State v. Young

2022 Ohio 4726 • 2022-12-28

Citation2022 Ohio 4726

Date Filed2022-12-28

Docket21CA0028

JudgeDelaney

Cited4 times

StatusPublished

Syllabus

Right to public trial

Full Opinion (html_with_citations)

[Cite as State v. Young,

2022-Ohio-4726

COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 21CA0028
:
EDWARD YOUNG :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Coshocton County
Court of Common Pleas, Case No.
21CR13

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 28, 2022

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JASON W. GIVEN SAMUEL H. SHAMANSKY
COSHOCTON CO. PROSECUTOR 523 South Third Street
318 Chestnut Street Columbus, OH 43215
Coshocton, OH 43812
Coshocton County, Case No. 21CA0028 2

Delaney, J.

{¶1} Appellant Edward Young appeals from the November 18, 2021, Judgment

Entry—Jury Verdict and Sentencing of the Coshocton County Court of Common Pleas.

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} Appellant’s wife, one of the victims in this matter, is Jane Doe. Appellant

and Jane lived at a property which abutted the property of one of Jane’s brothers, John

Roe. John is also one of the victims in this matter. John lived at his residence with his

girlfriend, Mary, and Mary’s children.

{¶3} On January 4, 2021, Mary was working from home as a customer service

associate for a call center. She was seated in an upstairs bedroom, in which John was

also napping. Five of Mary’s six children were also present in the residence. Around

5:00 p.m., Mary was on the phone with a customer when she heard a loud noise

downstairs, as though someone was breaking in. She awakened John and sent him

downstairs, armed.1 Mary remained on the phone.

{¶4} Mary recognized appellant’s voice downstairs. She also heard John’s

voice, and Jane Doe’s. The group was arguing. Mary heard the argument move outside

the residence, then back in, and she heard several gunshots. She put the customer on

hold and ran to investigate, first checking on her children in another upstairs bedroom.

1Mary testified that when John woke up in the bedroom, he was wearing a gun belt
because she was worried about an ex-boyfriend coming to the house. When she heard
the break-in, she first thought it must be the ex-boyfriend. Although John was armed as
he went downstairs, the evidence showed John did not draw his weapon during the
confrontation with appellant. John’s weapon was still holstered when his body was found.
Coshocton County, Case No. 21CA0028 3

{¶5} As she proceeded downstairs, Mary saw appellant at the bottom of the

stairs, next to John’s body. Appellant was holding a pistol. Appellant said he “knew what

John and Jane had done,” and that he was not going to hurt Mary because he liked her.

Mary yelled for her oldest Son to call 911.

{¶6} In the meantime, Neighbor was outside walking her dog. Neighbor testified

that she saw appellant and his wife Jane in the front yard of John’s residence and saw

John in the doorway of his residence. All three entered the residence, arguing. She then

heard several pops or bangs and saw Jane exit through the front door and collapse near

a tree. Appellant exited the residence with a gun in his hand and approached Jane and

yelled something at her as she lay on the ground.

{¶7} Neighbor then saw appellant run back to his own residence, leave

momentarily in his car, and then return. He left again in his car, driving through the

neighborhood and ending up in front of John and Mary’s residence.

{¶8} In the meantime, Mary’s oldest Son was on the phone with the sheriff’s

department. Son observed appellant pull up in his car; appellant approached Son and

told him to hang up the phone. Appellant took the phone from Son and tossed it.

Appellant then approached Jane again, who was still on the ground, and attempted to

remove something from her pocket. He then left again in his car. Son described the car

to law enforcement. Son also observed appellant’s four young children in the backseat

of the car.

{¶9} Sheriff’s deputies intercepted appellant’s car and tried to stop him, but

appellant refused to comply and fled. He eventually crashed into another vehicle,
Coshocton County, Case No. 21CA0028 4

disabling his own car. Appellant was apprehended without further incident and his

children were safely recovered by law enforcement.

