IN THE SUPREME COURT OF OHIO

STATE OF OHIO

Plaintiff-Appellee

V.

ANTWAN RHINES

Defendant-Appellant

Case No. 2

On Appeal from The MontgomeryCounty Court of Appeals SecondDistrict

Appellate Case No. C.A. 24417

MEMORANDUM IN SUPPORT OF JURISDICTION/REQUEST FOR LEAVETO FILE BRIEF ON MERITS, OF APPELLANT, ANTWAN RHINES

Daniel F. Getty (0074341)46 East Franklin StreetCenterville, Ohio 45459(937) 610-5940(937) 610-5958 (facsimile)deettyg,gettylawo ffice. com

COUNSEL FOR APPELLANT, ANTWAN RHINES

Lynn Rothstine (0061560) of Montgomery County Prosecutor's Office301 W. Third Street - 5h FloorDayton, Ohio 45422

COUNSEL FOR APPELLEE, STATE OF OHIO

SJPREM.-E, COUR3; F OHIO

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C'<LkIW^4Orf COURT

TABLE OF CONTENTSPage

APPELLANT'S EXPLANATION AS TO WHY THIS CASE INVOLVESSUBSTANTIAL CONSTITUTIONAL QUESTIONS, IS OF GREAT PUBLICINTEREST AND CONCERN AND WHY, IN THE PRESENT FELONY CASE,LEAVE TO APPEAL TO THE SUPREME COURT OF OHIO SHOULD BEGRANTED . . . . . . . . . .. . . . . .. . . . . . . . .. . . . . . . . .. . . . . .. . ... . . . . .. . . . . . . . . . . . . . .. . . . . .. . . . . . 1

STATEMENT OF CASE AND FACTS ...:......................................... 2

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW .............. 8

PROPOSITIONS OF LAW:

1. A TRIAL COURT COMMITS REVERSIBLE ERROR, WHICH MATERIALLYPREJUDICES AN ACCUSED, AND VIOLATES AN ACCUSED'SCONSTITUTIONAL RIGHTS TO A FAIR AND IMPARTIAL TRIAL AND TOCONFRONT AND CROSS EXAMINE THE WITNESSES CALLED AGAINST HIM,WHEN IT DENIES AN ACCUSED THE RIGHT TO ASK THE NAME OF THEWITNESSES PRIOR FELONY CONVICTIONS AND OTHERWISE ALLOWS TRIALCOUNSEL TO MISINFORM THE JURY BY RECLASSIFYING ANDREIDENITFYING THE ACTUAL PRIOR CONVICTION .....................................8

2. WHEN A TRIAL COURT BECOMES AWARE OF POTENTIAL JURORMISCONDUCT IT MUST MAKE AT LEAST A MINIMAL FURTHER INQUIRY TORESOLVE SUCH ALLEGATION SO AS TO ENSURE THAT AN ACCUSED'SCONSITUTIONAL RIGHTS TO A FAIR AND IMPARTIAL TRIAL ARE NOTVIOLATED ....... ..... ...... .. ....... ......... ....:... . ......... ... ......... ... .. ......... . .. . ... ..10

3. WHERE ALL SURROUNDING FACTS AND CIRCUMSTANCESREASONABLY INDICATE THAT A JUROR WAS COERCED DURINGDELIBERATIONS BY THE TRIAL COURT'S DYNAMITEIHOWARD TYPE

CHARGE, THE ACCUSED HAS BEEN DENIED HIS OHIO AND U.S.CONSTITUTIONAL RIGHTS TO A FAIR AND IMPARTIAL TRIAL......................... .......................................................................... ...... 12

4. AN ACCUSED IS DENIED THE EFFECTIVE ASSISTANCE OF COUNSELIN VIOLATION OF HIS OHIO AND U.S. CONSTITUTIONAL RIGHTS TOCOUNSEL, WHEN; 1) APPOINTED TRIAL COUNSEL FAILS TO CALL AS AWITNESS OR OTHERWISE CONSULT ANY EXPERT WITNESSESWHATSOEVER, WHERE COUNSEL HAS KNOWLEDGE OF THEPROSECUTION'S INTENT TO OFFER EXPERT WITNESSES AND SCIENTIFICTESTIMONY AND EVIDENCE, INCLUDING, BUT NOT LIMITED TO DNA, IN ITSCASE IN CHIEF; AND 2) COUNSEL DOES NOT REQUEST A CONTINUANCE

ii

WHEN LEARNING OF EXPERT OR OTHER SCIENTIFIC EVIDENCE DURINGTRIAL ................ : .............................................................................14

CONCLUSION .. ......... .. ..:. ..:.. . ..: .. . .. ....... .. ... . .. . . .... . . ........ .. ... . .. ... ...:... ..15

CERTIFICATE OF SERVICE ........ ...... .. ......:... .. ... .... .. ... .......... ... .. . .. .....16

APPENDIX :..........................................................................:...Appx. Pg.

Opinion of Second District Court of Appeals(July 27', 2012) ..................:.......................................:..............A-1

Judgment Entry of Second District Court of Appeals(July 27a`, 2012) . .... ..... .......... ........ .......... .. ....... .. ... .......... :.. .......A-23

iii

L APPELLANT'S EXPLANATION AS TO WHY THIS CASE INVOLVESSUBSTANTIAL CONSTITUTIONAL QUESTIONS, IS OF GREAT PUBLICINTEREST AND CONCERN AND WHY, IN THE PRESENT FELONY CASE,LEAVE TO APPEAL TO THE SUPREME COURT OF OHIO SHOULD BEGRANTED.

"Injustice anywhere is a threat to justice everywhere. "Martin Luther ginx

Jr.. Letter from Birmingham Jail, April 16, 7963.

Without doubt, the most significant and cherished power of an appellate level

court is the power to correct an injustice created by its lower courts. An injustice has

been created by the lower courts in this current matter and Mr. Rhines and his

undersigned counsel are simply unable to articulate any better explanation as to why this

current appeal should be allowed, other then to allow this Honorable Court to exercise its

powers and thereby correct this serious injustice.

In the present case Mr. Rhines seeks this Court's assistance in correcting the

serious injustice created by the trial court. During Mr. Rhines' trial he wasn't afforded

even the basic rights of a fair and impartial trial, with an impartial judge and jury. Nor

was Mr. Rhines afforded the effective assistance of counsel or the opportunity to confront

and cross examine his accusers. Moreover, as alarming as such may be, it is without

doubt that Mr. Rhines was convicted based upon factual information known by the trial

court and counsel to be false and misleading. Furthermore, during jury deliberations, Mr.

Rhines wasn't even afforded the simple right of having a jury decide his case without

juror misconduct and without the jury being coerced by the Court. Again, Mr. Rhines

and his undersigned counsel find no better reason for this Court to accept this current

appeal other then to correct this obvious and serious injustice, which resulted in Mr.

Rhines being wrongfully convicted and receiving a harsh 11 year prison sentence. The

I

propositions of law and arguments below fully explain and support the substantial

injustice faced by Mr. Rhines.

This court should allow Mr. Rhines to proceed with this appeal so as to restore his

fundamental and basic constitutional right.

H. STATEMENT OF CASE AND FACTS

A. STATEMENT OF THE CASE

This is an appeal of the Second District Court of Appeal's Opinion and Judgment

Entry affirming the Montgomery County, Ohio, trial court's verdict and sentence of

Defendant, Antwan Rhines, for one count of Aggravated Vehicular Homicide, three

counts of Vehicular Assault, one count of Receiving Stolen Property, and one count of

Failure to Stop after an Accident. The Second District Court of Appeals Opinion and

Judgment Entry overnxled Mr. Rhines' appeal and affirmed the Judgment of the trial

Court of the Montgomery County Common Pleas Court Case No. 2010-CR-00809.

The case was initially before the Court of Common Pleas in Montgomery County,

Ohio, and a Jury retumed a guilty verdict on the above named counts on October 27,

2010. Subsequent to the jury verdict, the trial court imposed a total sentence of eleven

years. A timely Notice of Appeal has been filed with this Honorable Court within forty-

five days of the July 27ih, 2012, Second District Court of Appeals Opinion and Judgment

Entry.

