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State v. Ludwick

Court of Appeals of Ohio, Tenth District

November 7, 2017

State of Ohio, Plaintiff-Appellee,
v.
Lowell W. Ludwick, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CR-2256

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.

          On brief: Jeremy M. Dodgion, for appellant.

         Argued:

          Steven L. Taylor.

          Jeremy M. Dodgion.

          DECISION

          BRUNNER, J.

         {¶ 1} Defendant-appellant, Lowell W. Ludwick, appeals a March 22, 2017 judgment of the Franklin County Court of Common Pleas sentencing him to eight years in prison for conspiring to have his wife murdered. Because we find that the evidence at trial was overwhelmingly in favor of guilt and that the evidence would not have supported a defense of abandonment, we find that Ludwick's defense counsel was not ineffective for failing to raise abandonment, and that Ludwick's conviction was both sufficiently supported by and not against the manifest weight of the evidence. Because the record is insufficient to conclude that defense counsel failed to investigate Ludwick's apparent gambling addiction, we also cannot conclude that defense counsel was ineffective in failing to sufficiently investigate and present mitigation evidence at sentencing. We overrule all of Ludwick's assignments of error and affirm the judgment of the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On April 28, 2016, a Franklin County Grand Jury indicted Ludwick for one count of conspiracy in connection with a plot to hire someone to murder his wife. (Apr. 28, 2016 Indictment at 1-2.) A trial began in the case with jury selection on February 6, 2017. (Tr. Vol. I at 5, filed on May 15, 2017.) The three witnesses who testified during the trial were the detective who investigated the case, the person who reported Ludwick's attempt to hire a hit man to kill his wife, and Ludwick's wife.

         {¶ 3} The detective testified first. He explained that on March 7, 2016, someone named Wade Smith called the police department to report a possible murder for hire. (Tr. Vol. I at 66-67.) The detective met with Smith the next day on March 8. (Tr. Vol. I at 68-69.) Smith told the detective that Ludwick (whom he knew professionally through his work as an HVAC salesman) had contacted him on March 7 and the two had met for coffee. (Tr. Vol. I at 69-71.) Initially, Smith had assumed that the discussion over coffee would be about HVAC business, but once he got to the coffee shop he stated that Ludwick turned off both his phone and Smith's phone and placed them on an adjacent table. Id. Then Ludwick confided to Smith that he was looking to hire someone to kill his wife. Id.

         {¶ 4} During the March 8 meeting between the detective and Smith, the detective helped Smith make a controlled telephone call to Ludwick to set up another meeting to discuss the matter further. (Tr. Vol. I at 75-76.) On the day of Smith's second meeting with Ludwick, March 10, 2016, the detective provided Smith with an audio and video recording device disguised as an automobile key fob. (Tr. Vol. I at 76-77; State's Ex. B5.) The detective also set up surveillance on the coffee shop and took pictures of Smith and Ludwick as they arrived and during the meeting. (Tr. Vol. I at 77-79, 87-88; State's Exs. A1-A36.) The detective explained that the two men met for a short period in the coffee shop before changing venue to Ludwick's truck. (Tr. Vol. I at 81-82.)

         {¶ 5} After the March 10 meeting with Ludwick, Smith met again with police, returned the key fob recording device, and also provided the police with a piece of paper on which Smith had written an address Ludwick had given him "503 Woodland Ct. - West Jeff. - 43162, " which was Ludwick and his wife's home address. (Tr. Vol. I at 83, 85-87; State's Exs. B5, C, D.) After downloading and listening to the contents of the recording device Smith returned to him, the detective contacted the prosecutor's office. (Tr. Vol. I at 83-84.) The following day, March 11, 2016, the police contacted Ludwick's wife to warn her about what they had learned and to protect her against the possibility that Ludwick might have contacted persons other than Smith and successfully hired someone to kill her. (Tr. Vol. I at 84-85.)

