[Cite as State v. McRae,

.]

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

STATE OF OHIO, CASE NO. 17-17-23 PLAINTIFF-APPELLEE,

v.

TROY D. MCRAE, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court Trial Court No. 17CR000106

Judgment Affirmed

Date of Decision: August 27, 2018

APPEARANCES:

Ralph A. Bauer for Appellant

Anne K. Bauer for Appellee Case No. 17-17-23

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Troy D. McRae Jr. (“McRae”) brings this appeal

from the judgment of the Court of Common Pleas of Shelby County finding him

guilty of aggravated murder and sentencing him to prison term of life in prison with

a chance for parole after 30 years. On appeal McRae claims that the trial court erred

by 1) denying his motion to dismiss; 2) not including a lesser included offense of

voluntary manslaughter in the jury instructions; and 3) violated McRae’s speedy

trial rights. McRae also claims that he was denied the effective assistance of

counsel. For the reasons set forth below, the judgment of the Court of Common

Pleas of Shelby County is affirmed.

{¶2} On March 30, 2017, the Shelby County Grand Jury indicted McRae on

one count of aggravated murder in violation of R.C. 2903.01(B). Doc. 1. The

indictment also included a specification that McRae was a repeat violent offender.

On April 6, 2017, counsel for McRae filed a motion for a bill of particulars, a

request for discovery, a notice of demand for testimony, and a request for notice of

intention to use evidence. Doc. 20-23. The State provided its notice of intention to

use evidence in answer to McRae’s request on April 11, 2017. Doc. 39. A trial was

scheduled for June 5, 2017. Doc. 52.

{¶3} On May 19, 2017, counsel for McRae filed a motion to continue the

jury trial. Doc. 62. Included in the motion was notice that McRae did not consent

to a waiver of his speedy trial rights.

However, counsel for McRae consented

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on his client’s behalf for the purpose of trial preparation.

A hearing was held

on this request. Doc. 69. The trial court granted the motion to continue on May 22,

2019, noting that the continuance was granted over the objection of McRae.

On

June 5, 2017, McRae filed a pro se motion for a bill of particulars. Doc. 86. McRae

then filed on June 7, 2017, a pro se motion for dismissal of the charges. Doc. 87.

The trial court dismissed the motion as being improperly filed on that same day.

Doc. 89. Counsel for McRae filed on June 7, 2017, a request for disclosure of

evidence related to the DNA testing. Doc. 88. The trial court granted this request

on the next day. Doc, 91. On June 13, 2017, the trial court scheduled the jury trial

for September 11, 2017. Doc. 105.

{¶4} On June 19, 2017, McRae filed a pro se motion requesting that his case

be dismissed for speedy trial violations. Doc. 111. The trial court struck this motion

as improperly filed on June 26, 2017. Doc. 113. On August 8, 2017, counsel for

McRae filed a motion to suppress. Doc. 157. A hearing on the motion was held on

August 17, 2017. Doc. 179. Counsel for McRae then filed a supplemental

memorandum in support of its motion to suppress on August 21, 2017. Doc.

184.The State filed its response to the motion on August 24, 2017. Doc. 192. On

September 5, 2017, the trial court entered its decision overruling the motion to

suppress. Doc. 208. The trial court held that although there was not probable cause

to issue the warrant, the officers relying on the warrant had a good faith exception

for execution of the warrant.

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{¶5} A jury trial was commenced on September 11, 2017. Doc. 228. At the

conclusion of the trial, the jury returned a verdict of guilty on the charge of

aggravated murder. Doc. 228. A sentencing hearing was held on November 7,

2017. Doc. 254. The trial court sentenced him to serve 30 years to life in prison for

the aggravated murder with an extra 10 years in prison for the finding that McRae

was a repeat violent offender.

Counsel for McRae filed a notice of appeal from

this judgment. Doc. 264. On appeal, McRae raises the following assignments of

error.

First Assignment of Error

The trial court erred in denying [McRae’s] motion to dismiss.

Second Assignment of Error

[McRae’s] trial counsel rendered ineffective assistance of counsel in violation of [McRae’s] constitutional rights.

