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State of Ohio v. Alverno M. Howse

December 26, 2012

STATE OF OHIO APPELLEE
v.
ALVERNO M. HOWSE, JR. APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 09CR078921

The opinion of the court was delivered by: Moore, Presiding Judge.

Cite as State v. Howse,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant, Alverno Howse, Jr., appeals his convictions in the Lorain County Court of Common Pleas. This Court affirms.

I.

{¶2} On August 19, 2009, Charles "Chuckie" Howard, Jr. was shot and killed in a home rented by Shauda Stark. During the police investigation immediately following the shooting and in testimony before the grand jury, witnesses at the home placed Appellant in the room with Howard at the time of the shooting. By the time the case went to trial, some of the witness testimony had changed. Nonetheless, a jury convicted Appellant of reckless homicide in violation of R.C. 2903.041, a felony of the third degree, and tampering with evidence, in violation of R.C. 2921.13(A)(1), also a third degree felony. He was also convicted of the attendant gun specifications attached to each charge. Appellant was sentenced to 13 years in prison. He presents five assignments of error on appeal.

{¶3} Testimony at trial was presented as follows. In the hours before the shooting, Stark, Chuckie, Jeris Nelson, Clyde Anderson, Tony Spraggins, Melissa White, Christopher Howse, and Appellant were all gathered at the house. Stark left to pick up her son from daycare. Stark took Christopher Howse, her boyfriend at the time, and Spraggins with her. Chuckie, Nelson, Anderson, White, and Appellant remained at the house. The witnesses testified inconsistently as to what happened next.

{¶4} Sometime after the group left to pick up Stark's son, White and Anderson went into the main bedroom to talk. According to White, she left the bedroom when she heard loud voices coming from the living room; she then walked into the kitchen. According to Anderson, he left the bedroom with White and walked directly into the bathroom. Nelson remained in the living room, and, according to some statements, Chuckie and Appellant walked back towards the bedroom. White, Anderson, and Nelson then heard a single gunshot, and, according Nelson and White, Chuckie came into the kitchen and collapsed on the floor. When the police arrived, Chuckie, Nelson, Anderson, and White were at the house. Appellant was not, and no gun was ever found.

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED PLAIN ERROR IN DENYING APPELLANT HIS RIGHT TO A PUBLIC TRIAL UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN IT CLOSED THE COURTROOM BASED UPON ONLY VAGUE CONCERNS FOR WITNESS SAFETY AND GANG ACTIVITY IN THE MIDDLE OF THE TESTIMONY OF ONE KEY WITNESS.

{¶5} In his second assignment of error, Appellant argues that he was denied his constitutional right to a public trial when the court closed the courtroom. We disagree.

{¶6} The Sixth Amendment to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution guarantee the right to a public trial. State v. Lane, 60 Ohio St.2d 112, 119 (1979). "The right to a public trial is rudimentary in our judicial system, but, as with most rights, it is not absolute * * *." Id. at 121. It is within the authority of a trial court to order the closure of the proceedings in limited instances. State v. Evans, 9th Dist. No. 07CA009274, 2008-Ohio- 4295, ¶ 15. In those limited instances the right to a public trial:

must yield to other interests, such as those essential to the administration of justice. A trial judge has authority to exercise control over the proceedings and the discretion to impose control over the proceedings. Nonetheless, the abridgement of a defendant's right to a public trial may occur only when necessary, and any closure must be narrowly drawn and applied sparingly.

State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 51. "This Court reviews a trial court's decision to exclude spectators from the courtroom under an abuse of discretion standard * * *." State v. Powell, 9th Dist. No. 20067, 2001 WL 1162832, *7 (Oct. 3, 2001). An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

Substantial Reason

{¶7} When a trial court orders a partial closure of proceedings, there must be a "substantial reason" to justify the closure. Drummond at ¶ 53. Appellant argues that "there were no explicit statements from any witnesses that they were concerned with their safety." Therefore, according to Appellant, there was no substantial reason for the court to close the courtroom.

{¶8} During the State's direct examination of Melissa White, its fourth witness, an altercation occurred outside the courtroom between a prior witness and one of the victim's family members. The courtroom security responded, and the court removed the jury from the courtroom. The State then requested the court close the courtroom for the remainder of White's testimony and for the upcoming testimony of a confidential informant. The court conducted a hearing on the State's motion.

{¶9} Detective Steven Zacharias, of the Elyria Police Department, testified that he had been informed "by a reliable source that several of the witnesses to this case [were] being intimidated by a gentleman known on the streets as Mook Duke." He went on to explain that he believed Mook Duke to be the street name for Gregory Raymore, the individual responsible for posting Appellant's bail. According to Detective Zacharias, Mook Duke was recruiting individuals to attend the trial to provide "an intimidation factor." Detective Zacharias also explained that the "word [] on the street [was] that there could be problems here in the courtroom and on the street during and after this trial."

{¶10} Detective Larry Barbee and Detective Randall Baker, both of the Elyria Police Department, testified about a group called the Middle Avenue Zone ("MA Zone"), a local gang to which the detectives believed Appellant belonged. Detective Barbee testified that he had noticed several individuals in the back of the courtroom that were known to be involved with MA Zone. Detective Barbee further testified that, based on the change in their testimony and their demeanor, he believed the prior witnesses were intimidated. In fact, two of the State's witnesses had unexpectedly changed their testimony at trial. Their testimony directly conflicted with their prior testimony to the grand jury and subjected them to perjury charges.

{¶11} Deputy Joseph Greiner, assigned to courtroom security, testified that when he responded to a commotion outside of the courtroom, he saw one of the witnesses in an altercation with the victim's step-sister. As he approached, Deputy Greiner heard the witness say, "We rule these streets." This witness testified at trial that Appellant was not present at the time of the shooting. This testimony was inconsistent with his previous statements to the police and with his testimony to the grand jury.

{¶12} Additionally, Detective Barbee testified that White, in her initial interview, told him that she was concerned about someone coming to her house to shoot her. The trial judge made a special note of how nervous White seemed during her testimony. The judge acknowledged that it is not uncommon for a witness to be nervous, but her nervousness was more than that. White requested time to pause and collect herself, she had a "very pained look on her face," grabbed her stomach on several occasions leading the court to believe she "was nearing nausea," and she had raspy, heavy breathing during her testimony.

{¶13} The court has an interest in maintaining courtroom security and protecting the safety of witnesses. Drummond at ¶ 54 (observing the "dangerous nature of gang violence and the genuine need to protect witnesses testifying against gang members from the deadly threat of retaliation"). After reviewing the record, we cannot conclude that the court ...


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