[Cite as State v. Mitchell, 2016-Ohio-1439.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) CASE NO. 14 MA 0119 

) 

PLAINTIFF-APPELLEE, ) 

) 

VS. ) OPINION 

) 

JANERO MITCHELL, ) 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 2012 CR 1233 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman St., 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Atty. Carrie E. Wood 

Assistant State Public Defender 

Office Of The Ohio Public Defender 

250 E. Broad Street, Suite 1400 

Columbus, Ohio 43215 

JUDGES: 

Hon. Carol Ann Robb 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

Dated: March 30, 2016 

 
[Cite as State v. Mitchell, 2016-Ohio-1439.]

ROBB, J. 

{¶1} Defendant-Appellant Janero Mitchell appeals after being convicted of 

aggravated murder with a firearm specification in the Mahoning County Common 

Pleas Court. Appellant contests the state’s use of a peremptory challenge to excuse 

an African-American from the jury. He next states that he was denied a fair trial 

when the jury heard testimony about a threat to a witness. He also contests the 

admissibility of a detective’s testimony about a tip. As to the latter two arguments, 

Appellant adds ineffective assistance of counsel arguments. For the following 

reasons, the trial court’s judgment is upheld. 

STATEMENT OF THE CASE 

{¶2} Around noon on October 17, 2012, Mark Haskins was shot four times 

near the corner of Bissell and Kensington Avenues on the north side of Youngstown. 

He died three days later. Just prior to the shooting, the victim called 911. Before the 

dispatcher spoke, the victim could be heard refusing to get in someone’s car. He 

then reported to the dispatcher that “somebody jumped on” him at the corner of 

Kensington and Bissell. Another man could be heard yelling in the background to 

which the victim responded, “I didn’t steal nothing.” The man in the background 

replied by yelling something about “falsifying” and “we want to report a robbery.” The 

call then disconnected. 

{¶3} Minutes later, a witness heard multiple gunshots as she was raking 

leaves. She turned in time to see the victim fall from a large rock onto the sidewalk in 

front of a nearby house. The shooter fired two to three more times as the victim 

rolled from the sidewalk to the grass. (Tr. 285). The shooter turned to leave but then 

turned back and fired one last shot at the victim. (Tr. 286). The witness estimated 7-

9 shots were fired. (Tr. 285, 289). One of the bullets passed over her head and hit 

her house. (Tr. 294). She said the shooter looked at her before he got into the 

driver’s side of a green vehicle parked at the scene. (Tr. 297). 

{¶4} While the witness ran inside to call 911, the victim called 911 a second 

time; he can be heard moaning on the recording. (Tr. 288, 522). A different woman, 

who was also out raking leaves, called 911 and reported seeing a gold SUV speed 
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down the street after hearing the gunshots. (Tr. 526). This woman had difficulty with 

colors due to recent brain surgery. (Tr. 527). Another woman was driving by when 

she heard gunfire, which prompted her to stop her car and duck. After the shooting, 

she spotted the victim on the ground and saw a man enter a large green truck and 

drive away from the scene. (Tr. 431-432). 

{¶5} While emergency medical personnel treated the victim, he became 

briefly responsive. (Tr. 517, 640, 642). A police officer asked about the shooter and 

the vehicle. The victim described the vehicle as a green truck. (Tr. 640, 650). The 

victim could not or would not report who shot him; the officer’s report stated that the 

victim said he did not know who shot him, but the officer testified at trial the victim 

would not provide a name and answered “no” when asked who shot him. (Tr. 641-

642, 648-649). 

{¶6} Police collected eight .40 caliber shell casings from the scene. (Tr. 

390). Testing established that they were all fired from the same firearm. (Tr. 475). A 

slug was recovered from the siding on the witness’s house. (Tr. 392). Bullet strikes 

could be seen on the rock and the sidewalk. 

{¶7} The main witness was transported to the police station to be 

interviewed by Detective Martin. She testified at trial, and her October 17, 2012 

video statement was played to the jury. She called the shooter’s green vehicle a 

truck but also described it as a SUV, which she said was similar to a Jeep SUV she 

saw parked at the police station. (Tr. 287). She believed the shooter’s vehicle had 

silver and black molding running down the doors. (Tr. 306-307). On the topic of 

colors, she said she had no problem discerning the color green but had difficulty 

distinguishing between black and dark blue and between gray and silver. (Tr. 307-

308). 

{¶8} After the victim died, Detective Martin went to the victim’s residence 

and spoke to his girlfriend, who testified at trial. She disclosed that their neighbor, 

who lived three doors down, owned a large green SUV. (Tr. 442, 448, 529). The 

neighbor’s nickname was “Smoke.” (Tr. 439). At trial, the victim’s girlfriend identified 

Appellant as the neighbor who was the subject of her statement. The victim 
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performed house and car repairs for Appellant in the weeks prior to his death. (Tr. 

439). The victim’s girlfriend showed the detective her caller identification displaying 

the various calls Appellant made to their house. (Tr. 443). In addition, she reported 

Appellant came to their house five to six times in one night looking for the victim and 

seemed upset. (Tr. 439-440). She said this was “strange” and made her nervous. 

(Tr. 439). The victim also seemed unusually nervous in the weeks leading up to his 

death. (Tr. 440-441). 

{¶9} On November 5, 2012, the eyewitness to the shooting came to the 

station to view a photo line-up and to add to her statement, the video of which was 

played to the jury. (Tr. 342, 348-349). The witness reported that she remembered 

seeing a gray car on the opposite side the street and believed the shooter may have 

spoken to the person in the gray car before driving away. (Tr. 336-337, 360). She 

was then administered a photo line-up at the police department by a “blind 

administrator.” Appellant’s photograph occupied folder number seven in the first 

array. (Tr. 535). On her second viewing of the first array, the witness said number 

three looked like the shooter. She also voiced that number seven looked like the 

shooter and started crying. (Tr. 373-374, 457). Pursuant to policy, she was not 

permitted to view the array a third time as she requested. In viewing the second 

array, she expressed that number one reminded her of number three from the prior 

array. 

{¶10} She did not identify the shooter to the administrator; at trial, she 

explained she thought she was supposed to voice her suspicions to Detective Martin. 

(Tr. 370). Upon exiting the room, the eyewitness spoke to Detective Martin and 

informed him that seeing number seven brought it all back, stating she was 99% sure 

he was the shooter. (Tr. 350, 357-358, 370, 536). She similarly advised the deputy 

sheriff who drove her home; this officer was her landlord. (Tr. 321, 540). At trial, she 

identified Appellant as the shooter (and as number seven in the array). (Tr. 296). 

{¶11} The police watched Appellant’s residence and eventually spotted a 

green Chevrolet Avalanche, which Appellant later acknowledged was exclusively 

driven by him. (Tr. 529, 545). As the state pointed out in closing, the photographs 
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show the vehicle is an unusual style of truck. (Tr. 673). It is a four-door pick-up 

truck, but the back of the cab protrudes toward the bed at an angle with a triangular 

cut-out behind the back passenger windows, making it appear as if a third row is 

behind the second row of seats. Detective Martin noted the truck had a gray strip of 

molding down the side and a silver strip in the front. (Tr. 613). When the 

photographs were shown to the eyewitness, she did not recall the bed on the vehicle 

but said it was the same style. (Tr. 585, 595). Notably, the victim’s girlfriend, who 

knows Appellant and is his neighbor, also described the vehicle as an SUV. 

{¶12} On November 29, 2012, Appellant was secretly indicted for aggravated 

murder (with prior calculation and design) and a firearm specification. He was 

arrested the next day. A gun and ammunition, which belonged to Appellant, were 

confiscated from his residence; this evidence did not match the evidence from the 

scene. A superseding indictment was filed to add a count for having a weapon while 

under a disability. Appellant waived his right to a jury trial on the weapons charge, 

electing to have that charge tried to the bench. The aggravated murder charge and 

the firearm specification were tried to a jury, which was also instructed on the lesser 

included offense of murder. 

