State v. McEndree

159 N.E.3d 311

STATE of Ohio, Plaintiff-Appellee,

v.Jolene R. MCENDREE a.k.a. Joleen Renay McEndree, Defendant-Appellant.

NO. 2019-A-0038

Court of Appeals of Ohio, Eleventh District, Ashtabula County.

Decided September 21, 2020

Cecilia M. Cooper, Ashtabula County Prosecutor, and Shelly M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, Ohio 44047-1092 (For Plaintiff-Appellee).

Rick L. Ferrara, 2077 East 4th Street, 2nd Floor, Cleveland, Ohio 44115 (For Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Joleen McEndree ("Ms. McEndree"), appeals her convictions for aggravated murder, two counts of murder with firearm specifications, and felonious assault following a jury trial in the Ashtabula County Court of Common Pleas.

{¶2} Ms. McEndree assigns seven errors for our review: (1) the trial court erred in denying her motion for a continuance in order to avail herself of new burden shifting provisions of the self-defense law; (2) the trial court abused its discretion in failing to properly consider her Batson jury preemptory challenge based on gender; (3) defense counsel provided ineffective assistance of counsel in failing to request jury instructions on battered woman syndrome ("BWS"), self-defense, and voluntary manslaughter, and in failing to insist on a verdict in the jury instructions for involuntary manslaughter; (4) the trial court erred in precluding a finding on involuntary manslaughter; (5) the trial court and the state of Ohio denied her due process through the use of the state's expert witness testimony undermining BWS as a defense under Ohio law; (6) defense counsel rendered ineffective assistance by failing to object to that expert testimony; and (7) the manifest weight of the evidence did not support her conviction because her expert concluded she was insane at the time of the commission of the offense.

{¶3} We affirm the judgment of the Ashtabula County Court of Common Pleas for the following reasons: (1) the issue of whether the trial court abused its discretion in denying her motion for a continuance has no bearing on her conviction since there was no evidence of self-defense, nor did she even attempt to raise it; (2) the prosecutor had a gender-neutral explanation for using a preemptory strike on a female juror, and there was no evidence of gender discrimination; (3) trial counsel was not ineffective for failing to request an otherwise appropriate jury instruction on BWS since debatable trial tactics do not necessarily constitute ineffective assistance of trial counsel or plain error when it has not been demonstrated there is a reasonable probability, were it not for counsel's error, the result of the proceedings would have been different; (4) the trial court did not err in its instruction on involuntary manslaughter because it properly charged the jury; (5) the state was permitted to rebut the opinions of Ms. McEndree's expert on BWS and her sanity at the time of the offense with an expert of its own; (6) it was not ineffective assistance for Ms. McEndree's counsel to fail to object to the state's permissible expert testimony; and lastly, (7) the manifest weight of the evidence supports Ms. McEndree's conviction since the jury was free to believe the testimony of either expert.

Substantive and Procedural History

{¶4} On June 30, 2017, Ms. McEndree called 911 and informed the dispatcher that she shot and killed her live-in boyfriend, Jamie McCann ("Mr. McCann"). Officers responded and found Ms. McEndree sitting outside of her home and Mr. McCann dead inside the residence, apparently from two gunshot wounds. Ms. McEndree confessed to the police that after a dispute with Mr. McCann, she went to the house of Raylene Brugman ("Ms. Brugman"), her neighbor and friend, stole her gun, returned home, and shot Mr. McCann twice.

{¶5} During the police interview, a video recording of which was later shown to the jury, Ms. McEndree told the police that Mr. McCann abused her. The evening before the murder, Mr. McCann broke a vase over Ms. McEndree's head, rendering her unconscious. On the day of the murder, Mr. McCann was high on cocaine and became upset when Ms. McEndree refused to use drugs with him. An argument ensued, whereupon Mr. McCann grabbed her hair and was verbally abusive. When asked if she had any marks or injuries, she said no. After the altercation, she fled to Ms. Brugman's home.

{¶6} She explained that her tumultuous relationship with Mr. McCann began five years ago. Although she filed several police reports, she did not seek a protective order or pursue charges against him. She told the police the crime was "spontaneous;" she saw Ms. Brugman's gun, and when Ms. Brugman took a phone call in another room, she took it and stated, "I'm doing it this time." She repeatedly told the police that she "snapped," had "no other way out," "couldn't get out," and that she had been verbally, mentally, and physically abused by Mr. McCann.

{¶7} Ms. McEndree later told defense expert witness, Thomas Boyd, Psy.D. ("Dr. Boyd"), that she had met Mr. McCann in Alcoholics Anonymous when she was 23. They began dating and cohabiting toward the end of 2014. She reported that the abuse started almost instantly and that she never sought medical care following any of the abusive incidents. They had a son together in 2015, but the child was taken away at the time of birth due to her previous substance abuse. She believed Mr. McCann was having an affair with his ex-girlfriend, who was stealing from her.

{¶8} She told both Dr. Boyd and the state's expert witness, Thomas G. Gazley, Ph.D. ("Dr. Gazley"), that she took the gun with the intent of scaring Mr. McCann. Ms. McEndree related that she previously witnessed Ms. Brugman threatening Mr. McCann with it, telling him to stop abusing Ms. McEndree. She stated that she had no intention to actually shoot Mr. McCann but the gun went off. She "couldn't believe it when the gun went off." She said she fired the gun again into the floor to verify that it had actually gone off.

{¶9} She reported a history of multiple closed head injuries caused by Mr. McCann's physical abuse, including knocking her unconscious at least three times during their relationship and on the day before the murder. She filed five police reports during their relationship. Ms. Brugman also filed one on her behalf after witnessing Mr. McCann's abuse. Ms. McEndree, however, never followed through with pressing charges. She believes Mr. McCann's abuse stemmed from his drug use. She stayed with Ms. Brugman several times "to get away from the violence."

Pretrial Motions

{¶10} Ms. McEndree's case was bound over from the Ashtabula Municipal Court to the Ashtabula County Court of Common Pleas, where she was indicted by the grand jury on five counts: (1) aggravated murder, an unclassified felony, in violation of R.C. 2903.01(A), with a firearm specification in violation of R.C. 2941.145 ; (2) murder, an unclassified felony, in violation of R.C. 2903.02(A), with a firearm specification in violation of R.C. 2941.145 ; (3) murder, an unclassified felony, in violation of R.C. 2903.02(B), with a firearm specification in violation of R.C. 2941.145 ; (4) felonious assault, a second-degree felony, in violation of R.C. 2903.11(A)(2) ; and (5) grand theft, a third-degree felony, in violation of R.C. 2913.02(A)(1) and (B)(4).

{¶11} Subsequent to her arraignment, where Ms. McEndree pleaded not guilty and was appointed counsel, she entered a plea of not guilty by reason of insanity and requested a competency evaluation pursuant to R.C. 2945.371(A). The trial court set a forensic evaluation pursuant to R.C. 2945.371(G)(3), competency to stand trial, and R.C. 2945.371(G)(4), not guilty by reason of insanity. On November 27, 2017, the trial court issued a judgment entry finding Ms. McEndree competent to stand trial and sane. An evaluation from the Forensic Psychiatric Center of Northeast Ohio, Inc. determined she was competent and legally sane at the time of the offense.

{¶12} Several months later, the state filed a motion in limine to prohibit Ms. McEndree from introducing any evidence or testimony relating to Mr. McCann's abuse of her and/or BWS. The state argued that any evidence or testimony relating to the victim's abuse of Ms. McEndree, outside of her recorded statement to the police, was irrelevant, because she could not establish the requisite elements to raise the affirmative defense of self-defense. Ms. McEndree filed a response, stating that it was not her intention to request a jury instruction on self-defense, and that if she did wish to do so, it would require the use of a qualified expert. Therefore, Ms. McEndree requested the court to likewise prohibit the state from introducing evidence of BWS by either arguing or commenting that Ms. McEndree did not suffer from BWS and/or that the defense failed to offer any testimony of BWS, since the state failed to provide the defense with a qualifying expert and report.

{¶13} A short time later, Ms. McEndree was hospitalized, and the jury trial was continued. Ms. McEndree filed a motion for expert fees and for Dr. Boyd to be appointed as a defense expert witness to perform a second sanity and competency evaluation. In turn, the state filed a motion to appoint Dr. Gazley of the Forensic Psychiatric Center of Northeast Ohio, Inc. to re-evaluate Ms. McEndree to determine her current competency to stand trial. In separate judgment entries, the trial court granted Ms. McEndree's motion for expert funds for Dr. Boyd and the state's motion for an evaluation by Dr. Gazley on Ms. McEndree's competency to stand trial. The court further set the matter for a hearing to determine Ms. McEndree's physical ability to stand trial.

{¶14} Following the hearing on competency where both Dr. Gazley and Dr. Boyd opined Ms. McEndree was competent, the court found Ms. McEndree competent to stand trial and that the hearing to determine her physical ability to stand trial was moot.

{¶15} The...