[Cite as State v. Paige, 2019-Ohio-1088.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

MICHAEL PAIGE, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 17 MA 0033 

 

Criminal Appeal from the 

Court of Common Pleas of Mahoning County, Ohio 

Case No. 2012 CR 224 

BEFORE: 

Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges. 

JUDGMENT: 

Affirmed. 

Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant 

Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, 

for Plaintiff-Appellee 

Atty. Louis M. DeFabio, 4822 Market Street, Suite 220, Youngstown, Ohio 44512, for 

Defendant-Appellant. 

 

Dated: March 25, 2019 

 

WAITE, P.J. 
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Case No. 17 MA 0033

{¶1} Appellant Michael Paige appeals a January 12, 2017 Mahoning County 

Common Pleas Court judgment entry in which he was found guilty of murder with a gun 

specification and tampering with evidence. While the instant direct appeal was pending, 

Appellant filed a motion for resentencing, which we construed as a motion for 

postconviction relief. State v. Paige, 7th Dist. No. 17 MA 0146, 2018-Ohio-2782. At the 

initial sentencing hearing, the trial court failed to properly impose postrelease control. The 

trial court was required to notify Appellant that he was subject to a discretionary term of 

three years of postrelease control at the sentencing hearing and in the judgment entry. 

State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 1; Paige at ¶ 32. 

We remanded the matter for a limited resentencing on the issue of postrelease control. 

A resentencing hearing was held on December 10, 2018. No transcript of these 

proceedings are a part of the record. However, in an amended judgment entry of 

sentence dated December 14, 2018, the trial court noted that Appellant’s prison term is 

to be followed by a discretionary period of postrelease control of up to three years. 

(12/14/18 J.E.) Appellant has filed no motions relative to his resentencing nor has he 

assigned error to the sentence imposed while his direct appeal was still pending. The 

issues raised on appeal deal only with his underlying convictions. 

{¶2} On appeal, Appellant asserts that a violation of the Sixth Amendment 

Confrontation Clause occurred when investigating detectives testified regarding 

statements made by a codefendant who did not testify. Appellant alleges prosecutorial 

misconduct for eliciting the testimony and allowing witnesses to vouch for the credibility 

of the codefendant. Appellant also claims ineffective assistance of trial counsel on 

several grounds: failing to object to the prosecutorial misconduct, allowing admission of 
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Case No. 17 MA 0033

inadmissible testimony, and failure to file a motion to suppress. Appellant also claims 

cumulative error occurred and that his Sixth Amendment right to a speedy trial was 

violated. Our review of this record shows that Appellant’s arguments have no merit and 

we affirm the judgment of the trial court. 

Factual and Procedural History 

{¶3} Appellant’s conviction stems from an incident that occurred on or around 

March 1, 2012. Munir Blake (“Blake”) resided on the first floor of a duplex with his wife 

and five children. Jasmin Fletcher (“Fletcher”) lived on the second floor of the duplex. 

Blake and Fletcher engaged in a verbal exchange the day prior to the incident because 

Blake recently discovered that Fletcher had run an extension cord from her second floor 

apartment to the basement in order to tap into his electrical line. She no longer had 

service and was in the process of moving out of her apartment. On the day of the incident, 

two of Blake’s children, a son and daughter ages 9 and 11, walked home from school and 

entered their apartment. Blake’s son watched television while his daughter went to her 

room. Blake was sleeping in his own room, because he was unwell. He emerged a short 

time later to check his electrical line and make sure that Fletcher had not plugged an 

extension cord into his outlet again. After Blake left the apartment, his children both heard 

him argue with two other individuals. The son said he recognized only his father’s voice. 

The daughter said she recognized her father’s voice, Fletcher’s voice and a third, 

unknown individual. At trial she testified this voice “was high pitched and it sounded like 

a woman.” (1/3/17 Tr., p. 196.) Blake’s son testified that he could see his father in the 

doorway between the kitchen and the back stairwell. (1/3/17 Tr., p. 162.) He also testified 

that he could hear his father arguing that his electric bill was “sky high” because of 
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Case No. 17 MA 0033

Fletcher. This was followed by one of the other individuals saying they were going to get 

a gun. (1/3/17 Tr., p. 165.) Blake’s daughter testified that she heard the unknown voice 

say, “I will shoot you right now.” (1/3/17 Tr., p. 197.) She also heard Fletcher say, “that’s 

five dollars down the drain; you cut my cord.” (1/3/17 Tr., p. 207.) Both children said they 

heard someone run upstairs and then back down while their father continued arguing. 

Then they both heard multiple gunshots and Blake’s son ran out of the apartment. He 

turned around to get his sister, and they saw their father lying on the ground. Both 

children ran out of the building to a neighbor’s home. (1/3/17 Tr., pp. 167-168.) Blake’s 

son testified that he saw Fletcher standing outside of their duplex near the front porch 

moments after the shooting occurred. (1/3/17 Tr., p. 172.) 

{¶4} Police and an ambulance were called. Officer Anthony Marzullo 

(“Marzullo”) responded for the Youngstown Police Department. He recovered seven 

spent shell casings, all from a .45 caliber gun. He also recovered five bullets from the 

scene. All casings and bullets were found in the area of the back landing near the kitchen. 

(1/3/17 Tr., p. 228.) 

{¶5} Dr. Joseph Ohr, Mahoning County Deputy Coroner, responded to the scene 

and later performed the autopsy on Blake. He testified that Blake suffered nine gunshot 

wounds. He testified the entry wounds were consistent with an individual firing from an 

elevated position on the stairs. (1/3/17 Tr., p. 277.) 

{¶6} Youngstown Detective Sergeant Rick Spotleson (“Det./Sgt. Spotleson”) 

was assigned as lead investigator to Blake’s murder. Detective Sergeant Daryl Martin 

(“Det./Sgt. Martin”) assisted Det./Sgt. Spotleson in the investigation. At trial, Det./Sgt. 

Spotleson testified that during the investigation he learned of the prior confrontation 
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between Blake and Fletcher regarding her use of Blake’s electricity. (1/3/17, Tr., p. 305.) 

He observed an extension cord that extended down the steps from the second floor to 

the basement, and that a phone charger was connected to it in Fletcher’s apartment. 

(1/3/17 Tr., p. 306.) After interviewing witnesses, including the children, Fletcher became 

a person of interest. She was arrested and interviewed by Det./Sgt. Spotleson several 

hours after the shooting. (1/3/17 Tr., p. 312.) Det./Sgt. Spotleson revealed at trial that 

this interview lead to Appellant: 

Q And you interviewed [Fletcher]? 

A Yes 

Q Did she tell you that she was present when this occurred? 

A Yes 

Q Did she identify a second person of interest? 

A Yes 

Q And who was that? 

A Michael Paige 

{¶7} Det./Sgt. Spotleson testified he then concluded Appellant was a person of 

interest, and obtained a home address for Appellant. Late in the evening of the incident, 

police went to the address and found Appellant and his girlfriend. Det./Sgt. Spotleson 

obtained consent to search the residence. A .45 caliber firearm magazine clip was 

recovered from the scene. These bullets were consistent with the casings found at the 

murder scene. (1/3/17 Tr., p. 314.) 

{¶8} Appellant was not placed under arrest at the conclusion of the search. 

