[Cite as State v. Letcher, 2011-Ohio-4439.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2010-CA-205 TORRION V. LETCHER : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court Case No. 2010-CRB-1811
JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED FOR RESENTENCING
DATE OF JUDGMENT ENTRY: August 22, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
TYRONE D. HAURITZ ERICA PRUITT VOORHEES Chief Prosecuting Attorney Stark County Public Defender Office City of Canton 200 West Tuscarawas Street, Suite 200 ANTHONY J. FLEX Canton, Ohio 44702 Assistant Prosecuting Attorney City of Canton 218 Cleveland Ave. SW Canton, Ohio 44709 Delaney, J.
{¶1} Defendant-Appellant Torrion Letcher appeals from the judgment of the
Canton Municipal Court, convicting him of Resisting Arrest and Disorderly Conduct.
The State of Ohio is Plaintiff-Appellee.
{¶2} Appellant was arrested on May 7, 2010, for resisting arrest, a
misdemeanor of the second degree, and disorderly conduct, a misdemeanor of the
fourth degree. Appellant exercised his right to a jury trial.
{¶3} The record, as settled pursuant to App. R. 9, and as entered by the trial
court, is as follows:
{¶4} Juror Number 11 was excused for cause at the agreement of the parties.
{¶5} Prosecutor Flex exercised his first peremptory challenge by excusing
Juror Number 10, with no objection from Appellant’s Attorney Voorhees.
{¶6} Attorney Voorhees exercised her first peremptory challenge by excusing
Juror Number 5, with no objection from Prosecutor Flex.
{¶7} Prosecutor Flex exercised his second peremptory challenge by excusing
Juror Number 25, with no objection from Attorney Voorhees.
{¶8} Attorney Voorhees exercised her second peremptory challenge by
excusing Juror Number 19(A), with no objection from Prosecutor Flex.
{¶9} Prosecutor Flex exercised his final peremptory challenge by excusing
Juror Number 21. Attorney Voorhees objected to this challenge. Attorney Voorhees
argued that Juror 21 was the only African-American juror who could have been
“reasonably” seated on the jury. Attorney Voorhees argued that this fact was pertinent
due to the Defendant being of African-American descent. Attorney Voorhees cited to Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, as authority for
her argument.
{¶10} The trial court noted Attorney Voorhees’ objection to the dismissal of Juror
Number 21 but overruled the objection.
{¶11} Juror Number 21 was excused and was not empanelled on the jury.
{¶12} Attorney Voorhees exercised her final peremptory challenge by excusing
Juror Number 26A, with no objection from Prosecutor Flex.
{¶13} The prosecutor stated, and the trial court agreed, that the prosecutor gave
a race neutral reason for dismissing Juror 21, that being that the juror stated that she
may have known multiple parties on both sides of the case, and that it caused concern
for the State. Specifically, the juror indicated that she knew Joe Martuccio from the Law
Department. Moreover, there were two African-American jurors in the jury pool. By
removing Juror Number 21, Juror Number 31 was seated on the jury, and Juror 31 was
also African-American.
{¶14} Appellant was convicted as charged.
{¶15} Appellant raises two Assignments of Error:
{¶16} “I. THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENDANT
HIS RIGHT TO ALLOCUTION.
{¶17} “II. THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S
PEREMPORTY CHALLENGE OF JUROR NUMBER 21 AND OVERRULING
APPELLANT’S OBJECTION TO THE CHALLENGE ON GROUNDS THAT THE
CHALLENGE WAS EXERCISED IN A DISCRIMINATORY MANNER.” I.
{¶18} In Appellant’s first assignment of error, Appellant contends that the trial
court erred by not allowing Appellant an opportunity to speak before imposing sentence
as required by Crim. R. 32(A)(1).
{¶19} The Appellee concedes that the trial court erred in this regard. The
appropriate measure to take is to remand the case for a resentencing in order to give
the defendant the opportunity to speak prior to being sentenced. “In a case in which the
trial court has imposed sentence without first asking the defendant whether he or she
wishes to exercise the right of allocution* * * resentencing is required* * *.” State v.
Campbell, 90 Ohio St.3d 320, 326, 2000-Ohio-183 738 N.E.2d 1178.
{¶20} Appellant’s first assignment of error is well taken and is sustained.
II.