{¶10} The next day, detectives questioned appellant and he eventually requested

an attorney. Later the same day, however, he contacted detectives and voluntarily spoke

to Detective Andrews. After being Mirandized, appellant told Andrews he had no

recollection of the murders or the ensuing events. Appellant’s statements were

videotaped and introduced at trial.

{¶11} Law enforcement processed the crime scene and collected evidence. The

9-millimeter firearm was recovered in a field on the route of appellant’s flight from

deputies. Ballistics testing established the firearm was used to shoot and kill both Jane

and John, who died as direct results of their gunshot wounds. Appellant’s DNA was found

on the ammunition clip recovered with the firearm, and gunpowder residue was found on

appellant’s hands.

{¶12} Appellant was charged by indictment with two counts of aggravated murder

pursuant to R.C. 2903.01(A), both unclassified felonies [Counts I and II], and one count

of having a weapon while under disability pursuant to R.C. 2923.13(B), a felony of the

third degree [Count III]. Appellant entered pleas of not guilty and the matter proceeded

to trial by jury. Appellant was found guilty as charged.

{¶13} The trial court sentenced appellant to life in prison without the possibility of

parole upon Counts I and II, along with additional terms of 3 years for accompanying

firearm specifications. Appellant was sentenced to a prison term of 36 months upon

Count III. The trial court ordered the sentences for all three counts and the firearm

specifications to be served consecutively.
Coshocton County, Case No. 21CA0028 5

{¶14} Appellant now appeals from the judgment entry of his convictions and

sentence.

{¶15} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶16} “I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE

PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO

CONSTITUTION BY FINDING HIM GUILTY OF AGGRAVATED MURDER AND HAVING

WEAPONS WHILE UNDER DISABILITY AS THOSE VERDICTS WERE NOT

SUPPORTED BY SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

{¶17} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY CLOSING AND LOCKING THE COURTROOM DURING HIS JURY TRIAL, IN

VIOLATION OF HIS RIGHT TO A PUBLIC TRIAL AND DUE PROCESS OF LAW

PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO

CONSTITUTION.”

{¶18} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY PERMITTING TESTIMONY AT HIS JURY TRIAL IN VIOLATION OF DOYLE V.

OHIO, THEREBY DEPRIVING HIM OF DUE PROCESS OF LAW PURSUANT TO THE

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION.”
Coshocton County, Case No. 21CA0028 6

{¶19} “IV. APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE THEREBY

DEPRIVING HIM OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.”

ANALYSIS

{¶20} In his first assignment of error, appellant argues his convictions are not

supported by sufficient evidence and are against the manifest weight of the evidence. We

disagree.

{¶21} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins,

78 Ohio St.3d 380

1997-Ohio-52

678 N.E.2d 541

, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259

574 N.E.2d 492

 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

Thus, an appellate court's role is limited. It does not ask whether the evidence should be

believed or assess the evidence's “credibility or effect in inducing belief.” State v. Jones,

166 Ohio St.3d 85

2021-Ohio-3311

182 N.E.3d 1161

, reconsideration denied, 165 Ohio
Coshocton County, Case No. 21CA0028                                                      7

St.3d 1458,

2021-Ohio-4033

176 N.E.3d 767

, and cert. denied,

213 L.Ed.2d 1005

142 S.Ct. 2766

, citing State v. Richardson,

150 Ohio St.3d 554

2016-Ohio-8448

84 N.E.3d 993

, ¶ 13, citing Thompkins, 78 Ohio St.3d at 386,

678 N.E.2d 541

. Instead, it asks

whether the evidence against a defendant, if believed, supports the conviction.

Id.,

 citing

Thompkins at 390, 678 N.E.2d 541

 (Cook, J., concurring).

