[Cite as State v. Howell, 2019-Ohio-3182.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 107545 v. :
SLATTER HOWELL, III, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 8, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-603024-A and CR-16-606767-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecutor, and Daniel A. Cleary, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, Robert B. McCaleb and Jeffrey M. Gamso, Assistant Public Defenders, for appellant.
PATRICIA ANN BLACKMON, J.:
Defendant-appellant, Slatter Howell, III, appeals from his
convictions for aggravated murder, aggravated robbery, and other offenses in Cuyahoga C.P. No. CR-16-603024-A and his conviction for felonious assault in
Cuyahoga C.P. No. CR-16-606767-A. He assigns the following errors for our review:
I. Mr. Howell was denied his constitutional right to the effective assistance of counsel when, after being accused of witness tampering and attempting to suborn perjury, his attorneys simply declared their innocence rather than asking the trial court to make findings and demanding a mistrial.
II. The trial court’s comments bolstering the credibility of the government’s DNA “expert” prejudiced Mr. Howell’s defense.
III. The trial court committed error when it imposed consecutive sentences because its finding that consecutive sentences were necessary to protect the public is altogether unsupportable and irrational.
Having reviewed the record and the controlling law, we affirm.
Howell was charged in a five-count indictment in Cuyahoga C.P. No.
CR-16-606767-A in connection with an attack on Joe Houston on May 1, 2014. On
October 11, 2017, Howell pled guilty to one count of felonious assault and was
sentenced to eight years imprisonment.
Howell was also indicted in Cuyahoga C.P. No. CR-16-603024-A for
two homicides and related offenses. Counts 1 through 8 arose from the April 7, 2014
shooting death of gas station worker Babul Saha (“Saha”), and the indictment
charged Howell with two counts each of aggravated murder, felonious assault, and
aggravated robbery, and one count each of murder and robbery. The charges also
included repeat violent offender specifications, a notice of prior conviction, and one-
and three-year firearm specifications. Counts 9 through 14 arose from the May 1,
2014 shooting death of Theodore Wright (“Wright”) and the indictment charged Howell with aggravated murder, murder, aggravated robbery, robbery, felonious
assault, and tampering with evidence. The parties agreed that the state would
proceed to trial first on the offenses pertaining to Saha, and the jury trial for these
offenses began on September 5, 2017. The notice of prior conviction and repeat
violent offender specifications were tried to the court.
The state’s evidence demonstrated that on the night of April 7, 2014,
Saha was working alone behind the counter at the Prime Station on Granger Road
in Maple Heights. According to customer Bruce Tyus (“Tyus”), a man in a gray
hooded sweatshirt with the hood pulled tightly over his head approached him at the
pumps and asked how many people were inside the store. Tyus replied that one or
two people were inside. The man walked inside and shortly after that, Tyus heard
gunshots.
Dennis Hanson (“Hanson”) testified that around 10:30 p.m., he had
stopped at a traffic light near the Prime Station and observed three individuals in
hooded sweatshirts repeatedly crossing Granger Road at Milo Avenue. After the
shooting, Hanson reviewed police photos and identified three people as “possibly”
involved, but he was unsure if Howell was among these individuals.
Customer Sam Killings (“Killings”) went into the store and waited for
service. After a few minutes, he looked behind the counter and observed the clerk
on the floor “with his eyes rolling in the back of his head.” One of the cash register
drawers was opened. Saha died from his injuries. According to Cuyahoga County Deputy
Medical Examiner Dr. Joseph Felo (“Dr. Felo”), Saha sustained a gunshot wound to
his torso that perforated his aorta and caused him to bleed to death.
Maple Heights Detective Andrew Sperie (“Det. Sperie”) testified that
he collected a white plastic bag from the floor of the Prime Station office and marked
it as item no. 3 on the police evidence log. Det. Sperie checked out a number of leads,
and subsequently received a tip through Crime Stoppers claiming that Howell was
the assailant.
Cuyahoga County Regional Forensics Science Laboratory
(“CCRFSL”) Analyst Carey Baucher (“Baucher”) testified that initial DNA analysis of
the white plastic bag revealed a mixture from more than three unidentified
individuals. Because of the number of contributors, the white plastic bag recovered
at the crime scene was sent to Cybergenetics Laboratory (“Cybergenetics”) that
utilizes the True Allele computer program to perform the calculations for genotyping
mixed contributor samples. Baucher was cross-examined at length about the
reliability of True Allele given its source code, and she repeatedly indicated that she
is not a computer programmer and did not perform the genotyping of the mixed
contributor samples. However, Baucher stated that “the program is reliable when
we set up certain experiments and certain mixtures that we know what goes into
these and what the results should be, and it has come out perfect every time.”
