¶1 Defendant-appellant Anthony L. Brown appeals his conviction and sentence for 2 counts that aggravated robbery, in violation the R.C. 2911.01(A)(1), both felonies the the an initial degree.
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¶2 Brown filed a motion for leave to file a delay appeal v this Court on January 6, 2011. Top top January 28, 2011, we granted Brown"s motion, and also he filed the prompt appeal.
¶3 The event which develops the basis because that the instant appeal emerged between two and also three p.m. On may 3, 2010, as soon as Carrie Yount and Nacole DeBusk were robbed when sunbathing top top the ago porch that Yount"s residence located at 640 Kenwood path in Dayton, Ohio. Yount testified that while DeBusk spoke to one unidentified white male who remained at the bottom the the porch steps, 3 black males approached the porch. Among the black males request Yount and also DeBusk if they had a cabinet phone the he can use. When DeBusk refuse his request, the black male pulled the end a handgun and walked increase the porch actions towards the women. The equipped male placed the handgun as much as Debusk"s head and also demanded money. The various other two black color males, one of whom was later figured out as Brown, remained standing at the bottom the the steps.
¶4 Yount testified that while the equipped male maintained the handgun pointed in ~ DeBusk"s head, Brown directed him to take the women"s cell phones. Brown also ordered the gunman come "check
¶5 Yount additional testified that while the rob was acquisition place, a white Cadillac journey up and briefly stopped behind Yount"s residence before quickly steering away. Yount testified that Brown yelled, "Let"s go, come on!" The gunman ran out of Yount"s residence, and also the 3 suspects ran throughout the street and entered an older silver-green Pontiac grand Am through some body damage and drove away. After the suspects left, Debusk discovered that the gunman had actually stolen money and also credit cards out of her purse as soon as he entered Yount"s residence throughout the robbery.
¶6 Yount and DeBusk ran come a neighbor"s residence and also called the police in order to report the robbery. The female victims, however, were not interviewed through the police until might 6, 2010, when Detective william Elzholz and also Officer Matthew Heiser indigenous the Dayton Police Department speak to both women individually because that the function of reflecting them photo spreads in an effort to identify the perpetrators. The diffusion were displayed to each woman individually at different locations. Both women figured out Brown together the individual that stood at the bottom the the steps and also gave instructions to the gunman throughout the robbery. ~ above the same date, ~ a short chase, Brown to be arrested if driving a vehicle which purportedly suitable the summary of the automobile in i beg your pardon the three suspects left the step of the robbery.
¶7 Brown was consequently indicted for 2 counts of aggravated robbery and one counting of failure to comply. Both aggravated rob counts to be accompanied by firearm specifications. In ~ his arraignment ~ above June 24, 2010, Brown stood mute, and the attempt court gone into a plea of no guilty top top his instead of to every one of the counts in the indictment. Brown filed a activity to suppress the photo-spread identifications on July 7, 2010. After ~ a hearing organized on July 30, 2010, the psychological court overruled Brown"s motion to suppress, issuing result of fact and conclusions of regulation from the bench in ~ the finish of the hearing.
¶8 On respectable 23, 2010, Brown pled no challenge to one count of fail to comply with the signal the a police officer. ~ his no dispute plea, Brown filed a motion in limine requesting that the State be barred from any kind of mention of Brown"s trip from the police officers before his arrest on may 6, 2010. The psychological court granted Brown"s motion. The case then proceeded come trial on the two continuing to be aggravated rob counts with the accompanying firearm specifications. Brown to be subsequently uncovered guilty ~ above both counts the aggravated robbery, however the jury to be unable to reach a verdict regarding the firearm specifications. The attempt court sentenced Brown to an accumulation term the eleven years in prison: come wit, nine years because that each counting of aggravated robbery to be offered concurrently to one another, however consecutive to two years for the single count of fail to comply.
¶9 it is from this referee which Brown currently appeals.
¶10 since they space interrelated for the purposes of ours analysis, Brown"s first, second, and third assignments the error will be disputed as follows:
¶11 "THE trial COURT VIOLATED ANTHONY BROWN"S DUE process RIGHTS and ABUSED that DISCRETION as soon as IT refuse MR. BROWN"S inquiry FOR A MISTRIAL BASED ~ above WITNESS TESTIMONY that A PREJUDICIAL PRIOR bad ACT."
¶12 "THE trial COURT VIOLATED ANTHONY BROWN"S DUE procedure RIGHTS and also COMMITTED level ERROR as soon as IT fail TO declare A MISTRIAL due to IRREPARABLE, PREJUDICIAL declaration UNRELATED to THE CRIMES because that WHICH HE to be ON TRIAL."
¶13 "ANTHONY BROWN to be DEPRIVED the HIS CONSTITUTIONAL right TO THE reliable ASSISTANCE that COUNSEL."
