[Cite as State v. Howell,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 107545 v. :

SLATTER HOWELL, III, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 8, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-603024-A and CR-16-606767-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecutor, and Daniel A. Cleary, Assistant Prosecuting Attorney, for appellee.

Mark A. Stanton, Cuyahoga County Public Defender, Robert B. McCaleb and Jeffrey M. Gamso, Assistant Public Defenders, for appellant.

PATRICIA ANN BLACKMON, J.:

Defendant-appellant, Slatter Howell, III, appeals from his

convictions for aggravated murder, aggravated robbery, and other offenses in Cuyahoga C.P. No. CR-16-603024-A and his conviction for felonious assault in

Cuyahoga C.P. No. CR-16-606767-A. He assigns the following errors for our review:

I. Mr. Howell was denied his constitutional right to the effective assistance of counsel when, after being accused of witness tampering and attempting to suborn perjury, his attorneys simply declared their innocence rather than asking the trial court to make findings and demanding a mistrial.

II. The trial court’s comments bolstering the credibility of the government’s DNA “expert” prejudiced Mr. Howell’s defense.

III. The trial court committed error when it imposed consecutive sentences because its finding that consecutive sentences were necessary to protect the public is altogether unsupportable and irrational.

Having reviewed the record and the controlling law, we affirm.

Howell was charged in a five-count indictment in Cuyahoga C.P. No.

CR-16-606767-A in connection with an attack on Joe Houston on May 1, 2014. On

October 11, 2017, Howell pled guilty to one count of felonious assault and was

sentenced to eight years imprisonment.

Howell was also indicted in Cuyahoga C.P. No. CR-16-603024-A for

two homicides and related offenses. Counts 1 through 8 arose from the April 7, 2014

shooting death of gas station worker Babul Saha (“Saha”), and the indictment

charged Howell with two counts each of aggravated murder, felonious assault, and

aggravated robbery, and one count each of murder and robbery. The charges also

included repeat violent offender specifications, a notice of prior conviction, and one-

and three-year firearm specifications. Counts 9 through 14 arose from the May 1,

2014 shooting death of Theodore Wright (“Wright”) and the indictment charged Howell with aggravated murder, murder, aggravated robbery, robbery, felonious

assault, and tampering with evidence. The parties agreed that the state would

proceed to trial first on the offenses pertaining to Saha, and the jury trial for these

offenses began on September 5, 2017. The notice of prior conviction and repeat

violent offender specifications were tried to the court.

The state’s evidence demonstrated that on the night of April 7, 2014,

Saha was working alone behind the counter at the Prime Station on Granger Road

in Maple Heights. According to customer Bruce Tyus (“Tyus”), a man in a gray

hooded sweatshirt with the hood pulled tightly over his head approached him at the

pumps and asked how many people were inside the store. Tyus replied that one or

two people were inside. The man walked inside and shortly after that, Tyus heard

gunshots.

Dennis Hanson (“Hanson”) testified that around 10:30 p.m., he had

stopped at a traffic light near the Prime Station and observed three individuals in

hooded sweatshirts repeatedly crossing Granger Road at Milo Avenue. After the

shooting, Hanson reviewed police photos and identified three people as “possibly”

involved, but he was unsure if Howell was among these individuals.

Customer Sam Killings (“Killings”) went into the store and waited for

service. After a few minutes, he looked behind the counter and observed the clerk

on the floor “with his eyes rolling in the back of his head.” One of the cash register

drawers was opened. Saha died from his injuries. According to Cuyahoga County Deputy

Medical Examiner Dr. Joseph Felo (“Dr. Felo”), Saha sustained a gunshot wound to

his torso that perforated his aorta and caused him to bleed to death.

Maple Heights Detective Andrew Sperie (“Det. Sperie”) testified that

he collected a white plastic bag from the floor of the Prime Station office and marked

it as item no. 3 on the police evidence log. Det. Sperie checked out a number of leads,

and subsequently received a tip through Crime Stoppers claiming that Howell was

the assailant.

Cuyahoga County Regional Forensics Science Laboratory

(“CCRFSL”) Analyst Carey Baucher (“Baucher”) testified that initial DNA analysis of

the white plastic bag revealed a mixture from more than three unidentified

individuals. Because of the number of contributors, the white plastic bag recovered

at the crime scene was sent to Cybergenetics Laboratory (“Cybergenetics”) that

utilizes the True Allele computer program to perform the calculations for genotyping

mixed contributor samples. Baucher was cross-examined at length about the

reliability of True Allele given its source code, and she repeatedly indicated that she

is not a computer programmer and did not perform the genotyping of the mixed

contributor samples. However, Baucher stated that “the program is reliable when

we set up certain experiments and certain mixtures that we know what goes into

these and what the results should be, and it has come out perfect every time.”

Jennifer Hornyak (“Hornyak”) of Cybergenetics, stated that True

Allele is the subject of 34 validation studies, one of which was completed by the CCRFSL. The True Allele software considers the distribution of gene allele pair

values and works out all of the different genotype combinations with their associated

probabilities in order to derive match statistics. According to Hornyak, the sample

from the white plastic bag had degraded overall, but there was a match between it

and Howell that is 98 thousand times more probable than a coincidental match to

an unrelated African-American person. The match between the white plastic bag

and Saha is 224 thousand times more probable than coincidence.

Hornyak also testified that the source code for True Allele is a

proprietary trade secret, but is available to defense experts who sign confidentiality

agreements. Defense experts are also invited to create a mixed contributor DNA

sample of six individuals in order to test True Allele’s accuracy. In this case,

Cybergenetics provided the defense with the validation studies, tutorials, and

software needed to view the source code as well as the supporting case files.

Monique Tatum (“Tatum”), Howell’s former girlfriend, testified that

after she and Howell broke up, she posted news footage of Saha’s assailant on her

Facebook page. She also posted a private message to “Gutta Boii,” the name of a

Facebook account used by Howell and others. The next day, Howell shot at Tatum.

It is undisputed that Howell pled guilty to attempted felonious assault with a three-

year firearm specification in Cuyahoga C.P. No. CR-14-586451-A, in connection with

the attack on Tatum and was sentenced to five years of imprisonment.

Tatum gave a statement to police outlining that after Saha was killed,

Howell refused to go into the Prime Station. According to Tatum’s statement, Howell went to the station with “Maine” and “Ken,” and he committed the crime in

order to show that he was ready to join the Heartless Felons. Howell reportedly

insisted that he had obtained several thousand dollars from the robbery and not $50

as stated in news reports. Tatum also told police that the clothing worn by the

assailant was similar to clothing that Howell owns.

Rufus Harris (“Harris”) testified that Howell was his cell mate at

Lorain Correctional Institution. Howell experienced nightmares and confided to

Harris that he and his friend Maine wanted to commit a robbery, so they drove

around and ended up at the Prime Station. They parked across the street. After

learning that no customers were inside, Howell reportedly approached with his hood

tied tightly around his face. The clerk jumped up to lock the bulletproof door, and

Howell shot him in the chest with a .38 caliber weapon. Harris also stated that

Howell hurt his leg while jumping over the counter to get to the cash register.

Although the police believed that Howell dropped a glove at the crime scene, he

denied that he had done so.

Harris admitted that in exchange for this information, he did not have

to serve the final six months of his sentence. Harris denied that he learned the

details of the crime from television reports or reading a letter to Howell in which one

of his friends, Kenneth Pinkney (“Pinkney”), threatened to blame the Prime Station

shooting on Howell unless Howell told police that he owned a weapon found in

Pinkney’s possession. Howell testified on his own behalf. He stated that he receives money

from a wrongful death action, and he denied robbing and shooting Saha. Howell

also denied confessing the crime to Tatum and Harris. Howell asserted that Tatum

fabricated her claims due to romantic jealousy and frustration at not getting money

from him. Howell maintained that he and Harris were housed together only for

several days and stopped sharing a cell after he caught Harris going through his

mail. Howell testified that “Maine,” or Kwamaine Davis (“Davis”), killed Saha.

Howell indicated that he was being framed by Tatum, with the help of the police, for

refusing to join the Heartless Felons.

The jury subsequently convicted Howell of all eight charges

pertaining to the Saha shooting. With regard to the remaining charges pertaining

to the Wright shooting, Howell subsequently pled guilty to robbery and involuntary

manslaughter with a three-year firearm specification.

