Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: Jones, J., Keough, P.J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR., J.
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.
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
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.
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.
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.
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."
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 chose not to testify in his own defense, and the
court did not instruct the jury on self-defense.
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.
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.
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."
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.
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
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, ...