State v. Lamb, 17CA3796

• Decision Date: 10 April 2018
• Docket Number: No. 17CA3796,17CA3796
• Citation: 110 N.E.3d 564,2018 Ohio 1405
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Toby L. LAMB, II, Defendant–Appellant.
• Court: Ohio Court of Appeals

110 N.E.3d 564

2018 Ohio 1405

STATE of Ohio, Plaintiff–Appellee,

v.Toby L. LAMB, II, Defendant–Appellant.

No. 17CA3796

Court of Appeals of Ohio, Fourth District, Scioto County.

Released: April 10, 2018

Matthew F. Loesch, Portsmouth, Ohio, for Appellant.

Mark Kuhn, Scioto County Prosecuting Attorney, and Shane Tieman, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

McFarland, J.

{¶ 1} Toby Lamb, II, appeals his convictions and sentences for aggravated robbery and failure to comply with an order or signal of a police officer, after a jury found him guilty of both charges. On appeal, Appellant contends that 1) his trial counsel was ineffective for failing to properly advise him of a plea offer made by the State of Ohio; 2) his convictions for aggravated robbery and failure to comply were against the manifest weight and sufficiency of the evidence; 3) the trial court abused its discretion in admitting improper hearsay evidence from Detective Jodi Conkel and/or failing to provide a proper curative instruction; 4) his speedy trial rights under R.C. 2945.71 were violated as a matter of law; 5) a mistrial should have been declared due to improper selection of the alternate juror at trial; 6) he was denied his Sixth Amendment right to a fair trial when his pro se motions went unaddressed; and 7) cumulative errors committed during his trial deprived him of a fair trial and require reversal of his conviction.

{¶ 2} Because we conclude Appellant's trial counsel was not ineffective with respect to advising him regarding his plea offers made by the State, Appellant's first assignment of error is overruled. And, we cannot conclude that Appellant's convictions were against the manifest weight of the evidence or not supported by sufficient evidence, his second assignment of error is overruled. Likewise, in light of our finding there was no plain error in the trial court's admission of alleged hearsay testimony by Detective Conkel or failure to issue a curative instruction, Appellant's third assignment of error is overruled. Similarly, having concluded Appellant did not preserve his speedy trial argument for purposes of appeal, his fourth assignment of error is overruled. Also, having determined the trial court did not err in failing to declare a mistrial, we must overrule Appellant's fifth assignment of error. Finally, having found no merit to Appellant's sixth or seventh assignments of error, they are also overruled.

FACTS

{¶ 3} A review of the record reveals that on October 16, 2015, an African-American male entered the Super 8 Motel located in the Rosemount area of Scioto County, Ohio, at approximately 4:52 a.m. Accordingly to the hotel clerk, Andrea Meddock, the man was wearing a hunter green sweatshirt with no hood but with a towel or something around his head so that only his eyes could be seen, clear plastic gloves (the type used while dying hair, not medical gloves), and was holding a silver gun. He ordered the clerk to open the safe; however, she fled without giving him any money, and then he fled as well. Scioto County Sheriff's Deputy Brian Nolan responded to the scene, took the statement of the clerk, and radioed dispatch to issue an order to be on the lookout for the suspect. New Boston Police Department Officer Josh Carver was working in the Rosemount area at the time and heard the radio traffic indicating an armed robbery had occurred at the motel. He stationed himself at a gas station on the corner of Rosemount Road and State Route 139 and pointed his lights toward oncoming traffic so he could watch for the suspect.

{¶ 4} Shortly thereafter Officer Carver saw a vehicle coming down Rosemount Road with what he described as two African-American individuals. When the individual in the passenger seat completely laid the seat down in what appeared to be an effort to hide, after passing a Sheriff's cruiser traveling the opposite direction with lights and sirens, Officer Carver decided to follow the vehicle. The vehicle, a maroon colored Pontiac Bonneville, initially stopped pursuant to a traffic stop initiated by Officer Carver; however, as Officer Carver approached the passenger side of the vehicle and was able to view an African-American male, the driver of the vehicle sped off. A high-speed chase ensued with the car stopping one time while on Route 139, at which point the driver of the vehicle jumped, or stumbled, out of the car. The passenger then got into the driver's seat and the chase continued. Officer Carver chased the vehicle down Route 139 and over Houston Hollow Road at speeds up to 80 M.P.H., around curvy and poorly lit residential areas. The chase ended with the vehicle flipping over. The suspect fled and was not apprehended. Upon doing an inventory of the vehicle, law enforcement recovered a hunter green sweatshirt with no hood, clear plastic, non-medical gloves, and a nickel-plated semi-automatic pistol.

