[Cite as State v. Bolan, 2011-Ohio-4501.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95807
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
RAYMOND BOLAN
DEFENDANT-APPELLANT
JUDGMENT: CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART AND REMANDED FOR RESENTENCING
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-531193 BEFORE: Kilbane, A.J., Jones, J., and Keough, J.
RELEASED AND JOURNALIZED: September 8, 2011 ATTORNEYS FOR APPELLANT
Steve W. Canfil 1370 Ontario Street Standard Building Suite 2000 Cleveland, Ohio 44113
Michael J. Cheselka, Jr. Michael J. Cheselka, Jr., LLC 75 Public Square - Suite 920 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor Kevin R. Filiatraut Brad S. Meyer Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Raymond Bolan (Bolan), appeals his
convictions and sentence. Finding merit to the appeal, we affirm his
convictions, vacate his sentence in part, and remand for resentencing.
{¶ 2} In November 2009, Bolan was charged in a five-count indictment.
Count 1 charged him with aggravated murder and carried a mass murder
specification and one- and three-year firearm specifications. 1 Count 2
charged him with murder and carried a one- and three-year firearm
specification. Count 3 charged him with felonious assault and carried a one-
and three-year firearm specification. Count 4 charged him with attempted
murder and carried a one- and three-year firearm specification. Count 5
charged him with felonious assault and carried a one- and three-year firearm
specification. Counts 1-3 identify Jerome Fears (Fears) as the victim and
Counts 4-5 identify Basheer Wheeler (Wheeler) as the victim. The matter
proceeded to a jury trial, at which the following evidence was adduced.
{¶ 3} On November 4, 2008, Fears and Wheeler were walking on Central
Avenue in Cleveland, Ohio. They were in the CMHA housing projects on
1The State dismissed the mass murder specification prior to trial. their way to Wheeler’s brother’s house, when they encountered a group of
males gathered on the sidewalk. Bolan, who was one of the males in the
group, told Fears to “take off his hoodie. Nobody can be walking with hoodies
around here.” Fears took his hoodie off and continued walking with Wheeler.
Bolan then asked the group of males, “who got a hammer?” One of the males
gave Bolan a gun. Wheeler looked back twice and observed Bolan pointing
the gun at him and Fears, while they continued walking. Bolan then fired the
gun at them six times. Wheeler ran to his brother’s house and did not see
what happened to Fears, who was shot in the back and died on the scene.
Wheeler testified that he has seen Bolan many times before, but did not know
his name. He testified that he described the shooter to Fears’s girlfriend, who
told him “that’s Ray Ray.”
{¶ 4} Shortly thereafter, Cleveland and CMHA police officers arrived on
the scene. Detective William Higginbottham (Higginbottham) of the CMHA
Police Department testified that he responded to a call of shots fired in the
2700 block area of Central Avenue. A female on the scene advised
Higginbottham that Wheeler was with Fears when the shooting occurred.
She then took Higginbottham to see Wheeler. Higginbottham spoke with
Wheeler and relayed this information to Detective Joselito Sandoval
(Sandoval) of the Cleveland Police Department.
{¶ 5} Sandoval testified that he initially interviewed Wheeler in a marked zone car on the night of the incident and took Wheeler’s formal
statement at the police station in December 2008. On the night of the
incident, Wheeler told Sandoval that he did not know the names of any of the
males in the group. He described the shooter as a black male in his mid to
upper 20’s, approximately 5’9”, “thin build but cocky,” wearing a white hoodie,
blue jeans, and prescription glasses. At the station, he described the shooter
as “a black male about 21 years old. He is about 5 foot 9 inches tall, and has a
muscular build. He has a low haircut, and his face is clean shaven. I think
he has tattoos on his arms, and wears prescription glasses every time I’ve seen
him. He was wearing blue jeans, a pullover type white hoodie, with gold
lettering on the front, and I think boots.” Sandoval testified that Wheeler
identified “Ray Ray” (Bolan) as the shooter from the photo array given to him.
{¶ 6} Helen Ogletree (Ogletree), who testified outside the presence of the
public, stated that on the night of November 4, 2008, she heard gunshots, so
she looked out her window and noticed someone laying on the ground. She
then went outside and observed Fears’s body on the ground and Bolan
standing near him, with a gun in his hand. She also observed another
unknown male standing with Bolan, but she did not know who he was.
