State v. Eatmon , 2020 Ohio 3592 ( 2020 )

[Cite as State v. Eatmon, 2020-Ohio-3592.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 108786
v. :
DARNELL EATMON, JR., :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 2, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-623818-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and John R. Kosko, Assistant Prosecuting
Attorney, for appellant.
Mark A. Stanton, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellee.
MARY EILEEN KILBANE, J.:
Plaintiff-appellant, the state of Ohio (“the state”), appeals from the
trial court’s judgment dismissing the indictment against defendant-appellee,
Darnell Eatmon, Jr. (“Eatmon”). The dismissal was without prejudice. For the
reasons that follow, we affirm the dismissal.
I. FACTUAL BACKGROUND
On December 13, 2017, Eatmon, 23 years old at the time, was indicted
on five counts for offenses dated September 9, 2017. Count 1 was for attempted
murder under R.C. 2923.02 and 2903.02(A), a first-degree felony, with one-year,
three-year, and 54-month firearm specifications. Count 2 was for felonious assault
under R.C. 2903.11(A)(1), a second-degree felony, with a one-year, 18-month, and
three-year firearm specification. Count 3 was for felonious assault under R.C.
2903.11(A)(2), a second-degree felony, with a one-year, 18-month, and three-year
firearm specification. Count 4 was for discharge of firearm on or near prohibited
premises under R.C. 2923.162(A)(3), a first-degree felony, with a one-year, 18-
month, and three-year firearm specification. Count 5 was for having weapons while
under disability under R.C. 2923.13(A)(3), a third-degree felony.
The indictment related to an incident involving Eatmon and Khaalis
Miller (“Miller”), age 40. Eatmon is the nephew of Miller. The state alleges that
Eatmon shot Miller multiple times on September 9, 2017, around 6:57 p.m. near
1239 East 124th Street in Cleveland, Ohio after a heated argument. Miller
underwent surgery for his injuries. Two days after the incident, on September 11,
2017, Miller’s mother, Lisa Ford (“Ford”), called the Cleveland Police Department
and reported that Eatmon had shot Miller and that Miller was currently recovering
in the hospital. Afterwards, Miller cooperated with the police and identified Eatmon
out of a photo lineup. Ford was also present during the lineup and cooperated with
police at the time. She even offered to put the police in touch with an eyewitness to
the incident. The state later sought to designate Miller and Ford as material
witnesses.
A. Attempts to contact Miller
The state represented the following facts regarding its attempts to
contact Miller to secure his appearance as a witness. The state called Miller on
March 12, 2019. No one answered, but the state left a voicemail message and
requested a return call. Also, on March 12, 2019, the state mailed written
correspondence to Miller requesting a return phone call.
The state’s investigator made several phone calls and travelled to four
addresses to attempt to contact Miller. The first address was in East Cleveland. No
one answered the door, so the investigator left written correspondence in a mailbox
at a residence in East Cleveland. The mailbox contained mail addressed to Miller
and another female. The second address was in Euclid. The current resident stated
that she had lived there for three years and did not know Miller. The third address
was also in Euclid. No one answered the door, so the investigator left a letter.
The last address the investigator visited was an apartment in
Painesville. A woman answered the door and said she did not know Miller and that
he did not live there. Later, the apartment manager called the investigator and
confirmed that the apartment is rented to a “Miller” and that one of the occupants
is a Khaalis Miller.
On March 20, 2019, the state wrote a letter to Miller at the Painesville
address. The letter enclosed a copy of Miller’s subpoena for appearance at a pretrial
on April 3, 2019. Meanwhile, the state attempted to reach Miller by calling several
phone numbers that appeared on his medical records. Miller did not appear at the
April 3, 2019 pretrial. On April 4, 2019, the state sent Miller a message via Facebook,
but did not receive a response.
On April 30, 2019, the court held a hearing before denying the state’s
motions for recognizance and/or commitment of a material witness that the state
had filed on April 26, 2019, for both Miller and Ford. The state attempted to call
Miller the morning of the hearing at a number his mother provided. A male
answered the phone and replied “yes” when the caller asked for Mr. Miller.
However, after the prosecutor introduced herself, the male stated that he would
need to take a message because Miller was not there. The state never received a
return phone call.