However, Appellant and his girlfriend agreed to come to the station to give statements. 
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Case No. 17 MA 0033

The interview took place at approximately 1:20 a.m. on the day after the incident. During 

Appellant’s interview with Det./Sgts. Spotleson and Martin he gave several different 

accounts of his role in the incident. Det./Sgt. Spotleson testified at trial that Appellant first 

said that he saw Fletcher during the day to help her repair her car but did not see her that 

night and was not at her apartment. (1/3/17 Tr., p. 316.) Appellant then told officers that 

he was at Fletcher’s apartment on the night of the incident but was outside on his phone, 

and when he heard gunshots, he left. (1/3/17 Tr., p. 317.) Appellant’s third version was 

that he had been in Fletcher’s apartment helping her move. He remained in the apartment 

while Fletcher went downstairs. He heard her engage in an argument, heard gunshots, 

and then Fletcher ran upstairs to the apartment yelling “let’s go, let’s go.” (1/3/17 Tr., p. 

317.) 

{¶9} Det./Sgt. Spotleson testified that at the end of the interview he did not 

believe he had enough evidence to arrest Appellant. (1/3/17 Tr., p. 318.) A gunshot 

residue test was performed on Appellant, but the results were negative. 

{¶10} At approximately 8:40 a.m. the following morning, Det./Sgts. Spotleson and 

Martin again interviewed Fletcher. They showed Fletcher the video recording of 

Appellant’s interview. On direct examination, Det./Sgt. Spotleson testified to the 

following: 

Q After you showed her the portion of the interview with the defendant did 

she change her statement? 

A Yes. 

Q In the second statement she gave did she tell you who the shooter was? 

A Yes. 
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Case No. 17 MA 0033

Q Did she tell you where the shooter was standing? 

A Yes. 

Q Did she tell you where she was standing? 

A Yes. 

Q And where the victim was standing? 

A Yes. 

Q Based on your assessment of the scene, your conversations with Dr. Ohr 

and what she had told you, what Jasmin Fletcher told you, did that make 

sense to you? 

A Yes. 

Q At the end of the interview did you have a suspect? 

A Yes. 

Q Who was that suspect? 

A That suspect was Michael Paige. 

(1/3/17 Tr., pp. 320-321.) 

{¶11} Det./Sgt. Spotleson also testified on direct regarding the second Fletcher 

interview: 

Q Did she talk about -- did you discuss with her whether or not [Blake] had 

a gun? 

A Yes. 

Q Did he have a gun? 

A No. 
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Case No. 17 MA 0033

Q All right. Did you discuss with her whether or not she was threatened by 

Mr. Blake? 

A Yes. 

Q Was she? 

A No. 

(1/3/17 Tr., p. 329.) 

{¶12} Appellant was arrested that day and brought to the Youngstown Police 

Department. After being read his Miranda warnings, he gave another statement to 

Det./Sgts. Spotleson and Martin. A video recording of the interview was admitted into 

evidence at trial. Det./Sgt. Spotleson testified on direct that Appellant initially repeated 

that Fletcher was the shooter. This was his third version of the story from his earlier 

interview. Appellant eventually admitted, however, that he shot Blake: 

Q Was there a time when finally he told you that he did it? 

A Yes. 

Q Did he tell you—when he told you that did he tell you where the victim 

was standing? 

A Yes. 

Q Did he tell you where Jasmin Fletcher was standing? 

A Yes. 

Q Did he tell you where he was standing? 

A Yes. 

Q And was that consistent with what Jasmin Fletcher had told you and with 

what Dr. Ohr -- what his findings were? 
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Case No. 17 MA 0033

A Yes. 

(1/3/17 Tr., p. 324.) 

{¶13} At trial, both Det./Sgts. Spotleson and Martin testified that Appellant 

admitted in the final interview that he shot Blake. (1/3/17 Tr., pp. 324, 418.) At the end 

of this interview Det./Sgts. Spotleson and Martin left the room. Appellant’s girlfriend was 

allowed into the interview room and Appellant was allowed to speak to her. The entire 

encounter, including Appellant’s interview with the detectives and the conversation 

between Appellant and his girlfriend, was recorded and later played at trial. (1/3/17 Tr., 

p. 325.) 

{¶14} Appellant was indicted on March 8, 2012, on one count of aggravated 

murder in violation of R.C. 2903.01(A), (F), an unclassified felony; with a firearm 

specification in violation of R.C. 2941.145(A); one count of murder in violation of R.C. 

2903.02(A), (D), an unclassified felony, with a firearm specification in violation of R.C. 

2941.145(A); two counts of tampering with evidence in violation of R.C. 2921.12(A)(1), 

(B), felonies of the third degree; and one count of obstructing justice in violation of R.C. 

2921.32(A)(5), (C)(4), a felony of the third degree. 

{¶15} Appellant was arraigned on March 13, 2012. Court-appointed defense 

counsel filed a motion on September 17, 2012, seeking to suppress statements made by 

Appellant to police. In this motion counsel argued that the Miranda warnings were cursory 

in nature and Appellant was under the influence of drugs at the time the statements were 

given. A hearing on the motion to suppress was held and the motion was overruled by 

the trial court in a judgment entry dated October 25, 2012. 
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Case No. 17 MA 0033

{¶16} Jury trial commenced on February 24, 2014. The jury found Appellant not 

guilty of aggravated murder. This jury was unable to reach a unanimous verdict on the 

remaining charges, however, so in a judgment entry dated March 4, 2014, the trial court 

declared a mistrial on these charges and discharged the jury. 

{¶17} New counsel was appointed. Appellant filed a pro se motion attempting to 

revoke his previously executed waiver of the right to a speedy trial. His newly appointed 

counsel raised the issue of his competency to stand trial on August 6, 2015. A hearing 

on Appellant’s competency was held on October 5, 2016 and the trial court ultimately 

concluded Appellant was competent to stand trial. 

{¶18} A second jury trial commenced on January 11, 2016. In a judgment entry 

dated January 13, 2016, the trial court sua sponte declared a mistrial after the jury was 

empaneled, because Appellant filed a habeas corpus proceeding naming the assistant 

prosecuting attorney as a defendant in the United States District Court for the Northern 

District of Ohio. 

{¶19} Ultimately, a jury trial in this matter took place on January 3, 2017. The 

state presented the testimony of several witnesses, including Det./Sgts. Spotleson and 

Martin. Both the state and defense counsel subpoenaed Fletcher as a witness. However, 

Fletcher failed to appear and a material witness warrant was issued. While Fletcher 

appeared pursuant to this warrant, the state rested without testimony from Fletcher. 

Appellant did call Fletcher as a witness. Fletcher appeared and asserted her Fifth 

Amendment privilege against self-incrimination and refused to testify. (1/3/17 Tr., pp. 

388-389.) A discussion ensued about whether Fletcher was able to assert a Fifth 

Amendment right. The discussion included statements from Fletcher’s counsel, who was 
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Case No. 17 MA 0033

present in the courtroom. The trial court concluded that, as Fletcher had entered a guilty 

plea for her part in the crime but had not yet been sentenced, she retained her right to 

invoke the privilege. The trial court reasoned that the incrimination inherent in her guilty 

plea was not complete without the sentence being imposed. (1/3/17 Tr., p. 390.) At the 

close of evidence, the trial court charged the jury not only as to murder, but on the lesser 

included offense of voluntary manslaughter. The jury returned a guilty verdict on the 

murder charge and the firearm specification, and also on the charge of tampering with the 

evidence. 

{¶20} A sentencing hearing was held on January 24, 2017. The trial court 

sentenced Appellant to life imprisonment with parole eligibility after fifteen years for the 

murder conviction, three years for tampering with evidence to be served concurrently with 

the sentence imposed for murder, and three years for the firearm specification, to be 

served consecutively to the sentence imposed for the murder charge. Appellant filed this 

timely appeal. 

