State v. Mitchell, 2007 Ohio 3896 (Ohio App. 8/2/2007)
| Decision Date | 02 August 2007 |
| Docket Number | No. 88131.,88131. |
| Parties | State of Ohio, Plaintiff-Appellee, v. Jatyus Mitchell, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Kevin T. Toohig, Toohig Law Offices, 1360 West 9th Street, Suite 310, Cleveland, OH 44113, Attorney for Appellant.
Ronald L. Frey, Ian N. Friedman, MaryEllen O'Brien, Ian N. Friedman & Associates, LLC, 700 W. St. Clair Avenue, Suite 110, Cleveland, OH 44113, Attorney for Appellant.
William D. Mason, Cuyahoga County Prosecutor, By: Christopher Wagner, Assistant County Prosecutor, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, OH 44113, Attorney for Appellee.
Before: Stewart, J., Gallagher, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant, Jatyus Mitchell, appeals his convictions for several criminal offenses. The Cuyahoga County grand jury indicted appellant on one count of drug possession with a firearm specification in violation of R.C. 2925.11 and R.C. 2941.141, one count of drug trafficking with a firearm specification in violation of R.C. 2925.03 and R.C. 2941.141, and one count of possession of criminal tools in violation of R.C. 2923.24. A jury found appellant guilty on all counts. The trial court sentenced him to a total of six years in prison and imposed a $10,000 mandatory drug fine. Appellant presents four assignments of error for review. For the reasons stated below, we find all four assignments of error to be without merit and affirm the judgment of the trial court.
{¶ 2} In late August 2005, the Cleveland police received a tip by a confidential reliable informant that a black male known as "Q" was trafficking large quantities of marijuana from the downstairs unit of a house at 1369 East 93rd Street in Cleveland. The police set up a controlled purchase of marijuana using the informant. The informant went into the house with a predetermined amount of marked currency and returned from the house with two bags containing ten pounds of marijuana. The informant told police there were other persons in the house with "Q." The informant described the persons dealing the drugs as being Jamaican or of Jamaican descent.
{¶ 3} Based upon this information, Cleveland police detective Todd Clark sought and received a warrant to search the premises from a judge of the Cuyahoga County Court of Common Pleas. The police executed the warrant at approximately 9:45 p.m. on August 31, 2005. After receiving a report of males running inside the house, the SWAT unit hit the front door with a battering ram. Officers of the SWAT unit heard footsteps in another part of the house and smelled a strong odor of marijuana. The SWAT unit cleared the first floor and continued up the back stairs to the second floor. The officers found two males hiding next to a fireplace on the second floor. The SWAT unit then cleared two rooms on the third floor where they discovered appellant and another male hiding in a crawl space. The males were ordered out of the crawl space and officers discovered a .22 caliber pistol next to where appellant had been hiding. In addition to the firearm, police found more than $2,000 on appellant.
{¶ 4} The four males were detained and placed in police cruisers.
{¶ 5} During the search of the house, Cleveland narcotics officers seized more than 25 pounds (11,654.87 grams) of marijuana, $22,446 in U.S. currency, numerous firearms including a shotgun, a replica AK-47 rifle, and numerous handguns, scales and other drug paraphernalia. Police also recovered the prerecorded money used by the informant for the earlier drug buy.
{¶ 6} During the search of a green Chevy Impala parked behind the house, police found a note with a phone number and the statement, "I want my rent money now!" The phone number belonged to the landlord of a property at 16413 Arcade Avenue. Police contacted the landlord and, from photographs supplied by the police, she identified appellant as one of the tenants of the Arcade apartment.
{¶ 7} A police dog brought to the Arcade property alerted police to the presence of narcotics at the apartment door. The police entered the apartment using a key provided by the landlord and secured the premises. Officers observed a weapon in plain view and relayed this information to Detective Clark who secured a search warrant from the same judge for the Arcade apartment. During this second search, police seized a small amount of marijuana, four guns, a money counter, and $32,800 in U.S. currency.
{¶ 8} In his first assignment of error, appellant alleges that he was denied his constitutional right to effective assistance of counsel due to his counsel's dual representation of him and Shawn Williams, one of the other three co-defendants in the case.
{¶ 9} In order to substantiate a claim of ineffective assistance of counsel, the appellant, upon appeal, is required to demonstrate that he was deprived of a fair trial. The appellant must affirmatively demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient, and 2) the result of the appellant's trial would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St.3d 144.
{¶ 10} In State v. Gillard, 64 Ohio St.3d 304, the Ohio Supreme Court held:
{¶ 11} Dual representation of criminal defendants is not a per se violation of due process. Holloway v. Arkansas (1978), 435 U.S. 475, 482, citing Glasser v. United States (1942), 315 U.S. 60, 92. It is possible that choosing dual representation can work to the advantage of the clients in cases when they mount a common defense against charges. Id. at 483.
{¶ 12} Appellant did not object to the dual representation at trial. Where no objection is raised to the trial court regarding the joint representation, appellant must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan (1980), 446 U.S. 335, 348.
{¶ 13} The threshold inquiry is whether an actual conflict of interest existed, because the court's duty to inquire only arises if the court knew or reasonably should know that such a conflict existed. To demonstrate an actual conflict, defendants must be able to point to specific instances in the record to suggest an actual conflict or impairment of their interests. State v. Terry (May 7, 1987), Cuyahoga App. No. 52072.
{¶ 14} In the instant case, appellant contends that trial counsel's joint representation created an actual conflict of interest because appellant was unable to "point the finger at" Williams during trial. Appellant claims that it was Williams who was the responsible party for the East 93rd Street address. Appellant claims he was only responsible for the Arcade address and therefore should not have had more than 11,000 grams of marijuana found during the search of the East 93rd Street premises attributed to him because the police did not find 11,000 grams on appellant's person or at his apartment. We disagree.
{¶ 15} Appellant was found hiding upstairs at the East 93rd Street house after fleeing from the police. A gun was found next to him and thousands of dollars was found on him. The marijuana, as well as the guns and the cash found on the premises, was attributed to all four of the defendants as being part of a large-scale commercial drug enterprise. Appellant has failed to show how hammering home the point that Williams admitted that he was the only one staying at the East 93rd Street house would have aided in appellant's defense. None of the defendants were charged based upon their residency at the East 93rd Street house. In fact, the police testified that the East 93rd Street house was not a residence at all, and that the upstairs floors where Williams was allegedly staying did not have lights or furniture.
{¶ 16} Appellant has failed to demonstrate how shifting the blame to Williams based upon William's alleged residency at the house created a viable alternative defense thus creating an actual conflict of interest and dividing trial counsel's loyalties. Moreover, there is a strong presumption that trial counsel's representation falls within the wide range of reasonable professional assistance. State v. Bradley (1989), 42 Ohio St.3d 136; Strickland, 466 U.S. at 690. Appellant's first assignment of error is overruled.
{¶ 17} In his second assignment of error, appellant contends that the court erred when it denied appellant's motion to suppress. Appellant argues that the affidavit in support of the warrant to search the East 93rd Street house was insufficient to show probable cause because it was based solely on the informant's statements to police. We disagree.
{¶ 18} To determine the sufficiency of probable cause in an affidavit submitted to procure a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. George (1989), 45 Ohio St.3d 325, paragraph one of the syllabus, following Illinois v. Gates (1983), 462 U.S. 213, 238-239.
{¶ 19} ...
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