       {¶22} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned, and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶23} Appellant was found guilty of two counts of aggravated murder pursuant to

R.C. 2903.01(A), which states in pertinent part, “No person shall purposely, and with prior

calculation and design, cause the death of another.” “‘Prior calculation and design’ are

not defined in the Revised Code but is more than just an instantaneous decision to kill; it

encompasses planning ‘a scheme designed to carry out the calculated decision to cause

the death.’” State v. Calvert, 5th Dist. Guernsey No. 03CA19,

2004-Ohio-6366

, ¶ 49, citing

State v. Jones,

91 Ohio St.3d 335, 348

2001-Ohio-57

744 N.E.2d 1163

, internal citations

omitted. Prior calculation and design are considered “a more stringent element than
Coshocton County, Case No. 21CA0028                                                   8

premeditation.”

Id.,

 citing State v. Green,

90 Ohio St.3d 352, 357

738 N.E.2d 1208

,

internal citation omitted.

       {¶24} Appellant argues there is no evidence of prior calculation and design in the

instant case; he did not recall the murders and his motive was unclear, and he asserts

that “* * *the shootings appear to be the instantaneous result of an argument between the

three parties.” Brief, 4.

       {¶25} In State v. Taylor,

78 Ohio St.3d 15

, 18–20,

676 N.E.2d 82

, 88–89 (1997),

the Ohio Supreme Court considered the meaning of “prior calculation and design,” noting

the following at page 19:

                      ****

                      According to [the 1973 Technical Committee Comment to

              Am.Sub.H.B. No. 511, a Legislative Service Commission summary],

              “the phrase ‘prior calculation and design’ [was employed] to indicate

              studied care in planning or analyzing the means of the crime as well

              as a scheme encompassing the death of the victim. Neither the

              degree of care nor the length of time * * * are critical factors in

              themselves, but they must amount to more than momentary

              deliberation.”

                      In State v. Cotton (1978),

56 Ohio St.2d 8

10 O.O.3d 4

381 N.E.2d 190

, at paragraph one of the syllabi, we agreed that “‘prior

              calculation and design’ is a more stringent element than the

              ‘deliberate and premeditated malice’ which was required under prior

              law.” The General Assembly's apparent intention “was to require more
Coshocton County, Case No. 21CA0028                                                   9

            than the few moments of deliberation permitted in common law

            interpretations of the former murder statute, and to require a scheme

            designed to implement the calculated decision to kill.”

. Also, in Cotton, at

            paragraph two of the syllabus, we held that “[i]nstantaneous

            deliberation is not sufficient to constitute ‘prior calculation and

            design.’”

                   * * * *.

                   In State v. Jenkins, 48 Ohio App.2d at 102, 2 O.O.3d at 75,

            355 N.E.2d at 828, the court of appeals found three factors important

            in determining whether prior calculation and design exists: (1) Did the

            accused and victim know each other, and if so, was that relationship

            strained? (2) Did the accused give thought or preparation to choosing

            the murder weapon or murder site? and (3) Was the act drawn out or

            “an almost instantaneous eruption of events”?

                   Our review of the preceding cited cases convinces us that it is

            not possible to formulate a bright-line test that emphatically

            distinguishes between the presence or absence of “prior calculation

            and design.” Instead, each case turns on the particular facts and

            evidence presented at trial.

                   State v. Taylor,

78 Ohio St.3d 15, 19

676 N.E.2d 82

 (1997).

      {¶26} In the instant case, appellant knew both victims well, and his relationship

with Jane had become strained over appellant’s belief that Jane had an incestuous
Coshocton County, Case No. 21CA0028                                                    10

relationship with John, an allegation he made to Andrews and to which he obliquely

referred when Mary found him at the bottom of the steps, standing over John’s body.

      {¶27} The evidence admitted at trial also showed deliberation and planning.

Appellant told Andrews he recalled Jane leaving the house in the direction of John’s

house; appellant re-entered the residence before following her. Police found an empty

firearm case in appellant’s house with the make, model, and serial number matching

the weapon that killed Jane and John.

      {¶28} The final issue is whether appellant acted with “more than momentary

deliberation,” or whether the act was “an almost instantaneous eruption of events.”

Taylor, supra.