Third Assignment of Error

Trial court erred in not granting [McRae’s] request for a lesser included jury instruction of voluntary manslaughter [R.C. 2903.03], a felony of the first degree issue presented for review.

Fourth Assignment of Error

[McRae] was denied his statutory and constitutional right to a speedy trial.

Motion to Suppress and Dismiss

{¶6} McRae claims in the first assignment of error that the trial court erred

by not granting his motion to suppress and by failing to dismiss the charges against

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him. Specifically, McRae claims that the arrest warrant was faulty. “An appellate

review of the trial court's decision on a motion to suppress involves a mixed question

of law and fact.” State v. Fittro, 3d Dist. Marion No. 9–14–19,

, ¶

11.

When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills,

,

(1992). Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fanning,

,

(1982). Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara,

,

(1997).

State v. Wooten, 3d Dist. Marion No. 9-15-46,

,

, ¶ 4.

{¶7} The State at the suppression hearing presented the testimony of Captain

Jerry Tangeman (“Tangeman”), Sergeant Robert Jameson (“Jameson”), and Bonnie

Gold (“Gold”). Tangeman testified that he prepared a complaint for aggravated

murder and had his signature notarized. Tr. 8-9. At that time, Jameson prepared

the written narrative to accompany the complaint. Tr. 10-12. Tangeman then gave

the complaint and narrative to Gold for her review. Tr. 10. Gold did not take any

statement under oath and Tangeman did not speak with her about the facts of the

case. Tr. 22. Twenty to thirty minutes later, Gold returned with the completed

warrant. Tr. 23.

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{¶8} Jameson testified that he prepared the probable cause narrative and

reviewed it with Tangeman. Tr. 39. Although he was present when Gold came to

get the paperwork, he did not speak to her and did not provide any additional

information. Tr. 42. Once the warrant was returned, he entered it into the system

and notified the Lima Police Department that the warrant was received and they

could proceed with the arrest. Tr. 34-38.

{¶9} Gold testified that she is employed as the Clerk-Court Administrator of

the Sidney Municipal court and that she reviews the complaint and narrative before

signing off on warrants. Tr. 44-45. She went through her checklist to insure that

the complaint met the probable cause requirements. Tr. 46. After determining there

was probable cause, she opened a new case in the system, printed the warrant, signed

it, and sealed it. Tr. 49-50. Gold then returned the warrant to the police department

for them to enter it into the LEADS system. Tr. 50. Gold admitted upon cross-

examination that she did not witness the signing of the complaint or take any sworn

testimony herself. Tr. 55. She also admitted that she was not aware that Tangeman

had not prepared the narrative. Tr. 59.

{¶10} Following the testimony, the trial court determined that the narrative

was not a sworn statement as required by the criminal rules. Doc. 208. The trial

court determined that the narrative was not in the correct format and could not be

considered.

“Accordingly, it is the opinion of this court that although the

[probable cause] narrative contained sufficient facts to support probable cause, it

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could not be considered by Gold since it was not sworn either in the PC narrative

itself or in a reference to the PC narrative in the sworn complaint.”

The trial

court then determined that since the complaint only contained conclusionary

language without facts to support probable cause, no probable cause was present to

support the warrant.

{¶11} The next question before the trial court was whether the exclusionary

rule should be applied in this case. The exclusionary rule bars the use of evidence

obtained in an unconstitutional manner. State v. Johnson,

,

,

. However, the sole purpose of the

exclusionary rule “is to deter future violations of the Fourth Amendment”.

When there will be no appreciable deterrence from its application, the exclusionary

rule should not be used.

The deterrent value of the exclusionary rule should not

be used when the police act with an objectively reasonable good-faith belief that

what they are doing is lawful.

at ¶ 42 citing United State v. Leon,

,

,

(1984).

{¶12} Here the trial court then determined there was a good faith exception

to the exclusionary rule.

