State v. Amison , 2021 Ohio 1537 ( 2021 )

[Cite as State v. Amison, 2021-Ohio-1537.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2020-08-093
Appellee, : OPINION
5/3/2021
:
- vs -
:
MEZAHN AMISON, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2019-12-1982
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for appellant
M. POWELL, P.J.
{¶ 1} Mezahn Amison appeals from his convictions in the Butler County Common
Pleas Court for murder and felonious assault. For the reasons that follow, this court affirms
Amison's convictions.
{¶ 2} In December 2019, a Butler County grand jury indicted Amison for one count
of murder and two counts of felonious assault. The indictments stemmed from allegations
Butler CA2020-08-093
that Amison shot and killed Zachariah Wallace on December 6, 2019.
{¶ 3} The matter proceeded to a jury trial. Victorie Clifton, Zachariah's girlfriend,
testified about an incident during the evening hours of Thanksgiving Day between Amison
and Zachariah. Earlier that day, Zachariah had gone to retrieve Victorie's dog from a
residence on Manchester Avenue in Middletown. This residence was the home of Amison
and his girlfriend, Crystal Proffitt. Apparently, neither Amison nor Crystal were home when
Zachariah retrieved the dog; Zachariah was let into the home by Crystal's younger brother.
{¶ 4} Zachariah and Victorie returned with the dog to their apartment on Crawford
Street in Middletown. Later that evening, they were outside the apartment. A grey Ford
Taurus, which Victorie recognized as Crystal's vehicle, pulled up. Amison and another
person Victorie did not know emerged from the vehicle.
{¶ 5} Amison and the other person "cornered" Zachariah. They began accusing
him of breaking into Amison's home. Amison displayed a gun and then began gesturing for
Zachariah and Victorie to get into the vehicle. Victorie retreated into the apartment. She
found Zachariah's shotgun and began loading it.
{¶ 6} Next, Victorie heard Zachariah run up the apartment stairwell with someone
following behind him. Zachariah came into the room and she handed him the shotgun. He
positioned himself on a couch so that Amison could see he had a firearm. Amison started
firing from the stairwell. Zachariah returned fire with the shotgun, shooting once. Amison
fired again, five or six times in total. Zachariah shot back once more. Amison left.
{¶ 7} Eight days later, on December 6, 2019, Victorie testified that she and
Zachariah were in the process of moving out of the Crawford Street apartment. At
approximately 6:30 p.m., they left the apartment and began walking to the Manchester
Apartments, located on Manchester Avenue. They were going there to find a friend to help
them move.
-2-
Butler CA2020-08-093
{¶ 8} As Victorie and Zachariah were in the 1600 block of Manchester Avenue,
heading west, Crystal's grey Taurus pulled up alongside them. Victorie saw Crystal in the
passenger seat and Amison's cousin in the back seat. Amison then got out of the vehicle.
He said, "y'all thought this was over." Victorie saw that Amison had a black pistol.
{¶ 9} Victorie and Zachariah turned and began walking away from Amison. Then,
Amison began firing. They continued walking until the second or third shot, and then
Zachariah began to run. He ran between two houses on Manchester Avenue. Victorie
started running a different way. She heard Amison fire a final shot and heard Zachariah
yell.
{¶ 10} Amison fled in the Taurus. Victorie found Zachariah collapsed near the
intersection of Casper Avenue and Inglehart Street. He had been shot several times,
including in both legs and in an arm. Another bullet entered his left lateral chest and exited
the front of his chest.
{¶ 11} Zachariah died from the gunshot wounds. A coroner testified concerning
Zachariah's autopsy. The bullet that entered Zachariah's chest pierced his left lung and
both ventricles of the heart. The coroner opined that Zachariah's cause of death was the
gunshot wound to the chest.
{¶ 12} On the third day of trial – following the state's presentation of its case – the
court and parties met outside the presence of the jury to discuss an issue with one juror.
Juror 212 reported to the court that his vehicle had been vandalized overnight. His windows
had been smashed, and someone had spray painted the vehicle with "gibberish." The juror
informed a Middletown police detective that he had concerns the vandalism might be related
to the trial because, during jury selection, defense counsel had accidentally called him by
name, rather than his juror number.
{¶ 13} Following this revelation, both the state and defense counsel questioned the
-3-
Butler CA2020-08-093
juror to determine how the event had impacted his ability to serve on the jury. Afterwards,
defense counsel indicated that he was satisfied that Juror 212 could remain impartial and
would prefer that he remain on the jury as a part of trial strategy. Ultimately, the court
permitted Juror 212 to continue his jury service.