 * * * *. Appellant retrieved the weapon, followed Jane to John’s residence,

and argued with both before he shot them. “Prior calculation and design can be found

even when the killer quickly conceived and executed the plan to kill within a few

minutes,” State v. Coley,

93 Ohio St.3d 253, 264

754 N.E.2d 1129

 (2001), as long as

the killer's actions “went beyond a momentary impulse and show that he was determined

to complete a specific course of action,” State v. Conway,

108 Ohio St.3d 214

, 2006-

Ohio-791,

842 N.E.2d 996

, ¶ 46. Appellant fired ten shots inside John’s residence,

and one was to John’s head. A shot to the head at close range “bespeaks a calculated,

execution-style murder.” State v. Campbell,

90 Ohio St.3d 320, 330

738 N.E.2d 1178

, 1193 (2000), citing State v. Palmer,

80 Ohio St.3d 543, 570

687 N.E.2d 685

 (1997).

      {¶29} Although “the events here took place in short order,” a juror could

reasonably infer appellant “had adopted and carried out a plan to kill.” Jones, supra,
Coshocton County, Case No. 21CA0028                                                       11

2021-Ohio-3311, at ¶ 26

. Appellee presented sufficient evidence of prior calculation and

design, and the jury did not lose its way in finding appellant guilty of aggravated murder.

       {¶30} Appellant’s convictions upon two counts of aggravated murder are

supported by sufficient evidence and are not against the manifest weight of the evidence.

Appellant’s first assignment of error is overruled.

                                                 II.

       {¶31} In his second assignment of error, appellant argues the trial court committed

structural error in closing the courtroom to the public during the testimony of the coroner.

We disagree.

       {¶32} The Sixth Amendment to the United States Constitution, as applied to the

states through the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial.” Section 10, Article I of the

Ohio Constitution also guarantees an accused the right to a public trial. The right to a

public trial is not absolute, and in some instances must yield to other interests, such as

those essential to the administration of justice. A trial judge has authority to exercise

control over the proceedings and the discretion to impose control over the proceedings.

Nonetheless, the abridgement of a defendant's right to a public trial may occur only when

necessary, and any closure must be narrowly drawn and applied sparingly. See, State ex

rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger,

28 Ohio St.3d 418, 421

504 N.E.2d 37

 (1986); State v. Lane,

60 Ohio St.2d 112, 121

397 N.E.2d 1338


(1979).

       {¶33} In Waller v. Georgia, the Supreme Court established the test for

determining whether a courtroom closure violates a criminal defendant's Sixth
Coshocton County, Case No. 21CA0028                                                          12

Amendment right to a public trial: “The presumption of openness may be overcome only

by an overriding interest based on findings that closure is essential to preserve higher

values and is narrowly tailored to serve that interest. The interest is to be articulated along

with findings specific enough that a reviewing court can determine whether the closure

order was properly entered.”

467 U.S. 39, 48

104 S.Ct. 2210

81 L.Ed.2d 31

 (1984),

internal citation omitted. In the same opinion, the Supreme Court articulated the test as a

four-factor analysis: [(1)] the party seeking to close a public hearing must advance an

overriding interest that is likely to be prejudiced, [(2)] the closure must be no broader than

necessary to protect that interest, [(3)] the trial court must consider reasonable

alternatives to closing the proceeding, and [(4)] it must make findings adequate to support

the closure.

Id. at 48

. Courts frequently call this the “Waller test.”

       {¶34} The Supreme Court of Ohio in Drummond subsequently modified the

Waller test in cases where the trial closure is partial rather than total. In Drummond, the

court concluded “[w]hen a trial judge orders a partial, as opposed to a total, closure of a

court proceeding, a ‘substantial reason’ rather than Waller's ‘overriding interest’ will justify

the closure.”

