in his room and played the video

game for a while. And then after I finished up a little with my hair, we both walked to

Speedway, all of us.” After returning to the home and having dinner, Walder stated “we

all came in Don-Don’s room and played the game” on Taylor’s “Xbox 360 * * * Something

like that.” Walder stated that she did not leave Taylor’s presence, and that he did not leave

the residence. The following morning, according to Walder, she was in bed with Taylor

when Taylor’s “mama wake him up like, ‘Don-Don, that boy you be with on TV.’ That’s

what she said.”

       {¶ 34} Gujuan Payton testified that he is Taylor’s brother. He testified that he saw

Taylor at “[a]round like 9:00, 10:00" on December 7, 2007 at the home of his mother where

both men lived. Gujuan testified that he, Taylor, “LaToya, Guquaya and Shabrandia” went

to Speedway for snacks at 10:00 p.m. Payton stated that he and Taylor then played video

games until midnight.

       {¶ 35} Taylor testified that he “started selling dope” in the area of Lincoln and

Warren Streets in August, 2007, and that “at first it was just me and JB.” Taylor stated that
                                                                                         16

he went to school on December 7, 2007, but that he left early because he and Walder had

argued in the morning after she told him that she was pregnant a few days earlier. Taylor

stated that when he left school, he initially “went to another woman’s house that was in the

area, you know, just to chill out for a minute, clear my head,” at “around 4:00.” Taylor

stated that he was “over there for a few hours,” and that he then went to his mother’s

residence. Taylor denied going to the area of Lincoln and Warren Streets on the date of the

shooting.   He stated that after he returned to his mother’s home, he did not leave again

except to walk to Speedway, after which he “just came home, played the game.” The

following day, Taylor stated that he “learned it was a shooting down on Lincoln Street” from

his mother, and that she told him, “‘Somebody just got killed down on where you be at.’”

Taylor stated that he learned that the victim was JB “later on that night,” after he called

Danyelle Allen. Taylor testified that he went to the area of the shooting on Monday

“because I wanted answers for real honestly,” and that Bryson was his friend.

       {¶ 36} Taylor stated that when he was taken to the Safety Building for questioning,

he denied using the nickname DonDon because he was afraid that “it had to be some type of

secret indictment for selling dope,” since “that’s what all the crackheads call me.” Taylor

stated that from 2007 until the present, he has remained the same size. Taylor denied

talking to Wright about his case. When shown Exhibit 46, the jacket, Taylor denied that it

belonged to him. Defense counsel asked Taylor to try on the parka, and the following

exchange occurred at sidebar:

               MR. BRANDT: I’ll object, Your Honor, for the record. First, as to

       relevance. We’re talking about almost three years after the fact.
                                                                                17

       ***

       MR. BRANDT: And I don’t know what relevance it would be

whether it fits him now versus if it fit him back in 2007.

       MR. SKELTON: Your Honor, the relevance is the entire case to some

extent is based on the appearance of this coat on the Defendant. They could

argue on cross-examination anything they want, but I think the rules will

allow this specific type of evidence to come in.

       ***

       MR. BRANDT: He stated that it’s not his coat. * * *He was a juvenile

then. He’s now technically an adult. I just don’t understand the relevance it

has whether the coat fits him here today when he says it wasn’t his.

       MR. SKELTON: Okay. Well, Your Honor, I’ve already had him

testify that he was approximately the same height and weight as when he

came in. They can cross on that. There’s testimony all over this record

about the length of the coat.

       ***

       MR. SKELTON: It’s clearly probative.

       ***

       THE COURT: * * *Let me ask this. Has the State had any thoughts

about what rebuttal might be required should the Defendant try it on or

rebuttal evidence, I mean?

       MR. BRANDT: You know, I guess the potential slippery slope of
                                                                                          18

       evidence in terms of witnesses coming in to testify as to what his physical

       stature was back three years ago.

                 MR. SKELTON: We have jail records for that if you want.

                 MR. BRANDT: Jail records, you know, there’s an issue of whether

       that’s self-reporting or anything else. I’m talking about actual witnesses.

       So I didn’t anticipate, quite honestly, that the Court would allow him to try it

       on, so.

                 THE COURT: I’m going to take a break and figure it out.

       ***

                 THE COURT: Ladies and gentlemen, the Court has determined that

       due to the age of the Defendant at the time of the shooting and the potential

       that the size of the Defendant can change in two years. Mine has, for

       example, although not in the same direction as we’re concerned about. We’re

       not going to allow the Defendant’s last request.