{¶13} The jury found Appellant guilty of aggravated murder with a firearm 

specification, and the court found him guilty of having a weapon while under a 

disability. The court sentenced Appellant to life without parole for the aggravated 

murder, three years for the firearm specification, and three years for the weapons 

charge to run consecutive. (Aug. 25, 2014 Sent. Hrg.; Sep. 11, 2014 Sent. J.E.). 

ASSIGNMENTS OF ERROR ONE & TWO: PEREMPTORY CHALLENGE 

{¶14} Appellant’s first two assignments of error, which concern one 

peremptory challenge utilized by the state, provide: 

“The trial court erred when it excused a juror after the State offered a facially 

discriminatory explanation for the use of its peremptory challenge." 

“The trial court’s decision to excuse a black juror after a Batson challenge is 

clearly erroneous when it fails to make the necessary Batson findings and instead 

relies upon impermissible factors.” (Citations omitted.) 
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{¶15} The state used its third peremptory challenge on prospective juror 

number 7, Mr. Whitfield. (Tr. 178). An unrecorded sidebar was held after which an in 

chambers discussion was recorded. (Tr. 178-179). Defense counsel noted this was 

the second minority juror excused by the state. He stipulated “there are two 

remaining minority jurors in this case” and noted other minority members of the 

upcoming panel would likely not be reached. Counsel voiced a Batson objection 

asking the court to determine whether there existed a race neutral reason for the 

peremptory challenge. (Tr. 179). The assistant prosecutor responded: 

* * * Whitfield, his last name, we have prosecuted many Whitfields. 

He’s from the south side as well. So even though he didn’t indicate he 

had any family members that were prosecuted by us or who had 

convictions, I’m afraid that this Mr. Whitfield is related not only to 

Reginald Whitfield, who we just had a case with in Judge Durkin’s court, 

but many of the other Whitfields who we have prosecuted. They are all 

from the south side. (Tr. 180). 

{¶16} Defense counsel responded that the state could have asked this of the 

juror in voir dire and still could do so, opining it would not be offensive. (Tr. 180). At 

this point, the assistant prosecutor pointed out there were still three or four more 

minorities in the back of the courtroom. (Tr. 180). Defense counsel reiterated his 

belief that they would not reach those panel members. A different assistant 

prosecutor then commented that the defendant and the victim were both AfricanAmerican, as opposed to a white victim. Defense counsel protested that the issue of 

whether there is an African-American victim is not the point of the Supreme Court law 

on the subject. (Tr. 181). The court overruled the objection and allowed the state’s 

peremptory challenge to stand. 

{¶17} Being an Equal Protection clause argument, the burden is on the 

defendant to prove the state racially discriminated in the use of a peremptory 

challenge. Batson v. Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 90 L.E.2d 69 

(1986). The process entails three steps: (1) the defendant’s prima facie case of 

racial discrimination; (2) the state’s obligation to set forth a race-neutral reason; and 
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(3) the trial court’s judgment as to whether the prosecutor purposefully discriminated. 

See id. at 97-98. 

{¶18} First, the defendant must object to the peremptory challenge and set 

forth a prima facie case of racial discrimination by pointing to relevant circumstances 

that raise an inference the prosecutor used the challenge to exclude the prospective 

juror on account of his race, which could include: the state’s use of a prior challenge 

against the same race; the defendant and the challenged juror are members of the 

same racially cognizable group; and/or disparate questions were asked in voir dire. 

Id. at 96-97. See also Powers v. Ohio, 499 U.S. 400, 416, 111 S.Ct. 1364, 113 

L.Ed.2d 411 (1991) (racial identity between the defendant and the excused juror may 

make it easier to establish the case, but race is irrelevant to a defendant’s standing to 

assert discrimination against a juror). This preliminary issue of whether the 

defendant made a prima facie showing becomes moot, however, if the state offers a 

race-neutral explanation for the peremptory challenge and the trial court rules on the 

ultimate question of intentional discrimination. Hernandez v. New York, 500 U.S. 

352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). 

{¶19} Under the second step, the state must provide a racially neutral 

explanation for the challenge. Id. A race-neutral explanation for a peremptory 

challenge is simply “an explanation based on something other than the race of the 

juror.” Hernandez, 500 U.S. at 360. “Unless a discriminatory intent is inherent in the 

prosecutor's explanation, the reason offered will be deemed race neutral.” Id. 

{¶20} Third, if the state provides a race-neutral explanation, the trial court 

must view all the circumstances and determine whether there was purposeful 

discrimination, i.e. whether the explanation is merely pretextual. Batson, 476 U.S. at 

98. Although this step entails evaluating the persuasiveness of the state’s 

explanation, the burden of persuasion regarding racial motivation remains on the 

defendant. Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 

(2006); State v. Gowdy, 88 Ohio St.3d 387, 393, 727 N.E.2d 579 (2000) (“The 

ultimate burden of persuasion regarding racial motivation rests with, and never shifts 

from, the opponent of the strike.”). We do not reverse a trial court’s decision on 
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intentional discrimination unless it was clearly erroneous. See State v. Frazier, 115 

Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 64; State v. Bryan, 101 Ohio 

St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 106, 110 (defer to the trial court’s 

credibility decision). 

{¶21} Appellant contends an evaluation of his prima facie case is moot since 

the state provided an explanation upon which the court ruled. See State v. White, 85 

Ohio St.3d 433, 437, 709 N.E.2d 140 (1999) (“Once the proponent explains the 

challenge and the trial court rules on the ultimate issue of discrimination, whether or 

not a prima facie case was established becomes moot.”), citing Hernandez, 500 U.S. 

at 359. The state agrees and proceeds to address Appellant’s next contention. 

{¶22} Appellant alleges the reason provided by the state is facially invalid 

rather than racially neutral. He argues the trial court would never reach the third step 

where the credibility of the prosecutor making the statement is evaluated. Appellant 

asserts the state voiced race was a consideration when it assumed AfricanAmericans with the last name of Whitfield who live on the same side of town are 

related. He believes the state’s explanation carries a presumption that race, 

neighborhood, and last name define the prospective juror as fitting in an undesirable 

category. 

{¶23} Appellant presents various arguments which appear more related to an 

argument of intentional discrimination under the third step than an argument that the 

reason was not race-neutral. For instance, Appellant urges that the state’s failure to 

conduct voir dire on the subject of relatives is evidence suggesting the explanation is 

a pretext for discrimination. He also argues the state’s explanation was based upon 

an unsupported assumption or fear that the juror was related to criminals due to his 

last name and neighborhood. He urges the state did not explain why being related 

(by an unknown degree of relationship) to a criminal would be problematic. 

{¶24} “In evaluating the race neutrality of an attorney's explanation, a court 

must determine whether, assuming the proffered reasons for the peremptory 

challenges are true, the challenges violate the Equal Protection Clause as a matter of 

law.” Hernandez, 500 U.S. at 359. The explanation is not unconstitutional solely 
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because it results in a racially disproportionate impact. Id. at 359-360. 

Discriminatory purpose implies the prosecutor exercised the challenge “at least in 

part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable 

group.” Id. at 360 (awareness of consequences does not equate with discriminatory 

intent). 

{¶25} The state’s explanation for the peremptory challenge must merely be 

based on something other than the race of the juror. Id. at 360. It need not rise to 

the level of a challenge for cause. Batson, 476 U.S. at 97. In this step, the state’s 

explanation need not be “persuasive, or even plausible” as long as the reason is not 

inherently discriminatory. Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 

L.Ed.2d 824 (2006). In fact, the state’s reason can be silly or superstitious as long as 

it is not race-related; the persuasiveness of the explanation does not arise until the 

third step. Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 

(1995) (long unkempt hair and facial hair is race neutral). “Unless a discriminatory 

intent is inherent in the prosecutor's explanation, the reason offered will be deemed 

race neutral.” Hernandez, 500 U.S. at 360. 

{¶26} Notably, the court asked the panel whether any of their family members 

have ever been charged or arrested. (Tr. 52). This question prompted no disclosure 

by juror number 7. A concern that a prospective juror is related to various individuals 

prosecuted by that same prosecutor’s office, including one recent conviction cited by 

name to the court, is not racially discriminatory. In addition, there is the concern, 

expressed by the state, that a juror did not mention prosecuted family members when 

asked. 