ASSIGNMENT OF ERROR NO. 1 

Testimony relating to out of court, testimonial statements, violated 

Appellant's constitutional right to confront witnesses as guaranteed by the 

Sixth Amendment to the United States Constitution and Art. I, Section 10 of 

the Ohio Constitution. 

{¶21} Appellant contends the testimony of Det./Sgts. Spotleson and Martin 

regarding the statements Fletcher made to them during police interviews constituted 

testimonial hearsay in violation of his right to confront witnesses guaranteed by the Sixth 

Amendment Confrontation Clause. 
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Case No. 17 MA 0033

{¶22} The state contends the testimony of Det./Sgts. Spotleson and Martin was 

for the purpose of explaining their conduct during the investigatory process and that the 

probative value of the evidence was not substantially outweighed by the danger of unfair 

prejudice. 

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

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

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. Mitchell, 2016-Ohio-1439, 62 

N.E.3d 820, ¶ 77 (7th Dist.). 

{¶24} Pursuant to the Sixth Amendment Confrontation Clause, “[i]n all criminal 

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

against him.” Testimonial statements of a non-testifying witness are inadmissible unless 

the witness was unavailable to testify and the defendant had a prior opportunity for crossexamination of the witness. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 

158 L.Ed.2d 177 (2004). In Crawford, the Supreme Court declined to provide a 

comprehensive definition of “testimonial,” but indicated that the term includes, at a 

minimum, prior testimony at a preliminary hearing, before a grand jury, at a former trial, 

and statements made during police interrogations. Id. at 68. 

{¶25} In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 

(2006), the Supreme Court held that statements are nontestimonial for Confrontation 

Clause purposes when made in the course of a police interrogation under such 

circumstances that indicate objectively the primary purpose of the interrogation is to 

enable police to address an ongoing emergency. Id. at 822. Testimonial statements 
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Case No. 17 MA 0033

occur when the circumstances objectively indicate that there is no ongoing emergency 

and the primary purpose of the interrogation is to establish or prove past events that are 

potentially relevant to a future criminal prosecution. Id. See, also, State v. Siler, 116 Ohio 

St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, paragraph two of the syllabus; State v. 

Duncan, 7th Dist. No. 16 NO 0440, 2017-Ohio-9378. 

{¶26} Hence, we must distinguish between police interrogations that are part of 

an ongoing emergency and interrogations related to past criminal conduct and which 

serve only to investigate potential criminal prosecution. Appellant claims the testimony 

of two witnesses give rise to Confrontation Clause issues: the direct testimony of 

Det./Sgt. Spotleson and the direct testimony of Det./Sgt. Martin. Det./Sgt. Spotleson was 

lead investigator on the case and was assisted by Det./Sgt. Martin. Both were present 

during the interviews of Appellant and Fletcher. 

{¶27} Det./Sgt. Spotleson provided most of the testimony to which Appellant 

objects. As noted above, during direct examination Det./Sgt. Spotleson was asked a 

number of questions regarding statements Fletcher made during her two interviews with 

police. At the outset it should be noted that, although the first interview was conducted 

on the same day as the incident, albeit several hours later, and the second interview was 

conducted the following morning, neither interview can be characterized as addressing 

an emergency situation. Fletcher was a person of interest during her first interview. At 

the conclusion of Fletcher’s first interview, Appellant was also a person of interest. At the 

time of the second interview, both Fletcher and Appellant had been placed under arrest. 

In the absence of an ongoing emergency, the statements made by Fletcher to police were 

made under circumstances that objectively indicate there was “no such ongoing 
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Case No. 17 MA 0033

emergency, and that the primary purpose of the interrogation is to establish or prove past 

events potentially relevant to later criminal prosecution.” Siler at ¶ 24, quoting Davis, at 

822. 

{¶28} The state contends the testimony of the detectives was “offered to explain 

an officer’s conduct while investigating a crime” and thus, are not hearsay and do not 

violate the Confrontation Clause. State v. Blevins, 36 Ohio App.3d 147, 149, 521 N.E.2d 

1105 (10th Dist.1987). We do not find this reasoning persuasive, particularly when 

considering the testimony elicited from Det./Sgt. Spotleson regarding his first interview of 

Fletcher: 

Q And you interviewed [Fletcher]? 

A Yes 

Q Did she tell you that she was present when this occurred? 

A Yes 

Q Did she identify a second person of interest? 

A Yes 

Q And who was that? 

A Michael Paige 

(1/3/17 Tr., p. 312.) 

{¶29} In State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, 

the Ohio Supreme Court held that an officer’s testimony regarding the out-of-court 

statements of an alleged accomplice identifying the defendant as the assailant violated 

the Confrontation Clause when the accomplice did not testify at trial. In Ricks, the officer 

testified regarding the process undertaken to obtain a photograph of the defendant as 
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Case No. 17 MA 0033

well as the act of presenting that photograph to the alleged accomplice during an 

interrogation of that accomplice. Following this explanation, the officer testified: 

Q. Once again, [Officer], when you showed [the alleged accomplice] this 

photo, after obtaining it from Georgia, did he make identification? 

A. Yes. 

Q. What did he say? 

A. He says that’s Peanut. 

Id. at ¶ 40. 

{¶30} In contrast, in State v. Johnson, 8th. Dist. No. 105612, 2018-Ohio-1389, 110 

N.E.3d 800, the investigating officer interviewed a witness named Wright. Wright invoked 

his Fifth Amendment privilege at the defendant’s trial. During defendant’s trial, the officer 

testified that Wright had given her a description of both the vehicle involved in the shooting 

and the shooter. During this testimony the officer did not repeat those descriptions. In 

fact, “[w]hen Officer Johnson began to offer hearsay testimony, the state and the court 

reminder her not to repeat what other people may have said.” Id. at ¶ 38. The Eighth 

District held that since the officer did not testify as to the exact statements of Wright, there 

was no Confrontation Clause violation. The state also presented the testimony of the 

decedent’s mother, Andrea, who had spoken to Wright about her son’s death: 

[STATE]: Why don’t you tell us about the following day. Did you meet with 

[Wright]? 

[ANDREA]: Yeah, the following day I guess he wanted to tell me who— 

[DEFENSE COUNSEL]: Objection. 
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Case No. 17 MA 0033

THE COURT: Well, why don’t we caution [Andrea]. One of the rules in 

court is that you can’t tell us what somebody else said. 

[STATE]: We went over the rules a little bit before your testimony * * * about 

hearsay. You can’t talk about what someone else told you, right? So I don’t 

want you to say the words that [Wright] said, right? 

[ANDREA]: Right 

* * * 

[STATE]: Did [Wright] tell you what happened? 

[ANDREA]: Yes. 

[STATE]: And without telling us what he said, did he tell you who had done 

it? 

[ANDREA]: Yes. 

[STATE]: Did he give you one name or more than one? 

[ANDREA]: He gave me [the] first and last name * * * of one person. 

[STATE]: Again, [Andrea], I don’t want to go into specifics about what he 

said, but did he tell you how it happened and how [Ayers} died? 

[ANDREA]: Yes. 

Johnson at ¶ 40. 

{¶31} The Eighth District likewise held in regard to this testimony that since the 

actual information the witness had learned from Wright was not disclosed during 

testimony, the testimony was not offered to prove the circumstances of the decedent’s 

death but only to explain how the case unfolded. Hence, it was not testimonial hearsay. 

Id. at ¶ 41. 
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Case No. 17 MA 0033

{¶32} The line of questioning in the instant case more closely reflects the situation 

found in Ricks, and not Johnson, as Appellee claims. Rather than testifying only to 

Det./Sgt. Spotleson’s “conduct while investigating a crime,” the testimony goes further, 

eliciting testimony about the identification of Appellant by his codefendant. Blevins at 

149. When testifying as to Fletcher’s first interview, not only did Det./Sgt. Spotleson relate 

the questions he asked her, he testified that she gave the officer Appellant’s name as a 

person involved in the crime. Regarding Fletcher’s second interview, after she was 

shown the video of Appellant’s interview implicating her as the shooter, Det./Sgt. 

