State v. Turner
| Decision Date | 20 October 2014 |
| Docket Number | Case No. 2014CA00058 |
| Citation | 2014 Ohio 4678 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. MICHAEL DEAN TURNER Defendant-Appellant |
| Court | Ohio Court of Appeals |
2014 Ohio 4678
STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL DEAN TURNER Defendant-Appellant
Case No. 2014CA00058
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 20, 2014
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2013CR1788
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee
JOHN FERRERO
Stark County Prosecutor
BY: KATHLEEN TATARSKY
110 Central Plaza South, Ste. 510
Canton, OH 44702
For Defendant-Appellant
DEREK LOWRY
Crawford, Lowry & Associates
116 Cleveland Avenue N.W., Ste. 800
Canton, Oh 44702
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Gwin, P.J.
{¶1} Appellant Michael Turner ["Turner"] appeals his convictions and sentences on one count of felonious assault and one count of tampering with evidence after a jury trial in the Stark County Court of Common Pleas.
The 9-1-1 call.
{¶2} On Thursday, November 14, 2013 around 9:00 pm, Doris Henderhan placed a call to 9-1-1 from her apartment on Dueber Avenue in Canton, Ohio. She told dispatch that she heard a lot of fighting at her neighbor's apartment - apartment number three - between the tenant and her boyfriend. She told dispatch that "Vetta" was hurt lying on the floor with blood on her shirt. She identified the boyfriend as a Mike Turner. Henderhan told dispatch the boyfriend would not let her in and tried to shut the door on her, telling her he was going to take "Vetta" to the hospital. Henderhan decided to call 9-1-1 for an ambulance.
{¶3} Canton Police Officers Anthony Jackson and Scott Jones were dispatched for the trouble call. As they got to the entrance door, they saw a male walking down the stairs. He was carrying a bag of dog food, a dog bowl, a dog leash and a little black puppy. The male told the officers his name was Michael Taylor. That raised a suspicion, but the officers could not remember the exact name dispatch entered as the potential assailant, so Officer Jackson called dispatch. Meanwhile, the officers allowed the male to leave to take the puppy out. Being suspicious, however, the officers followed the male and saw him take something out and throw it with his right hand. Officer Jones testified,
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He [Turner] reaches into his coat, pulls out something, throws it, it appears to be a T-shirt, and then I see the knife come free from the T-shirt, hit the top of the shed belonging to the witness's house, rolls down the shed and into a trash can, at which point I realized it was evidence, and we ran up to him and apprehended him.
1T. at 222. Dispatch came back with the suspect's name and Turner was placed in handcuffs and arrested. Seeing blood on the T-shirt, Officer Jackson immediately returned to the apartment and saw the victim - Lavetta Moore - lying on the floor by the front door. She had no top on and Officer Jackson observed blood from multiple puncture marks in and around her upper chest and shoulder area. Moore was incoherent and fading in and out of consciousness. An ambulance arrived and took Moore to Aultman Hospital.
The investigation.
{¶4} After Turner was secured, Officer Jones walked around the scene with his flashlight. He observed the white T-shirt covered in blood in the back yard of a neighbor. He observed the knife thrown by Turner in the garbage can in the same back yard. The T-shirt and knife were photographed and collected by Police Officer Jeffrey Weller.
{¶5} Also photographed and collected was a knife found on the couch in the victim's residence. The knife found in the garbage can - a paring knife with a three-inch blade - and the bloodied t-shirt were tested for fingerprints and DNA by the State BCI crime laboratory in Richfield, Ohio.
{¶6} Detective Robert Redleski was assigned to investigate the case. He went to the hospital to talk with Moore and took a taped statement from her. Moore told
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Detective Redleski that Turner started getting mean, poked her in the head, hit her in the eye, went to get a knife, pushed her down and stabbed her. Redleski also talked with Doris Henderhan and Paul Grant, the neighbor in whose backyard the bloodied T-shirt and paring knife were found. Grant told the officers the items were not his. Redleski also obtained DNA samples from Moore and Turner.
