Criminal Appeal from (Common Pleas Court) Trial Court Case No. 2009-CR-4069/2
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee
MELISSA REPLOGLE, Atty. Reg. #0084215, Replogle Law Office, LLC, 2312 Far Hills Avenue, #145, Dayton, Ohio 45419 Attorney for Defendant-Appellant
(¶ 1} Defendant-appellant Stefoun D. Hunter appeals from his conviction and sentence for Having Weapons While Under a Disability, Possession of Cocaine, Possession of Heroin, and Possession of Marijuana, along with firearm specifications. Hunter contends that the trial court erred on remand when it denied his motion to suppress evidence of firearms discovered in between the box springs and mattress of his bed during a police search of his residence. Specifically, Hunter contends that the trial court erred by taking judicial notice of the testimony of Sergeant Adkins, who testified at a suppression hearing in another proceeding involving Hunter's co-defendant, Jaytron Cooper. Hunter also contends that he received ineffective assistance of trial counsel due to his counsel's failure to object to the trial court's decision to take judicial notice of Sergeant Adkins's testimony.
(¶ 2} We conclude that the trial court erred by taking judicial notice of testimony presented at a suppression hearing in another proceeding, but that this error was harmless because virtually identical testimony was presented at Hunter's trial. We further conclude that Hunter has failed to demonstrate ineffective assistance of trial counsel. Accordingly, the judgment of the trial court is Affirmed.
I. Course of the Proceedings
(¶ 3} This case is before us for a second time. A full recitation of the underlying facts is set forth in State v. Hunter, 2d Dist. Montgomery No. 24350, 2011-Ohio-6321. Some of those facts are as follows.
(¶ 4} At 6:53 p.m. on December 2, 2009, Montgomery County 911 Dispatch received a call from someone who stated he heard six gunshots and saw three black males run into 5150 Northcutt Place. Less than 20 minutes later, the 911 Dispatch received a call from Shawn Parker, who stated that his son had sent him a text message claiming that the son was being held against his will at 5150 Northcutt Place.
(¶ 5} Montgomery County Sheriffs Deputy Anthony Hutson was one of the officers who responded to 5150 Northcutt. Parker explained to Dispatch that his son also told him via text message that the son could see the responding police officers outside and that the son was in a closet upstairs. Officer Hutson looked up at the second story bathroom window and observed a male stick out his head and then close the window.
(¶ 6} After police knocked on the door for several minutes, a male opened the door, observed the officers, and then tried to close the door. The officers then entered the residence, secured the individuals inside, and conducted a search through the residence looking for a victim of the reported robbery or abduction. Officers then performed a secondary search to look for the potential victim. The secondary search involved looking in closets and under the bed for the reported victim. Upstairs, while apparently attempting to look underneath a bed, an officer discovered firearms between the bed's mattress and box springs. The officers also discovered drugs during the searches.
(¶ 7} Hunter was arrested and charged by indictment with three counts of Possession of Cocaine, one count of Possession of Heroin, one count of Possession of Marijuana, and three counts of Having Weapons While Under a Disability. The drug charges all included firearm specifications. Hunter moved to suppress the evidence obtained from the residence, contending that it was obtained as the result of an unlawful search and seizure. Following a hearing, his motion was denied.
(¶ 8} Following a jury trial, Hunter was convicted of all charges and specifications, and was sentenced accordingly. From his conviction and sentence, Hunter appealed to this Court. We affirmed Hunter's convictions for Possession of Cocaine, Heroin, and Marijuana, and reversed Hunter's convictions for Having Weapons While Under a Disability and his conviction for firearm specifications. We remanded the cause to the trial court for re-determination of the suppression motion with respect to the weapons. We stated, at ¶ 40-42:
We conclude that the evidence in the record of the suppression hearing, even when viewed in a light most favorable to the State, is too sparse to support the trial court's finding that the firearms were found under a bed. Detective Reed did testify that firearms were found in an area where a person could be hidden, but it appears that this was by report, not within his personal knowledge, and the conclusion that the firearms were found in an area where a person could be hidden does not affirmatively establish where the firearms were found. The only reasonable conclusion that we can draw from the sparse evidence at the suppression hearing was that the firearms were found between the mattress and the box springs.
We conclude, therefore, that the trial court erred when it found that the firearms were found under a bed. We cannot determine that this error is harmless. Since we conclude that the trial court should have found, based on the evidence at the suppression hearing, that the weapons were found between the mattress and the box springs, it remained for the trial court to find whether their discovery in that location was inadvertent. That conclusion is suggested, but not commanded, by Deputy Hutson's testimony that the firearms were found in that location "when attempting to check under a bed."
Because we conclude that the trial court committed an error that we cannot determine to have been harmless, in its decision denying the motion to suppress the evidence of the firearms, we will reverse the convictions that depend upon that evidence, and remand this cause for further proceedings on that aspect of the suppression motion. (Emphasis added.)
(¶ 9} On remand, the trial court issued a "Partial Decision, Order and Entry Upon Remand; Clarification of Factual Findings on Suppression Issues." In its decision, the trial court summarized the testimony from Hunter's trial, including the testimony of Sergeant Dan Adkins. The court also summarized and quoted the testimony of Sergeant Adkins from a suppression hearing in the ...