The state called the same number on May 3 and 9, 2019, to attempt
to reach Miller. Both times, an automated message stated that the phone was not
accepting calls. On May 9, 2019, the state moved for a continuance of the May 15
trial, stating that it had not yet secured the presence of material witnesses for the
state’s case-in-chief. The state then filed new motions for material witnesses on May
10, 2019. On May 13, 2019, the court granted the state’s request for a continuance
and reset trial to July 9, 2019, but did not issue material witness warrants.
Thereafter, the state only attempted to contact Miller through written
correspondence. Miller was not personally served with a subpoena.
B. Attempts to contact Ford
The state represented the following facts regarding its attempts to
contact Ford to secure her appearance as a witness. On April 2, 2019, the state
attempted to contact Ford using one of the phone numbers found on Miller’s
medical records. An automated message stated that the call could not be completed
as dialed. On April 4, 2019, the state attempted to call Ford’s place of employment,
but there was no answer and no means to leave a message. The state then sent
written correspondence to Ford at her home and work addresses. The state
contacted Ford’s sister, who said she would have Ford call the prosecuting attorney.
On April 23, 2019, a Cleveland police detective visited Ford’s home
and place of employment. No one answered the door at either location. The
detective left letters at both places and requested a return call. About thirty minutes
after the detective left, Ms. Ford, apparently upset, called the detective, apparently
upset, and stated she did not want anything to do with the case and that Miller did
not wish to prosecute. She confirmed, however, that Miller lives in Painesville. After
obtaining a continuance, the state left subpoenas for Ford’s and Miller’s appearance
at trial at Ford’s residence. Ford was not personally served with a subpoena.
II. PROCEDURAL BACKGROUND
Eatmon was indicted on December 13, 2017. Trial was originally set
for May 15, 2019. The trial court held a pretrial hearing on April 3, 2019. The state
had attempted to call Miller and had mailed a subpoena to him at his Painesville
residence for his appearance at the April 3, 2019 hearing, but he failed to appear.
The state filed motions for recognizance and/or commitment of a material witness
as to Miller and Ford on April 26, 2019. The court denied both motions on May 1,
2019, after a hearing on April 30, 2019. Neither motion contains an affidavit or
sworn testimony of the state in support of issuing warrants for Miller or Ford.
On May 9, 2019, the state moved for a continuance, seeking
additional time to secure material witnesses. On May 10, 2019, the state moved to
declare Miller and Ford material witnesses. The parties attended a final pretrial on
May 13, 2019. The court granted the state’s motion for continuance and reset trial
for July 9, 2019. On the day of trial, the state orally renewed its motions for
recognizance and to declare Miller and Ford material witnesses.
The trial court asked the state several questions regarding its motion
for material witness warrants. The state confirmed that it had not personally served
Miller or Ford with subpoenas and that Miller and Ford are adults. The state also
informed the court that it did not have knowledge as to whether Miller or Ford had
been threatened or were in danger. The state told the court that it was not prepared
to proceed without the two witnesses and that it would not voluntarily dismiss. The
trial court, after noting that it had already granted the state one continuance,
dismissed the indictment without prejudice. The judgment entry denying the state’s
motion for a material witness warrant and dismissing the case without prejudice
stated as follows:
State unable to proceed. State’s witnesses failed to appear for trial for
a second time. State’s motion for a material witness warrant is denied.
Case dismissed without prejudice. Defendant ordered released as to
this case only.
Immediately after dismissing the underlying case, the trial court
proceeded to sentence Eatmon on another case to which he had entered a guilty plea
on May 13, 2019, for three offenses: drug possession under R.C. 2925.11(A), a fifth-
degree felony; possessing criminal tools under R.C. 2923.24(A), a fifth-degree
felony; and having weapons while under disability under R.C. 2923.13(A)(2), a
third-degree felony. He received a concurrent sentence of 11 months on each of the
two fifth-degree felonies and 18 months on the third-degree felony.
This appeal of the dismissal without prejudice follows. The state
asserts the following assignment of error:
Assignment of Error No. 1
The trial court abused its discretion in dismissing this case under
Crim.R. 48(B) when the Material Witnesses were not present for trial
but valid mechanisms existed to compel the Material Witnesses[’]
presence and testimony.
III. LAW AND ANALYSIS
In the state’s sole assignment of error, it argues that the trial court
erred in dismissing the indictment against Eatmon under Crim.R. 48(B). The
assignment of error involves two issues. We first address whether the trial court
abused its discretion in denying the state’s motions for material witness warrants
for Miller and Ford. We find that it did not. Second, we address whether the trial
court abused its discretion in dismissing the indictment without prejudice. We find
that it did not.