111 Ohio St.3d 14, 53

2006-Ohio-5084

854 N.E.2d 1038

{¶35} In the instant case, prior to the testimony of Dr. Lee, the deputy coroner who

autopsied both victims, the following statement was made by the trial court:

The time is now 10:04 a.m., and we have reconvened in Case 21-

CR-0013. The defendant is present accompanied by counsel as is the

prosecuting attorney and assistant prosecutor. All 12 members of the jury

are present as well as the two alternates. It’s at this time that the state has

advised the court they will call Dr. Lee who is a forensic pathologist. Once
Coshocton County, Case No. 21CA0028 13

Dr. Lee comes in and takes the witness stand, I just want to note for the

record the doors will be locked so that there can be no further entrance

during his testimony.

T. 252.

{¶36} The closure of the courtroom was a partial closure because it was closed

only during the testimony of one witness, and it appears from the record that the trial court

prevented persons from entering and leaving during the testimony but did not clear the

courtroom altogether. After Lee’s testimony concluded, the trial court stated the

courtroom could now be unlocked, and appellee asked for a moment to “alert the victim’s

family that Dr. Lee’s testimony is concluded and that we’re moving onto the next phase

of the trial.” T. 280-281.

{¶37} The trial court offered no explanation for closure of the courtroom, and

neither party objected. The trial court did not make any findings or otherwise address the

Waller and Drummond factors, supra. Appellant argues the sua sponte closure of the

courtroom violated his right to a public trial and requires reversal.

{¶38} We note the Ohio Supreme Court recently decided a case which originally

arose in this District, directly addressing the nature of structural error when a defendant

is denied the right to a public trial due to a courtroom closure. In State v. Bond, 2022-

Ohio-4150, the Ohio Supreme Court found that a public-trial violation may occur, and the

violation may be structural error, but in the absence of objection by the defendant, such

error may not require correction.

{¶39} Bond is instructive to our analysis of the instant case. We do find a public-

trial violation because the record does not establish the trial court made any Waller
Coshocton County, Case No. 21CA0028 14

analysis, or offered any explanation, for the sua sponte closure of the courtroom. State

v. Bond,

2022-Ohio-4150, ¶ 15

. Neither party objected to the closure. While a public-

trial error is structural error, it is not necessarily correctible error when the defendant failed

to object. Id., ¶ 16.

       {¶40} The Court found that a plain-error analysis must be applied to determine

whether the public-trial violation affected the defendant’s substantial rights, and that the

appropriate test is not whether the violation affected the outcome of the trial because “a

structural error may affect substantial rights even if the defendant cannot show that the

outcome of the trial would have been different had the error not occurred.” Id., at ¶ 32.

Nor, however, does structural error require automatic reversal. Id., at ¶ 33.

       {¶41} The issue is more subjective and requires an evaluation of the courtroom

closure in the context of the entire trial. “[T]he final consideration in the plain-error

analysis is whether correcting the error is required to prevent a manifest miscarriage of

justice or whether the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id., citing Olano, 507 U.S. at 736,

113 S.Ct. 1770

123 L.Ed.2d 508

; Long,

53 Ohio St.2d 91

372 N.E.2d 804

, paragraph three of the syllabus.

{¶42} The issue posed by the instant case is whether the public-trial violation in

warrants correction. In Bond, the Ohio Supreme Court concluded the violation did not

require correction:

Here, the courtroom closure occurred during the state's

presentation of evidence, after an eyewitness finished testifying. The

courtroom closure was a partial one; the trial court permitted Bond's

immediate family members and the victim's immediate family
Coshocton County, Case No. 21CA0028 15

members to attend the remainder of the trial. According to the state,

the courtroom was closed only to the two individuals involved in the

hallway disruption during the court's recess. Bond has not asserted

that any specific person attempted to enter the courtroom and was

denied access. Although the court's order limiting access to the

courtroom was effective through the end of the trial, Bond has not

asserted that any harm resulted from the closure. For example, he

has not suggested that any of the trial participants failed to fulfill their

duties appropriately during the remainder of trial or that the judge or

prosecutor engaged in misconduct that went unnoticed because of

the courtroom closure. The record indicates that the jurors were

unaware of the judge's decision to limit courtroom access. While

these factors might weigh differently in the context of

a Waller analysis or if considered after an objection to the closure

made in the trial court, we review the facts here in the context of a

plain-error analysis, which means that Bond has the burden to show,

within the plain-error framework, that the public-trial violation so

affected the fairness of the proceeding as to require correction.

