State v. Brown

[Cite as State v. Brown, 2017-Ohio-7701.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )

)

PLAINTIFF-APPELLEE, )

) CASE NO. 15 MA 0130

V. )

) OPINION

PAUL BROWN, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common

Pleas of Mahoning County, Ohio

Case No. 09 CR 1231

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee Paul Gains

Prosecutor

Ralph Rivera

Assistant Prosecutor

21 West Boardman St., 6th Floor

Youngstown, Ohio 44503-1426

For Defendant-Appellant Attorney John Juhasz

7081 West Boulevard, Suite 4

Youngstown, Ohio 44512-4362

JUDGES:

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Hon. Carol Ann Robb

Dated: September 12, 2017

[Cite as State v. Brown, 2017-Ohio-7701.]

DONOFRIO, J.

{¶1} Defendant-appellant, Paul Brown, appeals from a Mahoning County

Common Pleas Court judgment overruling his motion to dismiss the indictment

against him on murder and weapons charges.

{¶2} The facts are taken from appellant’s previous appeal.

On the night of May 25, 2009, April Jackson filed a missing

persons report as to her seventeen-year-old son Ashten Jackson. It

was reported that Ashten left the house the night before with appellant

Paul Brown and a Raymond Patterson. Ashten briefly returned home at

4:00 a.m., retrieved a black hooded sweatshirt, and left again with

Brown and Patterson. While a Youngstown police officer was taking

this report, Ms. Jackson pointed out that appellant was driving past the

house. The officer yelled for appellant to stop his vehicle. That officer

ended up arresting appellant as he was armed with a weapon (which

Ms. Jackson said was stolen from her).

Appellant was then interviewed by Detectives Kelty and Kelly just

as May 26 began. Appellant stated that Ashten Jackson wanted to

participate in a robbery with Raymond Patterson in the early morning

hours of May 25. Appellant denied involvement. He noted that Ms.

Jackson called him on the morning of May 25 asking for help finding her

son and that he drove her to various places.

Appellant claimed that he later saw Patterson, who was fidgety

as he “stood there” and told him that it went “all bad” over on the east

side, quoting Patterson as saying, “Man, it's all bad. The theory went

bad, man. I think he got hit. It went all bad.” (DVD Tr. 38, 40).

Appellant also alleged that after “standing” there and speaking to him

for 15 minutes, Patterson gave him Ashten's gun. (DVD Tr. 3839). In

explaining that he was arrested while taking the gun back to Ms.

Jackson, appellant added that the police had his phone so they could

see that she had been calling him. (DVD Tr. 39-40).

-2-

The detectives thereafter interviewed Raymond Patterson, who

said appellant and Ashten were planning to rob a drug dealer on the

east side. He provided police with the location of the house where the

target lived and his nickname.

The person in that house with the same nickname provided by

Patterson told police that an armed person knocked on his door at 4:00

a.m., while another person waited in the car. The armed visitor called

himself Paul and said he received a call that his friend had some

trouble there. The resident refused to open the door. The resident

described the visitor and the vehicle.

On May 27, the detectives were contacted by a person stating

that appellant confessed to him the shooting of Ashten at a May 25

Memorial Day picnic. Ashten's body was found in a field on the east

side (near the target house) on May 30, 2009. Ashten had been shot

by the weapon recovered from appellant during his arrest.

On November 5, 2009, appellant was indicted for murder with a

firearm specification, having a weapon under a disability, and carrying a

concealed weapon. A trial began in January of 2012. There was an

issue with the failure to produce a police report from Raymond

Patterson's arrest by another officer. The defense obtained this report

from the defendant's attorney in a federal case. The court considered

citing a detective for contempt but concluded that the report was not

maliciously denied to the defense. Then, an issue arose during Ms.

Jackson's testimony when it was realized that her interview was not

provided to the defense.

The trial court declared a mistrial. After various trial dates were

scheduled and continued, a trial was set to begin on April 16, 2013.

