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State v. Jones

Court of Appeals of Ohio, Second District, Montgomery

June 15, 2018

STATE OF OHIO Plaintiff-Appellee/Cross-Appellant
v.
HARVEY L. JONES Defendant-Appellant/Cross-Appellee

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2013-CR-294

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Attorney for Plaintiff-Appellee/Cross-Appellant

          JOHN A. FISCHER, Atty. Reg. No. 0068346, Attorney for Defendant-Appellant/Cross-Appellee

          OPINION

          WELBAUM, P. JUDGE

         {¶ 1} Defendant-appellant, Harvey L. Jones, appeals from his conviction and sentence for multiple counts of aggravated murder, aggravated robbery, aggravated burglary, and having weapons under disability following a jury trial in the Montgomery County Court of Common Pleas. In support of his appeal, Jones contends that the trial court prohibited him from effectively cross-examining the sole eyewitness to the offenses. Jones also contends that he was not afforded a meaningful opportunity to present a complete defense due to the trial court's prohibiting him from introducing evidence of an alternate suspect. Jones further contends that the trial court should have excluded prejudicial autopsy photographs as evidence and that the State made racially discriminatory preemptory challenges during voir dire. Lastly, Jones contends that the trial court erred in failing to expand the jury venire to include licensed drivers as well as registered voters.

         {¶ 2} The State cross-appeals contending that the trial court erred in dismissing two counts of kidnapping, two counts of aggravated murder based on kidnapping, and multiple kidnapping-related death penalty specifications. The State also contends that the trial court erred in merging Jones's aggravated murder offenses at the penalty phase of trial instead of waiting to merge the offenses at sentencing, as well as in merging an aggravated-robbery death penalty specification with an aggravated-burglary death penalty specification. Lastly, the State contends that the trial court erred in allowing Jones to argue residual doubt during the penalty phase of trial.

         {¶ 3} For the reasons outlined below, we find no merit to any of Jones's claims on appeal. With regard to the State's cross-appeal, we find that the trial court erred as a matter of law with respect to each of the State's claims. However, because the trial court's errors do not affect the validity of Jones's conviction and because the protections afforded by the Double Jeopardy Clause prohibit a retrial of the erroneously dismissed charges and specifications and of the penalty phase of trial, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 4} On April 11, 2013, Jones was charged in a fourteen-count indictment with two counts of aggravated burglary, two counts of kidnapping, two counts of aggravated robbery, two counts of having weapons under disability, and six counts of aggravated murder. The six counts of aggravated murder were charged under R.C. 2903.01 (B) and were based on the two aggravated burglaries, two kidnappings, and two aggravated robberies. Each of the aggravated murder counts included a firearm specification, a repeat violent offender specification, and four death penalty specifications. Each of the aggravated burglary, kidnapping, and aggravated robbery counts also included a firearm specification and a repeat violent offender specification. All the charges and specifications stemmed from the murders of Jones's ex-girlfriend, Carley Hughley, and her friend, Demetrius Beckwith.

         {¶ 5} Hughley's son, A.U., who was ten years old at the time of the murders, witnessed the murders and testified against Jones at trial. A.U. testified that Jones is his mother's ex-boyfriend who had lived with him and his mother for a few months at their apartment in Dayton, Ohio. A.U. indicated that his mother and Jones got into arguments approximately two times a week and that he specifically recalled an argument that turned physical when Jones attempted to bring a gun into their apartment. During that incident, A.U. testified that his mother pushed Jones, who then pushed her back and jumped on top of her. A.U. testified that he went to the neighbor for help and that the neighbor called 9-1-1.

         {¶ 6} The State admitted evidence of the neighbor's 9-1-1 call as well as two other 9-1-1 calls made by Hughley a week prior to the murders in response to conduct by Jones. The State also had Hughley's mother and several of Hughley's friends and coworkers testify regarding Hughley's fear of Jones. A.U. testified that he and his mother had to live with his grandmother for a period of time because Jones would not leave their apartment and was sending threatening messages to his mother. A.U. testified that they were eventually able to move back into their home when Jones left the apartment.

