State v. Leigh
| Docket Number | 28821 |
| Decision Date | 17 March 2023 |
| Citation | 2023 Ohio 2507 |
| Parties | STATE OF OHIO Appellee v. BRANDON WILLIAM LEIGH Appellant |
| Court | Ohio Court of Appeals |
ORDER ON APPLICATION FOR RECONSIDERATION
Pursuant to App.R. 26(A)(1), Brandon William Leigh asks us to reconsider our January 13, 2023 Opinion and Final Judgment which affirmed his convictions for murder with a firearm specification, involuntary manslaughter with a firearm specification, improperly discharging a firearm at or into a habitation, and having weapons while under disability. Leigh also appears to ask us to reopen his direct appeal so that he may challenge the lawfulness of his warrantless arrest. For the following reasons, Leigh's application for reconsideration is denied.
The charges against Leigh stemmed from a shooting into the rear of the home of Jacqueline Mooty. Mooty's pregnant 22-year-old daughter, Keyona Murray, was killed when a bullet entered the first-floor rear bedroom. The main issue at trial was the identity of the shooter. The State presented evidence that Leigh committed the offenses because he believed that Marrico Murray, Keyona's brother, had stolen a firearm from him. Of relevance here, several days after the shooting, Marrico provided detectives with Facebook messages that he received from Leigh, and detectives later obtained additional messages between Leigh and others in which Leigh discussed getting robbed and his efforts to locate Marrico. In addition, Leigh reportedly had told Angela Williams that he committed the shooting, a fact to which Williams testified during a probable cause hearing in juvenile court. (Leigh was a minor when the offenses occurred.) After determining that Williams was unavailable for trial, the trial court allowed a recording of her prior testimony to be played for the jury.
On appeal, Leigh raised five assignments of error: (1) the trial court committed reversible error by admitting Williams's probable cause hearing testimony; (2) the trial court committed reversible error by allowing testimony that Leigh sent messages via Facebook Messenger, which contained hearsay and discussed other bad acts; (3) defense counsel rendered ineffective assistance, particularly in failing to challenge prospective Juror #15; (4) the State failed to prove all of the elements of the charged offenses; and (5) cumulative error deprived Leigh of a fair trial. We overruled each assignment of error and affirmed Leigh's convictions.
Leigh now asks us to reconsider several of our determinations. First, he argues that we should have concluded that his trial counsel rendered ineffective assistance by failing to challenge a prospective juror who previously had experienced a drive-by shooting at his home. Second, he claims that we erred in our conclusion that his convictions were supported by sufficient evidence. Third, he asserts that we should have concluded that the trial court erred in finding Williams an unavailable witness. Fourth, he claims that the trial court erred in admitting character evidence. Finally, Leigh asserts that his Fourth Amendment rights were violated when he was subjected to a warrantless arrest, a matter that he did not raise on direct appeal and, consequently, we have not addressed.
App.R. 26(A)(1)" 'provides a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law.'" State v. Gillispie, 2012-Ohio-2942, 985 N.E.2d 145, ¶ 9 (2d Dist.), quoting State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th Dist.1996). However," '[a]n application for reconsideration is not designed for use in instances where a party simply disagrees with the conclusions reached and the logic used by an appellate court.'" Id., quoting Owens at 336. Rather, the application "must call the court's attention to obvious errors in a decision or must raise issues that the court either failed to consider or did not fully consider when the original decision was made." Id.
An application for reconsideration shall be made "no later than ten days after the clerk has both mailed to the parties the judgment or order in question and made a note on the docket of the mailing as required by App. R. 30(A)." App.R. 26(A)(1)(a). The appellate court may enlarge the time for filing an application for reconsideration, but only upon a showing of extraordinary circumstances. App.R. 14(B).
We rendered our Opinion and Final Judgment in this case on January 13, 2023. The same day, the clerk mailed a notice of entry to each party and made a note of the mailing on the docket. Leigh, therefore, was required to file any application for reconsideration by January 23, 2023. Leigh filed his application on January 27, 2023, 14 days later, and he has not presented any extraordinary circumstances to justify the delay. Accordingly, Leigh's application for reconsideration is untimely. Nevertheless, in the interest of completeness, we will address Leigh's arguments.
Leigh's application for reconsideration primarily focuses on his trial counsel's failure to seek the dismissal of prospective Juror #15. During voir dire, Juror #15 told the prosecutor, The juror indicated that the incident had happened about a year before and the perpetrators had not been apprehended. When asked directly whether he could set aside his experience and judge the case only on the evidence in court, Juror #15 responded affirmatively. He indicated that he would not find someone guilty because of his drive-by shooting incident and that he would be fair and impartial.
In overruling Leigh's assignment of error, we stated that Juror #15 had made clear that he would be able to be fair and impartial, despite the similar nature of the incidents, and that he could judge the case solely on the evidence provided in court. State v. Leigh, 2d Dist. Montgomery No. 28821, 2023-Ohio-91, ¶ 100. We concluded that defense counsel could have reasonably determined that he had no basis to seek Juror #15's dismissal for cause. Id. We further concluded that Leigh had no claim of ineffective assistance of counsel based on counsel's failure to exercise a peremptory challenge to remove Juror #15, reasoning that defense counsel's decision was within the realm of trial strategy, which we would not second-guess. Id. at ¶ 101.
Leigh argues that we should have found ineffective assistance of counsel based on the doctrine of "implied bias." Under that doctrine, bias may be presumed in "extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his [or her] deliberations under the circumstances." Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988); United States v. Banks, N.D.W.Va. No. 1:18CR50-3, 2023 WL 1786113, *6 (Feb. 6, 2023). Such circumstances include "where the prospective juror has been the victim of a crime or has experienced a situation similar to the one at issue in the trial." Hunley v. Godinez, 975 F.2d 316, 319 (7th Cir.1992). Emphasizing the similarities between Juror #15's drive-by shooting incident and the shooting of Mooty's residence, Leigh contends that Juror #15 should have been presumed to be biased and, therefore, excluded from the jury.
Upon consideration of Leigh's argument, we find no obvious error in our Opinion. It is well established that every litigant has the right to a trial by an impartial jury. E.g., State v. Anderson, 30 Ohio St.2d 66, 71, 282 N.E.2d 568, 571 (1972). To protect this right, Ohio provides defendants the right to exercise both challenges for cause and preemptory challenges. State v. Wilson, 2d Dist. Montgomery No. 29349, 2023-Ohio-27, ¶ 34, citing R.C. 2945.23, R.C. 2945.25, and R.C. 2945.26; see Crim.R. 24. Consistent with this process, "[v]oir dire serves the purposes of allowing the court and the parties to identify and remove jurors to ensure an impartial jury." State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, 165 N.E.3d 1198, ¶ 49; see also Anderson at 72. A prospective juror may be removed for cause upon a showing of "enmity or bias toward the defendant or the state," R.C. 2945.25(B), or if the juror "is unsuitable for any other cause to serve as a juror," R.C. 2945.25(O). See also Crim.R. 24(C)(9), (14).
A court will find actual bias when a prospective juror's unambiguous statement of partiality is "coupled with a lack of juror rehabilitation or juror assurances of impartiality." State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 74, quoting Miller v. Webb, 385 F.3d 666, 675 (6th Cir.2004). "A juror will be considered unbiased if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." (Citations omitted.) State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 58. When a prospective juror gives contradictory answers, the trial judge must determine the juror's true state of mind. Kirkland at ¶ 76.
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