State v. Hale

2019 Ohio 3276

STATE OF OHIO, Plaintiff-Appellee, v. ISIAH B. HALE, Defendant-Appellant.

No. 107646

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

August 15, 2019

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED; REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-16-607517-A

Appearances:

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brent C. Kirvel, Assistant Prosecuting Attorney, for appellee.

Thomas A. Rein, for appellant.

EILEEN A. GALLAGHER, J.:

{¶ 1} Defendant-appellant Isiah Hale appeals his convictions after a jury found him guilty of murder, involuntary manslaughter, aggravated robbery, having a weapon while under disability and perjury. He contends that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. He further contends that (1) his reindictment in the instant case, following the dismissal, without prejudice, of similar charges in Cuyahoga C.P. No. CR-09-529253 ("529253"), violated double jeopardy, (2) the trial court erred and violated attorney-client privilege by allowing his former counsel to testify against him at trial, (3) he was denied effective assistance of counsel based on defense counsel's prior representation of a codefendant and (4) the trial court imposed consecutive sentences without making the findings required by R.C. 2929.14(C). For the reasons that follow, we affirm Hale's convictions and sentences but remand the matter for the trial court to issue a nunc pro tunc order which reflects the consecutive sentence findings it made at the sentencing hearing.

Procedural History and Factual Background

{¶ 2} In 2009, Hale was charged in 529253 with murder, aggravated robbery, kidnapping and having a weapon while under disability in connection with the September 11, 2009 shooting death of Montrell Stonewall. Hale pled not guilty to the charges. Hale's codefendant, Jermael Burton, was charged with conspiracy to murder, kidnap and rob Stonewall and having a weapon while under disability.

Hale's Police Interview

{¶ 3} On April 21, 2010, after Hale and the state reached a plea agreement, but before Hale entered his change of plea, Hale submitted to a video-recorded interview, with counsel present, with the East Cleveland police. East Cleveland police detectives Scott Gardner and Reggie Holcomb conducted the interview. At the outset, one of the detectives informed Hale that the purpose of the interview wasto "find out exactly what [Burton's] involvement is" in the events surrounding Stonewall's death. The detective further stated that "nothing you're saying here is going to influence or effect what the attorneys have already figured out." Hale told the detectives that, while he was on his way home, he received a call from Burton. Hale stated that Burton told him that he was involved in a drug transaction and that it was "not going right" and was "taking a turn for the worse." According to Hale, Burton asked Hale if he could come out and "mediate the situation with him so that it did not get all the way out of hand." Hale stated that Burton did not ask him to bring a gun and that he never told Burton he would bring a gun but that Burton knew Hale would "come and back him up."

{¶ 4} When Hale arrived at the scene, Burton explained to Hale what was "going on with the situation." According to Hale, Burton informed him that Stromboli Douglas had arranged a drug deal between Burton and two men from out of town whom Hale did not know, but who were later identified as Stonewall and his half-brother, Luis Santiago. Hale stated that he had seen Douglas before but did not know him. Stonewall and Santiago had allegedly taken some drugs out of the bag Burton had given them and were "trying to negotiate a better price." Hale stated that he agreed to "go and see and talk to the guys, basically just being a mediator" in an attempt to resolve the issue. Hale stated that he never saw the drugs nor the money that was to be used to purchase the drugs.

{¶ 5} Hale stated that he went to talk to Stonewall and Santiago and got into the backseat of their car. According to Hale, once he was in the car, Stonewalllooked back at him, "pull[ed] off" and said, "I got you, m***** f*****." Hale stated that he was "puzzled" and told Stonewall repeatedly to stop the car. Hale stated that he thought they were trying to rob him. Hale said that he pulled out a gun and, once again, told Stonewall to stop the car. Stonewall stopped the car "a little bit, then goes, stops and goes" until he finally stopped the car. Hale told the police that as he was getting out of the car, Stonewall turned around and pointed a gun at him. Hale stated that "out of fear," Hale fired his gun in an attempt to "get away from the situation," then ran home. Hale claimed that he did not know that he had shot Stonewall at the time.

