State v. Summerlin , 2017 Ohio 7625 ( 2017 )

[Cite as State v. Summerlin, 2017-Ohio-7625.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160539
TRIAL NO. B-1405335
Plaintiff-Appellee, :
vs. : O P I N I O N.
GREG SUMMERLIN, :
Defandant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 15, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William F. Oswalt Jr., for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} Raising seven assignments of error, defendant-appellant Greg Summerlin
appeals from his convictions, following a jury trial, for the aggravated murder of Wynton
Burton, and the attempted aggravated murder of Wayne Walker. We find none of the
assignments of error to have merit and affirm the trial court’s judgment.
{¶2} On the evening of September 11, 2014, Allen Grace saw Summerlin, his
companion Priest Huffaker, and another person milling about a common area in the
Winton Terrace neighborhood of Cincinnati. Summerlin, whose street name was “Joker,”
and Huffaker approached Burton and Walker. Walker had known “Joker” and Priest for
over a year. He saw that Summerlin was armed with a .357-caliber revolver, and Huffaker
with a semiautomatic pistol. Burton, too, knew Summerlin. Three weeks previously,
Burton had told his father that Summerlin had threatened him.
{¶3} Burton owned a semiautomatic pistol with an iridescent “rainbow” finish.
Summerlin and Huffaker asked to see it. Burton refused. Within minutes, as Walker told
the jury, Summerlin drew his revolver and fired two rounds into Burton, and then two
more as he stood over Burton’s supine form. As Walker, standing nearby, ran to aid
Burton, he was shot in the neck. He saw Summerlin take Burton’s pistol. It was never
recovered.
{¶4} Walker then fled for his life. He heard Summerlin yell to Huffaker,
“Finish him off.” Though Huffaker shot Walker eight times, Walker was able to stumble
into the street where he was found by a patrolling Cincinnati police officer.
{¶5} Walker told paramedics summoned to aid him that “Joker” had shot
Burton. Burton died at the scene. Among other items, police investigators found
Huffaker’s cellular telephone, semiautomatic-pistol shell casings, and a box of .357
ammunition bearing Summerlin’s fingerprints at the scene.
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{¶6} Subsequent investigation led the police to access Summerlin’s Facebook
profile page and cellular telephone records from which they confirmed that Summerlin
was “Joker,” that he carried a handgun, and that he associated with Huffaker. The phone
records placed Summerlin near the crime scene on the night Burton was killed. Over the
next few days, Summerlin texted his associates that there were warrants for his arrest, that
he was “hot,” and that they should not open their doors to any unknown persons. While
still a fugitive, Summerlin spoke on the telephone with an associate, Dathan Hall, then
incarcerated in the Hamilton County Justice Center, about arranging “cheese,” or hush
money for Walker to buy his silence. Summerlin was ultimately arrested in northern
Hamilton County.
{¶7} In a six-count indictment, Summerlin was charged with the aggravated
murder, murder, and aggravated robbery of Burton, and with the attempted aggravated
murder and attempted murder of Walker, with accompanying firearm specifications. The
jury returned guilty verdicts on each count and specification. The trial court afforded
Summerlin the protections of the allied-offenses statute, merging a number of the
offenses. It ultimately imposed a life-without-parole sentence for the aggravated murder
of Burton, to be served consecutively to an 11-year prison term for the attempted
aggravated murder of Walker, and consecutively to a three-year prison term for a firearm
specification. Summerlin appealed.
{¶8} Summerlin argues, in his first assignment of error, that the trial court
erred when it denied his request for new counsel. On the first day of trial, with prospective
jurors waiting outside the courtroom, Summerlin complained to the court that his two
court-appointed attorneys had failed to share all the state’s discovery with him.
{¶9} The decision whether to appoint substitute counsel rests within the
sound discretion of the trial court. See State v. Clark, 1st Dist. Hamilton No. C-020550,
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2003-Ohio-2669, ¶ 8. The trial court is required to make an inquiry into the
defendant’s complaint, including whether the motion was timely and whether there had
been a complete breakdown in communication between the defendant and his counsel.
See id. at ¶ 7; see also State v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001); State
v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 13 (1st Dist.).
{¶10} We note that 16 months before this challenged ruling, the court had
entertained an identical oral motion from Summerlin. At that time, the court had
carefully explained the limitation placed on Summerlin’s counsel by Crim.R. 16(C) but
nonetheless appointed new counsel to represent him.
{¶11} While the trial court’s initial response had been perfunctory, when
Summerlin renewed his motion, the court asked appointed defense counsel to respond.