         {¶ 7} With regard to the murders, A.U. testified that on the night of January 23, 2013, he was upstairs in his bedroom watching television while his mother and her friend, Beckwith, were downstairs. A.U. testified that he decided to go downstairs to say goodbye to Beckwith when he heard that Beckwith was leaving the apartment. However, just as he began to turn the corner down the stairs, A.U. observed Jones barge through the apartment door. A.U. claimed that Jones forced his way into the apartment and then shoved Beckwith to the ground while waiving a gun in his hand.

         {¶ 8} Once inside the apartment, A.U. testified that Jones told Beckwith to "shut the F up." Trans. Vol. XIII (Sept. 19, 2016), p. 2382. A.U. claimed that Beckwith pled with Jones not to hurt him and offered Jones his keys, money, and wallet. A.U. testified that his mother was on the ground with Beckwith and that she told Jones "please don't hurt my baby." Id. According to A.U., Jones continued waiving the gun around and repeatedly said "shut the F up." Id. at 2383.

         {¶ 9} Continuing, A.U. testified that Jones made his mother and Beckwith lay on their stomachs before firing several shots at them from a standing position. After Jones fired the shots, A.U. observed Jones go through his mother's pockets and remove her cell phone. A.U. then saw Jones go through Beckwith's pockets and remove his keys and cash. After Jones took those items, A.U. observed Jones run out the apartment door. During the entire incident, A.U. claimed that he was hiding at the corner of the stairway, peeking around the wall where he was able to observe everything.

         {¶ 10} After Jones left the apartment, A.U. testified that he went to check on his mother who was still breathing but gagging up blood. A.U. said his mother was able to tell him to call his grandma and to tell the family she loved them. A.U. then checked on Beckwith, who A.U. testified was not moving at all. After checking on his mother and Beckwith, A.U. ran to his neighbor's apartment and told the neighbor, Roberta, and her two adult sons, Shawn and Gemayel, that his mother had been shot. It is undisputed that Roberta, who died prior to trial, called 9-1-1 for help.

         {¶ 11} When the police arrived at the scene, A.U. told the officers that Jones had shot his mother and Beckwith. Beckwith was pronounced dead at the scene and A.U.'s mother was taken to the hospital where she later died from multiple gunshot wounds. The next morning, the police arrested Jones at the home of his girlfriend, Vivian Jones ("Vivian"), with whom he had been residing.

         {¶ 12} Vivian testified that on the night of the murders, Jones left her residence around 10:30 or 11:00 p.m. and returned sometime after 1:48 a.m. Vivian testified that when Jones returned, he gave her $100 in cash and then went to sleep without telling her where he had been. Later that morning, Vivian testified that the police came to her house and picked up Jones, who told her "Baby, tell them I was asleep." Trans. Vol. XIV (Sept. 20, 2016), p. 2653.

         {¶ 13} The State also presented testimony from various cell phone records custodians and a representative from the FBI's Cellular Analysis Survey Team ("CAST"). Their testimony indicated that Jones's cell phone was receiving service from the cellular tower that served the location of the murders within an hour before the neighbor called 9-1-1 to report the shootings.

         {¶ 14} After the State called several other witnesses and rested its case, Jones moved the trial court to dismiss all the charges against him pursuant to Crim.R. 29. The trial court granted the motion, in part, dismissing the two kidnapping charges, the two charges of aggravated murder that were based on kidnapping, and the death penalty specifications that were based on kidnapping. Without calling any witnesses, Jones then rested his case.

         {¶ 15} Following deliberation, the jury found Jones guilty of all the remaining charges and specifications with the exception of the two weapons under disability charges and the repeat violent offender specifications, which were tried before the bench. After considering the evidence admitted during trial and the parties' stipulations regarding Jones's criminal record, [1] the trial court found Jones guilty of both weapons under disability charges and the repeat violent offender specifications.

