[Cite as State v. Saunders, 2016-Ohio-292.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102731




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  JEFFREY SAUNDERS
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-581979-A

        BEFORE: Laster Mays, J., Kilbane, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                   January 28, 2016
                              -i-



ATTORNEY FOR APPELLANT

Thomas A. Rein
700 W. St. Clair, Suite 212
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Edward R. Fadel
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Jeffrey Saunders (“Saunders”) was found guilty of

obstructing official business with the furthermore finding of a risk of physical harm, a

fifth-degree felony, in violation of R.C. 2921.31(A).    The trial court imposed a sentence

of two-years probation.

       {¶2} After a review of the record, we reverse Saunders’s conviction and remand to

the trial court for a new trial.   Saunders assigns five errors for our review, however our

decision on the first assignment of error is dispositive of the case. Still we review the

fifth assignment of error, which is a separate issue and overrule appellant’s argument.

       I. Whether the appellant’s rights to due process and equal protection
       under the Ohio and the United States Constitutions were violated when the
       state excluded an African-American juror without providing a satisfactory
       race-neutral reason and without the trial court correctly applying the law.

       II. Whether the trial court erred in denying the appellant’s motions for
       acquittal when the state failed to present sufficient evidence to sustain a
       conviction.

       III. Whether the appellant’s conviction is against the manifest weight of
       the evidence.

       IV. Whether the trial court erred in violation of the Sixth and Fourteenth
       Amendments to the United States Constitution which provides rights to
       confrontation and cross-examination when it did not permit appellant to
       inquire about the credibility of the officer and the injuries caused by the
       officer.

       V.    Whether appellant was denied effective assistance of counsel as
       guaranteed by Section 10, Article 1, of the Ohio Constitution and the Sixth
       and Fourteenth Amendments.
I.     Facts and Procedural Posture

       {¶3} The victim, Harun Abdul-Ali (“Ali”), an officer for the Cuyahoga

Metropolitan Housing Authority Police Department, testified that he responded to a noise

complaint at an apartment building. The complainant said that loud music was coming

from an adjacent apartment. When Ali arrived at the apartment, he heard music, but it

was not excessively loud. Ali knocked on the door and Saunders opened it to let him

inside of the apartment. Ali asked to speak to the leaseholder because he knew that the

leaseholder was a female.       There was a woman inside who stated that she was

house-sitting for her sister while she was out of town.         Ali then asked to see her

identification as well as Saunders.        The woman stated that she did not have

identification, but provided her information verbally to Ali, which checked out to be

accurate.

       {¶4} Saunders, however, refused to show his ID to Ali and an altercation ensued.

When Saunders left the apartment and walked into the hallway, Ali asked him to stop, but

Saunders kept walking. Saunders had his hands in his pocket, and Ali grabbed Saunders

arms to take his hands out of the pockets. According to Ali, Saunders struggled and

pushed him into the wall. Ali used his taser to try and stop Saunders from continuing

down the hallway. Ali also radioed for backup. Once backup arrived, the officers tased

Saunders again, threw him to the ground, and handcuffed him. Saunders was charged

with one count of assault on a police officer, burglary, and obstructing official business

that created a risk of physical harm to the officer. Saunders requested a jury trial.
       {¶5} During the voir dire process, both the state and defense counsel questioned

the jurors. The state asked that juror 2, an African-American, be dismissed. Saunders’s

trial counsel made a Batson challenge, but the court dismissed his challenge and did not

conduct a hearing. The court explained to trial counsel that “this is his only challenge so

far.   There are a number of other minorities, so there has to be a pattern.” (Tr. 142.)

The trial continued, the burglary count was dismissed, and the jury found Saunders not

guilty of assault on a police officer and guilty of obstructing official business. Saunders

was sentenced to two-years probation. As a result, Saunders files this timely appeal.

II.    Juror Dismissal

       {¶6} Saunders, who is African-American, contends that his rights to due process

and equal protection under the Ohio and the United States Constitutions were violated

when the state excluded an African-American juror without providing a satisfactory

race-neutral reason and without the trial court correctly applying the law. We agree with

his contention.

       Whenever a party opposes a peremptory challenge by claiming racial
       discrimination, the duty of the trial court is to decide whether granting the
       strike will contaminate jury selection through unconstitutional means. The
       inquiry, therefore, is whether the trial court’s analysis of the contested
       peremptory strike was sufficient to preserve a constitutionally permissible
       jury-selection process. A trial court’s finding of no discriminatory intent
       will not be reversed on appeal absent a determination that it was clearly
       erroneous. The trial court, in supervising voir dire, is best equipped to
       resolve discrimination claims in jury selection, because those issues turn
       largely on evaluations of credibility.