Ogletree further testified that she told Fears’s girlfriend that Bolan killed
Fears. Ogletree did not speak with the police on the night of the incident.
During his investigation, Sandoval obtained Ogletree’s name and contacted her. Ogletree gave her statement to the police in July 2009. She described
Bolan as “a black male, * * * in his 20s * * * big and husky and musclebound,
like he just got out of the joint. He wears dark framed glasses and has brush
waves in his short hair. He has a lot of tattoos on his arms and chest.”
Sandoval testified that Ogletree identified “Ray Ray” as the shooter from the
photo array given to her.
{¶ 7} DNA testing on six shell casings found at the scene revealed a
mixture of DNA, which meant that more than one person’s DNA was on the
casings. The DNA expert testified that “Bolan cannot be excluded as a
possible contributor to the partial mixture profile obtained from [the shell
casings.]”
{¶ 8} At the conclusion of trial, the jury found Bolan guilty of all charges
and specifications. The court merged Counts 1, 2, and 3 for purposes of
sentencing and sentenced Bolan to 30 years to life on Count 1. The court also
merged the one- and three-year firearm specifications in Counts 1-5 and
sentenced him to three years on the firearm specification to run consecutive
and prior to Count 1. The trial court sentenced him to three years on each of
Counts 4 and 5 and three years on each gun specification, to be served
concurrent to each other and consecutive to Count 1 for an aggregate of 36
years to life in prison.
{¶ 9} Bolan now appeals, raising the following six assignments of error for review.
ASSIGNMENT OF ERROR ONE
“[Bolan] was denied his right to due process of law when the State presented insufficient evidence to support his convictions for aggravated murder (Fears) and attempted murder (Wheeler).”
ASSIGNMENT OF ERROR TWO
“[Bolan’s] convictions were against the manifest weight of the evidence.”
ASSIGNMENT OF ERROR THREE
“The trial court erred in failing to merge [Bolan’s] convictions for attempted murder and felonious assault toward a single victim.”
ASSIGNMENT OF ERROR FOUR
“In refusing to either secure the attendance of an essential defense witness or grant a reasonable continuance for this purpose, the trial court denied [Bolan’s] right to a meaningful opportunity to present a complete defense, in violation of his rights to compulsory process, confrontation, due process, and a fair trial under the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution and Article I of the Ohio Constitution.”
ASSIGNMENT OF ERROR FIVE
“The trial court abused its discretion when it failed to grant [Bolan’s] motion for new trial and failed to hold a requested hearing concerning newly discovered exculpatory evidence and failing to consider how the newly discovered evidence undermined confidence in the outcome of the trial.” ASSIGNMENT OF ERROR SIX
“The trial court denied [Bolan’s] right to due process and confrontation when it excluded the public during testimony of key witnesses.”
Sufficiency of the Evidence
{¶ 10} In the first assignment of error, Bolan challenges the sufficiency of
the evidence with respect to his aggravated murder and attempted murder
convictions. He argues the State failed to prove that the shooting was the
result of prior calculation and design. Rather, Bolan maintains that the
shooting was a spur-of-the-moment act. He further argues there was no
reliable evidence that anyone attempted to purposefully cause Wheeler’s
death.
{¶ 11} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
900 N.E.2d 565, ¶113, explained the standard for sufficiency of the evidence as follows:
“Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing such a challenge, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.”
Aggravated Murder {¶ 12} In the instant case, Bolan was convicted of the aggravated murder of
Fears under R.C. 2903.01(A), which provides that “[n]o person shall purposely,
and with prior calculation and design, cause the death of another[.]” This
statute was amended in 1973, because “‘[b]y judicial interpretation of the
former Ohio law, murder could be premeditated even though the fatal plan
was conceived and executed on the spur of the moment. * * * The section
employs the phrase, “prior calculation and design,” to indicate studied care in
planning or analyzing the means of the crime, as well as a scheme compassing
the death of the victim. Neither the degree of care nor the length of time the
offender takes to ponder the crime beforehand are critical factors in
themselves, but they must amount to more than momentary deliberation.”’
State v. Hough, Cuyahoga App. No. 91691, 2010-Ohio-2770, ¶13, quoting State
v. Keenan (1998), 81 Ohio St.3d 133, 157, 689 N.E.2d 929.