After merger of allied offenses, the trial court sentenced Howell to life

imprisonment without the possibility of parole for the aggravated murder of Saha,

eleven years for the aggravated robbery of Saha, eleven years for the involuntary

manslaughter of Wright, and eight years for the robbery of Wright. The court

ordered all terms to be served consecutively, and consecutively to the eight-year

term imposed for felonious assault on Houston in Cuyahoga C.P. No. CR-16-

606767-A. The court also imposed fines totaling $60,000. Ineffective Assistance of Counsel

In the first assigned error, Howell complains that his trial attorneys

were ineffective in response to Tatum’s claim that Howell and his lawyers were

“contacting me [saying] don’t show up to court. * * * They said come and rewrite

my statement and Slater have $500 to give me if I do.” Howell complains that trial

counsel denied Tatum’s allegations but did not request factual findings or seek a

mistrial.

In order to substantiate a claim of ineffective assistance of counsel,

the appellant is required to demonstrate that (1) his counsel was deficient in some

aspect of his representation, and (2) there is a reasonable probability that, were it

not for counsel’s errors, the result of the trial would have been different. Strickland

v. Washington,

,

,

(1984). Judicial

scrutiny of defense counsel’s performance must be highly deferential.

.

There is a presumption that a properly licensed attorney is competent. State v.

Calhoun,

,

,

. To justify a

finding of ineffective assistance of counsel, the appellant must overcome a strong

presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.

. Tactical or strategic trial

decisions, even if ultimately unsuccessful, generally do not constitute ineffective

assistance of counsel. State v. Carter,

,

(1995). In this assigned error, we note that Tatum’s claims were made out

of the presence of the jury, and trial counsel informed the court that they did not

contact Tatum, did not have her phone number, and her claims were “100 percent

false [and] totally ridiculous.” Counsel’s response was consistent with their overall

strategy of portraying Tatum as a perjurer, and they stated that this was “another

example of her perjuring herself as she did all throughout her testimony,” that she

“came in here today and much of what she said was demonstrably false,” and that

she “did demonstrate some falsity in her testimony.” Further, the record indicates

that Tatum claimed to have information about other charged and uncharged

offenses that Howell allegedly committed. With this in mind, and after reviewing

the entire record, we conclude that counsel could have reasonably determined that

further pursuit of Tatum’s “rewrite my statement” claims would not have aided the

defense, and they made a sound tactical decision by simply issuing strong denials of

the claims. State v. Cody, 8th Dist. Cuyahoga No. 77427,

, ¶ 63

(counsel not ineffective for failing to request a mistrial and failing to present

evidence challenging juror-tampering allegation); State v. Rodano, 8th Dist.

Cuyahoga No. 57185,

(July 12, 1990) (counsel not

ineffective for failing to object to characterization of appellant’s affidavit as “nothing

but perjury”); State v. Bolen, 3d Dist. Hancock No. 5-01-25,

(Feb. 22, 2002) (counsel not ineffective for failing to object to claim of witness

intimidation).

Therefore, we conclude that the first assigned error is without merit. Court Bolstering of Witness

In the second assigned error, Howell asserts that the trial court

improperly bolstered the testimony of the state’s DNA witness who testified that she

found True Allele reliable when the court remarked, “[s]ustained for a couple

reasons. First of all, it’s speculative, and number two, she’s not a computer expert.

* * * And I think the analogy she created about us using Google and not having the

source code is a good one.” In opposition, the state notes that Howell inaccurately

claims that this exchange occurred during the cross-examination of Hornyak, an

analyst from Cybergenetics, when, in fact, it occurred during the cross-examination

of Baucher from the CCRFSL, who had nothing to do with the development of True

Allele technology. The state maintains that this is an important clarification because

the line of cross-examination referenced “coding errors” in True Allele that Baucher

could not address.

In presiding over a trial, a judge must be cognizant of the effect of his

or her remarks upon the jury. State v. Wade,

,

(1978). An appellate court reviewing the propriety of a judge’s remarks before

a jury must determine whether the comments were prejudicial to a defendant’s right

to a fair trial.

. The Wade court adopted the following rules for evaluating

a judge’s comments:

(1) The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they are made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of counsel.