{¶27} “Removing a juror based on the past criminal history of him or her, or 

his or her family member, is a valid, race-neutral reason for raising a peremptory 

challenge.” State v. Lacey, 7th Dist. No. 10MA122, 2012-Ohio-1685, ¶ 127, quoting 

State v. Santiago, 10th Dist. No. 02AP-1094, 2003-Ohio-2877, ¶ 10. See also State 

v. Coleman, 85 Ohio St.3d 129, 142, 707 N.E.2d 476 (1999) (prior involvement with 

drug trafficking by family member of prospective juror is a race-neutral explanation 

under step two that trial court could find credible under step three); State v. May, 8th 
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Dist. No. 102482, 2015-Ohio-4275, ¶ 51 (“the potential bias that may result from a 

prospective juror's or his or her family's experiences with the criminal justice system 

may be a legitimate, racially neutral reason for exercising a peremptory strike against 

the prospective juror”); State v. Reed, 6th Dist. No. L-97-1133 (June 12, 1998) 

(excused jurors had relatives who had been convicted of crimes). 

{¶28} The skin color of the Whitfield named by the state (as an example of a 

recent prosecution by this prosecutor’s office) was not mentioned; nor was the skin 

color of any of the other prosecuted Whitfields mentioned. Appellant cites us to an 

offender search of the website of the Ohio Department of Rehabilitation and 

Corrections to establish that the most recently prosecuted Whitfield named by the 

state was African-American. See Appellant’s Brief at 19, fn.4. This is evidence 

outside the trial record. 

{¶29} Regardless, skin color does not eliminate the possibility of familial 

relationship with another by affinity or consanguinity. There is no indication in the 

explanation that the state would not have exercised the challenge if juror number 7 

was a Whitfield from the south side of town who appeared to be white. An 

explanation is not unconstitutional on its face solely because it results in a racially 

disproportionate impact. Hernandez, 500 U.S. at 359-360. Whether the state’s 

concern was genuine versus pretextual involves the third step, and we will consider 

Appellant’s arguments relating to this subject under the discussion of that step, infra. 

{¶30} In assignment of error number one, Appellant also condemns the 

prosecution’s observation that three or four more African-Americans remained for 

potential seating on the jury and that the case involved a victim and a defendant of 

the same race. These are not race-neutral reasons for excluding juror number 7. 

See, e.g., State v. Gowdy, 88 Ohio St.3d 387, 393, 727 N.E.2d 579 (2000) (as the 

Fourteenth Amendment protects the juror from discrimination, the fact that another 

juror of the same race remained on the jury does not preclude a holding that the state 

unlawfully removed a juror). 

{¶31} However, the mere making of such observations after providing raceneutral reasons does not result in a finding that the state failed to set forth a race-
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neutral reason under step two of the analysis. See Gowdy, 88 Ohio St.3d at 393 (the 

Court continued to address the other explanations provided by the state). Notably, 

the state’s observations were made after defense counsel predicted the remaining 

voir dire would not reach the other African-Americans on the venire, which would 

leave only two minorities on the jury. Likewise, defense counsel pointed out this was 

the second excused minority juror. (Tr. 179). Moreover, the effect of the state’s 

challenges is a factor that can be considered in determining pretext under the third 

step in the analysis. See Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 

L.Ed.2d 196 (2005). See also Batson, 476 U.S. at 97 (the defendant can also use 

the number of challenges to minorities to bolster his prima facie case). 

{¶32} Related to this argument, Appellant’s second assignment of error 

claims the court considered impermissible factors. After allowing the state to excuse 

juror number 7, the judge stated: “And the court does acknowledge that there are 

blacks sitting in - - waiting in the back that are available. And Mr. Whitfield was not 

the only minority on this jury.” (Tr. 182). Again, defense counsel first brought up the 

fact that only two minorities would remain on the jury without juror number 7 and 

predicted he would not reach the other minorities in the back of the courtroom during 

voir dire. (Tr. 179). Additionally, because the effect of the challenge is a 

circumstance a court can consider in evaluating the issue of pretext, the mere 

acknowledgement of the composition of the present jury and venire would not 

constitute an error. See generally Miller-El v. Dretke, 545 U.S. 231; Batson, 476 U.S. 

at 97. 

{¶33} Appellant’s second assignment of error also claims the trial court erred 

in failing to make the “necessary Batson findings.” When presented with such an 

argument, the Ohio Supreme Court has stated: “Certainly, more thorough findings by 

the trial court in denying the defense Batson objections would have been helpful. 

However, the trial court is not compelled to make detailed factual findings to comply 

with Batson.” State v. Frazier, 115 Ohio St.3d 139, 152, 2007-Ohio-5048, 873 

N.E.2d 1263, ¶ 98. 
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{¶34} After providing the parties a reasonable opportunity to make their 

respective records, the trial court’s ruling on the credibility of a proffered race-neutral 

explanation can merely be expressed in the form of a clear rejection or acceptance of 

a Batson objection. Id. See also Gowdy, 88 Ohio St.3d at 393, 395 (where the 

defendant claimed the trial court did not proceed to step three of the inquiry and 

instead stopped after determining the reasons advanced by the prosecutor were 

race-neutral). Here, the trial court clearly rejected the Batson objection, which was 

sufficient to express its ruling. 

{¶35} We proceed to address the final question concerning whether the trial 

court could rule that the defendant did not meet his burden of showing the 

prosecution’s concern was mere pretext. Appellant points out the failure to conduct 

voir dire on the subject is evidence suggesting the explanation is a sham or pretext 

for discrimination. Citing Miller-El v. Dretke, 545 U.S. at 246 (quoting an Alabama 

case via parenthetical). The Court made this statement in assessing the 

implausibility of the state’s explanation involving the criminal conviction of a 

prospective juror’s brother; the Court emphasized that the explanation was only 

proffered after the state’s initial reason was shown to be an improper characterization 

of the juror’s responses to questions on the death penalty. Id. See also id. at fn. 8 

(other jurors had relatives convicted of crimes who were not struck). 

{¶36} The Miller-El v. Dretke case was a capital case tried prior to Batson and 

remanded by a state appellate court to the trial court for consideration of Batson, 

which hearing elicited additional facts concerning the state’s discriminatory practices 

in voir dire, including: out of 20 black members of a 108-person venire panel only 1 

served; 10 blacks were peremptorily struck by the state, which excluded 91% of the 

eligible black venire members; side-by-side comparisons of black panelists and white 

panelists allowed to serve suggested bias; disparate questioning of the races 

occurred; the state used a manual with reasoning for excluding minorities; and, the 

state employed a Texas “jury shuffling” practice when blacks moved to the forefront 

of the venire. See id. at 240-241, 253 (reviewing statistics and other “clues” as to the 

prosecution’s intentions, in addition to the peremptory challenges themselves). 
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{¶37} As can be seen, the Miller-El v. Dretke case contained many 

circumstances that distinguish it from the case at bar. For instance, we have the 

statement that this juror was the second minority juror excused, but we do not have 

extreme statistics. Nor do we have the situation where “a prosecutor’s proffered 

reason for striking a black panelist applies just as well to an otherwise-similar 

nonblack who is permitted to serve * * *.” See Miller-El, 545 U.S. at 241. There was 

no indication that any non-black juror may have had a family member who had been 

recently convicted by this prosecutor’s office (or at all). 