       {¶ 37} Defense counsel then requested and received permission to videotape Taylor

trying on the coat outside of the presence of the jury for purposes of appeal.

       {¶ 38} On cross-examination, Taylor testified that Brown worked as a “runner” for

him and Bryson. Taylor stated that when the officers approached him on December 11,

2007, near the scene of the shooting, he “was thinking it was for truancy.” Taylor stated

that the officers asked him if his name was DonDon before they told him that they wanted

to interview him about the shooting, and he stated that he lied to get out of trouble for a

drug-related offense.
                                                                                              19

       {¶ 39}       The prosecutor asked Taylor if he had grown in the last three years, and

Taylor stated that he has been “5'11 3/4"” since he was 16 years old. Defense counsel then

asked the court again at sidebar to allow Taylor to try on the coat, and the court declined the

request.

       {¶ 40} After the defense rested, Detective Daborde testified on rebuttal that in the

course of an interview with Walder, she identified the coat taken from Taylor’s mother as

Taylor’s coat.

       {¶ 41} Immediately before closing statements, the court indicated that upon further

review of the issue, it would permit Taylor to try on the parka in the presence of the jury.

Counsel for Taylor stated, in part, that the defense is not “going to try to reopen their case

and put something into evidence that the Court has already instructed the Jury that they

shouldn’t consider. * * * .”

       {¶ 42}        Taylor asserts three assignments of error herein.   His first assigned error

is as follows:

       “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

       VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATED

       CONSTITUTION            AND     SECTION       10,   ARTICLE       I   OF   THE     OHIO

       CONSTITUTION.”

       “A.       The Trial Counsel failed to acquire an expert witness to testify as to the

       possible reliability issues of witnesses that were under the influence of crack-cocaine

       during the commission of the crime.”

       “B. Trial Counsel failed to state to the members of the jury that Mr. Brown was not
                                                                                           20

       seen at the scene of the crime described by the other two State’s eyewitnesses.”

       “C. The Trial Counsel failed to obtain and/or request evidence that could have

       supported the Defendant’s Alibi.”

       {¶ 43} As this Court has previously noted:

               We review the alleged instances of ineffective assistance of trial

       counsel under the two prong analysis set forth in Strickland v. Washington

       (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the

       Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * *.

        Pursuant to those cases, trial counsel is entitled to a strong presumption that

       his or her conduct falls within the wide range of reasonable assistance.

       Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective

       assistance of counsel, it must be demonstrated that trial counsel’s conduct fell

       below an objective standard of reasonableness and that his errors were serious

       enough to create a reasonable probability that, but for the errors, the result of

       the trial would have been different. Id. Hindsight is not permitted to distort

       the assessment of what was reasonable in light of counsel’s perspective at the

       time, and a debatable decision concerning trial strategy cannot form the basis

       of a finding of ineffective assistance of counsel. (Internal citation omitted).

       State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31.



       {¶ 44} In his brief, Taylor initially asserts that defense counsel’s performance fell

below an objective standard of reasonableness in that he failed to request funds for an expert
                                                                                           21

witness on the issue of the effect of crack cocaine on memory, and that the “lack of an expert

witness harmed the Defendant because jurors were not able to obtain reliable information on

the effects of recollection for individuals that use crack cocaine.” Further, according to

Taylor, “the fact that both of the State’s main eyewitnesses were using crack-cocaine at the

day of the incident shows the need of obtaining an expert witness to testify on its effects in

(sic) recollection.”

        {¶ 45} As the State asserts, “the failure to call an expert and instead rely on

cross-examination does not constitute ineffective assistance of counsel.” State v. Nicholas,

66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993). Further, the record reflects that defense

counsel filed a “Motion for Funding” on April 16, 2009, in which he requested money for

expert witnesses in the areas “relating to cell phone and /or cell site information and/or DNA

evidence,” and counsel’s decision not to seek authorization for further expenditures to

address the effect of crack cocaine on memory is a matter of trial strategy. Tamlyn and

Brown both indicated that their abilities to perceive and remember the shooting were not

impaired by their drug usage, and the degree of consistency in their testimonies, namely

that Taylor, wearing a dark jacket with a fur trimmed hood, shot Bryson multiple times,

supports their assertions. Their testimony is further consistent with Uloho’s testimony

regarding the shooting. Finally, Taylor does not indicate the substance of the testimony that

an expert on the effect of crack cocaine on memory would have provided, or how the

testimony would have altered the outcome of the trial. See State v. Madrigal, 87 Ohio St.3d

378, 391, 2000-Ohio-448, 721 N.E.2d 52 (holding, in addressing a claim of ineffective

assistance of counsel for failure to obtain expert testimony, that determining what type of
                                                                                           22

testimony an expert witness “could have provided” to the court “would require proof outside

the record, such as affidavits demonstrating the probable testimony,” and that such “a claim

is not appropriately considered on a direct appeal.”) As in Madrigal, “resolving this issue in

[Taylor’s] favor would be purely speculative.” Id., 390. We conclude that Taylor has not

demonstrated ineffective assistance of counsel or prejudice based upon counsel’s failure to

present expert testimony regarding the effect of crack cocaine on memory.