Spotleson testified that Fletcher told him where she was standing, where the victim was 

standing and where the shooter was standing. He repeated those exact locations. He 

also testified that Fletcher told him Blake did not have a gun and that she did not feel 

threatened by Blake during the incident. (1/3/17 Tr., pp. 320-321, 329.) At the end of his 

questioning, Det./Sgt. Spotleson was asked whether he had a suspect at the conclusion 

of Fletcher’s interview. He responded in the affirmative and named Appellant. This 

testimony goes beyond the process used in the investigation. It goes to the heart of the 

fact at issue, the name of the shooter. Although not as direct as the testimony revealed 

as a result of the first interview, and framed in a manner that appears to explain police 

conduct during an investigation, it is clear that Det./Sgt. Spotleson’s testimony was 

offered to place before the jury Fletcher’s statements implicating Appellant as the shooter, 

and not simply to demonstrate how the investigation was conducted. 

{¶33} Det./Sgt. Martin testified as a witness for Appellant. He was called to testify 

regarding the search of Appellant’s residence, which failed to elicit an actual weapon, as 

well as to Appellant’s gun powder residue test results, which were negative. On cross-
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Case No. 17 MA 0033

examination, the state asked Det./Sgt. Martin about Appellant’s admission that he shot 

Blake and whether Appellant’s admission mirrored what Fletcher said about the crime 

scene: 

Q He also told you that he killed Munir Blake, correct? 

A Correct. 

Q And did [Fletcher] corroborate that? 

A Yes. 

Q He told you that [Blake] was standing that doorway—and just so you 

know, the jury went to the scene, so they have seen that. The doorway 

going from the kitchen onto that landing, stairway landing, he also told you 

that [Blake] was standing in that doorway, correct? 

A Correct. 

Q And did [Fletcher] corroborate that? 

A Yes. 

Q He also told you that [Fletcher] would have been pretty much facing 

[Blake], correct? 

A Correct. 

Q Standing on that landing, basically pretty much straight across from each 

other? 

A He described face to face. 

Q Okay. And [Fletcher] also corroborated that, correct? 

A Correct. 

* * * 
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Case No. 17 MA 0033

Q To the best of your knowledge, did [Fletcher] ever say that she shot and 

killed [Blake]? 

A No. 

(1/3/17 Tr., pp. 418-419.) 

{¶34} Again, rather than testifying only to Det./Sgt. Martin’s “conduct while 

investigating a crime” the testimony goes further and seeks to place before the jury that 

Fletcher corroborated Appellant’s admission. Blevins at 149. As Fletcher did not testify, 

the state used the officer’s testimony to put Fletcher’s statements into evidence. Under 

the primary purpose test set forth in Crawford and its progeny, the statements made by 

Fletcher during her police interrogations are testimonial in nature. The testimony given 

by both officers goes beyond their investigatory conduct and procedure and instead 

appears to be an attempt to prove the truth of the matter asserted: to identify Appellant 

as the assailant and to bolster Appellant’s admission. As Fletcher did not testify at trial 

and there was no previous opportunity for Appellant to cross-examination Fletcher, this 

testimony was inadmissible hearsay in violation of the Confrontation Clause. 

{¶35} Once we determine that the testimony was admitted erroneously, our 

inquiry does not end here, however. We must next look at whether Appellant was harmed 

by this error. In Ricks, the Supreme Court held that statements made by the officer were 

unfairly prejudicial and the cited purpose for the testimony, police investigatory procedure, 

was pretextual. Ricks at ¶ 34, 45. The Ricks Court found the out-of-court statements 

“exceptionally damaging” because the declarant was the other suspect in the murder. As 

most of the state’s evidence related to the other suspect’s involvement in the crime, the 

state’s case, then, “revolved” around the declarant. Id. at ¶ 36. The Ricks Court 
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Case No. 17 MA 0033

concluded the Confrontation Clause violation was not harmless beyond a reasonable 

doubt as there existed a reasonable possibility that the testimony of the officer contributed 

to the defendant’s conviction. Id. at ¶ 47. Whether a Confrontation Clause violation is 

harmless beyond a reasonable doubt involves not merely an inquiry into the sufficiency 

of the remaining evidence, absent the erroneously admitted evidence, but whether there 

is a reasonable possibility that the violating evidence might have contributed to the 

resulting conviction. Id. at ¶ 46, citing Chapman v. California, 368 U.S. 18, 24, 87 S.Ct. 

824, 17 L.Ed.2d 705 (1967). 

{¶36} Regarding harmless error, Crim.R. 52(A) provides that “[a]ny 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 on a ruling which admits or excludes 

evidence unless a substantial right of the party is affected and a timely objection was 

made.) In order to determine whether substantial rights were affected, we must evaluate 

whether there was prejudice to the defendant. State v. Morris, 141 Ohio St.3d 399, 2014-

Ohio-5052, 24 N.E.3d 1153, ¶ 23, 27. A court is required to review the impact of the 

offending evidence on the overall verdict and compare it to the strength of the other 

remaining evidence. Id. at ¶ 25. 

{¶37} To determine “whether a new trial is required or the error is harmless 

beyond a reasonable doubt, the court must excise the improper evidence from the record 

and then look to the remaining evidence.” Morris at ¶ 29. Moreover, “the cases where 

imposition of harmless error is appropriate must involve either overwhelming evidence of 

guilt or some other indicia that the error did not contribute to the conviction.” State v. 
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Case No. 17 MA 0033

Rahman, 23 Ohio St.3d 146, 151, 492 N.E.2d 401 (1986), quoting State v. Ferguson, 5 

Ohio St.3d 160, 166, 450 N.E.2d 265 (1983), fn. 5. 

{¶38} The fact that most concerned the Ricks Court was that the declarant who 

was the subject of the officer’s testimony was an accomplice, and the state’s evidence 

centered predominately around the accomplice. In the instant case, Fletcher is also a 

codefendant. The same concern over utilizing the testimonial statements of a 

codefendant is theoretically applicable here. Both investigating detectives testified about 

statements made by Fletcher which placed Appellant at the scene as the shooter. In 

urging prejudice under the plain error standard, Appellant alleges that although he 

confessed to shooting Blake, the record reflects that he told several different accounts of 

the events that transpired. The testimony of Det./Sgts. Spotleson and Martin had the 

effect of bolstering his admission, by corroborating the details of the version of events 

(including Appellant’s own) that reflect Appellant’s guilt. 

{¶39} While we are troubled by the admission of the testimony of Det./Sgts. 

Spotleson and Martin because the testimony went beyond what is allowable by law, the 

troubling nature of the testimony is considerably lessened when considering the 

remaining evidence presented to the jury. Excising the testimony of Det./Sgts. Spotleson 

and Martin, which we are required to do, this record reveals that the jury had before it 

overwhelming evidence of Appellant’s guilt. First and foremost, the jury was shown the 

videotaped admission of the shooting by Appellant, where he provided a detailed 

description of the murder scene and of the events in his own words. His description of 

the incident was corroborated by the testimony of Officer Anthony Marzullo who 

investigated the scene. It was further corroborated by Dr. Ohr, the medical examiner who 
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Case No. 17 MA 0033

not only investigated at the scene but performed the autopsy on Blake. Further, the jury 

was taken to the scene of the shooting in order to better visualize the testimony presented 

regarding the placement of the shooter in relation to the gunshot wounds suffered by 

Blake. We cannot discount the inherent significance of the video confession, where the 

jury was able to see Appellant confessing to the crime and describing the scene in detail. 