¶14 top top review, we have actually located number of instances of trial testimony which room problematic insofar together they space prejudicial, in some instances severely, come Brown and his capacity to obtain a same trial. Noted below space the prejudicial examples of testimony adduced throughout trial:
1) Objectionable Testimony that Officer M. Heiser
¶15 "The State: every right. You claimed you knew just how Det. Elzholz emerged the photo spread?
¶16 "Officer Heiser: Yes.
¶17 "Q: Okay. And how to be that?
¶18 "A: There was a ahead robbery."
¶19 Brown"s defense counsel objected to Officer Heiser"s statement about a vault robbery. Defense counsel likewise moved for a brand-new trial. The attempt court continual the objection to the testimony and ordered the an answer stricken native the record. The psychological court, however, denied defense counsel"s activity for a brand-new trial. Top top appeal, Brown suggests that the comment was very prejudicial due to the fact that it attached him to a previous robbery and also was inadmissible as a prior bad act under Evid. R. 404(B). Brown asserts that Officer Heiser"s testimony improperly developed that he had a propensity to commit the crimes for which he was presently charged.
¶20 A mistrial have to not be ordered merely because of part error or irregularity in ~ trial. State v. Dennis, 10th Dist. No. 08AP-369, 2008-Ohio-6125, 2008 WL 5049749, ¶ 23. Mistrials must be asserted only once the ends of justice therefore require, and also a fair trial is no much longer possible. State v. Garner (1995), 74 Ohio St.3d 49, 59. The decision even if it is to provide a mistrial lies in ~ the psychological court"s sound discretion. Id. ""Abuse that discretion" has been identified as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. It is come be meant that most instances the abuse that discretion will an outcome in decisions the are merely unreasonable, fairly than decision that space unconscionable or arbitrary.
¶21 "A decision is insignificant if there is no sound reasoning procedure that would assistance that decision. The is not sufficient that the reviewing court, to be it deciding the worry de novo, would certainly not have found that reasoning process to be persuasive, possibly in see of countervailing reasoning procedures that would assistance a contrary result." AAAA Enterprises, Inc. V. Flow Place ar Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161.
¶22 Normally, in determining whether the attempt court properly exercised its discretion, reviewing court look to even if it is (1) "there
2) Objectionable Testimony the Carrie Yount
¶23 "The State: and when you checked out your ar
¶24 "Yount: Yeah, us were upset. And my friend had urine everywhere her, i mean, she to be hysterical. So we were simply kind of pretty much calm her under
¶25 "Q: to be you emotional as well?
¶26 "A: i mean, yeah. I wasn"t also much. Ns was pretty much like, what simply happened? I have to live in this home with mine kids, what simply happened? i was pretty much - that was pretty much my thing.
¶27 "Q: to be you in shock?
¶28 "A: Yeah, i was pretty lot like this - friend know, karma, like just how did this happen to me?
¶29 "Q: space you still scared?
¶30 "A: Well, I"m scared due to the fact that the family members that Mr. Brown have actually sent death notes come my home -
¶31 "Defense Counsel: Objection.
¶32 "The Court: Sustained. Ignore that response."
¶33 The sixth Amendment come the U.S. Constitution guarantees that "the accused shall gain the ideal to a *** trial, by an impartial jury *** (and) be challenged with the witnesses prior to him ***." Parker v. Gladden (1966), 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420. "The evidence developed versus a defendant candlestick come indigenous the witness stand in a publicly courtroom where there is complete judicial protection of the defendant"s appropriate of confrontation, that cross-examination, and of counsel." Turner v. State the Louisiana (1965), 379 U.S. 466, 472-473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424. "The entire thrust of rules of evidence and the various other protections attendant upon the modern-day trial is to save extraneous influences out of the courtroom." Id.
¶34 "Error in the join or exclusion of proof in a criminal trial must be considered prejudicial uneven the court can declare, past a reasonable doubt, that the error was harmless, and unless there is no reasonable probability the the evidence, or the exemption of evidence, may have added to the accused"s conviction." State v. Bayless (1976), 48 Ohio St.2d 73, 106, 357 N.E.2d 1035, vacated on other grounds, Bayless v. Ohio (1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155. The state bear the burden of demonstrating harmless error. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15.
¶35 Although, defense counsel"s objection to be sustained, and also the court directed the jury to overlook Yount"s response, defense counsel walk not relocate for a mistrial. This exchange emerged on the an initial day the the trial, together Yount to be the an initial witness come testify on instead of of the State.