B. STATEMENT OF FACTS

On December 12, 2008, a stolen automobile was involved in an accident after

running a red light and thereafter colliding with two vehicles. (Transcript pp 724, 726

(hereinafter Tr.) Tragically, as a result of the accident, the driver of one of the cars struck

2

by the stolen vehicle died and his three passengers suffered serious injuries. (Tr. pp 269,

726).

At the time emergency crew arrived the involved stolen vehicle had no occupants.

(Tr. p. 238). However, one occupant, Runyun Yarbrough, remained on scene, laying at

the front passenger side of the stolen vehicle talking on his cell phone. (Tr. pp 236-239,

284, 305-306) Additionally, another alleged occupant, per witness testimony, Appellant,

Antwan Rhines, was brought to the scene by police officers. (Tr. p. 285) Mr. Rhines was

identified by an eye witness as being a person who exited the stolen vehicle and fled

immediately after the accident. (Tr. pp. 291, 375-424) This witness, however, could

only vaguely identify Mr. Rhines as an occupant of the vehicle by his clothing. (Tr. pp.

385 and generally 375-424). The witness stated he saw Mr. Rhines exit the stolen vehicle

after impact and followed him until police picked him up. (Id.) After taking custody of

Mr. Rhines several blocks away from the accident scene, Police brought him to the

accident scene for identification by the eye witness. (Id.) Subsequently, Mr. Rhines and

the other alleged occupant, Runyun Yarbrough, were then taken for medical care and

questioning. (Tr. pp. 285-286) Both were then released by the detectives.

On May 5, 2010, some one and one-half years later, a Grand Jury was empanelled

in Montgomery County, Ohio, and the Grand Jury returned an indictment against

Defendant, Antwan Rhines, charging the Defendant with one count of aggravated

vehicular homicide, three counts of vehicular assault, one count of receiving stolen

property, and one count of failure to stop after an accident. (Court Docket Mont. Cty.

PRO Case No. 2010 CR 00809). Interestingly, the only other known occupant of the

stolen vehicle, Runyun Yarbrough, was not charged, despite his failure to cooperate with

authorities. (Tr. pp. 898-899)

Mr. Rhines pled not guilty to all charges at his arraignment, and the matter

proceeded to jury trial on October 27, 2010. (Court Docket, Mont. Cty. PRO Case No.

2010 CR 00809) During trial, the state offered the testimony of more then 20 witnesses

to attempt to establish its case in chief (Tr., generally). Of theses numerous and

exhaustive witnesses, only one identifies Mr. Rhines as the driver of the stolen vehicle.

(Tr., generally, and pp. 375-424, 883-885). Although, one witness states he saw Mr.

Rhines exit the stolen vehicle after the accident, at trial he could not specifically identify

Mr. Rhines as the driver. (Tr. pp. 375-424) Only one witness identified Mr. Rhines

specifically as the driver, Runyun Yarbrough. (Tr. pp. 883-884) Ironically, however,

Runyun Yarbrough, is the only other known occupant of the vehicle, has a history of

vehicular assault and extensive felony record, and only began to cooperate with police

days before Mr. Rhines' trial. (Tr. pp. 480-481, 882-885, 898-899).

Unfortunately, despite the fact that Runyun Yarbrough had prior convictions for

vehicular assault, the Court would not allow Defense counsel to ask the name of such

conviction during trial. (Tr. pp. 480-481, 590). The Court did not allow such at the

request of the State, apparently opining that the naming of the offense "vehicular assault"

would have a prejudicial effect on the "witness." (Id.) Accordingly, despite Runyun

Yarbrough's previous convictions of the exact offense charged in this case, the Court

would not allow such during trial. (Id.)

During the Course of trial the State only offered one other witness to attempt to

specifically identify Mr. Rhines as the driver of the stolen vehicle. (Tr., generally)

However, this witness, a limo driver, could only state he saw Mr. Rhines exit the stolen

vehicle. (Tr. p. 392) Moreover, this witness could only identify such through his very

vague clothing description, but not by any physical description of Mr. Rhines

whatsoever. (Tr. p. 393) Interestingly, the State failed to offer any physical evidence to

identify Mr. Rhines as the driver of the vehicle and, quite contrary, could only offer DNA

evidence that tended to show Runyun Yarbrough, the State's star witness, as the driver of

the vehicle. (Tr. pp. 698-703, 708)

During trial the State established that Mr. Rhines was actually the only occupant

and/or alleged driver of the stolen vehicle, both before and after it was stolen, who did

not leave his DNA fingerprint in the stolen vehicle. (Tr. pp. 698-703) In fact, the only

physical evidence offered by the State tends to show that Runyun Yarbrough was the

driver as shown through the DNA he left on the driver's side airbag of the stolen vehicle.

(Id.) Again, Mr. Rhines' DNA was never found in the stolen vehicle nor did any physical

evidence or testimony place him in the driver's seat. (Tr. pp. 698-703, 708)

Trial was not without further issue as throughout the course of trial, Defense

counsel raised several objections as to the failure of the state to provide discovery. (Tr.

pp. 590, 704) According to the record, Defense counsel did not receive the DNA results

finding the owner of the vehicle's DNA on the driver's airbag from the State until during

cross examination of the state's DNA witness. (Tr. p. 704, 1047-1049, 1052-1059).

Moreover, Defense counsel did not receive the second witness statement of Mr. Davis

nor all photographs presented at trial, nor all expert conclusions (Officer McDonald's

second conclusions), despite his numerous attempts to obtain all discovery. (Tr. pp. 790-

808, 1047-1049, 1052-1059,; Motion for New Trial and Supplemental Motion filed

5

November 12, 2010 and December 6, 2010, respectively) Ultimately, however, either

these objections were overruled by the Court, or Defense otherwise chose to proceed with

agreement and withdrawal of the objections to these numerous failures to provide

discovery by the State. (Tr. pp. 590, 704, 790-808) Despite the known failures of the

State to provide discovery and Defense Counsel's belief such severely prejudiced

Defendant's right to a fair trial, Defense counsel proceeded to trial without requesting a

continuance to obtain complete discovery or otherwise requesting a mistrial. (Tr. pp.

590, 704, 790-808, 1047-1083)

After the state rested, Defense raised its Rule 29 Motions, which were summarily

denied by the Court. (Tr. pp. 931-932, 941) The Defense then rested without presenting

any evidence or testimony in Mr. Rhines defense other then its several exhibits. (Tr. pp.

940-941) The jury was given its instructions and sent for deliberations. (Tr: pp. 993-

1012) Overall the jury deliberated for approximately 12.5 hours. The jury reported they

were at a deadlock several times during deliberations the last of which was at 9:05 on the

morning the verdict was actually handed down. (Tr. pp. 1020, 1027) At this time the

Court gave the jury its "Dynamite Charge" at the agreement of Counsel. (Tr. pp. 1027-

1035) Then, after less then one hour of further deliberations subsequent to the

"Dynamite Charge," (and apparently juror to juror threats,) the deadlock was apparently

resolved and Defendant was found guilty on all counts. (Id.; see also Tr. pp 1069-1079)

Subsequent to the jury verdict, Defense counsel filed a Motion to Vacate Verdict

and Order a New Trial based on prosecutorial misconduct for discovery violations as well

as juror misconduct during deliberations. (Tr. pp. 1047-1049, 1052-1059) Additionally,

Defense counsel argued the verdict only resulted from an improper and premature

6

"Dynamite charge" to the jury. (Id.) Defense counsel argued juror misconduct based

upon the jurors use and sharing of notes during deliberations as reported to him by the

bailif£ (Tr. pp. 1064-1068)

Additionally, Defense counsel raised juror misconduct due to threats made to

jurors by other jurors during the process occurring after such "dynamite"charge by the

Court. (Tr. pp. 1069-1079) According to the testimony proffered by Defense counsel,

juror misconduct occurred as jurors threatened other jurors. (Id.) The Court, however,

would not allow counsel to offer the testimony of the threatened juror, Juror No. 12., nor

the testimony of Defense counsel as a witness, nor of the Court bailiff. (Id.) Instead the

Court proceeded to deny the Motion stating the evidence proffered by Defense Counsel

would not be admissible as competent testimony under Rule 606(b). (Id.) Accordingly,

the Court summarily denied the Motion without further investigation on the issues of

juror misconduct. (Tr. p. 1081)

After denying Defense counsel's post trial motions for juror and prosecutorial

misconduct, the Court sentenced Mr. Rhines to a total of eleven years of confinement in

the Ohio prison system. (Tr. p. 1096) Runyun Yarbrough, however, the only other

known occupant of the vehicle, who has an extensive felony record including vehicular

assault and receiving charges, was never charged for his involvement in the current

matter, but only offered as the State's star witness establishing Mr. Rhines as the driver.