Summerlin’s experienced trial counsel explained that he and co-counsel had provided
Summerlin with all discovery material that had not been designated “counsel only”
under Crim.R. 16(C). They had met with Summerlin 15 times before trial and had
explained to him the limitations placed on them by the discovery rules. They had
discussed at length their trial strategy and the plea negotiation. Counsel stated that he
did not believe the attorney-client relationship had broken down. Summerlin also
addressed the court, admitting that his counsel were experienced, but again requesting
new counsel.
{¶12} We conclude that the trial court’s decision to deny Summerlin’s ill-
timed, successive request for substitute counsel exhibited a sound reasoning process,
and it will not be disturbed on appeal. See Clark, 1st Dist. Hamilton No. C-020550,
2003-Ohio-2669, at ¶ 7; see also AAAA Ents., Inc. v. River Place Community Urban
Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). The first assignment of
error is overruled.
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{¶13} Summerlin next challenges the trial court’s decision denying him the
opportunity to impeach Grace, a hearsay declarant, with evidence of his prior
convictions. At trial, Burton’s uncle testified, over objection, that Grace had told him
Summerlin was present when Burton and Walker were shot. Grace did not testify at
trial. After the uncle’s direct examination, Summerlin asked to examine Grace’s
criminal record. He intended to use the criminal record, if any existed, to impeach
Grace during the cross-examination of Burton’s uncle.
{¶14} The state responded that Summerlin could not impeach Grace with his
prior convictions without Grace being present at trial and on the witness stand as
mandated in Evid.R. 609(F). That rule requires that a witness’ record of conviction be
shown to him during his examination. The trial court agreed and denied Summerlin’s
motion.
{¶15} But Evid.R. 806(A) provides that when a hearsay statement has been
admitted into evidence, “the credibility of the declarant may be attacked * * * by any
evidence that would be admissible for those purposes if declarant had testified as a
witness.” Under Evid.R. 806(C), a party may use Evid.R. 609 prior-conviction records
to impeach a hearsay declarant even if that declarant does not testify. See State v.
Chambers, 12th Dist. Butler No. CA2010-06-136, 2011-Ohio-1187, ¶ 24; see also State
v. Menton, 7th Dist. Mahoning No. 07 MA 70, 2009-Ohio-4640, ¶ 113; State v. Hatcher,
108 Ohio App.3d 628, 632, 671 N.E.2d 572 (1st Dist.1996) (holding, before the addition of
Evid.R. 806(C), that a hearsay declarant’s criminal conviction could be admitted under
Evid.R. 806 even though she did not testify). Thus the trial court’s refusal to permit
Summerlin access to Grace’s record of prior convictions, if any existed, was error.
{¶16} Here, our record does not reveal whether Grace had any criminal record
that could have been used for impeachment even if the trial court had followed Evid.R.
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806. Evidence of Summerlin’s guilt was overwhelming, and Grace’s declaration was
merely cumulative of other admissible evidence placing Summerlin at the scene of the
shooting, including Walker’s eyewitness testimony, phone records, and Summerlin’s
fingerprints on the discarded ammunition box. Walker testified at trial and was subject
to cross-examination. Thus the trial court’s erroneous ruling did not prejudice
Summerlin. The second assignment of error is overruled.
{¶17} Summerlin next argues, in his third assignment of error, that he was
denied the effective assistance of counsel for various claimed deficiencies of his trial
counsel, including counsel’s comment in closing argument that the jury did not get to
hear “both sides of the story,” and his failure to object to a police detective’s testimony
regarding Grace’s hearsay statements that Summerlin was at the shooting scene.
Summerlin also notes, but does not support with argument here, that trial counsel
failed to object to jury instructions pertaining to the attempted murder of Walker as
alleged in Count 5 of the indictment.
{¶18} To prevail on a claim of ineffective assistance of trial counsel,
Summerlin must show, first, that trial counsel’s performance was deficient and, second,
that the deficient performance was so prejudicial that he was denied a reliable and
fundamentally fair proceeding. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838,
122 L.Ed.2d 180 (1993); see also Strickland v. Washington, 466 U.S. 668, 689, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989), paragraphs two and three of the syllabus.
{¶19} Here, Summerlin’s trial counsel worked diligently to discredit the state’s
theory of the case including effectively highlighting inconsistencies in the testimony of
the state’s witnesses. Counsel’s inartful reference to Summerlin’s failure to articulate
his version of events, commented on by the state in its closing argument, was part of his
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OHIO FIRST DISTRICT COURT OF APPEALS
larger contention that the state had failed to carry its heavy burden of proof. After
reviewing counsel’s brief comment, within the totality of the evidence before the jury,
and more particularly within the context of the entire closing argument, we cannot say
that but for that comment the result of the trial would have been different or that it was
so unreliable that the judgment must be reversed. See Bradley at 142. Moreover,
Summerlin was not prejudiced by the detective’s mention of Grace’s statement, in light
of Walker’s trial testimony. After reviewing the entire record, we hold that Summerlin
cannot demonstrate the requisite prejudice to establish his claim, because the record
does not support a determination that but for these remarks or omissions, the result of
the trial would have been different. See Strickland at 687; see also Bradley at 141–142.
The third assignment of error is overruled.
{¶20} In his fourth assignment of error, Summerlin contends that, over his
timely objection, the trial court erred in instructing the jury on his flight from the scene
of the shootings. He argues that the evidence did not show that he had taken
affirmative steps to avoid detection. We disagree.
{¶21} Evidence of flight is admissible to show consciousness of guilt. See
State v. Taylor, 78 Ohio St.3d 15, 27, 676 N.E.2d 82 (1997). An instruction on flight is
proper if the record contains sufficient evidence to support the charge. Flight means
some escape or affirmative attempt to avoid apprehension including fleeing from the
police or eyewitnesses. See State v. Brundage, 1st Dist. Hamilton No. C-030632, 2004-
Ohio-6436, ¶ 17. The instruction may not raise a presumption of guilt or shift the
burden of proof to the defendant to explain his flight. See State v. McKibbon, 1st Dist.
Hamilton No. C-010145, 2002-Ohio-2041. The decision whether to instruct the jury on
flight lies within the trial court’s discretion. A reviewing court will not reverse that
decision absent an abuse of that discretion. See Brundage at ¶ 18.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} Here, the state’s evidence showed that Summerlin, knowing that the
police would soon arrive, had immediately left the scene of the shootings even though
Burton lay mortally wounded and Walker appeared to be seriously injured. Summerlin
hid from police, removing himself from the city following the shootings. He made
statements that he knew that he was “hot,” acknowledging that the police were looking
for him. The state also adduced evidence that Summerlin or his associates had offered
Walker money not to testify. Moreover, the trial court instructed the jury that it could
find an innocent explanation for Summerlin’s flight.
{¶23} We conclude that the trial court acted within its discretion. Its decision
to give the flight instruction was supported by the evidence adduced at trial and
exhibited a sound reasoning process, and it will not be disturbed on appeal.
See Brundage at ¶ 18; see also AAAA Ents., Inc., 50 Ohio St.3d at 161, 553 N.E.2d 597.
The fourth assignment of error is overruled.
{¶24} Summerlin next argues that the evidence at trial was insufficient to
convict him of the attempted aggravated murder of Walker as alleged in Count 5 of the
indictment. Summerlin contends that, because there was no evidence that Walker had
been robbed, the state had failed to establish an essential element of attempted
aggravated murder. He argues, without citation to any authority, that he could not be
convicted of the attempted aggravated murder of Walker because Walker had not been
robbed.
{¶25} In Count 5, Summerlin was convicted of attempted aggravated murder
under R.C. 2903.01(B) and 2923.02(A), which proscribe purposely engaging in conduct
that if successful would have resulted in the aggravated murder of Wayne Walker while
attempting to commit, or while fleeing immediately after attempting to commit,
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OHIO FIRST DISTRICT COURT OF APPEALS
aggravated robbery. There is no limitation in the indictment that the robbery offense
had to be committed against Walker.
{¶26} The aggravated-robbery charges against Summerlin, contained in
Counts 3 and 4, were governed by R.C. 2911.01(A)(1) and 2911.01(A)(3). Under these
statutes, the state was required to prove that Summerlin, in attempting or committing a
theft offense against Burton, had a deadly weapon on or about his person, and had
brandished or used that weapon, or had inflicted, or attempted to inflict serious
physical harm on Burton.
{¶27} When reviewing the legal sufficiency of the evidence to support a
criminal conviction, we must examine the evidence admitted at trial in the light most
favorable to the prosecution and determine whether the evidence could have convinced
any rational trier of fact that the essential elements of the crime were proven beyond a
reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842
N.E.2d 996, ¶ 36; see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979). In deciding if the evidence was sufficient, we neither resolve evidentiary
conflicts nor assess the credibility of the witnesses, as both are functions reserved for
the trier of fact. See State v. Campbell, 195 Ohio App.3d 9, 2o11-Ohio-3458, 958
N.E.2d 622 (1st Dist.).
{¶28} Throughout its case-in-chief, the state had argued that Summerlin was
complicit with Huffaker in the attempt to kill Walker—an eyewitness to the aggravated
robbery and murder of Burton. Under R.C. 2923.03(F), a complicitor may be
prosecuted and punished as if he were a principal offender. See State v. Corcoran, 1st
Dist. Hamilton No. C-160627, 2017-Ohio-7084, ¶ 29.
{¶29} Here, the record reflects substantial, credible evidence from which the
trier of fact could reasonably have concluded that all the elements of attempted
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OHIO FIRST DISTRICT COURT OF APPEALS
aggravated murder had been proved beyond a reasonable doubt, including that
Summerlein had participated in the theft, at gunpoint, of Burton’s pistol and had
ordered Huffaker to kill Walker to effect their escape. See State v. Sanders, 1st Dist.
Hamilton Nos. C-140579 and C-140580, 2o15-Ohio-5232, ¶ 40. The trier of fact could
reasonably have found that Summerlin committed or was complicit in Huffaker’s
commission of the attempted aggravated murder of Walker and the aggravated robbery
of Burton. See R.C. 2923.03(F); see also Conway at ¶ 36; State v. Johnson, 93 Ohio
St.3d 240, 754 N.E.2d 796 (2001), syllabus. The fifth assignment of error is overruled.
{¶30} Because we have found no error associated with the sufficiency of the
evidence to support a conviction under Count 5, Summerlin’s argument, raised in his
third assignment of error above, that his trial counsel was deficient for failing to object
to the jury instructions on that count must also fail.
{¶31} In his sixth assignment of error, Summerlin challenges the manifest
weight of the evidence adduced to support his convictions. He argues that the state
failed to establish that he was the perpetrator of the offenses. We disagree.
{¶32} Our review of the entire record fails to persuade us that the jury, acting
as the trier of fact, clearly lost its way and created such a manifest miscarriage of justice
that the convictions must be reversed and a new trial ordered. See State v. Thompkins,
78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We can find no basis in this record to
conclude that this is that “exceptional case” in which the jury lost its way. See State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶33} The jury was entitled to reject Summerlin’s theory that evidence tying
him to the crimes was largely circumstantial because he had not been apprehended at
the scene, little physical evidence was introduced, and Walker’s testimony was “not
credible.” The state presented ample evidence to support the convictions, including
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OHIO FIRST DISTRICT COURT OF APPEALS
testimony that Burton had told his father that Summerlin had threatened him. Walker
told paramedics at the scene that “Joker” had shot Burton. He testified at trial that he
saw Summerlin shoot Burton, and that Summerlin had ordered Huffaker to shoot him.
Summerlin’s fingerprints were found on an ammunition box left at the scene.
Communications from Summerlin's cellular telephone made after the killing of Burton
and the wounding of Walker indicated that he thought he was “hot.”
{¶34} As the weight to be given the evidence and the credibility of the
witnesses were primarily for the trier of fact to determine, the jury, in resolving conflicts
in the testimony, could properly have found Summerlin guilty of the charged crimes
and thus did not lose its way. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus. The sixth assignment of error is overruled.
{¶35} In his seventh assignment of error, Summerlin claims that the trial
court erred in admitting into evidence, over his objection, two prejudicial photographs
taken from his Facebook profile page. See Evid.R. 403(A). One photo shows
Summerlin with a gun in his waistband. The other shows Summerlin with Huffaker,
each with a gun. The admission or exclusion of relevant evidence rests within
the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343(1987), paragraph two of the syllabus; see State v. Morris, 132 Ohio St.3d 337, 2012-
Ohio-2407, 972 N.E.2d 528, syllabus.
{¶36} Here, the photos served to identify Summerlin as “Joker” and to
demonstrate Summerlin’s association with Huffaker. In light of Walker’s trial
testimony, the trial court’s decision that the photographs’ probative value was not
substantially outweighed by the danger of unfair prejudice exhibited a sound reasoning
process and will not be disturbed on appeal. See Morris at ¶ 14; see also AAAA Ents.,
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OHIO FIRST DISTRICT COURT OF APPEALS
Inc., 50 Ohio St.3d at 161, 553 N.E.2d 597. The seventh assignment of error is
overruled.
{¶37} Therefore, the trial court’s judgment is affirmed.
Judgment affirmed.
Z AYAS and D ETERS , JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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