Hale's Guilty Plea

{¶ 6} On the day following his interview with police, Hale pled guilty to an amended count of involuntary manslaughter with a three-year firearm specification. The remaining charges were dismissed. At the time of Hale's change of plea, Burton had not yet been apprehended. One of the conditions of Hale's plea agreement was that if Burton was apprehended and the case against Burton proceeded to trial, Hale would testify "consistent with [the] apparent truthful statement" he had given during his interview the previous day. The trial court referred Hale to the probation department for a presentence investigation report ("PSI").

{¶ 7} On May 20, 2010, Hale was sentenced to eight years in prison, i.e., three years on the firearm specification to be served prior to and consecutive to five years on the involuntary manslaughter charge. Hale also received an additional two years in prison in a federal case due to his violation of supervised release.

Burton's Trial and Hale's Motion to Withdraw His Guilty Plea

{¶ 8} Burton was ultimately apprehended and the case against him proceeded to trial in January 2011. During the middle of Burton's trial, the state disclosed that a gunshot residue test performed on Stonewall's hands revealed gunshot primer residue on Stonewall's right hand. Hale's attorneys had requested the results of any gun residue testing performed on Stonewall during pretrial discovery. Although the Cuyahoga County Coroner's Office issued a report with the test results on March 5, 2010, the test results were not disclosed to Hale's attorneys until January 4, 2011. See State v. Hale, 8th Dist. Cuyahoga No. 100447, 2014-Ohio-3322, ¶ 4.

{¶ 9} On January 5, 2011, Hale filed a motion to withdraw his guilty plea in 529253 based on the state's failure to disclose the results of the gunshot residue test performed on Stonewall. Hale argued that the test results were material to his claim, which he had asserted throughout the case, that he had shot Stonewall in self-defense. The state opposed the motion.

{¶ 10} When the state called Hale to testify at Burton's trial, as contemplated by the plea agreement, Hale asserted his Fifth Amendment right against self-incrimination.

{¶ 11} Burton was acquitted of the charges against him relating to Stonewall's death. At the close of the state's case, the trial court granted Burton'sCrim.R. 29 motion for a judgment of acquittal on all of the charges against him in 529253.

{¶ 12} At the time he entered his guilty plea, Hale was represented by Attorneys Edward LaRue and Anthony Lonardo. After filing his motion to withdraw his guilty plea, Hale hired Attorney Michael Cheselka to represent him. Attorney Cheselka had represented Burton in Burton's trial on the charges relating to Stonewall's death.

Hale's Testimony at the Hearing on the Motion to Withdraw His Guilty Plea

{¶ 13} On May 6, 2011, the trial court commenced a hearing on Hale's motion to withdraw his guilty plea. The hearing continued on May 11, 2011. At the hearing, Hale testified regarding his discussions with Attorneys LaRue and Lonardo about what happened the night Stonewall was shot.¹ Hale testified that when he first met with Attorneys LaRue and Lonardo, he told them "the truth" about what had happened that night, as follows: On the evening of September 11, 2009, Hale received a call from Burton, who asked him "to come up there" to "Middle Street,"² around the corner from Hale's house. When he arrived, Hale was flagged down by Douglas, who asked him "about some marijuana" and told him that "they wanted to talk over there in the car." Hale parked his car, then walked over to the other car inwhich two individuals (who he later learned were Stonewall and Santiago) were waiting. After he got into the car, it "pulled off" and, despite his protests, Stonewell (the driver) refused to stop the car. As he reached for the door handle to get out, Santiago (the front seat passenger) pulled a gun on Hale. Hale "wrestled" the gun away from Santiago and, once again, told Stonewall to stop the car. Stonewall stopped the car. As Hale exited the car, Stonewall turned around and fired one or more shots at Hale. Hale stated that he fired back in "self-defense," then ran off through the woods dropping the gun as he ran. Hale stated that Burton never told him to bring a gun with him, that Hale had not brought a gun with him when he went to meet Burton and that Hale never actually spoke with Burton after he arrived at the scene.

{¶ 14} Hale testified that Attorneys LaRue and Lonardo initially told him that they had "a good case" and that they were "going to win this" at trial but that when he could not come up with the additional money they said they needed to prepare for trial, they told him that he would not likely prevail at trial and that it would be in his "best interest to take the [plea] deal." Hale testified that he never wavered in the version of events he told his attorneys but that his attorneys told him that his "story" was "not going to fly" and that he could either "go in there with that story and get life...