State v. Roberts
| Decision Date | 18 January 2023 |
| Docket Number | L-20-1171 |
| Citation | 2023 Ohio 142 |
| Parties | State of Ohio Appellee v. Dominique Roberts Appellant |
| Court | Ohio Court of Appeals |
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M Jarrett, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
DECISION AND JUDGMENT
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, which sentenced defendant-appellant, Dominique Antonio Roberts, after a jury convicted him of three of four felony offenses with firearm specifications. For the reasons set forth below, this court affirms, in part, and reverses, in part, the judgment of the trial court.
{¶ 2} Appellant sets forth 14 assignments of error in this appeal:
1. The trial court erred when it denied Mr. Roberts' motion to suppress the overly suggestive and improperly administered identification of Mr. Roberts in violation of the statute and due process under the Ohio and United States constitutions.
2. The trial court erred when it, over objection, permitted State to recall Dewey Edwards (who was uncharged owner of the murder weapon and the vehicle alleged to be used in the acts) after his testimony concluded so that Mr. Edwards could change his testimony and identify Mr. Roberts after a conversation in the hall with the prosecutor.
3. The trial court erred in admitting evidence over objection and in instructing the jury, over objection, that it could infer guilt from Mr. Roberts allegedly refusing to open his mouth for a DNA swab.
4. The trial court erred and violated due process under the Ohio and United States Constitutions, when [it] prevented Mr. Roberts from fully impeaching the testimony of an alleged co-conspirator based upon inapplicable Evid.R. 404(B).
5. The trial court erred when it permitted the State, over objection, to admit an alleged co-conspirator's alleged prior consistent statements as nonhearsay under Evid.R. 801(D)(1)(b) when the prior statement was NOT made before the motive to fabricate came about. (Emphasis sic.)
6. The trial court erred in admitting, over objection, hearsay statements of an alleged co-conspirator without a prima facie case of the underlying conspiracy being demonstrated by independent evidence.
7. The trial court erred in not instructing the jury on lesser included offenses.
8. The cumulative effect of the trial court's errors deprived Mr. Roberts of a fair trial.
9. The State produced insufficient evidence to sustain a conviction on any charge, the Constitutions of the United States and Ohio require that Mr. Roberts be discharged.
10. The jury's verdict was contrary to the manifest weight of the evidence.
11. Mr. Roberts' right to a speedy trial under Ohio statute law and the Constitutions of Ohio and the United States was violated when he was held in custody for over a year prior to trial.
12. Mr. Roberts was denied the equal protection of law guaranteed by the Ohio Constitution and the Fourteenth Amendment to the U.S. Constitution due to the selection process and the prosecution's use of peremptory and for-cause challenges to jurors and the selection process violated his rights to due process and an impartial jury.
13. The trial court committed plain error when it incorrectly imposed an indeterminate sentence as purportedly required by the "Reagan Tokes" law as the statutory scheme violates the separation of powers established in the Ohio Constitution.
14. The trial court erred when it imposed consecutive sentences when all three counts should have merged for purposes of sentencing.
{¶ 3} This appeal originated from four felony indictments issued on July 11, 2019, by a Lucas County Grand Jury against defendant-appellant and co-defendants Adrian Eaton, Darion Martin, and Justin Wright: one count of aggravated murder, a violation of R.C. 2903.01(B) and (F) and an unspecified felony under R.C. 2929.02; one count of murder, a violation of R.C. 2903.02(B) and an unspecified felony under R.C. 2929.02; one count of aggravated robbery, a violation of R.C. 2911.01(A)(1) and a first-degree felony under R.C. 2911.01(C); and one count of aggravated burglary, a violation of R.C. 2911.11(A)(2) and a first-degree felony under R.C. 2911.11(B). Each of the foregoing counts included a firearm specification under R.C. 2941.145(A), (B), (C) and (F).
{¶ 4} The jury trial commenced on August 3, 2020. The jury heard testimony from 25 witnesses, and the trial court admitted 229 exhibits into evidence. The following is a summary of events. On July 6, 2019, at around 3:00 a.m., the armed appellant, with two armed co-defendants, Mr. Wright and Mr. Eaton, and while co-defendant Mr. Martin waited with the getaway car, planned and executed a robbery on their second visit to Apartment B of 1324 Ironwood Avenue, East Toledo, Lucas County, Ohio. On the first visit earlier that evening, Mr. Wright and Mr. Eaton purchased marijuana from a victim, Tyler Carr, and hung out at the apartment with a few people playing video games, drinking, and smoking while appellant and Mr. Martin remained with the car. Eventually all four codefendants drove off to find more drugs and to stop at a gas station, though not to purchase gas for the car, during which the plan to rob with guns drawn was formed, and they all returned to the apartment. Mr. Martin again remained with the getaway car.
{¶ 5} Within minutes of, but separately from, Mr. Wright and Mr. Eaton, with guns drawn, entering the apartment from the front, appellant entered the apartment from the rear, loudly announced the robbery while pacing with his gun to complete the theft of money, wallets, guns and drugs from those victims present, including David Zeller, Shayne Jackson, and Mr. Carr. The gun used by Mr. Wright discharged five bullets at the crime scene, which were matched with bullets recovered from peoples' bodies and with the recovered shell casings: three hit Mr. Carr, killing him; one hit another visitor, Joshua Taylor, who survived but did not testify at trial; and the fifth bullet hit appellant in the groin, who also survived. The gun used by appellant discharged at least two bullets at the crime scene.
{¶ 6} The three co-defendants burst from the apartment and entered the getaway car driven by Mr. Martin. Mr. Wright had accidentally shot appellant in the groin and helped him to the car, where appellant bled while in the backseat. Soon after, the getaway car ran out of gas and stalled on the Craig Street Bridge. The co-defendants decided to abandon the car and walk away, but appellant was too injured to walk. To receive medical attention, he developed a story to tell 9-1-1 that while he was walking at that hour, he was the victim of a drive-by shooting. Police arrived and then an ambulance transported appellant to a nearby hospital, St. Vincent's. The police investigation was already underway at 1324 Ironwood Avenue, and now it expanded to the abandoned car and the area where they found appellant. Appellant was arrested on July 6, 2019.
{¶ 7} Following an eight-day trial and deliberations, on August 13, 2020, the jury found appellant not guilty of aggravated murder, and guilty of murder with firearm specification, guilty of aggravated robbery with firearm specification, and guilty of aggravated burglary with firearm specification. Sentencing occurred on September 4, 2020. Appellant timely appealed.
{¶ 8} We will address appellant's assignments of error out of order.
{¶ 9} Appellant's eleventh assignment of error argues his prima facie case for the violation of his constitutional right to a speedy trial is evident because, citing State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 88, "it would appear from the face of the charges that the 3 for 1 provision in the speedy trial statute would apply here and that the 90 [days] would have expired but for the improper allocation of the continuances of the Sept. 13, 2019 trial date in August of 2019, as well as the attribution of the February 12, 2020 to April continuance to Mr. Roberts." We disagree.
{¶ 10} Appellant does not provide us with a clear calculation with which to evaluate his speedy trial claim, and merely points to the two continuances, which we review for an abuse of discretion. State v. Drain, Slip Opinion No. 2022-Ohio-3697, ¶ 54. Trial judges have the authority to grant or deny continuances, which is entrusted in the judge's broad, sound discretion, on a case-by-case basis. Id., citing In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, ¶ 7, and State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981), syllabus. Abuse of discretion "'connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.'" Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 11} Both the Ohio and United States Constitutions guarantee the right to a speedy trial. State v Wright, 6th Dist. Lucas No. L-20-1206, 2022-Ohio-1537, ¶ 82. "The General Assembly has enacted R.C. 2945.71 through 2945.73 in a legislative attempt to quantify a defendant's right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution." State v. Montgomery, 61 Ohio St.2d 78, 79-80, 399 N.E.2d 552 (1980). Where appellant was charged with felonies, he must be brought to trial within 270 days after his July 6, 2019 arrest. R.C. 2947.71(C)(2). The speedy trial calculation begins the day after arrest. State v. Williams, 6th Dist. Lucas No. L-21-1111, 2022-Ohio-2439, ¶ 40. However, for the duration...
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