{¶ 13} In State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d
81, ¶79, the Ohio Supreme Court noted that there is no bright-line rule to
determine whether a defendant acted with prior calculation and design. The
Cassano court acknowledged that “‘prior calculation and design’ is a more
stringent element than the ‘deliberate and premeditated malice’ * * * required
under prior law.” Id., quoting State v. Cotton (1978), 56 Ohio St.2d 8, 381
N.E.2d 190, paragraph one of the syllabus. Specifically, prior calculation and
design requires “‘a scheme designed to implement the calculated decision to kill.’” State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 196, 616 N.E.2d 909,
quoting Cotton at 11.
{¶ 14} The Ohio Supreme Court has stated the factors to consider in
determining whether the defendant acted with prior calculation and design
include: “(1) Did the accused and victim know each other, and if so, was that
relationship strained? (2) Did the accused give thought or preparation to
choosing the murder weapon or murder site? and (3) Was the act drawn out or
‘an almost spontaneous eruption of events’?” State v. Taylor (1997), 78 Ohio
St.3d 15, 19, 676 N.E.2d 82, citing State v. Jenkins (1976), 48 Ohio App.2d 99,
255 N.E.2d 825. “These factors must be considered and weighed together and
viewed under the totality of all circumstances of the homicide.” Jenkins at
102.
{¶ 15} In the instant case, the record reveals that Bolan did not have a
known relationship with Fears, and thus, they did not have a strained
relationship. With respect to the second factor, the evidence demonstrates
that Bolan gave thought in choosing the murder weapon by asking the other
males in the group, “who got a hammer?” Wheeler testified that as he and
Fears walked passed Bolan, Bolan told Fears to “take off his hoodie. Nobody
can be walking with hoodies around here.” Fears took off his hoodie and
continued walking with Wheeler. Bolan then asked for a “hammer,” which is
a gun. This shows that Bolan was not carrying a gun and he made the deliberate choice of asking for a gun to shoot Fears.
{¶ 16} With respect to the third factor, Bolan’s actions went beyond a
momentary impulse, showing that he had formulated a plan to kill. Wheeler
testified that as he and Fears continued walking, he looked back twice and
observed Bolan pointing the gun at them before he fired it. Wheeler testified
that he and Fears were walking for a couple of minutes before Bolan fired the
gun at them. Bolan argues the shooting was a spur-of-the-moment act.
{¶ 17} However, “prior calculation and design can be found even when
the killer quickly conceived and executed the plan to kill within a few
minutes.” State v. Coley, 93 Ohio St.3d 253, 264, 2001-Ohio-1340, 754 N.E.2d
1129. The Ohio Supreme Court held that one’s actions could display a plan to
kill. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996.
In Conway, upon hearing that his brother had been stabbed, Conway retrieved
a gun from his car and began shooting at the alleged perpetrator. The Court
found that “[a]lthough they took only a few minutes, Conway’s actions went
beyond a momentary impulse and show that he was determined to complete a
specific course of action. Such facts show that he had adopted a plan to kill.”
Id. at ¶46, citing State v. Claytor (1991), 61 Ohio St.3d 234, 574 N.E.2d 472;
D’Ambrosio.
{¶ 18} Thus, when viewed in a light most favorable to the State, the
evidence was sufficient to show that Bolan adopted a plan to kill Fears upon discovering that Fears was wearing a hoodie in his neighborhood and that
Bolan had carried out his plan.
Attempted Murder
{¶ 19} Bolan also argues that there is no reliable evidence that anyone
was attempting to purposefully cause Wheeler’s death during the incident.
{¶ 20} In order to convict a person of attempted murder, the State must
prove that the defendant acted purposefully in attempting to take the life of
another. R.C. 2903.02(A). “A jury may find intent to kill where the natural
and probable consequence of a defendant’s act is to produce death, and the jury
may conclude from all of the surrounding circumstances that a defendant had
a specific intention to kill.” State v. Brown, Cuyahoga App. No. 92814,
2010-Ohio-661, ¶52, citing State v. Clark (1995), 101 Ohio App.3d 389, 405,
655 N.E.2d 795.
{¶ 21} In Brown, this court found sufficient evidence of attempted murder
where the State presented evidence that Brown fired his gun at least five
times at the victim and that the victim was hit by three of those five shots. In
the instant case, Wheeler testified that Bolan fired the gun six times at him
and Fears. Wheeler then ran away to his brother’s home. As this court
stated in Brown, “[a] natural and probable consequence of shooting at a person
is that the person will be shot and killed.” Id. Thus, we find sufficient
evidence to sustain Bolan’s conviction for attempted murder of Wheeler. {¶ 22} Accordingly, the first assignment of error is overruled.
