State v. Clinkscale

• Decision Date: 08 April 2008
• Docket Number: No. 06AP-1109.,06AP-1109.
• Citation: 894 N.E.2d 700,177 Ohio App.3d 294,2008 Ohio 1677
• Parties: The STATE of Ohio, Appellee, v. CLINKSCALE, Appellant.
• Court: Ohio Court of Appeals

894 N.E.2d 700

177 Ohio App.3d 294

2008-Ohio-1677

The STATE of Ohio, Appellee, v. CLINKSCALE, Appellant.

No. 06AP-1109.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided April 8, 2008.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, for appellee.

William S. Lazarow, Columbus, for appellant.

KLATT, Judge.

{¶ 1} Defendant-appellant, David B. Clinkscale, appeals from a judgment of conviction entered by the Franklin County Court of Common Pleas. For the following reasons, we affirm that judgment.

{¶ 2} Early in the morning of September 8, 1997, Kenneth Coleman and his wife, Todne Williams, were shot multiple times. Coleman died from his injuries, but Williams survived the attack. Williams later identified appellant as the person who shot her and her husband.

{¶ 3} Appellant was indicted on three counts of aggravated murder, one count of attempted aggravated murder, one count of aggravated burglary, two counts of aggravated robbery, and one count of kidnapping. Each count also contained a firearm specification. In 1998, a jury convicted appellant of all counts. This court affirmed those convictions. State v Clinkscale (Dec. 23, 1999), Franklin App. No. 98AP-1586, 2000 WL 775607. The Supreme Court of Ohio denied review. State v. Clinkscale (2000), 88 Ohio St.3d 1482, 727 N.E.2d 132.

{¶ 4} Subsequently, the United States Sixth Circuit Court of Appeals overturned the convictions and ordered the state to retry appellant because his trial counsel provided ineffective assistance when he failed to timely file a notice of alibi, which prevented the admission of evidence tending to support appellant's alibi defense. Clinkscale v. Carter (C.A.6, 2004), 375 F.3d 430, 443-445.

{¶ 5} At his retrial, Williams again testified that appellant was the man who shot her and her husband. Appellant's father testified that appellant was in Youngstown, Ohio on the morning of the attack. The state presented rebuttal testimony from Rhonda Parker, who testified that appellant asked her to lie about his whereabouts on the morning of the attack. The jury rejected appellant's alibi defense and convicted him of all counts. The trial court sentenced him accordingly.

{¶ 6} Appellant appeals and assigns the following errors:

Assignment of Error No. I:

Prosecutorial misconduct deprived David Clinkscale of his rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the U.S. Federal Constitution and Article I, § 2, 10, and 16 of the Ohio Constitution.

Assignment of Error No. II:

The trial court erred in permitting the state to introduce improper and prejudicial testimony, and in revoking Clinkscale's bond in the middle of trial when he had appeared at all hearings and acted in accordance with the advice given by his attorneys. As a result, the trial court violated David Clinkscale's rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the U.S. Federal Constitution and Article I, § 2, 10, and 16 of the Ohio Constitution.

Assignment of Error No III:

The trial court erred in issuing an ex parte coercive instruction to the deliberating jury in response to a question implying that they might be hung, thereby violating David Clinkscale's rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the U.S. Federal Constitution and Article I, § 2, 10, and 16 of the Ohio Constitution.

Assignment of Error No. IV:

The trial court erred in its ex parte meeting and excusal of a deliberating juror thereby violating David Clinkscale's rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the U.S. Federal Constitution and Article I, § 2, 10, and 16 of the Ohio Constitution.

Assignment of Error No V:

The trial court erred in issuing a coercive instruction to the deliberating jury in response to a question implying that there was a single hold out juror, thereby violating David Clinkscale's rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the U.S. Federal Constitution and Article I, § 2, 10, and 16 of the Ohio Constitution.

Assignment of Error No. VI:

The representation provided to David Clinkscale fell far below the prevailing norms for counsel in a criminal case, was unreasonable, and affected the outcome in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments as well as Art. I, § 2, 9, 10, and 16 of the Ohio Constitution.

{¶ 7} After oral argument, this court requested that counsel for both parties brief issues raised during oral argument concerning Crim.R. 24. Accordingly, appellant supplemented his fourth assignment of error with the following:

The trial court erred when it * * * directed an alternate juror to be sworn in to continue deliberations.