{¶ 5} The original driver of the car, later determined to be an African-American female named Danielle Foster from Dayton, Ohio, was later picked up by the Sheriff's office and was taken to the jail for questioning. Detective Jodi Conkel interviewed Ms. Foster the next day at the jail. Ms. Foster initially told Detective Conkel she had agreed to drive an unknown man to Scioto County to pick up money that was owed to him by a friend. During the interview, Ms. Foster told her she stopped at the McDonald's in Rosemount to get a drink through the drive-thru, at which point the man used her phone to call his friend to make arrangements, but that the friend did not answer. She further told her that the man then left for about fifteen to twenty minutes, but that she didn't know where he went. When he came back, he gave her directions over what appeared to be Rosemount Road and towards the area where Officer Carver was stationed. She explained that she was initially the driver of the vehicle and that she drove off after the traffic stop because the man held a gun to her.

{¶ 6} Upon further investigation, which included listening to jail calls, talking to someone who claimed to be Danielle Foster's sister, and speaking with the jail in Dayton, Ohio, where Ms. Foster had been held on a previous occasion, Detective Conkel confronted Ms. Foster again and stated she knew Appellant, Toby Lamb, II, was the individual that was with her. Ms. Foster admitted the same. Subsequent investigation, which included obtaining a DNA standard from Appellant, and testing of the items recovered from the vehicle, revealed that Appellant's DNA was located on the thumb of one of the gloves found in the car. While Appellant's DNA was not found on the sweatshirt, he could not be excluded as a wearer of the shirt. No DNA testing was performed on the gun.

{¶ 7} Based upon these events and this evidence, Appellant, Toby Lamb II, was indicted on November 19, 2015, for one count of aggravated robbery, a first degree felony in violation of R.C. 2911.01(A)(1) and (C), along with a firearm specification pursuant to R.C. 2941.145(A). He was also indicted for one count of failure to comply with the order or signal of a police officer, a third degree felony in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), and one count of receiving stolen property, a fourth degree felony in violation of R.C. 2913.51(A) and (C). Appellant was not apprehended until June 17, 2016. Appellant was thereafter arraigned and counsel was appointed. The matter proceeded to a jury trial on March 6, 2017.¹

{¶ 8} The record reveals that although the trial initially began and a jury was selected and seated on March 6, 2017, the trial judge came under a disability and the trial was not reconvened until March 13, 2017. Further, when the trial was reconvened, a visiting judge took over the case and heard the trial. The State introduced several witnesses at trial, including: 1) Andrea Meddock, the hotel clerk; 2) Deputy Brian Nolan, the Scioto County Sheriff's Deputy who first responded to the hotel and who later inventoried the vehicle; 3) Officer Josh Carver, the New Boston Police Officer who was involved in the high-speed chase; 4) Danielle Foster, Appellant's co-defendant; 5) Detective Dan Malone, the evidence officer with the Scioto County Sheriff's Department; 6) Devonie Herdeman, a forensic scientist in the DNA Section at the Ohio Bureau of Criminal Identification and Investigation (BCI); and 7) Detective Jodi Conkel, who interviewed Danielle Foster at the jail and later obtained DNA samples from Appellant. Appellant introduced only one witness, his son, Toby Lamb, III, who testified that his father had attended his freshman football game on the night in question, had stayed the night with him and his mother and then took him to school the next morning at 7:00 a.m. He also admitted on cross-examination that his mother owns a maroon Pontiac Bonneville and that it was reported stolen sometime between October 14 and October 16, 2015.

{¶ 9} The record further reveals that because it was the original trial judge's practice to do so, thirteen jurors were initially seated on the jury, rather than twelve, with the practice of randomly selecting one juror to be eliminated as an alternate prior to the start of deliberations. When it was time to eliminate the alternate juror, a number was drawn out of a basket, and the juror whose number was drawn was the only African-American on the jury. At that point, defense counsel objected. However, the juror was eliminated and the matter was submitted to the remaining jurors. Appellant was ultimately convicted of aggravated robbery, with a firearm specification, and failure to comply with an order or signal of a police officer, as charged in the indictment.² The trial court then sentenced Appellant to an aggregate term of fifteen years in prison in an April 5, 2017 sentencing entry. It is from this judgment entry Appellant now brings his appeal, setting forth seven assignments of error for our...