         {¶ 16} The matter then proceeded to the penalty phase of trial, during which the jury was charged with determining whether Jones should receive the death penalty or whether any mitigating factors weighed against imposing a death sentence. Prior to this phase of trial, the trial court decided, over the State's objection, to merge the two counts of aggravated murder related to Hughley (one count committed through aggravated burglary and one count committed through aggravated robbery) and the two counts of aggravated murder related to Beckwith (one count committed through aggravated burglary and one count committed through aggravated robbery), so that the jury only had to consider one count of aggravated murder for each victim. In doing so, the trial court ordered the State to select which counts of aggravated murder to submit to the jury. The State chose the aggravated-burglary-related count for Hughley and the aggravated-robbery-related count for Beckwith. The trial court indicated that it decided to merge the aggravated murder offenses at the penalty phase as opposed to at sentencing in order to prevent the jury from getting "the impression that because there's two counts [for] each [victim] that somehow it's worse." Trans. Vol. XIX (Sept. 27, 2016), p. 3519.

         {¶ 17} During the penalty phase of trial, the trial court also merged the aggravated-robbery and aggravated-burglary death penalty specifications related to the murder of Hughley. The trial court explained that it decided to merge these specifications because it found that Jones's act of taking Hughley's cell phone was more akin to tampering with evidence than robbery. The trial court reached this conclusion based on its assumption that Jones took Hughley's cell phone to conceal evidence. Since there is no death penalty specification related to tampering with evidence under R.C. 2929.04, the trial court found it was appropriate to merge the aggravated-robbery death penalty specification into the aggravated-burglary death penalty specification.

         {¶ 18} At the close of the penalty phase of trial, the jury deliberated and recommended a sentence of life in prison without parole for each count of aggravated murder. Upon the jury's recommendation, the trial court sentenced Jones to two terms of life in prison without parole for the aggravated murders of Hughley and Beckwith. In addition to imposing two life terms, the trial court merged the two aggravated burglary counts into one conviction and imposed an 11-year prison sentence for that offense. The trial court also merged the two weapons under disability counts into one conviction and imposed a 36-month prison sentence for that offense. The trial court further imposed an additional 11-year prison sentence for each of the two aggravated robbery offenses, which the trial court did not merge. The trial court then merged all the repeat violent offender specifications under the aggravated burglary charge and imposed a 10-year prison sentence for that specification. The trial court also imposed two three-year firearm specifications for each of the aggravated murders. All of the prison terms were ordered to run consecutively, thereby resulting in Jones being sentenced to a total of two consecutive life terms without parole plus 52 additional years in prison.

         {¶ 19} Jones now appeals from his conviction and sentence, raising five assignments of error for review. Jones also attaches an appendix to his appellate brief listing seven additional assignments of error. In response, the State filed a cross-appeal raising three assignments of error. For ease of discussion, we will first address the assignments of error raised by Jones and then address the State's assignments of error raised on cross-appeal.

         First Assignment of Error

         {¶ 20} Jones's First Assignment of Error is as follows:

THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. JONES WHEN IT PROHIBITED MR. JONES FROM INVESTIGATING AND INQUIRING INTO THE MEDICAL HISTORY OF THE ONLY WITNESS TO THE KILLINGS.

         {¶ 21} Under his First Assignment of Error, Jones contends that he was denied the right to effectively cross-examine A.U. at trial. Specifically, Jones claims that the trial court erred in prohibiting Jones from questioning A.U. regarding the medications he was taking and from presenting expert testimony regarding the potential side effects of those medications and whether the side effects could have affected A.U.'s ability to accurately perceive what happened on the night of the murders. Jones's argument stems from the trial court's decision not to allow the defense to review A.U.'s confidential mental health and school records, which Jones wanted to access in order to challenge A.U.'s credibility.

         {¶ 22} The record indicates that the trial court properly conducted an in camera review of A.U.'s mental health and school records for purposes of determining whether the records contained any information material to Jones's defense. See Pennsylvania v. Ritchie, 480 U.S. 39, 57-61, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (resolving the conflict between a defendant's right to access information that is material to his defense and the confidentiality afforded children services records by holding that a defendant's right to due process and a fair trial entitles him to an in camera review by the trial court of the records to determine whether the records contain any evidence material the defendant's defense); In re J.W., 9th Dist. Lorain No. 10CA009939, 2011-Ohio-3744, ¶ 14-15 (applying the holding in Ritchie to a minor's confidential mental health records).

