State v. Kelly, Unpublished Decision (9-27-2002)
State v. Kelly, Unpublished Decision (9-27-2002)
Opinion of the Court
OPINION
{¶ 1} Defendant-appellant Charles Kelly appeals from his conviction and sentence for Possession of Cocaine, in an amount less than five grams. He contends that his trial counsel was ineffective. Kelly particularly contends that his trial counsel was ineffective for having failed to move to suppress the crack pipe containing the cocaine residue used to convict him, which was found in the back of his car, and his admission, to the arresting police officer, that the crack pipe was his. We conclude, from the testimony at the trial, that a motion to suppress, had it been made, would not have had a sufficient chance of success for the failure to have made the motion to have constituted ineffective assistance of counsel. From our review of the record, we further conclude that trial counsel was not ineffective in any other respect.{¶ 2} Kelly also argues that his conviction is against the manifest weight of the evidence. Given that a crack pipe containing cocaine residue was found in the back of his car, and that he admitted it was his, we conclude that his conviction is not against the manifest weight of the evidence. Finally, Kelly argues that the cumulative effect of multiple errors occurring at his trial deprived him of a fair trial, but our review of the record reflects only one error — one obvious misstatement in a jury instruction, which, in view of other instructions, was not likely to have misled the jury. The cumulative error doctrine for multiple errors occurring at trial has no application where there is but one error.
{¶ 3} The judgment of the trial court is Affirmed.
{¶ 5} With Kelly in the car was a woman who was identified in the trial testimony only as "Anna." Kelly produced his driver's license at St. Clair's request, thereby establishing his identity. Because it appeared that there was a warrant outstanding for Kelly's arrest, St. Clair patted him down, placed him in the back seat of the cruiser, and then proceeded to verify the existence of an active warrant.
{¶ 6} Once St. Clair had verified that there was, in fact, an active warrant outstanding for Kelly's arrest, he inventoried Kelly's car. Directly behind the front passenger seat, St. Clair found a plastic shopping bag containing a crack pipe and an unused copper Brillo scrub pad. There was burnt residue inside the pipe, which St. Clair believed, based upon his experience, to be drug residue.
{¶ 7} Anna told St. Clair that the crack pipe was not hers. When St. Clair went back to the cruiser and informed Kelly that he had found a crack pipe behind the passenger seat, Kelly said it was not his. St. Clair then gave Kelly warnings in accordance with Miranda v. Arizona
(1966),
{¶ 8} What happened next is worth setting forth in detail, from St. Clair's testimony:
{¶ 9} "Q. Okay. Did you eventually transport the defendant to the jail?
{¶ 10} "A. Yes, I did. While I'm inside my patrol car and before transporting him, I have a lot of paperwork to fill out. For example, his traffic citation I had to give him for the front license plate missing. I have a booking screen to fill out on the computer. And that gets sent to the central computer and it comes back to me with a booking number and that way when I get to the sally port, which is a small garage at the county jail, I can print that book sheet up and I sign it stating that Mr. Kelly is under arrest for the above violations which is the warrant for Huber Heights.
{¶ 11} "So while I'm doing all of this myself and Mr. Kelly and I are making some small talk and one of the things I said to Mr. Kelly was, you know, it really takes a man to go ahead and admit to the fact that he has done something wrong. Mr. Kelly told me, you know, he has a drug problem and I told Mr. Kelly that it is not a problem. Admitted to me he has a drug problem because I'm not going to charge him with a crime of having a drug problem. Because there is no Ohio Revised Code that says I have a drug problem, therefore, I'm going to be convicted of it. You know, I was advising him that, you know, you can get help out there. There are different agencies and that again it really takes a man to go ahead and admit the fact that he has done something wrong and take responsibility for that action. And after I'm done with my paperwork and my computer work, I went ahead and transported Mr. Kelly to the county jail in Montgomery County.
{¶ 12} "Q. Did he make any other statement to you about that particular crack pipe?
{¶ 13} "A. Yes. If you are familiar with Stanley, I took Stanley Avenue — Street to Route 4, took Route 4 towards downtown and this is before all the road construction that we are pretty familiar with and I'm in the far left-hand lane merging onto I-75 southbound and there is no talking going on between myself and Mr. Kelly.
{¶ 14} "I'm not asking him any questions. We are not talking about anything. And he simply utters I'm going to admit it and be a man. I will take responsibility. That was my crack pipe. At that time I asked Mr. Kelly, sir, if I have the crack pipe tested, is there going to be residue crack cocaine in the inside of the pipe, and he stated yes.
{¶ 15} "Q. Any other talk about the crack pipe at all?
{¶ 16} "A. No, sir."
{¶ 17} Kelly testified at trial. He denied ever having admitted to St. Clair that the crack pipe was his. Kelly could not recall having told St. Clair that he had a drug problem, and that he needed treatment. Kelly did remember St. Clair having "said something like," "it takes a man to admit he is wrong."
{¶ 18} Kelly was charged with Possession of Cocaine, in an amount less than 5 grams. Following a jury trial, he was convicted as charged, and sentenced accordingly. From his conviction and sentence, Kelly appeals.
{¶ 20} "APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL."