(See Montgomery County PRO, generally.).

Mr. Rhines is currently serving his prison sentence and waits for his convictions

to be overhxrned by this Supreme Court of Ohio. Such has been filed timely under the

applicable rules of procedure.

7

III. BRIEF AND CONCISE ARGUMENTS IN SUPPORT OF EACHRESPECTIVE PROPOSITION OF LAW.

1. PROPOSITION OF LAW NUMBER ONE: A TRIAL COURTCOMMITS REVERSIBLE ERROR, WHICH MATERIALLY PREJUDICES AN

ACCUSED, AND VIOLATES AN ACCUSED'S CONSTITUTIONAL RIGHTS TO AFAIR AND IMPARTIAL TRIAL AND TO CONFRONT AND CROSS EXAMINETHE WITNESSES CALLED AGAINST HIM, WHEN IT DENIES AN ACCUSEDTHE RIGHT TO ASK THE NAME OF THE WITNESSES CORRECT PRIORFELONY CONVICTIONS AND OTHERWISE INSTRUCTS TRIAL COUNSEL TOMISINFORM THE JURY BY RECLASSIFYING AND REIDENITFYING THEACTUAL PRIOR CONVICTION

Without doubt an accused has the constitutional guarantees to confront and cross

examine witnesses called against her. (U.S. Constitution Amend. Vl,• Ohio Article

Constitution Art. 1 Section 10) Among these rights is the right to iinpeach the credibility

of witnesses called against him by the state by cross examining the witness regarding past

crimes. (See e.g. Ohio R. Evid. 609; Fed. R. Evid. 609). Moreover, a court can exercise

its discretion and limit prior crimes testimony, but the court's discretion is not boundless.

(Evid. Rules 403 and 609). Further, it seems indisputable that in exercising its discretion

to limit prior crimes testimony, the trial court must not mislead the jury, as such is an

abuse of its discretion. At Mr. Rhines trial, the court not only exceeded its limited

discretion, but also exercised its discretion in a manner that mislead the jury.

In the present case, the states only witness, and star witness for that matter, that

could place Mr. Rhines behind the wheel of the vehicle was Runyun Yarbrough. Runyun

Yarbrough was known to have also been in the vehicle that night through his own

admissions and other eye witness testimony. Apparently, however, even though Runyun

Yarbrough was known to be in the vehicle in question that night and had prior

convictions for vehicular assault, he was not indicted for the accident in question, but

8

instead used as the state's star witness in its case against Mr. Rhines. Accordingly, his

testimony weighed heavily at trial.

During trial the state objected to the use of Runyun Yarbrough's prior

crime of vehicular assault by defense counsel on cross examination: The state argued

that such evidence was inadmissible because its probative value was substantially

outweighed by its prejudicial effect pursuant to Ohio Evidence Rule 403. The trial court

agreed apparently as it thereafter basically instructed trial counsel to only refer to the

crime as an "assault" rather then the actual crime of vehicular assault. Accordingly, the

trial court exercised its discretion under Evid. R. 403, by essentially instructing trial

counsel to mislead the jury. The material prejudice such caused under the circumstances

in this case seems clear and abundant.

As the Second District Court of Appeals correctly held in its decision below,

misleading the jury by instructing counsel to reclassify and thereby effectively lie to the

jury, is an obvious abuse of discretion. The Second District Court of Appeals did,

however, still fail to correct this serious injustice to Mr. Rhines as it somehow found that

the trial court's instruction to mislead the jury did not materially prejudice Mr. Rhines.

Obviously a trial court can not exercise any discretion it may have in favor of misleading

the jury as to any fact, especially the prior felony crimes of the state's star witness.

Instructing Runyun Yarbrough to lie to the jury in regards to his prior crimes was a clear

abuse of discretion of not only the court, but to all trial counsel. Essentially, the trial

court, the prosecuting attorney, and Defense counsel advised/allowed Runyun Yarbrough

to tell half truths (commonly known as lies), to the jury about his prior crime of vehicular

assault. Accordingly, Mr. Rhines was convicted by the known lies of what should have

9

been his co-defender, Runyun Yarbrough. The material prejudice such caused in this

case, and could cause in future cases, seems clear and abundant, albeit not easily

articulated.

The trials court's arbitrary reclassification was not only an abuse of discretion that

seriously violated Mr. Rhines constitutional guarantees, but also an abuse of discretion

that materially prejudiced Mr. Rhines.

2. PROPOSITION OF LAW NUMBER TWO: WHEN A TRIALCOURT BECOMES AWARE OF POTENTIAL JUROR/JURY MISCONDUCT ITMUST MAKE AT LEAST A MINIMAL INQUIRY TO RESOLVE SUCHALLEGATION SO AS TO ENSURE THAT AN ACCUSED'S OHIO AND U.S.CONSITUTIONAL RIGHTS TO A FAIR AND IMPARTIAL TRIAL AND JURY ARENOT VIOLATED.

This is a well settled and indisputable proposition of law, which dates back to

United States Supreme Court opinions as early as 1954. See e.g. Remmer v. United

States, (1954), 374 U.S. 227. As well settled as such law may be, in Mr. Rhines trial the

court ignored this law as did the Second District Court of Appeals during the appellate

process. Both courts fail to even address the legal mandate of the United States Supreme

Court, that trial courts must address allegations of juror misconduct through inquiry. Id.

This seems exceptionally true when the allegations are supported by the court bailiff, a

juror, and Defense counsel. (testimony only briefly proffered by Defense counsel at trial).

Moreover, seemingly the Second District Court of Appeals completely ignored this

argument during Mr. Rhines appeal and in its final Opinion. (Opinion Second District

Court of Appeals, July 27rh, 2012, pp. 3-6). Because of such Mr. Rhines continues to

suffer from this great injustice as he remains incarcerated, despite believed juror

misconduct at his trial.

10

During trial the court allowed juror note taking and gave the jury boiler plate

instructions regarding the use of same during the proceedings. Although note taking in

and of itself may not have substantially prejudiced Mr. Rhines, the fact remains that

during deliberations it is believed that the jurors used their notes as substantive evidence,

shared them, and otherwise violated the trial court's specific instructions.

Notwithstanding using their notes improperly, apparently other juror misconduct

occurred such as juror to juror threats and similar coercive misconduct. However, even

though such was brought to the attention of the trial court through motions and on the

record by Mr. Rhines counsel, the court refused to make the requisite inquiry into the

believed juror misconduct on the basis of a technicality of which the Second District

Court of Appeals seems to concur. (Id). At the hearing on counsel's post trial motion

regarding the juror misconduct, witnesses were available, but the trial court would not

hear testimony based on the technicality of it finding those witnesses (a juror and a court

bailiff) were not competent to testify and because no affidavit was filed with the post trial

motions. Whether or not the trial court was correct in regards to such technicalities,

clearly, under these circumstances the trial court was required to make further inquiry as

to the believed jury misconduct and its failure to do so created a substantial injustice.

These arbitrary decisions of the trial court were affirmed by the Second District Court of

Appeals. (Id.)

Mr. Rhines has the fundamental and basic right to a fair trial with impartial jurors.

The trial courts are charged with the difficult task of ensuring such trial rights of an

accused are preserved and maintained. In the instant case the trial court failed to protect

Mr. Rhines fundamental constitutional rights and the integrity of the process. Under

11

Remmer, the court, especially under the current circumstances, was required to make

further inquiry into the allegations of juror misconduct, which could have been

accomplished by simply hearing testimony. Because the court failed to make such

inquiry, there can never be any resolution whatsoever as to whether juror misconduct did

in fact occur, as might have been supported by wholly competent and trustworthy

individuals, namely the court bailiff, a juror, and Defense counsel. In this case, the issue

was raised and would have seemingly been supported by competent evidence. However,

despite this knowledge, the court did not make fi.irther inquiry as required under Remmer,

and summarily dismissed Mr. Rhines' post trial motions relative to juror misconduct.