Nor can we second-guess the jury’s credibility determinations in that regard. State v. Hill,

75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996). The erroneous testimony regarding 

Fletcher’s statements was merely cumulative to testimony already presented by Dr. Ohr, 

Officer Marzullo and, most notably, Appellant himself. 

{¶40} On review of this record, we conclude that, in view of the particular facts 

and circumstances of this case, any error in the hearsay admission of Fletcher’s 

statements was harmless beyond a reasonable doubt. We stress that we reach this 

conclusion based on the other overwhelming evidence of Appellant’s guilt, most notably 

Appellant’s own detailed videotaped confession, but also the testimony of the other 

witnesses, as well as the remaining relevant testimony of both Det./Sgts. Spotleson and 

Martin. Based on this record, the cumulative nature of the officers’ testimony was neither 

impactful nor prejudicial. Excising that testimony and considering the remaining evidence 

presented, the state proved beyond a reasonable doubt that Appellant was the shooter. 

We caution that it is the nature and amount of other relevant evidence that clearly impacts 

our review of this matter. Absent the overwhelming evidence of guilt present in this 

record, the testimonial hearsay evidence would most likely not be harmless. Based on 

the record in this matter, Appellant’s first assignment of error is without merit and is 

overruled. 
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Case No. 17 MA 0033

ASSIGNMENT OF ERROR NO. 2 

The Appellant was denied a fair trial, as guaranteed by the Fourteenth 

Amendment to the United States Constitution and Article I, Sections 1, 10 

and 16 of the Ohio Constitution, due to repeated instances of prosecutorial 

misconduct, including having the police vouch for the credibility and 

truthfulness of Jasmin Fletcher's out of court statements, for eliciting 

testimony regarding the out of court statements and for calling Fletcher's 

attorney and introducing evidence regarding her plea of guilty and the 

reasons for her assertion of her Fifth Amendment privilege. 

{¶41} In his second assignment of error, Appellant asserts multiple instances of 

prosecutorial misconduct occurred which deprived him a fair trial. Appellant again refers 

to the testimony of Det./Sgts. Spotleson and Martin that recounts Fletcher’s statements, 

reference to Fletcher’s statements by the state during closing argument, and the state’s 

decision to call Fletcher’s attorney as a rebuttal witness in this case. 

{¶42} Regarding the testimony of Det./Sgts. Spotleson and Martin, Appellant 

contends both officers improperly vouched for Fletcher’s credibility. During this testimony 

the state asked both whether the statements made by Fletcher were corroborated by the 

findings of the medical examiner and were corroborated by other information regarding 

the scene of the incident. (1/3/17 Tr., pp. 320, 418-419.) 

{¶43} In determining whether prosecutorial misconduct has occurred, we must 

determine whether the comments or questions were improper and, if they were, whether 

they prejudiced Appellant’s substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480, 

2001-Ohio-4, citing State v. Lott, 5 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). The 
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Case No. 17 MA 0033

benchmark of this analysis is “the fairness of the trial, not the culpability of the prosecutor.” 

Smith v. Phillips, 455 U.S. 209, 212, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Vouching for 

a witness occurs when, “the prosecutor implies knowledge of facts outside the record or 

places his or her personal credibility in issue.” State v. Davis, 116 Ohio St.3d 404, 2008-

Ohio-2, 880 N.E.2d 31, ¶ 232. 

{¶44} In State v. Huff, 145 Ohio App.3d 555, 763 N.E.2d 695 (1st Dist.2001), 

relied on by Appellant, the First District reversed a conviction for felonious assault and 

concluded a defendant was denied a fair trial when the prosecutor elicited testimony from 

a detective about whether he thought the victims in the matter were credible. The 

prosecutor in Huff asked the detective whether he thought there was any doubt about the 

victims’ identification of the shooter. There was no objection by defense counsel and the 

detective responded that he absolutely found the victims credible and that they were 

telling the truth. 

{¶45} As in Huff, defense counsel did not object to the testimony of Det./Sgts. 

Spotleson and Martin regarding Fletcher’s statements, thus waiving all but plain error. 

State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 883 (1968), paragraph three of the syllabus. 

As earlier discussed, Det./Sgts. Spotleson and Martin testified that the statements made 

by Fletcher corroborated the findings already made in their investigation as well as those 

of Marzullo, who had investigated the scene, and of Dr. Ohr, the medical examiner. 

Testifying about whether witness statements match other findings of an investigation is 

not akin to vouching for that witness’ credibility. No improper vouching occurs so long as 

the prosecutor or the witness does not express any personal belief about another witness’ 

credibility. Davis, at ¶ 241. While improper on other grounds, there was no improper 
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Case No. 17 MA 0033

vouching for the credibility of the declarant, here. Neither Det./Sgts. Spotleson nor Martin 

testified that they found Fletcher credible. Simply because information she gave was 

consistent with another witness’ findings is not improper vouching. 

{¶46} Appellant also contends the prosecutor relied on Det./Sgts. Spotleson and 

Martin’s testimony and their allegedly vouching for Fletcher’s credibility during closing 

argument by stating: 

There were three people there that afternoon. Three people in that stairwell. 

Unfortunately, probably the best person of the three isn’t here to tell us what 

happened, the other two are. Jasmin Fletcher and Michael Paige both told 

the police what happened. They both said where everybody was standing 

and they both said who fired the shots. 

(1/3/17 Tr., pp. 444-445.) 

{¶47} Again, while the statements of Fletcher were improperly submitted on other 

grounds, no vouching occurred here. The state was recounting the testimony at trial, 

including that Appellant’s version of the incident in his admission matched what Fletcher 

told the officers. However, the prosecutor neither implied knowledge of facts outside of 

the record nor placed his personal credibility at issue by making such argument and again, 

if we remove any reference to Fletcher and her statements, as we must, the state’s 

observation that Appellant’s confession contained all the relevant information necessary 

to find guilt appears accurate. Further, since the jury could actually witness Appellant 

confessing to the crime and could accurately judge his credibility for themselves, mention 

of the improperly admitted Fletcher statements cannot be error in this instance. State v. 

Keene, 81 Ohio St.3d 646, 666, 693 N.E.2d 246. Thus, no plain error is present. 
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Case No. 17 MA 0033

{¶48} Finally, Appellant alleges prosecutorial misconduct when the state called 

Fletcher’s counsel, Attorney Kivlighan, as a rebuttal witness in relation to Fletcher’s 

assertion of her Fifth Amendment privilege. The admission of rebuttal testimony is left to 

the discretion of the court. State v. Finnerty, 45 Ohio St.3d 104, 106, 543 N.E.2d 1233 

(1989). The purpose of a rebuttal witness is to allow the state to refute new evidence 

offered by the defendant in the presentation of his case. State v. Talley, 7th Dist. No. 97 

CA 72, 1998 WL 811347, *5, citing State v. Grinnell, 112 Ohio App.3d 124, 146, 678 

N.E.2d 231 (10th Dist.1996). Evidence that is merely cumulative and that does not 

contradict or refute evidence presented in the opposing party’s case-in-chief is not proper 

rebuttal evidence. State v. Hawn, 138 Ohio App.3d 449, 470, 741 N.E.2d 594 (2nd 

Dist.2000) citing State v. Wood, 11th Dist. No. 95-P-0009, 1996 WL 649132. However, 

when the evidence contradicts the opposing party and also happens to bolster the state’s 

case-in-chief it is not inappropriate. State v. Owens, 2nd Dist. Nos. 14068, 93-CR-214, 