A. Standard of Review
Generally, a court has inherent power to regulate the practice before
it and protect the integrity of its proceedings, which includes a court’s power to sua
sponte dismiss a criminal case. State v. Hollins, 8th Dist. Cuyahoga No. 103864,
2016-Ohio-5521, ¶ 16, citing State v. Busch, 76 Ohio St.3d 613, 615, 669 N.E.2d 1125(1996). “We review a trial court’s dismissal of criminal charges under Crim.R. 48(B)
for abuse of discretion.” Id. at ¶ 17, citing Busch at 616. “An abuse of discretion
occurs when a trial court’s decision is unreasonable, arbitrary, or unconscionable.”
Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
“An unreasonable decision is one that is unsupported by a sound reasoning process;
an arbitrary attitude is an attitude that is without adequate determining principle
not governed by any fixed rules or standard; and unconscionable may be defined as
affronting the sense of justice, decency, or reasonableness.” Id., quoting State v.
Hill, 10th Dist. Franklin No. AP-177, 2010-Ohio-6121, ¶ 34.
A request for a continuance to issue a material witness warrant is also
reviewed for an abuse of discretion. State v. Metz, 8th Dist. Cuyahoga Nos. 107212,
107246, 107259, and 107261, 2019-Ohio-4054, ¶ 86.
B. Material Witness Warrants
The state argues that its motion for material witness warrants for
Miller and Ford should have been granted and the trial continued for a second time.
We find that the trial court did not abuse its discretion in refusing to issue material
witness warrants for Miller or Ford where the state failed to provide sworn affidavits
or testimony in support of the warrants demonstrating probable cause that warrants
were necessary to procure the witnesses’ attendance at trial.
The state argues that the trial court refused to issue material witness
warrants because the state had not obtained personal service on either witness and
that its refusal was an abuse of discretion. The state primarily contends that service
of a subpoena is not required to issue a material witness warrant and specifically
points out that personal service of a subpoena is not required by any the following
three statutes: R.C. 2937.16; R.C. 2937.18; and R.C. 2941.48.
R.C. 2937.16 “When witnesses shall be recognized to appear”
provides:
When an accused enters into a recognizance or is committed in default
thereof, the judge or magistrate shall require such witnesses against the
prisoner as he finds necessary, to enter into a recognizance to appear
and testify before the proper court at a proper time, and not depart
from such court without leave. If the judge or magistrate finds it
necessary he may require such witnesses to give sufficient surety to
appear at such court.
R.C. 2937.18 “Refusal of witness to enter into a recognizance”
provides, in part:
If a witness ordered to give recognizance fails to comply with such
order, the judge or magistrate shall commit him to such custody or
open or close detention as may be appropriate under the
circumstances, until he complies with the order or is discharged.
R.C. 2941.48 “Recognizance of witnesses” provides, in part:
In any case pending in the court of common pleas, the court, either
before or after indictment, may require any witness designated by the
prosecuting attorney to enter into a recognizance, with or without
surety, in such sum as the court thinks proper for his appearance to
testify in such cause.
Relying on these three statutes, the state argues that the law does not
require that a witness be personally served with a subpoena before a material
witness warrant is issued. We agree that those statutes do not require personal
service of a subpoena. That does not mean, however, that the trial court abused its
discretion by refusing to issue material witness warrants in this case.
“‘A warrant to detain a material witness must be supported by
probable cause, supported by oath and affirmation, to believe that the witness is
material and that the detention of the witness is necessary to procure her attendance
at trial.’” State v. Hollins, 8th Dist. Cuyahoga No. 103864, 2016-Ohio-5521, ¶ 24,
quoting State ex rel. Dorsey v. Haines, 63 Ohio App.3d 580, 581, 579 N.E.2d 541(2d Dist.1991). Under these facts, the state’s failure to obtain personal service
contributed to its failure to demonstrate probable cause, by oath or affirmation, that
detention was necessary to procure the witnesses’ attendance at trial.
The state largely relies on Hollins. In Hollins, we found that the trial
court abused its discretion in refusing to grant a material witness warrant to the
state and dismissing the indictment. Unlike here, the material witness in Hollins
acknowledged receipt of a subpoena, and, after receiving the subpoena, told the
prosecutor that she would not testify, hung up on him, and subsequently refused to
answer his calls. Hollins at ¶ 25. After the witness received the subpoena and
demonstrated a refusal to cooperate with the prosecutor, she was also personally
served with a subpoena for a second trial date and did not appear. Id. We found
those facts to sufficiently demonstrate that “court intervention was necessary to
procure her attendance at trial.” Id. at ¶ 26.
