State v. Palmer
| Decision Date | 18 July 2022 |
| Docket Number | 19 MA 108 |
| Citation | 2022 Ohio 2643 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. JEFFREY PALMER, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Atty Paul J. Gains, Mahoning Prosecutor, Atty. Ralph M. Rivera Assistant Chief, Criminal Division, for Plaintiff-Appellee and
Jeffrey Palmer, N.C. C.C. Pro Se, Defendant-Appellant.
BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
OPINION AND JUDGMENT ENTRY
{¶1} Defendant-Appellant, Jeffrey Palmer, has filed an application to reopen his direct appeal from his conviction on 12 counts of rape and one count of gross sexual imposition (GSI) of a minor under the age of 13. Appellant was sentenced to a total of 40 years to life in prison. State v. Palmer, 7th Dist. Mahoning No. 19 MA 0108, 2021 -Ohio-81. We denied appellant's assignments of error on direct appeal and affirmed his conviction and sentence on September 29, 2021. On December 28, 2021, the Ohio Supreme Court declined to accept appellant's appeal for review. State v Palmer, 165 Ohio St.3d 1495, 178 N.E.3d 534 2021-Ohio-4515. Appellant filed the instant App.R. 26(B) application to reopen on December 28, 2021. For the following reasons, the application is denied.
{¶2} An application to reopen an appeal must be filed "within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." App.R. 26(B). Our judgment in this case was filed on September 29, 2021. Appellant filed this application on December 28, 2021. Thus, it was timely filed.
{¶3} When considering an application for reopening pursuant to App.R. 26(B), we must first determine, based upon appellant's application, affidavits, and portions of the record before us, whether appellant has set forth a colorable claim of ineffective assistance of appellate counsel. See e.g. State v. Milburn, 10th Dist. No. 89AP-655, 1993 WL 339900 (Aug. 24, 1993); State v. Burge, 88 Ohio App.3d 91, 623 N.E.2d 146 (10th Dist. 1993). The appropriate standard to assess whether Appellant has raised a "genuine issue" as to the ineffectiveness of appellate counsel in his request to reopen under App.R. 26(B)(5) was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). In order to show the ineffective assistance of appellate counsel, appellant must prove that his appellate counsel deficiently performed by failing to raise the issues he now presents and that he was prejudiced because there was a reasonable probability of success had he presented those claims on appeal. State v. Goff, 98 Ohio St.3d 327, 2003-Ohio-1017, 784 N.E.2d 700.
{¶4} On direct appeal, appellant, through counsel, raised nine assignments of error. Those assignments of error concerned violation of his constitutional rights due to: identical counts charged in the same indictment; failing to instruct the jury on the lesser offense of GSI; insufficient evidence of oral rape; allowing the introduction of impermissible "other act" evidence; ineffectiveness of trial counsel for failing to be prepared for trial, not filing a motion to suppress, not withdrawing from the case, and not objecting to references to the minor (AB) in this case as "victim;" allowing the State to impermissibly bolster AB's testimony by using "expert" medical testimony; failing to record sidebars; and cumulative errors.
{¶5} In the instant Rule 26(B) application, appellant asserts that his appellate counsel was ineffective by failing to raise a number of additional issues. He asserts ten arguments that he refers to as assignments of error. Appellant first argues:
APPELLATE COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO ARGUE THAT TRIAL COUNSEL FAILED TO OBJECT TO THE ADMISSION AND ELICITING OF HEARSAY, AND TESTIMONIAL STATEMENTS, IN VIOLATION OF PALMER'S 5TH, 6TH, AND 14THAMENDMENTS TO THE U.S. CONSTITUTION AND ART. 1, SECTION 10 OF THE OHIO CONSTITUTION.
{¶6} Appellant claims that appellate counsel should have raised his trial counsel's failure to object to a number of statements made by AB, her mother TB (TB), Detective Sweeney, and Officer Hillman. He contends that these statements violated his Confrontation Clause rights and constituted inadmissible hearsay.
{¶7} We start by evaluating whether the statements violated appellant's Confrontation Clause rights. The Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." The Confrontation Clause prohibits the introduction of testimonial statements by a non-testifying witness, unless that witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. State v. Grabe, 7th Dist. Mahoning No. 16 MA 0061, 2017-Ohio-1017, ¶ 20, citing Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
{¶8} Here, AB testified at trial and was subject to complete cross-examination. (Tr. at 171-209). "The Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." State v. Culler, 7th Dist. Columbiana No. 20 CO 0030, 2021-Ohio-4642, ¶ 37, citing California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930 (1970).
{¶9} Since there is no Confrontation Clause violation, trial counsel did not deficiently perform by failing to object to or otherwise raise this issue, and appellate counsel was therefore not ineffective for failing to raise trial counsel's ineffectiveness on this issue.
{¶10} Appellant also contends that AB's statements to TB, Detective Sweeney and Officer Hillman constituted inadmissible hearsay, trial counsel was ineffective for failing to raise this issue, and the trial court abused its discretion by admitting these statements. He first asserts that AB's statements were not excited utterances under Evid. R. 803 because the statements were made in 2018 about conduct that allegedly occurred in 2015 and 2016. He quotes State v. Taylor, 66 Ohio St.3d 295, 300-301, 612 N.E.2d 316 (1993) (quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955)) concerning a four-part test to determine that an out-of-court statement is an excited utterance under the hearsay exception.
{¶11} Evid.R. 801(C) defines "hearsay" as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 802 provides that "[h]earsay is not admissible except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio."
{¶12} Evid.R. 803 identifies exceptions to the hearsay rule where the declarant's availability is immaterial. One such exception includes Evid. R. 803(2): Statements made under this exception are considered more truthful because the 1980 Staff Notes to Evid. R. 803(2).
{¶13} In order for an excited utterance to be admissible, four factors must be satisfied: (1) the event must be startling enough to produce a nervous excitement in the declarant, (2) the statement must have been made while the declarant was still under the stress of excitement caused by the event, (3) the statement must relate to the startling event, and (4) the declarant must have personally observed the startling event. State v. Taylor, 66 Ohio St.3d 295, 300-301, 612 N.E.2d 316 (1993). In determining if a statement is an excited utterance, "[t]he controlling factor is whether the declaration was made under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection." State v. Humphries, 79 Ohio App.3d 589, 598, 607 N.E.2d 921 (1992).
{¶14} Appellant correctly points out that AB did not disclose sexual abuse until nearly two years after it occurred and appellant had left the home. (Tr. at 146-147). When asked at trial why she waited to disclose the abuse, AB testified that appellant threatened that he would hurt her mother if she told. (Tr. at 188). She stated that she was afraid of appellant and he was serious when he told her she would not see her mother. (Tr. at 188). She stated that appellant was older and bigger than her, and she knew that appellant kept a BB gun in his car. (Tr. at 188-189). She stated that she was afraid that appellant would come back when he left. (Tr. at 196).
{¶15} TB testified as to the circumstances surrounding AB's disclosure of the sexual abuse to her and AB's demeanor at that time. (Tr. at 146-147). She testified that AB came into the room while TB was talking to family and AB told TB that she had something to tell her about appellant and TB took AB into another room:
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