In this case, law enforcement submitted to Gold what they believed to be sufficient evidence to support a probable cause determination and the issuance of a warrant. Gold, the evidence demonstrates, acted as an independent, neutral officer including using a checklist to satisfy probable cause. The warrant was then issued and presented to law enforcement. The fact that a warrant had been issued was entered into LEADS. Lima police authorities

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relied upon the LEADS information to conduct the arrest. Certainly, Lima police officers would have had no information available to them questioning the issuance of the warrant. For all of these reasons, this court is of the opinion that both the Sidney Police Department in obtaining the warrant and the Lima Police Department in executing the arrest acted in good faith. Indeed, except for the failure of Capt. Tangeman to obtain or swear to the PC narrative this issue would likely not be before the court. Therefore, the photographs taken of the defendant should not be suppressed.

Id. at 4. A review of the record shows that although Tangeman erroneously thought

that the narrative was included in the sworn complaint without a reference to it or a

separate sworn statement as to the narrative, there was no disregard for the Fourth

Amendment rights of McRae. The narrative did provide facts upon which a

reasonable officer could rely to determine that the warrant was justified.

Additionally, the Lima Police Department could reasonably rely upon the entrance

of the warrant into the LEADS system to form a good faith belief that the arrest of

McRae was lawful. The good-faith exception to the exclusionary rule applies in this

case. The first assignment of error is overruled.

Ineffective Assistance of Counsel

{¶13} In the second assignment of error, McRae claims he was denied the

effective assistance of counsel.

In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester (1976),

,

,

, paragraph four of the syllabus. When making that determination, a two-step process is usually

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employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness.” State v. Lytle (1976),

, 396–397,

,

, vacated on other grounds (1978),

,

,

.

On the issue of counsel's ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965),

,

,

; State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun,

,

,

. “The

failure to prove either 1) a substantial violation or 2) prejudice caused by the

violation makes it unnecessary for a court to consider the other prong of the test.”

State v. Walker, 3d Dist. Seneca No. 13-15-42,

.

{¶14} McRae cites multiple reasons for claiming that his trial counsel was

ineffective. The first was that counsel failed to file notice of alibi or to have the

alibi witnesses testify at trial. This issue was previously addressed by this court in

State v. Fritz, 3d Dist. Seneca No. 13-06-39,

. In Fritz, the

appellant claimed that his counsel was ineffective for failing to file notice of an alibi

and to call the alibi witnesses to testify. This court found it was not ineffective

assistance of counsel.

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Generally, a trial counsel’s decision whether to call a particular witness falls within the rubric of trial strategy, and will not be second guessed by a reviewing court. * * * Even debatable trial tactics and strategies do not constitute ineffective assistance of counsel. * * * Trial counsel may have employed a reasonable trial strategy in this case by choosing not to call these potential alibi witnesses if, for example, counsel determined that the witnesses lacked credibility and would not assist the defense. * * *Indeed, unreliable witnesses can harm a defendant who offers their testimony in evidence.

Id. at ¶ 39. Here, McRae merely indicates that the witnesses would have testified

that he was at a different location when the murder occurred. McRae’s step-mother

testified that the week immediately following the murder, she saw an injury to

McRae’s left hand. Tr. 445. The coroner testified that the injuries of the victim

came from a left-handed assailant. Tr. 464, 467. Aisha Martin (“Martin”) testified

that McRae was her boyfriend and lived with her. Tr. 542. The Thursday after the

murder, he had her take him to Lima and dropped him off at the McDonalds. Tr.

543. McRae had told her that he got into a “tussle” with the victim and had stabbed

the victim, killing him. Tr. 544. Martin also testified that McRae was left handed

and after the day of the murder she observed he had an injury to his left hand. Tr.

545. McRae told Martin that he was injured while he was stabbing the victim. Tr.

545. Timothy Augsback (“Augsback”) testified that he is a forensic scientist in the

DNA section of BCI. Tr. 580-81. Augsback testified that the blood found on the

door knob of the victim’s home likely came from McRae. Tr. 589. The blood found

on the kitchen sink of the victim’s home also likely came from McRae. Tr. 591.

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The blood found on the victim’s medicine cabinet was also consistent with that of

McRae. Tr. 592. Given the testimony of Martin and Augsback indicating that

McRae was likely present at the scene, counsel for McRae may have determined

that the alibi testimony was not credible and not helpful to McRae’s case. The

record is devoid of any evidence to indicate that it would have changed the outcome

of the case.