Here, we cannot find that the trial court abused its discretion in
denying the state’s request for material witness warrants. Unlike in Hollins, the
state’s attempts to contact Miller and Ford do not demonstrate probable cause that
warrants were necessary to procure their appearances. In nearly seven months
between the indictment and trial, the state’s only direct contact with the witnesses
occurred before residence service of the trial subpoenas, even though the state had
been granted a continuance to contact Ford and Miller in May 2019 before the
original trial date. After the time for the continuance had passed, on the day of trial,
the state struggled to pinpoint what it had done since the continuance to obtain
personal service or otherwise directly communicate with Miller and Ford about the
trial date.
By its own summary, the state’s attempts to directly contact either
witness were limited to phone calls that occurred before the continuance was
granted and before residence service of the trial subpoenas. Unlike the witness in
Hollins, who stated her refusal to cooperate after acknowledging receipt of a
subpoena, Ford’s alleged comment to the state that she would not testify and that
Miller did not wish to prosecute occurred before the state even left a subpoena at
Ford’s residence. Further, in that same phone call, Ford also demonstrated some
willingness to cooperate by confirming Miller’s address for the detective.
Accordingly, we do not find it was an abuse of discretion to refuse to issue material
witness warrants.
We have previously distinguished Hollins and reasoned that it is not
an abuse of discretion to deny a continuance to allow the state to locate a material
witness where the state had not yet obtained personal service on the witness. State
v. Metz, 8th Dist. Cuyahoga Nos. 107212, 107246, 107259, and 107261, 2019-Ohio-
4054, ¶ 85. In Metz, the trial court offered to grant a continuance before the start of
trial to allow the defendants to locate and subpoena their witnesses who they had
not yet served. Counsel declined a continuance at the start of trial even though the
trial court indicated that it would not grant a recess in the middle of trial to allow
defendants time to secure the witnesses. We held:
On this record, we cannot say the trial court abused its discretion in
denying the mid-trial request for a continuance and for a material
witness warrant when the defendants had not yet obtained personal
service on the witnesses and the court gave the defendants an
opportunity to secure the witnesses before trial.
Metz at ¶ 89.
Here, the state was actually granted a continuance before trial, yet still
failed to use that time to secure personal service of subpoenas on Miller and Ford or
otherwise directly contact the witnesses to sufficiently demonstrate that they would
not show up for trial without a warrant. Accordingly, we conclude that the trial court
did not abuse its discretion in refusing to issue the requested material witness
warrants.
Furthermore, in Hollins, the “state provided a detailed affidavit with
its motion” demonstrating probable cause to issue material witness warrants.
Hollins, 8th Dist. Cuyahoga No. 103864, 2016-Ohio-5521, ¶ 25. Unlike in Hollins,
the state here did not provide any sworn affidavits with any of its motions. In
addition, the state did not provide sworn testimony at the hearing or otherwise.
These requirements are not mere procedural technicalities or formalities. Rather,
they exist to ensure that people are afforded “‘the most fundamental rudiments of
constitutional due process.’” Robinson v. Green, 7th Dist. Mahoning No. 16 MA
0134, 2016-Ohio-5688, ¶ 9, quoting Haines, 63 Ohio App.3d 580, 581 N.E.2d 541(2d Dist.1991).
C. Dismissal
The state also argues that dismissal of the indictment under Crim.R.
48 was an abuse of discretion. The state argues that the indictment was dismissed
solely because Miller and Ford were uncooperative and not present at trial. The
record demonstrates, however, that the state failed to obtain personal service to
compel either witness’s attendance at trial and that it admittedly was not prepared
to proceed without Miller and Ford after already having been granted an earlier
continuance.
Crim.R. 48(B) provides:
If the court over objection of the state dismisses an indictment,
information, or complaint, it shall state on the record its findings of fact
and reasons for the dismissal.
Dismissal under Crim.R. 48(B) is appropriate if it “‘serves the interest
of justice.’” Hollins at ¶ 16, quoting Busch, 76 Ohio St.3d at 615, 669 N.E.2d 1125.
In Hollins, we found an abuse of discretion where the trial court dismissed an
indictment without prejudice and refused to issue a material witness warrant for the
victim. Id. at ¶ 18. We reasoned that “the trial court dismissed the case solely
because [the victim] did not want to cooperate with the prosecution” and should
have granted the state’s motion for a material witness warrant. Id. at ¶ 18 and 20.