Appellant also claimed that trial counsel's failure to object to the trial court's dismissal of the deliberating juror or to request a mistrial constituted ineffective assistance of counsel as alleged in his sixth assignment of error.

{¶ 8} We address appellant's second assignment of error first. Appellant contends that the trial court erred when it (1) admitted Peter Davis's testimony and (2) revoked appellant's bond in the middle of trial. We disagree.

{¶ 9} The State presented testimony from Peter Davis, who traveled with appellant and Coleman to a dog fight in Kentucky the day before Coleman was murdered. Over appellant's objection, Davis testified that he had a bad feeling about appellant and on the drive home told Coleman to "be careful and watch himself" with appellant. Appellant argues that Davis's testimony was improperly admitted because the probative value of the testimony was substantially outweighed by the danger of unfairly prejudicing or misleading the jury. See Evid.R. 403(A) ("Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice * * * or of misleading the jury").

{¶ 10} Appellant's counsel did not object to Davis's testimony on these grounds at trial.¹ Thus, appellant has waived this argument absent plain error. State v. Johnson, Franklin App. No. 05AP-12, 2006-Ohio-209, 2006 WL 158628, at ¶ 17; State v. Tolliver, Franklin App. No. 02AP-811, 2004-Ohio-1603, 2004 WL 625683, at ¶ 98. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Crim.R. 52(B). For there to be plain error, a reviewing court must find (1) an error, (2) that the error was an obvious defect in the trial proceedings, and (3) that the error affected substantial rights, that is, the trial court's error must have affected the outcome of the trial. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240. Stated differently, the defendant must show that "but for the error, the outcome of the trial clearly would have been otherwise." State v. Long (1978), 53 Ohio St.2d 91, 97, 7 O.O.3d 178, 372 N.E.2d 804.

{¶ 11} Even if error is plain, an appellate court is not required to correct it. State v. Cunningham, Franklin App. No. 01AP-1375, 2002-Ohio-4312, 2002 WL 1937392, at ¶ 26. The Supreme Court of Ohio has noted this discretionary aspect of the rule by stating that notice of plain error should be taken "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.

{¶ 12} Exclusion of evidence on the basis of unfair prejudice involves more than a balance of mere prejudice, and emphasis must be placed on the word "unfair." Oberlin v. Akron Gen. Med. Ctr. (2001), 91 Ohio St.3d 169, 172, 743 N.E.2d 890, citing Ede v. Atrium S. OB-GYN, Inc. (1994), 71 Ohio St.3d 124, 642 N.E.2d 365. Unfair prejudice is that quality of evidence that might result in an improper basis for a jury decision. Id. Evidence that arouses emotions, evokes a sense of horror, or appeals to an instinct to punish may be unfairly prejudicial. State v. Cooper (2002), 147 Ohio App.3d 116, 768 N.E.2d 1223, at ¶ 57; Oberlin (unfairly prejudicial evidence appeals to emotions rather than intellect).

{¶ 13} The trial court did not plainly err when it admitted Davis's testimony. The testimony was not unfairly prejudicial, as it did not appeal to the jury's emotions or instinct to punish but rather described Davis's observations and concerns about appellant. Nor can we say that but for the admission of the testimony, the outcome would clearly have been different. Appellant's conviction resulted primarily from Williams's identification of appellant as the shooter. Davis's testimony did not affect the credibility of that identification.

{¶ 14} Moreover, the admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus. Thus, an appellate court will reverse the trial court's decision to admit testimony only if the court abused its discretion. State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696, at ¶ 80; State v. Cunningham, Franklin App. No. 06AP-145, 2006-Ohio-6373, 2006 WL 3491743, at ¶ 33. "Abuse of discretion" connotes more than an error of law; it implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Widder (2001), 146 Ohio App.3d 445, 766 N.E.2d 1018, at ¶ 6. The trial court did not abuse its discretion by admitting Davis's testimony under these circumstances.

{¶ 15} Next, appellant contends that the trial court erred when it revoked his bond during trial. We disagree.

{¶ 16} After his convictions were overturned by the federal court, appellant was released from custody on bond and placed under house arrest. He was monitored through the use of an ankle bracelet. During this trial, appellant was housed at a local hotel. On Tuesday, September 5, 2006, after the long Labor Day weekend, the prosecutor asked the trial...