Martin v. Nguyen, 8th Dist. Cuyahoga No. 84771, 2005-Ohio-1011, ¶ 9. Once the

defense counsel challenged a juror’s dismissal based on the juror’s race, it was incumbent
on the court to conduct a Batson hearing to decide if there was merit to defense counsel’s

challenge.

        In order to state a prima facie case of purposeful discrimination under
        Batson v. Kentucky[, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)],
        an accused must demonstrate: (1) that members of a recognized racial group
        were peremptorily challenged; and (2) that the facts and circumstances raise
        an inference that the prosecutor used the peremptory challenge to exclude
        the jurors on account of their race.

Id. at ¶ 6.

        {¶7} The trial judge in this case did not conduct a hearing and dismissed defense

counsel’s objections because this was the state’s first request to dismiss a juror.

However, that was not for the court to argue, but the state. The judge must give defense

counsel an opportunity to show that there could be purposeful discrimination in the state’s

dismissal of a juror. Once a prima facie case has been made, the state must then make a

neutral explanation. Id. at ¶ 7.

        Once a race-neutral explanation for the peremptory challenge has been
        offered, and the trial court has ruled on the ultimate question of intentional
        discrimination, the preliminary issue of whether a prima facie showing has
        been made becomes moot.

 Id. at ¶ 8.

        {¶8} It is possible that the state’s challenge of the juror had nothing to do with her

race; however, once a Batson challenge has been made, it is up to the court to conduct a

hearing to determine if the dismissal was race-neutral.

        The Ohio Supreme Court held in Hicks v. Westinghouse[, 78 Ohio St.3d 95,
        676 N.E.2d 872 (Apr. 2, 1997)], “trial judges must exercise considerable
        care in reviewing a claim for racial discrimination in jury selection. A
        judge should make clear, on the record, that he or she understands and has
       applied the precise Batson test when racial discrimination has been alleged
       in opposition to a peremptory challenge.”

Id. at ¶ 13.   In this case, the record was not clear as to whether the judge applied the

Batson test.   The record just reflects that the court stated, “there has to be a pattern.”

That was not an adequate hearing because the defense counsel was not given an

opportunity to make a prima facie case of purposeful discrimination. Once defense

counsel makes a Batson challenge, they must be allowed to demonstrate that “(1) that

members of a recognized racial group were peremptorily challenged; and (2) that the facts

and circumstances raise an inference that the prosecutor used the peremptory challenge to

exclude the jurors on account of their race.” Id. at ¶ 6.

       {¶9} The United States Supreme Court agreed with this assertion in Snyder v.

Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), where the court stated

“Batson provides a three-step process for a trial court to use in adjudicating a claim that a

peremptory challenge was based on race: First, a defendant must make a prima facie

showing that a peremptory challenge has been exercised on the basis of race * * *.”

Snyder reiterates our assertion that the defense counsel must be allowed to make a prima

facie case to show that the challenge was based on race. Once defense counsel has an

opportunity to argue their reasoning, then the trial court can rule on whether a prima facie

case has been made. In this case, the defense counsel was not given the chance to do so

before the trial court rejected the objection.

       {¶10} The state argues that our decision in State v. Moseley, 8th Dist. Cuyahoga

No. 92110, 2010-Ohio-3498, applies here. In Moselely, we held that “in reviewing a trial
court’s ruling on a Batson challenge, we will not disturb the court’s decision unless we

find it to be clearly erroneous.” Id. at ¶ 35. “This deferential standard arises from the

fact that step three of the Batson inquiry turns largely on the evaluation of credibility by

the trial court.” Id. However we disagree with the state that Moseley applies here

because this standard of review applies when there is a hearing on the Batson challenge at

the trial level, and the appellant disagrees with the ruling. We agree that this deferential

standard applies to the ruling, only if there is a hearing and ruling.

       {¶11} In Moseley, the trial courts applied the three-part test from Batson. “Trial

courts are to apply a three-step procedure for evaluating claims of racial discrimination in

peremptory challenges.” State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873

N.E.2d 1263, ¶ 64.

       First, the opponent of the peremptory strike must make a prima facie case of
       racial discrimination. Id. “To make a prima facie case of such purposeful
       discrimination, an accused must demonstrate: (a) that members of a
       recognized racial group were peremptorily challenged; and (b) that the facts
       and any other relevant circumstances raise an inference that the prosecutor
       used the peremptory challenges to exclude jurors on account of their race.”
       (Internal citations and quotations omitted.)