1994 WL 683395 (1994) *7. 

{¶49} The matter of whether Fletcher was able to assert her Fifth Amendment 

privilege against self-incrimination when called as a defense witness in this case was 

discussed at length on the record before the jury. While Fletcher initially failed to appear 

in this matter, Appellant called Fletcher as a witness after she appeared pursuant to a 

material witness warrant issued for her. Once Fletcher refused to testify, invoking the 

Fifth Amendment, defense counsel requested the court to instruct Fletcher to respond, 

arguing that she had no basis for invoking the privilege. (1/3/17 Tr., p. 389.) The court 

inquired as to the state’s position, but the prosecutor left the matter to the trial court’s 

discretion. The court then inquired of Fletcher’s attorney, Attorney Kivlighan, who was 
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Case No. 17 MA 0033

present in the courtroom, about the basis of Fletcher’s claims to privilege. Citing Mitchell 

v. United States, 526 U.S. 314, 119 S.Ct. 1307 (1998), paragraph one of the syllabus, 

Kivlighan responded that although Fletcher had pleaded guilty to her role in the matter, 

she had not been sentenced. Therefore, absent sentencing pursuant to her plea, her 

incrimination was not complete. (1/3/17 Tr., p. 390.) The trial court ruled that Fletcher 

could assert her Fifth Amendment rights and refuse to testify. (1/3/17 Tr., pp. 390-391.) 

As the matter appeared to be settled, the defense called its next witness. At the close of 

the defense’s case, the trial court asked the state to call their rebuttal witness and Atty. 

Kivlighan testified, in pertinent part: 

Q Through your practice, do you represent a woman by the name of Jasmin 

Fletcher? 

A I do. 

Q And you were present this morning when she came in and took the Fifth 

Amendment when she was called to testify, correct? 

A That’s correct. 

Q You’re representing her in the criminal matters that occurred out of this 

incident, correct? 

A That’s correct. 

* * * 

Q Okay. Are you aware that she has entered pleas of guilty to tampering 

with evidence and obstructing justice? 

A I’m aware of that, yes. 
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Case No. 17 MA 0033

Q And have you, on her behalf, filed a motion to vacate those pleas, or that 

plea? 

A Yes, that motion was filed. 

Q Okay. And the effect of that, if that motion was granted, would mean she 

has not been found guilty, she would sit here, her case could go to trial, 

another plea agreement could be reached, it could be dismissed, but 

basically we are starting over from square one, basically? 

A Yes, if the motion was granted. 

Q Okay. Based on the fact that that motion had been filed, the motion to 

vacate the plea, did you discuss with her -- and I am not asking what you 

discussed -- did you discuss with her the prospect of her testifying in this 

matter? 

A In conjunction with filing the motion, we did discuss whether or not she 

would testify in this matter. 

[DEFENSE COUNSEL] Judge, I’m going to object and can we approach 

the bench? 

(1/3/17 Tr., pp. 437-439.) 

{¶50} At this point, a discussion was had off the record and the trial court then 

sustained defense counsel’s objection and the witness was excused. 

{¶51} Citing State v. Dinsio, 176 Ohio St. 460, 469, 200 N.E.2d 467 (1964), 

Appellant contends the testimony of Atty. Kivlighan as a rebuttal witness was highly 

prejudicial and that the state was prevented from calling the rebuttal witness when it knew 

that Fletcher would assert her Fifth Amendment privilege. In essence, Appellant contends 
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Case No. 17 MA 0033

the state used Kivlighan’s testimony as a way to get highly prejudicial testimony before 

the jury when it could not get that direct testimony to the jury through Fletcher. In Dinsio, 

the Ohio Supreme Court held that a witness who has indicated he will not testify because 

he was invoking his Fifth Amendment right against self-incrimination cannot be called to 

testify and be subjected to continued questioning that goes unanswered in order to get 

evidence before a jury using innuendo or inferences. Id. at paragraph one of the syllabus. 

If such an attempt occurs, the trial court may instruct the jury to draw no conclusion from 

the witness’ decision to invoke the privilege. State v. Abdi, 4th Dist. No. 09CA35, 2011-

Ohio-3550, at ¶ 88. 

{¶52} Contrary to Appellant’s assertion, we do not find the rebuttal witness’ 

testimony prejudicial to Appellant. If anything, placing Attorney Kivilighan on the stand as 

a witness could only serve to hurt the state’s case. Fletcher invoked her Fifth Amendment 

privilege in front of the jury. This resulted in the codefendant in the case appearing to 

admit to a degree of culpability in the matter. By placing her attorney on the stand, the 

state now reminded the jury that Appellant’s codefendant in the case invoked her privilege 

against self-incrimination. This scenario has the opposite effect of creating prejudice to 

Appellant, because it appears that it should only serve to create doubt as to Appellant’s 

guilt. 

{¶53} The state did not call Fletcher to testify although both parties had 

subpoenaed her as a witness. It was when the defense called her to testify that she 

invoked the privilege not to testify. It is not apparent from the record that the state had 

any prior knowledge that Fletcher would invoke her privilege. Regardless, defense 

counsel elected to call her as a witness and it was Appellant’s counsel who questioned 
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Case No. 17 MA 0033

her ability to invoke the privilege. Therefore, the issue of whether Fletcher was able to 

invoke a Fifth Amendment privilege was raised by the defense and the state offered no 

objection or argument on the matter. It appears a discussion was had off the record after 

Fletcher was dismissed. There may have been a discussion concerning the use of a 

rebuttal witness, but as it was held off the record, this is purely speculation. The trial court 

asked the state to proceed with its rebuttal witness without any prior reference to such a 

witness in the record. Moreover, there was no initial objection to the state calling 

Fletcher’s counsel on rebuttal. Counsel objected to the testimony only when questioning 

progressed to the issue of whether Fletcher would testify in the instant case. Atty. 

Kivlighan’s testimony could be construed as cumulative as the issue of Fletcher’s guilty 

pleas had been raised at the time she invoked her privilege. However, as his testimony 

also raised the status of those guilty pleas and the potential for her to go to trial on the 

offense charged, if it was error to allow this witness to testify, the testimony itself had no 

prejudicial effect on Appellant’s trial. In fact, if it caused any harm this harm could only 

be on the state which had elected not to call Fletcher as a witness. The trial court did not 

abuse its discretion in admitting the rebuttal testimony nor did any prosecutorial 

misconduct occur. Appellant’s second assignment of error is without merit and is 

overruled. 

ASSIGNMENT OF ERROR NO. 3 

The Appellant received ineffective assistance of trial counsel when his trial 

attorney failed to failed to [sic] object to numerous instances of prosecutorial 

misconduct and the admission of clearly inadmissible hearsay statements 
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Case No. 17 MA 0033

and failed to file a motion to suppress statements made by Appellant, to his 

girlfriend, that were surreptitiously recorded by the police. 

{¶54} In his third assignment of error, Appellant claims he received ineffective 

assistance of counsel when trial counsel failed to object to prosecutorial misconduct and 

the admission of hearsay, and failed to file a motion to suppress the conversation 

recorded between Appellant and his girlfriend after he admitted to being the shooter. 

{¶55} In a claim for ineffective assistance of counsel, a reviewing court is highly 

deferential to trial counsel’s strategy and must indulge in a strong presumption that 

counsel’s performance fell within a wide range of reasonable professional assistance. 

State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Appellant bears 

the burden of demonstrating that counsel’s performance fell below an objective standard 

of professional competence. If successful in demonstrating that counsel committed 

professional error, the appellant must then demonstrate he was prejudiced by that 

deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984). 