As to the issue of prejudice, we note that ultimately, Howell

maintained that he was being framed for the Saha murder, and his testimony

concludes with the following exchange:

Q. But your bag with your DNA is in it, right? Degraded or not, Mr. Howell, it’s in there, right?

A. Yes, it is.

Also as to prejudice, the defense initially challenged True Allele as

unreliable, but later withdrew that challenge. Although the defense discussed

reliability again on the eve of trial, they conceded that Howell did not authorize them

to raise that challenge, so the court did not hold an admissibility hearing under

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

,

,

(1993). The trial court also noted that True Allele had been accepted in

State v. Shaw, Cuyahoga C.P. No. CR-13-575691 (Oct. 10, 2014). See also State v.

Mathis, Cuyahoga C.P. No. CR-16-611539-A (Apr. 13, 2018). Moreover, nothing in

the record suggests that True Allele is unreliable.

As to the circumstances surrounding this testimony, this line of cross-

examination inappropriately raised the issue of “coding errors” at Cybergenetics

with Baucher who works at CCRFSL and is not a computer analyst. In response to

defense questioning, Baucher responded that she does “not need to know the lines

of code to know that the program is reliable when we set up certain experiments and certain mixtures that we know what goes into these and what the results should be,

and it has come out perfect every time.” Offering an analogy, she said, “You don’t

have the source code to Microsoft Word or Excel, but you use that quite often.”

Applying all of the foregoing, we find that the comments were not

prejudicial to Howell’s right to a fair trial. This assigned error lacks merit.

Consecutive Sentences

Howell next asserts that because the trial court sentenced him to life

imprisonment without the possibility of parole for the aggravated murder of Saha,

it was error to impose additional consecutive sentences for the aggravated robbery

of Saha, the involuntary manslaughter and robbery of Wright, and the felonious

assault on Houston. He argues that additional consecutive sentences are not

necessary to protect the public or to punish the offender.

Howell recognizes that in State v. Chavez, 8th Dist. Cuyahoga No.

99436,

, this court had held that sentences imposed consecutively

to life-without-parole sentences are moot because the issue is “academic” — this

court can issue no decision that will have any practical effect on the controversy. Id.

at ¶ 47. He argues that review of the sentence is authorized under State v.

Porterfield,

,

,

, because the court

held that it was proper for an appellate court to review whether life sentences were

properly made consecutive. However, this court rejected the same argument in

State v. Herrington, 8th Dist. Cuyahoga No. 106225,

, and

State v. Campbell, 8th Dist. Cuyahoga No. 103982,

. Accord State v. Austin, 7th Dist. Mahoning No. 16 MA 0068,

.

Although we acknowledge Howell’s interest in preserving the issue for further

review, we do not reach a different result herein, and we find Howell’s third assigned

error moot. In any event, all of the findings required for consecutive sentences were

made in this case when the trial court stated:

THE COURT: These cases are going to be run consecutively for the following reasons. Obviously, there were guns involved. This is necessary to protect the citizens of this community. If this defendant were ever released, I believe his crime wave would begin anew. It’s necessary to punish the offender. It is not disproportionate for the harm that he has caused in these three separate shootings. We should note that two of these crimes were committed after the first crime. The third crime was committed after the first two crimes. So no single sentence would adequately reflect the seriousness of this individual’s conduct. And obviously as the State of Ohio has delineated on the record * * * this individual’s criminal history shows that consecutive terms are needed to protect the public and punish the offender.

And just so we have a complete record, the Court has taken into consideration the following. He has an assault in 2009, Cuyahoga County Juvenile Court, was adjudicated delinquent. A domestic violence in 2009, adjudicated delinquent. A burglary and theft in 2009, adjudicated delinquent. An escape in 2010, adjudicated delinquent. Receiving stolen property in 2010, adjudicated delinquent. Trafficking in drugs, 2010, adjudicated delinquent. Resisting arrest, disorderly conduct, 2011, which was dismissed. Another burglary in 2012 in a theft case, adjudicated delinquent. Noise in a motor vehicle, 2013. Gross sexual imposition, attempted rape, kidnapping, in 2013, he pled guilty to aggravated burglary. He has been to the institution before on a two-year sentence. There are other misdemeanor arrests for playing loud music. Felonious assault was the 2014 case that he did two years on. And then these cases. So, I mean, his behavior has demonstrated that he has been an individual crime wave, you could say.

In accordance with all of the foregoing, the third assigned error lacks

merit. Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________ PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, A.J., and EILEEN T. GALLAGHER, J., CONCUR