{¶ 14} Amison rested his case without presenting evidence. Defense counsel asked
for an instruction on voluntary manslaughter, based on the argument that Zachariah
provoked Amison by walking near his home just days after the Thanksgiving Day gunfight.
The court denied this request, concluding that enough time had passed since the incident
for passions to cool.
{¶ 15} The jury returned guilty verdicts on all counts of the indictment. Amison
appeals, raising two assignments of error.
{¶ 16} Assignment of Error No. 1:
{¶ 17} APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO
DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN HE RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 18} Amison argues that defense counsel provided constitutionally defective
representation by failing to strike Juror 212. Amison contends that Juror 212 made
statements evidencing bias, which demonstrated he could not act as an impartial juror.
{¶ 19} To prevail on an ineffective assistance of counsel claim, Amison must
establish (1) deficient performance by trial counsel, that is, performance falling below an
objective standard of reasonable representation, and (2) prejudice, that is, a reasonable
probability that but for counsel's errors, the result of the proceedings would have been
different. State v. Taylor, 12th Dist. Fayette No. CA2018-11-021, 2019-Ohio-3437, ¶ 16,
citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984) and
State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 62. The failure to demonstrate either
-4-
Butler CA2020-08-093
prong is fatal to an ineffective assistance of counsel claim. State v. Kaufhold, 12th Dist.
Butler No. CA2019-09-148, 2020-Ohio-3835, ¶ 54. In considering an ineffective assistance
claim, an "appellate court must give wide deference to the strategic and tactical choices
made by trial counsel in determining whether counsel's performance was constitutionally
ineffective." State v. McLaughlin, 12th Dist. Clinton No. CA2019-02-002, 2020-Ohio-969, ¶
54.
{¶ 20} As to the statements demonstrating bias or impartiality, Amison refers to Juror
212's comment that it made him nervous when defense counsel called him by name and
that he was concerned that the vandalism was related to his jury service. Amison
specifically points to Juror 212's response when asked if he could remain impartial:
"[d]efinitely it raises questions and makes – makes me nervous * * *." Amison contends
that Juror 212's admission to being nervous demonstrated a bias that compromised his
ability to impartially decide the case.
{¶ 21} This court finds that the record does not support the argument that Juror 212
demonstrated bias or an inability to remain impartial. Amison focuses on selective
comments wherein Juror 212 indicated he was nervous. Amison, however, disregards
Juror 212's multiple affirmations that, despite what occurred, he believed he could continue
his jury service and decide the case impartially.
{¶ 22} When asked by the prosecutor if he felt the incident could affect his ability to
be a fair and impartial juror, Juror 212 indicated he was initially nervous but that after
speaking with the Middletown police detective investigating the vandalism, "I think I'm okay."
Juror 212 further assured the prosecutor that the state should have no concerns about
having him serving as a juror. Defense counsel then questioned the juror:
Counsel: * * * as far as this incident goes involving your car,
you still have an open mind with respect to hearing evidence
and hearing arguments and that that this doesn't affect your
-5-
Butler CA2020-08-093
position in terms of your ability to remain impartial?
Juror 212: No, sir.
Counsel: Okay, so same thing. I don't have to worry on behalf
of [Amison] that this is going to somehow prejudice you towards
him or that you're going to – it's going to go on his account?
Juror 212: No, sir.
{¶ 23} Counsel additionally questioned Juror 212 about his contact with the
Middletown police detective concerning her investigation into the vandalism. Juror
212 assured defense counsel that the contact would not influence his opinion with
respect to deciding Amison's case. Finally, defense counsel once again asked Juror
212 if he could remain neutral:
Counsel: * * * what we're looking for is an impartial trial to be
presented to you. So I guess it comes back to that question; do
you think that you can do your duty as a juror and finish that out,
given what's happened?
Juror 212: Yes, sir.
{¶ 24} The court then excused Juror 212 so that the parties could discuss the matter
further. During this conversation, defense counsel indicated his belief that Juror 212 had
been rehabilitated and it appeared to him that he could finish his duty as a juror. Defense
counsel also indicated he wished for Juror 212 to complete his service for purposes
involving trial strategy.1
{¶ 25} Upon review, this court finds that Amison has not established that his
counsel's performance fell below an objective standard of reasonable representation. Juror
212's comments that he was nervous about the situation reflect an understandable emotion
but do not demonstrate bias. He clarified that, although he was nervous, he felt better after
1. Counsel indicated that he thought it would be beneficial to retain Juror 212 because he was a person of
color and probably the closest person on the jury to Amison, in terms of being a peer.
-6-
Butler CA2020-08-093
speaking with the detective. And Juror 212 repeatedly represented to both the prosecutor
and defense counsel that, notwithstanding the incident, he felt capable of performing his
civic duties and would remain impartial. Finally, defense counsel explained his strategic
rationale in retaining Juror 212. This court must give wide deference to strategic trial
decisions and there is nothing in the record that would cause us to second-guess defense
counsel's strategy in this case. This court overrules Amison's first assignment of error.
{¶ 26} Assignment of Error No. 2:
{¶ 27} THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE
OFFENSE OF VOLUNTARY MANSLAUGHTER IN VIOLATION OF MR. AMISON'S
RIGHT TO DUE PROCESS AND A FAIR TRIAL.
{¶ 28} Amison argues that the court erred in failing to instruct the jurors on voluntary
manslaughter because the evidence presented at trial would reasonably support an
acquittal on the murder charge and a conviction for voluntary manslaughter.
{¶ 29} An appellate court reviews a trial court's decision on a requested jury
instruction for an abuse of discretion. State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An
abuse of discretion implies that the court's attitude was unreasonable, arbitrary or
unconscionable. Id., citing State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶ 30} "Voluntary manslaughter is not a lesser included offense of murder, but an
inferior degree of murder." State v. Gray, 12th Dist. Butler No. CA2010-03-064, 2011-Ohio-
666, ¶ 33, citing State v. Shane, 63 Ohio St.3d 630, 632 (1992); State v. Harrop, 12th Dist.
Fayette No. CA2005-12-036, 2006-Ohio-6080, ¶ 11. Nevertheless, "a defendant charged
with murder is entitled to an instruction on voluntary manslaughter when the evidence
presented at trial would reasonably support both an acquittal on the charged crime of
murder and a conviction for voluntary manslaughter." Shane at id.{¶ 31} R.C. 2903.03(A), Ohio's voluntary manslaughter statute, provides: "No
-7-
Butler CA2020-08-093
person, while under the influence of sudden passion or in a sudden fit of rage, either of
which is brought on by serious provocation occasioned by the victim that is reasonably
sufficient to incite the person into using deadly force, shall knowingly cause the death of
another * * *." Consequently, an instruction on voluntary manslaughter is warranted only
when there is "evidence of reasonably sufficient provocation occasioned by the victim * * *."
Shane at paragraph one of the syllabus.
{¶ 32} For provocation to be reasonably sufficient, it must be sufficient to arouse the
passions of an ordinary person beyond the power of his or her control. Id. at 635. "If
insufficient evidence of provocation is presented, so that no reasonable jury would decide
that an actor was reasonably provoked by the victim, the trial judge must, as a matter of
law, refuse to give a voluntary manslaughter instruction." Id. at 634.
{¶ 33} Amison contends the evidence showed that he believed Zachariah had
broken into his home on Thanksgiving Day and that he and Zachariah had thereafter
engaged in a gunfight. Amison further argues that Zachariah was known to have access to
firearms and was walking on Manchester Avenue, in the area of Amison's home. Amison
contends that these facts demonstrated a reasonably sufficient provocation.
{¶ 34} However, the evidence related to the Thanksgiving Day gunfight indicates that
Amison was, at all times, the aggressor. He confronted Zachariah at Zachariah's
apartment. He brandished and fired his weapon first. Zachariah only fired back defensively.
Additionally, eight days elapsed between the gunfight and the December 6 shooting, which
was more than sufficient time to allow Amison the opportunity for reflection and for any fit
of rage to subside or sudden passion to cool. Finally, with respect to the December 6 event,
the evidence reflects that the attack upon Zachariah was entirely unprovoked. Zachariah
and Victorie were simply walking in a public area when Amison emerged from a vehicle and
displayed a pistol. Moreover, Zachariah turned and walked away from Amison, evidencing
-8-
Butler CA2020-08-093
a further, albeit futile attempt, to deescalate the situation. Accordingly, the record contains
insufficient evidence of any provocative acts by Zachariah and therefore the court did not
abuse its discretion in refusing to instruct the jurors on voluntary manslaughter. This court
overrules Amison's second assignment of error.
{¶ 35} Judgment affirmed.
HENDRICKSON and BYRNE, JJ., concur.
-9-