         {¶ 6} Smith testified next. He confirmed that he knew Ludwick through HVAC business and received an invitation to have coffee in March 2016. (Tr. Vol. I at 107-10.) When he arrived, Ludwick said something to the effect of "let me see your phone." (Tr. Vol. I at 110-12.) When Smith handed it over, Ludwick shut off both his own phone and Smith's phone and placed them on a table six to eight feet away. Id. Then he said he wanted his wife gone and did not care how it happened. (Tr. Vol. I at 112-14.) He related that he had considered staging an accident by pushing her down the stairs with her vacuum cleaner. Id. He initially offered Smith $20, 000 to do it or have someone else do it, but eventually "sweeten[ed]" the deal to $30, 000 when Smith seemed reluctant. (Tr. Vol. I at 114-15.) Ludwick told him that his wife was home alone every other Friday and wanted to be sure that he knew the exact date and time that it would happen so he could be sure to have an alibi. (Tr. Vol. I at 115-16.)

         {¶ 7} Smith testified that initially his thought was to forget about the conversation and never talk to Ludwick again. (Tr. Vol. I at 116-17.) But after he discussed it with some friends he was advised by them to contact the police; he got in touch with the detective and agreed to meet with the police on March 8, 2016. (Tr. Vol. I at 117-20.) Smith testified that while meeting with the police he called Ludwick and set up another meeting. (Tr. Vol. I at 119-20.) Smith confirmed that he agreed to carry a video and audio recorder shaped like a key fob and did successfully carry the device throughout his second meeting with Ludwick which was held on March 10. (Tr. Vol. I at 121-23.)

         {¶ 8} Smith testified that at the March 10 meeting, after making small talk and business talk in the coffee shop for a few minutes, he and Ludwick got into Ludwick's truck. (Tr. Vol. I at 122-23.) Once in the truck, each man turned off his cell phone and placed them on the dash. (Tr. Vol. I at 123-24.) Then they drove around talking for what Smith estimated was 45 minutes to one hour. (Tr. Vol. I at 123-24.)

         {¶ 9} The parties stipulated the relevancy of certain portions of the recorded conversation and those portions were played for the jury. (Tr. Vol. I at 138-39, 141-47; State's Ex. D 13:28:00-14:22:48.) Once the two men were in the truck, the recording indicates that Ludwick led off the conversation by asking Smith if he was currently, or had ever been, associated with law enforcement. (State's Ex. D at 13:35:31-13:35:42.) Ludwick stated that "this [wa]s some pretty serious shit." Id. at 13:35:33-13:35:50. Ludwick then asked if Smith had an "answer or solution or could help or something." Id. at 13:35:54-13:36:01. Smith said he had a guy who could help, but he cautioned Ludwick, "[h]e scares the fuck outta me, Wayne [Ludwick]. They don't call him Crazy Joe for nothin." Id. at 13:36:01-13:36:07. Ludwick responded, "Good." Id. at 13:36:05-13:36:07. At that point, Smith laid out what "Crazy Joe" was seeking-a down payment, a picture, and an address. Id. at 13:39:32-13:39:44. Before responding, Ludwick (after offering the excuse that he was "pretty nervous") patted Smith down to determine if he was wearing a wire. Id. at 13:39:44-13:39:54; Tr. Vol. I at 135-36.

         {¶ 10} Then they began to discuss specifics. Smith said "Crazy Joe" was going to have to make it look like a "botched robbery." (State's Ex. D. at 13:40:27-13:40:35.) Ludwick responded that would help "defer attention away from me too." Id. at 13:40:32-13:40:35. Ludwick then mentioned that his wife would probably have her wedding rings on which would be worth three to five thousand dollars. Id. at 13:40:52-13:41:01. Within ten seconds of mentioning the rings, Ludwick brought up the issue of payment. He said, "[t]his may be a problem and it may nullify it. I don't really have it. My shit's tied up. And if I go take it out for no reason it's not gonna do. If that's a problem, I mean, he's gonna get immediate something that was just talked about." Id. at 13:41:12-13:41:32. Smith responded that a down payment was needed to "put the ball in play." Id. at 13:41:32-13:41:37. Ludwick assured Smith that he was "serious, " but he just didn't have $5, 000 for a down payment lying around. Id. at 13:41:42-13:41:57.

