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State v. Hawthorne

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL G. HAWTHORNE DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-603041-A

          ATTORNEY FOR APPELLANT Susan J. Moran.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Andrea N. Isabella Assistant County Prosecutor.

          BEFORE: Jones, J., Keough, P.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., J.

         {¶1} Defendant-appellant, Michael Hawthorne ("Hawthorne"), appeals his convictions on two counts of felonious assault with firearm specifications. For the reasons that follow, we reverse and remand.

         {¶2} In 2016, Hawthorne was charged with attempted murder and felonious assault with one- and three-year firearm specifications and with an additional count of felonious assault. He was charged in a separate case with having weapons while under disability. The trial court consolidated the two cases for trial over the objection of defense counsel. The following pertinent facts were presented at the jury trial.

         {¶3} Brittany Austin ("Austin") and Hawthorne dated on and off through high school until 2015 and had three children together. Austin started dating James Cooperwood ("Cooperwood") in November 2015.

         {¶4} On January 10, 2016, Hawthorne dropped the children off at their mother's house after spending some time with them. Soon thereafter, Austin called Hawthorne to inquire about Cooperwood's duffel bag, which contained CDs and DVDs Cooperwood sold for cash. The couple alleged that Hawthorne stole it. After Austin's attempts to get Hawthorne to come over failed, Cooperwood called Hawthorne, and Hawthorne agreed to come over.

         {¶5} Cooperwood went downstairs to meet Hawthorne. On his way, he grabbed a bat and told Austin he was "about to bust the b[***] head open." Moments later, Austin heard gunshots and went downstairs to find Cooperwood bleeding on the front porch. She did not see who shot Cooperwood.

         {¶6} Cooperwood sustained a gunshot injury to both legs and a shattered femur. He initially identified Hawthorne as the shooter, but during trial, Cooperwood testified that he had never met Hawthorne and did not remember telling police that Hawthorne had shot him. After further questioning, however, Cooperwood testified that Hawthorne shot him. According to Cooperwood, he argued with Hawthorne on the phone about the duffel bag and told Hawthorne "to come back over and return my things, or it was going to be a problem. He actually came back, but he came back empty handed. When I approached him, he shot me. That's it. That's what happened." Cooperwood admitted he had a bat, but denied threatening Hawthorne with the bat, testifying that the bat was "laying up against the rail."

         {¶7} After the state presented its evidence, the court asked defense counsel if anyone would be testifying for the defense. Counsel indicated that he had subpoenaed a witness who had shown up to court on previous occasions but did not appear pursuant to the current subpoena. According to defense counsel, this witness would support the claim that Hawthorne was attacked by Cooperwood. The court stated it would issue a material witness warrant for the witness, but, before the warrant was issued, the court informed counsel that the defense of self-defense applied only in cases where the defendant him or herself took the stand. The court told defense counsel that it would give "as much time as you want to try to secure this person, but that person isn't the person who can testify and give you the self-defense argument. So if you're going to argue self-defense to this jury * * * then the only way that comes in is if Mr. Hawthorne testifies."

         {¶8} Hawthorne chose not to testify in his own defense, and the court did not instruct the jury on self-defense.

         {¶9} The jury convicted Hawthorne of one count of felonious assault and one count of felonious assault with one- and three-year firearm specifications and acquitted him of the remaining charges. The trial court sentenced him to a total of five years in prison.

         {¶10} Hawthorne filed a notice of appeal and has raised the following assignments of error for our review:

I. The trial court denied the appellant due process and his right under Crim.R. 30(A) when the trial court failed to instruct the jury on self-defense and aggravated assault.
II. The appellant was denied effective assistance of counsel in violation of Amendments VI and XIV, United States Constitution and Article I, Section 10, Ohio Constitution.
III. Appellant was denied due process and a fair and impartial trial as guaranteed by the 5th, 6th, and 14th Amendments of the U.S. Constitution and Article I, Section 16 of the Ohio Constitution based on prosecutorial misconduct.
IV. The trial court erred by prejudicially joining two cases which effectively violated appellant's due process and right to a fair trial.

         {¶11} After oral arguments were heard in this case, we issued the following order: "Sua sponte the parties are ordered to brief the issue of whether the trial court erred to the prejudice of Hawthorne when it informed him that he had to testify in order to advance a claim of self-defense."

         {¶12} The parties complied with our order and submitted supplemental briefs. The above sua sponte order will be addressed with the first assignment of error, which is dispositive of this appeal.

         {¶13} The Fifth and Fourteenth Amendments to the Constitution guarantee every criminal defendant the right to remain silent. Although a criminal defendant has a Fifth Amendment right not to testify, self-defense is an affirmative defense that requires the defendant to prove all the elements. See R.C. 2901.05(A) ("The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.")[1]

         {¶14} The United State Supreme Court has held that Ohio's self-defense statute does not violate due process by placing the burden of proof on the defendant. Martin v. Ohio,480 U.S. 228, 230, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). But because the burden of proving a claim of self-defense is on the defendant, it may be necessary for a defendant to testify in order to establish that defense. State v. Seliskar,35 Ohio St.2d 95, 96, 298 N.E.2d 582 (1973), citing State v. Champion, 109 Ohio St. 281, 142 N.E. 141 (1924). By the very nature of a claim of self-defense, "no one is in a better position than the defendant to provide evidence to aid the jury in determining whether the defendant's acts were justified." Id. citing id. If a defendant cannot provide evidence on the issue of self-defense other than his or her own testimony, then, in order to avail him or herself of the defense, he or she must testify. "In such event, the choice is that of the defendant, and, ...


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