Before a jury was assembled, there was an off-the-record discussion

concerning appellant's cell phone. The trial court then ordered Net 10

-3-

aka TracFone to provide a pin number for voicemail, the original SIM

card number for the phone number, and an electronic copy of any

voicemails.

***

On September 5, 2013, the defense filed a motion to dismiss,

asserting that appellant's due process rights were violated when the

police tampered with/destroyed material exculpatory evidence or in the

alternative tampered with/destroyed potentially useful evidence in bad

faith. The evidence said to be tampered with was the defendant's cell

phone containing a relevant voicemail message. The defense claimed

that during the May 26 interview, appellant “told detectives to check his

cell phone, as there was a message to him from state's witness Ray

Patterson, wherein Patterson told Defendant that ‘it went bad, I think he

got hit,’ meaning the victim in this case.” The defense stated that this

message shows that Patterson, not appellant, was present at the

robbery.

(Emphasis sic); State v. Brown, 7th Dist. No. 13 MA 172, 2014-Ohio-5824, ¶ 7-14,

16.

{¶3} The trial court initially granted appellant’s motion to dismiss. But on the

state’s motion for relief from judgment, the court vacated its prior ruling and granted

the relief requested by the state. In so ruling, the court relied on testimony from a

BCI agent that the SIM card in the phone when appellant was arrested was the one

currently in the phone (and the one in the phone when the court ordered its

examination). Id. at ¶ 39. Appellant filed an appeal from the judgment vacating the

dismissal. Brown, 2014-Ohio-5824. We affirmed the trial court’s judgment on

appeal. Id.

{¶4} Appellant’s next trial began on June 15, 2015. A jury was sworn in and

the first witness testified. William Nolan was the second witness. The state’s theory

of the case was that appellant, Patterson, and Ashten had a plan to rob Nolan on the

-4-

night in question. (Tr. 44-45). Ashten’s body was later found in a field behind

Nolan’s house.

{¶5} Nolan testified that at 4:00 a.m. on the day in question the motion-

detector light went on outside of his house and he noticed a man in his driveway. (Tr.

107, 110). Nolan stated he had never seen this man before. (Tr. 110). Nolan stated

that the man identified himself as Paul Brown. (Tr. 110). According to Nolan, the

man stated that Ray Patterson told him something was going on and Patterson

needed his help. (Tr. 111). The man also told Nolan that he had a gun on him,

although Nolan did not see a gun. (Tr. 111). Nolan told the man to get off of his

property. (Tr. 112). The man then jogged back to the gold SUV that was in the

middle of the street, got in the passenger side, and the vehicle drove away. (Tr. 111-

113). Nolan further testified that the next day the police “busted” down his door and

began asking him about a murder. (Tr. 115). Nolan stated that he later gave a

statement to the police. (Tr. 116).

{¶6} The court then took a recess. A video was shown to defense counsel.

(Tr. 117). The video was of Nolan giving his statement to the police. In the video,

the detective asked Nolan to see if he recognized anyone from the night in question.

The detective gave Nolan a photo array that included appellant’s photograph. Nolan

first indicated that the photograph of appellant “kind of” looked like him. But Nolan

ultimately identified someone in the array other than appellant as the person he saw

on the night in question who identified himself as “Paul Brown.” The detective then

pointed out appellant’s photograph and told Nolan “No, the first one you went to is

Paul Brown.” The detective said, “that’s Paul right there” and pointed at appellant’s

photograph.

{¶7} Defense counsel moved for a dismissal or, in the alternative, for a

mistrial. (Tr. 119). The trial court recognized that defense counsel had never seen

the video prior to viewing it during trial. (Tr. 125). The court found that the non-

disclosure of the video was unintentional by the state. (Tr. 132). The court then

declared a mistrial. (Tr. 132). It rescheduled the trial for July 20, 2015. (Tr. 133).

-5-

{¶8} On July 13, 2015, appellant filed a motion for discharge. Appellant

argued the non-disclosure of the video was not a mere discovery violation but was a

Brady violation requiring dismissal of the charges. He contended his retrial was

barred on double jeopardy grounds. Appellant requested a hearing on his motion

along with findings of fact.