Manifest Weight of the Evidence
{¶ 23} In the second assignment of error, Bolan argues his convictions are
against the manifest weight of the evidence.
{¶ 24} With regard to a manifest weight challenge, the “reviewing court asks whose
evidence is more persuasive — the state’s or the defendant’s? * * * ‘When a court of appeals
reverses a judgment of a trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as a “thirteenth juror” and disagrees with the factfinder’s
resolution of the conflicting testimony.’ [Thompkins at 387], citing Tibbs v. Florida (1982),
457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.” State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶25.
{¶ 25} Moreover, an appellate court may not merely substitute its view for that of the
jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered.’” Thompkins at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 485
N.E.2d 717. Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional
case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin.
{¶ 26} Bolan does not challenge a specific conviction, rather he argues the
jury lost its way in finding that he was the shooter. He attacks the testimony
of Wheeler and Ogletree, arguing they did not actually observe Bolan shoot the gun.
{¶ 27} In the instant case, Wheeler identified Bolan in court as the person
who shot at him and Fears. Wheeler testified that Bolan shot at them
because Fears was wearing a hoodie. Wheeler testified that he has seen
Bolan many times before, but did not know his name. He described the
shooter to Fears’s girlfriend, who told him “that’s Ray Ray.” On the night of
the incident, Wheeler described the shooter as a black male in the mid to
upper 20’s, approximately 5’9”, “thin build but cocky,” wearing a white hoodie,
blue jeans, and prescription glasses. When Wheeler met with Sandoval at the
police station in December 2008, he described Bolan as “a black male about 21
years old. He is about 5 foot 9 inches, and has muscular build. He has a low
haircut, and his face is clean shaven. I think he has tattoos on his arms, and
wears prescription glasses every time I’ve seen him. He was wearing blue
jeans, a pullover type white hoodie, with gold lettering on the front, and I
think boots.” Wheeler then identified Bolan as the shooter from the photo
array given to him.
{¶ 28} Bolan attacks Ogletree’s credibility because she testified that she
is a “crackhead” and was incarcerated at the time of her testimony. We note
that “‘[t]he determination of weight and credibility of the evidence is for the
trier of fact. The rationale is that the trier of fact is in the best position to
take into account inconsistencies, along with the witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is credible. As
such, the trier of fact is free to believe or disbelieve all or any of the testimony.
Consequently, although an appellate court must act as a “thirteenth juror”
when considering whether the manifest weight of the evidence requires
reversal, it must give great deference to the fact finder’s determination of the
witnesses’ credibility.’” (Citations omitted.) State v. Montgomery, Cuyahoga
App. No. 95700, 2011-Ohio-3259, ¶10, quoting State v. Blackman, Cuyahoga
App. No. 95168, 2011-Ohio-2262, ¶21.
{¶ 29} Upon review, we do not find that the jury clearly lost its way in
assessing Ogletree’s testimony. Ogletree testified that she was
uncomfortable testifying because she feels like a “snitch.” She did not receive
a benefit for testifying and was bothered because her life is in danger “because
somebody else killed somebody, and I opened my mouth.” She admitted to
being a “crackhead,” but testified that her testimony is true. Ogletree
testified that on the night of the incident she heard gunshots. She went
outside and observed Fears’s body on the ground. Bolan was standing near
Fears with a gun in his hand. Ogletree described Bolan to the police as “a
black male, * * * in his 20s * * * big and husky and musclebound, like he just
got out of the joint. He wears dark framed glasses and has brush waves in his
short hair. He has a lot of tattoos on his arms and chest.” Ogletree
identified Bolan as the shooter from the photo array given to her. She also identified Bolan in court as the person she observed standing near Fear’s body
with a gun in his hand.
{¶ 30} Furthermore, DNA testing on six shell casings found at the scene
revealed that “Bolan cannot be excluded as a possible contributor to the partial
mixture profile obtained from [the shell casings.]” Additionally, the physical
evidence revealed that Fears was shot in the back at a distance of over four to
five feet.
{¶ 31} Based on the foregoing, we cannot say the jury clearly lost its way
and created such a manifest miscarriage of justice that Bolan’s convictions
must be reversed and a new trial ordered. Martin at 175.
{¶ 32} Therefore, the second assignment of error is overruled.
Merger
{¶ 33} In the third assignment of error, Bolan argues the trial court erred
by failing to merge the attempted murder (Count 4) and felonious assault
(Count 5) charges. The State concedes this argument, and we agree.
{¶ 34} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, the Ohio Supreme Court redefined the test for determining
whether two offenses are allied offenses of similar import subject to merger
under R.C. 2941.25.2 The Johnson court expressly overruled State v. Rance,
2R.C. 2941.25 governs allied offenses and provides: 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699, which required a
“comparison of the statutory elements in the abstract” to determine whether
the statutory elements of the crimes correspond to such a degree that the
commission of one crime will result in the commission of the other.
{¶ 35} The Johnson court held that rather than compare the elements of
the crimes in the abstract, courts must consider the defendant’s conduct. Id.
at syllabus. The court found:
“In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * *
If multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ [State] v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶50, (Lanzinger, J., dissenting).
If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.” Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶48-50.
{¶ 36} The Ohio Supreme Court recently held that the failure to merge
allied offenses of similar import constitutes plain error. State v. Underwood,
124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31, citing State v.
Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845. Under
Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.”
{¶ 37} In the instant case, the State conceded at sentencing that Counts
1-3 merged and elected to proceed with Count 1. The State did not believe
that Counts 4 and 5 merged, and left the issue of merger to the discretion of
the trial court. The trial court sentenced Bolan to three years on Count 4
(attempted murder) and three years and on Count 5 (felonious assault), to be
served concurrent to each other.
{¶ 38} R.C. 2903.02(A) provides that “[n]o person shall purposely cause
the death of another[.]” R.C. 2903.11(A)(2) provides that “[n]o person shall
knowingly * * * [c]ause or attempt to cause physical harm to another * * * by
means of a deadly weapon[.]” Bolan’s conduct of shooting a gun at Wheeler
while he was walking, could result in the commission of attempted murder and felonious assault under these respective statutes. This evidence
demonstrates that the charges arose from the same conduct and that Bolan
committed the attempted murder and felonious assault of Wheeler with a
single animus. Therefore, the attempted murder (Count 4) and the felonious
assault (Count 5) charges should be merged into a single count for sentencing.
{¶ 39} Accordingly, the third assignment of error is sustained. We
vacate his sentences on both Count 4 and Count 5, and remand the matter for
a sentencing hearing, at which the State will elect which allied offense it will
pursue against Bolan. See State v. Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2, 922 N.E.2d 182, ¶24-25.
Motion for Continuance
{¶ 40} In the fourth assignment of error, Bolan argues the trial court
violated his right to present a meaningful trial by refusing to grant a
continuance when Carlyeliea Benson (Benson) failed to appear in court to
testify for the defense. “The grant or denial of a continuance is a matter
which is entrusted to the broad, sound discretion of the trial judge.
[Therefore, an] appellate court must not reverse the denial of a continuance
unless there has been an abuse of discretion.” State v. Unger (1981), 67 Ohio
St.2d 65, 67, 423 N.E.2d 1078, citing Ungar v. Sarafite (1964), 376 U.S. 575,
589, 84 S.Ct. 841, 11 L.Ed.2d 921; State v. Bayless (1976), 48 Ohio St.2d 73,
101, 357 N.E.2d 1035. An abuse of discretion “‘implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v.
Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144.
{¶ 41} Relevant factors to be considered when determining whether a
continuance should have been granted include the length of delay requested,
prior continuances, inconvenience, the reasons for the delay, whether the
defendant contributed to the delay, and other relevant factors. State v.
Landrum (1990), 53 Ohio St.3d 107, 115, 559 N.E.2d 710.
{¶ 42} In the instant case, Bolan wanted to call Benson as a defense
witness on August 27, 2010. At that time, defense counsel advised the court
that Benson was not in court. Defense counsel asked the court for a bench
warrant and “a recess until [defense counsel is] allowed to bring [Benson] in.”
The trial court issued the bench warrant and noted for the record that it
offered to issue a bench warrant for Benson the day before, but defense counsel
declined it. The State noted on the record that its attempts to get Benson to
appear in court were unsuccessful. The trial court denied Bolan’s motion for
continuance. Defense counsel then moved for a mistrial, which the trial court
denied. After a sidebar was held, the trial court then granted Bolan a
one-hour continuance (until 11:55 a.m.) for the defense to act on the bench
warrant issued by the court.
{¶ 43} The court reconvened an hour and ten minutes later and Benson was not in court. At sidebar, defense counsel stated that he wanted to rest,
subject to the admission of the defense exhibits. Defense counsel wanted to
admit the police report summarizing Benson’s statement, which defense
counsel claimed is exculpatory.
{¶ 44} The court then took another recess, at which point defense counsel
advised that “pursuant to the bench warrant that this Court issued earlier this
morning, my call with police dispatch indicates that they have nothing in
writing. They have located Miss Benson, but without something being faxed
over to them, they claim to not have the authority to pick her up. * * * [I]f
something got faxed over to the police, it’s my understanding that they would
pick her up and probably be able to bring her in before lunch is over.” Defense
counsel continued to state that he “just found this out” and it was handed to
him “[t]wo minutes ago.” The trial court then faxed the bench warrant to the
number provided by defense counsel.
{¶ 45} At 1:00 p.m., the trial court resumed, and Benson was still not
present. When the trial court asked defense counsel if the police have
Benson, counsel replied, “I’ve gotten two conflicting reports.” Defense counsel
then stated that he has “not spoken to law enforcement” nor police dispatch
despite previously advising the court that the police had located Benson and
advising the court bailiff that “[Benson] had gotten into her car and was on her
way here.” {¶ 46} The trial court then correctly noted that “the bench warrant was
requested late this morning, a day after it was known that [Benson’s
appearance] was problematic because she didn’t show yesterday pursuant to a
subpoena as was brought to the Court’s attention. * * * At 9:00 today,
according to what counsel has said, again, her appearance appeared to be
problematic and it was not until after 10:00 that the request for a bench
warrant was made when the jury was already here and we were ready to work.
There was a one hour request for a recess. That was granted. Then this
thing about the police had located [Benson] when defense counsel never did
speak to the police saying that they had her. Then telling my bailiff that she
was going to appear voluntarily, and now its 22 minutes after 1:00.”
{¶ 47} Under these circumstances, we do not find that the denial of a
continuance amounted to an abuse of discretion by the trial court.
{¶ 48} Accordingly, the fourth assignment of error is overruled.
Motion for New Trial
{¶ 49} In the fifth assignment of error, Bolan argues the trial court erred
when it denied his motion for a new trial based on newly discovered evidence.
{¶ 50} A motion for a new trial is addressed to the sound discretion of the
trial court, and the court’s ruling on the motion will not be disturbed on appeal
absent an abuse of discretion. State v. Matthews, 81 Ohio St.3d 375, 378,
1998-Ohio-433, 691 N.E.2d 1041, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54, paragraph one of the syllabus.
{¶ 51} To warrant the granting of a new trial on the grounds of newly
discovered evidence, “‘it must be shown that the new evidence (1) discloses a
strong probability that it will change the result if a new trial is granted, (2) has
been discovered since the trial, (3) is such as could not in the exercise of due
diligence have been discovered before the trial, (4) is material to the issues, (5)
is not merely cumulative to former evidence, and (6) does not merely impeach
or contradict the former evidence.’” State v. Barnes, Cuyahoga App. No.
95557, 2011-Ohio-2917, ¶23, quoting State v. Petro (1947), 148 Ohio St. 505, 76
N.E.2d 370, at the syllabus.
{¶ 52} Crim.R. 33(A)(6) provides that “[a] new trial may be granted on
motion of the defendant for any of the following causes affecting materially his
substantial rights: [w]hen new evidence material to the defense is discovered
which the defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the ground
of newly discovered evidence, the defendant must produce at the hearing on
the motion * * * the affidavits of the witnesses by whom such evidence is
expected to be given * * *. The prosecuting attorney may produce affidavits or
other evidence to impeach the affidavits of such witnesses.” “While the
language of the rule contemplates an evidentiary hearing to consider newly
discovered evidence, such a hearing is discretionary and not mandatory.” Bedford v. Edwards, Cuyahoga App. No. 94532, 2011-Ohio-91, ¶10, citing
State v. Stewart, Cuyahoga App. No. 83428, 2004-Ohio-4073.
{¶ 53} In moving for a new trial, Bolan submitted Benson’s statement,
which identified the shooter as “Ray Ray” and described him as 5’6” to 5’7”,
skinny build, with bricks tatooed on his right arm. Also attached to his
motion, was a letter dated September 1, 2010, from the prosecutor addressed
to defense counsel.3 In that letter, the prosecutor states that Benson gave her
statement to the police on June 20, 2010. The letter indicates that her
statement was taken by a detective who was not assigned to the case, and thus
she was not shown any photo arrays to determine Bolan’s identity. On either
August 24 or August 25, 2010, the prosecutor gave defense counsel’s assistant
Benson’s most recent address so counsel could serve her with a subpoena to
testify in the case. The prosecutor also called Benson on August 24 and
August 25, 2010, and left Benson messages to come to court.
{¶ 54} Later in the day on August 27, 2010, Benson called the prosecutor,
stating that “she had been chased all over town by several relatives of the
person who was on trial, and had dropped her phone, and was scared. She
stated that at least one of the people chasing her had a gun.” Benson refused
to give her whereabouts, and did not come in, even after being advised there
3The jury returned its verdict on August 27, 2010. was an active bench warrant issued for her by the trial judge. Then on
Sunday, August 29, 2010, Benson called the prosecutor stating that she would
come in voluntarily on Monday to take care of the bench warrant and that “the
person we went to trial against was not the shooter in the case, and in fact, the
shooter was one of the people chasing her on Friday, with a gun.”
{¶ 55} We recognize that “[b]efore a trial court may grant a motion for a
new trial on the grounds that a witness has recanted his testimony, a trial
court must determine whether the statements of the recanting witness are
credible and true. Newly discovered evidence recanting testimony is ‘looked
upon with the utmost suspicion.’ The court is to ascertain the credibility of
the witness. Thus, a motion for a new trial that is based on recanted
testimony is to be granted only when the court is reasonably satisfied that the
trial testimony given by a material witness was false.” (Internal citations
omitted.) State v. Braun, Cuyahoga App. No. 95271, 2011-Ohio-1688, ¶39.
{¶ 56} In the instant case, Bolan failed to provide credible evidence to
warrant a new trial. Both Ogletree and Wheeler identified Bolan as the
shooter. Benson’s statement only changed after she notified the State that
she was scared because she had been chased all over town by several of Bolan’s
relatives, one of which had a gun. This new evidence lacks credibility because
it demonstrates that Benson was coerced. Evidence of witness intimidation
was further supported by Arthur Smiley’s (Smiley) recantation. Smiley who witnessed the shooting, stated to the police that “Ray Ray” was the shooter
and identified Bolan as the shooter from a photo array. Smiley then changed
his statement after being in the same holding cell as Bolan. Smiley signed a
letter stating that he did not see what happened and that he made up the
accusations against Bolan. Accordingly, the trial court did not abuse its
discretion when it denied Bolan’s motion for a new trial without conducting a
hearing.
{¶ 57} Thus, the fifth assignment of error is overruled.
Right to Public Trial
{¶ 58} In the sixth assignment of error, Bolan argues the trial court
denied his right to public trial by closing the courtroom during the testimony
of Ogletree and Smiley. He argues the trial court did not place any particular
reasons on the record justifying the closure. He further argues that the court
abused its discretion when it ordered him to refrain from looking at Ogletree
while she testified. {¶ 59} “The right to a public trial is a fundamental constitutional guarantee under the
Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio
Constitution.” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶
49. Public trials ensure that the judges and prosecutors carry out their duties responsibly,
encourage witnesses to come forward, and discourage perjury. Waller v. Georgia (1984), 467
U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31, citing In re Oliver (1948), 333 U.S. 257, 270, 68
S.Ct. 499, 92 L.Ed. 682. “The violation of the right to a public trial is structural error [that
affects the framework of trial] and not subject to harmless-error analysis.” Drummond at ¶
50.