         {¶ 23} A trial court conducts an in camera inspection to determine: "(1) whether the records are necessary and relevant to the pending action; (2) whether good cause has been shown by the person seeking the disclosure; and (3) whether their admission outweighs the confidentiality considerations." J.W. at ¶ 7, citing State v. McGovern, 6th Dist. Erie No. E-08-066, 2010-Ohio-1361, ¶ 28; In re C.A., 8th Dist. Cuyahoga No. 102675, 2015-Ohio-4768, ¶ 80.

         {¶ 24} In this case, following its in camera review, the trial court advised the parties that A.U.'s mental health records revealed that A.U. had been diagnosed with certain mental disorders prior to the murders for which he had been taking medication. The trial court indicated that it had researched the possible side effects of A.U.'s medication and found that the only potential side effect relevant to trial was "possible hallucinations, i.e., seeing and/or hearing things that are not based in reality." [2] Trans. Vol. III (Apr. 27, 2016), p. 449. The trial court noted that although there was a possible risk of hallucinations associated with A.U.'s medication, A.U.'s mental health records indicated that no such risk materialized while A.U. was on the medication either before or after the murders. Accordingly, the trial court found that:

[T]he fact that the boy was on medication with certain known side effects would have been inadmissible, because no evidence indicates the boy suffered from those side effects. Thus, such general information regarding possible drug side effects would be irrelevant and would be excluded pursuant to Evidence Rule 402. Even if the information had some marginal relevance, which the court believes it does not, it would be outweighed by the danger of unfair prejudice per Evidence Rule 403(a), which mandates its exclusion.

Trans. Vol. III (Apr. 27, 2016), p. 450-451.

         {¶ 25} Having reviewed all the records at issue, we conclude that the trial court correctly determined that A.U.'s mental health and school records did not contain any information material to Jones's defense. We further agree that the medication A.U. was taking and the possible side effects associated with that medication were irrelevant, since A.U.'s mental health records indicate that he never experienced any hallucinations, illusions, or psychosis, but instead exhibited logical, linear thought processes at all times.

         {¶ 26} Nevertheless, Jones argues that his right to effective cross-examination under the Confrontation Clause of the Sixth Amendment to the United States Constitution should have permitted him to ask A.U. what medication he was taking and to present expert testimony regarding the medication's side effects. The Confrontation Clause, however, "only guarantees 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " (Emphasis sic.) Ritchie, 480 U.S. 39 at 53, 107 S.Ct. 989, 94 L.Ed.2d 40, quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). " '[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on * * * cross-examination [of a prosecution witness] based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.' " State v. Abbasov, 2d Dist. Montgomery No. 26470, 2015-Ohio-5379, ¶ 17, quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Therefore, the " 'extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court.' " State v. Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993), quoting Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931).

         {¶ 27} In this case, it was not an abuse of discretion for the trial court to prohibit Jones from cross-examining A.U. on an issue that was irrelevant to trial. As previously discussed, there is nothing in A.U.'s mental health or school records indicating that A.U.'s medications affected his ability to perceive reality. Accordingly, there was no basis for allowing Jones to cross-examine A.U. regarding his medication or to present evidence of possible side effects.

         {¶ 28} While we find no error with regard to the limitations placed on Jones's cross-examination of A.U., we do find that the trial court erred in failing to disclose a certain communication it had with Dr. Kara Marciani, a licensed psychologist at the Forensic Psychiatry Center for Western Ohio. In reviewing A.U.'s records, this court came across a short memorandum prepared by the trial court indicating that on April 15, 2016, at 9:50 a.m., the trial court judge had a telecom conference with Dr. Marciani regarding A.U.'s mental health records and his medication. According to the memorandum, Dr. Marciani advised the trial court that A.U.'s medication would not affect his ability to accurately perceive and testify regarding the murders.

         {¶ 29} There is nothing in the record indicating whether the trial court ever disclosed its communication with Dr. Marciani and her opinion to the parties. We find this troubling, as the trial court essentially sought out an expert opinion without giving Jones a chance to present his own expert opinion. However, even if Jones had been given an opportunity to rebut Dr. Marciani's opinion with his own expert, the fact remains that the mental health records at issue indicate that A.U. never experienced any side effects from his medication that would have affected his ability to perceive the murders. In other words, a contrary expert opinion would not have changed the fact that A.U. did not hallucinate or misperceive reality. Therefore, the trial court's error in failing to advise the parties of its communication with Dr. Marciani and her opinion was harmless.