Here, however, the case was not dismissed solely because the victim did not wish to
prosecute. Rather, the record shows that the trial court complied with Crim.R. 48
and its dismissal was not an abuse of discretion.
Eatmon was indicted on December 13, 2017, and entered custody by
March 5, 2019. Eatmon’s trial was originally set for May 15, 2019. On May 13, 2019,
the trial court granted the state’s motion for continuance to give the state more time
to secure the appearances of Miller and Ford, its main witnesses for trial. Trial was
reset for July 9, 2019, which gave the state nearly eight more weeks to secure its
witnesses. Eatmon remained in custody for over four months between March 2019
and July 2019, while the state took no further action to obtain personal service on
Miller and Ford.
The trial court’s judgment entry in Hollins stated:
Case is called for trial. Victim did not appear for the second time for
trial. The states [sic] motion for material witness warrant is denied.
Case is dismissed without prejudice. Defendant ordered released.
Hollins at ¶ 12.
Further, in Hollins, the trial court stated:
This matter will be dismissed without prejudice, which means, Mr.
Hollins, at any time if the state — if the victim in this case decides to
bring charges, the state of Ohio will be free to bring those charges
against you and bring you right back in custody.
Id. at ¶ 11.
In contrast to Hollins, the judgment entry dismissing the indictment
without prejudice did not rely solely on Miller’s or Ford’s failure to appear. It stated:
State unable to proceed. State’s witnesses failed to appear for trial for
a second time. State’s motion for a material witness warrant is denied.
Case dismissed without prejudice. Defendant ordered released as to
this case only.
Although the court here noted, as in Hollins, that the state’s witnesses
had not appeared at trial, it first noted that the state was unable to proceed, thus
providing a valid basis to dismiss the indictment. Whereas the trial court in Hollins
based its dismissal on the victim’s wish to not prosecute, the trial court here relied
on the fact that the prosecution was unable to proceed on the day of trial after it had
already been granted a continuance two months earlier:
COURT: All right. Well, listen. Back in May, I gave you guys a
continuance to find your witnesses and get them together. The
continuance was at the State’s request, and then I set the case for trial
again today. You still haven’t found your witnesses. They’re still not
cooperating and that isn’t my issue, so I’m not giving you the
continuance.
[STATE]: Well, wait a minute. We have found our witnesses. We know
where they are.
COURT: All right.
[STATE]: They won’t come to court.
COURT: All right. And I’m not issuing a material witness warrant.
[STATE]: Well, we’re not ready to proceed.
COURT: I know. So you’re going to dismiss or I’m going to dismiss.
How do you want it to go?
[STATE]: I’m not dismissing.
COURT: The case is dismissed.
Tr. 22:13-23:14.
Having reviewed the record, we first find that trial court sufficiently
stated its reasons for dismissal pursuant to Crim.R. 48(B). The transcript and
judgment entry demonstrate that the court dismissed the case because the state had
already been granted a continuance, failed to use that time to attempt secure the
appearances of Miller and Ford, and was still not ready to proceed eight weeks later.
We next find that the dismissal served the interest of justice and,
therefore, was not an abuse of discretion. We do not find an abuse of discretion in
dismissing an indictment where, as here, the state admitted it was unable to proceed
with its case on the day of trial. See Columbus v. Storey, 10th Dist. Franklin No.
03AP-743, 2004-Ohio-3377, ¶ 11 (“[W]e conclude that the trial court’s dismissal of
the case does not constitute an abuse of discretion when the city was unable to
proceed with its case.”).
The court held hearings on the state’s motions for material witnesses
and awarded the state an additional eight weeks to personally contact Miller and
Ford and attempt to secure their appearances for trial. The state failed to do so.
While the state was given additional time to contact its witnesses, Eatmon sat in
custody for months. Despite the court’s generosity in granting a continuance to the
state, on the day of trial, the state admitted that it was not prepared to proceed
without Miller and Ford. Contrary to the state’s assertions, the record demonstrates
that the dismissal without prejudice was not based on the witness’ apparent wish to
not prosecute or failure to appear. Rather, the dismissal was based on the state’s
failure to sufficiently demonstrate that the witnesses would not appear at trial and
its representation that it was not able to proceed without those witnesses. We find
that the dismissal under these facts was not unreasonable, arbitrary, nor
unconscionable.
The state’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________________
MARY EILEEN KILBANE, JUDGE
EILEEN T. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR