[Cite as State v. Brooks,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 5-11-11

v.

MACK E. BROOKS, III, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2009 CR 105

Judgment Affirmed

Date of Decision: November 13, 2012

APPEARANCES:

Dennis C. Belli and Joseph E. Scott for Appellant

Mark C. Miller and Alex K. Treece for Appellee Case No. 5-11-11

WILLAMOWSKI, J.

{¶1} Plaintiff-Appellant, Mack E. Brooks III (“Brooks”), appeals the

judgment of the Hancock County Court of Common Pleas sentencing him to seven

years in prison after a jury found him guilty of aggravated possession of drugs.

On appeal, Brooks contends that many of his constitutional rights were violated

because of numerous errors by the trial court including the denial of his motion to

suppress, the denial of his right to effective assistance of counsel, the

consolidation of his trial with that of his co-defendant, and joint representation by

the same attorney as his co-defendant. He also claims that the jury’s decision was

not supported by sufficient evidence and was against the manifest weight of the

evidence. For the reasons set forth below, the judgment is affirmed.

{¶2} On June 2, 2009, the Hancock County Grand Jury returned an

indictment against Brooks, charging him with aggravated possession of drugs

(oxycodone pills)1 in violation of R.C. 2925.11(A), in an amount equal to or

exceeding five times the bulk amount, but less than fifty times the bulk amount, a

felony of the second degree. The Grand Jury also returned a separate indictment

against Brooks’ co-defendant, Jamila Smith (“Smith”; Brooks and Smith together,

“Defendants”), also for aggravated possession of drugs.

1 The original indictment stated that the drugs were Oxycontin. However, the laboratory report indicated that they were oxycodone. Both drugs are Schedule II controlled substances, and the difference in the type of drug did not change the quantification that the drugs were five to fifty times bulk amount. The prosecution moved to have the indictment amended, and the defense did not have any objection. (1/3/11 2011 Hrg. Tr. 28)

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{¶3} The charges arose after State Highway Patrol Trooper Kurt

Beidelschies stopped Brooks for a marked lanes violation shortly before midnight

on May 22, 2009. (Trial Tr. 253) Brooks and his passenger, Smith, were unable

to provide a valid copy of the rental agreement for the vehicle he was driving, and

they gave inconsistent stories about their travel plans. (Trial Tr. 256; 260-61)

While waiting to obtain verification of Brooks’ driver’s license and a valid rental

agreement, the trooper called for assistance from a canine unit. (Trial Tr. 261)

Deputy Frederick Smith of the Hancock County Sheriff’s Department, and his

trained dog, “Becky,” arrived at the scene. When Becky alerted on the vehicle, the

trooper placed Brooks and Smith in investigative detention in the rear of his

cruiser and conducted a search of the vehicle. (Trial Tr. 262-64) A second

trooper, Matthew Geer, arrived to assist. (Trial Tr. 464)

{¶4} During the search, the officers found marijuana, pictures of Brooks

holding large sums of money, an empty prescription pill bottle for oxycontin,

money ledgers and seven cell phones. (Trial Tr. 266) The search by the side of

the interstate lasted approximately thirty minutes after which time the vehicle was

driven to the Ohio State Highway Patrol Findlay Post, approximately seven miles

from the stop point, to continue the search. (Trial Tr. 273-74) Once back at the

station, all three officers continued to search the vehicle. Within the first 5-10

minutes, Trooper Geer noticed that the “B-Pillar” on the driver’s side of the

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vehicle was loose, and they discovered a large quantity of pills hidden inside.2

(Trial Tr. 275-76)

{¶5} After discovering the pills, Trooper Beidelschies asked if either of the

Defendants would like to talk with him. Smith indicated that she would be willing

to talk, so Trooper Beidelschies informed Smith of her Miranda rights and began

to question her. Smith confessed to the trooper that they were driving to West

Virginia to drop-off and pick up money, and that Brooks had agreed to pay her

$500 to accompany him. (Trial Tr. 295; 301-2, Exhibit 6) She admitted that this

was the second time she had made this trip down to West Virginia with Brooks.

Smith signed the confession form, handwritten in part by the trooper,

acknowledging their involvement in transporting the pills. (Trial Tr. 302, Ex. 6)

{¶6} Gene Murray, an Ohio attorney, was retained by Brooks and entered

his appearance for both Brooks and Smith on June 10, 2009. Brooks and Smith

entered pleas of “not guilty” and were released on bond. In July 2009, Mr. Murray

filed a Motion to Suppress, citing multiple grounds. After several continuances,

suppression hearings were held in September 2009 and March 2010. The trial

court denied the motion to suppress on June 21, 2010.

{¶7} On September 13, 2010, Mary Hickey, an attorney licensed in

Michigan, filed a motion to appear pro hac vice as counsel for both Defendants.

2 The “B-pillar” is the vertical support post on the driver’s side between the floor and the roof, separating the front and rear passenger compartments.

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Her motion represented that Mr. Murray would remain as local counsel to assist

and advise her with respect to Ohio practice and procedure. On September 28,

2009, Mr. Murray filed a motion to withdraw as counsel indicating that Brooks

and Smith had “employed newly retained counsel, Mary S. Hickey, esq., as * * *

defense attorney, to replace the undersigned movant counsel Murray.” The trial

court granted Mr. Murray’s motion the same day. The following day, the trial

court granted Ms. Hickey’s motion to appear pro hac vice.

{¶8} During an October 8, 2010 status conference, the trial court ordered

the scheduling of separate trial dates for each defendant to avoid constitutional

violations under Bruton v. United States,

(1968).3 (10/8/10 Hrg. Tr.

40-42). However, for reasons not evident in the record, both cases were combined

and consolidated for trial on January 3, 2011. As they were waiting for the jurors

to arrive for orientation on the day scheduled for trial, the trial court and attorneys

discussed some preliminary matters on the record.

{¶9} First, the trial court questioned Ms. Hickey concerning her decision,

and her clients’ decision, to allow Ms. Hickey to jointly represent them. (1/3/11

Hrg. Tr. 4) Ms. Hickey stated that she had found a waiver of potential conflicts

signed by both Defendants in the file she “inherited” from Mr. Murray, and that

she had talked with both Defendants about the conflict and informed them it was a

3 In Bruton, the United States Supreme Court held that a co-defendant's statement implicating a defendant cannot be used in a joint trial unless the co-defendant is available for cross-examination. Bruton,

.

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waiveable matter. And, the retainer agreement they both signed with her had

stated that they both had the right to separate counsel and that their interests would

be better served if they were represented by separate counsel. (Id. at 5) Ms.

Hickey also stated that she met separately with Smith to make sure that she wanted

to go forward with her as their joint attorney, “particularly in light of the State’s

offer to allow [Smith] to plead to a reduced charge if she would testify against Mr.

Brooks.” (Id.) Ms. Hickey stated that she was satisfied that the waivers were

knowing and voluntary. (Id.)

{¶10} The trial court also addressed the potential problem of having a joint

trial and whether the admission of Smith’s statement would violate any

constitutional rights under Bruton and Crawford v. Washington, 541 U .S. 36

(2004).4 Ms. Hickey indicated that her clients would be willing to waive any

Bruton issues and the prosecution prepared a waiver for the Defendants to sign.

(1/3/11 Hrg. Tr. 5-6) The trial court then granted Ms. Hickey’s request for a

continuance, due to the prosecution’s failure to timely provide requested discovery

materials that Ms. Hickey claimed she needed for trial.

{¶11} The joint trial was finally held on February 7, 8, and 9, 2011, nearly

two years after the initial traffic stop. Trooper Beidelschies, Trooper Geer, and

4 In Crawford, the United States Supreme Court held that a defendant's federal confrontational constitutional rights are violated by the admission of “testimonial” statements of witnesses absent from trial unless the witness is unavailable to testify and when the defendant had a prior opportunity to cross-examine the witness.

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Deputy Smith testified as witnesses for the State, describing what occurred when

Trooper Beidelschies made the initial traffic stop, when Deputy Smith arrived and

Becky alerted on the vehicle, and how they conducted the initial search of the

vehicle beside the interstate. After finding the marijuana, photos of Brooks with

quantities of money, the ledgers, an empty pill container, a plastic baggie, and

multiple cell phones, the officers testified that the finding of these “criminal

indicators” led them to believe that there might be a significant amount of drugs in

the vehicle. (Trial Tr. 476) It was then decided to move the vehicle back to the

station for purposes of the officers’ safety and so that they could conduct the

search with better lighting and the availability of tools to facilitate searching the

vehicle, especially given that they had found evidence of tampering with the seat

bolts, which could indicate the presence of a hidden compartment. (Id. at 274;

457, 463) All three of the officers were present when Trooper Geer found several

bags containing over one-thousand pills hidden in the B-Pillar. (Id. at 492) The

officers recognized the pills to be narcotics because of their markings, and divided

the tablets between the three of them for counting, in order to facilitate the

counting process. (Id. at 342-46) The testimony from all three of the officers as to

what occurred was consistent with each of the other’s testimony.

{¶12} The video record of the traffic stop and initial search from Trooper

Beidelschies’ vehicle’s video camera was also played for the jury. (State’s Exhibit

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7) However, this video recording was incomplete and ended before the search was

concluded. Trooper Beidelschies testified that he did not realize that the video

card was almost full when he began his shift that evening and that it had stopped

recording because it had run out of memory space. (Trial Tr. 431-35) They did

not record the search of the vehicle back at the Highway Patrol Post because it was

not typical to do so, there was no recording equipment in the area where they

conducted the search, and there was no reason to record the search because there

were three officers present to witness what was occurring. (Trial Tr. 492)

Trooper Geer testified that the Defendants also witnessed the search. (3/25/10

Suppression Hrg. Tr. 25)

{¶13} Heather Sheskey, a forensic chemist and experienced criminologist

with the Ohio State Highway Patrol Crime Laboratory, testified as to the process

of analyzing the drugs, the chain of custody, the quantity of pills that she tested,

and the fact that the pills were various strengths of Oxycontin, which was a

proprietary name for these pills, which contained the drug oxycodone. (Trial Tr.

384-409.) Trooper Beidelschies had testified that he was “embarrassed” because

there was a discrepancy between the amount of pills that he had reported as being

found (1,152), the amount of pills he testified to at the suppression hearing

(1,159), the amount of pills in his property report (1,418); and the amount of pills

in Ms. Sheskey’s laboratory report (1,132). However, he indicated that the

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discrepancy had probably occurred because they had divided the drugs up to be

counted between the three officers, with each officer counting either the 40 mg.,

60 mg., or 80 mg. pills. (Trial Tr. 372) Trooper Beidelschies testified that their

initial count was more of a “rough count” on the date of the traffic stop; that their

counts definitely revealed that they had over one-thousand pills; and, that the final

official tally would be what the crime lab determined because it would have the

machinery to do a more accurate count. (Id. at 348)

{¶14} In any case, Ms. Sheskey confirmed that she had no doubt that the

pills contained in State’s Exhibit 8 were Oxycontin 80 mg. pills containing

oxycodone; that that there were 390 tablets of this strength in total; that the bulk

amount for the drug in this strength was 6 tablets; that 50 times the bulk amount

would be 300 tablets; and, that there were definitely more than 300 total of these

tablets in the State’s exhibits that contained the 80 mg. pill strength. (Trial Tr.

409-11)

{¶15} The Defendants’ attorney cross-examined the State’s witnesses

extensively and tried to discredit their testimony by suggesting that the records of

the chain of custody were insufficient; that there were discrepancies in the amount

of pills alleged found; that the officers had failed to follow departmental

procedures regarding making video and audio recordings of the events that

transpired that night; that there was something improper in the fact that Trooper

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Beidelschies had written most of Smith’s confession; that there were no witnesses

to Smith’s statement; and, that it was improper to detain the Defendants for as

long as they did and then to drive the vehicle back to the post to continue to the

search. Ms. Hickey suggested that “evidence has been, if not manufactured, that it

was actively misrepresented in the official record.” (Trial Tr. 776-77, Defendants’

Closing Argument)

{¶16} The defense also offered the testimony of a video forensic expert

witness, Edward Primeau, who testified that it was his opinion that there were

three possible reasons why the video terminated before the end of the search: the

equipment malfunctioned, the storage device was full, or it was turned off or

tampered with. (Trial Tr. 708-12) He believed this video had been turned off.

(Id.) However, on cross examination, he acknowledged that he could not state

how much recording time may have been left on the memory at the time the

recording commenced. (Id. at 714)

{¶17} After considering all of the testimony and the exhibits that were

admitted, the jury found both Brooks and Smith guilty of aggravated possession of

drugs, a felony of the second degree. The matter was set for sentencing.

{¶18} At the March 2, 2011, sentencing hearing, Brooks and Smith

appeared with new defense counsel and indicated that they no longer wished to

have Ms. Hickey represent them. Ms. Hickey was then discharged as defense

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counsel, and Stephanie Lape and Adam Bleile commenced representation of the

Defendants.

{¶19} The new defense counsel had filed a motion for a mistrial pursuant to

Crim.R. 33(A)(1), claiming that the Defendants were denied a fair trial due to an

irregularity in the proceedings, namely the fact that they were represented by Ms.

Hickey, who they claim was not properly admitted pro hoc vice to practice law in

the State of Ohio. (Sentencing Tr. 52) After considering the arguments of the

parties, the trial court found that there was no evidence that the Defendants did not

receive a fair trial and denied the motion for a new trial. (Sent. Tr. 55; Mar. 22,

2011 Decision)

{¶20} The trial court then proceeded to separately sentence the Defendants.

The State requested the maximum 8-year sentence and the maximum $15,000 fine

for Brooks, based upon Brooks’ significant criminal history. The trial court

sentenced Brooks to a mandatory 7-year prison term and a $10,000 fine.5 (Mar.

24, 2011 J.E.)

{¶21} It is from this judgment that Brooks now appeals, raising the

following eight assignments of error for our review.

5 The trial court sentenced Smith to two years in prison. (May 12, 2012 Nunc Pro Tunc J.E.). The trial court stated that it believed that, based upon the evidence in the record, Brooks’ role was considerably more significant than Smith’s. (Sent. Tr. 82)

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First Assignment of Error

[Brooks’] conviction for aggravated possession of drugs is not supported by evidence sufficient to satisfy the requirements of the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution; or alternatively, is against the manifest weight of the evidence.

Second Assignment of Error

The court of common pleas committed reversible error when it denied [Brooks’] motion to suppress the oxycodone that was seized by the highway patrol during a warrantless search of his rental vehicle in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the Ohio Constitution.

Third Assignment of Error

The existence of an actual conflict of interest arising from defense counsel’s simultaneous representation of [Brooks] and his Co-Defendant adversely affected counsel’s performance and deprived him of his right to the assistance of unconflicted counsel under the Sixth and Fourteenth Amendments to the United States Constitution.

Fourth Assignment of Error

The common pleas court’s failure to conduct an adequate rights waiver colloquy, its perfunctory acceptance of a defectively- worded “Bruton waiver,” and its consolidation of [Brooks’] jury trial with the trial of his Co-Defendant constituted plain error and violated his right of confrontation and right to due process under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

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Fifth Assignment of Error

The admission of the “criminal indicators” testimony of the state trooper and the oxycodone pills without an adequate chain of custody violated the Rules of Evidence and deprived [Brooks] of his due process right to a fundamentally fair jury trial in violation of Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

Sixth Assignment of Error

The prosecutor’s improper remarks regarding the accusatory statements of the Co-Defendant and [Brooks’] post-Miranda silence, coupled with the failure of the trial court to give limiting or corrective instructions to the jury, constituted plain error and violated [Brook’s] right of confrontation and due process right to a fundamentally fair jury trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

Seventh Assignment of Error

The common pleas court’s failure to conduct proceedings in [Brooks’] presence regarding local counsel’s motion to withdraw, and its subsequent denial of his motion for a new trial for irregularity in the proceedings, was error and violated his right to an Ohio-licensed attorney and right to be present during all critical stages of the prosecution under Crim.R. 43 and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

Eighth Assignment of Error

[Brooks] was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

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{¶22} Because several of Brooks’ assignments of error deal with similar

and over-lapping issues, we shall combine our discussion of some of the

assignments of error and address some of the issues out of order.

Second Assignment of Error – Denial of Motion to Suppress

{¶23} The second assignment of error asserts that the trial court erred when

it denied Brooks’ pretrial motion to suppress evidence seized from the rental

vehicle. Brooks maintains that under the Exclusionary Rule, the State should have

been prohibited from using the evidence obtained through what he characterizes to

be an illegal search. Brooks has not challenged the probable cause for the original

traffic stop but he contests (1) the length of the initial detention of the vehicle until

the arrival of the canine unit; (2) the search of the passenger compartment, when

the canine alerted only on the trunk; and, (3) moving the vehicle to the patrol post

for a more extensive search.

{¶24} The United States Supreme Court has held that “[t]he Fourth

Amendment [of the United States Constitution] provides that ‘the right of the

people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated * * *.’ This inestimable

right of personal security belongs as much to the citizen on the streets of our cities

as to the homeowner closeted in his study to dispose of his secret affairs.”

(Emphasis added.) Terry v. Ohio,

, 8–9 (1968). Similar protection

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exists pursuant to Section 14, Article I of the Ohio Constitution. See State v.

Wilson, 3d Dist. No. 5–07–47, 2008–Ohio–2742, ¶ 16. When evidence is obtained

as a result of an unlawful search and seizure, it must be suppressed.

citing

Mapp v. Ohio,

(1961).

{¶25} Our review of a trial court’s ruling on a motion to suppress presents a

mixed question of fact and law. State v. Burnside,

, 2003–

Ohio–5372, ¶ 8, citing State v. Mills,

(1992). At a

suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses.

Therefore, deference is given to the trial court's findings of fact so long as they are

supported by competent, credible evidence.

However, with respect to the trial

court's conclusions of law, our standard of review is de novo and we must decide

whether the facts satisfy the applicable legal standard.

citing State v.

McNamara,

(4th Dist. 1997).

{¶26} When an individual has been detained so that the police may

investigate a traffic violation, the police may detain that person for the length of

time necessary to check the driver's license, vehicle's registration, and the vehicle's

license plate. State v. Batchili,

, 2007–Ohio–2204, ¶ 12. “In

determining if an officer completed these tasks within a reasonable length of time,

the court must evaluate the duration of the stop in light of the totality of the

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circumstances and consider whether the officer diligently conducted the

investigation.”

quoting State v. Carlson,

(9th

Dist. 1995).

{¶27} If, during the investigation of the events that gave rise to the initial

stop, the officer discovers additional facts from which it is reasonable to infer

additional criminal activity, the officer is permitted to lengthen the duration of the

stop to investigate such suspicions. State v. Williams, 9th Dist. No. 09CA009679,

2010–Ohio–3667, ¶ 15, citing Batchili,

; State v.

Robinette,

, 1997–Ohio–343. However, a law enforcement

officer needs no suspicion to request a canine sniff nor does the officer need

suspicion to conduct an exterior canine sniff of the vehicle as long as it is done

contemporaneously with the legitimate activities associated with the traffic

violation. State v. Hollins, 3d Dist. No. 5-10-41,

.

{¶28} After hearing the testimony and reviewing the video of the traffic

stop, the trial court found that the Defendants had not been detained for an

unreasonable amount of time before the dog alerted on the vehicle, and that their

detention during that time was proper according to the law. The traffic stop

occurred at approximately 11:15 p.m. (6/21/10 Hrg. Tr. 10) Trooper Beidelschies

asked Brooks to exit his vehicle and sit in the patrol car while the trooper initiated

a LEADS check to determine both the driver’s and passenger’s driving status and

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the status of the rental vehicle, since the rental agreement they presented was not

valid. (Id.) At approximately 11:23, the trooper returned to the vehicle to

determine if another rental agreement existed which would provide verification of

Brooks’ ability to operate the car. (Id. at 11) The trooper became suspicious due

to the inconsistent stories given by the Defendants as to why they were traveling,

and he summoned the canine unit to assist. Deputy Smith and canine Becky

arrived at 11:34, and the canine alerted to the vehicle within the first few minutes.

{¶29} The time from the initial traffic stop until Becky alerted was only

about thirty minutes. (Id.) More importantly, the trooper still had not yet

received verification that Brooks had renewed the rental agreement and was in

lawful possession of the vehicle until after Becky hit on the vehicle. Based on

these circumstances, the time spent to conduct the stop and background check was

not excessive. “A traffic stop is not unconstitutionally prolonged when

permissible background checks have been diligently undertaken and not yet

completed at the time a drug dog alerts on the vehicle. Batchili,

. There is no evidence that the traffic stop was prolonged beyond

legitimate purposes. The trooper had to wait until he received verification that

Brooks was authorized to operate the vehicle before he could allow him to drive

away. An officer may review a rental agreement in addition to conducting

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background checks of the driver's license and the vehicle's registration. State v.

Hollins, 3d. Dist. No. 5-10-41,

.

{¶30} Next, Brooks claims that because the canine alerted on the trunk

area, and they found Smith’s purse containing a small amount of marijuana in the

trunk, the officers had no reason or right to continue searching the passenger

compartment. Smith acknowledged that she had a small amount of marijuana for

personal use in her purse that was located in the trunk. Brooks argues that the

trooper should have issued a misdemeanor citation for the marijuana and

concluded the traffic stop.

{¶31} Brooks’ argument fails for several reasons. Ohio courts have

consistently held that once a certified drug sniffing dog alerts to a vehicle, officers

have probable cause to search the entire vehicle. See e.g. State v. Chambers, 3d

Dist. 5-10-29,

; State v. Nguyen,

,

(6th Dist.), ¶ 22; State v. Buckner, 2d Dist. No. 21892, 2007-

Ohio-4329, ¶ 19; State v. Almanzan, 9th Dist. No. 05CA0098-M,

. Deputy Smith also testified that the location where the canine alerts is the

location where the scent escapes the vehicle and may not necessarily be the actual

location of the of the drugs. (Trial Tr. 597) And, once the officers found the

marijuana in Smith’s purse, they had no way of knowing that there was not more

marijuana located elsewhere unless they searched the entire vehicle. Furthermore,

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when the officers searched the trunk of the car, they found more items that they

considered indicators of possible criminal activity that caused them to have

probable cause to believe that the vehicle’s occupants were engaged in drug-

related activities.

{¶32} Lastly, Brooks maintains that the trial court erred in concluding that

probable cause justified removing the vehicle to the post in order to search for

hidden compartments. Brooks acknowledges that the “automobile exception”

allows a police officer to conduct a warrantless search of portions of a motor

vehicle provided he has probable cause to believe it contains evidence of a crime.”

See Carroll v. United States,

(1925). However, he again

argues that once the marijuana in Smith’s purse was found, the probable cause

dissipated. And, he contends that the officers’ statements that they moved the

vehicle to the station was for their safety was merely a pretext because they had

already searched the vehicle by the side of the road for thirty minutes.

{¶33} The United States Supreme Court has held that there is no

prohibition in moving a car to the station in order to conduct a probable cause

search under more practical, and perhaps safer, conditions. Chambers v. Maroney,

(1970) (“It was not unreasonable in this case to take the car to the

station house. * * * A careful search at that point was impractical and perhaps not

safe for the officers, and it would serve the owner's convenience and the safety of

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his car to have the vehicle and the keys together at the station house.”). The

probable cause factor that was present at the scene is “still obtained at the station

house.”

This logic has been followed by Ohio courts. See e.g. State v.

Carpenter, 9th Dist. No. 2667-M,

(believing that they had

probable cause to search the trunk, and having no other way to enter it, the officers

towed the vehicle to the Medina Highway Patrol Post, where they could, if

necessary, employ a locksmith to open the trunk); State v. Jones, 1st Dist. No. C-

75272,

(troopers moved the vehicle three miles to the patrol post

where the lighting conditions were better and the troopers could conduct the

search without the fear of being struck by the turnpike traffic).

{¶34} The trial court did question the officers’ claim about the necessity of

moving the vehicle for officer safety, since they had already been searching it by

the side of the highway for thirty minutes. However, when they began the search,

they had no idea how long it might take, and it is understandable that concerns

about safety may have increased the longer they were there and at risk. However,

their testimony indicates that their primary reason was to have access to better

lighting, and tools, if necessary, since their initial search showed signs of

tampering with the seat bolts that may have meant there was a secret compartment

in the vehicle. We find no error in the trial court’s determination that once the

existence of probable cause was established though the drug dog, there was no

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constitutional impediment to moving the vehicle to finalize the search. (6/21/10

Hrg. Tr. 21-22)

{¶35} Based on all of the above, the trial court’s decision to deny the

motion to suppress was consistent with the facts in the record and the applicable

law. Brooks’ second assignment of error is overruled.

Fifth Assignment of Error – Improper Admission of Evidence at Trial

{¶36} In the fifth assignment of error, Brooks maintains that evidence

concerning the so-called “criminal indicators” was irrelevant and inflammatory,

and that its probative value was substantially outweighed by its prejudicial effect.

Furthermore, he claims that the pills should have been excluded due to the State’s

failure to establish a satisfactory chain of custody or an accurate count.

{¶37} Evidence is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury. Evid.R. 403(A). It is well established that the decision to

admit or exclude evidence is within the sound discretion of the trial court and that

an appellate court will not disturb that decision absent an abuse of discretion.

State v. Sage,

(1987), paragraph two of the syllabus; State v.

Swann,

,

, ¶ 33. The trial court is vested with

this discretion because it is in a much better position than we are to evaluate the

authenticity of evidence and assess the credibility and veracity of witnesses. State

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v. Hancock,

,

¶ 129. “Abuse of discretion”

implies that the trial court's decision was arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore,

(1983).

Furthermore, because there was no objection raised to this testimony, Brooks has

waived all but plain error. In order to find plain error, Crim.R. 52(B) requires that

there must be a deviation from a legal rule, the error must be an “obvious” defect

in the trial proceedings, and the error must have affected a defendant's “substantial

rights.” State v. Barnes,

,

. An alleged error

constitutes plain error only if the error is obvious and, but for the error, the

outcome of the trial clearly would have been different. State v. Yarbrough,

,

. Plain error is to be used “with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Barnes, 94 Ohio St.3d at 27.

{¶38} The officers testified that the photos of Brooks holding quantities of

money, the money ledgers, the empty pill bottle, the plastic bag, multiple cell

phones, multiple car rental agreements, and inconsistent stories indicated to them,

based upon their professional experience, that such items and occurrences were

often associated with criminal activity. The “criminal indicators” as Trooper

Beidelschies called them, provided the officers with probable cause to continue

searching the vehicle. These were simple facts that were necessary to describe

-22- Case No. 5-11-11

what occurred. It was also appropriate for the jury to consider the testimony

concerning these items, along with the other evidence that was presented, and to

decide for themselves whether this gave rise to an inference of drug activity in this

case. We do not find that the admission of this testimony was an abuse of

discretion, and it certainly did not affect Brooks’ substantial rights or create a

manifest miscarriage of justice.

{¶39} As to the “chain of custody” of the pills, the State has the burden of

establishing the chain of custody of a specific piece of evidence but the State's

burden is not absolute; “[t]he state need only establish that it is reasonably certain

that substitution, alteration or tampering did not occur.” State v. Barzacchini,

(6th Dist. 1994). As a general matter, “the state [is] not required

to prove a perfect, unbroken chain of custody.” State v. Gross,

,

, ¶ 57, citing State v. Keene,

(1998).

While authentication of evidence is a condition precedent to its admission, the

condition is satisfied when the evidence is “sufficient to support a finding that the

matter in question is what its proponent claims.” Evid.R. 901(A); State v. Hunter,

, 2006–Ohio 5113, ¶ 16. Evidence of a process or system to

produce an accurate result is sufficient to satisfy the rule. Evid.R. 901(B)(9).

Breaks in the chain of custody go to the weight afforded the evidence, not its

admissibility. State v. Blevins,

, (10th Dist. 1987).

-23- Case No. 5-11-11

{¶40} The testimony of Trooper Beidelschies and the property control

forms indicated a proper chain of custody for the pills. The trial court addressed

this concern and found no faults with the chain of custody. During the instances

that Brooks complains the records did not show the correct person with custody

and control of the pills, Beidelschies explained that he was also with the pills

during the times when multiple people were involved, so it was sufficient to only

list his name; that the pills never left his custody and control during those times;

and that this satisfied the procedures and requirements. Brooks also complains

that the trooper used a gun locker to store and secure the pills at one point.

Trooper Beidelschies explained that he maintained control of the key to that locker

and the fact that it was placed in a “gun locker” rather than an “evidence locker”

did not impair its chain of custody. (Trial Tr. 375-76)

{¶41} As to the inconsistent pill counts, Trooper Beidelschies testified that

it was three or four o’clock in the morning by the time the three officers counted

the pills and they were all tired from the night’s activities involving the search and

arrests. While it was unfortunate that the pill count was not completely accurate,

he explained that it always showed there were over one thousand pills, and that he

depended on the crime lab to establish a perfectly accurate count. Furthermore,

because of the discrepancy, the State only admitted the 390 pills in the 80 mg.

strength. The State only had to prove that there were more than 30 pills of that

-24- Case No. 5-11-11

strength to equal five times the bulk amount, so any inaccuracy in the count of

pills over that number was immaterial, as long as it was clearly established that

there were at least 30. (Trial Tr. 744-745)

{¶42} Here, Brooks’ counsel did object to the admission of the pills, but we

find that the trial court did not err in determining that there were no fatal flaws in

the chain of custody. Brooks’ fifth assignment of error is overruled.

First Assignment of Error – Evidence Insufficient and Against Manifest Weight

{¶43} In this assignment of error, Brooks argues that there was insufficient

evidence to tie Brooks to the pills and find him guilty of aggravated possession

because: (1) his mere presence in the rental vehicle was not sufficient to

demonstrate constructive possession of the drugs; (2) Smith’s inconsistent

statements concerning the purpose of their trip and Smith’s confession implicating

Brooks must be disregarded because they are “testimonial” statements under

Crawford v. Washington,

(2004) and he did not have the opportunity to

cross examine Smith; and, (3) the testimony concerning the multiple “criminal

indicators” violated the rule against the impermissible stacking of inferences.

Without this evidence, which Brooks asserts must be disregarded, he maintains

that there was insufficient evidence to support his conviction as a matter of law.

{¶44} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence

-25- Case No. 5-11-11

submitted at trial, if believed, could reasonably support a finding of guilt beyond a

reasonable doubt. See State v. Thompkins,

, 1997–Ohio–52

(stating, “sufficiency is the test of adequacy”); State v. Jenks,

(1991). The standard of review is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

all the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia,

(1979). This test raises a question of law and

does not allow the court to weigh the evidence. State v. Martin,

(1st. Dist. 1983).

{¶45} Brooks was found guilty of violating R.C. 2925.11(A), which

provides “[n]o person shall knowingly obtain, possess, or use a controlled

substance.” “‘Possess’ or ‘possession’ means having control over a thing or

substance, but may not be inferred solely from mere access to the thing or

substance through ownership or occupation of the premises upon which the thing

or substance is found.” R.C. § 2925.01(K). The issue of whether a person charged

with drug possession knowingly possessed a controlled substance “is to be

determined from all the attendant facts and circumstances available.” State v.

Teamer,

, 492, 1998–Ohio–193.

{¶46} Possession may be actual or constructive. State v. Cuffman, 3d Dist.

Nos. 3-11-01, 3-11-02,

, citing State v. Worley, 46 Ohio

-26- Case No. 5-11-11

St.2d 316, 329 (1976). For constructive possession to exist, the State must

demonstrate that the defendant was able to exercise dominion or control over the

item, even if he/she does not have immediate physical possession of it, and was

conscious of the object's presence. State v. Hankerson,

,

(1982); State v. Messer,

(9th Dist. 1995). See, also, State

v. Cooper, 3d Dist. No. 9–06–49, 2007–Ohio–4937, ¶ 25. The State may prove

the existence of the various elements of constructive possession of contraband by

circumstantial evidence. State v. Jenks,

, 272–73.

{¶47} We find there was sufficient evidence that, when viewed in a light

most favorable to the State, a rational trier of fact could have found that Brooks

had constructive possession of the drugs. Although the vehicle involved was a

rental vehicle, Brooks was the person listed on the rental agreement and had

recently renewed the rental agreement. The fact that a defendant possesses the

keys to an automobile is a strong indication that he possesses the automobile and

the items inside. State v. Ray, 9th Dist. No. 03CA0062-M,

.

Brooks was driving the vehicle at the time and the drugs were located within his

reach, hidden in the column immediately behind and adjacent to the driver’s seat.

He was certainly able to exercise dominion and control over the contraband.

{¶48} In State v. Rodgers, 3d Dist. No. 5-10-35,

, this

Court found that there was sufficient evidence to find that the defendant had

-27- Case No. 5-11-11

constructive possession of the drugs found in the rental vehicle. Even though the

vehicle was not rented in his name, the defendant was driving the vehicle and

acknowledged that he was the person responsible for returning the vehicle.

See also State v. Reed, 10th Dist. No. 09AP-84,

, ¶ 21 (although

uncertain whether the defendant owned or rented the car, when a person is the

driver or a passenger in a car in which drugs are within easy access, a trier of fact

may find constructive possession).

{¶49} Brooks cites to our decision in State v. Cooper, 3d Dist. No. 9-06-49,

, and asserts that a defendant’s “mere presence in a non-owned

motor vehicle occupied by more than one person is insufficient to demonstrate

guilty knowledge and constructive possession.” (Appellant’s Brief, p. 6)

However, Cooper is distinguishable from the facts in this case in several ways.

Cooper was merely a passenger in the vehicle, which was driven by and under the

control of a known drug-dealer. There was no evidence that Cooper knew where

the drugs were or that they were within his reach, and there was evidence that he

had never touched the drugs and was not a part of the drug transaction that had

occurred. Id. at ¶ 29. In this case, Brooks was clearly the person in control of this

vehicle, even though it was a rental vehicle. There was no contradictory evidence

that would have indicated the drugs belonged to someone else, like in Cooper.

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{¶50} And, the officers also testified as to finding seven cell phones and

pictures of Brooks holding large amounts of cash. In Westlake v. Wilson, 8th Dist.

No. 96948,

, the appellate court heard testimony that drug

dealers often have large amounts of cash and multiple cell phones on them, and

found this to be a factor in finding constructive possession. The court recognized

that merely having a cell phone is ubiquitous and is not ipso facto proof that it was

used in drug trafficking, but the same cannot be said about having multiple cell

phones. Id.; see also State v. Byers, 8th Dist. No. 94922, 2011–Ohio–342, ¶ 9.

{¶51} “Mere presence in the vicinity of drugs, coupled with another factor

probative of dominion or control over the contraband, may establish constructive

possession.” Cooper, at ¶ 26. Here, Brooks was close enough to the drugs to

establish dominion and control over them; he was driving the car; the vehicle had

been rented to him and he had renewed the rental agreement; Brooks and Smith

gave inconsistent stories about what they were doing; there were pictures of

Brooks holding quantities of money, along with ledgers; there was an empty bill

bottle of oxycontin (not in Brooks’ name); and seven cell phones were found in

the vehicle. There were multiple factors present here which would allow a

reasonable jury to find that Brooks possessed the pills that were found in the car

he was driving.

-29- Case No. 5-11-11

{¶52} However, Brooks also argues that inferring constructive possession

from the multiple cell phones, inconsistent stories, and other circumstantial

evidence would amount to an improper “stacking” of inferences. Brooks is

mistaken because in this case, the multiple inferences are not “stacked” upon one

another, the multiple inferences all point to the same conclusion – that Brook

possessed the drugs.

Inferences may be drawn from circumstantial evidence so long as one inference is not drawn wholly from a fact the existence of which rests solely on another inference. Thus, a jury may base its verdict partly on reasonable inferences drawn from facts in evidence, and partly on other inferences drawn from the same facts and common human experience. Such is not an impermissible stacking of inferences.

State v. Carver, 3d Dist. No. 11-95-14,

, citing Motorists Mut.

Ins. Co. v. Hamilton Township Trustees,

(1986).

{¶53} And finally, Brooks maintains that Smith’s statement implicating

him must be disregarded in attempting to prove his guilt, because a co-defendant’s

confession or admissions cannot be used as evidence of his guilt, especially when

he did not have the opportunity to confront Smith about the statements. However,

as discussed in our response to the fourth assignment of error below, even if the

statement made by Smith is not considered and is completely disregarded, there

was more than sufficient evidence to support a finding of guilt beyond a

reasonable doubt. The use of Smith’s confession would probably have been

-30- Case No. 5-11-11

necessary in order to prove that Brooks was trafficking in drugs, as her statement

constituted the primary evidence that they were making the trip to West Virginia

in order to sell the drugs, and that this was not the first time they had done so.

However, Brooks was not charged with trafficking. Brooks was charged only with

possession of the drugs, and there was ample evidence to support that conviction.

{¶54} Finding that there was sufficient evidence to support Brooks’

conviction, we look at the second part of this assignment of error, claiming that the

decision was against the manifest weight of the evidence. In determining if a

conviction is against the manifest weight of the evidence, an appellate court

“review[s] the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial

ordered.” State v. Mendoza,

, 346–347 (3d Dist. 2000),

quoting State v. Martin,

, (1st Dist. 1983); see, also, State

v. Thompkins,

(1997). A new trial should be granted only

in the exceptional case in which the evidence weighs heavily against conviction.

.

{¶55} Although the appellate court acts as a “thirteenth juror,” it still must

give due deference to the findings made by the fact-finder. State v.

-31- Case No. 5-11-

, 529 (8th Dist. 1998). The fact-finder, being the jury, occupies a

superior position in determining credibility.

When examining witness

credibility, “[t]he choice between credible witnesses and their conflicting

testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.” State v. Awan,

(1986).

{¶56} Two state troopers and a sheriff’s deputy all presented consistent,

believable, logical, and uncontroverted testimony concerning what occurred the

night that Brooks was stopped and the drugs were found. There was no evidence

or testimony to contradict their testimony, other than Mr. Primeau, who testified

that it was his opinion that the video recording had been turned off. However, he

acknowledged he had no real way to determine if that had occurred. There was no

evidence – or even a theory – offered as to why the officers would have turned off

the video and somehow conspired to misrepresent what occurred that evening.

The portion of the video that was shown to the jury and admitted into evidence

was consistent with the testimony of the officers and would support the testimony

that the video stopped recording because it ran out of memory space. It was up to

the jury to decide the credibility of the witnesses.

{¶57} Brooks also cites legitimate uses for each of the incriminating items

that were found in the vehicle, and claim that they don’t necessarily indicate

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criminal activity. While that may be true for each item individually, it stretches

credibility to infer a completely innocent use for each and every item when they

are all viewed together under the totality of the circumstances. We cannot say that

the jury lost its way or created a miscarriage of justice.

{¶58} We find that there was sufficient competent, credible evidence to

find that Brooks was guilty of aggravated possession of drugs, and that the jury’s

decision was not against the manifest weight of the evidence. The first assignment

of error is overruled.

Fourth Assignment of Error – Joint Trial and Defective Bruton Waiver

Brooks claims that the consolidation of his trial with the trial of his co-defendant

amounted to plain error. If the trials had been held separately, Smith’s statement,

which also implicated Brooks, would not have been admissible and the jury would

not have heard the trooper’s testimony concerning his interview with Smith.

Brooks claims that without the information in Smith’s statement, there would have

been insufficient knowledge to find constructive possession.

{¶59} Brooks acknowledges that he and his co-defendant agreed to waive

any Bruton issues, and signed a waiver provided by the prosecutor. However, he

asserts that his waiver was invalid because the language of his waiver form was

defective and misleading; his counsel’s conflict of interest in representing both co-

defendants precluded him from receiving competent and unbiased advice; and, the

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trial court failed in its duty to engage Brooks in a meaningful colloquy for

purposes of ensuring he was making a knowing intelligent and voluntary waiver.

{¶60} The Sixth Amendment to the United States Constitution guarantees

that a person accused of committing a crime has the right to confront and cross-

examine witnesses testifying against him. Pointer v. Texas,

(1965). Section 10, Article I of the Ohio Constitution contains a similar guarantee

of confrontation. The United States Supreme Court in Bruton v. United States,

(1968), held that an out-of-court statement of a co-defendant cannot

be admitted into evidence against the other defendant because the defendant is

unable to attack the statement by cross-examination (unless the co-defendant

testifies and waives his right against self-incrimination). Thus, the admission of

the co-defendant’s statement violated Bruton’s rights under the Confrontation

Clause of the Sixth Amendment to the United States Constitution.

The Ohio

Supreme Court, in State v. Moritz,

(1980), paragraph one of the

syllabus, followed Bruton and recognized that an 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 co-defendant by the admission of the

co-defendant’s extrajudicial statements incriminating the accused.

{¶61} Because there was no objection to the joint trial, Brooks concedes

that review is again under the plain error standard. Crim.R. 52(B) distinguishes

-34- Case No. 5-11-11

between errors to which a defendant objected at trial and errors that a defendant

failed to raise at trial. If the defendant failed to raise an error affecting substantial

rights at trial, an appellate court reviews the error under the plain-error standard in

Crim.R. 52(B). Under that rule, the defendant bears the burden of demonstrating

that a plain error affected his substantial rights. State v. Perry,

(2004).

{¶62} However, the State argues that any evaluation of this alleged error

must begin with the doctrine of “invited error” because both Brooks and his co-

defendant sought joint representation by Ms. Hickey and a joint trial. (1/3/11 Hrg.

Tr. 8) “A party cannot take advantage of an error he invited or induced.” State v.

Seiber,

(1990). This Court has held that “it is invited error

when a party asks a court to take some action later claimed to be erroneous.” State

v. Harper, 3d Dist. No. 1-05-79,

, citing State v. Campbell,

, 2000–Ohio–183. Other Ohio courts have upheld the

consolidation of cases and waiver of any rights under Bruton under the theory of

invited error. In State v. Doss, 8th Dist. No. 84433,

, as in this

case, the defendant was present while trial counsel agreed to waive any Bruton

issues. The Eighth District Court of Appeals held that he could not later claim this

as error because “[t]his is precisely the situation the invited error doctrine seeks to

avert.” Doss at ¶ 7, quoting United States v. Jernigan,

(7th

-35- Case No. 5-11-11

Cir. 2003) (holding a criminal defendant “may not make an affirmative, apparently

strategic decision at trial” regarding its underlying Bruton claim, and “then

complain on appeal that the result of that decision constitutes reversible error”).

Accord State v. Jennings, 10th Dist. No. 09AP-70, 09AP-75,

, ¶¶

75-76.

{¶63} The trial court discussed this potential conflict, on the record and in

the presence of Brooks multiple times. On October 8, 2010, the trial court warned

against a joint trial, but left the decision as to whether to try the cases together up

to Brooks and his attorney. The trial court proposed holding the trial for Smith in

December 2010, and Brooks’ trial on January 3, 2011, stating:

Obviously, Ms. Hickey, if you don’t object, they could be tried together, but that’s an issue you need to think about and talk to [the prosecutor] about. I just don’t want to have anyone’s Constitutional Rights impaired if there is a joint trial and that was an issue before, but if, and that could be potentially a Bruton case for Mr. Brooks if Ms. Smith’s statement is used, and I don’t want to feel like he has to testify under those circumstances. So, * * * Mr. Murray and I and [the prosecutor] * * * decided it might be best to try them in separate order to avoid any such problems. But if you want to consider that and certainly talk to your clients, that’s fine.

(10/8/10 Hrg. Tr. 42)

{¶64} On January 3, 2011, just prior to the scheduled joint trial, the trial

court again raised the issue of a potential Bruton issue, but Ms. Hickey assured the

trial court that it was Brooks’ desire to go forward with the joint trial.

-36- Case No. 5-11-11

The Court: * * * isn’t there also a claim by the State that Ms. Smith may have made some admission, and Mr. Brooks did not. So doesn’t that create a Bruton problem potentially?

Ms. Hickey: Yes, there is. And one of the things that we – when we discussed going to trial jointly, that was a concern raised by both [the prosecutor] and the Court. My clients understand that – particularly Mr. Brooks understand that if he were going to trial by himself – the statement by Ms. Smith probably would not come into evidence against him * * *. But he understands that. He is willing to go to trial jointly with her. And as part of our agreement in this we indicated that we would waive any Bruton problems.

[The prosecutor] has given me a copy this morning of two waivers of the constitutional rights under Bruton. It actually would only have to be signed, I think, by Mr. Brooks. And we would be more than happy to have them sign that. [Mr. Brooks] understands more than the average client about what’s going on with that. And I think, again, he – it’s knowing and I think it’s voluntary.

**8

The Court: Very well. Ms. Hickey, you indicated you have discussed this thoroughly with both your clients and they’re willing to proceed to trial jointly * * * ?”

Ms. Hickey answered affirmatively, and then the trial court directly addressed

each defendant individually:

The Court: Mr. Brooks, is that correct, you thoroughly discussed this issue with Ms. Hickey and the other perils of a joint trial?

Mr. Brooks: Yes, sir.

(Emphasis added.) (1/3/11 Hrg. Tr. 6-8)

{¶65} The Defendants then signed the Bruton waivers that the prosecutor

had prepared and Ms. Hickey had reviewed. We acknowledge that the wording on

-37- Case No. 5-11-11

the waivers was not completely accurate, as it referenced the Defendants’ Fifth

Amendment rights against self-incrimination, rather than Brooks’ Sixth

Amendment right to confrontation.6 However, in State v. Kuhn, 9th Dist. No.

05CA008859,

, the trial court held that the defendants’ repeated

oral waiver on the record (in proceedings similar to that which occurred in this

case) of any Bruton issues was sufficient indication that they wished to proceed to

trial jointly and that it was “a clear[] case of a voluntary, intelligent, and knowing

wavier of a right.” Id. at ¶ 10. The trial court asked several times if the defendant

wanted to waive his rights and, as in the case before us, it never received any

indication that he did not wish to waive his rights or that he did not understand

them. See Id. at ¶¶ 7-10.

{¶66} Also in Kuhn, the trial court held that the defendant could not claim

ineffective assistance of counsel concerning the waiver, when it was apparent on

the record that he was advised of his rights, knew what statements were going to

be admitted, and then waived said rights. Id. Likewise, in this case, Brooks

claims that his waiver was not valid because of ineffective assistance of counsel

6 The waiver was titled “Waiver of Constitutional Rights under “Bruton v. United States” and stated, “Now comes the Defendant, Mack E. Brooks, III, represented by Attorney Mary Hickey, and hereby waives any and all rights against self-incrimination concerning his codefendant, Jamila Smith, associated with Bruton v. United States (1968),

,” and was signed, dated, and witnessed. Smith’s was identical, except for the reversal of the names of the Defendants. Technically, Ms. Smith’s statement was correct, as her waiver acknowledged that she would agree to waive her Fifth Amendment rights not to testify and would potentially agree to testify and face cross-examination concerning her statement. However, Smith was never called to testify. Brooks’ waiver should have stated that he was waiving his Sixth Amendment rights to confrontation.

-38- Case No. 5-11-11

due to Ms. Hickey’s conflict. However, while we do acknowledge that a conflict

existed (see Assignment of Error Three, below), Brooks does not point to any way

in which this conflict actually prejudiced him in regards to his Bruton rights, and

we do not find any such prejudice from the record. It was clear that Ms. Hickey’s

trial strategy was to discredit and cast doubt upon the validity and authenticity of

the signed confession. On cross-examination, she continually challenged Trooper

Beidelschies as to why only the first sentence of Smith’s statement was written by

Smith, and the rest was in his handwriting; why there was no witness signature;

why the interrogation resulting in the statement had not been recorded; and

whether the trooper had followed proper procedures in obtaining the statement.

{¶67} When discussing whether or not it was appropriate to go forward

with a joint trial, while Brooks and Smith were present, the trial court warned

“[t]hat would severely limit your opportunity to present any antagonistic

defenses.” (1/3/11 Hrg. Tr. 6) Ms. Hickey replied that possession was going to be

the focus of the defense and that “there’s nothing that we’ve ever viewed as

antagonistic defenses, and we did discuss that as well.” (Id. at 7) During closing

arguments, Ms. Hickey stated:

The only thing in her handwriting is a totally exculpatory, totally blameless statement. They were going to [West] Virginia “to drop off and pick up money.” * * * Every single allegedly – every single thing that supposedly makes her or Mr. Brooks responsible for criminal conduct is in [Trooper B.’s] handwriting. All of it. * * *

-39- Case No. 5-11-11

Nobody knows what happened after the camera was shut off * * *. Nobody knows beyond a reasonable doubt what happened that night.

(Trial Tr. 793-94) Based upon the trial strategy that his counsel chose, with the

full knowledge of Brooks, there was no reason to ask for a limiting instruction on

Smith’s confession, or to otherwise exclude it or keep it from being offered. Their

strategy was to imply that Smith’s statement was fabricated or, in some way, not

an authentic rendering of the facts. That strategy did not work and the jury chose

to believe Trooper Beidelschies’s testimony concerning the statement and the

happenings that night. However, Brooks cannot claim error now when it was

evident from the record that he knew exactly what was occurring and knowingly

and intelligently agreed with the decision to hold a joint trial, being fully aware of

the fact that Smith’s statement would be admitted. See State v. Elder, 9th Dist.

No. 25217 and No. 25259,

, ¶¶ 14-19 (finding that the defendant’s

oral waiver of his right to confront and cross-examine was “a knowing, voluntary,

intelligent waiver with regard to any Bruton issues” that the trial court anticipated

were going to arise).

{¶68} Furthermore, even if we were to find that the doctrine of invited error

was not appropriate in this case because of the poorly worded waiver form and

Ms. Hickey’s dual representation, and that the joint trial violated Brooks’ rights of

confrontation, a violation of Bruton does not necessarily require a reversal when

there has been no prejudice. See State v. Moritz,

(1980). The

-40- Case No. 5-11-11

Ohio State Supreme Court, when examining a similar Bruton issue, held that “[a]

violation of an accused’s right to confrontation and cross-examination is not

prejudicial where there is sufficient independent evidence of an accused's guilt to

render improperly admitted statements harmless beyond a reasonable doubt.”

at paragraph two of the syllabus. The Ohio Supreme Court did acknowledge that

in this type of situation it may be advisable for the trial court to grant separate

trials to avoid these confrontation problems.7

. However, the Ohio

Supreme Court found that an error of this sort may be harmless and does not mean

that a conviction must be reversed.

. In quoting the Supreme Court

of the United States, the Court in Moritz declared:

“The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” (Citations omitted.)

, quoting Schneble v. Florida,

(1972).

{¶69} The Tenth District Court of Appeals recently addressed this issue and

found that the use of his co-defendant’s statement at their joint trial was harmless

because, even without the co-defendant’s statement to the detective, the remainder

of the evidence overwhelmingly proved that he was guilty beyond a reasonable

7 In Moritz, the appellant had sought to have his trial severed from that of the co-defendant, but the trial court did not allow the severance.

-41- Case No. 5-11-11

doubt. State v. Burney, 10th Dist. No. 06AP-990,

. The

Court of Appeals stated:

[E]rrors under Bruton are subject to harmless error review. Harrington v. California (1969),

. Courts need not disturb convictions based on harmless error. State v. Mardis (1999),

. In regards to constitutional errors, such as those under Bruton, courts determine whether the error was harmless beyond a reasonable doubt. Chapman v. California (1967),

. Stated another way, the appellate court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant's conviction. State v. Phipps, Franklin App. No. 03AP-533,

. Thus, where evidence against the accused is “‘overwhelming,’ a reviewing court concludes beyond a reasonable doubt that the denial of an accused's constitutional rights was harmless error.”

, quoting

; Phipps at ¶ 25. In doing so, the court does not consider the erroneous material.

.

Id. at ¶ 53.

{¶70} As stated above in our response to the first assignment of error, there

was overwhelming evidence, other than Smith’s statement, that was more than

sufficient to convict Brooks of possession of drugs. Therefore, any error in the

admission of Smith’s statement, due to the consolidation of their trials, must be

considered harmless beyond a reasonable doubt, and would most certainly not be

considered plain error. See id.; Perry,

.

{¶71} Brooks, however, points to our decision in State v. [Mary] Dixon, 3d

Dist. No. 8-02-44,

, in which we reversed Mary Dixon’s

conviction, finding that the decision to grant the State’s motion to consolidate her

-42- Case No. 5-11-11

trial with that of her co-defendant/husband, Danny Dixon, Sr., amounted to plain

error. In that case, this Court found that had not the two cases been tried together,

the jury would not have been privy to Danny’s testimony, and without that

testimony, and the resultant impeachment evidence, there was clearly insufficient

evidence to sustain Mary’s conviction. However, that case is distinguishable for

several reasons. First, it did not involve a Bruton confrontation issue because

Mary’s husband/co-defendant did testify. His incriminating testimony, along with

the impeachment evidence that was admitted as a result of his decision to testify

(which had been ruled inadmissible except for impeachment purposes), was the

only competent and credible evidence before the jury.8 Id. at ¶ 14-15. Therefore,

we found that the consolidation of the trials seriously affected her right to be tried

solely on the evidence against her, rather than her co-defendant. Id. at ¶ 16.

{¶72} In contrast, we upheld the conviction against Mary’s co-

defendant/husband, finding that the use of Mary’s statement to police as evidence

against him at trial was a clear violation of the Bruton rule, but that the error was

harmless. See State v. [Danny] Dixon,

,

, ¶

33. In Danny’s case, the violation of the Bruton rule was not prejudicial because

there was sufficient independent evidence of the accused's guilt to render the

8 There was evidence from a police informant, but this evidence was very weak as he was a convicted felon cooperating with the police for the purpose of placing himself in a better light.

-43- Case No. 5-11-11

improperly admitted statements harmless beyond a reasonable doubt.

citing to

Moritz.

{¶73} Based on all of the above, we find that the complaints raised by

Brooks in this assignment of error should not be considered, because they were the

result of invited error. And, even if the circumstances of this case would preclude

the use of the invited error doctrine, there was sufficient independent evidence of

Brooks’ guilt so that any error in the consolidation of the trials and the admission

of his co-defendant’s confession could not be considered plain error, but would be

merely harmless error. The fourth assignment of error is overruled.

Sixth Assignment of Error – Prosecutor’s Alleged Improper Remarks

{¶74} In this assignment of error, Brooks charges that the prosecutor was

guilty of misconduct because of statements he made in his closing argument. He

asserts that improper comments concerning Brooks’ post-Miranda silence and

Smith’s confession, along with the lack of any limiting or corrective instructions,

constituted plain error.

{¶75} “The test regarding prosecutorial misconduct in closing arguments is

whether the remarks were improper and, if so, whether they prejudicially affected

substantial rights of the defendant.” State v. Smith,

, (1984).

Prosecutors are granted wide latitude in closing argument, and the effect of any

conduct of the prosecutor during closing argument must be considered in light of

-44- Case No. 5-11-11

the entire case to determine whether the accused was denied a fair trial. State v.

Maurer,

(1984). The touchstone of the analysis “is

the fairness of the trial, not the culpability of the prosecutor.” State v. Powell,

,

, quoting Smith v. Phillips,

(1982).

{¶76} The right of an accused to remain silent, enunciated in Miranda v.

Arizona,

(1966), carries with it an implicit assurance that his silence

will not be used against him. Doyle v. Ohio,

(1976). “A

defendant's decision to exercise his right to remain silent during police

interrogation is generally inadmissible at trial either for purposes of impeachment

or as substantive evidence of guilt.” State v. Perez, 3d Dist. No. 4-03-49, 2004-

Ohio-4007, ¶ 10, citing State v. Leach,

,

. Use

of a defendant's silence in the state's case-in-chief puts a defendant in the position

of having to choose between allowing a jury to infer guilt from his silence or being

forced to take the stand to explain his prior silence, thereby surrendering his right

not to testify. Perez,

. However, the introduction of

evidence regarding a defendant's decision to remain silent does not constitute

reversible error if, based on the whole record, the evidence was harmless beyond

any reasonable doubt. State v. Zimmerman,

(1985). The

Ohio Supreme Court has held that “[a] single comment by a police officer as to a

-45- Case No. 5-11-11

suspect's silence without any suggestion that the jury infer guilt from the silence

constitutes harmless error.” State v. Treesh,

, 480

;

State v. Roby, 3d Dist. No. 12-09-09,

.