       {¶ 46} Taylor next asserts that defense counsel was “ineffective when he failed to

point out major inconsistencies in the testimony of all the eye witnesses.” Specifically,

Taylor directs our attention to Brown’s testimony that he observed Taylor and Bryson

arguing inside Tamlyn’s home, and Tamlyn’s testimony that only Taylor, Bryson, “V” and

his girlfriend were inside the home when the argument began. Taylor further directs our

attention to Tamlyn’s testimony that she did not see anyone other than Taylor and Bryson

outside of her home in the course of the shooting, and Uloho’s testimony that he only

observed the shooter and the victim at the scene. According to Taylor, defense counsel

“should have used this information to either illustrate that Mr. Brown[’s] or Ms. Tamlyn[’s]

memory or recollection were faulty or Mr. Brown was not present at the time of the

shooting.”

       {¶ 47} As the State asserts, the record reflects that defense counsel noted the

inconsistency in the evidence regarding Brown’s presence at the shooting in the course of

his opening statement.    Defense counsel stated, “first of all, I want you to note that

[Tamlyn] is saying consistently that there were only two males at that time.” Defense

counsel later stated, “Now, I do not believe the State indicated this in their opening, but we
                                                                                          23

expect that the evidence may be that a witness - that there was another potential witness by

the name of Chris Brown. * * *.” Later, when mentioning Uloho’s testimony, defense

counsel stated, “What [Uloho] does say is when he looks out - - he only sees two people. * *

*   Doesn’t see any more than two people. So to the extent that anybody else testifies that

there was somebody else there, Uloho refutes that.” In the course of his cross-examination

of Tamlyn and Uloho, defense counsel adduced testimony from Tamlyn that she did not see

Brown at the scene of the shooting until after it was over, and he adduced testimony from

Uloho that he only observed the shooter and the victim. Finally, in closing argument,

defense counsel stated “that when [Tamlyn] does go down there to where the deceased was

laying, she testified that Chris, meaning Chris Brown, was not there, that she saw Chris

[later] and he had asked her what had happened, which is inconsistent with what Chris had

said later.” Given the forgoing, we cannot conclude that defense counsel’s performance was

deficient for failing to “point out” inconsistencies in the testimony of the witnesses at the

scene of the shooting such that Taylor was prejudiced.

       {¶ 48}    Taylor next asserts that defense counsel’s performance was deficient in that

he failed to investigate, by means of a subpoena directed to Microsoft Corporation, whether

Taylor played video games at the time of the shooting on line. Further, he asserts, in the

event that Taylor was not playing on line, defense counsel “should have requested an expert

witness in order to inspect the hard drive of the Xbox 360 in order to determine whether

there were any saved files or auto saves that would corroborate” Taylor’s alibi.

       {¶ 49} As the State asserts, there “is nothing in the record to show that Taylor had

an account with Xbox Live, or that he was connected to the internet when he claimed he was
                                                                                           24

playing his Xbox on December 7th.” We note that Taylor did not mention an Xbox 360 in

the course of his testimony, and that the only mention thereof was Walder’s. As the State

asserts, Taylor ostensibly could have been playing a video game without connecting to the

internet. Further, evidence that any Xbox was online or “saving files” at the time of the

shooting would only establish that someone was using the Xbox at that time, not that Taylor

was doing so. Finally, Tamlyn, Brown, Harris, and Wynn all place Taylor at or near the

scene of the shooting on the evening thereof. Also, Danielle Allen received a phone call

from Bryson at around 8:30 on December 7, 2007 that was identified as coming from

Taylor’s phone.     Ineffective assistance of counsel for failure to subpoena Microsoft

Corporation and any resulting prejudice therefrom is not demonstrated.

       {¶ 50} Since Taylor did not receive ineffective assistance of counsel, his first

assigned error is overruled.

       {¶ 51} Taylor’s second assigned error is as follows:

       “TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT ALLOW THE

       DEFENDANT TO TRY ON STATE EXHIBIT 46 WHICH RESULTED IN A

       DENIAL OF A FAIR TRIAL.”