Obviously this failure creates serious injustice and is in violation of Mr. Rhines

constitutional rights to a fair and impartial trial of his peers. Therefore, under

circumstances where the trial court has knowledge of believed juror misconduct it must

make an inquiry including, but not limited to hearing testimony and evidence regarding

such allegations.

3. PROPOSITION OF LAW NUMBER THREE: WHERE ALLSURROUNDING FACTS AND CIRCUMSTANCES REASONABLY INDICATETHAT A JUROR WAS COERCED DURING DELIBERATIONS BY THE TRIALCOURT'S DYNAMITE/HOWARD CHARGE, THE ACCUSED HAS BEEN DENIEDHIS OHIO AND U.S. CONSTITUTIONAL RIGHTS TO A FAIR AND IMPARTIALTRIAL.

Inxhe present case two facts are clear. First, it is clear that the jurors were

deadlocked. Whether one juror or eleven differed in opinion, Mr. Rhines' jury was in

deadlock. The second fact that is clear, is that, but for the trial courts coercion, Mr.

Rhines' jury would have remained in deadlock. Accordingly, because the jury only

returned a guilty verdict due to the trial court's coercion, Mr. Rhines' rights to a fair and

iinpartial trial were substantially violated.

12

During jury deliberations, the jury twice informed the trial court it was in

deadlock. Obviously, after two notices of deadlock and eleven and one-half hours of jury

deliberations, a trial court may be within its discretion to issue a Dynamite/Howard/Allen

charge to the jury. (See e.g. State v. Howard (1989), 42 Ohio St.3d 18). However,

obviously the court must always be cautious in doing so, as the possibility exists that such

instruction might coerce the minority juror(s). (Id.; see also, State v. Barrett, 2004-Ohio-

2064, 4' App. Dist. 2004).

In the present case, it is presumed by law that the jurors were coerced due to the

fact that they miraculously returned a unanimous verdict only some 20 to 30 minutes

after hearing the Dynamite charge. (See Rogers v. United States422 U.S. 35, 38 (1975);

Fillip v. Albion Vein Slate Co., 250 U.S. 76, 81, (1919); Jenkins v. United States, 380

U.S. 445 (1965). This remains quite miraculous and mysterious considering this jury

deliberated some 11.5 hours and remained in deadlock up and until the Court issued its

dynamite charge. Only after the trial court issued its coercive charge did Mr. Rhines jury

somehow form unanimity. The coercive effect of the charge in the present case is clear

and presumed by the law in circumstances such as present. (Id.) However, neither the

trial court nor the Second District Court of Appeals cared to recognize or even reasonably

consider this apparent injustice. As such, Mr. Rhines continues to suffer severe and

substantial injustice.

Clearly, where the indisputable facts and reasonable inferences indicate that a jury

was coerced by a trial court's Howard/Allen charge, the accused has not been afforded a

fair trial. In the present case, the dynamite charge issued by the court obviously coerced

at least one juror into a guilty verdict. Because any jury coercion by the court is

13

unacceptable and violates an accused's constitutional rights, coercion through the charge

given by the trial court in the present matter is intolerable.

4. PROPOSITION OF LAW NUMBER FOUR: AN ACCUSED ISDENIED THEBFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OFHISOHIO AND U.S. CONSTITUTIONAL RIGHTS TO COUNSEL, WHEN; 1)APPOINTED TRIAL COUNSEL FAILS TO CALL AS A WITNESS OR OTHERWISECONSULT ANY EXPERT WITNESSES WHATSOEVER, WHERE COUNSEL HASKNOWLEDGE OF THE PROSECUTION'S INTENT TO OFFER EXPERTWITNESSES AND SCIENTIFIC TESTIMONY AND EVIDENCE, INCLUDING, BUTNOT LIMITED TO DNA, IN ITS CASE IN CHIEF; AND 2) COUNSEL DOES NOTREQUEST A CONTINUANCE WHEN LEARNING OF EXPERT OR OTHERSCIENTIFIC EVIDENCE DURING TRIAL

Mr. Rhines, without dispute, had the constitutional guarantees to the effective

assistance of counsel at his trial. (Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, (1984) adopted by State v. Bradley (1989), 42 Ohio St.3d 136) Denial of such, or

otherwise only offering counsel who does not effectively assist an accused is a violation

of The United States and Ohio Constitutions. (Id.) In the current case, although Mr.

Rhines was appointed trial counsel, such counsel did not effectively represent Mr.

Rhines, which cumulatively lead to Mr. Rhines' convictions.

There were numerous instances of defense counsel failures at trial, albeit most

were precipitated by other events of which Defense counsel could not control. Examples

include defense counsel's failure to object to the court's limiting instruction regarding the

prior crimes of Runyun Yarbrough. Furthermore, despite the state's use of complicated

DNA and scientific evidence and testimony, defense counsel failed to retain a

corresponding expert and otherwise failed to even consult such expert. Obviously, and as

the Second District Court of Appeals correctly opined, trial strategy dictates counsel's

use of experts. (Second Dist. App. Rhines Opin. atpp 11-15) However, this leaves open

the question as to why defense counsel didn't prepare or consult with such experts prior

14

to trial. In the present case the failure to call any expert witnesses was clearly not a trial

strategy, but an oversight. This oversight, according to defense counsel, was not caused

by his own lack of dedication to Mr. Rhines case, but because of the state's failure to

provide complete discovery. Either way, in light of the state's intention to use expert

scientific DNA evidence, defense counsel should have consulted a corresponding expert.

Despite the actual reason for this oversight, the fact remains that it was an

oversight and not a trial strategy. This is evident from the trial transcripts and post trial

motions filed by Defense counsel. Clearly, in cases where complicated DNA and

scientific evidence will be presented by the state, it is the duty of defense counsel to

retain or at least consult experts in order to understand and formulate alternate acceptable

scientific theories. Mr. Rhines was facing serious and substantial charges and had the

constitutional guarantee to counsel. His counsel's failures, however, resulted in serious

prejudice and ultimately, the jury's conviction.

IV. CONCLUSION

For the reasons discussed above, this Honorable Supreme Court of Ohio should

accept jurisdiction of this discretionary appeal. Mr. Rhines' constitutional rights to a fair

trial, to confront his accusers, and to the assistance of counsel were severely and

substantially violated and thereby a serious injustice was created. Mr. Rhines respectfully

requests this Court to accept jurisdiction of this discretionary appeal so that he may fully

brief the issues and argue same before this Honorable Supreme Court of Ohio so as to

attempt to correct the injustice created by the lower courts.

Respeptf,ully subm

Daniel F. Getty (00743 ^r Counsel of Record

15

CERTIFICATE OF SERVICE

Undersigned counsel for Appellant, Antwan Rhines, hereby certifies that a trueand correct copy of the foregoing Memorandum In Support of Jurisdiction with Appendixhas been delivered to Counsel for Appellee State of Ohio, Lynn Rothstine, Esq. at theMontgomery County Prosecutor's Office, 301 W. Third Street, 5th Floor, Dayton, Ohio45422, via ordinary U.S. Mail, on this 10th day of September, 2012.

16

VI. APPENDIX

A-I

Flt..E?n

IN THE COURt OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee . C.A. CASE NO. 24417

V.

ANTWAN RHINES

Defendant-Appellant

T.C. NO. 10CR$09

(Criminal appeal fromCommon Pleas Court)

OPINION

Rendered on the 27th day of July , 2012.

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attomey, 301 W.Third Street, 5th Floor, Dayton, Ohio 45422

Attorney#or Plaintiff-Appellee

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 E. Franklin Street, Centerville, Ohio 45459Attorney for Defendant-Appellant

DONOVAN, J.

{41} Defendant-appellant Antwan Rhines appeals his conviction and sentence for

aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2)(a), a felony of the third

degree; three counts of vehicular assault, in violation of R.C. 2903.08(A)(2)(b), all felonies

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRIC'r

2

of the fourth degree; one count of receiving stolen property, in violation of R.C. 2913:51(A),

a felony of the fourth degree; and one count of failure to stop after an accident, in violation

of R.C. 4549,02, a misdemeanor of the first degree. Rhines filed a timely notice of appeal

with this Court on January 3, 2011.

{¶ 2} The basis for the instant appeal occurred on December 12, 2008, when a

stolen Chevrolet Malibu driven by Rhines crashed into two vehicles, a Toyota Sienna

minivan and Pontiac Grand Prix, after running a red light at the intersection of South Main

and Washington Streets in downtown Dayton, Ohio. The driver of the Grand Prix, Dwayne

Bullock, died as a result of injuries sustained in the accident. The remaining three

passengers: Bullock's wife, Dara; BuBock's brother, Joseph Bullock; and Joseph's fiancee

(nowwife), Amanda, sustained serious injuries requiring long term medicaltreatment. The

driver of the Sienna, Tammy Dolphin, did not suffer any injuries in the collision.

(13) After crashing into the two vehicles, Rhines fled the scene of the crash on foot

and was apprehended by Dayton Police Sergeant Mark Ponichtera at the intersection of

51b Street and Main, a short distance from the accident. Sgt. Ponichtera testified that

Rhines was walking with a pronounced limp when he was apprehended. Rhines also met

the description of an individual observed climbing out of the stolen Malibu and fleeing the

scene of the crash.

(141 On May 5, 2010, Rhines was indicted for aggravated vehicular homicide, three

counts of vehicular assault, one count of receiving stolen property, and one count of failure

to stop after an accident. At his arraignment on May 25, 2010, Rhines pled not guilty to

all of the counts in the indictment. After a five day jury trial beginning on October 18, 2010,

and ending on October 22, 2010, Rhines was found guilty of all counts in the indictment.

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3

On December 30, 2010, the trial court sentenced Rhines to five years in prison for the

aggravated vehicular homicide, eighteen months in prison for each count of vehicular

assault, eighteen months in prison for receiving stolen property, each of those counts to

run consecu6ve to one another, for an aggregate term of eleven years in prison. The trial

court sentenced Rhines to six months in prison for failure to stop after an accident, but

ordered the sentence to run concurrent with the other counts. The trial court also

suspended Rhines' drivers license for twenty-five years.

{^( 5} It is from this judgment that Rhines now appeals.

{¶ 6} Rhines' first assignment of error is as follows:

{T 7} "JUROR MISCONDUCT OCCURRED DURING JURY DELIBERATIONS TO

THE DETRIIv1ENT OF DEFENDANT, AND AS SUCH, DEFENDANT WAS DENIED A FAIR

TRIAL."

(18) In his first assignment, Rhines contends that the trial court erred by allowing

members of the jury to takes notes during the trial. Rhines further argues that the trial

court erred when it allowed the jurors to use their notes as substantive evidence during

deliberations. Rhines asserts that this occurred because the trial court failed to instruct the

jury regarding the use of their notes during deliberations.

(19) A frial court has the discretion to either permit or prohibit note taking byjurors.

State u. Waddell, 75Ohio St.3d 163,1996-Ohio-100, 661 N.E.2d 1043. Rhines complains

that the jurors should not have been allowed to take notes, citing general concerns over

the potential for distracting jurors from concentrating on witnesses and the evidence.

Rhines argues that the facts presented attrial were relatively uncomplicated. Thus, Rhines

asserts that it was unnecessary for the jurors to take notes. Rhines, however, failed to

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4

object to the trial court's decision to permit note-taking by jurors at any point during trial.

By failing to object at trial, Rhines has waived ali but "plain error." State v. Waddell, 75 Ohio

St.3d at 166. Plain error does not exist unless but for the error the outcome of the trial

clearly would have been otherwise. State v. Wickline, 50 Ohio St.3d 114, 552 N. E.2d 913

( 1990); State v. Long, 53 Ohio 8t.2d 91, 372 N.E.2d 804 (1978).

{R 101 Initially, we note that there is no requirement that a case be deemed

"complioated" before jurors are permitted to take notes. Nevertheless, we note that the

record establishes that over twenty witnesses testified during the course of the five-day

ti•iat. In our view, the large number of witnesses who testified coupled with the length of

the trial supports the trial court's decision to permit the jury to take notes, and the court did

not abuse its discretion in this regard. Additionally, Rhines has failed to establish that but

for the trial court's decision to permit note taking by the jurors, the outcome of the trial

would have been any different.

{¶ 11} We further note that, contrary to Rhines' assertion in his merit brief, the trial

court did properly instruct the jury regarding note taking and its use of said notes during

deliberations. During its preliminary instructions to the jury immediately prior to the

beginning of the trial, the trial court instructed the jury as follows:

The Court: During this trial the court will permit the jurors to take notes. 1f

you desire to do so, you may do that. No juror is required to take notes. The

taking of notes is entirely a matfer of personal choice for each juror. The

jurors who choose not to take notes must not be influenced by those who do

take notes. The fact that the notes taken by a juror support his or her

recollection in no way makes his or her memory more reliable than that of

THE COURT OF APPEALS OF OIiIOSECOND APPELLATE niSTRICT

5

other jurors who do not take notes.

Notes are merely a memory aid, and must not take precedence over your

independent memory of the facts. Do not let the taking of notes divert your

attention from what is being said or is happening at the courtroom during the

trial. Some persons believe that taking notes is not helpful because it may

distract a person's attention and interfere with hearing all the evidence. All

notes are confiden6al for the consideration of that juror only. Each note

taker will leave his or her notes on the chair during breaks and at the end of

the day will be collected by the Bailiff. When deliberations take place you w(ill

be permitted to take your notes into the jury room and use them as a

memoryaid. All notes will be returned to the Bailiff for destruction at the time

that the jury is discharged.

{¶ 12} The preliminary instruction provided by the trial court mirrors the language

set forth in Ohio Jury Instruction-CR 401.19 regarding note taking by jurors during trial.

Accordingly, the trial court properly instructed the jury regarding its ability to take notes

du(ng the trial.

1113) Lastly, Rhines asserts that the jurors improperly used their notes during

deliberations by sharing the contents of their notes with one another. Thus, Rhines argues

that the trial court erred when it overruled his motion for new trial based upon his claim of

juror misconduct with respect to the alleged sharing of notes taken during trial. With the

exception of his unsupported allegation that jurors improperly shared and compared their

notes during deliberations, Rhines did not adduce any evidence in the record which

establishes that the jurors who took notes shared the contents of their notes with other

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6

jurors. We also note that Rhines failed to attach any affidavits to his motion for a new trial

which support his conten8on that the jurors acted improperly. Simply put, there is no

evidence of how the jurors used their notes during deliberations, if, in fact, any notes were

even taken. Accordingly, the trial court did noterrwhen it permitted the jurors to take notes

during the trial after providing thejury with the proper preliminary instruction taken verbatim

from OJI-CR 441,19.

{114} Rhines' first assignment of error is overruled.

{q 15} Rhines' second assignment of error is as follows:

{¶ 16} "THE TRIAL COURT PREJUDICED DEFENDANT THROUGH ITS

IMPROPER USE OF THE DYNAMITEIHOtNAFtD CHARGE TO THE JURY."

{¶ 171 In his second assignment, Rhines argues that the trial court erred when it

gave a dynamite/Howard charge to the jury after learning that the jury was deadlocked.

State v. Howard, 42 Ohio St.3d 18, 537 N.E. 2d 188 (1989). Specifically, Rhines asserts

that the trial court violated his right to a fair trial by coercing an othenuise deadlocked jury

into rendering a guilty verdict.

(118) The record indicates that prior to giving the dynamite charge to thejury, the

trial court asked both parties if they agreed with the court's decision to provide the

supplemental Howard instruction to the jury. Both parties agreed on the record, and the

trial court subsequently gave the dynamite charge to the jury in open court. Neither the

State nor the defense objected to the instruction as provided by the trial court to the jury.

(119) By acquiescing to the trial court's proposal to submit the dynamite charge to

the jury, Rhines waived any error made by the trial court regarding the charge and cannot

now complain that he was prejudiced. Furthermore, we note that the jury had been

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTR9CT

deliberating for over eleven hours when the instruction was given, hardly premature under

such circumstances.

{120} Rhines' second assignment of error is overruled.

{¶ 21} Rhines' third assignment of error is as follows:

{¶ 22) "DEFENDANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE."

1123) In his third assignment, Rhines argues that his conviction is against the

manifest weight of the evidence.

(1241 As this Court has previously noted, in a weight of the evidence challenge, an

appellate court:

°[R]eview[sjthe entire record, weighsthe 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 reversed

and a new trial ordered. The discretionary power to grant a new trial should

be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction. State v. Thornpkins (1997), 78 Ohio St.3d

380, 387, quoting State v. Mart+n (1983), 20 Ohio App.3d 172, 175." State v.

Pierre, 2d Dist. Montgomery No. 18443, 2001 WL 220239 (March 2, 2001).

{¶ 25}Although Thompkins explicitly permits this Court to consider credibility when

confronted with an argument that the verdict is againstthe manifest weight of the evidence,

such consideration is not unbounded. We have explained the limited role of an appellate

court in reviewing issues of credibility in weight of the evidence challenges as follows:

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8

Because the factfinder, be it the jury or'"" trial judge, has the

opportunity to see and hear the witnesses, the cautious exercise of the

discretionary power of a court of appeals to find that a judgment is against

the manifest weight of the evidence requires that substantial deference be

extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses

is within the peculiar competence of the factfinder, who has seen and heard

the witness. Contrastingly, the decision as to which of several competing

inferences, suggested by the evidence in the record, should be preferred, is

a matter in which an appellate judge is at least equally qualified, by reason

and experience, to venture an opinion. Therefore, although this distinction

is not set forth in Thompkins, supra, we conclude that a decision by a

factfinder as to which testimony to credit, and to what extent, is a decision

that is en6tied to greater deference than the decision as to how much logical

force to assign an inference suggested by that evidence - in short, how

persuasive it is. State v. Pferre, 2d Dist. Montgomery No. 18443, 2001 WL

220239 (March 2, 2001).

(¶ 26) During the trial, the key issue before the jury was whether Rhines was driving

the stolen vehicle which caused the accident and resulted in the death of Dwayne Bullock,

as well as serious injuries to three other people in his vehicle. In this regard, the State

principally relied on the testimony of David Humphrey, a limousine driver who was present

in the parking lot of a McDonalds Restaurant directty across from where the collision

occurred. Humphrey testified that immediately prior to the collision, he observed a

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

Chevrolet Malibu with two individuals in the front seat speeding down Washington Street

at approximately sixty-five to seventy miles per hour. Humphrey stated that the Chevrolet

ran a red iight and then crashed into a white minivan and then hit the Pontiac driven by

Dwayne Bullock which brought all of the vehicles involved in the collision to a stop. In the

initial moments after the crash, Humphrey stated that he observed a black male wearing

dark pants, a brown jacket, and a knit hat climb out of the driver's side of the vehicle and

begin walking towards the back of the BP gas station on the opposite side of the street.

Humphrey testified that the man, later identified as Rhines, was walking quickly but with

a pronounced limp.

(127) Humphrey testified that he got back in his limousine and tried to follow the

man fleeing the scene of the collision. Humphrey called 911 to report the coltision, and the

fleeing driver. Humphrey gave the 911 operator a description of the man based on the

clothes he was wearing. The operator told Humphrey to go back to the scene of the

collision and to stop following the suspect. Humphrey testified that he followed the man

for a moment longer, but eventually returned to scene of the collision and informed the

emergency personnel there of what he had witnessed. Upon returning to the scene,

Humphrey observed a black male, later identified as Runyon Yarborough, lying next to the

passenger side of the Chevrolet being attended to by emergency personnel.

(1281 After observing Rhineswalking/limpirng northbound on Main Streetand taking

him into custody, Sgt. Ponichtera arrived at the scene of the collision. Based on his

clothing, Humphrey identified Rhines as the man he observed climb out of the driver's side

of the Chevrolet and leave the scene by walking northbound on Main Street. We note that

although Rhines' DNA was not found in the Chevrolet, he was observed by Humphrey to

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DlSTR1CT

10

be the first individual to climb out of the vehicle on the driver's side within seconds of the

collision. Humphrey's testimony clearly supports the State's theory that Rhines was the

driver of the stolen Chevrolet which caused the collision that took Dwayne Bullock's life.

(129) It is undisputed that Yarborough's DNA was found on the driver's side airbag.

Nevertheless, the State presented evidence that the passenger side door would not open,

thus requiring Yarborough to climb out the driver's side door and providing an exp9anation

as to how his DNA was deposited on the deployed airbag. Mary J. Cicco, a forensic expert

from the Miami Valley Regional Crime Lab, testified that the absence of Rhines' DNA from

the deployed airbag on the drivers side did not preclude him from being the driver of the

vehicle, noting that no DNA was deposited on the airbag deployed on the passenger side.

11130) Upon review, we conclude that Rhines' conviction is not against the manifest

weight of the evidence. The credibility of the witnesses and the weight to be given their

testimony were matters for the jury to resolve. Rhines presented no evidence at trial.

Instead, Rhines attempted to undermine the State's case by discrediting the testimony of

the various individuals who witnessed all or part of the collision and its aftermath.

Specifically, Rhines attempted to establish that Yarborough was the driver of Chevro{et.

We cannot say that the jury lost its way simply because it rejected Rhines' contention that

Yarborough was the driver. Humphrey observed the collision and positively identified

Rhines as the individual he saw climb out the vehicle on the driver's side and flee the

scene.

{¶ 311 We note that witness Michael Davis testified that he did not see the collision

occur nor did he arrive at the scene until three to five minutes after the crash. Upon

arriving at the scene, however, he observed a single black male crawl out of the driver's

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ir

side of the Chevrolet, walk to the passenger side of the vehicle, and lay down on the

ground. WhenHumphreyreturnedtothesceneshortlyafterfollowingRhines,heobserved

Yarborough laying on the ground on the passenger side of the vehicle. As stated

previously, Humphrey testified that Rhines climbed out of the driver's side of the vehicle

within seconds after the crash occurred, well before Davis arrived at the scene and

observed Yarborough climb out of the vehicle. This testimony supports the State's theory

that Rhines was driving the vehicle when the collision occurred because he climbed out of

thedriver'ssideoftheChevroletfirst. Havingreviewedtheentirerecord,wecannotclearly

find that the evidence weighs heavily against a conviction, or that a manifest miscarriage

of justice has occurred.

(132) Rhines' third assignment of error is overruled.

{¶ 33) Rhines' fourth assignment of error is as follows:

{¶ 34} "DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL

COUNSEL."

{¶ 35} In his fourth assignment, Rhines argues that he received ineffective

assistance for the following reasons: 1) defense counsel did not call any witnesses for

Rhines' case-in-chief, namely an accident re-constructionist; 2) defense counsel failed to

object tojuror note-taking at the beginning of the trial; and 3) defense counsel failed to ask

the trial court to provide a limiting instruction regarding juror note-taking.

{136} "We review the alleged instances of ineffective assistance of trial counsel

underthe two prong analysis set forth in Strickland v. Washington, 466 U.S. 668,104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v.

Bradley (1989), 42 Ohio St.3d 136, ***. Pursuant to those cases, trial counsel is entitled

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

12

to a strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel's conduct fell below an

objective standard of reasonableness and that his errors were serious enough to create

a reasonable probability that, but for the errors, the result of the trial would have been

different. ld. Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel's perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel." (Internal

citation omatted). State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-dhio-493, ¶ 31.

(137) An appellant is not deprived of effectEve assistance of counsel when counsel

chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown, 38

Ohio St.3d 305, 319, 528 P1.E.2d 523 (1988), The test for a claim of ineffective assistance

of counsel is not whether counsel pursued every possible defense; the test is whether the

defense chosen was objectively reasonable. Stricklano'v. Washington, 466 U.S. 668, 104

S.Ct. 2052. A reviewing court may not second-guess decisions of counsel which can be

considered matters of trial strategy. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128

(1985). Debatable strategic and tactical decisions may not form the basis of a claim for

ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had

been available. State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).

(138) "The failure to call an available witness whose testimony could acquit the

defendant can constitute ineffective assistance of counsel. Nevertheless, there is a

presumption that any challenged action on the part of defense counsel 'might be

considered sound trial strategy.' Decisions regarding the calling of witnesses will often fall

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

13

within the range of acceptably sound trial strategy." State v. Johnson, 2d Dist. Montgomery

No.16803,1998 WL 453768 (Aug. 7,1998), (citations omitted). The Ohio Supreme Court

has recognized that whether to call an expert is a matter of trial strategy, and "the failure

to call an expert and instead rely on cross-examination does not constitute ineffective

assistance of counsel." State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993);

see also State v. Thompson, 33 Ohio St.3d 1, 10-11, 514 N. E.2d 407 (1987).

{¶ 39} After a thorough review of the record, we conclude that Rhines has failed to

establish that he was prejudioed by his counsel's failure to call any expert witnesses andlor

an accident re-constructionistin order to challenge the State's case. As to the DNA expert

testimony, the State's forensic expert, Mary Cicca, testified that her tests would establish

only that DNA was or was not present on an item, but not the manner in which it was

deposited in a specific area. Cicco testified that she discovered the DNA of Yarborough

on the driver's side airbag, as well as the DNA of the stolen vehicle's owner's son, Radwan

Jaber. Cicco testitied that Rhines' DNA, however, was not found anywhere in the vehicle.

The absence of Rhines' DNA does not establish who was operating the vehicle. Cicco

testified that if the airbag deployed and hit Rhines in an area of his body where he was fully

clothed, then she would not expect to find a DNA transfer. Defense counsel did aptly elicit

testimony from Cicco that Rhines' DNA was not found anywhere in the vehicle, while

Yarborough's DNA was found on the driver's side airbag, thus permitting an inference that

Rhines was not in the vehicle when it crashed or was not driving it. Such testimony was

arguably helpful to the defense, and defense counsel was not deficient for failing to caH its

own expert in this regard.

(140) Similarly, defense counsel was not ineffective for failing to call an accident

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14

re-constructionist to testify. Initially, we note that the State presented the testimony of

eyewitnesses who observed the crash as it occurred, namely Eric Suttman and David

Humphrey. The witnesses were able to provide the jury with a detailed description of the

crash itself and the individuals involved. Significan8y, an accident re-constructionistwould

be unable to offer any testimony going to the heart of the case; that is, who, in fact, was

driving the vehicle when the deadly collision occurred. Thus, defense counsel was not

ineffective for#ailing to retain the services of an accident re-constructionist to testify during

trial.

{¶ 41} Rhines also argues that it was deficient for his counsel to fail to request a

continuance in order to retain an expert DNA witness and an accident re-constructionist.

We have alreadyaoncluded that defense counsel was not ineffective for failing to call his

own DNA expert and accident re-construckionist. Furthermore, we cannot find that counsel

was ineffective for failing to request a continuance in order to retain his own expert

testimony. We note that the record is not clear as to when Rhines' counse! learned about

the DNA testimony, but nevertheless, the absence of Rhines' DNA was arguably

exculpatory, not incriminating. Thus, any decision to proceed to trial was a matter of trial

strategy. Therecordestablishesthatdefensecounselvigorouslycross-examinedallofthe

State's witnesses, and Rhinesfails to demonstrate how any additiohal preparation time and

expert consultation would have changed the outcome of the case.

{t 42) Lastly, Rhines asserts that his trial counsel was ineffective for failing to object

to the trial court's decision to permit the jurors to take notes during the trial. We have

already found, however, that the trial court did not err when it permitted the jury to take

notes. Moreover, contrary to Rhines' repeated assertion, the trial court did, in fact, provide

THE COURT OF APPEALS OF O}iIOSECOND APPELLATE DISTRICT

15

thejurywith a limiting instruction regarding the jurors'decision to take and use notes during

trial and deliberations. Rhines has failed to establish that his counsel's performance fell

below an objective standard of reasonableness.

{143} Rhines' fourth assignment of error is overruled.

{Q 4d} Rhines' fifth assignment of error is as follows:

{4i 45} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN THE

COURT PREVENTED DEFENDANT FROM NAMING THE WITNESS, RUNYON

YARBOROUGH'S PRIOR CONVICTION FOR VEHICULAR ASSAULT."

{¶ 461 In his fifth assignment, Rhines contends that the trial court abused its

discretion when it limited defense counsel's impeachment of Yarborough pursuantto Evid.

R. 609(A), by refusing to permit defense counsel to elicit from Yarborough the fact of his

prior conviction for vehicular assault. The trial court ruled that the "evidence [was] being

used by "'" the defense to show that [Yarborough's] perhaps guilty; he's the perpetrator

because he's got a prior similar conviction." Alternatively, the trial court permitted defense

counsel to refer to the prior vehicular assault conviction as simply, an "assault."

(1147) With respect to the admission or exclusion of evidence, the trial court has

broad discretion and its decision in such matters will not be disturbed by a reviewing court

absent an abuse of discretion that has caused material prejudice. State v. Noling, 98 Ohio

St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88.

(148) As the Supreme Court of Ohio has determined:

"Abuse of discretion" has been defined as a attitude that is unreasonable,

arbitrary or unconscionable. It is to be expected that most instances of

abuse of discretion will result in decisions that are simply unreasonable,

l'HE COURT OF APPEALS OF 61410SECOND APPELLATE DISTRICT

16

rather than decisions that are unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that would

support that decision. It is not enough that the reviewing court, were it to

decide the issue de nova, would not have found that reasoning process to

be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result. AAAA Enferprises, Inc. v. River Place

CommunityRedevetopment, 50 Ohio St.3d 157,161, 553 N.E.2d 597 (1990).

(¶ 491 Evid. R. 609(A)(1) states as follows:

(A) General rule

For the purpose of attacking the credibility of a witness:

(1) subject to Evid. R. 403, evidence that a witness other than the

accused has been convicted of a crime is admissible if the crime

was punishable by death or imprisonment in excess of one

year pursuant to the law under which the witness was convicted.

{Zj S0} Evid.R. 403(A) provides:

Exclusion mandatory. Although relevant, evidence is not

admissible if its probative value is substantially outweighed by

the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.

{¶ 51} In the instant case, Rhines argues that the trial court should have permitted

him to introduce evidence of Yarborough's prior conviction for vehicular assault. Rhines

asserts that he "simply wanted to impeach [Yarborough]'s credibility for truthfulness by

THE COURTOFAPPF.ALS OF OHIOSECOND APPELLATE DISTRICT

17

introducing the fact that [he] has a prior conviction for vehicular assault," the exact same

crime for which Rhines had been charged. As stated previously, the central issue in this

case was who was driving the vehicle when it crashed.

(152) We conclude that the trial courf erred when it reclassified Yarborough's

vehicular assault conviction as simple "assault". Any danger that the jury would

misconstrue the prior conviction as substantive evidence that Yarborough was the driver

of the Chevrolet Malibu was de minimis as Yarborough was not on trial nor under

indictment. Thus, the "prejudicial impact" of this evidence was limited. There is no

justification for calling the prior conviction something different that what it is. Although the

new labeling of Yarborough's prior conviction was an abuse of discretion, we cannot find

that it constituted material prejudice to Rhines.

{¶ 53) Rhihes' frfth assignment of error is overruled.

{¶ 54} Rhines sixth and final assignment of error is as follows:

{¶ 55} "THE STATE'S BLATANT AND CONTINUOUS DISCOVERY VIOLATIONS

CONSTITUTED PROSECUTORIAL MISCONDUCT AND DENIED DEFENDANT A FAIR

TRIAL."

{¶ 56) In his final assignment, Rhines argues that the State committed misconduct

when it failed to disclose the following evidence prior to trial, to wit: 1) evidence that the

DNA of the son, Radwan Jaber, of the owner of the stolen vehicle was found inside the

Chevrolet; 2) the second report filed by Officer Derric D. McDonald indicating that Rhines,

not Yarborough, was the driver of the stolen Chevrolet; and 3) the second statement made

to police by witness Davis.

{¶ 57} In analyzing claims of prosecutorial misconduct, "the touchstone of analysis

THE COURT OF APPEALS OF OHIOSECOND APPELLATE D3STBI4"T

18

'is the fairness of the trial, not the culpability of the prosecutor.'" Smith v. Phillips, 455 U.S.

