State v. Howard
| Decision Date | 30 December 2019 |
| Docket Number | Case No. 18CA3666 |
| Citation | 2019 Ohio 5419 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. TYARRIA D. HOWARD, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Katherine R. Ross-Kinzie, Assistant State Public Defender, Columbus, Ohio for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio for appellee.
{¶1} After a jury found Tyarria D. Howard guilty of felonious assault, the court sentenced her to a four-year prison term and ordered restitution to the victim. Howard contends that she was denied the right to effective assistance of counsel because her attorney did not properly present impeachment evidence showing bias of one of the witnesses, failed to submit proper jury instructions on self-defense, acted unprofessionally throughout the trial, and gave a confusing closing argument. Howard also contends that her right to a fair trial and due process were violated by cumulative errors that occurred during the trial and that the trial court erred when it barred extrinsic evidence of bias.
{¶2} However, Howard has failed to establish that her attorney's performance was deficient or that she was prejudiced by it. Howard's attorney argued that the extrinsic evidence of bias was admissible under Evid.R. 616(A). Howard failed to show that her attorney's failure to submit written jury instructions prior to trial was both deficient performance and prejudicial. Her counsel's unprofessional conduct consisted of three or four instances of interrupting the judge outside the presence of the jury, and Howard did not establish that this resulted in a "hostile feeling" that prejudiced her right to a fair trial. Howard failed to show that her attorney was deficient in her closing argument or that she suffered any prejudice. Because she failed to establish constitutionally ineffective assistance of counsel, her cumulative error contention also fails.
{¶3} However, we find that the trial court erred when it ruled that the impeachment evidence to show a state's witness's bias was inadmissible. Extrinsic evidence of bias, interest or any motive to misrepresent is admissible and does not require that the proponent lay a foundation. Nevertheless, the trial court's error in excluding this evidence was harmless beyond a reasonable doubt because some of the evidence of the witness's bias was before the jury through other testimony and, notwithstanding that witness's testimony, the remaining evidence established Howard's guilt beyond a reasonable doubt.
{¶4} We overrule Howard's assignments of error and affirm the trial court judgment.
{¶5} A Ross County Grand Jury indicted Howard on one count of felonious assault in violation of R.C. 2903.11, a second-degree felony. Howard pleaded not guilty. The matter proceeded to a jury trial, which produced the following evidence.
{¶6} Aaron Ray, who was five feet, five inches tall and 160 lbs, testified that on the evening of May 11 and early morning hours of May 12, 2017, he was out celebrating a cousin's upcoming wedding with a bachelor party. He left work at approximately 8 p.m. and joined his friends and relatives at a local pub at approximately 9 p.m. Ray testified that when he arrived, everyone was ready to leave to go to another pub so he did not have anything to eat or drink at the first pub. At the second pub, Ray testified that he had one shot and a beer, the group ate three large pizzas, and stayed there for approximately an hour and a half. Following that, they went to Crosskeys Tavern to throw darts. Ray had another shot, a beer, and a non-alcoholic energy drink.
{¶7} Ray testified that at approximately 1:30 a.m. the group decided to leave but there was a commotion at the front of the bar blocking the exit. They were unable to leave out the back door because it was locked. One of the members of the party climbed over chairs and exited out the front door. Ray testified that he was unsure where some of the other people in the party were, but he was able to squeeze through the commotion and get out the front door. Ray did not engage in a verbal or physical argument with anyone as he exited the bar.
{¶8} Outside, the commotion grew louder. Ray observed a female bouncer and the bartender, Nathan Triplett, trying to restrain and control a large man, later identified as Butch Howard, who was six foot, four inches tall. Ray saw that the man was very hostile and aggressive. Ray continued to stand there watching, waiting for others in his party to exit the bar. The bartender told Ray to get out of there, so Ray turned right and went into the nearby parking lot walking with his hands raised in the air. As he was walking approximately eight to ten steps through the parking lot, he heard a woman say, "Take a look at this" and then he felt a glass smash into his face. The next thing Ray remembered was an emergency medical squad and "a pile of blood" on his clothes.
