State v. Bill Adam Sanders

• Decision Date: 10 December 1996
• Docket Number: 96-LW-4745,95 CA 6
• Parties: STATE OF OHIO, Plaintiff-Appellee v. BILL ADAM SANDERS, Defendant-Appellant Case
• Court: United States Court of Appeals (Ohio)

STATE OF OHIO, Plaintiff-Appellee v. BILL ADAM SANDERS, Defendant-Appellant

No. 95 CA 6.

96-LW-4745 (4th)

Court of Appeals of Ohio, Fourth District Pickaway

December 10, 1996

COUNSEL FOR APPELLANT(fn1): Joseph D. Reed, Schottenstein, Treneff &amp Williams, 341 South Third, Columbus, Ohio 43215.

COUNSEL FOR APPELLEE: Alan F. Sedlak, Assistant Prosecuting Attorney P.O. Box 910, 124 W. Franklin Street, Circleville, Ohio 43113.

DECISION

ABELE P.J.

This is an appeal from a judgment of conviction and sentence entered by the Pickaway County Common Pleas Court. The jury found Bill Adam Sanders, defendant below and appellant herein, guilty of three counts of attempted murder.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA."

SECOND ASSIGNMENT OF ERROR:

"WHETHER DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL."

On August 25, 1994 at approximately 1:30 a.m. appellant drove his white Ford Mustang to the Red Baron truck wash. The Red Baron truck wash is located in Madison County, Ohio, near the intersection of State Route 70 and State Route 42. Appellant, the sole occupant of the vehicle, drove onto and around the parking lot in a reckless manner.

Jerry Widen, an employee at the truck wash, knew appellant because they had previously worked together. Widen testified that appellant asked him if he "wanted to go for the ride of my life." Widen declined the invitation. Appellant appeared to be intoxicated and he began yelling at the truck wash supervisor. A truck wash employee called the Madison County Sheriff's Office for assistance and Deputy C.R. Dillon responded. When Deputy Dillon responded to the call, however, appellant left the parking lot and the truck wash premises. Deputy Dillon followed appellant for a short distance and recorded appellant's license plate number.

At approximately 2:30 a.m. on that morning, Joseph Herdt left his place of employment in Columbus, Ohio. Herdt intended to drive to his parents home in Washington Court House, Ohio. At approximately 3:30 a.m., Herdt observed a white Ford Mustang. The driver of the Mustang tailgated Herdt, drove in a reckless fashion, and passed Herdt at a high rate of speed. Shortly thereafter, Herdt again came upon the Mustang which was now travelling at a much slower speed. After Herdt passed the Mustang, the Mustang again tailgated Herdt. At approximately 4:00 a.m., the Mustang again passed Herdt's vehicle.

During the passing maneuver, a bullet fired from the Mustang passed through the driver's side window of Herdt's vehicle. The bullet shattered the window glass, passed through the back of the passenger seat and exited through the passenger side of the vehicle.

Herdt immediately drove his vehicle into a nearby driveway and pounded on the door of the residence. Herdt then heard additional shots being fired. At approximately 4:14 a.m., Jim King, the owner of the residence, notified the Madison County Sheriff's office of the situation. Herdt provided the officers with a detailed description of the vehicle. We note that law enforcement authorities later recovered a bullet fragment from King's vehicle which was parked in front of his residence.

At approximately 4:20 a.m., Kim Spangler left home to drive to work at the Ohio Willow Wood Company. Spangler turned onto Route 259 and observed a white Ford Mustang. The Mustang tailgated Spangler's vehicle and swerved back and forth across the highway. The Mustang then passed Spangler at a high rate of speed. A few minutes later, Spangler again saw the Mustang. The Mustang again began to follow and tailgate Spangler.

