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State v. Hale

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 15, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ISIAH B. HALE, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607517-A

         JUDGMENT: AFFIRMED; REMANDED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brent C. Kirvel, Assistant Prosecuting Attorney, for appellee.

          Thomas A Rein, for appellant.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, JUDGE.

         {¶ 1}Defendant-appellant Isiah Hale appeals his convictions after a jury found him guilty of murder, involuntary manslaughter, aggravated robbery, having a weapon while under disability and perjury. He contends that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. He further contends that (1) his reindictment in the instant case, following the dismissal, without prejudice, of similar charges in Cuyahoga C.P. No. CR-09-529253 ("529253"), violated double jeopardy, (2) the trial court erred and violated attorney-client privilege by allowing his former counsel to testify against him at trial, (3) he was denied effective assistance of counsel based on defense counsel's prior representation of a codefendant and (4) the trial court imposed consecutive sentences without making the findings required by R.C. 2929.14(C). For the reasons that follow, we affirm Hale's convictions and sentences but remand the matter for the trial court to issue a nunc pro tunc order which reflects the consecutive sentence findings it made at the sentencing hearing.

         Procedural History and Factual Background

         {¶ 2}In 2009, Hale was charged in 529253 with murder, aggravated robbery, kidnapping and having a weapon while under disability in connection with the September 11, 2009 shooting death of Montrell Stonewall. Hale pled not guilty to the charges. Hale's codefendant, Jermael Burton, was charged with conspiracy to murder, kidnap and rob Stonewall and having a weapon while under disability.

         Hale's Police Interview

         {¶ 3} On April 21, 2010, after Hale and the state reached a plea agreement, but before Hale entered his change of plea, Hale submitted to a video-recorded interview, with counsel present, with the East Cleveland police. East Cleveland police detectives Scott Gardner and Reggie Holcomb conducted the interview. At the outset, one of the detectives informed Hale that the purpose of the interview was to "find out exactly what [Burton's] involvement is" in the events surrounding Stonewall's death. The detective further stated that "nothing you're saying here is going to influence or effect what the attorneys have already figured out." Hale told the detectives that, while he was on his way home, he received a call from Burton. Hale stated that Burton told him that he was involved in a drug transaction and that it was "not going right" and was "taking a turn for the worse." According to Hale, Burton asked Hale if he could come out and "mediate the situation with him so that it did not get all the way out of hand." Hale stated that Burton did not ask him to bring a gun and that he never told Burton he would bring a gun but that Burton knew Hale would "come and back him up."

         {¶ 4} When Hale arrived at the scene, Burton explained to Hale what was "going on with the situation." According to Hale, Burton informed him that Stromboli Douglas had arranged a drug deal between Burton and two men from out of town whom Hale did not know, but who were later identified as Stonewall and his half-brother, Luis Santiago. Hale stated that he had seen Douglas before but did not know him. Stonewall and Santiago had allegedly taken some drugs out of the bag Burton had given them and were "trying to negotiate a better price." Hale stated that he agreed to "go and see and talk to the guys, basically just being a mediator" in an attempt to resolve the issue. Hale stated that he never saw the drugs nor the money that was to be used to purchase the drugs.

         {¶ 5} Hale stated that he went to talk to Stonewall and Santiago and got into the backseat of their car. According to Hale, once he was in the car, Stonewall looked back at him, "pull[ed] off and said, "I got you, m***** f*****." Hale stated that he was "puzzled" and told Stonewall repeatedly to stop the car. Hale stated that he thought they were trying to rob him. Hale said that he pulled out a gun and, once again, told Stonewall to stop the car. Stonewall stopped the car "a little bit, then goes, stops and goes" until he finally stopped the car. Hale told the police that as he was getting out of the car, Stonewall turned around and pointed a gun at him. Hale stated that "out of fear," Hale fired his gun in an attempt to "get away from the situation," then ran home. Hale claimed that he did not know that he had shot Stonewall at the time.

         Hale's Guilty Plea

         {¶ 6} On the day following his interview with police, Hale pled guilty to an amended count of involuntary manslaughter with a three-year firearm specification. The remaining charges were dismissed. At the time of Hale's change of plea, Burton had not yet been apprehended. One of the conditions of Hale's plea agreement was that if Burton was apprehended and the case against Burton proceeded to trial, Hale would testify "consistent with [the] apparent truthful statement" he had given during his interview the previous day. The trial court referred Hale to the probation department for a presentence investigation report ("PSI").

