State v. Johnson, Case No. 2011-CA-237
| Citation | 2012 Ohio 3227 |
| Decision Date | 16 July 2012 |
| Docket Number | Case No. 2011-CA-237 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. DAVID MONTREL JOHNSON Defendant-Appellant |
| Court | United States Court of Appeals (Ohio) |
JUDGES:
Hon. W. Scott Gwin, J.
Stark County Prosecutor
For Defendant-Appellant
JACOB T. WILL
{¶1} Appellant David Montrel Johnson ("Johnson") appeals from the October 5, 2011 judgment entry of the Stark County Court of Common Pleas convicting him of one count of felonious assault with a repeat violent offender specification ["RVO"] and sentencing him to an aggregate prison term of 14 years. Appellee is the State of Ohio.
{¶2} On May 20, 2011 Ralph Davison, a 54-year-old welder, went to the Hall of Fame Fuel Mart at 704 Sherrick Road S.E., Canton, to buy some liquor to celebrate a new job. Davison had a white handled knife concealed on his person when he entered the store.
{¶3} Inside the store were Lamars Wynn1 and Curt Anderson2 . Johnson remained outside chatting with some girls. All three had been drinking and smoking marijuana.
{¶4} Cameras inside the store captured images of Wynn and Anderson in Davison's face, with Davison bent backward over the counter. Davison pulled a knife, and at some point Anderson was stabbed. Wynn and Anderson punched Davison repeatedly, eventually taking him to the floor. The three were struggling on the floor as Johnson, a friend of Wynn and Anderson entered the store to see what was going on. Johnson entered the melee repeatedly striking Davison as Davison lie on the floor.
{¶5} Wynn, Johnson, and Anderson hit, kicked, and stomped Davison with striking brutality even as customers and employees of the store went about theirbusiness. At one point appellant, Johnson, and Anderson left the store, only to return and continue the assault on Davison.
{¶6} A clerk inside the store called the police. Another clerk yelled at the group that the police were on their way. Wynn, Anderson, and Johnson drove off before police arrived.
{¶7} Upon arrival, police found Davison unconscious on the floor in a pool of blood, with his sport coat pulled over his head. Police also discovered a knife lying on the sidewalk outside the store. They later learned this was Davison's knife, which Johnson picked up in the aftermath of the attack, wiped clean, and threw down outside the store.
{¶8} Davison experienced severe head trauma and a stab wound 3 to 5 inches deep over his right hip; he was hospitalized for a month. His injuries required extensive rehabilitation, and he still walked with a cane at the time of trial. His balance and memory are still affected. Davison has no memory of the assault.
{¶9} Investigators reviewed the video surveillance in the store the night of the assault. Two store clerks recognized the three assailants as regular customers in the store, although only one was identified by name, "Country." Canton police knew "Country" as Wynn. Wynn, Anderson, and Johnson were identified in photo line-ups within days of the assault.
{¶10} All three assailants were charged by indictment with felonious assault pursuant to R.C. 2903.11(A)(1) and/or (A)(2), a felony of the second degree. All three indictments included repeat violent offender (RVO) specifications pursuant to R.C. 2941.149.
{¶11} Prior to trial, Johnson moved to bifurcate the felonious assault count from the RVO specification.
{¶12} Johnson was found guilty as charged, as were Wynn and Anderson. Following the verdict, the trial court held a hearing on the RVO specifications. The trial court found the specifications applied to all three co-defendants. The trial court sentenced Johnson to eight years in prison on the charge of felonious assault and an additional six years on the RVO specification for a total consecutive term of fourteen years.
{¶13} Johnson raises four assignments of error,
{¶14} "I. THE APPELLANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO DISCHARGE THE ORIGINAL JURY POOL AFTER A JUROR DELIBERATELY DISOBEYED AN ADMONITION BY THE COURT.
{¶15} "II. THE APPELLANT'S REPEAT VIOLENT OFFENDER SPECIFICATION WAS IMPROPERLY CHARGED, AS APPELLANT WAS NEVER GIVEN NOTICE OF THE POTENTIAL FOR A SPECIFICATION BASED ON SUBSEQUENT VIOLENT CONDUCT.