{¶38} Appellant counters that there is no indication juror number 7 had such a 

family member either. The fact that the state did not specifically inquire of juror 

number 7 as to whether he was related to various Whitfields is a factor to consider in 

evaluating whether there was purposeful discrimination. However, it is not 

dispositive. The statement in Miller-El, 545 U.S. at 246, that a failure to inquire is 

suggestive of pretext, was not a holding that a failure to inquire per se establishes 

pretext. The jury questionnaire and the court asked about family members who were 

charged or arrested, and this juror did not make a disclosure. Still, the prosecution 

was concerned. The court must “assess the plausibility of” the prosecutor's reason 

for striking the juror “in light of all evidence with a bearing on it.” Miller-El v. Dretke, 

545 U.S. at 252. 

{¶39} The trial court was to ascertain whether the prosecutor’s concern was 

genuine. The prosecutor’s office recently prosecuted a Reginald Whitfield. Besides 

providing a specific defendant’s name, the state pointed to the trial judge who 

presided over that defendant’s case. This prosecutor’s office also prosecuted “many 

of the other Whitfields,” all of whom live on the south side of town where this juror 

lived, which caused her to be “afraid” the juror was related to the prosecuted 

Whitfields. (Tr. 180). As aforementioned, having relatives that were convicted of 

crimes is a valid concern of the prosecution about a prospective juror. See, e.g., 

Coleman, 85 Ohio St.3d at 142 (1999). The concern is greater where the relatives 

were recently prosecuted by this prosecutor’s office. A trial court may believe a 
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prosecutor’s expression of concern when evaluating whether the state engaged in 

purposeful discrimination. 

{¶40} Appellant replies that the concern is unfounded as to this juror because 

the existence of a familial relationship is based upon an assumption unsupported by 

the record. The state counters that the record suggests a strong likelihood the juror 

was related to individuals prosecuted by that prosecutor’s office. 

{¶41} In Rice, the state exercised a peremptory challenge against an AfricanAmerican female based on a fear that a young single citizen with no ties to the 

community might be too tolerant of the crime at issue, even though the juror’s 

answers in voir dire did not support such a belief. The United States Supreme Court 

held that pretext is not established merely because the prosecutor claimed to hold 

such concerns despite the juror’s voir dire averments. Rice, 546 U.S. at 341. The 

Court found it was not unreasonable to believe the prosecutor remained worried 

about the juror even if the prosecutor could be seen as overly cautious. Id. (reversing 

the Ninth Circuit’s decision to reverse state court decisions on the matter). 

{¶42} The trial court’s decision is partially based upon the prosecutor's 

demeanor in explaining her position; whether the prosecutor’s explanation is genuine 

is a credibility determination subject to great deference. Davis v. Ayala, __ U.S. __, 

135 S.Ct. 2187, 2199, 2201, 192 L.Ed.2d 323 (2015) (adding: “Appellate judges 

cannot on the basis of a cold record easily second-guess a trial judge's decision 

about likely motivation.”). Moreover, our standard of review is whether the trial court 

was “clearly erroneous” in accepting the state’s explanation as genuine as opposed 

to a pretext for purposeful discrimination. Id. at 2199; Frazier, 115 Ohio St.3d 139 at 

¶ 64. Although other judges could disagree with this trial judge’s decision that the 

prosecutor’s assessment was plausible, “a trial judge may choose to disbelieve a silly 

or superstitious reason”; “implausible or fantastic justifications may (and probably will) 

be found to be pretexts for purposeful discrimination.” (Emphasis added.) Purkett, 

514 U.S. at 768 (reversing the appellate court’s decision that long unkempt hair and 

facial hair is not a race-neutral reason and remanding for the appellate court to 
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review the trial court’s third stage decision on whether the prosecutor’s explanation 

was genuine). 

{¶43} This court finds the trial court was not clearly erroneous by believing the 

prosecution did not purposefully discriminate when it asked to excuse juror number 7. 

Whitfield is not a noticeably common surname like Jones or Smith. The prosecutor’s 

office was involved in investigating and prosecuting many Whitfields from the same 

area of town as the juror. The prosecutor’s lingering concerns, notwithstanding the 

juror’s failure to report a relative’s arrest, does not so lack plausibility that the trial 

court’s decision should be rendered clearly erroneous. For all of these reasons, the 

first and second assignments of error are overruled. 

ASSIGNMENT OF ERROR NUMBER THREE 

{¶44} Appellant’s third assignment of error provides: 

“The trial court erred in denying a mistrial when the jury repeatedly heard 

inadmissible testimony regarding threats to witnesses; and, as a result, deprived Mr. 

Mitchell of a fair trial.” (Citations omitted.) 

{¶45} Prior to trial, the defense filed a motion in limine concerning evidence 

the eyewitness had been threatened. The state informed the court it would only 

present testimony that the witness was and remains fearful, adding the state had no 

intent to inform the jury of specific instances where the witness was approached or 

threatened. Defense counsel replied they would deal with it when it arose since it 

depended upon how the question was asked. (Tr. 23). The state pointed out the 

contact with the witness could not be attributed to the defendant (or they would have 

charged him with intimidation). The state then agreed that asking the eyewitness 

about specific instances of threats would be inappropriate. (Tr. 24). 

{¶46} When the eyewitness testified, she was asked if she had some worries 

and was scared when she spoke to the detective. She answered affirmatively and 

said she was still scared. (Tr. 295). Detective Martin testified about the photographic 

line-up. He was asked why he decided to have the witness view a second photo 

array. The detective responded, “There was a second suspect that through my 

investigation that was - - I don’t know if - - I believe he’s a cousin or an associate, and 
-15-

he was involved in another investigation with Janero Mitchell by the name of - -.” An 

objection was sustained. Defense counsel asked the court to strike the response, 

and the court instructed, “Jury will be asked to not consider the statement that the 

officer just made.” (Tr. 537). 

{¶47} Thereafter, the detective testified the eyewitness was still fearful when 

she viewed the photographs on November 5. He explained he waited until 

November 30 to arrest Appellant because he was concerned about this witness, 

saying that everyone knew where she lived. He then added, “She already had 

somebody come to the house threatening her.” (Tr. 540). Defense counsel objected, 

and the court sustained the objection. (Tr. 540-541). A sidebar was held, after which 

the court amended the ruling to “sustained as to that response but stick around after.” 

The detective then stated he wanted to allay some of the witness’s fears by waiting 

until she moved out of the area. (Tr. 541). 

{¶48} After the state’s direct examination, the court released the jury for the 

day. Defense counsel moved for a mistrial. He pointed to his sustained objections 

on the detective’s testimony about another investigation and threats. He said the 

answers would lead the jury to believe the threats came from the defendant. (Tr. 

549-551). The court overruled the motion for a mistrial. 

{¶49} Thereafter, defense counsel mentioned, on cross-examination, the 

report of a gray car at the scene in conjunction with the second photo line-up. He 

also asked the detective if the victim’s girlfriend brought up the name “Willie D.” 

Defense counsel inquired if the photos in the line-up were for the purpose of picking 

out the shooter, and the detective responded: “One was for the shooter and actually 

the other one was for the individual that had come to the house and had threatened 

her.” (Tr. 564). Defense counsel then asked: “You have no threats that relate to 

Janero Mitchell?” The detective agreed. (Tr. 565). 

{¶50} Appellant argues the trial court abused its discretion in overruling the 

motion for a mistrial. He states the jury heard inadmissible testimony about threats, 

an investigation, and a suspect who was his associate. He asserts this undermined 

confidence in the outcome as a fair trial was no longer possible. The state responds 
-16-

there was no prejudice as defense counsel made it clear during cross-examination 

that Appellant was not connected to the threats. Appellant urges that defense 

counsel’s elicitation on cross-examination did not undo the damage. As evidence of 

the prejudicial impact on the jury, Appellant points to two jury questions. 

{¶51} First, shortly after the jury began deliberations, the parties decided the 

jury should break for the evening. The court made pertinent advisements about not 

forming an opinion or talking in the absence of the entire jury. The court warned the 

jury not to let anyone talk to them or approach them about the case. The court said 

that if anything unusual happens, they should notify the deputies. (Tr. 741-742). A 

juror asked, “Now, you were saying if something happens at home or something * * * 

call the sheriff, don’t call 911?” (Tr. 742). The court responded, “Either one. I don’t 

expect anything is going to happen.” The juror replied, “I hope not. That’s crossed 

my mind.” (Tr. 743). 