{¶ 21} Both parties agree that to prevail on a claim of ineffective assistance of counsel, a criminal defendant must demonstrate a reasonable probability that, but for his counsel's deficient performance, the result of his trial would have been different. Stricklandv. Washington (1984),
{¶ 23} St. Clair testified that after he had advised Kelly of his rights under Miranda v. Arizona, supra, he asked Kelly whether, now that he understood his rights, he was willing to answer any questions without a lawyer, and obtained Kelly's affirmative response. Kelly, who testified in his own defense, did not dispute this assertion. We conclude, therefore, that when Kelly allegedly made his admission, he had been advised of his Miranda rights, had been asked if he was willing to answer questions without a lawyer present, and agreed to do so.
{¶ 24} As Kelly points out, a confession made after Miranda warnings have been administered may, nevertheless, be inadmissible if the confession is not made voluntarily, knowingly and intelligently. Statev. Wilson (1996),
{¶ 25} A police officer's admonition to a suspect to tell the truth is not coercive in nature. State v. Wiles (1991),
{¶ 26} Kelly argues that his case is similar to Petitjean andArrington, because he was implicitly promised that he would not be prosecuted if he admitted that the crack pipe was his. However, as the State notes, in his testimony Kelly did not indicate that he inferred, from St. Clair's remarks, that he would not be prosecuted if he admitted that the crack pipe was his. Kelly's testimony is consistent with the State's position that St. Clair was merely admonishing him to acknowledge his drug problem, and get help for it. That Kelly's admission that he had a drug problem, and his admission that the crack pipe found in his car belonged to him, are two distinct things is evident from the fact that Kelly acknowledged, at trial, that he had a drug problem, but denied that the crack pipe belonged to him.
{¶ 27} As the State notes, four to five minutes elapsed between St. Clair's admonition to Kelly to admit his drug problem and get help for it, and Kelly's admission that the crack pipe was his, during which "there was no talking going on." It is Kelly's burden to demonstrate that a motion to suppress his confession, had it been made, would have had a reasonable probability of success. On this record, we conclude that he has failed to meet that burden. We conclude that the evidence adduced at trial falls far short of demonstrating that Kelly's will was overborne by St. Clair to such an extent that his admission that the crack pipe belonged to him was involuntary, and therefore inadmissible.
{¶ 30} When Kelly was cross-examined, the State brought out that he had previously been convicted for Theft and Forgery. Again, Kelly concedes that the State could properly use those convictions to impeach his credibility.
{¶ 31} Kelly contends that the fact that he had been picked up on an outstanding warrant "was emphasized over and over and over again at trial." We have reviewed the trial transcript, and we do not find that the outstanding arrest warrant was unduly emphasized. The nature of the charge to which the arrest warrant pertained was never communicated to the jury.
{¶ 32} As Kelly notes, there was no limiting instruction given to the jury regarding its consideration either of the pendency of the arrest warrant, or Kelly's prior convictions. Kelly contends that the failure to have requested a limiting instruction constitutes ineffective assistance of trial counsel. We are not persuaded.
{¶ 33} The essential issue of fact for the jury was whether, as St. Clair testified, Kelly admitted that the crack pipe was his, or whether, as Kelly testified, he made no such admission. During the voir dire of the jury, Kelly's counsel was able to establish, and emphasized, that a police officer's testimony is not intrinsically entitled to any greater weight than the testimony of any other witness. In our view, to have caused the judge to instruct the jury that it could consider the prior convictions only as they related to Kelly's credibility, would only have emphasized that the prior convictions could properly be considered for that purpose, thereby undermining the groundwork counsel had laid, during voir dire, for consideration of Kelly's testimony on a par with the testimony of the police officer. We can understand why defense counsel chose not to request that limiting instruction.
{¶ 34} We realize that the same analysis does not pertain to the failure to obtain a limiting instruction with respect to Kelly's outstanding arrest warrant. However, in our view, the existence of an outstanding arrest warrant was not unduly emphasized, and we conclude that there is no reasonable probability that the result of this trial would have been otherwise, had Kelly's trial counsel requested, and obtained, a limiting instruction concerning the testimony about the outstanding arrest warrant.
{¶ 36} Kelly's First Assignment of Error is overruled.
{¶ 38} "THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶ 39} A crack pipe containing cocaine residue was found in the back seat of Kelly's car. The jury heard credible testimony from police officer St. Clair that Kelly admitted that the crack pipe was his. We are not persuaded that Kelly's conviction is against the manifest weight of the evidence.
{¶ 40} Kelly's Second Assignment of Error is overruled.
{¶ 42} "THE CUMULATIVE EFFECT OF THE ERRORS OCCURRING AT TRIAL DEPRIVED APPELLANT OF A FAIR TRIAL."
{¶ 43} The only error that we have found in Kelly's trial is the following sentence in the instructions to the jury:
{¶ 44} "Consult with one another in the jury room and deliberate with a view to reaching an agreement if you can do so without rendering your individual judgment." This was an obvious misstatement. The trial court went on to give the following standard instructions:
{¶ 45} "Each of you must decide this case for yourself. You should not do so, however, only after a discussion of the case with the other jurors. Do not hesitate to change an opinion if convinced that it is wrong. However, you should not surrender your opinion considering the weight of the evidence in order to be congenial or to reach a verdict totally because of the opinion of other jurors."
{¶ 46} In view of the above-quoted passage from the instructions to the jury, we are satisfied that the misstatement preceding it, which was not the subject of an objection, is insubstantial.
{¶ 47} Multiple errors, no one of which is sufficiently prejudicial to require reversal, may nevertheless, when cumulated, have a prejudicial effect sufficient to require reversal. State v. DeMarco
(1987),
BROGAN and GRADY, JJ., concur.
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