Because Bond has not made that showing, we conclude that the

public-trial violation in his trial did not rise to the level of a plain error

that must be corrected.

State v. Bond,

2022-Ohio-4150, ¶ 37

.
Coshocton County, Case No. 21CA0028                                                          16

       {¶43} In the instant case, closure of the courtroom was partial and access to the

courtroom was limited for the testimony of one witness. Appellant has not asserted that

anyone attempted to enter the courtroom and was denied access, and he has not

described any harm resulting from closure of the courtroom during this testimony.

Id.


Appellant has the burden to show that the public-trial violation so affected the fairness of

the proceeding as to require correction, but he makes no showing beyond the fact of the

violation itself.

Id.

 We thus conclude the public-trial violation did not rise to the level of a

plain error that must be corrected.

Id.


       {¶44} Appellant’s second assignment of error is overruled.

                                                  III.

       {¶45} In his third assignment of error, appellant argues that appellee’s use of his

videotaped statement to Andrews constitutes a Doyle violation, effectively using his right

to remain silent against him. We disagree.

       {¶46} The right to remain silent is conferred by the United States and the Ohio

Constitutions. The privilege against self-incrimination “is fulfilled only when the person is

guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered

exercise of his own will.’” State v. Graber,

95 N.E.3d 631, 641

 (5th Dist. 2003) quoting

Miranda v. Arizona,

384 U.S. 436, 460

86 S.Ct. 1602

16 L.Ed.2d 694

 (1966), internal

citation omitted. The United States Supreme Court in Miranda v.

Arizona, supra,

 detailed

the well-known procedural safeguards, including the right to an attorney, to protect the

privilege against self-incrimination. “A suspect's right to an attorney during questioning *

* * is derivative of his right to remain silent.” State v. Leach, 102 Ohio St.3d
Coshocton County, Case No. 21CA0028                                                      17

135,

2004-Ohio-2147

807 N.E.2d 335

, ¶ 13 quoting Wainwright v. Greenfield,

474 U.S. 284, 298-299

106 S.Ct. 634

88 L.Ed.2d 623

 (1986) (Rehnquist, J., concurring).

       {¶47} In Doyle v. Ohio,

426 U.S. 610, 618

96 S.Ct. 2240

49 L.Ed.2d 91

 (1976),

the United States Supreme Court held that use of a defendant's post-arrest, post-

Miranda silence for impeachment purposes violates the Due Process Clause of the

Fourteenth Amendment. State v. Leach,

102 Ohio St.3d 135

2004-Ohio-2147

807 N.E.2d 335

, ¶ 16. In Wainwright v. Greenfield,

474 U.S. 284, 298-299

106 S.Ct. 634

88 L.Ed.2d 623

 (1986), the United States Supreme Court held the use of a defendant's post-

arrest, post-Miranda silence as substantive evidence of guilt violated due process. The

State may not use a defendant's silence to lead the jury to the conclusion that innocent

people speak to the police to clear up misunderstandings, while guilty people consult with

their attorneys. State v. Abraham, 9th Dist. Summit No. 26258,

2012-Ohio-4248

2012 WL 4100406

, ¶ 42 citing State v. Leach at ¶ 32.

{¶48} In the instant case, appellant does not point to any overt reference by

appellee to his post-arrest silence. Instead, he argues appellee’s implication was indirect;

by showing the videos of his interrogations, appellee effectively commented on his silence

because he asked for counsel at the conclusion of the first interrogation and claimed not

to remember the events of the murders. We find no evidence that appellee used

appellant’s rights to silence and counsel as evidence of guilt at any stage of the

proceedings, and we find no authority applying Doyle’s rationale under these

circumstances. Nor does appellant point us to any such authority.