Jennifer Hornyak (“Hornyak”) of Cybergenetics, stated that True
Allele is the subject of 34 validation studies, one of which was completed by the CCRFSL. The True Allele software considers the distribution of gene allele pair
values and works out all of the different genotype combinations with their associated
probabilities in order to derive match statistics. According to Hornyak, the sample
from the white plastic bag had degraded overall, but there was a match between it
and Howell that is 98 thousand times more probable than a coincidental match to
an unrelated African-American person. The match between the white plastic bag
and Saha is 224 thousand times more probable than coincidence.
Hornyak also testified that the source code for True Allele is a
proprietary trade secret, but is available to defense experts who sign confidentiality
agreements. Defense experts are also invited to create a mixed contributor DNA
sample of six individuals in order to test True Allele’s accuracy. In this case,
Cybergenetics provided the defense with the validation studies, tutorials, and
software needed to view the source code as well as the supporting case files.
Monique Tatum (“Tatum”), Howell’s former girlfriend, testified that
after she and Howell broke up, she posted news footage of Saha’s assailant on her
Facebook page. She also posted a private message to “Gutta Boii,” the name of a
Facebook account used by Howell and others. The next day, Howell shot at Tatum.
It is undisputed that Howell pled guilty to attempted felonious assault with a three-
year firearm specification in Cuyahoga C.P. No. CR-14-586451-A, in connection with
the attack on Tatum and was sentenced to five years of imprisonment.
Tatum gave a statement to police outlining that after Saha was killed,
Howell refused to go into the Prime Station. According to Tatum’s statement, Howell went to the station with “Maine” and “Ken,” and he committed the crime in
order to show that he was ready to join the Heartless Felons. Howell reportedly
insisted that he had obtained several thousand dollars from the robbery and not $50
as stated in news reports. Tatum also told police that the clothing worn by the
assailant was similar to clothing that Howell owns.
Rufus Harris (“Harris”) testified that Howell was his cell mate at
Lorain Correctional Institution. Howell experienced nightmares and confided to
Harris that he and his friend Maine wanted to commit a robbery, so they drove
around and ended up at the Prime Station. They parked across the street. After
learning that no customers were inside, Howell reportedly approached with his hood
tied tightly around his face. The clerk jumped up to lock the bulletproof door, and
Howell shot him in the chest with a .38 caliber weapon. Harris also stated that
Howell hurt his leg while jumping over the counter to get to the cash register.
Although the police believed that Howell dropped a glove at the crime scene, he
denied that he had done so.
Harris admitted that in exchange for this information, he did not have
to serve the final six months of his sentence. Harris denied that he learned the
details of the crime from television reports or reading a letter to Howell in which one
of his friends, Kenneth Pinkney (“Pinkney”), threatened to blame the Prime Station
shooting on Howell unless Howell told police that he owned a weapon found in
Pinkney’s possession. Howell testified on his own behalf. He stated that he receives money
from a wrongful death action, and he denied robbing and shooting Saha. Howell
also denied confessing the crime to Tatum and Harris. Howell asserted that Tatum
fabricated her claims due to romantic jealousy and frustration at not getting money
from him. Howell maintained that he and Harris were housed together only for
several days and stopped sharing a cell after he caught Harris going through his
mail. Howell testified that “Maine,” or Kwamaine Davis (“Davis”), killed Saha.
Howell indicated that he was being framed by Tatum, with the help of the police, for
refusing to join the Heartless Felons.
The jury subsequently convicted Howell of all eight charges
pertaining to the Saha shooting. With regard to the remaining charges pertaining
to the Wright shooting, Howell subsequently pled guilty to robbery and involuntary
manslaughter with a three-year firearm specification.
After merger of allied offenses, the trial court sentenced Howell to life
imprisonment without the possibility of parole for the aggravated murder of Saha,
eleven years for the aggravated robbery of Saha, eleven years for the involuntary
manslaughter of Wright, and eight years for the robbery of Wright. The court
ordered all terms to be served consecutively, and consecutively to the eight-year
term imposed for felonious assault on Houston in Cuyahoga C.P. No. CR-16-
606767-A. The court also imposed fines totaling $60,000. Ineffective Assistance of Counsel
In the first assigned error, Howell complains that his trial attorneys
were ineffective in response to Tatum’s claim that Howell and his lawyers were
“contacting me [saying] don’t show up to court. * * * They said come and rewrite
my statement and Slater have $500 to give me if I do.” Howell complains that trial
counsel denied Tatum’s allegations but did not request factual findings or seek a
mistrial.
In order to substantiate a claim of ineffective assistance of counsel,
the appellant is required to demonstrate that (1) his counsel was deficient in some
aspect of his representation, and (2) there is a reasonable probability that, were it
not for counsel’s errors, the result of the trial would have been different. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial
scrutiny of defense counsel’s performance must be highly deferential. Id. at 689.
There is a presumption that a properly licensed attorney is competent. State v.
Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. To justify a
finding of ineffective assistance of counsel, the appellant must overcome a strong
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland at 689. Tactical or strategic trial
decisions, even if ultimately unsuccessful, generally do not constitute ineffective
assistance of counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965
(1995). In this assigned error, we note that Tatum’s claims were made out
of the presence of the jury, and trial counsel informed the court that they did not
contact Tatum, did not have her phone number, and her claims were “100 percent
false [and] totally ridiculous.” Counsel’s response was consistent with their overall
strategy of portraying Tatum as a perjurer, and they stated that this was “another
example of her perjuring herself as she did all throughout her testimony,” that she
“came in here today and much of what she said was demonstrably false,” and that
she “did demonstrate some falsity in her testimony.” Further, the record indicates
that Tatum claimed to have information about other charged and uncharged
offenses that Howell allegedly committed. With this in mind, and after reviewing
the entire record, we conclude that counsel could have reasonably determined that
further pursuit of Tatum’s “rewrite my statement” claims would not have aided the
defense, and they made a sound tactical decision by simply issuing strong denials of
the claims. State v. Cody, 8th Dist. Cuyahoga No. 77427, 2002-Ohio-7055, ¶ 63
(counsel not ineffective for failing to request a mistrial and failing to present
evidence challenging juror-tampering allegation); State v. Rodano, 8th Dist.
Cuyahoga No. 57185, 1990 Ohio App. LEXIS 2857 (July 12, 1990) (counsel not
ineffective for failing to object to characterization of appellant’s affidavit as “nothing
but perjury”); State v. Bolen, 3d Dist. Hancock No. 5-01-25, 2002 Ohio App. LEXIS
767 (Feb. 22, 2002) (counsel not ineffective for failing to object to claim of witness
intimidation).
Therefore, we conclude that the first assigned error is without merit. Court Bolstering of Witness
In the second assigned error, Howell asserts that the trial court
improperly bolstered the testimony of the state’s DNA witness who testified that she
found True Allele reliable when the court remarked, “[s]ustained for a couple
reasons. First of all, it’s speculative, and number two, she’s not a computer expert.
* * * And I think the analogy she created about us using Google and not having the
source code is a good one.” In opposition, the state notes that Howell inaccurately
claims that this exchange occurred during the cross-examination of Hornyak, an
analyst from Cybergenetics, when, in fact, it occurred during the cross-examination
of Baucher from the CCRFSL, who had nothing to do with the development of True
Allele technology. The state maintains that this is an important clarification because
the line of cross-examination referenced “coding errors” in True Allele that Baucher
could not address.
In presiding over a trial, a judge must be cognizant of the effect of his
or her remarks upon the jury. State v. Wade, 53 Ohio St.2d 182, 187, 373 N.E.2d
1244 (1978). An appellate court reviewing the propriety of a judge’s remarks before
a jury must determine whether the comments were prejudicial to a defendant’s right
to a fair trial. Id. at 188. The Wade court adopted the following rules for evaluating
a judge’s comments:
(1) The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they are made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of counsel.
Id.
As to the issue of prejudice, we note that ultimately, Howell
maintained that he was being framed for the Saha murder, and his testimony
concludes with the following exchange:
Q. But your bag with your DNA is in it, right? Degraded or not, Mr. Howell, it’s in there, right?
A. Yes, it is.
Also as to prejudice, the defense initially challenged True Allele as
unreliable, but later withdrew that challenge. Although the defense discussed
reliability again on the eve of trial, they conceded that Howell did not authorize them
to raise that challenge, so the court did not hold an admissibility hearing under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993). The trial court also noted that True Allele had been accepted in
State v. Shaw, Cuyahoga C.P. No. CR-13-575691 (Oct. 10, 2014). See also State v.