{¶9} Ray testified that he did not get into any sort of verbal or physical altercation with anyone while he was at Crosskeys Tavern or in the nearby parking lot. He was just standing at the corner waiting for others in his party to exit the bar and watching the bartender and female bouncer control Butch Howard. Ray testified that he was not blocking a truck, he was not moved by anyone or restrained in any way, and though he knows Chris Frazier - Ray's brother bought some drinks for Frazier that night, Frazier did not come up to talk to him to get him to move away from any truck. When he was asked at the scene what had happened, he admitted he told officers that he did not know what happened or why it happened, He denied making any statement to Butch Howard, nor did he threaten to "beat the ass" of Butch Howard.
{¶10} Ray was transported to a local hospital, then transported by helicopter to Grant Medical Center in Columbus. Ray suffered a concussion, a ruptured globe of his right eye, skin lacerations, and the temporary loss of all vision in his right eye. Ray wears a patch over his right eye because he permanently lost his iris and his eye cannot regulate light. Ray underwent retinal reattachment surgery and was required to stay immobile on his left side for twelve days. As a result of the concussion, Ray had to undergo speech therapy. Ray has a permanent scar on his eye and on his face.
{¶11} Ray testified that after he was released from the hospital, he went to the Chillicothe Police Station to give a DNA sample.
{¶12} Nathan Ray, Aaron Ray's brother, is approximately five feet, seven inches tall, and testified that he was part of the bachelor party celebration that evening, which included his brother Aaron, himself, and three others. Nathan testified that he had consumed alcohol throughout the evening but was not intoxicated. At approximately 1:30 a.m., he and the others in his group decided it was time to leave Crosskeys Tavern because a loud argument was going on at the front of the bar. As he approached the front to leave, he saw bartender Triplett talking with a large man. Nathan testified that he knew Triplett because the two had gone to elementary and high school together and had been on the high school wrestling team together.
{¶13} Nathan Ray had no easy way to exit the bar because the large man and bartender Triplett were right in the middle of the exit. Nathan asked Triplett if he was okay and at that point the large man began yelling at Nathan Ray. Nathan testified that he did not respond to the yelling, "As soon as he started yelling at me Nate Triplett [the bartender] pushed him back and then the guy was still yelling at me and I went to the front door because there was an opening" and exited the bar. Nathan testified that he and two others exited the bar, and his brother Aaron and another man were still inside but eventually came out as well. Nathan testified that he had not said or done anything to instigate a fight or threaten anyone.
{¶14} When Nathan Ray exited the bar, he turned toward the nearby parking lot and waited, about thirty feet from the commotion, for his brother Aaron. Nathan saw Aaron walking towards the parking lot with his arms in the air. Nathan and the other two men with him started to leave the area and exit through an alley behind Crosskeys Tavern, but then noticed that Aaron was not catching up with them. Nathan continued through the alley and approached Crosskeys from the other side to try to locate Aaron and saw an emergency medical services vehicle and Aaron covered in blood. Aaron was complaining about how he could not see. Police officers at the scene questioned Nathan Ray. Nathan testified that he made no verbal or physical threats to anyone, nor did he physically block anyone's truck.
{¶15} Nathan Ray testified that he also saw a woman running when he saw his brother walking with his hands up, but that he did not tell the police about the woman, "I saw a woman running, but I didn't piece anything together because the large man was the aggressor."
{¶16} Nathan Triplett, the bartender of Crosskeys Tavern the night of the incident, testified that Butch Howard and his wife Tyarria were sitting at the bar in Crosskeys Tavern that night drinking alcohol with a group of friends. Butch Howard was drinking double Jack and Cokes and Tyarria Howard was drinking vodka and cranberry. Aaron Ray and a group were celebrating a bachelor party in the back area. At some point during the evening, Butch and Tyarria Howard had a disagreement. Triplett heard a loud "slap" noise and, based on comments from other patrons, came to understand that a physical altercation had broken out between Butch and Tyarria Howard so he told Butch Howard to leave....
To continue reading
Request your trial