When Spangler turned into the parking lot at her place of employment, the Mustang followed. The driver of the Mustang continued to drive in the parking lot in a reckless manner. Spangler's co-worker Vicky Jacobs had been waiting for Spangler. Jacobs sat in her vehicle which was parked in the company parking lot. Jacobs arrived at work at approximately 4:40 a.m.

Spangler stopped next to Jacob's vehicle and Spangler informed Jacobs about the situation. During the time Jacobs sat in her vehicle Jacobs observed a portion of the Mustang's license plate number and observed the person driving the Mustang.

Spangler and Jacobs decided that Spangler should open the door to the plant. After Spangler opened the door, Jacobs ran from her car to the door, entered the doorway and closed the metal door behind her. At this time the driver of the Mustang fired eight shots at the door. one bullet travelled through the door and hit Jacobs in her back. At approximately 4:48 a.m., Spangler called the Pickaway County Sheriff's Department. Jacobs was subsequently transported to Grant Hospital by helicopter. The Grant Hospital medical staff recovered the slug lodged in Jacobs' back.

Based upon the witnesses' description of the vehicle and the license plate number, the officers performed a license registration check. The license registration check provided the name and address of the suspect.

At 5:22 a.m., Fayette County Deputy Sheriff James Sears drove by appellant's residence. Deputy Sears knew appellant from previous encounters and knew appellant resided at a new address which was not listed on appellant's vehicle registration. At the residence Sears observed a white Ford Mustang sitting in the front yard next to the road. Sears assumed appellant was in the house. The law enforcement authorities at the scene decided to wait until daylight before attempting to apprehend appellant.

At approximately 7:00 a.m., the officers started to approach appellant's house. The officers quickly noticed, however, that appellant was sitting asleep in the driver's seat of the Mustang. The officers removed appellant from the vehicle and placed him under arrest. At the time of appellants arrest, the officers observed a .45 caliber semiautomatic pistol on the passenger seat and spent shell casings on the floor and on the seat.

Later that day, the state filed two complaints in the Circleville Municipal Court charging appellant with attempted murder. On September 2, 1994, the Pickaway County Grand Jury returned an indictment charging appellant with three counts of attempted murder. At trial, forensic scientist Ronald Dye testified that the bullet recovered from Jacobs' back and the other bullets and shell casings recovered from the crime scenes were all fired from the weapon found next to appellant during his arrest. The jury found appellant guilty as charged.

Appellant filed a timely notice of appeal. We will discuss additional facts as needed under each assignment of error.

I

In his first assignment of error, appellant asserts that he was denied effective assistance of counsel. In particular appellant argues that his trial counsel: (1) failed to file a motion to suppress evidence on the basis of an improper search; and (2) failed to raise intoxication as a defense to the specific intent element of the murder charge.

The Sixth Amendment's guarantee of the right of counsel is the right "to the effective assistance of competent counsel." McMann v. Richardson (1970), 397 U.S. 759, 771; State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483. In State v. Smith (1985), 17 Ohio St.3d 98, 100, 477 N.E.2d 1128, 1131, the court followed the two-prong analysis announced in Strickland v. Washington (1984), 466 U.S. 668, for resolving claims of ineffective assistance of counsel:

"In Strickland v. Washington (1984), ___ U.S. ___, 80 L.Ed.2d 674, the United States Supreme Court adopted a two-pronged analysis for determining whether counsels assistance was so defective as to require reversal of a conviction:

`First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' Strickland, at 693.

The court also noted that counsel is `strongly presumed' to have rendered adequate assistance, and `the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. at 694-695. * * *"

See, also, State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483; State v. Brown (1988), 38 Ohio St.3d 305, 319, 528 N.E.2d 523, 540. In determining whether counsel's performance was deficient pursuant to the first prong of the foregoing test, the court noted in Frazier:

"Additionally, the Strickland court strongly cautioned courts considering the issue of ineffective assistance of counsel that `judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has been proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 [102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783, 804] (1982), * * * Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'"

To prevail on this assignment of error, appellant must...