Mathis, Cuyahoga C.P. No. CR-16-611539-A (Apr. 13, 2018). Moreover, nothing in
the record suggests that True Allele is unreliable.
As to the circumstances surrounding this testimony, this line of cross-
examination inappropriately raised the issue of “coding errors” at Cybergenetics
with Baucher who works at CCRFSL and is not a computer analyst. In response to
defense questioning, Baucher responded that she does “not need to know the lines
of code to know that the program is reliable when we set up certain experiments and certain mixtures that we know what goes into these and what the results should be,
and it has come out perfect every time.” Offering an analogy, she said, “You don’t
have the source code to Microsoft Word or Excel, but you use that quite often.”
Applying all of the foregoing, we find that the comments were not
prejudicial to Howell’s right to a fair trial. This assigned error lacks merit.
Consecutive Sentences
Howell next asserts that because the trial court sentenced him to life
imprisonment without the possibility of parole for the aggravated murder of Saha,
it was error to impose additional consecutive sentences for the aggravated robbery
of Saha, the involuntary manslaughter and robbery of Wright, and the felonious
assault on Houston. He argues that additional consecutive sentences are not
necessary to protect the public or to punish the offender.
Howell recognizes that in State v. Chavez, 8th Dist. Cuyahoga No.
99436, 2013-Ohio-4700, this court had held that sentences imposed consecutively
to life-without-parole sentences are moot because the issue is “academic” — this
court can issue no decision that will have any practical effect on the controversy. Id.
at ¶ 47. He argues that review of the sentence is authorized under State v.
Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, because the court
held that it was proper for an appellate court to review whether life sentences were
properly made consecutive. However, this court rejected the same argument in
State v. Herrington, 8th Dist. Cuyahoga No. 106225, 2018-Ohio-3049, ¶ 35-37, and
State v. Campbell, 8th Dist. Cuyahoga No. 103982, 2016-Ohio-7613, ¶ 11. Accord State v. Austin, 7th Dist. Mahoning No. 16 MA 0068, 2019-Ohio-1185, ¶ 90-95.
Although we acknowledge Howell’s interest in preserving the issue for further
review, we do not reach a different result herein, and we find Howell’s third assigned
error moot. In any event, all of the findings required for consecutive sentences were
made in this case when the trial court stated:
THE COURT: These cases are going to be run consecutively for the following reasons. Obviously, there were guns involved. This is necessary to protect the citizens of this community. If this defendant were ever released, I believe his crime wave would begin anew. It’s necessary to punish the offender. It is not disproportionate for the harm that he has caused in these three separate shootings. We should note that two of these crimes were committed after the first crime. The third crime was committed after the first two crimes. So no single sentence would adequately reflect the seriousness of this individual’s conduct. And obviously as the State of Ohio has delineated on the record * * * this individual’s criminal history shows that consecutive terms are needed to protect the public and punish the offender.
And just so we have a complete record, the Court has taken into consideration the following. He has an assault in 2009, Cuyahoga County Juvenile Court, was adjudicated delinquent. A domestic violence in 2009, adjudicated delinquent. A burglary and theft in 2009, adjudicated delinquent. An escape in 2010, adjudicated delinquent. Receiving stolen property in 2010, adjudicated delinquent. Trafficking in drugs, 2010, adjudicated delinquent. Resisting arrest, disorderly conduct, 2011, which was dismissed. Another burglary in 2012 in a theft case, adjudicated delinquent. Noise in a motor vehicle, 2013. Gross sexual imposition, attempted rape, kidnapping, in 2013, he pled guilty to aggravated burglary. He has been to the institution before on a two-year sentence. There are other misdemeanor arrests for playing loud music. Felonious assault was the 2014 case that he did two years on. And then these cases. So, I mean, his behavior has demonstrated that he has been an individual crime wave, you could say.
In accordance with all of the foregoing, the third assigned error lacks
merit. Judgment is affirmed.
It is ordered that appellee recover from appellant 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 is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________ PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, A.J., and EILEEN T. GALLAGHER, J., CONCUR