{¶9} Without holding a hearing, the trial court overruled appellant’s motion.

Appellant filed a timely notice of appeal on August 5, 2015. He now raises

three assignments of error.

{¶10} Appellant’s first assignment of error states:

THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN

EVIDENTIARY HEARING AND IN FAILING TO ISSUE FINDINGS OF

FACT, CONCLUSIONS OF LAW AS TO THE REASONS IT DENIED

THE MOTION TO DISMISS, WHICH IS A DENIAL OF THE LIBERTIES

GUARANTEED APPELLANT BY U.S. CONST. AMEND. V AND XIV,

AND BY OHIO CONST., ART. I, §§1, 2, AND 16.

{¶11} Appellant argues the trial court should have, and failed to, conduct an

evidentiary hearing and issue findings of fact and conclusions of law on his motion to

dismiss the indictment. He claims the court denied him the opportunity to present all

pertinent evidence regarding his argument that double jeopardy barred his retrial.

Appellant asserts this court cannot effectively review his claims because the trial

court simply overruled his motion without addressing the factual or constitutional

issues he presented. Thus, appellant asks that we remand this case with orders for

the trial court to hold an evidentiary hearing on his motion to dismiss and to issue

findings of fact and conclusions of law after the hearing.

{¶12} We review a trial court's decision on a motion to dismiss an indictment

for abuse of discretion. State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38

N.E.3d 870, ¶ 7. Abuse of discretion connotes more than an error of law or

judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or

-6-

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

{¶13} Crim.R. 12(F) governs pre-trial motions to dismiss. Appellant’s motion

to dismiss can be viewed as a pre-trial motion given that when it was filed, his next

trial was set to begin soon. The rule provides that the court may decide the motion

based on briefs, affidavits, proffers, a hearing, or other appropriate means. Crim.R.

12(F). It further provides that “[w]here factual issues are involved in determining a

motion, the court shall state its essential findings on the record.” Crim.R. 12(F).

{¶14} During his opening statement, the prosecutor told the jury that Nolan

would corroborate Patterson’s story that a man named “Paul” was outside of Nolan’s

home on the night in question and that “Paul” told Nolan he had a gun. (Tr. 50-51).

{¶15} In his motion to dismiss, appellant emphasized that in the video of

Nolan’s interview, Nolan identified someone other than appellant. Thus, appellant

argued the video clearly called appellant’s identity into question. He asserted in his

motion that this was the reason the video was not provided to the defense.

{¶16} Appellant also alleged in his motion that following the June 17, 2015

mistrial, counsel met with the prosecutor and Youngstown Police Detective to go

through the entire police file, prosecutor’s file, and internal affairs file in order to avoid

any other non-disclosures. Appellant asserted that three relevant letters were

discovered that were also never provided to him in discovery.

{¶17} There is no Criminal Rule or law that obligated the trial court to hold a

hearing on appellant’s motion to dismiss. Moreover, the trial court did make findings

on the record when it was initially faced with appellant’s motion for either a dismissal

or a mistrial. In deciding to grant the mistrial, the court stated:

The court finds that on no deliberate action of either the State of

Ohio or defense counsel was the video not disclosed.

However, the court further finds that this could affect defense

counsel’s strategy to prepare the case and to try the case in this matter.

And given the seriousness of the offense, it’s the court’s duty to protect

his constitutional rights. The Court is going to declare a mistrial.

-7-

(Tr. 132). Thus, the court found on the record no intentional wrongdoing or

intentional failure to disclose by the state.

{¶18} Additionally, in responding to appellant’s request for findings of fact, the

court stated that when it granted the mistrial it made clear, on the record, the

reasoning behind its ruling and the facts on which it relied. (July 22, 2015 Judgment

Entry).