{¶56} “Deficient performance” means performance falling below an objective 

standard of reasonable representation. Strickland at 687-688. “Prejudice” in this context, 

means a reasonable probability that, but for counsel’s errors, the result of the proceeding 

would have been different. Id. at 694. Reversal as a result of prejudice from defective 

representation is justified only where the results are unreliable or the proceeding was 

clearly fundamentally unfair due to counsel’s performance. State v. Carter, 72 Ohio St.3d 

545, 558, 651 N.E.2d 965 (1995). 
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Case No. 17 MA 0033

{¶57} “An ineffectiveness claim * * * is an attack on the fundamental fairness of 

the proceeding whose result is challenged.” Id. at 697. An appellant’s burden when 

challenging the effectiveness of counsel is to demonstrate that some action or inaction by 

counsel operated to undermine or call into question the integrity of the process that 

resulted in conviction. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). 

{¶58} The testimony of both Det./Sgts. Spotleson and Martin was reviewed in 

Appellant’s first assignment of error. The admission of the testimony was error, but 

resulted in no prejudice to Appellant, as the overwhelming evidence at trial supported 

Appellant’s convictions. It is not enough that any error by counsel can be shown to have 

“some conceivable effect on the outcome of the proceeding.” Bradley, 42 Ohio St.3d 136, 

142, 538 N.E.2d 373, at fn. 1, quoting Strickland, at 693. Although an objection to the 

testimony may have been appropriate, we cannot conclude that the failure to do so 

resulted in prejudice that undermined the “fundamental fairness” of the proceedings. 

Strickland, at 697. Again, the jury had before it the videotaped confession by Appellant 

that he shot Blake. Standing alone, this was sufficient to establish guilt beyond a 

reasonable doubt. Further, allowing the officers to testify about what Fletcher told them 

does reveal a potential trial strategy, as Fletcher was the prime suspect and Appellant’s 

involvement was not known to the police until Fletcher raised it. Potentially, trial counsel 

wanted to show that Fletcher was the shooter and that she implicated Appellant only to 

shift the focus from her own guilt. Regardless, there is no ineffective assistance shown, 

here. 

{¶59} Appellant also asserts counsel was ineffective for failing to file a motion to 

suppress the recorded conversation between Appellant and his girlfriend for “invasion of 
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Case No. 17 MA 0033

privacy.” According to the record, the conversation took place after Appellant’s second 

interview where he confessed he was the shooter. Following his confession, his girlfriend 

was allowed to visit him in the interview room. Det./Sgt. Spotleson testified on crossexamination that the recording equipment was still on and that the camera was hidden. 

(1/3/17 Tr., p. 366.) Det./Sgt. Spotleson also testified that Appellant was not told he was 

being recorded while speaking with his girlfriend. Id. The conversation between 

Appellant and his girlfriend is brief. In this portion of the video, the jury could see Appellant 

apologizing to his girlfriend and clearly stating “I told them I shot him,” and “I pulled the 

trigger.” (State’s Exh. 66.) No actual testimony was elicited from any witness regarding 

Appellant’s conversation with his girlfriend and there was no indication that any new 

information was gleaned by law enforcement during the conversation. In fact, contrary to 

Appellant’s assertion that the state “heavily relied” on the conversation in its closing 

argument, other than being raised in the briefs before us, the only reference is in the 

state’s closing where the prosecutor stated, “[b]ut in the end, he still says, I pulled the 

trigger. And he tells his girlfriend that outside the presence of the police.” (1/3/17 Tr., pp. 

457- 458.) 

{¶60} The “failure to file a suppression motion does not constitute per se 

ineffective assistance of counsel.” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 

52 (2000) citing Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d. 

305 (1986). Under the two-part test for assessing whether trial counsel was ineffective, 

we look first to whether trial counsel’s performance fell below an objective standard of 

reasonable competence. This portion of the video was played to the jury after they had 

already seen Appellant’s videotaped confession to the detectives. The only other 
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Case No. 17 MA 0033

reference at trial to the conversation was briefly in the state’s closing argument. It is clear 

counsel could not be deemed ineffective for failing to seek suppression of the recording. 

As Appellant had just admitted to the detectives that he was the shooter, the same 

admission by Appellant to his girlfriend would be only cumulative evidence for the state. 

The video itself shows Appellant and his girlfriend embracing and crying as he informed 

her that he shot the victim. 

{¶61} Appellant cites our holding in State v. Clemons, 7th Dist. No. 10 BE 7, 2011-

Ohio-1177 as support. However, Appellant concedes that we held in Clemons that there 

can be no reasonable expectation of privacy in a police interrogation room. In Clemons, 

the defendant argued that a recording of his conversation with his wife in the police 

interrogation room constituted a violation of the Fourth Amendment and Ohio electronic 

surveillance laws. Id. at ¶ 3. The defendant had voluntarily given a statement to police 

in the interrogation room and was informed of his Miranda rights. All interrogations in the 

room were recorded although interviewees were not informed unless they asked. At the 

end of the interview Clemons was given five minutes to speak with his wife. Clemons 

admitted to his wife, “I’m caught.” Id. at ¶ 55. The conversation was recorded on video. 

Clemons filed a motion to suppress based on spousal privilege. R.C. 2317.02(B). The 

trial court denied the motion to suppress. On appeal, Clemons abandoned the spousal 

privilege argument and contended the recording violated his Fourth Amendment right 

against illegal search and seizure. Id. at ¶ 57. We affirmed the judgment of the trial court 

concluding: 

[T]here is really nothing to distinguish a police interrogation room from 

conversations in the back of a police car. Leaving the interrogation room 
 – 35 – 

Case No. 17 MA 0033

and closing the door is similar to leaving a patrol car and closing the door 

(or walking away where the subjects can see the officer is too far away to 

overhear their conversation). 

Id. at ¶ 75. 

{¶62} We held that the trial court “could rationally find that an objective person 

had no reasonable expectation of privacy under the circumstances existing herein.” Id. 

at ¶ 76. As in Clemons, Appellant had admitted his crime to the police officers and was 

allowed to speak with his girlfriend directly afterward. Appellant distinguishes Clemons

based on the fact that the interrogation room in that case had a large mirror which would 

indicate that there was surveillance. However, this argument is not persuasive. As in 

Clemons, the camera was hidden, the subjects were not informed they were being 

recorded. Notably, also as in Clemons, Appellant was under arrest and in custody before 

his interview and had been read his Miranda warnings. At the time he had the 

conversation with his girlfriend, he had spent over an hour in the interrogation room with 

two police detectives to whom he admitted that he shot Blake. Based on these 

circumstances and as in Clemons, “[t]he general public has no reason to frequent” a 

police interrogation room “or to believe that it is a sanctuary for private discussions.” State 

v. Wynter, 2d Dist. No. 97CA76, 1998 WL 127092, at *6 quoting U.S. v. Clark, 22 F.3d 

799, 801-802, (8th Cir.1994). We conclude that Appellant had no reasonable expectation 

of privacy in the interrogation room. Therefore, there was no violation of his privacy or 

Fourth Amendment rights. As such, trial counsel’s decision not to file a motion to 

suppress the conversation was not deficient performance under the Strickland standard 

for ineffective assistance of counsel as Appellant has not demonstrated that the filing of 
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Case No. 17 MA 0033

the motion to suppress would have a reasonable probability of success. State v. Gettings, 

7th Dist. No. 16 MA 0050, 2017-Ohio-7764, at ¶ 24. Appellant’s third assignment of error 

is without merit and is overruled. 

ASSIGNMENT OF ERROR NO. 4 

The cumulative effect of numerous errors deprived Appellant of his right to 

a fair trial. 