       {¶ 52} We agree with Taylor that the trial court’s editorial comments that it

“determined that due to the age of the Defendant at the time of the shooting and the potential

that the size of the Defendant can change in two years. Mine has, for example, although not

in the same direction as we’re concerned about,” was improper. The trial court, however,

reconsidered its ruling prior to closing statements, and Taylor was given and refused the

opportunity to try on the jacket in the presence of the jury. Taylor accordingly waived his
                                                                                          25

argument that the trial court abused its discretion when it denied his request to try on the

coat. Finally, we have viewed the video of Taylor trying on Exhibit 46, and the fit of the

jacket is as Tamlyn described and as the State represents. Taylor’s second assigned error is

overruled.

       {¶ 53} Taylor’s third assigned error is as follows:

       “THE PROSECUTOR            AND THE COURT ENGAGED IN IMPROPER

CONDUCT.”

       “A. This Court should conclude that the comments regarding sympathy and/or tears

       were not proper.”

       “B. The Court engaged in improper conduct when it indirectly stated the Defendant

       lied.”

       {¶ 54} Taylor first directs our attention to the following exchange in the course of

the prosecutor’s closing argument:

                 MS. CLAYPOOL: * * * Bryson sold drugs. He engaged in illegal

       activity. Well, let’s not forget that he was also a brother, a son, a boyfriend,

       who was soon to be a father. And there were people in his life who shed

       tears over his death. They still shed tears today.

                MR. SKELTON: Objection.

                THE COURT: Approach.

                (At sidebar)

                MR. SKELTON: Judge, for purposes of the record, as the Court well

       knows, the issues of sympathy or tears is not proper in a criminal case. And
                                                                                          26

       ingesting into this record of tears and crying statements by this Prosecutor I

       believe is err. (Sic).

               THE COURT: * * * Well, we’ll ask the Prosecutor to refrain from it

       in the future.

       {¶ 55} Taylor asserts that “the Court should have granted a mistrial because it

would be hard to determine the effects the prosecutorial misstatements would have on the

jury.” Taylor asserts that he is entitled to a new trial.

       {¶ 56} As this Court has previously noted:

               The test for prosecutorial misconduct is whether the remarks were

       improper and, if so, whether they prejudicially affected the accused’s

       substantial rights. * * * The touchstone of the analysis “is the fairness of the

       trial, not the culpability of the prosecutor.” * * * To determine whether the

       prosecutor’s statements were prejudicial, we must review closing arguments

       in their entirety. * * * Prosecutors and defense counsel have a wide degree of

       latitude during closing arguments to address what the evidence has shown

       and what reasonable inferences may be drawn from that evidence. * * *.

       State v. Black, 181 Ohio App.3d 821, 2009-Ohio-1629, 911 N.E.2d 309 (2d

       Dist. 2009).

       {¶ 57} We agree with Taylor’s assertion that the prosecutor’s comments were

inappropriate. While the comments regarding the shedding of tears were not relevant to his

guilt, we cannot conclude that the comments prejudicially affected Taylor’s substantial

rights. As the State asserts, the comments were brief and isolated. Upon defense counsel’s
                                                                                           27

objection, the court advised the prosecutor to refrain from further invoking the jury’s

sympathy. Further, the record reflects that the court instructed the jury that the closing

arguments were not evidence, and that the jury “must not be influenced by any consideration

of sympathy.” “It is presumed that a jury follows the instructions given to it.” State v.

Winston, 2d Dist. Montgomery No. 16760, 2000 WL 1369946, *3 (Sept. 22, 2000).

Accordingly, we conclude that any error by the prosecutor is harmless.

       {¶ 58} Taylor finally asserts that after he testified that his size had not changed

since the shooting, the court improperly suggested to the jury that Taylor was untruthful

when it refused to allow him to try on the jacket in the presence of the jury, “due to the age

of the Defendant at the time of the shooting and the potential that the size of the Defendant

can change in two years.”

       {¶ 59} In the course of instructing the jury, the court advised as follows: “If during

the course of the trial, the Court said or did anything you consider an indication of the

Court’s view on the facts, you are instructed to disregard it,” and the jurors are presumed to

follow the instructions given by the court. Given the substantial evidence of Taylor’s guilt,

any error in the court’s remark is harmless.

       {¶ 60} There being no merit to the Taylor’s third assigned error, it is overruled.

The judgment of the trial court is affirmed.

                                         ..........

FAIN, P.J. and HALL, J., concur.



Copies mailed to:
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Kirsten A. Brandt
Enrique G. Rivera-Cerezo
Hon. Gregory F. Singer
