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State of Ohio v. Rocky Purdin

January 4, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
ROCKY PURDIN, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Kline, J.:

Cite as State v. Purdin,

DECISION AND JUDGMENT ENTRY

{¶1} Rocky Purdin appeals the judgment of the Adams County Court of Common Pleas, which convicted him of murder. Purdin contends that the trial court denied him a fair trial when it allowed the jury to deliberate through the night and into the early morning hours before reaching a verdict. Because the jury's deliberations did not deprive Purdin of a fair trial, we disagree. Purdin next contends that his conviction was against the manifest weight of the evidence because he proved that he acted in self-defense. Because the jury was free to determine that Purdin's self-defense claim was not credible, we disagree. Next, Purdin contends that he suffered from ineffective assistance of counsel because his trial counsel's proposed jury instructions, which the court adopted, improperly implied that Purdin had a duty to retreat. The jury instructions were a correct statement of the law, and the instructions did not improperly imply that Purdin had a duty to retreat. Therefore, Purdin's trial counsel's performance was not deficient, and Purdin cannot prevail on his ineffective assistance of counsel claim. Purdin next contends that there were several instances of prosecutorial misconduct during Purdin's trial. Purdin did not object to all of the alleged instances of prosecutorial misconduct and, as a result, we review the instances under different standards of review. Nevertheless, the alleged instances of prosecutorial misconduct do not warrant reversal. Accordingly, we affirm the judgment of the trial court.

I.

{¶2} In the early morning hours of December 6, 2010, police arrived at Purdin's home in response to a 911-call made by Purdin's wife, Kathleen. Inside Purdin's home, police found Purdin's stepson, William Stunich, on the floor of the hallway. (Stunich was Kathleen's son.) Purdin had shot Stunich with a rifle, and Stunich passed away shortly after the police arrived. A grand jury indicted Purdin for murder.

{¶3} Purdin claimed that he shot Stunich in self-defense after Stunich assaulted him. According to Purdin's testimony at trial and his statements to police shortly after the incident, the following events led to Stunich's death. On the date of the incident, Stunich was temporarily residing at Purdin's home. Apparently, there was tension between Purdin and Stunich because Purdin believed that Stunich was engaged in criminal activity. During the evening of December 5, 2010, Purdin was watching a football game in his living room. Stunich awoke and went to the kitchen after having slept most of the day. Stunich became angered by comments Purdin had written on some food containers. After reading Purdin's comments, Stunich assaulted Purdin in the living room. The struggle then moved from the living room into the hallway, near the bathroom of the home. Stunich knocked Purdin down in the bathroom, but, after that, Purdin was not sure where Stunich went. At that point, Purdin retrieved his rifle. He and Stunich then confronted each other in the hallway. Purdin testified that he told Stunich to "stop," but Stunich "came at [Purdin,]" so Purdin shot Stunich. Id. at 785. Additionally, Purdin claimed that, after he shot Stunich the first time, "[Stunich] kept coming[.]" Id. at 786. Ultimately, Purdin shot Stunich three times. At some point after he was shot, Stunich called out to Kathleen, who had been asleep. Kathleen called 911, and Purdin surrendered to the police when they arrived.

{¶4} At trial, the jury found Purdin guilty of murder in violation of R.C. 2903.02(B) (i.e., felony murder) and reckless homicide in violation of R.C. 2903.041(A). Each verdict carried a firearm specification. The jury could not reach a verdict on Count I, murder in violation of R.C. 2903.02(A). The trial court merged the felony murder and reckless homicide counts and sentenced Purdin to eighteen years to life in prison. Purdin appealed, but we determined that there was no final appealable order because Count I remained pending. See State v. Purdin, 4th Dist. No. 11CA909, 2012-Ohio-752, ¶ 8-10. Consequently, we dismissed Purdin's appeal. See id. at ¶ 11. On March 1, 2012, the trial court dismissed Count I of the indictment.

{¶5} Purdin again appeals and asserts the following assignments of error: I. "Jury deliberations that commenced at 9:00 p.m. on a Friday night and ended after 3:30 a.m. the following Saturday morning violated Mr. Purdin's rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and by Sections 10 and 16, Article I of the Ohio Constitution. (Tr. 588, 992-93.)" II.

"Prosecutorial misconduct deprived Mr. Purdin of his constitutionally guaranteed right to a fair trial, in violation of the Fifth and Fourteenth Amendments, to the United States Constitution and Section 10, Article I of the Ohio Constitution (Tr. 798-99, 917, 924-25, 927, 936, 937, 939-40.)" III. "Mr. Purdin's convictions are against the manifest weight of the evidence, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution. (Passim.)" And IV.

"Defense counsel erred in submitting to the court proposed jury instructions on the law of self-defense in a case in which the defendant was assaulted in his own home, and thereby deprived Mr. Purdin of his right to a fair trial before a properly instructed jury, and of his right to the effective assistance of counsel, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution. (Tr. 956-57.)"

II.

{¶6} In his first assignment of error, Purdin argues that the trial court denied him a fair trial when it allowed the jury (1) to begin deliberating at 9:00 p.m. on Friday, February 25, 2011, and (2) to continue deliberating until it reached a verdict at approximately 3:30 a.m. on Saturday, February 26, 2011.