{¶49} The record reveals that appellant gave a recorded interview, then invoked

his right to counsel; he then asked to speak to the detective again and gave a voluntary
Coshocton County, Case No. 21CA0028 18

statement. Both statements were Mirandized. Appellant’s interviews were part of

appellee’s evidence at trial, but we are unable to find any commentary by appellee on

appellant’s invocation of his rights to silence and to counsel as evidence of guilt.

{¶50} Appellant did not assert a Doyle violation at trial, and we find none here.

We find no evidence appellee affirmatively sought to use appellant’s invocation of his right

to counsel as proof of guilt; nor did appellee use the evidence for impeachment purposes.

State v. Edmonds, 5th Dist. No. 17-CA-53,

2018-Ohio-2832

117 N.E.3d 83, ¶ 22

.

       {¶51} Appellant’s third assignment of error is overruled.

                                                IV.

       {¶52} In his fourth assignment of error, appellant incorporates the arguments

raised in his second and third assignments of error, summarily arguing he received

ineffective assistance of defense trial counsel. We disagree.

       {¶53} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Strickland v. Washington,

466 U.S. 668

104 S.Ct. 2052

80 L.Ed.2d 674

 (1984); State v. Bradley,

42 Ohio St.3d 136

538 N.E.2d 373

 (1989). To

warrant a finding that trial counsel was ineffective, the petitioner must meet both the

deficient performance and prejudice prongs of Strickland and Bradley. Knowles v.

Mirzayance,

556 U.S. 111

129 S.Ct. 1411, 1419

173 L.Ed.2d 251

 (2009).

       {¶54} The United States Supreme Court discussed the prejudice prong of the

Strickland test:
Coshocton County, Case No. 21CA0028                                                    19

                     With respect to prejudice, a challenger must demonstrate “a

              reasonable probability that, but for counsel's unprofessional errors,

              the result of the proceeding would have been different. A reasonable

              probability is a probability sufficient to undermine confidence in the

              outcome.” Id., at 694,

104 S.Ct. 2052

. It is not enough “to show that

              the errors had some conceivable effect on the outcome of the

              proceeding.”

Id., at 693

104 S.Ct. 2052

. Counsel's errors must be

              “so serious as to deprive the defendant of a fair trial, a trial whose

              result is reliable.”

Id., at 687

104 S.Ct. 2052

.

       {¶55} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley,

42 Ohio St.3d at 143

538 N.E.2d 373

, quoting Strickland,

466 U.S. at 697

104 S.Ct. 2052

80 L.Ed.2d 674

 (1984).

       {¶56} Debatable strategic and tactical decisions may not form the basis of a claim

for ineffective assistance of counsel. State v. Phillips,

74 Ohio St.3d 72, 85

656 N.E.2d 643

 (1995). Even if the wisdom of an approach is questionable, “debatable trial tactics”

do not constitute ineffective assistance of counsel.

Id.


       {¶57} Appellant summarily argues defense trial counsel was ineffective in failing

to object to the sua sponte closing of the courtroom and to appellee’s use of his

videotaped interviews for the reasons cited in his second and third assignments of error.

We overruled those assignments of error, and find counsel was not ineffective in failing
Coshocton County, Case No. 21CA0028                                                    20

to raise the stated objections. Even if the alleged errors were objectionable and counsel

was deficient, the perceived deficiencies had no effect on the outcome of the trial.

       {¶58} Upon review we find there is no reasonable probability that the outcome of

the trial would have been different had counsel made the argued objections. “Trial counsel

is not ineffective for choosing, for tactical reasons, not to pursue every possible trial

objection.” State v. West, 5th Dist. No. 16 CA 11,

2017-Ohio-4055

91 N.E.3d 365, ¶ 102

,

citing State v. Raypole, 12th Dist. Fayette No. CA2014-05-009,

2015-Ohio-827

, ¶ 24.

       {¶59} Appellant’s fourth assignment of error is overruled.

                                     CONCLUSION

       {¶60} Appellant’s four assignments of error are overruled, and the judgment of the

Coshocton County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, John, J., concur.