{¶21} In Appellant’s second assignment of error, Appellant argues that the trial
court erred in permitting the State to exercise a peremptory challenge against an African
American juror pursuant to the Supreme Court’s ruling in Batson v. Kentucky (1986),
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. We disagree.
{¶22} In order to succeed on a Batson challenge, the complaining party must
state a prima facie case of purposeful discrimination under Batson, supra. To do so, the
party challenging the strike must demonstrate: (1) that members of a recognized racial
group were peremptorily challenged; and (2) that the facts and circumstances raise an
inference that the prosecutor used the peremptory challenge to exclude the jurors on
account of their race. Whenever a party opposes a peremptory challenge by claiming
racial discrimination “[a] judge should make clear, on the record, that he or she understands and has applied the precise Batson test when racial discrimination has
been alleged in opposition to a peremptory challenge.” Hicks v. Westinghouse Materials
Co., 78 Ohio St.3d 95, 99, 1997-Ohio-227, 676 N.E.2d 872.
{¶23} In Hicks, supra, the Ohio Supreme Court set forth the Batson test as
follows:
{¶24} “The United States Supreme Court set forth in Batson the test to be used
in determining whether a peremptory strike is racially motivated. First, a party opposing
a peremptory challenge must demonstrate a prima-facie case of racial discrimination in
the use of the strike. Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. To establish a
prima-facie case, a litigant must show he or she is a member of a cognizable racial
group and that the peremptory challenge will remove a member of the litigant's race
from the venire. The peremptory-challenge opponent is entitled to rely on the fact that
the strike is an inherently ‘discriminating’ device, permitting ‘those to discriminate who
are of a mind to discriminate’. State v. Hernandez (1992), 63 Ohio St.3d 577, 582, 589
N.E.2d 1310, 1313, certiorari denied (1992), 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d
206. The litigant must then show an inference of racial discrimination by the striking
party. The trial court should consider all relevant circumstances in determining whether
a prima-facie case exists, including all statements by counsel exercising the peremptory
challenge, counsel's questions during voir dire, and whether a pattern of strikes against
minority venire members is present. See, Batson at 96-97, 106 S.Ct. at 1723, 90
L.Ed.2d at 88.
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[Cite as State v. Letcher, 2011-Ohio-4439.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2010-CA-205 TORRION V. LETCHER : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court Case No. 2010-CRB-1811
JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED FOR RESENTENCING
DATE OF JUDGMENT ENTRY: August 22, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
TYRONE D. HAURITZ ERICA PRUITT VOORHEES Chief Prosecuting Attorney Stark County Public Defender Office City of Canton 200 West Tuscarawas Street, Suite 200 ANTHONY J. FLEX Canton, Ohio 44702 Assistant Prosecuting Attorney City of Canton 218 Cleveland Ave. SW Canton, Ohio 44709 Delaney, J.
{¶1} Defendant-Appellant Torrion Letcher appeals from the judgment of the
Canton Municipal Court, convicting him of Resisting Arrest and Disorderly Conduct.
The State of Ohio is Plaintiff-Appellee.
{¶2} Appellant was arrested on May 7, 2010, for resisting arrest, a
misdemeanor of the second degree, and disorderly conduct, a misdemeanor of the
fourth degree. Appellant exercised his right to a jury trial.
{¶3} The record, as settled pursuant to App. R. 9, and as entered by the trial
court, is as follows:
{¶4} Juror Number 11 was excused for cause at the agreement of the parties.
{¶5} Prosecutor Flex exercised his first peremptory challenge by excusing
Juror Number 10, with no objection from Appellant’s Attorney Voorhees.
{¶6} Attorney Voorhees exercised her first peremptory challenge by excusing
Juror Number 5, with no objection from Prosecutor Flex.
{¶7} Prosecutor Flex exercised his second peremptory challenge by excusing
Juror Number 25, with no objection from Attorney Voorhees.
{¶8} Attorney Voorhees exercised her second peremptory challenge by
excusing Juror Number 19(A), with no objection from Prosecutor Flex.
{¶9} Prosecutor Flex exercised his final peremptory challenge by excusing
Juror Number 21. Attorney Voorhees objected to this challenge. Attorney Voorhees
argued that Juror 21 was the only African-American juror who could have been
“reasonably” seated on the jury. Attorney Voorhees argued that this fact was pertinent
due to the Defendant being of African-American descent. Attorney Voorhees cited to Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, as authority for
her argument.
{¶10} The trial court noted Attorney Voorhees’ objection to the dismissal of Juror
Number 21 but overruled the objection.