{¶52} At that point, defense counsel again moved for a mistrial (or in the 

alternative, voir dire of the juror who asked the question). He voiced a connection 

between the testimony on threats and the juror’s expression that a need to call the 

police “crossed my mind.” (Tr. 746, 748-749). The state pointed out the juror did not 

initiate the conversation but was merely clarifying the court’s instructions. (Tr. 746-

747). It was noted that it was not unusual for jurors to be concerned when involved in 

a violent case such as this. (Tr. 747, 749). The court overruled the defense motion. 

The court found the juror’s question was made in response to the court’s instructions. 

The court suggested the question was not related to testimony, but may have been 

related to the fact that someone yelled at a witness who was leaving the courthouse, 

“you better know what you’re talking about.” (Tr. 750). 

{¶53} The next question was raised after the jury had signed its verdict. (Tr. 

751-752). They asked if their information would be made public. (Tr. 751). Defense 

counsel renewed the motion for a mistrial, urging the question showed fear by jurors 

due to testimony of threats. (Tr. 752-753). The motion was overruled. 

{¶54} The granting or denial of a motion for mistrial rests in the sound 

discretion of the trial court and will not be disturbed on appeal absent an abuse of 
-17-

discretion. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). To 

show an abuse of discretion in failing to grant a mistrial, the defendant must 

demonstrate material prejudice. See State v. Adams, 144 Ohio St.3d 429, 2015-

Ohio-3954, __ N.E.3d __, ¶ 198. A mistrial is not warranted in a criminal case merely 

because some error or irregularity occurred. Treesh, 90 Ohio St.3d at 480. A mistrial 

is necessary only when a fair trial is no longer possible. Id. (a police officer’s 

comment as to a suspect's silence or his request for an attorney, although improper, 

did not require a mistrial after curative instruction given). See also State v. Garner, 

74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995) (a police officer's fleeting reference to 

the defendant’s prior arrests did not necessitate mistrial after curative instruction 

given). 

{¶55} Here, there was no objection to the eyewitness testifying that she was 

in fear for her safety. (Tr. 295). A witness’s expressed fear for her safety due to 

involvement in the case does not necessarily suggest the defendant committed 

another bad act or require a mistrial. See State v. Fredenburg, 10th Dist. No. 

97APA10-1340 (Sept. 17, 1998), citing State v. Smith, 10th Dist. No. 94APA01-119 

(Sept. 20, 1994). 

{¶56} Appellant’s concern is disclosure of threats and the investigation of an 

associate.1 Appellant points out the state is generally prohibited from introducing 

evidence “tending to show that a defendant committed another crime” wholly 

independent of the offense being tried. State v. Frazier, 73 Ohio St.3d 323, 338, 652 

N.E.2d 1000 (1995), citing State v. Hector, 19 Ohio St.2d 167, 249 N.E.2d 912 

(1969), paragraphs one of syllabus. There are exceptions, such as where the 

evidence is offered as proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident. Evid.R. 404(B). Appellant 

notes the state must provide reasonable notice in advance of trial of the general 

 1 In the reply brief, Appellant adds that the arresting officers were permitted to testify a gun was 

confiscated from Appellant’s home, which was not related to this offense. A reply is not the place for new 

arguments. In any event, prior to trial, the defense withdrew the motion in limine on the gun and ammunition 

found during Appellant’s arrest, thus consenting to its admission into evidence. (Tr. 22). This was presumably 

because testimony that Appellant’s gun and ammunition did not match the evidence recovered from the scene of 

the crime could be viewed as favorable to the defense.
-18-

nature of any such evidence it intends to introduce at trial, unless the court excuses 

pretrial notice on good cause shown. Id.

{¶57} The state’s brief suggests threats to a witness can be relevant to 

establish why a witness is hesitant to identify a suspect. Citing, e.g., State v. Grimes, 

1st Dist. No. C-030922, 2005-Ohio-203, ¶ 56 (references to witness intimidation were 

not improper because they were offered to demonstrate why the witnesses' stories 

had changed, and why some of the witnesses had not immediately come forward to 

the police with information about the shooting). Appellant notes this was not 

mentioned below and does not address the prosecution’s acknowledgement that 

testimony on a specific threat would be inappropriate in this case as there was no 

evidence connecting Appellant to the threat. See id. at ¶ 55 (specific evidence of 

witness intimidation is admissible to show consciousness of guilt, which must 

ordinarily be shown by a specific act of the defendant). 

{¶58} As aforementioned, the state agreed just prior to trial it would not 

introduce evidence of specific threats made to the eyewitness, stating they had no 

evidence the defendant was involved. (Tr. 23). Additionally, the court sustained the 

objection to the detective’s revelations. 

{¶59} Appellant relies on a Second District case where a police officer 

testified the defendant was involved in a previous robbery and fled from officers when 

being arrested (which counsel failed to object to, even though it violated an in limine 

ruling) and a witness testified the defendant’s family members sent death notes to 

her house. State v. Brown, 2d Dist. No. 24420, 2012-Ohio-416. The Second District 

held that the cumulative effect of the testimony necessitated a mistrial, pointing out 

that the defendant was not connected to the crime by overwhelming evidence. Id. at 

¶ 44-45. 

{¶60} Appellant believes the case is on point. However, it is not binding 

precedent, and each criminal trial has factual distinctions. As the state notes, the 

Brown case involved more than mere implications. In Brown, there were disclosures 

that the defendant was involved in a prior robbery, he fled from police when they 
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attempted to arrest him on an aggravated robbery warrant, and his family members 

sent “death notes” to the witness. 

{¶61} Relying on Brown, Appellant suggests we must find the detective’s 

disclosures harmless beyond a reasonable doubt in order to affirm. Yet, where the 

court sustains an objection and a mistrial is sought, the test is as set forth earlier: “the 

ends of justice so require and a fair trial is no longer possible.” State v. Trimble, 122 

Ohio St.3d 297, 321, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 173 (evidence of prior 

conviction inadmissible, trial court sustained objection, and instructed jury to 

disregard answer, mistrial not required as fair trial was still possible), citing Garner, 

74 Ohio St.3d at 59 (police officer's reference to the defendant’s prior arrests did not 

necessitate mistrial after curative instruction given). We proceed to analyze the 

relevant facts of this case under the law pertinent to mistrial requests where an 

objection was sustained. 

{¶62} We begin with the detective’s statement that he placed a suspect in the 

second photo line-up who was an associate involved in another investigation with the 

defendant. Before the detective could finish his answer about his other investigation, 

defense counsel objected. The trial court sustained the objection, ordered the 

response struck, and instructed the jury to disregard the answer. (Tr. 537). 

Additionally, after all testimony was presented, the court’s general instructions 

advised that if a statement was stricken by the court, the jury is to disregard the 

statement and act as if they never heard it. The court also ordered the jury not to 

speculate as to why the court sustained any objection. (Tr. 719). “We presume that 

the jury followed the court's instructions, including instructions to disregard 

testimony.” Treesh, 90 Ohio St.3d at 480, citing State v. Loza, 71 Ohio St.3d 61, 75, 

641 N.E.2d 1082 (1994). 

{¶63} As set forth supra, the detective’s next objected-to statement was in 

response to a question as to why an arrest did not occur immediately after the 

identification. The question was important as it was meant to dispel any concern the 

detective did not believe the eyewitness’s identification of number seven to him and 

to the deputy sheriff. The detective explained he was concerned about the witness 
-20-

and he was waiting for her to move. He added that someone came to the 

eyewitness’s house to threaten her, at which point the defense objected. The court 

sustained the objection. After a sidebar, the court repeated that the objection was 

“sustained as to that response.” (Tr. 541). The defense did not request a curative 

instruction to strike and disregard the statement, which is said to be a prerequisite for 

seeking a mistrial. See Adams, 2015-Ohio-3954 ¶ 204 (motion for mistrial has no 

merit when court sustains objection and defendant never requests cautionary 

instruction), citing State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 

959, at ¶ 103; State v. Davie, 80 Ohio St.3d 311, 322, 686 N.E.2d 245 (1997) (where 

objection is sustained, the defense must seek curative instruction to raise issue 

thereafter). 

{¶64} From these two sustained objections, it does not appear a fair trial was 

no longer possible or “the ends of justice” mandated a mistrial. Brinkley, 105 Ohio 

St.3d 231 at ¶ 105, quoting Garner, 74 Ohio St.3d at 59. Assuming inadmissible 

testimony was set forth just prior to the objection, the mere occurrence of an error or 

irregularity does not warrant a mistrial. Treesh, 90 Ohio St.3d at 480. There is no 

indication the trial court abused its broad discretion in denying the motion as material 

prejudice was not apparent. See Adams, 2015-Ohio-3954, at ¶ 198. 

{¶65} Thereafter, on cross-examination, the detective was asked to clarify 

that the second photo array was composed around the person believed to have 

made threats and that the threats did not involve Appellant. (Tr. 564-565). Any 

implied link to Appellant was diminished by this cross examination, further minimizing 

any prejudice. 

{¶66} Appellant urges material prejudice became apparent at the time of his 

renewed motion for a mistrial after the two jury questions: (1) a juror orally said it 

“crossed [his] mind” he should know who to call if he is approached about the case; 

and (2) a written jury question asked whether the verdict forms containing their 

names would be released as a public record. These are not unusual queries for a 

violent murder case and need not be attributed to the two sustained objections. 
-21-

{¶67} There is no indication the first question was incited by the detective’s 

suggestion he investigated a threat to the witness by someone else nearly two years 

prior. The court believed its colloquy with the juror related to the fact that someone 

had yelled at a witness in the courthouse during trial. Moreover, the first question 

was an immediate response to a jury instruction provided by the court about the 

jurors’ obligations during deliberations. (Tr. 741-743). As the state pointed out, 

jurors in cases of this nature have similar concerns. (Tr. 749). The court was not 

required to grant the request for a mistrial as the jury questions did not provide 

evidence of material prejudice. Additionally, the defense had elicited testimony on 

the threats to the witness by this time. 

{¶68} This court concludes the trial court did not abuse its broad discretion in 

denying the mistrial motions. For all of the foregoing reasons, this assignment of 

error is overruled. 

ASSIGNMENT OF ERROR NUMBER FOUR: TESTIMONY ON TIP 

{¶69} Appellant’s fourth assignment of error provides: 

“Mr. Mitchell was denied his right to confront the evidence against him at trial, 

in violation of his Fifth, Sixth, and Fourteenth Amendment rights under the United 

States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.” 

{¶70} As set forth in the statement of facts, the victim’s live-in girlfriend 

testified: the defendant was her neighbor, who lived three doors down; his nickname 

was “Smoke;” he drove a green vehicle she called an SUV; the victim did house and 

car repairs for Appellant in the weeks leading up to the shooting; Appellant appeared 

upset as he repeatedly came to their house looking for the victim, which was unusual; 

and the victim seemed nervous as he avoided Appellant. (Tr. 438-442, 444, 448). 

{¶71} Later, the state questioned the lead detective on the stages of his 

investigation. When asked what happened the day after the shooting, the detective 

began explaining that two of the victim’s relatives told him “that they had heard * * *.” 

Defense counsel objected, and the court sustained the objection. (Tr. 523). The 

detective then testified that he followed up on a tip received from the victim’s 
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relatives. (Tr. 524). After the state asked what he was looking for based on the tip, 

the following took place: 

A Well, the only tip I had was that the individual - - 

[Defense counsel]: Objection. 

COURT: You can finish it from who - - from an individual, but the extent 

of the conversation is sustained. 

Q Not saying what they said, but based on those tips, who were you 

looking for? 

[Defense counsel]: Objection. That’s saying it the same way, Your 

Honor. 

COURT: No, he can answer that. 

Q Go ahead. 

A For an individual who went by the name of Smoke who drove a 

green SUV and lived in the neighborhood. (Tr. 524). 

The detective then explained how he investigated two other individuals with the 

nickname of Smoke; he discovered one was incarcerated on the day of the shooting, 

and he could not connect the other to a green vehicle. (Tr. 525-526). 

{¶72} Appellant urges the trial court erred in permitting the detective to testify 

that, based upon a tip, he began looking for a person with the nickname Smoke who 

drove a green SUV and lived in the neighborhood. Appellant believes the state 

magnified the error in its closing argument. 

{¶73} For instance, the state’s closing noted the eyewitness reported to the 

lead detective and a sheriff’s deputy that number seven was the shooter and 

observed: “It just so happens that number seven is Janero Mitchell, number seven is 

the one who drives a green SUV truck, and number seven is known as Smoke. 

Same as what [the victim’s girlfriend] described.” (Tr. 673-674). The state later 

asked the jury to consider the eyewitness’s testimony in light of the all the other 

evidence, noting it was not just her identification: “It’s her identifying someone 

matches the name Smoke, who drives a green truck and who is having a dispute with 
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the victim. And he admitted to Detective Martin himself, he knew the victim and he’s 

the only one who drives that green truck.” (Tr. 676-677). 

{¶74} Appellant further points to statements in the final closing such as: “[The 

victim’s girlfriend] only gave the starting point. You know what? This Janero Mitchell, 

this Smoke, he’s been calling, he’s been calling, they have been stopping, him and 

Willie D, his friend, they are stopping by, looking for Mark and Mark keeps ignoring 

them. And they stop calling after he’s shot.” (Tr. 710-711). Finally, Appellant 

believes the state used the tip testimony in the following statement: “She doesn’t 

know that number seven goes by Smoke. She didn’t know that number seven and 

Mark Haskins knew each other. She didn’t know that number seven is going to be 

the one with the green truck. It’s not a coincidence. She doesn’t know that he lived 

three houses away from each other.” (Tr. 713). 

{¶75} Appellant believes these were all references to the testimony about the 

content of the tip. However, the state’s point in closing was that this is not merely a 

case of an eyewitness identification of a stranger; rather, the case has additional 

corroborating factors. For example, the eyewitness picked out a person who was the 

victim’s neighbor; the eyewitness described a green SUV as the vehicle the shooter 

drove away from the scene; the victim’s girlfriend reported their neighbor “Smoke” 

had been looking for the victim in an upset manner and he drove a green SUV; and a 

green Chevy Avalanche was admitted to be the vehicle exclusively driven by 

Appellant. 

{¶76} Therefore, even if the admission of the contents of the tip was 

erroneous, these closing arguments cannot be characterized as improper. State v. 

Ricks, 136 Ohio St.3d 356, 361, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 43 (where 

prosecutor referred to statement of non-testifying declarant). These closing 

arguments could have been made even in the absence of the testimony on the tip. 

We turn to evaluate the admissibility of the detective’s testimony as to the content of 

the tip. 

{¶77} The trial court typically has broad discretion in admitting or excluding 

evidence, and the exercise of that discretion will not be disturbed absent material 
-24-

prejudice. State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343, 350 (1987). 

However, Appellant complains the “double hearsay” involved in the detective’s 

statement was testimonial and prohibited by the Confrontation Clause. It has been 

stated that a de novo standard of review is applied to a claim that a criminal 

defendant's rights have been violated under the Confrontation Clause. State v. 

Barnette, 7th Dist. No. 11MA196, 2014-Ohio-5673, ¶ 26. 

{¶78} The Sixth Amendment’s Confrontation Clause provides: “In all criminal 

prosecutions, the accused shall enjoy the right *.*.*. to be confronted with the 

witnesses against him.” The clause prohibits the admission of testimonial statements 

of a non-testifying witness unless he was unavailable to testify and the defendant had 

a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-

54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (victim’s recorded statement to police 

was testimonial). The testimonial character of a statement separates it from other 

hearsay which is not subject to the Confrontation Clause. Davis v. Washington, 547 

U.S. 813, 821-822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (911 call during domestic 

dispute was not testimonial due to on-going emergency; victim’s statement after 

being separated from husband and questioned by police was testimonial due to the 

primary purpose of proving past events relevant to later criminal prosecution). 

{¶79} “But there may be other circumstances, aside from ongoing 

emergencies, when a statement is not procured with a primary purpose of creating an 

out-of-court substitute for trial testimony. In making the primary purpose 

determination, standard rules of hearsay, designed to identify some statements as 

reliable, will be relevant.” Michigan v. Bryant, 562 U.S. 344, 358-359, 131 S.Ct. 

1143, 179 L.Ed.2d 93 (2011). The primary purpose of an interrogation is ascertained 

through an objective analysis of the circumstances of an encounter and the 

statements and actions of the interrogators and those making a declaration. Id. at 

360. The severity of the victim’s injuries, the informality of the encounter with the 

declarant, the use of a gun, the absence of an identification of the suspect, the 

danger to the public or the victim, and on-going emergency are all relevant 
-25-

considerations in determining the primary purpose. Id. at 364-366 (police questioning 

of victim of shooting who was waiting for emergency medical services). 

{¶80} Here, we have a tip the day after a shooting provided to the detective 

by relatives of the victim, which prompted him to investigate a person with a certain 

nickname from the neighborhood who drives a green SUV. Appellant recognized that 

even if the statement was testimonial, “there is no dispute the Confrontation Clause 

‘does not bar the use of testimonial statements for purposes other than establishing 

the truth of the matter asserted.’ ” Ricks, 136 Ohio St.3d 356 at ¶ 18, citing Crawford, 

541 U.S. at 59, fn. 9. 

{¶81} In one case, a police officer testified he received information about a 

“sports bookmaking” operation taking place in Roseville, Ohio. The Supreme Court 

held: “extrajudicial statements made by an out-of-court declarant are properly 

admissible to explain the actions of a witness to whom the statement was directed.” 

State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980). The Court found 

the testimony at issue was not offered to prove the truth of the matter asserted but 

was only presented “to explain the subsequent investigative activities of the 

witnesses.” Id. Notably, in providing general background to explain what led the 

police to begin an investigation into a possible illegal gambling operation in Roseville, 

the testimony did not tie the defendants to the gambling operation. See Ricks, 136 

Ohio St.3d 356 at ¶ 20 (discussing the Thomas case) 

{¶82} In Ricks, the Supreme Court agreed with the Tenth District’s statement 

that there are limits to the general rule because of the great potential for abuse and 

potential confusion to the trier of fact. Ricks, 136 Ohio St.3d 356 at ¶ 24, citing State 

v. Blevins, 36 Ohio App.3d 147, 149, 521 N.E.2d 1105 (10th Dist.1987). It was noted 

that a prosecutor may attempt to use a police officer's testimony as to his 

investigative conduct as a pretext to introduce highly prejudicial out-of-court 

statements. Ricks, 136 Ohio St.3d 356 at ¶ 24, citing State v. Humphrey, 10th Dist. 

No. 07AP–837, 2008-Ohio-6302. The Ricks Court concluded: 

In sum, in order for testimony offered to explain police conduct to be 

admissible as nonhearsay, the conduct to be explained should be 
-26-

relevant, equivocal, and contemporaneous with the statements; the 

probative value of statements must not be substantially outweighed by 

the danger of unfair prejudice; and the statements cannot connect the 

accused with the crime charged. 

Ricks, 136 Ohio St.3d 356 at ¶ 28. 

{¶83} The officer in Ricks testified that: as he drove past a house with the 

declarant-accomplice, the declarant identified the person standing outside as 

“Peanut”, this was the name the officer heard was one of the shooters from another 

officer (who presumably heard it from the declarant); the declarant-accomplice 

appeared scared as they drove by; the officer called the house and ascertained the 

defendant used the name Peanut; and after the officer obtained a photograph of the 

defendant, the declarant identified the person in the photograph as Peanut. The 

Court noted that although some of the officer’s testimony explained how he obtained 

a photo of the defendant, other parts of it went much further than explaining the 

investigation. Id. at ¶ 28-30. 

{¶84} The Court said the statements were unfairly prejudicial, finding the nonhearsay reason for introducing the statements (investigatory background) was 

pretextual. Id. at ¶ 34, 45 (both instances in the officer’s testimony when he related 

that the accomplice said, ‘That's Peanut,’ constituted hearsay because they were 

offered to prove the truth of the matter asserted rather than to explain police 

conduct). The Court found the out-of-court statements “exceptionally damaging” 

because the declarant was the other suspect in the murder and most of the state’s 

evidence dealt with that other suspect’s connection to the crime; in fact, the state’s 

case “revolved” around the declarant. Id. at ¶ 34, 36-37. “[A]n alleged accomplice's 

out-of-court statement incriminating a defendant is ‘particularly deserving of crossexamination.’” Id. at ¶ 36, citing State v. Issa, 93 Ohio St.3d 49, 60, 752 N.E.2d 904 

(2001). 

{¶85} The Court concluded the constitutional Confrontation Clause violation 

was not harmless beyond a reasonable doubt as there was a reasonable possibility 

the officer’s testimony that the accomplice pointed out the defendant as “Peanut” 
-27-

contributed to the defendant’s conviction. Ricks, 136 Ohio St.3d 356 at ¶ 47 (the fact 

that much of the proof in the case was against the accomplice makes it reasonably 

possible that the testimony regarding the statements he made in identifying the 

defendant would have carried weight with the jury). The Court stated that whether a 

Sixth Amendment error was harmless beyond a reasonable doubt is not simply an 

inquiry into the sufficiency of the remaining evidence but whether there is a 

reasonable possibility that the evidence complained of might have contributed to the 

conviction. Ricks, 136 Ohio St.3d 356 at ¶ 46, citing Chapman v. California, 386 U.S. 

18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (for application of harmless beyond a 

reasonable doubt test to constitutional error). 

{¶86} In speaking of harmless error, Crim.R. 52(A) provides: “Any error, 

defect, irregularity, or variance which does not affect substantial rights shall be 

disregarded.” See also Evid.R. 103(A) (error may not be predicated upon a ruling 

which admits or excludes evidence unless a substantial right of the party is affected 

and a timely objection was made). To ascertain whether substantial rights were 

affected, a court must evaluate prejudice to the defendant. State v. Morris, 141 Ohio 

St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23, 27. Courts are to focus on the 

impact the offending evidence had on the verdict and the strength of the remaining 

evidence. Id. at ¶ 25. 

{¶87} To ascertain “whether a new trial is required or the error is harmless 

beyond a reasonable doubt, the court must excise the improper evidence and 

evaluate the remaining evidence.” Id. at ¶ 29 (adding the error is harmless if there is 

overwhelming evidence of guilt or some other indicia that the error did not contribute 

to the conviction). In sum, a prejudicial error that improperly affected the verdict is to 

be excised, and the remaining evidence is to be weighed to see if there is evidence 

beyond a reasonable doubt of the defendant’s guilt. Id. at ¶ 33. See also State v. 

Harris, 142 Ohio St.3d 211, 220, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37 (a case 

involving a constitutional error, which noted that Morris dispensed with any distinction 

between non-constitutional and constitutional errors when conducting a harmless 

error review). 
-28-

{¶88} The law recognizes errors are made in a typical trial and a defendant is 

not entitled to the perfect trial. United States v. Hastings, 461 U.S. 499, 508-509, 103 

S.Ct. 1974, 76 L.Ed.2d 96 (1983) (“there can be no such thing as an error-free, 

perfect trial, and * * * the Constitution does not guarantee such a trial.”). The Ricks

Court was most concerned with the declarant being an accomplice, the two nontestimonial identifications of the defendant as Peanut, the state’s case revolved 

around the declarant-accomplice, and other distinguishing facts. The Court’s focus 

was not on the bare fact someone told the officer to investigate Peanut. 

{¶89} In our case, the tip led the detective to investigate individuals with the 

nickname Smoke who drove a green SUV (and lived in the neighborhood). The 

detective’s conduct was relevant, equivocal and contemporaneous with the 

statements. In urging prejudice, Appellant suggests the tip directly connected him 

with the shooting by using his nickname. Yet, the tip did not identify Appellant as 

Smoke. Rather, the testimony of an eyewitness identified Appellant as the shooter, 

and the testimony of the victim’s girlfriend identified Appellant as Smoke. 

{¶90} Additionally, the jury had already heard testimony on these subjects. 

The investigation of Smoke due to a tip was cumulative of the concerns expressed by 

the victim’s live-in girlfriend to the detective and to the jury as she testified. She 

disclosed the same information plus additional facts: the victim did home and car 

repairs for their neighbor, who lived three doors down; the neighbor’s nickname was 

Smoke; he drives a green SUV; he seemed upset with the victim in the time leading 

up to his death; he came looking for the victim multiple times in one night; the victim 

seemed to be avoiding Smoke; the neighbor’s behavior was strange and made her 

nervous; and the victim seemed unusually nervous during this time. Finally, as 

aforementioned, she identified the defendant in court as the subject of her testimony. 

{¶91} Furthermore, the eyewitness to the shooting identified Appellant as the 

person she saw standing near her house firing eight or nine shots at the victim. She 

reported the shooter looked at her and then entered a green SUV or truck. She 

identified Appellant’s green Chevy Avalanche as being the type of vehicle she saw 

(although she did not recall the bed on the back). Another witness saw an individual 
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leave the area by the victim after the gunshots, and she testified that he drove away 

in a large green truck. Plus, the victim himself made a dying declaration to the 

responding officer that the shooter’s vehicle was a green truck. At the time of his 

arrest, Appellant admitted he was the sole driver of the green Chevy Avalanche 

parked in his driveway. 

{¶92} Under the circumstances of this case, this court concludes any error in 

the admission of evidence contained in the tip was harmless beyond a reasonable 

doubt. Due to the other evidence, the prejudicial impact of the evidence was not 

high. If we excise the tip and evaluate the remaining evidence, the state proved 

beyond a reasonable doubt Appellant was the shooter. This includes the evidence 

mentioned immediately supra and the evidence in our statement of the case, 

including the victim’s 911 call prior to the shooting, which reveals his assailant was 

accusing him of stealing and asking him to enter a vehicle. This assignment of error 

is overruled. 

ASSIGNMENT OF ERROR FIVE: INEFFECTIVE ASSISTANCE OF COUNSEL 

{¶93} Appellant’s final assignment of error contends: 

“Mr. Mitchell was denied the effective assistance of counsel when defense 

counsel (1) asked about the ‘suspect’ in the second line-up when the second line-up 

pertained to the investigation of threats made against the sole eyewitness, (2) failed 

to move for a mistrial when Detective Martin offered hearsay from a non-testifying 

witness to link Mr. Mitchell to the crime, and (3) failed to object [to] the State’s use of 

testimonial ‘double hearsay’ evidence for the truth of the matter asserted during 

closing arguments.” (Citations omitted). 

{¶94} We review a claim of ineffective assistance of counsel under a two-part 

test, which requires the defendant to show: (1) his lawyer's performance fell below 

an objective standard of reasonable representation; and (2) prejudice arose from the 

lawyer's deficient performance. State v. Bradley, 42 Ohio St.3d 136, 141-143, 538 

N.E.2d 373 (1989), citing Strickland v. Washington, 466 U.S. 668, 104, S.Ct. 2052, 

80 L.Ed.2d 674 (1984). As both prongs must be established, if the performance was 

not deficient, then there is no need to review for prejudice. 
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{¶95} In evaluating the alleged deficient performance, our review is highly 

deferential to counsel’s decision as there is a strong presumption that counsel's 

conduct falls within the wide range of reasonable professional assistance. Bradley, 

42 Ohio St.3d at 142-143, citing Strickland, 466 U.S. at 689. See also State v. 

Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995) (defendant must overcome 

the strong presumption that, under the circumstances, the challenged action might be 

considered sound trial strategy). There exist “countless ways to provide effective 

assistance in any given case.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 

U.S. at 689. 

{¶96} To show prejudice, a defendant must prove his lawyer's errors were so 

serious that there is a reasonable probability the result of the proceedings would 

have been different. Carter, 72 Ohio St.3d at 558. Lesser tests of prejudice have 

been rejected: “It is not enough for the defendant to show that the errors had some 

conceivable effect on the outcome of the proceeding.” Bradley, 42 Ohio St.3d at fn. 

1, quoting Strickland, 466 U.S. at 693. Prejudice from defective representation 

justifies reversal only where the results were unreliable or the proceeding 

fundamentally unfair due to the performance of trial counsel. Carter, 72 Ohio St.3d at 

558, citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 

(1993). 

{¶97} Two of Appellant’s ineffective assistance of counsel allegations involve 

the issues presented in assignment of error number four. Appellant complains that, 

although counsel objected to the testimony regarding a tip, counsel did not ask for a 

mistrial after that evidence was presented. He also urges the failure to object and 

move for mistrial during closing arguments was ineffective assistance of counsel. As 

aforementioned, Appellant believes the state relied on contents of the tip in its 

closing. Appellant concludes there is no strategic reason for failing to move for a 

mistrial since counsel objected to the evidence. 

{¶98} Counsel was not ineffective for refraining from seeking a mistrial as to 

the detective’s testimony on the tip. Defense counsel timely objected to the 

testimony. However, the trial court overruled his objection and allowed the officer to 
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testify as to what he began investigating after the tip. We reviewed the trial court’s 

decision in assignment of error number four. A mistrial request would merely be 

asking the trial court to change its mind on the prior ruling and find the proceeding 

must be terminated. See, e.g., State v. Whitlow, 7th Dist. No. 91 CA 10 (Mar. 31, 

1994) (“counsel objected to the admission of the evidence and his objection was 

overruled by the trial judge. It would have been useless for him to pursue a motion 

for a mistrial.”). There was neither deficient performance nor prejudice by the failure 

to seek a mistrial. 

{¶99} As to the prosecutor’s closing argument, in assignment of error number 

four, we found the statements contested on appeal could have been made by the 

state even in the absence of the testimony on the tip. Therefore, counsel’s failure to 

object to the closing argument was not deficient performance; nor was there a 

reasonable probability the result would have been different had counsel objected. 

{¶100} Appellant also sets forth an allegation of ineffective assistance of 

counsel relating to the third assignment of error. As aforementioned, counsel sought 

a mistrial on the grounds the detective testified about another investigation involving 

threats to the witness by an associate of the defendant. After the court denied the 

mistrial motion, defense counsel asked the detective about another name provided 

by the victim’s girlfriend and then asked the purpose of the two photographic arrays. 

The detective answered that one was for the shooter and one was for the person who 

came to the house and threatened the witness. (Tr. 564).2 Defense counsel had the 

detective clarify that no threats related to Appellant. (Tr. 565). 

{¶101} Appellant states this questioning was deficient performance, 

noting counsel had previously made every effort to keep this testimony from the jury. 

Appellant believes the outcome of the trial would have been different but for defense 

counsel’s further elicitations from the detective. 

 2 Contrary to a suggestion in footnote 7 of Appellant’s brief, the detective’s testimony at 

suppression was not misleading. He stated that the second line-up had a dual purpose: he wanted to 

make sure an associate of Appellant was not the shooter, and he also wondered if that associate was 

the person who threatened the witness. (Supp.Hrg. Tr. at 29). 
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{¶102} However, it can be considered a trial tactic to clarify the situation 

for the jury once the request for a mistrial was not granted. Debatable trial strategy 

very rarely constitutes ineffective assistance of counsel. See State v. Thompson, 33 

Ohio St.3d 1, 10, 514 N.E.2d 407 (1987). We are to refrain from second-guessing 

the strategic decisions of trial counsel. Carter, 72 Ohio St.3d at 558. Defense 

counsel’s questioning did not fall below an objective standard of reasonable 

representation. Moreover, due to the clarification that the threats did not relate to 

Appellant, any error was not so serious that the result of the trial was unreliable or the 

proceeding was fundamentally unfair. Carter, 72 Ohio St.3d at 558, citing Lockhart, 

506 U.S. at 369. On these bases, this assignment of error is overruled. 

{¶103} For the foregoing reasons, the trial court’s judgment is affirmed. 

Waite, J., concurs. 

DeGenaro, J., concurs.