         {¶ 30} Jones's First Assignment of Error is overruled.

         Second Assignment of Error

         {¶ 31} Jones's Second Assignment of Error is as follows:

THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. JONES WHEN IT PROHIBITED MR. JONES FROM INTRODUCING EVIDENCE OF AN ALTERNATIVE SUSPECT WHO HAD THREATENED VIA E-MAIL TO KILL ONE OF THE VICTIMS.

         {¶ 32} Under his Second Assignment of Error, Jones contends that he was not afforded a meaningful opportunity to present a complete defense at trial because the trial court prohibited him from introducing evidence of an alternative suspect. Specifically, Jones claims that the trial court improperly excluded evidence of certain text messages received and sent by Beckwith on his cell phone that, according to Jones, show that Beckwith associated with unscrupulous individuals who threatened his life. Jones claims that these text messages establish the existence of an alternative suspect who had the motivation to kill Beckwith.

         {¶ 33} While there is no question that all criminal defendants are constitutionally guaranteed a meaningful opportunity to a complete defense, criminal defendants do not necessarily have a right to present all evidence of third-party guilt. State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, 895 N.E.2d 821, ¶ 19; State v. Gillispie, 2d Dist. Montgomery Nos. 22877, 22912, 2009-Ohio-3640, ¶ 120, citing Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (" 'A complete defense' may include evidence of third-party guilt." (Emphasis added.)).

         {¶ 34} The United States Supreme Court has indicated that it is widely accepted that evidence introduced to prove that another person may have committed the crime with which the defendant is charged " 'may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant's trial[.]' " Holmes, 547 U.S. at 327, quoting 40A American Jurisprudence 2d, Homicide, Section 286 (1999). Accord State v. Walker, 5th Dist. Stark No. 2005-CA-00286, 2006-Ohio-6240, ¶ 49, quoting Smithart v. Alaska, 988 P.2d 583, 586 (1999), quoting Marrone v. State, 359 P.2d 969, 984-985, fn. 19 (1961) (" 'when a defendant wishes to implicate a specific individual, evidence of the third party's guilt is admissible only if the defense can produce evidence that "tend[s] to directly connect such other person with the actual commission of the crime charged." ' "). " '[F]requently matters offered in evidence for [the purpose of showing third-party guilt] are so remote and lack such connection with the crime that they are excluded.' " Holmes, 547 U.S. at 327, quoting 41 Corpus Juris Secundum., Homicide, Section 216 (1991).

         {¶ 35} However, there is " ' "no requirement that the proffered evidence [of a third party's guilt] must prove or even raise a strong probability that someone other than the defendant committed the offense. Rather, the evidence need only tend to create reasonable doubt that the defendant committed the offense." ' " (Emphasis omitted.) State v. Gillispie, 2d Dist. Montgomery No. 24456, 2012-Ohio-1656, ¶ 40, quoting Walker at ¶ 50, quoting Johnson v. United States, 552 A.2d 513, 516 (D.C.Cir.1989).

         {¶ 36} In this case, a review of the record indicates that Jones did not offer the text messages at issue as evidence of an alternative suspect. Rather the record indicates that Jones offered the text messages to establish how the police had failed to investigate the existence of an alternative suspect. See Trans. Vol. XV (Sept. 21, 2016), p. 2796. In fact, Jones told the trial court that while he believed there was an alternative suspect, he did not know for sure given that an investigation was never performed. Id. Accordingly, since Jones never identified or offered evidence of an alternative suspect, it cannot be said the trial court erred in excluding the text messages for that purpose.

         {¶ 37} Although Jones specifically advised the trial court that he was not offering the aforementioned text messages as evidence of an alternative suspect, the trial court found otherwise and proceeded to analyze whether the text messages could properly be used for that purpose. See Id. at 2803. The text messages at issue include four separate conversations that occurred between September 2012 and January 2013. The contents of the text messages are as follows:[3]

Conversation 1:
Unidentified Individual: Juan asked if you took money up there.
Beckwith: Not yet.
Unidentified Individual: Stop ...

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