State v. Hill, 73 Ohio St.3d 433, 444-445, 653 N.E.2d 271 (1995).

       {¶12} Second, “if the trial court finds that the opponent has set forth a prima facie

case, then the proponent of the strike must come forward with a racially neutral

explanation for the strike.” State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804

N.E.2d 433, ¶ 106. “The explanation need not rise to the level justifying exercise of a

challenge for cause.” Id.
       {¶13} Third, “if the proponent puts forward a racially neutral explanation, the trial

court must decide, on the basis of all the circumstances, whether the opponent has proved

purposeful racial discrimination.”        State v. Herring, 94 Ohio St.3d 246, 256,

2002-Ohio-796, 762 N.E.2d 940. This final step involves evaluating “the persuasiveness

of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion

regarding racial motivation rests with, and never shifts from, the opponent of the strike.”

Collins v. Rice, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), quoting

Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam).

 “The trial court, however, may not simply accept a proffered race-neutral reason at face

value; it must examine the prosecutor’s challenges in context to ensure that the reason is

not merely pretextual.” Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263

at ¶ 65. The trial court in this case did not use this three-part test to conclude whether

defense counsel had a plausible reason or argument for objecting to the dismissal. Nor

did the state have an opportunity to state its reasons for the objection. Had the trial court

conducted a hearing and made a ruling, our decision would have been substantially

deferential to the ruling, in light of Moseley, absent abuse of discretion.

       {¶14} We conclude that the trial court has committed reversible error by failing to

conduct a Batson hearing and allowing the state to explain its non-racial reasons for

removing an African-American juror. We reverse Saunders’s conviction and remand to

the trial court for a new trial.

III.   Ineffective Assistance of Counsel
      {¶15} In his fifth assignment of error, Saunders contends that he was denied

effective assistance of counsel as guaranteed by Section 10, Article I, of the Ohio

Constitution and the Sixth and Fourteenth Amendments. In order to substantiate a claim

of ineffective assistance of counsel, the appellant must show that:        (1) counsel’s

performance was deficient, and (2) the deficient performance prejudiced the defendant so

as to deprive him of a fair trial. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961,

911 N.E.2d 242, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that counsel’s representation fell below an

objective standard of reasonableness. Strickland at 688. Judicial scrutiny of defense

counsel’s performance must be highly deferential.      Id. at 689.   In Ohio, there is a

presumption that a properly licensed attorney is competent. State v. Calhoun, 86 Ohio

St.3d 279, 714 N.E.2d 905 (1999).

      {¶16} Even assuming that counsel’s performance was ineffective, the defendant

must still show that the error had an effect on the judgement.    State v. Bell, 8th Dist.

Cuyahoga No. 102141, 2015-Ohio-4178, citing State v. Bradley, 142 Ohio St.3d 136.142,

538 N.E.2d 373 (1989).    Reversal is warranted only where the defendant demonstrates

that there is a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. Id.

      {¶17} To prevail on this claim, Saunders must show that:         (1) his counsel’s

performance was deficient, i.e. fell below an objective standard of reasonable
representation, and (2) the deficient performance prejudiced the defense so as to deprive

Saunders of a fair trial.   To establish prejudice, Saunders must show that there is a

reasonable probability that, were it not for counsel’s errors, the result of the proceeding

would have been different.      State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and

102302, 2015-Ohio-4074, ¶ 18. Failure to establish either element is fatal to the claim.

Therefore, if one element is dispositive, a court need not analyze both. Id.         Saunders

argues that because his trial counsel did not argue enough for Batson hearing, he was

denied effective assistance of counsel.   We disagree with his assertion.

       {¶18} Saunders’s trial counsel did make an objection to the state’s challenge of an

African-American juror.     His counsel stated “I object, I’m make I go a Batson challenge,

Your Honor.” (Tr. 141.) She was interrupted by the judge, and her argument was

dismissed. When the trial judge dismissed her argument, defense counsel stated, “Well,

I’m going to revisit that objection then, Your Honor.” (Tr. 143.) If trial counsel had not

made the Batson challenge, maybe Saunders would have a plausible argument, but she

did. The judge, who is in control of the proceedings, dismissed her challenge. This

action does not rise to the level of ineffective assistance of counsel.             Therefore,

Saunders’s fifth assignment of error is overruled.

       {¶19} The judgement of the trial court is reversed and remanded for further

proceedings consistent with this opinion.

       It is ordered that the appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellant Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