{¶ 60} We note that “[t]he right to a public trial is not absolute, and in some instances
must yield to other interests, such as those essential to the administration of justice. A trial
judge has authority to exercise control over the proceedings and the discretion to impose
control over the proceedings.” Id. at ¶51. Thus, we review the trial court’s decision to
remove the public from a courtroom under an abuse of discretion standard of review. Id. at
¶58; State v. Brown (Nov. 25, 1998), Cuyahoga App. No. 73060.
{¶ 61} In Waller, the seminal case regarding the right to a public trial, the trial court
closed a suppression hearing to all persons other than witnesses, court personnel, the parties,
and counsel. The United States Supreme Court set forth the following four-pronged test that
courts must use to determine whether closure of a courtroom is necessary: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” Waller at 48.
{¶ 62} In the instant case, the trial court ordered that all spectators be removed from the
courtroom during the testimony of Ogletree and Smiley. The State requested that the
courtroom be cleared of all spectators during Ogletree’s testimony. When discussing the
State’s request with the trial court, defense counsel stated that he did not “believe [the closure
of the courtroom] presents any prejudice to [Bolan.] * * * The only logistical problem
[defense counsel] would see * * * is that [Ogletree] then be called to testify after the course of
a normal break, so as to effect having the courtroom cleared, before the jury returns to this
courtroom.” The trial court responded, “[t]hat could be accommodated. We can do it after
a break. If we do, would that mean that you waive any prejudice by the courtroom being
emptied at the time [Ogletree] is testifying?” Defense counsel replied, “[a]bsolutely.” Then
prior to Ogletree’s testimony, the trial court stated that it does not “want [Bolan’s] gaze
directed at [Ogletree] at all. If there is, there will be some sort of sanctions.”
{¶ 63} With respect to Smiley, defense counsel requested the trial court close the
courtroom during the hearing determining whether Smiley would testify. Defense counsel
stated, “I would ask this Court to please have the courtroom cleared for this proceeding * * *
it’s been demonstrated in this trial that people in the neighborhood and associated with either family in this case have had a reluctance to be candid with witnesses, whether for admitting
different stories, or for fear of retribution. Whatever the issues are, I just think it would be
clearer if there wasn’t anybody involved except those people that have to be.” The State did
not object, and the trial court granted the motion.
{¶ 64} In Drummond, the Ohio Supreme Court reviewed two closures by the trial court.
In applying the Waller factors to the first closure, the Drummond court found that all four
factors were satisfied and the trial court did not abuse its discretion in ordering the limited
closure of the courtroom. Id. at ¶58. However, with respect to the second closure, the
Drummond court noted that “the defense did not object to the trial court’s action. Defense
counsel were present during the entire proceedings and were fully aware of the exclusion of
the spectators from the courtroom.” Id. at ¶59. Thus, the court held that defense “counsel’s
failure to object to the closing of the courtroom constitutes a waiver of the right to a public
trial during [the witness’s] testimony. See Peretz v. United States (1991), 501 U.S. 923, 936,
111 S.Ct. 2661, 115 L.Ed.2d 808, citing Levine v. United States (1960), 362 U.S. 610, 619, 80
S.Ct. 1038, 4 L.Ed.2d 989.” Id.
{¶ 65} Here, just as in Drummond, the defense did not object to the closure of the
courtroom. With respect to Ogletree, defense counsel consented to the closure and
acknowledged that Bolan waived any prejudice by the courtroom being emptied at the time
Ogletree testified. With Smiley, defense counsel requested that the courtroom be closed during his testimony. The State did not object, and the trial court granted the request.
“Such circumstances dispel any reasonable claim of prejudice to this defendant and strongly
indicate that this order was made for the benefit of the defense and with its active support.”
Bayless at 110. Thus, defense counsel’s failure to object to the closing of the courtroom
constitutes a waiver of the right to a public trial during Ogletree’s and Smiley’s testimony.
{¶ 66} Based on the foregoing, we conclude that Bolan’s Sixth Amendment right to a
public trial was not violated.
{¶ 67} Accordingly, the sixth assignment of error is overruled.
{¶ 68} Thus, Bolan’s convictions are affirmed, his sentence is vacated in
part, and this case is remanded for further proceedings on merger of allied
offenses and resentencing.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE LARRY A. JONES, J., and KATHLEEN ANN KEOUGH, J., CONCUR