         {¶ 7} On May 20, 2010, Hale was sentenced to eight years in prison, i.e., three years on the firearm specification to be served prior to and consecutive to five years on the involuntary manslaughter charge. Hale also received an additional two years in prison in a federal case due to his violation of supervised release.

         Burton's Trial and Hale's Motion to Withdraw His Guilty Plea

         {¶ 8} Burton was ultimately apprehended and the case against him proceeded to trial in January 2011. During the middle of Burton's trial, the state disclosed that a gunshot residue test performed on Stonewall's hands revealed gunshot primer residue on Stonewall's right hand. Hale's attorneys had requested the results of any gun residue testing performed on Stonewall during pretrial discovery. Although the Cuyahoga County Coroner's Office issued a report with the test results on March 5, 2010, the test results were not disclosed to Hale's attorneys until January 4, 2011. See State v. Hale, 8th Dist. Cuyahoga No. 100447, 2014-Ohio-3322, ¶ 4.

         {¶ 9} On January 5, 2011, Hale filed a motion to withdraw his guilty plea in 529253 based on the state's failure to disclose the results of the gunshot residue test performed on Stonewall. Hale argued that the test results were material to his claim, which he had asserted throughout the case, that he had shot Stonewall in self-defense. The state opposed the motion.

         {¶ 10} When the state called Hale to testify at Burton's trial, as contemplated by the plea agreement, Hale asserted his Fifth Amendment right against self-incrimination.

         {¶ 11} Burton was acquitted of the charges against him relating to Stonewall's death. At the close of the state's case, the trial court granted Burton's Crim.R. 29 motion for a judgment of acquittal on all of the charges against him in 529253.

         {¶ 12} At the time he entered his guilty plea, Hale was represented by Attorneys Edward LaRue and Anthony Lonardo. After filing his motion to withdraw his guilty plea, Hale hired Attorney Michael Cheselka to represent him. Attorney Cheselka had represented Burton in Burton's trial on the charges relating to Stonewall's death.

         Hale's Testimony at the Hearing on the Motion to Withdraw His Guilty Plea

         {¶ 13} On May 6, 2011, the trial court commenced a hearing on Hale's motion to withdraw his guilty plea. The hearing continued on May 11, 2011. At the hearing, Hale testified regarding his discussions with Attorneys LaRue and Lonardo about what happened the night Stonewall was shot.[1] Hale testified that when he first met with Attorneys LaRue and Lonardo, he told them "the truth" about what had happened that night, as follows: On the evening of September 11, 2009, Hale received a call from Burton, who asked him "to come up there" to "Middle Street, "[2] around the corner from Hale's house. When he arrived, Hale was flagged down by Douglas, who asked him "about some marijuana" and told him that "they wanted to talk over there in the car." Hale parked his car, then walked over to the other car in which two individuals (who he later learned were Stonewall and Santiago) were waiting. After he got into the car, it "pulled off and, despite his protests, Stonewell (the driver) refused to stop the car. As he reached for the door handle to get out, Santiago (the front seat passenger) pulled a gun on Hale. Hale "wrestled" the gun away from Santiago and, once again, told Stonewall to stop the car. Stonewall stopped the car. As Hale exited the car, Stonewall turned around and fired one or more shots at Hale. Hale stated that he fired back in "self-defense," then ran off through the woods dropping the gun as he ran. Hale stated that Burton never told him to bring a gun with him, that Hale had not brought a gun with him when he went to meet Burton and that Hale never actually spoke with Burton after he arrived at the scene.

         {¶ 14} Hale testified that Attorneys LaRue and Lonardo initially told him that they had "a good case" and that they were "going to win this" at trial but that when he could not come up with the additional money they said they needed to prepare for trial, they told him that he would not likely prevail at trial and that it would be in his "best interest to take the [plea] deal." Hale testified that he never wavered in the version of events he told his attorneys but that his attorneys told him that his "story" was "not going to fly" and that he could either "go in there with that story and get life if you want to or[, ] go with the flow, take [the] deal, and come home in six years." Hale testified that his attorneys told him that, to get the plea deal, he needed to "just go with" what everyone else was saying, i.e., to say that he had come to the scene to "mediate" a drug deal and had used his own gun to shoot Stonewall and to "say nothing" about "self-defense." Hale claimed that the version of events he had previously told to (1) the East Cleveland police on April 21, 2010, (2) the probation officer who conducted the presentence investigation and (3) "in court" was "all a lie" that his attorneys "made * * * up" and that he told the "story" his attorneys said he needed to tell in order to get the plea deal. Hale claimed that his attorneys told him that "there was no other way."

         {¶ 15} On August 26, 2013, the trial court granted Hale's motion to withdraw his guilty plea. The trial court found that the delayed disclosure of the gunshot residue test results was a Brady violation, was "material to the issue of guilt" because it substantiated Hale's claim that he had acted in self-defense and was "tantamount to a manifest injustice mandating the granting [of Hale's motion]." The state appealed. This court affirmed the trial court's decision.[3] State v. Hale, 8th Dist. Cuyahoga No. 100447, 2014-Ohio-3322.

         Dismissal of Original Case and Reindictment

         {¶ 16} On remand, the case was scheduled for trial. On June 6, 2016, the date the trial was scheduled to begin, the trial court dismissed the charges against Hale in 529253 without prejudice, at the state's request.

         {¶ 17} On July 28, 2016, a Cuyahoga County Grand Jury reindicted Hale on counts of murder, aggravated robbery, kidnapping and having a weapon while under disability in connection with the September 11, 2009 shooting death of Stonewall. The murder, aggravated robbery and kidnapping counts included one-year and three-year firearm specifications. Hale was also indicted on one count of perjury in violation of R.C. 2921.11(A) based on his alleged "false testimony" at the hearing on his motion to withdraw his guilty plea.[4] A jury trial commenced on July 31, 2018.

         Hale's Trial

         The State's Witnesses

         {¶ 18} Ten witnesses testified on behalf of the state at trial, including Burton, Douglas, Santiago, Detective Holcomb, Attorney Lonardo, Kahdawna Garrison (a friend Stonewall had planned to meet in Cleveland), Erica Armstrong (deputy medical examiner at the Cuyahoga County Medical Examiner's Office), Curtiss Jones (supervisor of the trace evidence department of the Cuyahoga County Medical Examiner's Office), Mark Kollar (a special agent supervisor for the Ohio Attorney General's Office, Bureau of Criminal Investigation) and Amanda Bailey (an eyewitness). A summary of the relevant testimony follows.

         {¶ 19} Santiago testified that he and Stonewall, both of whom lived in Erie, Pennsylvania, had traveled to Cleveland to "chill" with a female friend of Stonewall's, i.e., Garrison, and one of her "cousins." Santiago testified that when they first got to Cleveland, they went to a gas station and met Douglas. He stated that Douglas got into the car with them and the three men got something to eat, then proceeded on their way to meet Garrison. While they were on their way to Garrison's house, Stonewall made a stop. Santiago testified that Stonewall and Douglas stepped out of the car and were "talking or something," then got back into the car. Santiago stated that he had not been aware of any plan to get drugs while they were in Cleveland but that if Stonewall had had such plans, he would not have told Santiago because Santiago did not "live none of that at all."

         {¶ 20} They drove around for a bit then stopped and parked at a street on a hill. Santiago testified that a car pulled up, that Stonewall and Douglas had a discussion, that Stonewall gave Douglas "some money or something" and that Douglas then ran out of the car.

         {¶ 21} Santiago testified that a male he did not recognize then came out of an alleyway, opened the unlocked car door and got into the car with them. He testified that the man (later identified as Hale) said, "give it up," and pulled out a gun. Stonewall put the car in drive and sped off. Santiago testified that Hale was sitting behind the driver's seat with the gun pointed toward the front of the vehicle and that Hale and Stonewall were "tussling" and "going back and forth" as Stonewall was trying to grab Hale. Santiago took the wheel and Stonewall began quickly accelerating and stopping the car "to get tension off him a bit." Santiago testified that when Stonewall eventually stopped the car, Hale got out of the car and shot Stonewall. Immediately after firing the shots, Hale ran off. Santiago testified that neither he nor Stonewall had a gun with them that evening.

         {¶ 22} Santiago testified that after the shots were fired, Stonewall did a U-turn back toward the gas station where Douglas was waiting. They located Douglas, and Douglas drove them to the hospital. When they arrived at the hospital, Santiago and Douglas were immediately detained. Santiago later learned that Stonewall had died in surgery. Santiago identified Hale as the perpetrator in a photo array on September 21, 2009, and again in court during his trial testimony.

         {¶ 23} Douglas testified that Stonewall was a "friend" he had known for approximately a year prior to the shooting and that he had not previously met Santiago. Douglas testified that Stonewall had come into town to visit him, that Stonewall had wanted to buy an ounce of powder cocaine and that Douglas had agreed to be the "middle man" for the drug transaction.

         {¶ 24} Douglas stated that when Stonewall and Santiago arrived in Cleveland, they picked up Douglas, got food and hung out together "for some hours," "riding around" and "stop[ping] at a few places." Douglas testified that he called Burton, who was to supply the cocaine, and they made arrangements to meet on Noble Road in Cleveland Heights, Ohio, in between a gas station and the Columbo Room restaurant. Douglas testified that, when they arrived at the meeting place, Douglas got out of the car and spoke with Burton. Douglas testified that Stonewall had already given him $1, 000 to purchase the cocaine. Douglas stated that Burton gave him a bag of cocaine and that Douglas brought it over to Stonewall, who was still sitting in his car and told him the price. Douglas testified that after looking at the cocaine, Stonewall said, "this is not right," and asked Douglas to see if he could "get it for a cheaper price." Douglas took the cocaine back to Burton and told him what Stonewall had said. Douglas still had Stonewall's $1, 000.

         {¶ 25} Douglas stated that when he gave the bag back to Burton, Burton "reacted like * * * we did something to it." Douglas denied that they did anything to the drugs. Douglas testified that Burton then made a telephone call. Douglas stated that he did not know whom Burton called but that Burton told the person on the other line "to get something from the house and bring it to where we was at." Ten or 15 minutes later, Hale appeared in an old Ford truck.

         {¶ 26} Douglas identified Hale in the courtroom. He described Hale as an "associate" he knew from having attended Shaw High School together. Douglas testified that after Hale got out of the truck, he walked towards Douglas and Burton. Hale and Burton greeted one another, then Burton told Hale to "go to that car." Douglas testified that Hale walked over to Stonewall's car, opened the door and spoke briefly with Stonewall and Santiago. Douglas could not hear what was said. Douglas testified that Hale then "helped himself into the back seat of Stonewall's car and it "drove off real fast."

         {¶ 27} Douglas stated that Burton then got into his car and drove fast toward Douglas. Douglas jumped out of the way, then started running through the parking lot of the gas station to see where the cars were going. As he approached the corner of the gas station parking lot, Douglas heard gunshots, then stopped. Douglas testified that he heard a police officer say, "freeze," then saw an officer and a person he assumed was Hale running across the street. Stonewall's car then pulled up across the street. Douglas got into the car and Stonewall told Douglas he had been shot. Douglas began giving Stonewall directions to the hospital then had him pull over so that they could switch positions. Douglas and Santiago moved Stonewall to the back seat of the car and Douglas drove to the hospital. Stonewall died during surgery.

         {¶ 28} Douglas testified that neither Stonewall nor Santiago had a gun that evening. Douglas stated that he had set up drug deals for Stonewall "a lot of times" and that Stonewall "don't ride like that."

         {¶ 29} Burton offered a slightly different version of events. He stated that he had known Hale for "roughly about 17 years" and that he knew Douglas from school. Burton testified that he had "a situation" with Douglas, i.e., that Douglas called him and said he wanted to meet Burton, so Burton agreed to meet Douglas at Nelamere Road off Noble Road in East Cleveland. Burton testified that Douglas was with two men he did not know. Burton testified that Douglas came over to talk to him, went back to the vehicle to talk to the two men he was with, then came back to talk to Burton again. After talking with Douglas, Burton told Douglas "that's not going to work." Burton testified that he did not call Hale to come to the scene, that Hale was already there, and that he did not talk to Hale at the scene. Burton stated that he went back into his car for "like two seconds" and that when he came back, Douglas and Hale were talking. Burton testified that, by this time, his "business [with Douglas] was concluded" and that he "chose to get in [his] car and end the encounter that we had." Burton stated that he was getting ready to leave when "a lot of commotion started" and he saw a car "just take off." Burton testified that he heard a girl scream and got into his car and drove toward the gas station. Burton testified that he saw the vehicle that had driven off swing back into the gas station and that Douglas got into the car. Burton denied hearing any gun shots. Burton stated that he did not learn until a week later that someone had died.

         {¶ 30} Garrison testified that she had met Stonewall at the Presque Isle Casino in Erie, Pennsylvania, about four months earlier. She stated that Stonewall was supposed to pick her up that evening and take her back with him to Erie for the weekend. She testified that she had been communicating with Stonewall regularly as he was driving from Erie to Cleveland and that he told her he was going to stop and see a friend before getting her. He later called her and told her he was on his way, and Garrison went outside to smoke a cigarette and wait for him. While she was outside waiting for Stonewall, she heard a gunshot. When Stonewall did not pick her up as planned, Garrison called Santiago, who informed her that Stonewall had been shot. Garrison testified that she had never seen Stonewall carry a firearm and that she did not know Hale, Burton or Douglas.

         {¶ 31} Bailey testified that on the evening of September 11, 2009, she was driving on Noble Road, on her way to meet friends at a bar on Euclid Avenue in Cleveland. As she passed the gas station, cars were stopped in the middle of the road. As she began backing up her vehicle to get around the stopped cars, a car moved forward and swerved into the opposite lane. Bailey testified that she saw someone get out of the car and fire approximately three shots in the direction of the car. The shooter then ran and the car sped off. She could not identify the shooter.

         {¶ 32} Armstrong performed an autopsy on Stonewall. She testified that Stonewall died from a gunshot wound to the left chest, i.e., that a bullet had entered Stonewall's chest at the left nipple and travelled horizontally across his body, passing through the lungs and heart, into the right side of his back.

         {¶ 33} Jones testified regarding the results of the gunshot primer residue testing conducted on Stonewall's hands. He indicated that Stonewall's right hand tested positive for gunshot primer residue, but his left hand did not. Jones explained that when a gun is shot, gunshot primer residue escapes through gaps on the sides of the weapon. He stated that if gunshot primer residue is found on a person's hand, one of three things has occurred: (1) the individual shot a gun, (2) the individual was in close proximity to the discharge of a gun or (3) the individual came into contact with a surface that had gunshot primer residue on it and there was a transfer of gunshot primer residue from that surface to the person's hand. He could not state which occurred here.

         {¶ 34} Kollar processed Stonewall's vehicle, looking for trace evidence. Kollar testified that, based on what he observed, two bullets appeared to have been shot in a downward trajectory into the vehicle through the open, driver-side rear door. He explained that there were two bullet defects in the vehicle - one that came through the back of the driver's seat and one that was found in the door jamb. Using trajectory rods, he determined that the shots were likely fired from the rear toward the front of the vehicle and downward. He testified that, although the bullet defect observed in the driver's seat could have potentially been fired from inside the vehicle, given the absence of any fouling or stippling where the bullet entered the driver's seat, he believed that it was more likely that that bullet had been shot from more than six feet away.

         {¶ 35} Sergeant Holcomb testified regarding additional aspects of the East Cleveland Police Department's investigation of the incident, including the crime scene photographs, efforts to apprehend Burton and the April 2010 interview of Hale. Sergeant Holcomb testified that all of the blood samples collected from the car were Stonewall's blood, that a partial palm print on the back of Stonewall's vehicle belonged to Douglas and that a hair found was from a Caucasian female and did not relate to the case. He testified that the gun used in the shooting was never recovered.

         {¶ 36} Attorney Lonardo testified regarding Hale's claim that he and Attorney LaRue told Hale to lie about what had occurred leading up to the shooting of Stonewall. Attorney Lonardo denied that he told Hale to lie "in any way, shape, or form" and specifically denied telling Hale to say that he brought his gun to the scene rather than telling the alleged "real story," i.e., that Hale "wrestled" a gun away from Santiago. Attorney Lonardo stated that it had "always been our position that it was self-defense" and that they had been trying to develop evidence of self-defense (which is why they had made a specific request for any information regarding gun residue testing of Stonewall's hands), but that it was difficult to put together a self-defense case because they had uncovered no evidence, at that time, beyond what Hale had told them, that Stonewall had had a gun.

         {¶ 37} The state played the recording of the April 2010 interview for the jury. Excerpts of Hale's testimony at the May 6 and May 11, 2011 hearing on Hale's motion to withdraw his guilty plea were also read to the jury. The parties stipulated to a certified journal entry reflecting Hale's prior conviction for drug trafficking in violation of R.C. 2925.03 in Cuyahoga C.P. No. CR-02-421537.

         {¶ 38} After the state rested, Hale moved for an acquittal under Crim.R. 29. The trial court denied the motion.

         Hale's ...


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