209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). Where it is clear beyond a

reasonable doubt that a jury would have found the defendant guilty even absent the

alleged misconduct, the defendant has not been prejudiced and his conviction will not be

reversed. See State v. Loza, 71 Ohio St.3d 61, 78, 1994-Ohio-409, 641 N.E.2d 1082. In

reviewing allegations of prosecutorial misconduct, we review the alleged wrongful conduct

in the context of the entire trial. Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91

L.Ed.2d 144 (1986).

{¶ 58) Initially, we note that defense counsel admitted that he and the attorneys for

the State had a conference prior to trial during which defense counsel was permitted to

inspect all of the State's discovery "page by page." Regarding the information in Cicco's

report disclosing the presence of the Radwan Jaber's DNA in the vehicle, we find that such

evidence was not probative of who was driving the Chevrolet on the night of the crash.

Jaber was the owners son, and it is no surprise that his DNA was present in the vehicle.

Additionally, there is no evidence that Jaber was in the vehicle when the crash occurred.

Thus, we find that the State's alleged failure to disclose the presence of Jaber's DNA in the

stolen vehicle did not constitute misconduct and had no prejudicial effect on Rhines' trial.

{¶ 591 Wfth respect to Officer McDonald's second report, defense counsel

acknowledged learning of the second report prior to trial. Although defense counsel

argued that the State was rather dilatory in disclosing the second report, he acknowledged

that the late receipt of the document did not necessitate a continuance to allow for

additional trial preparation. Further, defense counsel was able to cross-examine Officer

McDonald extensively regarding the second report. Substantively, the reports were the

THE COURTOF APPEALS OF OH1OSECOND APPELLATE DISTRICT

19

same except as to t>fficer McDonald's conclusion regarding who was driving the vehicle.

Officer McDonald's explanation for the discrepancy in conclusions was based on DNA

analysis versus witness accounts.

(1601 Lastly, Rhines argues that the State committed a discovery violation when

it failed to disclose to defense counsel a second statement made by witness Davis which

purportedly contradicted information he provided to police in his first statement. We note

thatthe State denied that it failed to provide defense counsel with Davis' second statement

prior to trial. Even if the State did, in fact, fail to turn over the second statement, the record

establishes that this was due to a miscommunication between the parties, and not any

malicious intent on the part of the State. Furthermore, at the pre-trial conference where

defense counsel was permitted to inspect the State's discovery, the prosecutor asked

defense counsel if he was in possession of Davis' statements, and defense counsel stated

that he was. The State informed the trial court that it assumed that defense counsel was

referring to both of Davis' statements. Defense counsel stated that he agreed with the

State's interpretation of their earlier conversation. Moreover, it appears that defense

counsel was able to cross-examine Davis at length regarding any discrepancies between

his first and second statements. Upon review, it is clear that Rhines was not prejudiced

by the State's alleged failure to provide Davis' second statement to police regarding the

accident.

{¶ 61) Rhines' sixth and final assignment of error is overruled.

{^( 62) All of Rhines' assignments of error having been overruled, the judgment of

the trial court is affirmed.

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FAIN, J., concurring:

{163} I concur fully in Judge Donovan's opinion for the court. I write separately

merely to clarify my reason for concluding that the trial court's error in re-naming the

witness Yarborough's Vehicular Assault felony conviction as a conviction for Assault was

harmless.

(164) Rhines conceded in oral argument that the only legitimate purpose for

introducing Yarborough's conviction for Vehicular Assault was to impeach his testimony,

not to support Rhines's contention that Yarborough, not Rhines, was the driver of the

vehicle in this case. Unless a prior felony conviction is for a crime of moral turpitude,

involving dishonesty, the name of the offense does not establish any greater likelihood that

the witness is a dishonest person, beyond the mere fact that the witness has committed

a felony in the past. Here, in addition to the mis-named "Assault" conviction, Rhines was

able to establish that Yarborough had been convicted in the past of multiple felonies.

Therefore, the misnomer of Yarborough's Vehicular Assault conviction was not likely to

have any impact on the jury's assessment of Yarborough's credibility. In other words, that

one of Yarborough's multiple felony convicfions was Vehicular Assault, not Assault, would

not have done any greater damage to Yarborough's credibility in the eyes of the jury.

Therefore, I agree that the error was harmless.

HALL, J., concurring:

(16511 concur with the analysis in the opinion for the court, and the concurring

opinion, which leads to affirrning the judgment. But I differ somewhat with respect to

whether the trial court erred by restricting impeachment of a witness by limiting the name

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DiSTRtCT

21

of that witness's prior conviction. In my view, the trial court did not abuse its discretion by

finding that the probative value of that Evid.R. 609(A)(1) evidence was, subject to Evid. R.

403, substantia0y outweighed by the danger of unfair prejudice. I agree that reclassifying

the offense of "vehicular assault" as an "assault" rather than simply referring to it as an

"unspecified felony," could be incorrect. However, once the trial court ruled that the term

"vehicular assaulY' would not be admissible, the name to call the offense, i.e. "assauft,"was

agreed to by counsel. (T. 481). Accordingly, it was not error. Moreover, I agree that any

perceived error about the limitation is undoubtedly harmless.

{¶ 66) Impeachment of a witness by a prior felony conviction, as permitted by

Evid.R, 609(A)(1), is specifically made "subject to Evid. R. 403[.j" Id. Here, the defendant

was charged with aggravated vehicular homicide and three counts of aggravated vehicular

assault. Whether the defendant was the driver of the speeding stolen vehicle was a key

issue in the case. Runyon Yarborough, who was also seen getting out of the driver's side

of the car, testified that Antwan Rhines had been the driver. Nonnally, evidence of a prior

conviction is limited to "the name of the crime, the time and place of conviction and the

punishment imposed." State v. Amburgey, 33 Ohio St.3d 115, 515 N.E.2d 925 (1987),

syllabus. But here, the defense argued that Runyon Yarborough had actually been the

driver of the car.' (See e.g. T. 976) There was substantial risk that the jury, upon hearing

that Yarborough had a prior conviction for vehicular assa u lt, would conflate that testimony,

which should be used only as it affects the witness's credibility, as substantive evidence

of Yarborough's responsibility. Yarborough had convictions for multiple other felonies (T.

'The evidence in the record of Yarborough's conviction for a vehicularassaultwas insufficient to independently qualify as admissible 404(B) evidence.

1'HE COURT OF APPEALS OF OHIOSECOND APPOLLATE D[S'rRICT

22

882-883), so the evidentiary value of this additional one was minimal. "The decision

whether or not to admit evidenoe under Evid. R. 609 is left to the sound discretion of the

tnal court"*." State v. Lawson, Montgomery No. 23456, 2010-Ohio-3114, ¶ 17. Under

the circumstances, I cannot say that theYrial court abused its discretion. Perhaps it would

have been better if the par8es had agreed to referto that offense simply as another "felony

conviction," but their agreement was not error in light of the trial court's ruling.

(1671 In the final analysis, any impact this additional felony could have had on the

issue of Yarborough's credibility is undoubtedly harmless because the jury heard of his

other convictions in 2009 for four counts of having weapons under disability, in 2004 for

possession of cocaine, and in 2004 for improperly discharging a firearm at or into a

habitation.

R. Lynn NothstineDaniel F. GettyHon. Gregory F. Singer

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

A-23

N

COLii^7SuCtdTG(#HERYCO. OHtO36

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee

V.

ANTWAN RHINES

Qefendant-Appellant

C.A. CASE NO. 24417

T.C. NO. 10CR809

FINAL ENTRY

Pursuant to the opinion of this court rendered on the 27 ^hday of ?uIY 2012,

the judgment of the trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery

County Court of Appeals shall immediately serve notice of thisjudgment upon all parties and

make a note in the docket of the mailing.

T'HL COUftT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

2

Copies mailed to:

R. Lynn NothstineAssistant Prosecuting Attorney301 W. Third Street, 5th FloorDayton, Ohio 45422

Daniel F. Getty46 E. Franklin StreetCentervilie, Ohio 45459

Hon. Gregory F. SingerCommon Pleas Court41 N. Perry StreetDayton, Ohio 45422

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRfCT