[Cite as State v. Chaffin, 2014-Ohio-2671.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 25220 : v. : Trial Court Case No. 2010-CR-388/2 : CLIFFORD CHAFFIN : : (Criminal Appeal from Defendant-Appellant : (Common Pleas Court) :
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OPINION
Rendered on the 20th day of June, 2014.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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WELBAUM, J. 2
{¶ 1} Defendant-appellant, Clifford Chaffin, appeals from the decision of the
Montgomery County Court of Common Pleas on remand overruling his motion to suppress
evidence of his pre-trial identification. In Chaffin’s original appeal, we sustained his
suppression claim in part, holding that the pre-trial identification procedure used by police was
inherently suggestive. However, we remanded the matter back to the trial court to determine
whether the pre-trial identification was otherwise reliable and thus admissible. In addition to his
suppression claim, Chaffin raised five other assignments of error in his original appeal, all of
which we found moot. Now, in addition to appealing from the trial court’s decision on remand,
Chaffin has also raised the five assignments of error that were deemed moot in his original
appeal. For the reasons outlined below, we will affirm the trial court’s decision in part, reverse
in part, and remand the matter back to the trial court for the limited purpose of permitting Chaffin
to request a waiver of court costs and for the trial court to revise the language in the termination
entry as instructed in this opinion.
Facts and Course of Proceedings
{¶ 2} The facts underlying Chaffin’s offense in this matter are fully set forth in our
opinion in State v. Chaffin, 2d Dist. Montgomery No. 24241, 2012-Ohio-634, which states the
following:
The incident which forms the basis for the [original] appeal occurred on
January 24, 2010, outside of an apartment building located at 118 N. Alex Road.
At around ten p.m. in the evening, Keith Kelly, who was inside his apartment with 3
his wife, heard the buzzing of a saw from out in the parking lot. When Kelly
looked out of his window, he observed a man on the ground next to his wife’s
truck. Kelly told his wife to call 911 while he retrieved his gun and went outside
to investigate.
Once outside, Kelly observed two pairs of legs protruding out from under
the truck. Kelly ordered the individuals to stand. One of the men who crawled
out from under the truck was later identified as Chaffin, and he was armed with a
knife. The other individual, later identified as Ralleigh Pennington, Chaffin’s
co-defendant at trial, took off running. Kelly ordered Chaffin to put the knife
down, but as he did so, he heard Pennington running back towards him at high
speed. Kelly testified that he fired a warning shot in Pennington’s general
direction, and Pennington ran away. After Kelly fired the gun, Chaffin ran away
as well.
Once the police arrived, Kelly informed West Carrolton Police Officer
Daniel J. Wessling that the two men he had encountered were both white, bald,
and wearing dark clothing with hoods. Earlier on the day of the attempted
robbery, Officer Wessling had observed two individuals matching the description
provided by Kelly approximately six blocks away from the scene of the crime.
With the description provided by Kelly, Officer Wessling created two
photo spreads, each containing six photographs depicting individuals with similar
appearances and physical attributes. One of the photo spreads contained a
photograph of Chaffin, and the other contained a photograph of Pennington. 4
Officer Wessling met with Kelly at the police station on January 27, 2010, to
show him the photo spreads. Kelly positively identified Pennington from the
photo spread containing his picture as the individual at whom he had fired the
warning shot. Kelly, however, did not select Chaffin from the photo spread, but
he identified another individual therein.
On January 31, 2010, Officer Wessling asked Kelly to come to the station
to look at a second photo spread he had created. The photo spread contained a
more recent photograph of Chaffin. After being shown the second photo spread,
Kelly positively identified Chaffin as the individual who had brandished the knife
during the attempted robbery on January 24, 2010. We note that in the second
photo spread created by Officer Wessling, Chaffin was the only individual
amongst the six who was completely bald on the top of his head.
Chaffin was subsequently indicted on February 25, 2010, for one count of
aggravated robbery with a deadly weapon. At his arraignment on March 2, 2010,
Chaffin stood mute, and the trial court entered a plea of not guilty on his behalf.
Chaffin filed a motion to suppress Kelly’s pre-trial and in-court identifications on
March 18, 2010. After a hearing held on April 15, 2010, the trial court overruled
Chaffin’s motion to suppress, issuing findings of fact and conclusions of law from
the bench at the end of the hearing. After a jury trial in which Chaffin and
Pennington were tried together, Chaffin was found guilty on May 19, 2010. On
June 3, 2010, the trial court sentenced Chaffin to five years in prison. Chaffin, 2d
Dist. Montgomery No. 24241, 2012-Ohio-634 at ¶ 3-8. [Cite as State v. Chaffin, 2014-Ohio-2671.] {¶ 3} Chaffin appealed from his conviction, raising six assignments of error. As part
of his appeal, Chaffin claimed that the trial court erred in overruling his motion to suppress
Kelly’s pre-trial and in-court identifications. On February 17, 2012, we issued an opinion
concluding that the procedure used by police to identify Chaffin was inherently suggestive. Id.
at ¶ 22-24. However, we explained that:
Although we conclude that the trial court erred in its finding regarding
suggestiveness, there are no factual findings regarding the second prong of the
analysis with respect to the reliability of the identification. This matter is
remanded for the trial judge to make such findings. Should the trial court deem
the photo spread identification unreliable, a further determination must be made as
to the admissibility of the in-court identification. Id. at ¶ 24.
Accordingly, we sustained Chaffin’s suppression claim in part, and remanded the matter back to
the trial court for further proceedings. Id. at ¶ 33. We also found Chaffin’s five remaining
assignments of error moot in light of our decision to remand the matter on the suppression issue.
Id. at ¶ 32.
{¶ 4} On remand, the trial court held a supplemental evidentiary hearing on March 30,
2012. The only witness who testified at the hearing was Keith Kelly, as Kelly did not testify at
the original suppression hearing. At the hearing, Kelly testified that he was seven to eight feet
from both of the men who jumped from underneath his truck. Kelly also testified that he had a
clear view of Chaffin’s face, as no hood, mask, or glasses were shielding it. In addition, Kelly
testified that it was his intention to keep Chaffin in his view until the police came. Kelly said
Chaffin was holding a knife next to his face, and that he observed Chaffin at a distance of seven
to eight feet for approximately 40 seconds. [Cite as State v. Chaffin, 2014-Ohio-2671.] {¶ 5} With respect to visibility, Kelly testified that he has 20/20 vision and that
although it was raining and dark at the time of the incident, there were multiple lights
illuminating the area. Kelly also noted that he worked for the Department of Rehabilitation and
Corrections and that he was trained to read body language and facial expressions. He claimed
that during the incident, Chaffin “froze” and had a “not-knowing-what-to-do-next look” on his
face. Hearing Trans. (Mar. 30, 2012), p. 16.
{¶ 6} Additionally, Kelly testified that he provided the police with a description of each
suspect, describing them as two bald white males, one with facial hair. Kelly also testified that
he was shown the first photo spread by Officer Wessling three days after the robbery. According
to Kelly, he initially picked out two photographs marked as photograph #1 and photograph #6,
but ultimately chose the individual depicted in photograph #1. He testified that he wavered
between these two photographs and told Officer Wessling that he was only 75-80 percent sure
that the individual depicted in photograph #1 was the perpetrator. When asked why he selected
photograph #1, Kelly explained that his choice was based on the grooming style of the
individual’s facial hair and eyebrows. Kelly testified that he was not 100 percent sure of his
choice due to the fact that both individuals in photographs #1 and #6 had hair, whereas the man
he observed with the knife during the robbery was bald. Chaffin was the individual depicted in
photograph #6.
{¶ 7} Next, Kelly testified that he was asked by Officer Wessling to look at a different
photo spread seven days after the robbery. Kelly testified that after being shown the second
photo spread, he immediately picked out the individual shown in photograph #6, which was a
more recent photograph of Chaffin. According to Kelly, he did not waver between any of the
other pictures in the second photo spread, and he knew that photograph #6 depicted the 7
perpetrator “beyond a shadow of a doubt.” Id. at p. 30. He said his decision was based on the
fact that he looked at Chaffin and remembered him from the night of the robbery. Id. Kelly
also testified that his in-court identification of Chaffin was based on his observations of Chaffin
at the time of the robbery, and independent from the pre-trial photo spread.
{¶ 8} Following the supplementary evidentiary hearing, the trial court found Kelly to
be a credible witness and made various findings regarding his ability to observe Chaffin during
the robbery. In light of these findings, the trial court determined that Kelly’s pre-trial and
in-court identifications of Chaffin were reliable and overruled Chaffin’s motion to suppress.
Chaffin now appeals from the trial court’s decision on remand, as well as from his conviction and
sentence, raising nine assignments of error for review.
Assignment of Error No. I
{¶ 9} Chaffin’s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO
SUPPRESS.
{¶ 10} Under his First Assignment of Error, Chaffin argues that the trial court erred in
overruling his motion to suppress on remand due to the trial court improperly: (1) holding a
supplemental evidentiary hearing; (2) finding Kelly’s pre-trial identification of Chaffin reliable;
and (3) admitting Kelly’s in-court identification of Chaffin as evidence.
Supplemental Evidentiary Hearing
{¶ 11} Initially, Chaffin claims that it was error for the trial court to hold a supplemental
evidentiary hearing on the reliability issue after his case was remanded. Chaffin contends that 8
the court was merely instructed to make findings on remand and that the trial court was supposed
to decide the reliability issue based solely on what the State had presented at the first suppression
hearing. Chaffin claims that since Kelly did not testify at the first suppression hearing, it would
be impossible for the State to prove the reliability of Kelly’s identification.
{¶ 12} We first note that Chaffin did not object to the trial court holding a supplemental
evidentiary hearing, thereby waiving all but plain error on appeal. State v. Howard, 2d Dist.
Montgomery No. 20575, 2005-Ohio-3702, ¶ 34, citing State v. Ballew, 76 Ohio St.3d 244, 251,
667 N.E.2d 369 (1996). Courts are to notice plain error “only to prevent a manifest miscarriage
of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus. For there to be plain error, there must be an error that is an obvious defect in the trial
proceedings that affected the outcome of trial. State v. Payne, 114 Ohio St. 3d 502,
2007-Ohio-4642, 873 N.E.2d 306, ¶ 16.
{¶ 13} That said, we do not find that it was plain error for the trial court to hold the
supplemental evidentiary hearing, because it was within the trial court’s discretion to do so.
“When a court of appeals reverses for error and remands for further proceedings, ‘[t]he court of
appeals may or may not specify the nature of the further proceedings, and should not do so if the
trial court has discretion as to the nature of the further proceedings.’ ” State v. Chinn, 2d Dist.
Montgomery No. 16764, 2000 WL 1458784, *10 (Aug. 21, 1998) (Grady, J. concurring and
dissenting), citing to Whiteside, Ohio Appellate Practice (1998), Author's Note to App.R. 12(D).
Accord In re Contempt of Scaldini, 8th Dist. Cuyahoga No. 94893, 2011-Ohio-822, ¶ 17; Lorain
v. Pendergrass, 9th Dist. Lorain No. 04CA008437, 2004-Ohio-5688, ¶ 10.
{¶ 14} In ruling on Chaffin’s original appeal, we stated that the “matter is remanded for 9
additional proceedings consistent with this opinion.” Chaffin, 2d Dist. Montgomery No. 24241,
2012-Ohio-634 at ¶ 33. While we instructed the trial court to make factual findings regarding
whether the identification of Chaffin was reliable, we did not specify the nature of the
proceedings that were to take place on remand. Accordingly, it was left to the trial court’s
discretion as to what proceedings were necessary to determine the issue. We do not find that the
trial court abused its discretion in holding a supplementary evidentiary hearing on the reliability
issue. Therefore, Chaffin’s argument that the trial court erroneously held a supplemental
evidentiary hearing is without merit and overruled.
Reliability of Pre-trial Identification
{¶ 15} Next, Chaffin claims that the trial court erred in finding that Kelly’s pre-trial
identification of Chaffin was reliable. “ ‘When a witness has been confronted with a suspect
before trial, due process requires a court to suppress [his] identification of the suspect if the
confrontation was unnecessarily suggestive of the suspect’s guilt and the identification was
unreliable under all the circumstances.’ ” (Emphasis sic.) State v. Murphy, 91 Ohio St.3d 516,
534, 747 N.E.2d 765 (2001), quoting State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819
(1992). However, “even if an identification procedure was overly suggestive, the identification
remains admissible if sufficient evidence of reliability exists.” (Citations omitted.) State v.
Taylor, 2d Dist. Montgomery No. 22232, 2008-Ohio-6048, ¶ 12. “ ‘Reliability of the testimony
is the linchpin in determining its admissibility. So long as the identification possesses sufficient
aspects of reliability, there is no violation of due process.’ ” State v. Sherls, 2d Dist.
Montgomery No. 18599, 2002 WL 254144, *3 (Feb. 22, 2002), quoting State v. White, 2d Dist.
Clark No. 3057, 1994 WL 43095, *2 (Feb. 2, 1994). [Cite as State v. Chaffin, 2014-Ohio-2671.] {¶ 16} To assess whether sufficient evidence of reliability exists, “courts look at
‘whether under the “totality of the circumstances” the identification was reliable even though the
confrontation procedure was suggestive.’ ” State v. Montgomery, 2d Dist. Montgomery No.
25277, 2013-Ohio-4509, ¶ 33, quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34
L.Ed.2d 401 (1972). “ ‘[T]he factors to be considered in evaluating the likelihood of
misidentification include the opportunity of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the
criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of
time between the crime and the confrontation.’ ” Id., quoting Biggers at 199-200. “ ‘Against
these factors is to be weighed the corrupting effect of the suggestive identification itself.’ ”
Sherls at *4, quoting White at *2.
{¶ 17} “ ‘[T]he trial court assumes the role of trier of fact and is in the best position to
resolve questions of fact and evaluate the credibility of witnesses.’ ” State v. Hopfer, 112 Ohio
App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649,
653, 645 N.E.2d 831 (4th Dist.1994). In turn, we “must accept the trial court’s findings of fact if
they are supported by competent, credible evidence in the record.” State v. Isaac, 2d Dist.
Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586,
592, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true, we “must then independently
determine, as a matter of law and without deference to the trial court’s legal conclusion, whether
the applicable legal standard is satisfied.” Id., citing Retherford at 592.
{¶ 18} In this case, the trial court made findings of fact with respect to each of the
factors that are considered when evaluating the reliability of a witness’s identification. Upon
reviewing the first factor–Kelly’s opportunity to view Chaffin at the time of the crime–the trial 11
court found that Kelly had an excellent opportunity to view Chaffin’s face. In support of this
finding, the trial court relied on Kelly’s testimony that he had 20/20 vision and that the area of the
incident was illuminated with a number of lights. In addition, the trial court relied on the fact
that Kelly testified he observed Chaffin face to face from a distance of seven to eight feet for
approximately 40 seconds.
{¶ 19} As for the second factor–Kelly’s degree of attention–the trial court found that
Kelly paid very close attention to Chaffin’s face. The trial court relied on Kelly’s testimony that
he received training on how to read body language and facial expressions while working for the
Department of Rehabilitation and Corrections. Additionally, the trial court considered Kelly’s
testimony that Chaffin “froze” with a “not knowing what-to-do-next look,” and that he had the
opportunity to look at Chaffin’s face for approximately 40 seconds. The trial court also noted
that Kelly testified Chaffin had the knife up near his face and that he focused on the knife, as well
as Chaffin’s face.
{¶ 20} In considering the third factor–the accuracy of Kelly’s prior description of the
criminal–the trial court found that Kelly gave a good description of Chaffin to police on the night
of the crime. Kelly accurately described Chaffin as a bald white male with some facial hair to
police. The court noted that the only discrepancy in his description of Chaffin was Kelly’s
failure to notice a small tear drop tattoo near Chaffin’s eye. However, the trial court found
Kelly’s failure to notice the tattoo was understandable given that he was standing seven to eight
feet away from Chaffin in drizzling rain. We note that the trial court did not remark on the
tattoo located on the side of Chaffin’s neck. However, given Kelly’s distance from Chaffin, and
the fact that Chaffin was wearing a hood, Kelly’s failure to notice the neck tattoo is likewise 12
understandable.
{¶ 21} For the fourth factor–the level of certainty demonstrated by Kelly–the trial court
found that Kelly demonstrated a reliable level of certainty regarding his identification of Chaffin.
In so holding, the trial court noted that when presented with the first photo spread, Kelly
wavered between choosing Chaffin’s photo and that of another individual. While Kelly
ultimately chose the picture of the other individual, he did so with only 75-80 percent certainty,
and made it clear that he was not sure whether his identification was correct. Yet, when Kelly
was shown the second photo spread, he testified that he immediately picked out Chaffin’s photo
and indicated that he was 100 percent certain of his identification. We note that Chaffin was the
only individual depicted in both photo spreads. However, Kelly made a point to inform Officer
Wessling that his prior identification from the first photo spread was incorrect. In addition, the
trial court noted that the picture of Chaffin in the first photo spread was old and showed him with
hair, while the picture of Chaffin in the second photo spread was more recent and showed him
with a bald head. The court also relied on Kelly’s testimony that he did not just pick the photo
of Chaffin simply because of the bald head, but because he could clearly see his face on the night
of the crime.
{¶ 22} For the fifth factor–the length of time between the crime and Kelly’s pre-trial
identification–the trial court noted that the first photo spread took place only three days after the
crime, with the second photo spread taking place a mere four days later. The trial court then
weighed each of the five factors against the corrupting effect of the suggestive pre-trial
identification. In doing so, the trial court found by a preponderance of the evidence that Kelly’s
pre-trial identification of Chaffin possessed sufficient aspects of reliability, and that even though 13
the identification procedure was inherently suggestive, it was nonetheless admissible.
{¶ 23} Upon reviewing the record, we conclude that the foregoing findings of fact are
supported by competent, credible evidence. Therefore, we accept the trial court’s factual
findings as true. Based on the trial court’s findings, we independently find that under the totality
of the circumstances, including the fact that Kelly was able to observe Chaffin from a short
distance for a period of 40 seconds, Kelly’s pre-trial identification of Chaffin was reliable even
though the photo spread procedure was suggestive. Since the pre-trial identification possesses
sufficient aspects of reliability, there is no violation of due process. Given that we have
determined that Kelly’s pre-trial identification of Chaffin was reliable and no violation of due
process occurred, we need not address the admissibility of Kelly’s in-court identification, as we
instructed the trial court to make this determination only if it found the pre-trial identification
unreliable. See Chaffin, 2d Dist. Montgomery No. 24241, 2012-Ohio-634 at ¶ 24.
{¶ 24} Chaffin’s First Assignment of Error is overruled.
Assignment of Error No. IV
{¶ 25} For ease of discussion, we will address the remainder of Chaffin’s assignments of
error out of order. His Fourth Assignment of Error is as follows:
THE TRIAL COURT IMPROPERLY ADDRESSED THE PROBLEMS
SURROUNDING JUROR NUMBER FOUR AT TRIAL.
{¶ 26} Chaffin raised this assignment of error in his original appeal, and we deemed it to
be moot due to our decision on the suppression issue. However, having now affirmed the trial
court’s decision on remand overruling Chaffin’s motion to suppress, this assignment of error is 14
now ripe for review.
{¶ 27} Under this assignment of error, Chaffin contends that the trial court abused its
discretion in failing to make a meaningful inquiry regarding whether juror number four’s verdicts
were voluntary. In support of this claim, Chaffin argues that such an inquiry was necessary after
the jury’s foreperson advised the court bailiff that the other jurors were concerned that juror
number four’s verdicts were made under duress.
{¶ 28} The record establishes that there were various issues concerning juror number
four during the jury’s deliberation. Specifically, the bailiff reported to the trial court that during
deliberation, juror number four had left the jury room upset and was spotted in the hallway
crying. It was also reported that juror number four had signed a jury form outside the presence
of the other jurors. When she was confronted by the bailiff, juror number four said that she was
tired, wanted to go home, and that she did not want to go back into the jury room. She also
asked if an alternate juror could be put in her place. After hearing this, the trial court consulted
counsel for each party and then questioned juror number four on the record, asking her whether
she was willing to continue her participation in the deliberation. In response, juror number four
informed the trial court that she was willing to resume her participation.
{¶ 29} It also came to light that juror number four was using a handheld electronic
gaming device during deliberations. The trial court later questioned her about this allegation,
inquiring about any use of the device during trial. The parties were satisfied with her responses
that she did not use the device while testimony was being given. Chaffin was asked if he
thought juror number four should continue serving as a juror, and he said that she should. Juror
number four was then sent back to the jury room to continue deliberating with the other jurors. 15
{¶ 30} After the verdicts were reached, the jury’s foreperson advised the bailiff that the
other jurors were concerned that juror number four’s verdicts were made under duress. The
bailiff relayed this information to the court, and the court proposed to resolve the matter by
individually polling each of the jurors about the voluntariness of their verdicts. Chaffin had no
objection to this procedure and the jurors were polled regarding their verdicts. When the court
asked juror number four whether the announced verdicts were hers, she responded “Yes.” Trial
Trans. Vol. III (May 19, 2010), p. 627. The court also asked juror number four whether her
verdicts were voluntary, and she again responded “Yes.” Id.
{¶ 31} Chaffin contends that the trial court abused its discretion in handling the matter
with juror number four, claiming that the court should have engaged in more in- depth
questioning to determine whether her verdicts were compromised. However, we note that
Chaffin agreed to the procedure employed by the trial court, and has thus waived all but plain
error on appeal. State v. Hessler, 90 Ohio St.3d 108, 121, 734 N.E.2d 1237 (2000), citing State
v. Hill, 73 Ohio St.3d 433, 444, 653 N.E.2d 271 (1995).
{¶ 32} The trial court’s procedure in handling juror number four does not amount to
plain error, as we previously addressed this matter in the direct appeal of Chaffin’s co-defendant
in State v. Pennington, 2d Dist. Montgomery No. 24090, 2011-Ohio-4445. In that opinion we
explained that:
In an analogous situation, the Ohio Supreme Court found that a trial court’s
polling of the jury individually after a juror was crying and refusing to re-enter the
court room provided evidence that the juror’s verdict was a product of her own
free will. State v. Hessler, 90 Ohio St.3d 108, 120, 2000-Ohio-30. That court 16
further noted that the appellant had specifically agreed to the procedure used and
waived all but plain error. Pennington at ¶ 33.
We concluded in Pennington that “[t]he trial court followed the same procedure used by the trial
court in Hessler and scrupulously safeguarded appellant’s rights.” Id. at ¶ 34.
{¶ 33} According to Chaffin, the jury poll was insufficient to determine the
voluntariness of juror number four’s verdict given the concerns expressed by the other jurors.
However, the fact remains that during the jury poll, the trial court gave juror number four an
opportunity to explain whether she agreed with the announced verdict and specifically asked her
whether her verdicts were made voluntarily. Juror number four responded affirmatively to both
questions. In Hessler, the Supreme Court of Ohio found no issue with this procedure and, under
the same circumstances, found the juror’s verdict to be voluntary. Hessler, 90 Ohio St.3d at
115-121, 734 N.E.2d 1237. Accordingly, for the reasons discussed in Pennington and Hessler,
we find no error in how the trial court handled the situation with juror number four.
{¶ 34} Chaffin’s Fourth Assignment of Error is overruled.
Assignment of Error No. V
{¶ 35} Chaffin’s Fifth Assignment of Error is as follows:
THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT
APPELLANT’S MOTION FOR A MISTRIAL.
{¶ 36} This assignment of error was also raised in Chaffin’s original appeal, and like
Chaffin’s Fourth Assignment of Error, we did not rule on it because we found the claim to be
moot. However, given that we have affirmed the trial court’s decision on remand to overrule 17
Chaffin’s motion to suppress, this assignment of error is also now ripe for review.
{¶ 37} Under this assignment of error, Chaffin claims the trial court erred in failing to
grant a mistrial based on an alleged violation of the rule announced in Bruton v. United States,
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The rule in Bruton was summarized by the
Supreme Court of Ohio in State v. Moritz, 63 Ohio St.2d 150, 407 N.E.2d 1268 (1980):
“In Bruton, the Supreme Court held that in a joint trial of two defendants, a
confession of one co-defendant who did not testify could not be admitted into
evidence even with a limiting instruction that the confession could only be used
against the confessing defendant. The rationale of Bruton was that the
introduction of a potentially unreliable confession of one defendant which
implicates another defendant without being subject to cross-examination deprives
the latter defendant of his right to confrontation guaranteed by the Sixth
Amendment.” Id. at 153, quoting United States v. Fleming, 594 F.2d 598, 602
(7th Cir.1979).
{¶ 38} In following Bruton, the Supreme Court of Ohio likewise held that “[a]n
accused’s right of cross-examination secured by the confrontation clause of the Sixth
Amendment is violated in a joint trial with a non-testifying codefendant by the admission of
extrajudicial statements made by the codefendant inculpating the accused.” Id. at paragraph one
of the syllabus. The court also stated that:
“[T]he Bruton rule applies with equal force to all statements that tend significantly
to incriminate a co-defendant, whether or not he is actually named in the
statement. The fact that the incrimination amounts to a link in a chain of 18
circumstances rather than a direct accusation cannot dispose of the applicability of
the Bruton rule. Just as one can be convicted of circumstantial evidence, one can
be circumstantially accused." (Italics added.) Id. at 155, quoting Fox v. State,
179 Ind.App. 267, 283, 384 N.E.2d 1159 (1979).
{¶ 39} A Bruton violation, however, does not arise if there are no extrajudicial
statements of the co-defendant introduced at trial implicating the defendant in criminal activity.
See State v. Griffin, 2d Dist. Montgomery No. 24001, 2012-Ohio-503 ¶ 54 (finding “the State did
not present at the trial any statements made by [the co-defendant] that implicated Defendant in
criminal activity. Therefore, no Bruton problem arises”); State v. Porcher, 2d Dist. Montgomery
No. 24058, 2011-Ohio-5976, ¶ 19 (finding no Bruton violation because “neither co-defendant
made any out-of-court statements that the State intended to introduce at the trial”); State v.
Hopkins, 2d Dist. Montgomery No. 24940, 2012-Ohio-5536, ¶ 44 (“[b]ecause [the
co-defendant’s] statement did not implicate [defendant] in any criminal activity, we see no
Bruton problem.”); State v. Jones, 6th Dist. Sandusky No. S-07-029, 1998 WL 123091, *3
(Mar. 13, 1998) (“[b]ecause appellee did not introduce any statements of co-defendants which
implicated appellant, separate trials were not required under the Bruton rule”).
{¶ 40} In this case, Chaffin concedes that no inculpatory, extrajudicial statements of his
co-defendant, Ralleigh Pennington, were admitted as evidence during their joint trial. Rather,
Chaffin bases his allegations of a Bruton violation on remarks made by Pennington’s defense
counsel during opening statement. Specifically, Chaffin takes issue with the following remarks:
Mr. Pennington is charged with aggravated robbery. The evidence will show and
Mr. Kelly, the victim, will indicate Mr. Pennington ran away. He did not come 19
back. He ran away, if he was there. There’s no evidence that Mr. Pennington
did anything to Mr. Kelly. There was no evidence that Mr. Chaffin did anything
to Mr. Kelly. Mr. Kelly will testify, he ran away. We’re also looking at the
issue of complicity and we talked about this also. If two people are together and
something happens, are both of them responsible? The judge, when you go to
deliberate, will tell you that the most important thing about this case is knowingly.
Was there knowledge about what was going on if Mr. Pennington is gone? Did
he have knowledge that Mr. Chaffin had a knife? Did he have knowledge that he
was going for him? Mr. Pennington is gone. There cannot be a robbery with
Mr. Pennington gone. Complicity. There’s no complicity if he had no
knowledge. * * * This case is about whether two people who are together do the
same thing if one of them runs away. The evidence will show this. Trial Trans.
Vol. I (May 17, 2010), p. 181-182.
{¶ 41} According to Chaffin, the foregoing remarks openly concede that he and
Pennington were at the scene of the crime, were attempting to commit theft, and that Chaffin had
a knife. We do not agree with this interpretation, but even if we did, the fact remains that there
was no admission of extrajudicial statements made by Pennington implicating Chaffin in the
offense. Remarks in opening statements are not evidence and are not the kind of statements to
which the Bruton rule applies. See State v. Jalowiec, 91 Ohio St.3d 220, 226, 744 N.E.2d 163
(2001) (finding that a prosecutor mentioning in opening statement that a co-defendant had
previously implicated the defendant in the offense at issue is “unlike the situation in Bruton,
[because] the statement in issue was not elicited during testimony”); see also U.S. v. Johnson, 20
581 F.3d 320, 325-326 (6th Cir.2009) (noting that a Bruton violation cannot occur unless there is
a testimonial statement). Because there was no admission of an out-of-court statement made by
Pennington implicating Chaffin in the offense, there is no Bruton violation. Accordingly, the
trial court correctly overruled Chaffin’s motion for a mistrial on that basis.
{¶ 42} Chaffin’s Fifth Assignment of Error is overruled.
Assignment of Error No. VI
{¶ 43} Chaffin’s Sixth Assignment of Error is as follows:
APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF
COUNSEL.
{¶ 44} Again, this assignment of error was also raised in Chaffin’s original appeal, and
was not addressed due to our decision on the suppression issue. Like the previous two
assignments of error, this assignment of error is also now ripe for review.
{¶ 45} Under this assignment of error, Chaffin contends that his trial counsel was
ineffective in failing to move for a severance of his trial from that of his co-defendant.
According to Chaffin, he was entitled to a separate trial under Bruton and his trial counsel’s
failure to request a separate trial prejudiced him. We disagree.
{¶ 46} We review allegations of ineffective assistance of trial counsel under the two
prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984) and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989). To prevail on an ineffective-assistance claim, Chaffin must establish
that his trial counsel’s performance was deficient and that the deficient performance prejudiced 21
him. Strickland at paragraph two of the syllabus. A trial counsel’s performance is deficient if
the conduct complained of fell below an objective standard of reasonableness. Id. Trial
counsel is entitled to a strong presumption that his or her conduct falls within the wide range of
reasonable assistance. Id. As for prejudice, a trial counsel’s deficient performance is
prejudicial when counsel’s errors are serious enough to create a reasonable probability that, but
for the errors, the result of trial would have been different. Id.
{¶ 47} In this case, we do not find that the performance of Chaffin’s trial counsel was
deficient. Severance of a joint trial is permitted if the joinder will result in prejudice. See
Crim.R. 14. Here there is nothing in the record indicating that Chaffin was prejudiced by the
joint trial with Pennington, as we have already concluded that there was no Bruton violation, and
the record does not indicate that Chaffin was otherwise prejudiced by Pennington’s defense
strategy. As a further matter, the trial court instructed the jurors at the beginning and end of trial
to separately consider the evidence with respect to each defendant and to separately determine the
guilt or innocence of each defendant. Accordingly, there was no potential prejudice supporting a
motion for severance nor other good cause for ordering separate trials. See R.C. 2945.13. As a
result, we find that counsel’s failure to move for a severance did not fall below an objective
standard of reasonableness. Therefore, Chaffin cannot satisfy the first prong of Strickland, and
his ineffective assistance claim must fail.
{¶ 48} Chaffin’s Sixth Assignment of Error is overruled.
Assignment of Error Nos. VII and VIII
{¶ 49} For purposes of convenience, we will address Chaffin’s Seventh and Eighth 22
Assignments of Error together. They are as follows.
VII. THE TRIAL COURT ERRED IN IMPOSING COURT COSTS IN THE
SENTENCING ENTRY WITHOUT IMPOSING COURT COSTS AT
THE TIME OF SENTENCING.
VIII. THE TRIAL COURT ERRED IN PREEMPTIVELY DISAPPROVING
OF THE TRANSFER OF APPELLANT TO TRANSITIONAL
CONTROL IN THE SENTENCING ENTRY.
{¶ 50} The claims in Chaffin’s Seventh and Eighth Assignments of Error were also
raised in his original appeal, but were not addressed due to our decision on the suppression issue.