         {¶ 11} Ludwick and Smith reaffirmed that they had previously agreed on $30, 000 total for the job. Id. at 13:43:25-13:43:31. Ludwick acknowledged the agreement and said that he was not "counteroffering, " but that he could "get to five within a week, " could do another "five in another week, " and then would have to see how things worked out. Id. at 13:43:23-13:44:17. Despite consistently maintaining that he could not offer a down payment immediately, Ludwick offered frequent assurances throughout the remainder of the conversation that he could get the total amount very soon after "something happened to her" by "clean[ing] out" the accounts, including her savings, before the matter went to probate. Id. at 13:42:28-13:43:23, 13:52:08-13:52:22, 13:53:06-13:53:30, 13:54:26-13:54:48, 13:55:44-13:56:00, 13:58:46-13:59:15, 14:07:22-14:08:00, 14:09:20-14:10:15. This method, he said, would work better if law enforcement was investigating him because he could use the excuse that he was withdrawing money to avoid probate. Id. at 14:09:20-14:10:15. He reassured Smith that "Crazy Joe" would not have to wait for life insurance. Id. at 13:55:17-13:55:35. He offered Smith money "once the deed's done" in order to "incentivize" him to get "Crazy Joe" to do the job. Id. at 14:04:11-14:04:28. He even went so far as to show Smith a text message from his wife about her recent five-figure bonus and opined that the bonus would be available to pay "Crazy Joe." Id. at 14:06:36-14:08:06; Tr. Vol. I at 152-53.

         {¶ 12} Ludwick provided more details to Smith. He assured Smith that he did not have kids and that there would be nobody else in the house but his wife, and therefore, "no confusion." (State's Ex. D. at 13:47:11-13:47:23, 14:01:38-14:01:48.) He recited his address to Smith and, after tearing off identifying information from a piece of scrap paper, had Smith write it down on what was left of the paper. Id. at 13:47:30-13:48:28; Tr. Vol. I at 134; State's Ex. C. As he removed the identifying information, Ludwick remarked, "I guess you gotta be paranoid. Ain't nothin wrong with it, is there?" (State's Ex. D at 13:47:54-13:47:57.) He refused to provide a picture of his wife, observing that even if Smith were to delete it later, that "shit never really goes away" and opining that creating an electronic trail like that would be "the dumbest thing in the world." Id. at 14:01:31-14:02:05. But he described her as "5'9", blonde, * * * big nose, thin, * * * Catholic girl from Indiana. She's thin, five foot nine, which is relatively tall for a woman. She's thin, blond, there's only gonna be one." Id. at 14:02:05-14:02:26. Ludwick lamented that "unfortunately" the deed could not be done quickly and noted that, "tomorrow [Friday, March 11th] was an option * * * but two weeks from tomorrow" would also work. Id. at 13:48:44-13:48:55.

         {¶ 13} Ludwick said once this was done he planned to sell the house and move to California in the Fall because he would no longer have any relations tying him to Ohio. Id. at 14:14:12-14:14:25. He speculated that, "I could do it myself. Or get a divorce, but then I'd end up with half. Well who the fuck wants half? I'd still gotta work. Let's just do it. Just do the full monty and get it done with." Id. at 14:14:55-14:15:05. Ludwick closed the meeting by saying he just wanted to get this done and that he had nobody else he would trust. Id. at 14:15:19-14:15:42. He had already asked a loyal friend of his father's about it and that fellow had refused, saying he did not want to know anything about it. Id. at 14:15:42-14:16:06. "This is all or nothin for me, " Ludwick concluded. Id. at 14:16:11-14:16:15.

         {¶ 14} Ludwick's wife was the last to testify. She confirmed that she lived in a house in West Jefferson with Ludwick, to whom she had been married for almost 19 years. (Tr. Vol. I at 174-76.) She said that they had a normal marriage but fought occasionally about money because Ludwick had cashed in his retirement, squandered his $390, 000 inheritance, sometimes got into credit card debt trouble, and gambled excessively. (Tr. Vol. I at 176-82.) She confirmed that she had approximately $350, 000 retirement, $300, 000 life insurance, $15, 000 to $20, 000 in various bank accounts, and her interest in their $475, 000 house, all of which would have gone to Ludwick if she had been murdered. (Tr. Vol. I at 179-83.) She verified that she had texted Ludwick about her $11, 000 bonus during the first week of March 2016. (Tr. Vol. I at 183-84.) She agreed that her rings were worth $3, 000 to $5, ...


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