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State v. Haywood

Court of Appeals of Ohio, Ninth District, Summit

October 25, 2017



          TIMOTHY YOUNG, Public Defender, and PETER GALYARDT, Assistant Public Defender, for Appellant.

          TIMOTHY J. MCGINTY, Prosecuting Attorney, and MAHMOUD AWADALLAH, BRIAN RADIGAN, and ANTHONY T. MIRANDA, Assistant Prosecuting Attorneys, for Appellee.


          DONNA J. CARR JUDGE.

         {¶1} Defendant-Appellant, Deshanon Haywood, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.


         {¶2} During the early morning hours of April 18, 2013, four people were murdered in the basement of an apartment on Kimlyn Circle in Akron. R.R., one of the victims, resided at the apartment and had received a sizeable amount of heroin the night before his murder. The three other victims found alongside him were K.W., his girlfriend; M.N., a female friend of K.W.; and K.D., a male friend of R.R.'s. The police found the apartment in disarray when they arrived on scene and suspected that the victims were killed during the course of a robbery and/or burglary. When the police obtained R.R.'s cell phone records, they learned that Haywood was the last person to call R.R. and brought him in for questioning. The police then later examined Haywood's cell phone records and learned that Haywood had received incriminating messages from another man, Derrick Brantley, around the time the murders were believed to have occurred. Following additional investigation, the police arrested both Haywood and Brantley in conjunction with the murders.

         {¶3} A grand jury indicted Haywood on: (1) four counts of aggravated murder; (2) four counts of aggravated felony murder with aggravated robbery as the predicate offense; (3) four counts of aggravated felony murder with kidnapping as the predicate offense; (4) one count of aggravated felony murder with aggravated burglary as the predicate offense; (5) four counts of aggravated robbery; (6) four counts of kidnapping; (7) one count of aggravated burglary; and (8) one count of having a weapon under disability. With the exception of the having a weapon under disability count, each of Haywood's counts also contained an attendant firearm specification. Additionally, all of his aggravated murder and aggravated felony murder counts contained four attendant capital specifications. Following a lengthy period of motion practice, the matter was set for trial.

         {¶4} The same trial judge initially presided over Haywood's and Brantley's cases. Brantley's trial occurred first, and a jury found him guilty. The mitigation phase of his trial ended a few weeks before Haywood's trial was set to begin, and his jury recommended life without the possibility of parole. Following that recommendation, the trial judge questioned whether the State ought to pursue the death penalty against Haywood. The judge spoke with the victims' families about the death penalty and then spoke with several prosecutors in chambers, wherein she asked them to dismiss the capital specifications. She also later contacted the Chief Counsel of the prosecutor's office and encouraged him to dismiss the capital specifications. Nevertheless, the State decided to pursue the death penalty against Haywood.

          {¶5} Near the conclusion of voir dire, the State attempted to strike Juror 18, an African-American juror who was morally opposed to the death penalty. Haywood objected on the basis of Batson, and, after hearing argument, the trial judge rejected the State's peremptory challenge. The trial judge offered as rationale for her ruling that Haywood was "entitled to one juror at least that looks like him." The State, therefore, renewed its request to strike Juror 18 when another African-American was seated. It did so twice more when two additional African-American jurors were seated, but the trial court repeatedly denied the State's requests to strike Juror 18. Eventually, the entire jury panel was selected, and, over the State's objection, Juror 18 remained on the panel.

         {¶6} Once the panel was selected, the State asked the trial judge not to swear in the jury. The State requested a brief delay to research its options and, possibly, to file an affidavit of disqualification. Although the trial judge strongly opposed a delay in the proceedings, she agreed to the delay after the State expressed its concern that swearing in the jury would cause jeopardy to attach. She concluded the day's proceedings without swearing in the jury, and, the following day, the State filed an affidavit of disqualification. The trial judge then sent the jury home until the issue of her disqualification could be resolved.

         {¶7} The trial judge ultimately recused herself from the proceedings, and a new trial judge was appointed. The State then filed a motion to quash the jury venire based on the fact that the first judge's biased rulings had tainted the selection process. Haywood responded in opposition, but the court later granted the State's request to quash the venire. Consequently, jury selection began anew.

         {¶8} Haywood's trial went forward with a new jury and resulted in guilty verdicts. Sentencing did not occur, however, because Haywood filed a motion for a new trial. It was his contention that the State had engaged in misconduct by failing to disclose the fact that two of its witnesses had received favorable treatment in exchange for their testimony. A period of motion filing and argument resulted in the parties stipulating to a new trial. As such, the court vacated the guilty verdicts, quashed the jury, and set the matter for another trial. The trial court also authorized the use of a special prosecutor to handle the retrial.

         {¶9} There is no dispute that the State prosecuted Haywood based on a theory of complicity. At the conclusion of his retrial, the jury found him guilty of (1) complicity to commit the aggravated felony murders of M.N. and K.W., based on the predicate offenses of aggravated robbery, kidnapping, and aggravated burglary; (2) complicity to commit the aggravated robbery of R.R.; (3) complicity to commit the kidnappings of M.N. and K.W.;[1] and (4) five capital specifications pertaining to M.N. and K.W. Haywood was found not guilty on each of his remaining counts and specifications, and the jury later recommended that he receive life in prison with the possibility of parole. The court sentenced him to life in prison with the possibility of parole after 35 years.

         {¶10} Haywood now appeals from his convictions and raises ten assignments of error for our review. For ease of analysis, we rearrange and consolidate several of the assignments of error.