{¶7} The DNA samples were sent to the State BCI crime laboratory, together with the shirt and sweatpants worn by Turner on the night he was arrested. Turner's shirt and sweatpants contained the blood of the victim.
The trial.
{¶8} Turner was indicted by a Stark County Grand Jury on one count of felonious assault a violation of R. C. 2903.11(A)(2), a felony of the second degree and one count of tampering with evidence a violation of R. C. 2921.12(A)(1), a felony of the third degree. The charges stemmed from the stabbing of Lavetta Moore on November 14, 2013 with a paring knife, removing her bloodied shirt and disposing of the shirt and knife in the backyard of a neighboring home, Bill of Particulars, Jan. 3, 2014.
{¶9} On March 17, 2014, Turner's jury trial began. The trial court, during voir dire, asked the potential jurors whether they or any member of their families or close friends were ever involved with the criminal justice system. Juror No. 29 indicated he was charged and found guilty of possession of cocaine in 2010 in the Stark County Common Pleas Court. He was found guilty, sentenced to three years intensive supervision and did eight months. When asked if he thought he was treated fairly, Juror No. 29 responded, "I guess so." When asked if he thought the City of Canton police officers treated him fairly, the juror responded, "It was okay. But overall — overall, I give
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like 99.9 percent satisfaction overall rate on everything." The juror then stated that he could be fair and impartial. The state exercised a peremptory challenge as to Juror No. 29.
{¶10} Moore testified that Turner did not stab her; rather she stabbed herself. She disavowed her previous statements to investigating officers, claimed she did not remember them because she was under the influence of drugs, alcohol, morphine and mental illness. Indeed, she wrote two affidavits that were presented to the jury again stating she stabbed herself and put her bloody shirt outside where the police officers found it.
{¶11} Because of the inconsistent statements made by Moore, the trial court declared her a hostile witness and allowed the state to cross-examine her. The court also appointed an attorney to assist the witness during her testimony. As a result, at times Moore pleaded the Fifth Amendment in answer to questions.
{¶12} The jury was excused and the trial court reminded Moore of her responsibility - to testify truthfully. If she thought she might be criminally incriminating herself, she may ask the trial judge if she could consult with her counsel.
{¶13} Turner called no witnesses and did not testify. The parties stipulated to the laboratory report outlining the DNA evidence.
{¶14} After hearing the evidence and receiving instructions from the trial court, the jury returned with a verdict of guilty to the charges of felonious assault and tampering with evidence.
{¶15} Turner raises four assignments of error,
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{¶16} "I. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO USE A PEREMPTORY CHALLENGE IN A RACIALLY DISCRIMINATORY FASHION.
{¶17} "II. THE TRIAL COURT DENIED THE APPELLANT HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS WHEN IT PREVENTED A WITNESS FROM INVOKING HER FIFTH AMENDMENT RIGHT NOT TO TESTIFY.
{¶18} "III. THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE JURY WAS INFORMED THAT THE APPELLANT WAS IN CUSTODY.
{¶19} "IV. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE."
{¶20} A defendant is denied equal protection of the law guaranteed to him by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution when the state places the defendant on trial before a jury from which members of the defendant's race have been purposely excluded. Strauder v. W. Virginia, 100 U.S. 303, 305, 25 L.Ed. 664(1880); State v. Hernandez, 63 Ohio St.3d 577, 589 N.E.2d 1310(1992); State v. Bryant, 104 Ohio App.3d 512, 516, 662 N.E.2d 846(6th Dist. 1995). The "equal protection clause forbids a prosecutor from challenging potential jurors solely on account of their race or on the assumption that jurors of the same race as the defendant will be unable to impartially consider the state's case against the defendant." State v. Bryant, 104 Ohio App.3d 516; Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).
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{¶21} In his first assignment of error, Turner maintains that the trial court failed to conduct a proper constitutional analysis as outlined in Batson v. Kentucky, in determining that the state was not racially motivated in excluding the only African-American from the jury through the use of a peremptory challenge. See, Hicks v....
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