{¶19} The trial court acted within its discretion in denying appellant’s

subsequent motion to dismiss the indictment. The video came to defense counsel’s

attention during Nolan’s testimony. In light of the video, the court continued the

matter until the next day. (Tr. 120-121). The next day, defense counsel stated he

had then had the opportunity to go through the video line by line and was now

prepared to make an argument to the court. (Tr. 121). Then, before ruling on

appellant’s oral motion for dismissal or a mistrial, the court listened to arguments by

both defense counsel and the state. (Tr. 121-132). Both sides presented arguments

and the court asked several questions. (Tr. 121-132). The court then issued its ruling

granting the mistrial. (Tr. 132).

{¶20} Given that the trial court had already listened to arguments and made

findings on the record regarding appellant’s oral motion to dismiss or for a mistrial,

the court did not abuse its discretion in ruling on appellant’s written motion for a

dismissal without holding another hearing.

{¶21} Accordingly, appellant’s first assignment of error is without merit and is

overruled.

{¶22} Appellant’s second assignment of error states:

THE TRIAL COURT ERRED IN GRANTING A MISTRIAL

RATHER THAN DISMISSING THE INDICTMENT, AS RE-

PROSECUTION IS BARRED BY DOUBLE JEOPARDY.

{¶23} Here appellant contends this court should order that his retrial is barred

by double jeopardy. Appellant argues that when the state’s conduct gives rise to the

-8-

mistrial, then a retrial is barred by double jeopardy. He asserts that in this case there

was the previous issue of the cell phone, police reports and witness statements that

were not furnished to him, and now a photo array in which the witness identified

someone other than him was not furnished to him. Appellant claims the non-

disclosures by the detective were intended to help the prosecution even if the

prosecutors themselves were personally unaware of the non-disclosures.

{¶24} When reviewing the denial of a motion to dismiss an indictment on the

grounds of double jeopardy, we are to conduct a de novo review. State v. Anderson,

148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20.

{¶25} The Double Jeopardy Clause generally does not bar retrial following a

mistrial. State v. Hubbard, 150 Ohio App.3d 623, 2002-Ohio-6904, 782 N.E.2d 674,

¶ 50, citing Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416

(1982). There is a narrow exception to this rule, however, when the defendant has

been goaded into seeking a mistrial by the prosecutor’s conduct. Hubbard at ¶ 50,

citing State v. Loza, 71 Ohio St.3d 61, 70, 641 N.E.2d 1082 (1994). To invoke the

exception, the prosecutor's conduct must reflect that the state “engaged in an

‘intentional act of deception.’” Hubbard at ¶ 50, citing Loza at 71.

{¶26} In this case, while discussing the video and when people may have

become aware of it, defense counsel stated that during appellant’s first trial, which

was tried by a different prosecutor, the prosecutor “certainly” had not seen the video.

(Tr. 125).

{¶27} As to the prosecutors involved in the most recent trial, defense counsel

stated: “I don’t think they had it and didn’t provide it to me. I don’t think that was it.

And obviously they viewed it. So they knew of it. They were aware of it. And

probably assumed that I had viewed it and looked at it.” (Tr. 126).

{¶28} Later, defense counsel stated: “I’m surely not blaming Mr. Yacovone or

Ms. Cantalamessa [the prosecutors] or Mr. Kelty [the detective who was involved]. In

this case, actually I’ve been looking at - - I’m really not even faulting Kelty. Because I

bet you he was pretty scared.” (Tr. 127).

-9-

{¶29} And then defense counsel stated: “But you know, I mean, I can’t say

that I believe that this was done intentionally, Your Honor.” (Tr. 128).

{¶30} Finally, the prosecutor, in offering an explanation, discussed the

evidence and stated that the prosecutor’s office was not attempting to hide anything

from the defense to which defense counsel stated, “I agree with that.” (Tr. 129).

{¶31} Based on all of the above, the trial court found that the state did not

take deliberate action to not disclose the video. (Tr. 132).

{¶32} Defense counsel’s statements make clear that he did not believe that

the state acted intentionally in failing to disclose the video of Nolan’s police interview.

Defense counsel stated the prosecutors likely assumed he had seen the video.