{¶7} Initially, we note that Purdin did not object to the trial court's decision regarding the jury's late-night deliberations. Thus, we will review Purdin's argument for plain error only. See State v. Maynard, 4th Dist. No. 10CA43, 2012-Ohio-786, ¶ 20; Crim.R. 52(B). "For a reviewing court to find plain error: (1) there must be an error, i.e., 'a deviation from a legal rule'; (2) the error must be plain, i.e., 'an "obvious" defect in the trial proceedings'; and (3) the error must have affected 'substantial rights,' i.e., it 'must have affected the outcome of the trial.'" State v. DiCarlo, 4th Dist. No. 09CA3301, 2010-Ohio-3759, ¶ 34, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Courts should "notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" Barnes at 27, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶8} Purdin rested his defense at around 5:00 p.m. on a Friday. The trial court then provided the jury with the following three options for deliberating: (1) to begin deliberating that evening after closing arguments; (2) to return Saturday morning at 9:00

a.m. to begin deliberating; or (3) to return Monday morning at 9:00 a.m. to begin deliberating. The jury voted by secret ballot and decided that it "would like to get started tonight" (i.e., Friday evening). Trial Tr. at 879. The court then asked, "is there any one that by deliberating this evening, that it will cause a hardship upon them or will cause them lack of attention or focus on this case?" Id. None of the jurors indicated that it would. The trial court then made arrangements to provide the jury with food.

{¶9} At approximately 9:00 p.m., the jury began its deliberations. Just before midnight, the jury posed two inquiries to the trial court. Neither inquiry suggested that the jury was fatigued. The jury posed another inquiry to the trial court just before 2:00 a.m. When reviewing the jury's inquiry, the trial court noted that "[t]he jury has desired to continue deliberating." Trial Tr. at 974. At around 3:30 a.m., the jury notified the trial court that it had reached a verdict regarding Count II and Count III but was deadlocked regarding Count I. The trial court then declared a mistrial on Count I and accepted the verdicts for Count II and Count III.

{¶10} Purdin argues that the jury's late-night deliberations deprived him of a fair trial, and in making this argument, Purdin relies on State v. Albers, 174 N.W.2d 649 (Iowa 1970). In Albers, the jury received evidence over the course of a nine-day murder trial. Id. at 652. After taking Thanksgiving Day off, the jury returned the next day (i.e., Friday), at 10:00 a.m., to hear closing arguments and to deliberate. Id. The jury began deliberating at around 5:30 p.m., and about 2:00 a.m., the jury informed the judge (through the bailiff) that it was hopelessly deadlocked. Id. at 652-653. The bailiff also indicated to the trial court that one or more jurors "inquired how long they were supposed to deliberate on a verdict." Id. at 653. The trial court told the bailiff that there was no specific time limit on the jury's deliberations. Id. The jury returned a guilty verdict at 4:30 a.m. Id.

{¶11} The Albers court held as follows:

[A] verdict returned after a 2:00 a.m. report by the jury that it was deadlocked, an inquiry as to how long they would have to deliberate, a reply that there was no specific time and a final verdict at 4:30 a.m., cannot be allowed to stand as the impartial, uncoerced unanimous verdict of the jury. Under such circumstances the premium is on stamina and physical strength rather than judgment. Id. at 656.

{¶12} The concerns from Albers are not present here. The record shows that the jury's verdict was not partial or coerced based on the late night deliberations. As stated, prior to deliberating, the trial court provided jurors with the opportunity to inform the court that late-night deliberations would be a hardship. None of the jurors did so.

Additionally, there were alternate jurors available in case any of the other jurors were unable to deliberate. Moreover, the jury's inquiries during deliberations suggest that the members of the jury desired to continue the deliberations. In short, there is no indication that the jury was fatigued or that there was a "premium on stamina and strength rather than judgment." Id.

{¶13} Thus, we find that the jury's late-night deliberations did not deprive Purdin of a fair trial, and the deliberations do not amount to plain error. See State v. Holt, 17 Ohio St.2d 81, 84, 246 N.E.2d 365 (1969); State v. Anthony, 2d Dist. No. 95 CA 18, 1996 WL 531582, *8 (Sept. 20, 1996).

{¶14} Accordingly, we overrule Purdin's first assignment of error. III.

{¶15} We next address Purdin's third assignment of error out of order. In his third assignment of error, Purdin argues that his conviction is against the manifest weight of the evidence. Purdin claims the evidence shows that he acted in self-defense.

{¶16} When determining whether a criminal conviction is against the manifest weight of the evidence, we "will not reverse a conviction where there is substantial evidence upon which the [trier of fact] could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph two of the syllabus. Accord State v. Smith, 4th Dist. No. 06CA7, 2007-Ohio-502, ¶ 41. We "must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial granted." Id., citing State v. Garrow, 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814 (4th Dist.1995); State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). But "[o]n the trial of a case, * * * the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

{¶17} Purdin argues that the evidence shows "the jury lost its way in concluding that the actions Mr. Purdin took on December 5, 2010, were anything other than self-defense." Appellant's Brief at 10.

{¶18} "Self-defense is an affirmative defense, and the burden of going forward with the evidence of self-defense, and the burden of proof for demonstrating self- defense, rests with the accused." State v. DiFrancesca, 10th Dist. No. 10AP-340, 2011- Ohio-3087, ¶ 34, ...


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