         {¶11} Haywood's first three assignments of error all stem from his assertion that this matter ought to have been heard by the first jury that the parties selected. He argues that the first trial judge abused her discretion when she agreed to delay impaneling that jury. He also argues that the second trial judge abused his discretion when he quashed the first jury without a sound reason for doing so and without considering reasonable alternatives. Finally, he argues that the State engaged in misconduct when it raised unsupported claims of judicial bias and secured the first jury's dismissal. Haywood asks this Court to vacate his convictions and bar his retrial based on violations of his due process and double jeopardy rights. For the reasons that follow, we reject Haywood's arguments.

         {¶12} "A trial court may order a mistrial where some intervening error prejudicially affects the merits of the case and the substantive rights of one or both of the parties." State v. Sutton, 9th Dist. Medina Nos. 2066, 2067, 1992 Ohio App. LEXIS 2916, *6 (June 3, 1992). Mistrials may be declared during trial or during jury selection, prior to the jury being sworn in. Id. at *5, fn.1. See also State v. Stambaugh, 2d Dist. Miami No. 2008 CA 42, 2009-Ohio-7050, ¶ 7-46.

[A] trial judge is in the best position to determine whether the situation in [the] courtroom warrants the declaration of a mistrial. In examining the trial judge's exercise of discretion in declaring a mistrial, a balancing test is utilized, in which the defendant's right to have the charges decided by a particular tribunal is weighed against society's interest in the efficient dispatch of justice. "[A]defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689 (1949). Where the facts of the case do not reflect unfairness to the accused, the public interest in insuring that justice is served may take precedence.

(Internal citations and ellipses omitted.) State v. Glover, 35 Ohio St.3d 18, 19 (1988). Because the decision to grant or deny a mistrial lies in a trial court's sound discretion, this Court reviews that decision for an abuse of discretion. State v. Dickerson, 9th Dist. Summit No. 22536, 2005-Ohio-5499, ¶ 6.

         {¶13} When a trial court acts within its discretion in declaring a mistrial, the Double Jeopardy Clause generally will not bar a retrial. Glover at 21. An exception exists and retrial is barred where "the judge's action was instigated by prosecutorial misconduct designed to provoke [the] mistrial * * *." Id. In those instances, the Double Jeopardy Clause will not permit a retrial. State v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, ¶ 32, quoting Glover at syllabus. Yet, jeopardy does not attach in a jury trial "until the jury is impaneled and sworn." State v. Gustafson, 76 Ohio St.3d 425, 435 (1996).

         {¶14} The record reflects that Haywood's first jury was not impaneled after voir dire because the first trial judge granted the State's request for a delay in the proceedings. The first trial judge did not declare a mistrial at that point, but simply agreed to preserve the status quo for an evening while the State conducted research and decided whether to file an affidavit of disqualification. In essence, the trial court granted the State's motion for a brief continuance. Haywood argues that it was unreasonable for the court to do so because the State did not have a legitimate basis to request the delay.

         {¶15} "[T]he decision to grant or deny a continuance lies within the sound discretion of the trial court * * *." State v. Bennett, 9th Dist. Lorain No. 12CA010286, 2014-Ohio-160, ¶ 22. In reaching its decision, the court should consider

the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case.

State v. Unger, 67 Ohio St.2d 65, 67-68 (1981). The court must balance "'any potential prejudice to a [party against] concerns such as a court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice.'" (Alteration sic.) State v. Sauto, 9th Dist. Summit No. 26404, 2013-Ohio-1320, ¶ 17, quoting In re C. G., 9th Dist. Summit No. 26506, 2012-Ohio-5999, ¶ 8, quoting Unger at 67.

         {¶16} Upon review, we cannot conclude that the first trial judge abused her discretion when she granted the State's request for a continuance. The record reflects that the State sought one very brief delay for the purpose of deciding whether to file an affidavit of disqualification. As support for its request, the State specifically noted its concern that the judge (1) had not allowed it to strike a juror who was morally opposed the death penalty, and (2) had encouraged prosecutors, on two separate occasions, to dismiss the capital specifications against Haywood. The State also specifically noted its concern that its options for redress might be limited if the jury was sworn in and jeopardy was allowed to attach. By affording the State a continuance, the first trial judge gave the State an opportunity to file its affidavit and stay the proceedings so that its concerns could be addressed before the matter proceeded any further. See R.C. 2701.03(D)(1) (affidavit of disqualification divests judge of jurisdiction until the Chief Justice rules upon the affidavit). Because this was a death penalty case, the stakes at trial were extremely high for both sides, and any prejudice Haywood suffered as a result of the delay was minimal, given that the judge's ruling merely preserved the status quo for a day. See Sauto at ¶ 17. Under these facts and circumstances, it was not unreasonable for the court to permit the continuance out of an abundance of caution.

         {¶17} Because the first trial court judge recused herself before the Chief Justice ruled on the State's affidavit of disqualification, there was never a determination made regarding her alleged bias. Following her recusal, however, the State maintained that her bias had tainted the jury selection process. The State asked the second trial judge to quash the jury that had been selected, and Haywood opposed the State's motion. The second trial judge did not adopt the State's rationale, but ultimately agreed to quash the jury based on the "untenable position" in which he had been placed. The second trial judge found that he lacked jurisdiction to decide his colleague's alleged bias and, likewise, to judge "as an appellate reviewer" whether she had made appropriate decisions during the jury selection process. Nevertheless, he found that "the integrity of the judicial system" would be placed in jeopardy if he were to proceed with the trial when the case was "so potentially clouded in error." He decided "under these extraordinary circumstances" to err on the side of caution and order the jury selection process to start anew.

         {¶18} Haywood argues that the State engaged in misconduct by essentially goading the trial court into declaring a mistrial and quashing the first jury. He argues that the bias claims the State raised were meritless and were asserted strictly to avoid trying the case before a jury it found unfavorable. On a related note, he argues that the second trial judge abused his discretion when he quashed the first jury based on the State's meritless allegations. He asserts that the court failed to undertake a sound ...

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