Counsel even stated he was not assigning fault to the detective involved.

{¶33} Moreover, there is no direct evidence to suggest that the failure to

disclose was intentional by the state. The prosecutor denied any intentional non-

disclosure. And significantly, it was during the prosecutor’s questioning of Nolan that

his video-taped interview with police was brought up. In fact, the prosecutor

specifically asked Nolan if he went to the police station to give a statement to the

police. (Tr. 116). Nolan stated that he did go to the police station to give a statement

and he brought his lawyer. (Tr. 116). It was at this point that defense counsel asked

to approach the bench and the trial court called a recess. (Tr. 117). The parties then

watched the video of Nolan’s interview. (Tr. 117). Defense counsel expressed his

surprise at the video of Nolan’s police interview. (Tr. 117). Had the state been

attempting to conceal the video of Nolan’s interview, it would not have elicited

testimony regarding that interview and brought the video to the trial.

{¶34} This instance of not disclosing the video to the defense was the second

time the state failed to disclose evidence to the defense. In the first instance, during

appellant’s first trial, the state failed to disclose a police report and an interview. The

trial court declared a mistrial in that case. In this second instance, the state failed to

disclose the video of Nolan’s police interview. Despite what can be viewed as

shoddy trial preparation, there is no direct evidence in this case that the state

- 10 -

intentionally withheld the video from the defense with the intent to goad appellant into

asking for a mistrial. The Sixth District aptly summed up this situation: “While we

find the repeated failure to make full, timely disclosure of evidence deplorable, we

cannot conclude that the purpose behind the behavior was a desire to force a

mistrial.” State v. Roughton, 132 Ohio App.3d 268, 278, 724 N.E.2d 1193 (6th Dist.).

{¶35} Because the evidence does not demonstrate that appellant was goaded

into requesting a mistrial by an alleged “intentional act of deception” on the part of the

state, appellant’s re-trial is not barred on double jeopardy grounds.

{¶36} Accordingly, appellant’s second assignment of error is without merit and

is overruled.

{¶37} Appellant’s third assignment of error states:

THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE

BY FAILING TO GRANT A MOTION TO DISMISS, AND INSTEAD

GRANTED A MOTION FOR MISTRIAL, AS ONLY A DISMISSAL WAS

A PROPER REMEDY FOR REPEATED DUE PROCESS

VIOLATIONS.

{¶38} In his final assignment of error, appellant asserts that another mistrial is

not the proper remedy for repeated Brady violations that have caused other mistrials.

He asserts that it is irrelevant whether the prosecutors acted in good faith or not. It is

the fact that exculpatory evidence was not disclosed to him that is relevant here,

appellant argues. Appellant goes on to argue that the state was required to disclose

the video of the photo array to him because it is exculpatory evidence.

{¶39} In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963), the United States Supreme Court developed a rule of law, often referred to as

the “Brady rule,” which imposes upon a prosecutor a due process duty to disclose

evidence favorable to the accused. Specifically, the court held that “the suppression

by the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective of

- 11 -

the good faith or bad faith of the prosecution.” Id. at 87. Additionally, the duty to

disclose exculpatory evidence extends to those officials acting on the government's

behalf, such as the police. State v. Payne, 10th Dist. No. 09AP-107, 2010-Ohio-

1018, ¶ 30, citing Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d

490 (1995).

{¶40} If the favorable evidence is disclosed during the trial, there is no Brady

violation. State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 82.

Accord State v. Bruce, 10th Dist. No. 07AP-355, 2008-Ohio-4370, ¶ 68, State v. Hall,

8th Dist. No. 83361, 2004-Ohio-5963, ¶ 14.

{¶41} In this case, the video was disclosed to defense counsel during trial.

Moreover, the trial court granted appellant’s motion for a mistrial. Thus, there was no

Brady violation.

{¶42} Accordingly, appellant’s third assignment of error is without merit and is

overruled.

{¶43} For the reasons stated above, the trial court’s judgment is hereby

affirmed.

Waite, J., concurs.

Robb, P.J., concurs.