State v. Michael A. Cable
| Decision Date | 28 September 2018 |
| Docket Number | Appellate Case No. 2017-CA-23 |
| Citation | 2018 Ohio 3923 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. MICHAEL A. CABLE Defendant-Appellant |
| Court | Ohio Court of Appeals |
(Criminal Appeal from Common Pleas Court)
OPINIONJANNA L. PARKER, Atty. Reg. No. 0075261, 201 W. Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 E. Stroop Road, Kettering, Ohio 45429 Attorney for Defendant-Appellant
{¶ 1} Michael Cable appeals from his convictions for aggravated burglary and aggravated robbery. He contends that the trial court erred by not providing him the assistance of a DNA expert at state expense. He further contends the trial court erred by failing to merge the convictions. Finally, Cable contends that the convictions were not supported by sufficient evidence and were against the manifest weight of the evidence.
{¶ 2} We conclude that none of Cable's contentions have merit, and we affirm the trial court's judgment.
{¶ 3} This case arises from a break-in at a Piqua apartment. Around 3 a.m. on October 28, 2014, two men forced their way into the apartment while the residents, Ryan and Mackenzie, were home. The men's faces were covered, they wore baggy clothing, and they had duct tape wrapped around their fingers. The men had guns and demanded money, drugs, and phones. One of the men hit Ryan in the head with a pistol, causing a laceration. Later, the same man sliced open Ryan's chest with a box cutter. Neither victim could identify either man. Police found two pieces of duct tape in Ryan's room. DNA testing found Cable's DNA on the sticky side of one of the pieces of tape.
{¶ 4} Cable was indicted in September 2016 on charges of aggravated robbery, in violation of R.C. 2911.01(A)(3), and aggravated burglary, in violation of R.C. 2911.11(A)(1), both first-degree felonies.1 Cable filed a motion to suppress and a motionto retest the DNA evidence from the piece of duct tape. In the motion to retest, he asked the trial court to appoint an independent DNA expert to test the duct tape, on the ground that "the DNA evidence found at the scene and allegedly matched to the Defendant is the only evidence linking the Defendant to this crime scene." After the trial court overruled the motion to suppress, Cable filed a supplemental motion to retest. The trial court overruled the motion to retest in February 2017, concluding that Cable had failed to show a particularized need for a DNA expert.
{¶ 5} Cable then filed a motion asking the trial court to reconsider its decision denying the motion to retest. The court held a hearing at which the State presented testimony from the police officers who collected the pieces of duct tape and the forensic scientists at the Miami Valley Regional Crime Lab who tested them. Concluding that Cable had still not shown a particularized need for a court-appointed DNA expert, the trial court denied the motion to reconsider.
{¶ 6} A superseding indictment added a repeat violent offender specification to each charge in the original indictment. The two charges and specifications were tried to a jury. The jury found Cable guilty of them all. The trial court declined to merge the aggravated burglary and aggravated robbery offenses and sentenced Cable to a total of 26 years in prison.
{¶ 7} Cable appeals.
{¶ 8} Cable presents three assignments of error for our review. The first assignment of error argues that the trial court should have appointed a DNA expert to assist the defense. The second assignment of error argues that the court should have merged the aggravated burglary and aggravated robbery offenses. The third assignment of error argues that the convictions are not supported by sufficient evidence and are against the manifest weight of the evidence.
{¶ 9} The first assignment of error alleges:
THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BY DENYING HIS MOTION FOR FUNDS TO OBTAIN A DNA EXPERT AT STATE EXPENSE.
{¶ 10} Constitutional due process "requires that an indigent criminal defendant be provided funds to obtain expert assistance at state expense only where the trial court finds, in the exercise of a sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial." State v. Mason, 82 Ohio St.3d 144, 694 N.E.2d 932 (1998), syllabus. In making this determination, the court must consider "(1) the effect on the defendant's private interest in the accuracy of the trial if the requested service is not provided, (2) the burden on the government's interest if the service is provided, and (3) the probable value of the additional service and the risk of error in the proceeding if the assistance is not provided." Id. at 149.
