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State v. Long

Court of Appeals of Ohio, Tenth District

December 29, 2017

State of Ohio, Plaintiff-Appellee,
v.
Michael A. Long, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 15CR-3564)

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.

          Koenig & Long, LLC, and Charles A. Koenig, for appellant.

         Argued:

          Laura R. Swisher.

          Charles A. Koenig.

          DECISION

          SADLER, J.

         {¶ 1} Defendant-appellant, Michael A. Long, appeals from a judgment of the Franklin County Court of Common Pleas convicting him of aggravated burglary, in violation of R.C. 2911.11, kidnapping, in violation of R.C. 2905.01, aggravated robbery, in violation of R.C. 2911.01, two counts of felonious assault, in violation of R.C. 2903.11, murder, in violation of R.C. 2903.02, attempted grand theft when the property is a firearm or dangerous ordinance, in violation of R.C. 2923.02 as it relates to R.C. 2913.02, and having weapons while under disability, in violation of R.C. 2923.13. For the reasons that follow, we reverse and remand for a new trial.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} The events that gave rise to this appeal occurred in the early morning hours of July 17, 2015, involving appellant and his friend Clement "Poncho" Cooper. The theory of plaintiff-appellee, State of Ohio, is that appellant and Poncho broke into a home occupied by several members of the Bowles family located at 3831 Scales Drive, Columbus, Ohio. According to witnesses, appellant and Poncho broke into the home to steal guns while the Bowles family members were away at work. When the Bowles family returned to their home, Jill Bowles found her son Timmy laying on the basement floor tied up with an extension cord. Other members of the Bowles family found appellant and Poncho in the home. A melee ensued during which Shawn Bowles received numerous stab wounds from Poncho about the head and neck as he held Poncho in a choke hold. When the police arrived, they found Poncho dead from asphyxia. Jill received a gunshot wound during the incident.

         {¶ 3} The defense theory of the case was that the entire incident and Poncho's death were the tragic result of a love triangle between Timmy, his ex-girlfriend Elaine, who resided in the Scales Drive address with Timmy's parents, Jill and Tim Bowles, Sr., and Poncho, who was reportedly dating Elaine. According to the defense, Elaine had argued with Poncho the evening prior to the incident, and Poncho had ended up with Elaine's cell phone. The defense claims Elaine invited Poncho and appellant to the Scales Drive residence so she could recover her cell phone. When Timmy found Poncho in the home, the two began fighting. Appellant maintains that he did not break into the Bowles' home to steal guns. Appellant further maintains that he was invited into the home and that Poncho's death was the result of Timmy's jealousy over Elaine, not the result of appellant's attempt to commit a theft offense.

         {¶ 4} On July 22, 2015, a Franklin County Grand Jury indicted appellant on the following charges: aggravated burglary, in violation of R.C. 2911.11, a felony of the first degree; kidnapping, in violation of R.C. 2905.01, a felony of the first degree; aggravated robbery, in violation of R.C. 2911.01, a felony of the first degree; two counts of felonious assault, in violation of R.C. 2903.11, a felony of the second degree; murder, in violation of R.C. 2903.02, an unclassified felony; and attempted grand theft when the property is a firearm or dangerous ordinance with firearm specification, in violation of R.C. 2923.02 as it relates to R.C. 2913.02, a felony of the fourth degree. Each of the above listed charges included a firearm specification. Appellant was also indicted for having weapons while under disability, in violation of R.C. 2923.13.

         {¶ 5} On August 1, 2016, the jury trial commenced. At the opening of court, the trial judge made the following announcement in the presence of the jury:

THE COURT: * * * I just wanted to let everyone know in the courtroom that we are here to resolve this case, right? And so you need to be very careful about what you say and do, who you talk to and the like, so that there is no mistrial or anything that causes a disturbance to the trial. Because if there is anything that I think is going to distract the jurors, I'm going to have to ask you to leave the courtroom; and then, if there are other things that happen that [appellant's trial counsel] can talk to you about, like talking to witnesses or anything like that, it would cause us to start all over again and you wouldn't get the resolution that we're here today to start.

(Tr. Vol. 1 at 5-6.)

         {¶ 6} On August 2, 2016, appellee presented the testimony of several witnesses, including police officers and detectives who were involved in the case. On August 3, 2016, appellee produced testimony from a forensic expert, several members of the Bowles family, and a family friend who was in the home on July 17, 2015.

         {¶ 7} On August 4, 2016, prior to continuing with the trial, the court and counsel examined juror number 4, outside the presence of the other jury members, regarding efforts allegedly made by someone associated with appellant to relay a message to juror number 4 through the juror's son-in-law. The transcript of the trial court's examination of juror number 4 reveals that some unidentified person contacted the son-in-law because he wanted someone to "get with" the juror.[1] Juror number 4 told the court, after speaking with his son-in-law, he realized that he might know appellant. According to juror number 4, he and appellant are part of the same "motorcycle set, " meaning they are both members of local motorcycle clubs. (Tr. Vol. 3 at 464.) Juror number 4 told the court that he did not realize he knew appellant at the start of the trial because he knew appellant by the nickname he used in the motorcycle club and therefore did not know appellant's real name. Juror number 4 told the court he had not spoken to any of the other jurors regarding this issue.

         {¶ 8} Following the examination of juror number 4, the court made the following ruling:

THE COURT: * * * I think you probably understand why we have to thank you for answering your jury summons and being fair and attentive up until this point. But based on the attempted messages to you as well as the fact that you even have any kind of connection at all to the defendant, we are going to excuse you from your service.
JUROR NO. 4: Mm-hmm. I have no problem with that.

(Tr. Vol. 3 at 468.)

         {¶ 9} Following this ruling, and before the state called its next witness, the trial court decided, sua sponte, to close the courtroom to the public. The trial court announced its ruling on the record as follows:

At the beginning of the trial, there was an altercation in the hallway between -- I'm not sure who but someone in the Bowles family. After that occurred, the court stated to everyone that was in the courtroom that what -- they had to be careful what they said or did, because their actions could cause them to be asked to leave the courtroom or for them -or for us to have to start this trial over.
It has come the court's attention that someone associated with the defendant -- I don't know who, but someone associated with the defendant did try and contact one of the jurors, which is very concerning, because the goal here is to have a fair trial unimpeded by outside influences. So for those reasons and in this context I am going to shut the courtroom down.
The goal of shutting the courtroom down is -- well, first of all, I'm going to excuse that juror, and I swore in all of the jurors as regular jurors anyway. So one of the alternates, Alternate No. 1, will replace that juror. However, that doesn't completely solve the problem, because I don't know who it was that called the juror who is going to be excused. So for that reason and in order to preserve the integrity of this trial, I am going to shut the courtroom down, so that no one else has an opportunity to see or hear what's going on in this courtroom. Again, it is to make sure we have a fair and impartial trial that is not influenced by any outside sources.

(Tr. Vol. 3 at 470-71.)

         {¶ 10} Neither party objected to the trial court's ruling. The courtroom remained closed to the public for the remainder of the trial including the testimony of the deputy coroner, Timmy Bowles, and Shawn Bowles. Appellant rested his case without calling any witnesses. Prior to sending the case to the jury, the trial court clarified that "we * * * close[d] the courtroom to everyone except the media. * * * [O]nce the jury comes up with a verdict, the concern about contacting jurors is gone. So the courtroom will be open back up to everyone if and when we get a verdict."[2] (Tr. Vol. 4 at 599.)

         {¶ 11} The jury subsequently found appellant guilty of all charges in the indictment. The trial court found appellant guilty of the offense of having weapons while under disability. After merging several counts in the indictment for purposes of conviction and sentence, and ordering appellant to serve several of the ...


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