{¶11} Juror Number 21 was excused and was not empanelled on the jury.
{¶12} Attorney Voorhees exercised her final peremptory challenge by excusing
Juror Number 26A, with no objection from Prosecutor Flex.
{¶13} The prosecutor stated, and the trial court agreed, that the prosecutor gave
a race neutral reason for dismissing Juror 21, that being that the juror stated that she
may have known multiple parties on both sides of the case, and that it caused concern
for the State. Specifically, the juror indicated that she knew Joe Martuccio from the Law
Department. Moreover, there were two African-American jurors in the jury pool. By
removing Juror Number 21, Juror Number 31 was seated on the jury, and Juror 31 was
also African-American.
{¶14} Appellant was convicted as charged.
{¶15} Appellant raises two Assignments of Error:
{¶16} “I. THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENDANT
HIS RIGHT TO ALLOCUTION.
{¶17} “II. THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S
PEREMPORTY CHALLENGE OF JUROR NUMBER 21 AND OVERRULING
APPELLANT’S OBJECTION TO THE CHALLENGE ON GROUNDS THAT THE
CHALLENGE WAS EXERCISED IN A DISCRIMINATORY MANNER.” I.
{¶18} In Appellant’s first assignment of error, Appellant contends that the trial
court erred by not allowing Appellant an opportunity to speak before imposing sentence
as required by Crim. R. 32(A)(1).
{¶19} The Appellee concedes that the trial court erred in this regard. The
appropriate measure to take is to remand the case for a resentencing in order to give
the defendant the opportunity to speak prior to being sentenced. “In a case in which the
trial court has imposed sentence without first asking the defendant whether he or she
wishes to exercise the right of allocution* * * resentencing is required* * *.” State v.
Campbell, 90 Ohio St.3d 320, 326, 2000-Ohio-183 738 N.E.2d 1178.
{¶20} Appellant’s first assignment of error is well taken and is sustained.
II.
{¶21} In Appellant’s second assignment of error, Appellant argues that the trial
court erred in permitting the State to exercise a peremptory challenge against an African
American juror pursuant to the Supreme Court’s ruling in Batson v. Kentucky (1986),
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. We disagree.
{¶22} In order to succeed on a Batson challenge, the complaining party must
state a prima facie case of purposeful discrimination under Batson, supra. To do so, the
party challenging the strike must demonstrate: (1) that members of a recognized racial
group were peremptorily challenged; and (2) that the facts and circumstances raise an
inference that the prosecutor used the peremptory challenge to exclude the jurors on
account of their race. Whenever a party opposes a peremptory challenge by claiming
racial discrimination “[a] judge should make clear, on the record, that he or she understands and has applied the precise Batson test when racial discrimination has
been alleged in opposition to a peremptory challenge.” Hicks v. Westinghouse Materials
Co., 78 Ohio St.3d 95, 99, 1997-Ohio-227, 676 N.E.2d 872.
{¶23} In Hicks, supra, the Ohio Supreme Court set forth the Batson test as
follows:
{¶24} “The United States Supreme Court set forth in Batson the test to be used
in determining whether a peremptory strike is racially motivated. First, a party opposing
a peremptory challenge must demonstrate a prima-facie case of racial discrimination in
the use of the strike. Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. To establish a
prima-facie case, a litigant must show he or she is a member of a cognizable racial
group and that the peremptory challenge will remove a member of the litigant's race
from the venire. The peremptory-challenge opponent is entitled to rely on the fact that
the strike is an inherently ‘discriminating’ device, permitting ‘those to discriminate who
are of a mind to discriminate’. State v. Hernandez (1992), 63 Ohio St.3d 577, 582, 589
N.E.2d 1310, 1313, certiorari denied (1992), 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d
206. The litigant must then show an inference of racial discrimination by the striking
party. The trial court should consider all relevant circumstances in determining whether
a prima-facie case exists, including all statements by counsel exercising the peremptory
challenge, counsel's questions during voir dire, and whether a pattern of strikes against
minority venire members is present. See, Batson at 96-97, 106 S.Ct. at 1723, 90
L.Ed.2d at 88. Assuming a prima-facie case exists, the striking party must then
articulate a race-neutral explanation ‘related to the particular case to be tried.’ Id. at 95,
106 S.Ct. at 1724, 90 L.Ed.2d at 88. A simple affirmation of general good faith will not suffice. However, the explanation ‘need not rise to the level justifying exercise of a
challenge for cause.’ Id. at 97, 106 S.Ct. at 723, 90 L.Ed.2d at 88. The critical issue is
whether a discriminatory intent is inherent in counsel's explanation for use of the strike;
intent is present if the explanation is merely pretext for exclusion based on race.