{¶77} Because defense counsel did not object to the statements, we review

the alleged errors under the plain error standard. An alleged error constitutes plain

error only if the error is obvious and, but for the error, the outcome of the trial

clearly would have been different. State v. Yarbrough,

.

{¶78} Brooks points to only one instance during direct examination and one

during closing where the fact that Brooks did not volunteer to make a statement

was briefly mentioned or indirectly implied. Neither statement referenced any

action or non-action by Brooks, nor did the statements in any way attempt to

suggest any guilt on the part of Brooks because of his silence.

{¶79} Trooper Beidelschies testified that he “asked if either of them wanted

to talk to me,” and then he testified that Smith said she did and he explained how

he again informed Smith of her Miranda rights before he questioned her. (Trial

Tr. 293-94) This statement was made entirely in the context of discussing

Smith’s signed Miranda statement and her confession, and there was no reference

to Brooks.

-46- Case No. 5-11-11

{¶80} Later, during closing arguments, the prosecution stated the

following: “Like any good officer [Trooper Beidelschies] kept going. He wanted

to talk to Mack Brooks. He wanted to talk to Jamila Smith. Smith wanted to and

chose to go with Trooper Beidelschies and speak with him about the pills. She

provided him with [what] can only be called a written confession. That would be

State’s Exhibit 6.” (Trial Tr. 752-53) Again, it was the trooper’s actions and

Smith’s actions that were being discussed. While we acknowledge that by reading

between the lines, it is possible to infer that Brooks did not agree to speak with the

trooper, the main thrust of the comment was to explain how the trooper conducted

his investigation. There was no mention as to what Brooks did or did not do, and

there was no implication that any post-Miranda silence should be used as

substantive evidence of guilt.

{¶81} These two statements were so far remotely connected to Brooks’

exercise of his Fifth Amendment rights that it is doubtful that they could even be

considered as any kind of error – and they certainly did not rise to the level of

plain error. There was no mention of Brooks’ refusal to speak with the officers or

his decision to remain silent. At most, it could potentially be implied that he did

not volunteer to make a statement at the time when Smith decided she would talk

with the trooper. If there was any error in the prosecutor’s closing remarks, it was

harmless error. See Treesh.

-47- Case No. 5-11-11

{¶82} In the second part of this assignment of error, Brooks asserts that the

prosecutor improperly used his co-defendant’s statements as substantive evidence

of Brooks’ guilt. We have discussed this matter thoroughly above in our response

to Brooks’ fourth assignment of error. Any error involving this was an invited

error and was waived by Brooks. Furthermore, as we found, there was more than

sufficient evidence to find Brooks guilty of possession of drugs without any

reference to Smith’s statements.

{¶83} We do not find any prosecutorial misconduct that would have

prejudicially affected the outcome of the trial. Brooks’ sixth assignment of error is

overruled.

Third Assignment of Error – Attorney Conflict

{¶84} Brooks claims that he was denied his Sixth Amendment guarantee of

assistance of counsel because of the existence of an actual conflict of interest

arising from defense counsel’s simultaneous representation of both Brooks and his

co-defendant, Smith, in a joint jury trial. Brooks contends that the dual

representation prevented his counsel from taking the necessary steps to insure that

Smith’s confession was not admitted and that his interests would have been better

served by having a separate trial wherein the statement would not have been

admissible. Therefore, he contends that his counsel’s conflicting loyalties had an

adverse effect on her representation of Brooks and a new trial is warranted.

-48- Case No. 5-11-11

{¶85} The Sixth Amendment right to the effective assistance of counsel

secures to a criminal defendant both the right to competent representation and the

right to representation that is free from conflicts of interest. Wood v. Georgia,

(1981); Glasser v. United States,

(1942). Courts

also have an “independent interest in ensuring that criminal trials are conducted

within the ethical standards of the profession and that legal proceedings appear fair

to all who observe them.” Wheat v. United States,

(1988).

{¶86} A possibility of a conflict exists if the “interests of the defendants

may diverge at some point so as to place the attorney under inconsistent duties.”

State v. Dillon,

,

, quoting Cuyler v. Sullivan,

446 U.S. at 356 (1980), fn. 3. An actual conflict of interest exists if, “‘during the

course of the representation, the defendants' interests do diverge with respect to a

material factual or legal issue or to a course of action.’” (Emphasis added.) Id. at

169, quoting Cuyler. Accord, State v. Gillard,

, 552, 1997-

Ohio-183. The Ohio Supreme Court has held that “a lawyer represents conflicting

interests when, on behalf of one client, it is his duty to contend for that which duty

to another client requires him to oppose.” State v. Manross,

(1988); Gillard.

{¶87} An “actual conflict of interest,” for purposes of the Sixth

Amendment, is “a conflict of interest that adversely affects counsel's

-49- Case No. 5-11-11

performance.” Mickens v. Taylor,

, (2002), fn. 5; State v.

Gillard,

. Thus, to prove an “actual conflict of interest,” the

defendant must show that his counsel “actively represented conflicting interests,”

and that the conflict “actually affected the adequacy of his representation.”

quoting Cuyler v. Sullivan, 446 U.S. at 349–350. In order to show such a conflict,

a defendant must “‘point to specific instances in the record to suggest an actual

conflict or impairment of [his] interests.’” United States v. Hall,

,

965–66 (6th Cir. 2000) (quoting Thomas v. Foltz,

(6th Cir. 1987)

(internal quotation omitted)); accord Riggs v. United States,

, 831–32

(6th Cir. 2000). An “adverse effect” is established where the defendant points to

“some plausible alternative defense strategy or tactic [that] could have been

pursued, but was not because of the actual conflict impairing counsel's

performance.” Perillo v. Johnson,

(5th Cir. 2000) (internal

quotation omitted).

{¶88} This Court has recognized the trial court’s duty to conduct an inquiry

into a possible conflict of interest to determine whether a defendant would receive

the right to conflict free counsel guaranteed him by the Sixth Amendment to the

United States Constitution. State v. Johnson,

, 2010-Ohio-

315, ¶¶ 3-4 (3d Dist.), citing to Gillard. See also State v. McDuffie, 3d Dist. No.

9–2000–92,

(May 23, 2001); State v. Myles, 3d Dist. No. 9–

-50- Case No. 5-11-11

2000–93,

(May 23, 2001). However, we have found that “[i]n

the absence of special circumstances, it seems reasonable for the trial court to

assume that multiple representation entails no conflict or that the lawyer and his

clients knowingly accepted such risk of conflict as may be inherent in such a

representation.” State v. Bradley, 3d Dist. No. 14-08-27,

,

citing Cuyler. Requiring or permitting a single attorney to represent co-

defendants “is not per se violative of constitutional guarantees of effective

assistance of counsel.” Holloway v. Arkansas,

(1978).

Accord Wheat,

-160. “The mere representation by one lawyer of two

defendants charged with the same offenses does not of itself constitute a conflict

of interest; whether a conflict exists must be determined by the facts of each case.”

Columbus Bar Assn. v. Ross,

,

, ¶ 26. In

some cases multiple defendants can appropriately be represented by one attorney,

and it has been observed that “in some cases, certain advantages might accrue

from joint representation.” Holloway v. Arkansas,

. “Joint

representation is a means of insuring against reciprocal recrimination. A common

defense often gives strength against a common attack.”

quoting Glasser v.

United States,

(1942) (J. Frankfurter, dissenting).

{¶89} Another element of the Sixth Amendment right to counsel is “the

right of a defendant who does not require appointed counsel to choose who will

-51- Case No. 5-11-11

represent him.” See U.S. v. Gonzalez-Lopez,

(2006). “[T]he

Sixth Amendment guarantees a defendant the right to be represented by an

otherwise qualified attorney whom that defendant can afford to hire * * *.”

quoting Caplin & Drysdale, Chartered v. United States,

, 624–625

(1989). In Gonzalez-Lopez, the United States Supreme Court held that a trial

court’s erroneous deprivation of the right to counsel of choice unquestionably

qualifies as a structural error, requiring reversal.9 Id. at 150.

{¶90} Here, Brooks and his co-defendant chose to be represented by the

same attorney two times -- first, when they retained Mr. Murray, and then again,

when they replaced him with Ms. Hickey. Ms. Hickey represented that the

Defendants had signed waivers of any conflict for Mr. Murray and for her, and

that she had explained to the Defendants in detail about the dangers of dual

representation. In the presence of Brooks and his co-defendant, Ms. Hickey

emphatically assured the trial court that Brooks’ waiver of any conflict and his

decision to have a joint trial with joint representation was made knowingly and

voluntarily. (See 1/3/11 Hrg. Tr. 4-6)

9 The Supreme Court made it clear that its decision was not modifying its previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them. Gonzales-Lopez at 151. The right to counsel of choice does not extend to defendants who require counsel to be appointed for them; nor may a defendant insist on representation by a person who is not a member of the bar; or demand that a court honor his waiver of conflict-free representation. Id. at 152. The Supreme Court recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar. Id. The Supreme Court also recognized the trial court’s “’independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’” Id., quoting

.

-52- Case No. 5-11-11

{¶91} The trial court explained to counsel and the Defendants how this dual

representation and joint trial would limit the type of defense available. However,

Ms. Hickey assured the trial court that they were aware of this, and that the joint

representation would not be detrimental to their chosen trial strategy.

The Court: That would severely limit your opportunity to present any antagonistic defenses.

Ms. Hickey: That’s correct.

The Court: Because possession is going to be the focus of this, correct?

Ms. Hickey: Yes. Although certainly to the extent that a driver of a car can possess drugs or anything in the car without the passenger’s knowledge. That still leaves that defense available. Something to argue to the jury. But there is no other – there’s nothing that we’ve ever viewed as antagonistic defenses, and we did discuss that as well.

(Emphasis added.) (1/3/11 Hrg. Tr. 6-7). The trial court then personally

addressed Brooks and Smith individually, and they verbally affirmed that they had

“thoroughly discussed this issue with Ms. Hickey and the other perils of a joint

trial” and that they wished to go forward as represented. Id. at 8. The trial court

had no reason not to believe that this was the knowing choice based upon the

representations of the Defendants’ attorney and their agreement. In Holloway v.

Arkansas, the United States Supreme Court acknowledged that an “attorney

representing two defendants in a criminal matter is in the best position

professionally and ethically to determine when a conflict of interest exists or will

-53- Case No. 5-11-11

probably develop in the course of a trial.”

. Here, the trial court

was repeatedly assured that the parties did not have opposing interests at trial.

{¶92} Furthermore, on the record before us, we find no evidence that trial

counsel's basic strategic decisions were influenced by the interests of Smith to the

detriment of Brooks. See State v. Tucker, 1st Dist. No. C-020821, 2003-Ohio-

6056, ¶ 30. In fact, it would appear that Brooks benefitted from the joint

representation, to the detriment of Smith. If Smith had been represented by a

different attorney, it is highly likely that an independent attorney would have

advised her to accept the plea bargain that was offered to her and testify against

Brooks, in exchange for a recommendation of a sentence involving only

community service. See State v. Smith, 3d Dist. No. 5-11-10,

.