As with the previous assignments of error, these assignments of error are now ripe for review.
{¶ 51} Under his Seventh Assignment of Error, Chaffin contends that the trial court
erred in ordering him to pay court costs in its June 7, 2010 termination entry, because the court
failed to address the payment of court costs at his sentencing hearing. The State concedes, and
we agree, that the trial court erred in failing to inform Chaffin at sentencing that it was going to
impose court costs. In order to rectify this error, the State proposes that we remand the matter
back to the trial court for the limited purpose of allowing Chaffin to seek a waiver of the court
costs. We agree with the State’s proposed remedy, as we utilized the same remedy in a similar
situation in State v. Mays, 2d Dist. Montgomery No. 24168, 2012-Ohio-838, ¶ 17.
{¶ 52} Under his Eighth Assignment of Error, Chaffin contends that the trial court erred
in prematurely disapproving of transitional control in the termination entry. R.C. 2967.26(A)(1)
allows the Department of Rehabilitation and Correction to place inmates into a transitional
control program during the final 180 days of incarceration “for the purpose of closely monitoring 23
a prisoner’s adjustment to community supervision * * *.” Additionally, section A(2) of the
statute provides the trial court with an opportunity to disapprove of transitional control after the
court reviews a report assessing the inmate’s tenure in prison. Chaffin contends that the court’s
disapproval of transitional control was premature, because the decision was made before he was
even transferred to prison.
{¶ 53} Once again, the State concedes error and notes that this court has previously
concluded that a trial court errs in including language disapproving of transitional control in a
termination entry, because “the trial court’s ability to approve or disapprove of transitional
control occurs only after a person has been incarcerated and the adult parole authority sends a
notice to the trial court indicating that it intends to grant transitional control under R.C.
2967.26(A).” State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283, 944 N.E.2d 258, ¶ 2 (2d
Dist.). To remedy this error, the State proposes that we instruct the trial court to issue an
amended termination entry in which the language stating that the court disapproves of the transfer
of the defendant to transitional control is removed. We again agree with the State’s proposed
remedy, as we utilized the same remedy in a similar situation in State v. Longworth, 2d Dist.
Montgomery No. 24327, 2011-Ohio-4191, ¶ 36.
{¶ 54} Because the State concedes error, Chaffin’s Seventh and Eighth Assignments of
Error are sustained. The matter will be remanded for the limited purposes of permitting Chaffin
to request a waiver of court costs and for the trial court to revise the language in the termination
Assignment of Error Nos. II, III, and IX 24
{¶ 55} For purposes of convenience, we will also address Chaffin’s Second, Third and
Ninth Assignments of Error together. They are as follows:
II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
OBJECTION TO THE STATE SUPPLEMENTING THE RECORD, ON
REDIRECT, BEYOND THE SCOPE OF THE CROSS EXAMINATION.
III. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S
PROPER OBJECTION TO HEARSAY TESTIMONY THAT ALSO
VIOLATED THE CONFRONTATION CLAUSE.
IX. THE PROSECUTOR COMMITTED REVERSIBLE MISCONDUCT.
{¶ 56} Under each of the foregoing assignments of error, Chaffin takes issue with a
specific aspect of his trial. Chaffin, however, failed to raise any of these issues in his original
appeal. “Where an argument could have been raised on an initial appeal, res judicata dictates
that it is inappropriate to consider that same argument on a second appeal following remand.”
State v. Yates, 2d Dist. Montgomery No. 24823, 2012-Ohio-1781, ¶ 24, quoting State v.
D'Ambrosio, 73 Ohio St.3d 141, 143, 652 N.E.2d 710 (1995); see also State v. Gillard, 78 Ohio
St.3d 548, 549, 679 N.E.2d 276 (1997); State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580,
998 N.E.2d 1100, ¶ 95. The foregoing assignments of error are based entirely on the trial record;
therefore, Chaffin could have, and should have, raised these issues in his first appeal. Res
judicata bars Chaffin from raising these issues now, and they are beyond the scope of our original
remand. See Yates at ¶ 24.
{¶ 57} Chaffin’s Second, Third, and Ninth Assignments of Error are Overruled. 25
Conclusion
{¶ 58} Having overruled Chaffin’s First, Second, Third, Fourth, Fifth, Sixth and Ninth
Assignments of Error, and having sustained Chaffin’s Seventh and Eighth Assignments of Error,
the decision of the trial court is affirmed in part, reversed in part, and remanded for the limited
purposes of permitting Chaffin to request a waiver of court costs and for the trial court to revise
the language in the termination entry as instructed in this opinion.
FAIN and DONOVAN, JJ., concur.
Copies mailed to:
Mathias H. Heck Andrew T. French Brock A. Schoenlein Hon. Dennis J. Langer