¶36 Initially, we keep in mind that a jury will generally be presumed to monitor an indict to ignore inadmissible evidence inadvertently gift to it, uneven there is an overwhelming probability that the jury would be can not to monitor the court"s instructions and a strong likelihood the the result would be damaging to the defendant. Greer v. Fearbut (1987), 483 U.S. 356, 107 S.Ct. 3102, 97 L.Ed.2d 618. Yount"s statement about the alleged fatality threats indigenous Brown"s household was plainly prejudicial, completely irrelevant, and unsubstantiated ~ above this record. Brown argues that ~ Yount was permitted to testify concerning the alleged death threats, a fair trial to be no much longer possible, and also a reasonable probability existed the Yount"s comment to be sufficiently detrimental to overcome any type of confidence in the result of the jury"s verdict. Further, had a mistrial to be requested, Brown asserts that a reasonable probability exists the the an outcome of the attempt would have actually been different, to wit: the mistrial would have actually been granted, and Brown would have received a new trial.
¶37 simply put, Yount"s explain so at an early stage in the proceedings vilified Brown and also was extremely prejudicial. The psychological judge"s instruction to the jurors was poor as a issue of legislation to healing the prejudicial impact of Yount"s statement. "We will not thoughtlessly assume that a jury is able to monitor a *** court"s indict to ignore the elephant in the consideration room." U.S. V. Morena (C.A.3, 2008), 547 F.3d 191, 197. The State presented the prejudicial material by a concern that was itself improper
3) Testimony the Officer Susan Benge
¶38 "The State: Did girlfriend have any other call with Ms. Carrie Yount after ~ that? After friend - as soon as she came into the police station?
¶39 "Officer Benge: No, sir.
¶40 "Q: Okay. To be Mr. Brown taken right into custody with concerning a web traffic stop
¶41 "A: the wasn"t a traffic stop. He was - there to be aggravated bolt warrant out for him at that time and also he had fled from other officers."
¶42 back Officer Benge"s statement plainly violated the trial court"s ruling regarding the liminal movement barring the State from discussing the circumstances under i m sorry Brown was apprehended on may 6, 2010, defense counsel did not object nor did he inquiry a mistrial given the State"s line of questioning and Officer Benge"s answer.
¶43 "We review the alleged instances that ineffective help of psychological counsel under the 2 prong analysis collection forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the supreme Court that Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * * . Pursuant come those cases, trial counsel is licensed has been granted to a strong presumption the his or her conduct falls within the wide variety of reasonable assistance. Strickland, 466 U.S. In ~ 688. To reverse a conviction based on ineffective help of counsel, it need to be demonstrated the trial counsel"s conduct fell below an objective typical of reasonableness and that his errors to be serious enough to produce a reasonable probability that, yet for the errors, the an outcome of the psychological would have actually been different. Id. Hindsight is not permitted to distort the evaluate of what to be reasonable in light of counsel"s perspective at the time, and a to discuss decision worrying trial strategy cannot kind the communication of a detect of ineffective assistance of counsel." (Internal citation omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31.
In irradiate of the foregoing, defense counsel"s fail to thing to Officer Benge"s declare was definitely deficient. The was also deficient for defense counsel come fail to request a mistrial after Yount stated that she had received fatality threats indigenous Brown"s family.
¶44 viewed together, the errors make by defense counsel, and the improper statements make by policemans Heiser and Benge and also Carrie Yount required that the trial court explain a mistrial. The cumulative result of the improper admissions and also deficient performance of defense counsel undermines any kind of confidence in the outcome and also rendered that manifestly evident that a same trial to be no longer possible. Accordingly, the "ends the justice required a mistrial," and also the psychological court erred once it failed to explain one.
¶45 Finally, we keep in mind that the instant instance does not existing a case where the defendant to be convicted by overwhelming evidence. There was no physics evidence, the complainants did not paper a report v the police until 2 days after the crime, and there is no indication that physical explanation of the assailants were ever detailed to police (other 보다 "one was much shorter than the other"). Significantly, the just independent witness, a neighbor, indicated that the complainants called her the they were robbed by 2 men, no three. The State"s case versus Brown hinged upon the credibility of the eyewitness testimony the Yount and DeBusk. Significantly, return a Telfaire accuse was no necessarily required, we keep in mind that there is no justification on this record not to have requested and also received one together well. U.S. V. Telfaire (C.A.D.C. 1972), 469 F.2d 552.
¶46 Brown"s fourth and also final assignment the error is as follows:
¶47 "THE psychological COURT ERRED by IMPOSING COURT costs WITHOUT NOTIFYING ANTHONY BROWN the FAILURE TO salary THOSE costs MAY result IN THE COURT"S bespeak HIM to PERFORM ar SERVICE."
¶48 In irradiate of disposition with respect come Brown"s first, second, and third assignments of error, his fourth assignment is calculation moot.
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¶49 Accordingly, Brown"s conviction is reversed and vacated, and this matter is remanded because that proceedings consistent with this opinion.