State v. Pippins

Decision Date13 February 2020
Docket Number No. 15AP-138,No. 15AP-137, No. 15AP-140,15AP-137
Citation151 N.E.3d 1150,2020 Ohio 503
Parties STATE of Ohio, Plaintiff-Appellee, v. Keith J. PIPPINS, Jr., Defendant-Appellant.
CourtOhio Court of Appeals

DECISION

BROWN, J.

{¶ 1} Defendant-appellant, Keith J. Pippins, Jr., appeals a February 20, 2015 judgment of the Franklin County Court of Common Pleas, in which the court convicted him of numerous drug-related offenses and sentenced him to 74 years in prison.

{¶ 2} On March 14, 2014, a Franklin County Grand Jury indicted Pippins and eight other defendants in a 42-count indictment in case No. 14CR-1320. Pippins was indicted for engaging in a pattern of corrupt activity, in violation of R.C. 2923.32 ; attempted murder, in violation of R.C. 2903.02 and 2923.02 ; 2 counts of felonious assault, in violation of R.C. 2903.11 ; tampering with evidence, in violation of R.C. 2921.12 ; 17 counts of trafficking in heroin, in violation of R.C. 2925.03 ; 2 counts of trafficking in cocaine, in violation of R.C. 2925.03 ; 3 counts of trafficking in oxycodone, in violation of R.C. 2925.03 ; 1 count of trafficking in marijuana, in violation of R.C. 2925.03 ; 1 count of funding trafficking in marijuana, in violation of R.C. 2925.05 ; 3 counts of illegal drug manufacture, in violation of R.C. 2925.04 ; and 1 count of having a weapon while under disability, in violation of R.C. 2923.13. The count regarding engaging in a pattern of corrupt activity did not indicate what offenses constituted the "pattern of corrupt activity" as defined in R.C. 2923.31(E) and (I).

{¶ 3} On April 10, 2014, in case No. 14CR-1823, a Franklin County Grand Jury indicted Pippins and six other defendants for crimes associated with the same alleged pattern of corrupt activity. This indictment charged Pippins with engaging in a pattern of corrupt activity, in violation of R.C. 2923.32 ; trafficking in heroin, in violation of R.C. 2925.03 ; possession of heroin, in violation of R.C. 2925.11 ; and three counts of having a weapon while under disability, in violation of R.C. 2923.13. The engaging in a pattern of corrupt activity count again did not state what specific offenses constituted the "pattern of corrupt activity" but did incorporate each of the offenses indicted in case No. 14CR-1315 against co-defendant Jack Morris as predicate offenses for this offense, as well as Counts 2 through 27 of this indictment.

{¶ 4} On May 30, 2014, in case No. 14CR-2869, a Franklin County Grand Jury indicted Pippins and eight other defendants for engaging in a pattern of corrupt activity, in violation of R.C. 2923.32. This count again did not indicate what specific offenses constituted the "pattern of corrupt activity" but incorporated each of the offenses indicted in case Nos. 14CR-1315 and 14CR-1825, as well as Count 2 of this indictment, as a predicate offense for this offense.

{¶ 5} The first indictment was apparently based on evidence obtained via wiretaps and information proffered by cooperating members of the drug dealing group. The second indictment was based on the fruits of a search of Pippins' house at the conclusion of the wiretap investigation. The third indictment was intended to correct perceived deficiencies in the first two attempts to indict a pattern of corrupt activity.

{¶ 6} On July 16, 2014, State of Ohio, plaintiff-appellee, filed a motion to join case Nos. 14CR-1320, 14CR-1823, and 14CR-2869 into a single case for trial. On December 12, 2014, Pippins filed a motion to suppress the wiretap phone calls. On December 23, 2014, the state filed a memorandum and attached copies of the warrant applications and materials related to the wiretaps.