{¶63} Appellant contends that the cumulative effect of numerous errors at trial 

deprived him of a right to a fair trial. Specifically, Appellant contends that his previous 

assigned errors relating to the Confrontation Clause, ineffective assistance of counsel 

and unreasonable search and seizure all culminate in a violation of his right to a fair trial 

although each of the errors individually do not warrant a reversal. 

{¶64} Under the doctrine of cumulative error, a conviction will be reversed when 

the cumulative effect of multiple errors, which are deemed harmless by themselves, in 

combination deprive a defendant of the constitutional right to a fair trial. State v. Thomas, 

7th Dist. No. 17 BE 0028, 2018-Ohio-3768, ¶ 53 citing State v. Baer, 7th Dist. No. 07 HA 

8, 2009-Ohio-3248, ¶ 82 and State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 

(1995). However, the cumulative error doctrine does not apply when the errors alleged 

are nonexistent. Id.; State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 

506, ¶ 48. 

{¶65} It is not sufficient to just “intone the phrase cumulative error.” State v. Agee, 

7th Dist. No. 14 MA 0094, 2016-Ohio-7183, ¶ 72 citing State v. Young, 7th Dist. No. 07 

MA 120, 2008-Ohio-5046, ¶ 65, quoting State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio4853, 854 N.E.2d 150, ¶ 197. “Thus, where an appellant raises the doctrine without 
 – 37 – 

Case No. 17 MA 0033

further analysis, the assignment of error has been held to lack substance.” Agee at ¶ 72, 

quoting Young, supra, at ¶ 65, citing State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 

822 N.E.2d 1239, ¶ 103. 

{¶66} Considering our resolution of the assignments of error on this appeal, all 

errors claimed by Appellant either fail or are harmless. Thus, there is no cumulative 

prejudicial error. Appellant does not engage in any analysis regarding how the alleged 

cumulative error resulted in a prejudice or denial of a fair trial. Therefore, Appellant’s 

fourth assignment of error is without merit and is overruled. 

ASSIGNMENT OF ERROR NO. 5 

Appellant was denied his constitutional and statutory right to a speedy trial 

and his right to the effective assistance of counsel when counsel filed [sic] 

to seek his discharge on speedy trial grounds. 

{¶67} In his fifth assignment of error, Appellant contends he was not brought to 

trial in a reasonable time after two mistrials were declared, in violation of his right to a 

speedy trial. 

{¶68} Appellant acknowledges that his trial counsel failed to raise the issue of 

speedy trial before the trial court. (Appellant’s Brf., p. 40.) The issue of speedy trial 

cannot be raised for the first time on appeal. The failure to file an appropriately timed 

motion on speedy trial grounds constitutes a waiver of the issue on appeal. State v. 

Hergenroder, 7th Dist. No. 07 CO 17, 2008-Ohio-2410, ¶ 13 citing State v. Trummer, 114 

Ohio App.3d 456, 470-471, 683 N.E.2d 392 (7th Dist.1996); State v. Turner, 168 Ohio 

App.3d 176, 2006-Ohio-3786, 858 N.E.2d 1249, ¶ 21 (5th Dist.). 
 – 38 – 

Case No. 17 MA 0033

{¶69} However, even if Appellant had not waived this issue for purposes of 

appeal, a review of this record indicates no speedy trial violation. Appellant’s time 

calculation for speedy trial purposes is two-fold. First, he contends that as his charges 

were felonies, his speedy trial time under R.C. 2945.71(C) was 270 days. Second, 

Appellant urges that as he was being held solely on these charges, he was entitled to the 

triple-count provision enumerated under R.C. 2945.71(D), bringing his speedy trial time 

to 90 days. Although Appellant references R.C. 2945.71(D), the triple-count provision is 

set forth in R.C. 2945.71(E). 

{¶70} Appellant’s calculation is as follows. He was arrested on March 3, 2012 

and indicted on March 8, 2012. He executed a waiver of speedy trial on April 25, 2012. 

He executed an unlimited waiver on September 13, 2012. Appellant filed a pro se 

revocation of his speedy trial waiver which was never ruled on by the trial court. Finally, 

he was not brought to trial until January 3, 2017. He contends he was held for 54 days 

when he initially executed his limited waiver and his unlimited waiver was effective until 

June 9, 2015, when he filed his pro se revocation of that unlimited waiver. Appellant 

concedes that in the 18 months between filing his pro se revocation and the time the third 

trial commenced, some time was tolled for his competency evaluation and for the trial 

court’s sua sponte declaration of a mistrial based on his federal habeas petition, but 

Appellant still contends that the state still failed to bring him to trial within a reasonable 

time period. 

{¶71} The state responds that no speedy trial violation occurred because when 

utilizing the proper standard and accounting for tolling, Appellant was brought to trial 

within a reasonable time period. 
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Case No. 17 MA 0033

{¶72} R.C. 2945.71(C) provides, “[a] person against whom a charge of felony is 

pending: * * * (2) [s]hall be brought to trial within two hundred seventy days after the 

person’s arrest.” 

The triple-count provision asserted by Appellant provides, in pertinent part: 

For purposes of computing time under divisions (A), (B), (C)(2), and (D) of 

this section, each day during which the accused is held in jail in lieu of bail 

on the pending charge shall be counted as three days. 

R.C. 2945.71(E). 

{¶73} The Ohio Supreme Court has held that the triple-count provision of R.C. 

2945.71(E) does not apply to retrials after a jury was unable to reach a verdict. State v. 

Fanning, 1 Ohio St.3d 19, 21, 437 N.E.2d 583 (1982). The Fanning Court noted that the 

statute was “not applicable to retrials” and “the standard to be applied” is “basically 

reasonableness under federal and state constitutions.” Id. That holding was restated in 

State v Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, ¶ 14. In Hull the Court also concluded 

that R.C. 2945.71 did not apply to criminal convictions overturned on appeal. Id. at 

paragraph one of the syllabus. The Court has reasoned that as the statute does not refer 

to retrials, it is only to be applied to an original trial. Id., at ¶ 21. The Hull Court concluded 

that 149 days is reasonable under the federal and state constitutions for speedy trial 

purposes after a matter has been remanded by an appellate court. Id. at paragraph two 

of the syllabus. 

{¶74} Here, Appellant executed an unlimited waiver on April 25, 2012. The first 

trial commenced on February 25, 2014. That jury found him not guilty of the aggravated 

murder charge but was unable to reach a unanimous verdict on the other charges. A 
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Case No. 17 MA 0033

mistrial was declared by the trial court in a judgment entry dated March 4, 2014. 

Appellant’s second trial on the remaining charges began on January 11, 2016. This also 

resulted in a mistrial, as Appellant had filed a federal habeas petition relating to the matter 

on October 7, 2015. The habeas was not dismissed until September 16, 2016. 

Appellant’s third trial commenced on January 3, 2017 and the jury found him guilty of the 

remaining charges. Doing a calculation of the time periods here and considering all tolling 

events, Appellant was brought to trial within 109 days. We conclude that 109 days is 

reasonable under the federal and state constitutions. Therefore, Appellant’s right to a 

speedy trial was not violated. Appellant’s fifth assignment of error is without merit and is 

overruled. 

Conclusion 

{¶75} Appellant has not established any Confrontation Clause violation rising to 

the level of harmful error, nor has he established prosecutorial misconduct, ineffective 

assistance of trial counsel, cumulative error or a speedy trial violation. Appellant’s 

assignments of error are without merit and the judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

Robb, J., concurs. 
[Cite as State v. Paige, 2019-Ohio-1088.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of 

the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.