The record contains no indication that Brooks was offered any plea agreement that

would have created a conflict due to joint representation. The prosecutor stated

that, “As to Mr. Brooks, the only negotiations we have is that the State would

remain silent if he pled guilty to the charge as it is set forth.” (3/25/10

Suppression Hrg. Tr. 9-10)

{¶93} It was clear that Brooks, Smith and Ms. Hickey had knowingly and

deliberately chosen a joint strategy that did not involve an antagonistic defense

and that relied upon discrediting Smith’s statement to the police and the results of

the police search. In hindsight, after that trial strategy did not succeed, Brooks

-54- Case No. 5-11-11

now wishes to have the opportunity to try a different strategy, complaining that he

was prejudiced because the trial court allowed him to proceed with his chosen

counsel and trial strategy.

{¶94} If the trial court would have decided otherwise and not permitted Ms.

Hickey to represent Brooks, we would probably still be reviewing this matter on

appeal, but instead, Brooks would be complaining that he was convicted because

he was erroneously denied his counsel of choice. See

The

United States Supreme Court has acknowledged the dilemma involved in

balancing the sometimes conflicting Sixth Amendment rights.

[T]rial courts confronted with multiple representations face the prospect of being “whip-sawed” by assertions of error no matter which way they rule. If a [trial] court agrees to the multiple representation, and the advocacy of counsel is thereafter impaired as a result, the defendant may well claim that he did not receive effective assistance. * * * On the other hand, a [trial] court's refusal to accede to the multiple representation may result in a challenge such as petitioner's in this case.

(Citations omitted). Wheat v. U.S.,

.

{¶95} Under the facts of this case, and as they apply to Brooks’ defense, we

do not find evidence in the record that trial counsel actively represented

conflicting interests pursuant to the manner in which she chose to defend Brooks,

nor was there evidence that the conflict actually affected the adequacy of Brooks’

representation. See Mickens,

. We do believe that the better

course of action would have been for Brooks to have retained separate counsel

-55- Case No. 5-11-11

and have a separate trial. However, those considerations of fairness must be

weighed against Brooks’ right to retain his chosen counsel, and his voluntary

waiver of conflict-free representation. See Gonzalez-Lopez,

. See

also Holloway,

(acknowledging that United States

Supreme Court has confirmed that a defendant may waive his right to the

assistance of an attorney unhindered by a conflict of interests.)

{¶96} A trial court has “wide latitude” in determining whether an actual or

potential conflict exists. State v. Keenan,

,

;

Gonzalez-Lopez,

(recognizing “a trial court's wide latitude in

balancing the right to counsel of choice against the needs of fairness). We do not

find that the trial court erred when it permitted Brooks to waive any potential

conflict and retain the counsel of his choice, after ascertaining that such dual

representation would not be detrimental to Brooks under the chosen trial strategy.

Therefore, Brooks’ third assignment of error is overruled.

Seventh Assignment of Error – Denial of Motion for New Trial

{¶97} Brooks’ complaints in this assignment of error concern the decision

of the trial court to allow Ms. Hickey to represent the Defendants pro hac vice and

to allow Mr. Murray to withdraw as counsel. Brooks asserts that Ms. Hickey’s

-56- Case No. 5-11-11

admission to practice in Ohio was improper and did not comply with the

requirement that she affiliate with local counsel, i.e., Mr. Murray. He also asserts

that the “trial court’s ex parte procedure for removing local counsel deprived him

of his right to an Ohio-licensed attorney and his right to be present at a critical

stage.” (Appellant’s Brief, p. 26) Therefore, given these errors, Brooks argues that

the trial court should have granted his Civ.R. 33(A) motion for a new trial,

claiming that his Sixth Amendment right to counsel was violated because Ms.

Hickey’s pro hac vice admission was invalid, and thus she was not licensed to

practice law in the State of Ohio at the time of the trial. Brooks claims that the

denial of his right to an attorney who meets the qualifications for admission is

prejudicial and is grounds for a mistrial.

{¶98} Attorneys admitted to practice in other states but not admitted to

practice in Ohio do not have a right to practice in courts in Ohio. Royal Indem.

Co. v. J.C. Penney Co.,

(1986). They may, nevertheless, be

permitted to appear in an action by the court pro hac vice, meaning “for this

occasion or particular purpose.” A trial court has wide discretion in the exercise

of its duty to supervise members of the bar appearing before it.

; Schmidt

v. Krikorian, 12th Dist. No. CA2011–05–035,

, ¶ 9. Consequently,

a party challenging the trial court's denial of a motion to admit an out-of-state

attorney pro hac vice must demonstrate that the trial court abused its discretion.

-57- Case No. 5-11-11

The term abuse of discretion implies that the court's attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore,

(1983).

{¶99} Since an attorney's admission pro hac vice is limited in duration, the

requirements for admission are less stringent than those for permanent admission

to the state bar. See Gov.Bar R. I (general admission to the practice of law); cf.

Gov.Bar R. XII (pro hac vice admission). Davis v. Marcotte,

,

, ¶ 8 (10th Dist.). In fact, Gov.Bar R. XII, which sets forth

the procedure and requirements governing pro hac vice admission before trial

courts and other tribunals throughout the State of Ohio, did not become effective

until January 1, 2011. The new rule is only applicable to motions for permission

to appear pro hac vice filed after January 1, 2011. At the time Ms. Hickey filed

her motion and was granted pro hac vice admission by the trial court in 2010, there

were no state-wide rules governing the pro hac vice admission of attorneys

wishing to practice before a court of common pleas. That decision was left to the

trial court and any local rules that may have been applicable. “The right to confer

or revoke pro hac vice status is ‘part of the court’s inherent power to regulate the

practice before it and protect the integrity of its proceedings.’” LMC Weight Loss,

Inc. v. Victory Mgt., Inc.,

,

(6th Dist.),

quoting Royal Indemnity Co.,

. “The decision of whether

-58- Case No. 5-11-11

to permit representation by out-of-state counsel in an Ohio court is a matter within

the discretion of the trial court.” Royal Indemnity Co. at 33.

{¶100} The Sixth District Court of Appeals addressed the balancing act

between the litigant’s interest in obtaining counsel of his own choice and the

state’s interest in regulating attorneys seeking to be admitted to practice pro hac

vice.

“In this period of greater mobility among members of the bar and the public, and the corresponding growth in interstate business, a court should reluctantly deny an application to appear pro hac vice. A litigant's request to be represented by counsel of his choice, when freely made, should be respected by the court, unless some legitimate state interest is thwarted by admission of the out-of-state attorney.”

(Emphasis added.) State v. Roble, 6th Dist. No. L-04-1373,

,

quoting Enquire Printing and Pub. Co., Inc. v. O'Reilly,

,

(1984).

{¶101} In an effort to accommodate Brooks’ right to be represented by the

counsel of his choice, the trial court admitted Ms. Hickey to practice pro hac vice.

The trial court found that Ms. Hickey was a duly licensed attorney in the State of

Michigan, in good standing, and presented herself as a thoroughly qualified and

experienced counsel. She had been an attorney for 27 years, had participated in

over 200 jury trials, and had represented Brooks in previous matters. The trial

court, explained that “[h]aving determined that Ms. Hickey was competent [and]

-59- Case No. 5-11-11

guided by a strong sense of justice, [it] endeavored to provide [Brooks] with

counsel of his own choosing.” (Mar. 22, 2011 Decision, p. 10) The trial court

also stated that it had “made numerous observations of Ms. Hickey and found her

to be a zealous and competent advocate. From any objective perspective, it cannot

be said that she provided ineffective assistance of counsel to [Brooks].” (Id. at p.

8)

{¶102} We do not find that the trial court’s decision to admit Ms. Hickey

was an abuse of its discretion. It complied with the rules of the Hancock County

Court of Common Pleas that were in effect at the time she was admitted, and

therefore, she was properly qualified to represent Brooks at the time of his trial.

Although Ms. Hickey represented that she would remain affiliated with local

counsel in her motion, this was not a requirement under the Rules for the

Governance of the Bar that were in effect at the time of her pro hac vice

admission, nor was it a requirement of the local rules. The trial court was aware

that Mr. Murray had resigned, and, based upon Ms. Hickey’s qualifications, did

not feel it was necessary to include the requirement that another local counsel be

retained by the Defendants. Therefore, there was no basis for Brooks’ motion for a

new trial due to Ms. Hickey not being licensed to practice law in Ohio.

{¶103} Brooks also claims that Ms. Hickey’s representation was a violation

of Rule 5.5 of the Rules of Professional Conduct requiring affiliation with local

-60- Case No. 5-11-11

counsel under specified circumstances. However, it is uncertain if that rule is

applicable to a situation such as this where the attorney was admitted pro hac vice

by the trial court. And, in any case, a criminal defense counsel’s “breach of an

ethical standard does not necessarily make out a denial of the Sixth Amendment

guarantee of assistance of counsel.” State v. Leonard,

,

(1st Dist.) ¶ 32, quoting Nix v. Whiteside,

(1986).

{¶104} Furthermore, Crim.R. 33 only allows a new trial when an

irregularity “prevented [the movant] from having a fair trial.” Brooks has not

presented any evidence that he was denied a fair trial. The record does not support

the contention that he was harmed by not having local counsel. Many of the issues

involved in a criminal trial are based upon United States Constitutional rights and

decisions of the United States Supreme Court, which apply equally in all fifty

states, regardless as to which state a criminal attorney may hold a license to

practice. Ms. Hickey had worked as an assistant prosecutor for 12 years in Wayne

County, Michigan, and then she had done criminal defense work exclusively since

1997 or 1998; she was knowledgeable in the applicable law. (5/23/11 Sent. Hrg.

39) Any unfamiliarity that she might have had with “local” Hancock County

customs or procedures would have also been applicable if Brooks had hired an

-61- Case No. 5-11-11

Ohio-licensed attorney from Cleveland, Columbus or Cincinnati, and would not

have been a cause to grant a mistrial.

{¶105} Brooks’ also claims that he was denied the right to be present when

his first attorney, Mr. Murray, was allowed to resign from the case. However, the

record clearly shows that he knew that Mr. Murray was going to leave, and that it

was Brooks’ own decision to replace Mr. Murray with Ms. Hickey. Mr. Murray’s

motion for withdrawal of counsel stated that “Defendant Brooks has employed

newly retained counsel, Mary S. Hickey, Esq., as his defense attorney, to replace

undersigned movant counsel Murray.” (Sept. 28, 2011 Motion) There was no

“proceeding” at which the trial court “removed” Mr. Murray. It was not the trial

court’s decision to “remove” local counsel; it merely granted Mr. Murray’s

motion, which represented that it was made at the request of the Defendants.

Attorney Hickey discussed on the record that she had multiple conversations with

the Defendants concerning trial strategy and potential issues. Brooks cannot claim

ignorance of who he had hired to represent him when he took such an active role

in his defense. The following exchange took place at the sentencing hearing:

The Court: Ms. Hickey, * * * you applied to represent [the Defendants] and you showed up in this Court and you applied to represent them and you represented in your motion that they sought your assistance in this case. Is that true?

Ms. Hickey: That’s what I represented in my motion, yes.

***

-62- Case No. 5-11-11

The court: I granted your request to apply, and then is it your recollection it was thereafter that Mr. Murray moved to withdraw?

Ms. Hickey: Yes. After.

The Court: Did your clients know that Mr. Murray was withdrawing?

***

Ms. Hickey: Yes.

(5/23/11 Sent. Hrg. Tr. 34-38) The record is clear that Brooks was present at every

hearing and every stage of the proceeding; that it was his choice that Mr. Murray

no longer represent him; and, that he retained Ms. Hickey and sought out her

representation. He cannot now claim ignorance of the proceedings that he caused

to occur.