{¶15} Similarly, McRae claims that his trial counsel was deficient for not

calling its own DNA expert. As discussed above, the determination whether to call

a witness is a matter of trial strategy. The record contains nothing to indicate that

the testimony of the expert would have been helpful. This court finds no basis for

determining that calling the expert would have affected the outcome of the trial.

{¶16} Finally, McRae claims that his counsel was not qualified to represent

him in a felony case and points to Ohio Administrative Code § 120-1-10, which sets

standards for appointed counsel in order to qualify for state reimbursement through

the public defender’s office. The code sets forth training and experience

requirements for attorneys who accept appointments to represent defendants in

felony cases. However, OAC 120-1-10(Q) provides that an “attorney employed

full-time by a public defender office that meets all applicable standards and

guidelines promulgated pursuant to Chapter 120 of the Revised Code and all

requirements of rule 120-1-06 of the Administrative Code, is exempted from the

qualification requirements of this section.” Trial counsel in this matter were

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employed by the Shelby County Public Defender’s Office. No allegation is made

that the Public Defender’s Office did not comply with OAC 120-1-06. Additionally,

the record does not contain any evidence that the attorneys in question did not have

the requisite training. For all of the above reasons, the second assignment of error

is overruled.

Lesser Included Offense

{¶17} McRae alleges in the third assignment of error that the trial court erred

by not instructing the jury on voluntary manslaughter. Voluntary manslaughter is

not a lesser included offense of aggravated murder, but is instead an inferior degree

of aggravated murder. State v. Shane,

,

(1992). “[T]he test for whether a judge should give a jury an instruction on

voluntary manslaughter when a defendant is charged with murder is the same test

to be applied as when an instruction on a lesser included offense is sought.”

The

instruction is appropriate when the evidence presented would reasonably support

both an acquittal on the murder charge and a conviction for voluntary manslaughter.

“When the evidence presented at trial going to a lesser included offense (or inferior-degree offense) meets this test, the trial judge must instruct the jury on the lesser (or inferior-degree) offense. * * * On the other hand, when the evidence presented at trial does not meet this test, a charge on the lesser included (or inferior- degree) offense is not required.

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This means that “when sufficient evidence is presented which would allow a

jury to reasonably reject the greater offense and find the defendant guilty on a lesser

included (or inferior-degree) offense, the instruction on voluntary manslaughter

should be given.

.

{¶18} Here, McRae was charged with aggravated murder in violation of R.C.

2903.01(B). To be convicted of this offense, the State had to prove that

)

purposely, 2) caused the death of another, 3) while committing or attempting to

commit a robbery. To be convicted of voluntary manslaughter in violation of R.C.

2903.03(A), the State would need to prove that

) while under the influence

of sudden passion or rage, 2) brought on by serious provocation from the victim, 3)

knowingly, 4) caused the death of another. When determining whether there was

adequate mitigating circumstances of provocation, a court must look into both the

objective and subjective aspects of the facts.

.

An inquiry into the mitigating circumstances of provocation must be broken down into both objective and subjective components. In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied. Then, if that standard is met, the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage. It is only at that point that the “* * * emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time * * *” must be considered. * * * If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction. In that event, the objective portion of

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the consideration is not met, and no subsequent inquiry into the subjective portion, when the defendant’s own situation would be at issue, should be conducted.

{¶19} McRae argues that because there was testimony that he was in fear of

the victim when he stabbed him, he meets the definition of voluntary manslaughter

and was entitled to such an instruction. However, “fear alone is insufficient to

demonstrate the kind of emotional state necessary to constitute sudden passion or

fit of rage.” State v. Mack,

,

,

. Fear for one’s own safety is a self-defense issue, not a showing of sudden

passion or a fit of rage. State v. Hendrickson, 4th Dist. Athens No. 08CA12, 2009-

Ohio-4416, ¶ 41. A review of the record shows that while McRae presented some

evidence that he was afraid of the victim, there was no evidence presented that there

was a serious provocation from the victim that would cause a reasonable person to

react with sudden passion or rage. Thus, the evidence does not support McRae’s

argument that the trial court should have instructed the jury on voluntary

manslaughter. The third assignment of error is thus overruled.

