State v. Mitchell

• Citation: 62 N.E.3d 820
• Decision Date: 30 March 2016
• Docket Number: No. 14 MA 0119.,14 MA 0119.
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Janero MITCHELL, Defendant–Appellant.
• Court: United States Court of Appeals (Ohio)

62 N.E.3d 820

STATE of Ohio, Plaintiff–Appellee,

v.Janero MITCHELL, Defendant–Appellant.

No. 14 MA 0119.

Court of Appeals of Ohio, Seventh District, Mahoning County.

March 30, 2016.

Ralph M. Rivera, Assistant Prosecuting Attorney, Youngstown, OH, for Plaintiff–Appellee.

Carrie E. Wood, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, OH, for Defendant–Appellant.

CAROL ANN ROBB, J., CHERYL L. WAITE, J., and MARY DeGENARO, J.

OPINION

ROBB, J.

{¶ 1} Defendant–Appellant Janero Mitchell appeals after being convicted of aggravated murder with a firearm specification in the Mahoning County Common Pleas Court. Appellant contests the state's use of a peremptory challenge to excuse an African–American from the jury. He next states that he was denied a fair trial when the jury heard testimony about a threat to a witness. He also contests the admissibility of a detective's testimony about a tip. As to the latter two arguments, Appellant adds ineffective assistance of counsel arguments. For the following reasons, the trial court's judgment is upheld.

STATEMENT OF THE CASE

{¶ 2} Around noon on October 17, 2012, Mark Haskins was shot four times near the corner of Bissell and Kensington Avenues on the north side of Youngstown. He died three days later. Just prior to the shooting, the victim called 911. Before the dispatcher spoke, the victim could be heard refusing to get in someone's car. He then reported to the dispatcher that “somebody jumped on” him at the corner of Kensington and Bissell. Another man could be heard yelling in the background to which the victim responded, “I didn't steal nothing.” The man in the background replied by yelling something about “falsifying” and “we want to report a robbery.” The call then disconnected.

{¶ 3} Minutes later, a witness heard multiple gunshots as she was raking leaves. She turned in time to see the victim fall from a large rock onto the sidewalk in front of a nearby house. The shooter fired two to three more times as the victim rolled from the sidewalk to the grass. (Tr. 285). The shooter turned to leave but then turned back and fired one last shot at the victim. (Tr. 286). The witness estimated 7–9 shots were fired. (Tr. 285, 289). One of the bullets passed over her head and hit her house. (Tr. 294). She said the shooter looked at her before he got into the driver's side of a green vehicle parked at the scene. (Tr. 297).

{¶ 4} While the witness ran inside to call 911, the victim called 911 a second time; he can be heard moaning on the recording. (Tr. 288, 522). A different woman, who was also out raking leaves, called 911 and reported seeing a gold SUV speed down the street after hearing the gunshots. (Tr. 526). This woman had difficulty with colors due to recent brain surgery. (Tr. 527). Another woman was driving by when she heard gunfire, which prompted her to stop her car and duck. After the shooting, she spotted the victim on the ground and saw a man enter a large green truck and drive away from the scene. (Tr. 431–432).

{¶ 5} While emergency medical personnel treated the victim, he became briefly responsive. (Tr. 517, 640, 642). A police officer asked about the shooter and the vehicle. The victim described the vehicle as a green truck. (Tr. 640, 650). The victim could not or would not report who shot him; the officer's report stated that the victim said he did not know who shot him, but the officer testified at trial the victim would not provide a name and answered “no” when asked who shot him. (Tr. 641642, 648–649).

{¶ 6} Police collected eight .40 caliber shell casings from the scene. (Tr. 390). Testing established that they were all fired from the same firearm. (Tr. 475). A slug was recovered from the siding on the witness's house. (Tr. 392). Bullet strikes could be seen on the rock and the sidewalk.

{¶ 7} The main witness was transported to the police station to be interviewed by Detective Martin. She testified at trial, and her October 17, 2012 video statement was played to the jury. She called the shooter's green vehicle a truck but also described it as a SUV, which she said was similar to a Jeep SUV she saw parked at the police station. (Tr. 287). She believed the shooter's vehicle had silver and black molding running down the doors. (Tr. 306–307). On the topic of colors, she said she had no problem discerning the color green but had difficulty distinguishing between black and dark blue and between gray and silver. (Tr. 307308).