{¶106} Any error involved in this matter is invited error and, as such,

cannot be grounds for appeal. Furthermore, if Brooks had believed it was

imperative to have local counsel in addition to Ms. Hickey, then he should have

replaced Mr. Murray after he resigned and retained another local counsel. See Hai

v. Flower Hosp., 6th Dist. No. L-07-1423,

(case was dismissed

when plaintiff failed to follow court’s order to retain another local counsel to assist

their out-of-state attorney, after the first local counsel resigned.) The trial court’s

judgment entry permitting Ms. Hickey to appear as counsel for the Defendants did

not contain any qualification that she be required to work with local counsel.

-63- Case No. 5-11-11

{¶107} In a well-researched and well-reasoned decision, the trial court

provided a detailed analysis of all of the issues raised by Brooks, and explained

why his assertions did not provide any grounds that would entitle him to a new

trial. (See Mar. 22, 2011 Decision) We agree with the trial court’s analysis and

conclusions, and do not find that the trial court abused its discretion in its

decisions pertaining to Ms. Hickey’s pro hac vice admission. The trial court did

everything in its powers to accommodate Brooks’ choice of counsel, including

allowing Ms. Brooks to replace his previously retained counsel only two weeks

before the scheduled trial date, causing further delay in this case. Brooks’ seventh

assignment of error is overruled.

Eighth Assignment of Error – Ineffective Assistance of Counsel

{¶108} In his final assignment of error, Brooks contends that he was denied

his right to effective counsel pursuant to the Sixth Amendment, and raises seven

areas in which he asserts that Ms. Hickey was ineffective. Those claimed

instances of ineffectiveness are: (1) failure to withdraw from dual representation;

(2) failure to know Ohio law/associate with an Ohio attorney/advise client

properly; (3) failure to oppose consolidation of Brooks’ trial with his co-

defendant; (4) failure to request redaction with limiting instruction pertinent to

Smith’s confession; (5) failure to object to prosecutorial misconduct; (6) failure to

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object to damaging testimony and eliciting damaging testimony on cross-

examination; and, (7) failure to strike a juror for cause.

{¶109} To establish ineffective assistance of counsel, a defendant must

show (1) deficient performance by counsel, i.e., performance falling below an

objective standard of reasonable representation; and (2) prejudice -- a reasonable

probability that but for counsel's errors, the proceeding's result would have been

different. Strickland v. Washington,

, 687–688 (1984); State v.

Bradley,

(1989), paragraphs two and three of the syllabus.

There is a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance and that strategy and tactical decisions

exercised by defense counsel are well within the range of professionally

reasonable judgment and need not be analyzed by a reviewing court. State v.

Robinson,

(3d Dist. 1996).

{¶110} The majority of Brooks’ allegations concerning instances of

ineffectiveness of counsel have already been addressed in previous assignments of

error, and we have concluded that either there was no error on the part of counsel

or there was no evidence that counsel’s actions were prejudicial to Brooks to the

extent that the outcome of the trial would have been different. Therefore, we shall

just briefly summarize our findings pertinent to these claimed errors.

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{¶111} First, Brooks claims that Ms. Hickey erred in failing to withdraw

from dual representation. We did not find evidence in the record that trial counsel

actively represented conflicting interests pursuant to the manner in which she

chose to defend Brooks, nor was there evidence that the conflict actually affected

the adequacy of Brooks’ representation. Brooks did have a right to retain the

counsel of his own choosing, and the record demonstrated that his waiver of

conflict-free counsel was made knowingly and voluntarily. Next, Brooks

complains about counsel’s failure to know Ohio law, to associate with an Ohio

attorney, and to properly advise him. Again, in our analysis of these issues

pertinent to the seventh assignment of error, we did not find any prejudicial error.

{¶112} Brooks also cites as error his counsel’s failure to oppose

consolidation of Brooks’ trial with his co-defendant and her failure to request

redaction with limiting instruction pertinent to Smith’s confession. In the fourth

assignment of error, we thoroughly examined these two issues and found that they

constituted invited error, as Brooks was well aware that this was part of the

defense’s trial strategy and he had waived any error associated with these issues.

And, even if his waiver was not knowingly and intelligently provided, we still did

not find any prejudicial error that would have changed the outcome of the trial.

{¶113} In his fifth and sixth complaints against his retained counsel,

Brooks alleges that she failed to object to prosecutorial misconduct and to

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damaging testimony by the State’s witnesses. He further complains that Ms.

Hickey even elicited damaging testimony on cross-examination. We addressed

these issues in our responses to the fifth and sixth assignments of error, and our

review of the record did not find any conduct constituting a reversible error in this

regard. “The scope of cross-examination falls within the ambit of trial strategy,

and debatable trial tactics do not establish ineffective assistance of counsel.” State

v. Conway,

, 2006–Ohio–2815, ¶ 101. The failure to make

objections is not alone enough to sustain a claim of ineffective assistance of

counsel and may be justified as a tactical decision. State v. Gumm,

,

.

{¶114} Finally, Brooks’ seventh claim of ineffective assistance of counsel

maintains that Ms. Hickey was ineffective for failing to strike a juror. Juror J.H.

was the first cousin of the trial prosecutor’s father, and she had a cousin who was a

canine deputy working for the sheriff’s office (but he was not Deputy Smith and

was not involved in this case). Brooks asserts that this juror was biased because of

these family relationships and that Ms. Hickey should have sought to have this

juror removed.

{¶115} Both the Sixth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution provide that a criminal defendant is

entitled to a speedy and public trial “by an impartial jury.” The purpose of voir

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dire is to examine prospective jurors to determine whether they have both the

statutory qualification of a juror and are free from bias or prejudice. Pavilonis v.

Valentine,

(1929), at paragraph one of the syllabus.

{¶116} Pursuant to R.C. 2313.42, a prospective juror may be challenged for

cause if he “discloses by his answers that he cannot be a fair and impartial juror or

will not follow the law as given to him by the court.” R.C. 2313.42(J). When a

juror's impartiality is at issue, the relevant question is “did a juror swear that he

could set aside any opinion he might hold and decide the case on the evidence, and

should the juror's protestation of impartiality have been believed.” Dennis v.

Mitchell (C.A.6, 2003),

, quoting Patton v. Yount,

(1984).

{¶117} Although it is true that Juror J.H. was a cousin of a sheriff’s deputy,

she stated rarely spoke with him about his work and did not even know that he had

a certified canine. (Trial Tr. 118) In addition, although she was a distant relative

of the prosecutor, this juror was specifically questioned concerning the influence

of her relationships and indicated that she could be fair and impartial, going so far

as to say that she would have no problem rendering a not guilty verdict in the

matter. (Id. 121) Attorney Hickey questioned this juror extensively, and the juror

responded that she would follow the judge’s instructions and render an impartial

verdict. (Id. 123-26) Although Ms. Hickey did not use all of her peremptory

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challenges, before deciding to waive, she twice left to discuss the matter with

Defendants, and, after discussing the matter with them, stated “I am satisfied with

the process on behalf of both Ms. Smith and Mr. Brooks.” (Trial Tr. 142)

{¶118} The Ohio Supreme Court has held that the use of peremptory

challenges is inherently subjective and intuitive and, as a result, an appellate

record will rarely reveal reversible incompetence in this process. State v. Mundt,

, 2007–Ohio–4836, ¶ 83. Furthermore, decisions on the

exercise of peremptory challenges are a part of trial strategy, and trial counsel,

who observe the jurors firsthand, are in a much better position to determine

whether a prospective juror should be peremptorily challenged. State v. Trimble,

,

.

{¶119} To be successful under Strickland, an appellant must demonstrate

that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland,

. When the record is examined in its entirety, it is clear that no bias existed

and the juror indicated she would remain impartial. Therefore, there is no

evidence that Ms. Hickey was ineffective for failing to challenge the juror. And, it

is unlikely that the trial court would have granted a motion to strike the juror for

cause, so counsel was not ineffective for failing to make such a motion.

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{¶120} Our review of this assignment of error demonstrates that most of the

issues raised by Brooks did not amount to any error on the part of his counsel.

And, even where errors existed, we do not find that they were prejudicial because

they would not have affected the outcome of the trial. Nor do we find that the

“cumulative effect” of the trial counsel’s errors was sufficient to undermine our

confidence in the outcome of the proceedings. See State v. Dobson, 8th Dist. No.

92669,

, ¶ 47. Therefore, the eighth assignment of error is

overruled.

{¶121} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. concurs.

/jlr

ROGERS, J. Dissents.

{¶122} I respectfully dissent from the result reached by the majority in this

case. In the companion case of State v. Smith, 3d Dist. No. 5-11-10, 2012-Ohio-

5020, this court unanimously found that a conflict of interest existed and reversed

the conviction. It is counter-intuitive to suggest that counsel could represent one

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of the two Defendants without a conflict of interest when a clear conflict of

interest exists with the other.

{¶123} In his fourth assignment of error, Brooks argues that consolidation

of his trial with that of Smith was plain error. The majority cites to State v. Kuhn,

9th Dist. No. 05CA008859,

, to support their theory that this was

invited error. However, while the two defendants in Kuhn (husband and wife)

agreed to joint trials, they were represented by separate counsel, which is a

significant distinction from the case at bar.

{¶124} The majority further relies on invited error in response to Brooks’

complaint that the State used his co-Defendant’s statement as substantive evidence

of Brooks’ guilt. But without a joint trial Smith’s statement would not have been

admitted at Brooks’ trial. The admission of Smith’s statement had the effect of

diminishing her culpability as compared to Brooks and bolstering the credibility of

her defense that she was an innocent passenger. This strategy is inconsistent with

any defense theory for Brooks, and it demonstrates a clear conflict of interest as he

alleged in his third assignment of error.

{¶125} I further note the following concerns:

1. Although counsel verbally represented to the trial court that the Defendants had signed written waivers of any conflict with prior counsel, Mr. Murray, there is no written waiver of joint representation in the record;

2. Trial counsel was not admitted to practice in the State of Ohio;

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3. Counsel was admitted pro hac vice10 in this case on her motion, which assured the trial court that she would be assisted by Ohio counsel;

4. Prior Ohio counsel, Mr. Murray, was granted leave to withdraw and was not replaced; and

5. The trial court’s colloquies on the Bruton issue of joint trial and as to the issue of joint representation were primarily with trial counsel and only featured a superficial inquiry of the defendants.

{¶126} Finally, the majority states that the trial court “personally addressed

Brooks and Smith individually, and they affirmed they had ‘thoroughly discussed

this issue [of joint representation] with Ms. Hickey’” and the “trial court had no

reason not to believe that this was the knowing choice based on the representations

of the Defendants’ attorney and their agreement.” Ante at ¶ 91. Yet in the Smith

opinion the inquiry of the Defendants was described as “brief and perfunctory.”

Ante at ¶ 35. I find the difference in description interesting, but unconvincing.

{¶127} I would sustain Brooks’ third and fourth assignments of error and

decline to consider the other assignments as being moot.

10 Although Gov.Bar R. XII Rule on pro hac vice admission (effective Jan. 1, 2011) was not in effect at the time the trial court ruled on counsel’s motion, it became effective prior to the date of trial, and there was no compliance with that Rule. I further note that counsel’s joint representation of Brooks and Smith does not appear to be compliant with Rule 1.7 of the Rules of Professional Conduct.

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