Speedy Trial

{¶20} Finally, McRae alleges in his fourth assignment of error that his

speedy trial rights were violated. Both the United States Constitution and the Ohio

Constitution guarantee a criminal defendant the right to a speedy trial. State v.

Baker,

, 1997–Ohio–229,

. Additionally,

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R.C. 2945.71 through 2945.73 provide specific time requirements in which the state

must bring an accused to trial. The Ohio speedy-trial statute is mandatory and must

be construed strictly against the state. State v. Steinke,

, 2004–

Ohio–1201,

. R.C. 2945.71(C)(2) provides that a person

against whom a felony charge is pending must be brought to trial within 270 days

from the date of arrest, not including the date of his arrest. State v. Masters,

, 2007–Ohio–4229,

. When an accused

is held in jail in lieu of bail on the pending charge, each day is counted as three days.

and R.C. 2945.71(E).

{¶21} An appellate court's review of speedy trial issues involves a mixed

question of law and fact. State v. Hayman, 3d Dist. Seneca No. 13-09-11, 2010-

Ohio-1264. “A reviewing court must give due deference to the trial court's findings

of facts if they are supported by competent credible evidence, but will independently

review whether the trial court correctly applied the law to the facts of the case.”

.

{¶22} Here, McRae was arrested on March 22, 2017, and remained in jail

pending trial. He was charged with a felony, so pursuant to R.C. 2945.71(C), the

State had 90 days to bring him to trial. This puts the deadline at June 20, 2017. The

trial was not held until September 11, 2017. However, before the deadline had

passed, a waiver of speedy trial rights was requested by counsel for McRae to allow

for trial preparation. Generally an accused may waive his constitutional right to a

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speedy trial. State v. O’Brien,

,

(1987). “[A]

defendant’s right to be brought to trial within the time limits expressed in R.C.

2945.71 may be waived by his counsel for reasons of trial preparation and the

defendant is bound by the waiver even though the waiver is executed without his

consent.” State v. McBreen,

,

(1978).

{¶23} In this case, McRae’s trial started on September 11, 2017, which was

140 days after he was taken into custody. However, on May 19, 2017, counsel for

McRae filed a motion to continue along with a waiver of the speedy trial rights. A

hearing was held on the motion and McRae made his objections known.1 Counsel

indicated that the additional time was needed because 1) it was a serious charge, 2)

evidence such as the coroner’s report and the DNA results were not available with

less than a month before the trial, 3) McRae had disclosed a potential alibi witness

who had yet to be interviewed, and 4) discovery was still outstanding with not all

witnesses identified. Doc. 62. Based upon these issues, counsel indicated that he

could not have an adequate, competent defense prepared for McRae by the trial date.

The trial court granted the motion noting that McRae had voiced his objections

to the request. Doc. 69. After the arguments were made, the trial court made the

following determination. “Considering the nature of the offense charged i.e.

Aggravated Murder, the complexity of trying such a case, the need of defense

1 No transcript of the hearing was provided, so the exact arguments are not available for this court to review.

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counsel to review completely and prepare defenses to all the scientific evidence, the

court believes that the motion of defense counsel is in the [best] interests of the

defendant and the motion should be granted even though the defendant objects.”

Since McRae is bound by the waiver of speedy trial rights by his counsel pursuant

to the holding in McBreen, he is not entitled to have the case discharged for failure

of the trial beginning within 90 days of his arrest.

{¶24} McRae also argues that he revoked his waiver by filing his pro se

motion to dismiss for a speedy trial violation on June 19, 2017. At the time of the

motion, McRae was represented by counsel.

In Ohio, a criminal defendant has the right to representation by counsel or to proceed pro se with the assistance of standby counsel. However, these two rights are independent of each other and may not be asserted simultaneously.

State v. Martin,

,

,

. At no

time did McRae ask to have his counsel removed. Thus, the trial court correctly

determined that McRae’s pro se motion should be struck because McRae was

represented by counsel. Based upon the above reasons, the fourth assignment of

error is overruled.

{¶25} Having found no error in the particulars assigned and argued, the

judgment of the Court of common Pleas of Shelby County is affirmed.

Judgment Affirmed SHAW and PRESTON, J.J., concur.

/hls -17-