Hernandez v. New York (1991), 500 U.S. 352, 363, 111 S.Ct. 1859, 1868, 114 L.Ed.2d
395, 409. 78 Ohio St.3d. 98-9.”
{¶25} Although the striking party must present a comprehensible reason, “[t]he
second step of this process does not demand an explanation that is persuasive or even
plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v.
Elem (1995), 514 U.S. 765, 767-768, 115 S.Ct. 1769. (per curiam); Rice v. Collins
(2006), 546 U.S. 333, 126 S.Ct. 969, 973-74.
{¶26} Finally, the trial court must determine whether the party opposing the
peremptory strike has proved purposeful discrimination. Purkett v. Elem (1995), 514
U.S. 765, 766-767, 115 S.Ct. 1769, 1770. It is at this stage that the persuasiveness, and
credibility, of the justification offered by the striking party becomes relevant. Id. at 768,
115 S.Ct. at 1771. The critical question, which the trial judge must resolve, is whether
counsel's race-neutral explanation should be believed. Hernandez v. New York, 500
U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395; State v. Nash (August 14, 1995), 5th
Dist. No.1995 CA 00024. This final step involves considering “the persuasiveness of the
justification” proffered by the striking party, but “the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the opponent of the strike.”
Purkett, supra, at 768, 115 S.Ct. 1769; Rice v. Collins, supra at 126 S.Ct. 974. {¶27} During voir dire, potential Juror Number 21 admitted that she knew
multiple witnesses who may have been called to testify as well as a current or former
attorney in the Canton City Prosecutor’s office.
{¶28} The prosecutor then used a peremptory challenge to remove the juror. At
that time, Appellant’s attorney stated that Juror 21 was the only black juror on the panel
who could have “reasonably” been seated on the jury. Trial counsel did not offer any
further explanation to make a prima facie case as required in the first step of Batson.
Trial counsel did not refer to any statements made by the prosecutor that would indicate
that the challenge was discriminatory, did not point to a pattern of discrimination and did
not point to specific questions in voir dire that would indicate a discriminatory motive.
{¶29} Moreover, even if Appellant had met his prima facie burden to go forward
on the challenge, the trial court found that the witness knew multiple potential witnesses
or parties in the case, thereby negating any perceived discriminatory intent.
{¶30} Juror 21 was removed from the panel and was replaced with Juror 32,
who was also African-American. Accordingly, Appellant cannot establish purposeful
discrimination. Batson, supra, at 98.
{¶31} We have recently stated that “the trial judge is best placed to consider the
factors that underlie credibility: demeanor, context, and atmosphere. And the trial judge
is best placed to determine whether, in a borderline case, a prosecutor's hesitation or
contradiction reflect (a) deception, or (b) the difficulty of providing a rational reason for
an instinctive decision. Appellate judges cannot on the basis of a cold record easily
second-guess a trial judge's decision about likely motivation. These circumstances
mean that appellate courts will, and must, grant the trial courts considerable leeway in applying Batson.” State v. Bulin, 5th Dist. No. 2008-CA-00045, 2008-Ohio- 5691, at ¶55,
quoting Rice v. Collins, supra at 126 S.Ct. at 977. (Breyer, J., concurring).
{¶32} We do not find that the dismissal of Juror 21 was in error and we find that
the prosecutor’s reason for using a peremptory challenge on Juror 21 was racially
neutral.
{¶33} Appellant’s second assignment of error is overruled.
{¶34} For the foregoing reasons, the judgment of the Canton Municipal Court is
affirmed in part and reversed and remanded in part, for purposes of resentencing
pursuant to Crim. R. 32(A).
By: Delaney, J.
Farmer, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : TORRIAN V. LETCHER : : Defendant-Appellant : Case No. 2010-CA-205 :
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Canton Municipal Court is affirmed in part and reversed in remanded in
part. Costs assessed equally to Appellant and Appellee.
_________________________________ HON. PATRICIA A. DELANEY
_________________________________ HON. W. SHEILA G. FARMER
_________________________________ HON. JOHN W. WISE