{¶ 8} After the victim died, Detective Martin went to the victim's residence and spoke to his girlfriend, who testified at trial. She disclosed that their neighbor, who lived three doors down, owned a large green SUV. (Tr. 442, 448, 529). The neighbor's nickname was “Smoke.” (Tr. 439). At trial, the victim's girlfriend identified Appellant as the neighbor who was the subject of her statement. The victim performed house and car repairs for Appellant in the weeks prior to his death. (Tr. 439). The victim's girlfriend showed the detective her caller identification displaying the various calls Appellant made to their house. (Tr. 443). In addition, she reported Appellant came to their house five to six times in one night looking for the victim and seemed upset. (Tr. 439–440). She said this was “strange” and made her nervous. (Tr. 439). The victim also seemed unusually nervous in the weeks leading up to his death. (Tr. 440–441).

{¶ 9} On November 5, 2012, the eyewitness to the shooting came to the station to view a photo line-up and to add to her statement, the video of which was played to the jury. (Tr. 342, 348–349). The witness reported that she remembered seeing a gray car on the opposite side the street and believed the shooter may have spoken to the person in the gray car before driving away. (Tr. 336–337, 360). She was then administered a photo line-up at the police department by a “blind administrator.” Appellant's photograph occupied folder number seven in the first array. (Tr. 535). On her second viewing of the first array, the witness said number three looked like the shooter. She also voiced that number seven looked like the shooter and started crying. (Tr. 373–374, 457). Pursuant to policy, she was not permitted to view the array a third time as she requested. In viewing the second array, she expressed that number one reminded her of number three from the prior array.

{¶ 10} She did not identify the shooter to the administrator; at trial, she explained she thought she was supposed to voice her suspicions to Detective Martin. (Tr. 370). Upon exiting the room, the eyewitness spoke to Detective Martin and informed him that seeing number seven brought it all back, stating she was 99% sure he was the shooter. (Tr. 350, 357– 358, 370, 536). She similarly advised the deputy sheriff who drove her home; this officer was her landlord. (Tr. 321, 540). At trial, she identified Appellant as the shooter (and as number seven in the array). (Tr. 296).

{¶ 11} The police watched Appellant's residence and eventually spotted a green Chevrolet Avalanche, which Appellant later acknowledged was exclusively driven by him. (Tr. 529, 545). As the state pointed out in closing, the photographs show the vehicle is an unusual style of truck. (Tr. 673). It is a four-door pick-up truck, but the back of the cab protrudes toward the bed at an angle with a triangular cut-out behind the back passenger windows, making it appear as if a third row is behind the second row of seats. Detective Martin noted the truck had a gray strip of molding down the side and a silver strip in the front. (Tr. 613). When the photographs were shown to the eyewitness, she did not recall the bed on the vehicle but said it was the same style. (Tr. 585, 595). Notably, the victim's girlfriend, who knows Appellant and is his neighbor, also described the vehicle as an SUV.

{¶ 12} On November 29, 2012, Appellant was secretly indicted for aggravated murder (with prior calculation and design) and a firearm specification. He was arrested the next day. A gun and ammunition, which belonged to Appellant, were confiscated from his residence; this evidence did not match the evidence from the scene. A superseding indictment was filed to add a count for having a weapon while under a disability. Appellant waived his right to a jury trial on the weapons charge, electing to have that charge tried to the bench. The aggravated murder charge and the firearm specification were tried to a jury, which was also instructed on the lesser included offense of murder.

{¶ 13} The jury found Appellant guilty of aggravated murder with a firearm specification, and the court found him guilty of having a weapon while under a disability. The court sentenced Appellant to life without parole for the aggravated murder, three years for the firearm specification, and three years for the weapons charge to run consecutive. (Aug. 25, 2014 Sent. Hrg.; Sep. 11, 2014 Sent. J.E.).

ASSIGNMENTS OF ERROR ONE & TWO: PEREMPTORY CHALLENGE

{¶ 14} Appellant's first two assignments of error, which concern one peremptory challenge utilized by the state, provide:

“The trial court erred when it excused a juror after the State offered a facially discriminatory explanation for the use of its peremptory challenge.”

“The trial court's decision to excuse a black juror after a Batson challenge is clearly erroneous when it fails to make the necessary Batson findings and instead relies upon impermissible factors.” (Citations omitted.)

{¶ 15} The state used its third peremptory challenge on prospective juror number 7, Mr. Whitfield. (Tr. 178). An unrecorded sidebar was held after which an in chambers discussion was recorded. (Tr. 178–179). Defense counsel noted this was the second minority juror excused by the state. He stipulated “there are two remaining minority jurors in this case” and noted other minority members of the upcoming panel would likely not be reached. Counsel voiced a Batson objection asking the court to determine whether there...