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State v. Davis

Court of Appeals of Ohio, Tenth District

August 22, 2019

State of Ohio, Plaintiff-Appellee,
v.
Timothy D. Davis, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 17CR-4984

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.

          Yeura R. Venters, Public Defender, and Ian J. Jones, for appellant.

         Argued:

          Kimberly M. Bond.

          Ian J. Jones.

          DECISION

          NELSON, J.

         {¶ 1} What judges say to jurors matters. And when a judge tells a juror at the outset of a criminal case that the defendant does not contest that the crime alleged was in fact committed by someone with that defendant's own name, the juror can be expected to take note. Such a circumstance would narrow down any pool of potential wrongdoers, to say the least, and the concession would substantially alter the burden of proof.

         {¶ 2} Here the judge, through different formulations, conveyed that unusual and unusually potent message more than once, and to more than one prospective and eventual juror. When the defense at last balked, the judge responded that the lawyer could straighten things out. The process moved forward, with no judicial correction requested or made.

         {¶ 3} The prosecution called police officer witnesses to identify defendant Timothy D. Davis as the man who had struggled with police in a night-time incident on Kelton Street and who had injured one officer before fleeing. The defense called its own witnesses, seeking to show that Mr. Davis had not been the culprit but that the struggle had been with an unidentified man who may have been at the scene for the "soup kitchen"-type offerings provided to the homeless by Mr. Davis's mother. The jury then convicted Mr. Davis of assault and of obstructing official business, while acquitting him of felonious assault with a repeat violent offender specification; the judge sentenced him to two and a half years in prison.

         {¶ 4} On appeal, Mr. Davis mounts five assignments of error. The first, which determines the outcome here, recites that: "Defense counsel's performance was deficient by allowing five of the jurors who voted to convict to hear the trial judge's repeated mischaracterizations of the defense's theory of the case, an error so serious as to deprive appellant of a fair trial and to undermine confidence in the trial's result."

         {¶ 5} The judicial commentary that the defense now protests, but that went unchallenged at the time of the remarks, came during the jury selection process. The judge, quite prudently, had decided that voir dire would be conducted in small groups so as to avoid wider possible contamination of the jury pool when the court sought to ascertain whether any potential juror had heard of another, apparently widely publicized matter involving Mr. Davis and police officers. But the trial court's inquiries ranged beyond that other episode.

         {¶ 6} So, for example, in addressing three potential jurors one of whom (designated for voir dire as juror 7) made ...


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