{¶16} "III. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶17}
{¶18} During the voir dire phase of Johnson's trial, a break was taken prior to the impaneling of the jury. Before the break, the trial court gave the appropriate admonitions to the jury, and specifically stated, "Do not form or express any opinion on the case," as well as "Do not discuss the case among yourselves or with anyone else." However, after a brief recess, the trial court had a dialogue with Juror 116. During this dialogue, it came to the court's attention that Juror 116 yelled out the word "Guilty!" in the jury assembly room. The remaining potential jurors were immediately questioned about whether the comment of Juror 116 influenced any of their opinions. No potential juror responded that it had and the voir dire of the jury proceeded with questioning by Wynn's counsel and Johnson's counsel. No mistrial was requested.
{¶19} In his first assignment of error, Johnson argues that his rights to a fair and impartial trial were impaired. Furthermore, he contends, even though the panel stated that they would not be biased by the decision, he claims that his guilty verdict was the result of the improper statement made by Juror 116. Based on the foregoing, Johnson argues, the trial court should have declared a mistrial, and brought in a new prospective jury pool.
{¶20} The granting of a mistrial rests within the sound discretion of the trial court as it is in the best position to determine whether the situation at hand warrants such action. State v. Glover, 35 Ohio St.3d 18, 517 N.E.2d 900(1988); State v. Jones (1996) 115 Ohio App.3d 204, 207, 684 N.E.2d 1304, 1306(1996).
{¶21} "A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened * * *." State v. Reynolds, 49 Ohio App.3d 27, 33, 550N.E.2d 490, 497(1988). The granting of a mistrial is necessary only when a fair trial is no longer possible. State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1, 9(1991); State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749, 771(2001). When reviewed by the appellate court, we should examine the climate and conduct of the entire trial, and reverse the trial court's decision as to whether to grant a mistrial only for a gross abuse of discretion. State v. Draughn, 76 Ohio App.3d 664, 671, 602 N.E.2d 790, 793-794(1992), citing State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768(1984), certiorari denied, 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728(1985); State v. Gardner, 127 Ohio App.3d 538, 540-541, 713 N.E.2d 473, 475(1998).
{¶22} Johnson did not object or move for a mistrial. Accordingly, any error in this case is subjected to a plain error review. Crim.R. 52(B) provides that, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."
{¶23} "[A]n appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Marcus, 560 U.S. _, 130 S.Ct. 2159, 2010 WL 2025203 (May 24, 2010). (Internal quotation marks and citations omitted). Accord, State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶28.
{¶24} The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that a defendant accused of a state criminal violation shall be tried before a panel of fair and impartial jurors. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491(1968), and State v. King, 10 Ohio App.3d 161, 460 N.E.2d 1383(1983). See, also, Ohio Constitution, Article I, Section 10.
{¶25} The conclusions reached in a case should be generated only by evidence and argument in open court, and not by any outside influence. Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879(1907). The jury is obligated to decide a case solely on the evidence, and any communication or contact outside the courtroom or jury room about the matter at trial between a juror and another person, and any independent inquiry or experiment by a juror concerning the evidence or the law, constitutes juror misconduct. State v. Taylor, 73 Ohio App.3d 827, 831, 598 N.E.2d 818(1991). Further, when a juror refuses to consider the evidence or forms an opinion as to guilt or innocence before all the evidence is presented, such activity constitutes misconduct. Id. See also, Carr v. State, 22 Ohio App. 78, 153 N.E. 233(1926); Busick v. State, 19 Ohio 198, 1850 WL 78(1850); and State v. Carter, 11 Ohio Dec.Rep. 123, 1890 WL 419(C.P. 1890); State v. McMillen, Stark App. No. 2008-CA-0122, 2009-Ohio-210, ¶ 122. However, the United States Supreme Court has recognized:
[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable.... [I]t is virtually...
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