{¶ 7} The trial court did not issue any written ruling on the motions, but it held a hearing on them on December 12, 2014. At the hearing, the trial court appeared to suggest the issue of joinder had been taken care of at a previous status conference, but the record does not reflect any such disposition and the state suggested perhaps the issue had not been resolved. Although Pippins' trial counsel never filed a formal severance motion, counsel did join a renewed motion for severance at the start of trial at which time the trial court noted the objection and stated, as it had in the December 12, 2014 hearing, that it had already ruled on such objections. During the December 12, 2014 hearing, the parties also discussed dismissing two of the counts for engaging in a pattern of corrupt activity and the two counts related to marijuana, but no dismissal was ever filed. The trial court suggested that once the dismissal took place, the indictments would essentially be consolidated and renumbered for trial. The defense objected that it was extremely challenging to determine which counts were going forward to trial or to match up conduct with the generic allegations in the several indictments, noting that it had never been provided with a sufficiently detailed bill of particulars. Defense also suggested that for appellate purposes, dismissals and renumbering should be put on the record. The prosecution responded to the lack of clarity by indicating that it would go through the evidence with defense counsel to explain which matters in the indictment were supported by which evidentiary items and indicated that it had prepared a chart of the offenses.

{¶ 8} No order consolidating the cases or joining the defendants for trial was ever filed or read into the record. According to statements made during trial, the counts were, in fact, renumbered. Yet, no amended or renumbered indictment was ever filed. Although an e-mail chain was filed mid-trial that sets forth the wiretap files that correspond to each count in the Morris indictment in case No. 14CR-1315, no detailed bill of particulars was filed and no chart showing the relationship between the renumbered counts and the original indictments was ever filed. Although there was a listing of renumbered offenses within the jury instructions, a copy of the jury instructions was not filed, and the trial court did not read that portion of the jury instructions into the record when it orally instructed the jury. While the trial court noted on the first day of trial that the pattern of corrupt activity counts in the first two indictments were being dismissed, no entry ever issued to that effect. Although the verdict forms ultimately did not include any marijuana offenses, no dismissal entry was ever filed as to those counts. Regardless, Pippins and two other defendants were tried together before a jury in a four-week trial in early 2015.

{¶ 9} At trial, two detectives testified to the results of the wiretapping operation and played several hours of recorded telephone calls for the jury in which Pippins discussed drug dealing with his co-defendant, Percy R. Burney, Sr., and with other members of the alleged enterprise. In every telephone recording presented by the state, Pippins was one of the speakers. A great number of the calls presented were explicitly about transactions for drugs in which Pippins was either the buyer or seller. There were also two calls in which Pippins requested Burney procure a drug addict to test the potency of Pippins' drugs. There were a series of calls regarding an incident where a customer of Pippins robbed him, and Pippins sought to find the robber and contacted sources, including Burney, to obtain guns. Then, following a shooting at which the robber was the target, additional calls were presented in which Pippins discussed the shooting and sought to dispose of a gun and deflect blame. Some recorded jail calls were also played for the jury, including one where Pippins discussed retaliation against a former co-defendant who was planning to testify against him.

{¶ 10} A detective who ran surveillance for the investigation testified that generally the movements of the persons overheard talking on the telephone calls could be and were observed by surveilling them. However, he admitted he never actually saw anyone with drugs, and another prosecution witness admitted they had not surveilled the shooting and were unable to stop it from occurring.

{¶ 11} Another detective and an FBI agent testified regarding the information contained in various phones that were seized when police searched houses associated with the targets of the wiretap investigation on March 7, 2014. Two detectives authenticated photographs taken during the execution of search warrants and presented evidence recovered at the scene of the shooting, which was alleged to have been an attempt by Pippins to target a man who robbed him. The state introduced testimony and stipulations regarding the drugs and weapons found during the searches of Burney's and Pippins' residences. The parties also stipulated Pippins' prior record was such that he was forbidden from possessing a firearm.

{¶ 12} Former co-defendants, Morris, Tyler Griffin, and Larry Stevenson, who agreed to cooperate with the prosecution in exchange for favorable plea agreements, also testified. Morris confirmed he and Pippins were partners during the period of the wiretap investigation, they pooled their money in order to buy drugs, and split the drug dealing profits evenly between them. He explained they had a Mexican connection from whom they daily purchased heroin, up to 36 ounces at a time, and on four occasions they purchased two kilos at once. Morris detailed how he and Pippins carried out the shooting together—Pippins as the trigger man and Morris as the driver. At some juncture, however, Morris had started to become less involved in the drug trade, and Pippins took over more responsibility. Morris testified the day they were arrested Pippins had obtained drugs from the Mexican connection. Morris added he feared retaliation from his former co-defendants as a result of his decision to testify and stated Pippins had explicitly threatened to burn down his house if he testified.

{¶ 13} Griffin testified he and Pippins...

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