{¶ 11} To establish a due process violation, " ' "a defendant must show a reasonable probability that an expert would aid in his defense, and that denial of expert assistance would result in an unfair trial." ' " Id., quoting State v. Broom, 40 Ohio St.3d 277, 283, 533 N.E.2d 682 (1988), quoting Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987). The mere possibility that an expert could have had some value to the defense is not enough. State v. Campbell, 90 Ohio St.3d 320, 328, 738 N.E.2d 1178 (2000).
{¶ 12} Cable asked the trial court to appoint an "independent examiner to review the tests performed by the Miami Valley Regional Crime Lab and their result, and, if necessary, be permitted to perform his or her own tests to determine the validity of the Crime Lab's findings." Cable argued that this was important because the DNA evidence was the only evidence linking him to the crimes. Cable provided the trial court with the name and cost of a potential DNA expert, who would perform a case review, help the defense understand the crime lab's DNA test results, and determine if the results were supported by the underlying data. The cost for the potential expert's "Case Consultation/Review" was listed as $295/hour, with a five hour minimum, and a review "usually" required 5-10 hours, or $1,475 to $2,950. Additionally, expert testimony cost "$295/hour or $1,800/day + expenses," and DNA testing of evidence and a known reference cost "$995."
{¶ 13} Cable asserted in his motion to reconsider a number of potential procedural problems with the collection and testing of the DNA evidence. He noted that the crime scene was not secured before the duct tape was found. He also noted that the two pieces of duct tape were submitted to the crime lab for testing and that several lab reports were issued on different dates addressing different test results. Finally, Cable noted that the piece of duct tape on which his DNA was found had been returned to the Piqua Police Department and then resubmitted to the crime lab for additional testing.
{¶ 14} The trial court denied the motion, as well as the motion to reconsider its denial, because it concluded that Cable had failed to make a particularized showing of need. The court found that Cable had not given a specific reason why he needed expert assistance. He had asserted only that an expert "could assist" the defense but failed to give a reason to think that an independent DNA analysis would be more than merely cumulative. "The mere possibility that independent DNA analysis could have some value to the defense," said the trial court, "is not enough."
{¶ 15} The evidentiary hearing on the motion to reconsider featured extensive and comprehensive testimony on the collection, handling, and testing of the duct tape pieces from the police officers who found the tape, Todd Voskuhl and Jeremy Weber, and from the two forensic scientists at the Miami Valley Regional Crime Lab who tested the tape, Jennifer Yoak, a latent fingerprint examiner, and Amy Dallaire, a forensic chemist in DNA and serology.
{¶ 16} Officer Voskuhl testified that he responded to the scene around 3:12 a.m., where he talked to the victims and took photographs. Voskuhl left the scene but was later told by another officer that the victims had reported that the suspects were wearing duct tape on their fingers. So Voskuhl returned and found a piece of rolled duct tape on an air mattress in Ryan's bedroom. Officer Voskuhl collected the piece of duct tape, packaged it, sealed it, signed his initials over the seal, and placed it in an evidence locker in the police department's property room. He also completed a Miami Valley Crime Lab submission sheet. On the sheet, he listed the rolled piece of duct tape and wrote the analysis codes for latent-fingerprint processing and serology/DNA. In the space for a case-history narrative, Voskuhl wrote: He placed the lab submission sheet in a file tray where the property custodian, who was responsible for actually submitting the evidence to the crime lab, would retrieve it. Officer Voskuhl said that someone—he didn't know who—later modified the lab submission sheet by listing another piece of evidence, identified as "Piece of duct tape," and writing an analysis code for serology/DNA.
{¶ 17} Next, Officer Weber testified that he had been a detective with the Piqua Police Department and was tasked with following up on the investigation. He visited the scene around 10:30 a.m. on the day of the crime, where he met with one of the victims, Mackenzie, and viewed the crime scene. On the floor of Ryan's bedroom, Weber found another piece of duct tape, which, Mackenzie told him, had been on the bed until Ryan put it on the floor. Officer Weber collected the piece of...
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