State v. Quinn

2018 Ohio 5279

STATE OF OHIO Plaintiff-Appellee v. JAMES E. QUINN Defendant-Appellant

Appellate Case No. 2017-CA-102

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

December 28, 2018

Trial Court Case No. 2013-CR-869

(Criminal Appeal from Common Pleas Court)

OPINION

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor's Office, Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

JAMES E. QUINN, #699-607, P.O. Box 69, London, OH 43140 Defendant-Appellant, Pro Se

FROELICH, J.

{¶ 1} James E. Quinn appeals from a judgment of the Clark County Common Pleas Court that denied his second motion for a new trial. The judgment of the trial court will be affirmed.

Factual Background and Procedural History

{¶ 2} In March 2014, a Clark County jury found Quinn guilty of two counts of domestic violence, two counts of kidnapping, one count of abduction, and one count of intimidation. After merging the kidnapping and abduction charges, the trial court sentenced Quinn to an aggregate sentence of 20 years in prison.

a. Quinn I

{¶ 3} On Quinn's direct appeal, this court affirmed the trial court's judgment. State v. Quinn, 2016-Ohio-139, 57 N.E.3d 379, ¶ 66 (2d Dist.) ("Quinn I"). At that time, we summarized the facts underlying Quinn's conviction as follows:

The victim, Beverl[e]y Quinn,¹ is a 79-year-old woman, the mother of two daughters and two sons, including the defendant, James Quinn. In December 2013, Quinn's girlfriend, Samantha Ferrell, was living with Quinn's mother, Beverl[e]y, in her two-bedroom house. At that time, Quinn was under indictment for a domestic violence incident involving his mother; as a condition of bond he was subject to a no-contact order with his mother. Late in the evening, Beverl[e]y was awakened by noise, and found Quinn and Ferrell in her home, drinking vodka and watching television. Beverl[e]y told Quinn he was not allowed to be there and asked Quinn to leave, to turn off the television, and for Samantha to go to her room. Quinn became very angry with his mother, pushed her into a chair, and hit her. When Quinn suggested to Samantha that they take his mother to "mental health," Samantha suggested that they take Beverl[e]y out into the country and dump her. Beverl[e]y then ran to her own bedroom, locked the door, and left the house by crawling out of the bedroom window. Beverl[e]y went to a neighbor's house and called the police. During the 911 call, Quinn identifie[d] her son, James Quinn, as the person who * * * abused her, and state[d] that Quinn left her house driving a white station wagon. Quinn and Samantha left Beverl[e]y's house before the police arrived. The police took photos of Beverl[e]y's bruises, and allowed her to return to her own home after they verified it was empty and secured. One of the two officers who spoke with Beverl[e]y at this time testified that Beverl[e]y was very articulate and said it was her son who had struck her in the face. No charges were filed against Quinn at this time.

According to Beverl[e]y's testimony at trial, several hours later Quinn returned to his mother's home, without Samantha, forced entrance into his mother's bedroom, and forced his mother to leave the house with him, threatening to take her to the country and make her jump off a bridge. Beverl[e]y described her son as very angry and intoxicated on alcohol and drugs. Beverl[e]y left with her son because she felt she had no choice. He drove out into the country, stopped at a bridge and said, "if you don't jump, I'll push you." According to Beverl[e]y, Quinn decided he could not do it, and told her that he wouldn't do anything to her as long as she did not testify against him. Beverl[e]y testified at trial that Quinn then drove to Walmart, hitting her in the head numerous times as he was driving. After he left the car, Beverl[e]y got out of the car and approached a Walmart employee for help. She told the employee that her son had hurt her and was trying to kill her. The Walmart employee verified this course of events and testified that Beverl[e]y was scared, but she knew who she was, where she was, and was not disoriented or confused. The Walmart employee testified that as Beverl[e]y was talking to him, a man came up to both of them, grabbed Beverl[e]y's arm and complained that she was trying to hurt him. The employee insisted that he let go and leave her alone. A surveillance video of the Walmart parking lot corroborates this testimony, but is taken from too far a distance to identify the man's facial features. The surveillance video shows that Beverl[e]y approached the employee, a man approached them, and then the unidentified man left in a white station wagon. The employee could not identify Quinn as the person he saw and talked with in the parking lot. Beverl[e]y testified at trial that Quinn was driving her car, which she described as a tan sedan, not a white station wagon. No witness identified Quinn as the man depicted in the video in the Walmart parking lot.

The detective who interviewed Beverl[e]y at Walmart testified that Beverl[e]y identified her son, James Quinn, as the person who attacked her in her home, who forced her into a car, threatened to harm her, and hit her face, causing visible injuries. The detective also testified that during his interview on the scene, Beverl[e]y was very emotional, but lucid and articulate about the events of the evening. Based on this interview, the detective obtained a search warrant. A search of Beverl[e]y's home revealed evidence that her bedroom door had been damaged as the result of being forced open.

Beverl[e]y was transported to the hospital by ambulance and treated in the Emergency Room at Springfield Regional Medical Center. The paramedic who transported Beverl[e]y testified that she was alert and oriented. The ER Nurse testified that Beverl[e]y was oriented, and did not appear to suffer from dementia or any other mental defect. The ER Nurse testified that Beverl[e]y identified her son as the person who had hit and injured her.

Id. at ¶ 3-6.

b. Quinn II

{¶ 4} Four months after his conviction, Quinn filed a motion for a new trial based on newly discovered evidence. On the same day we ruled on Quinn's direct appeal, this court also affirmed the trial court's denial of that motion. State v. Quinn, 2d Dist. Clark No. 2014-CA-95, 2016-Ohio-140, ¶ 1 ("Quinn II"). That decision related the following relevant facts:

Four months after the trial and conviction, Quinn filed a motion for a new trial and attached three affidavits[:] his own affidavit and two affidavits from his mother, Beverl[e]y, who recanted her trial testimony. The motion also requested a hearing. In the affidavits filed in support of the motion for a new trial, Beverl[e]y avers that her testimony was based on what she was told by her family and by the prosecutor. She avers that at the time of the incident, she was not wearing her glasses or hearing aid, and she was on medication that caused her confusion. She avers that she does not believe that Quinn committed the crimes against her, because she knows he had consumed two fifths of vodka and was too drunk to stand or drive on the night of the incident.

Id. at ¶ 10.

{¶ 5} In Quinn II, we noted that the trial court overruled Quinn's motion for a new trial without conducting a hearing, citing its impression that the Walmart surveillance video substantiated Beverley's testimony such that the new evidence did not raise "any probability" of a different trial result. Id. Although we disagreed with the trial court's conclusion that "evidence of Quinn's guilt was independently established," see id. at ¶ 18, we nonetheless determined that the record "contain[ed] sufficient support for finding that Beverl[e]y's testimony at trial was more credible than her post-trial affidavits." Id. at ¶ 19. We then elaborated:

At trial, evidence was presented from the officers who investigated the two separate incidents and the ER Nurse who talked with Beverl[e]y after she left Walmart. One officer testified that Beverl[e]y identified her son as the person who attacked her in her home. A detective testified that Beverl[e]y identified her son as the person who forced her into a car, threatened to harm her, and hit her face, causing visible injuries. The Walmart employee also testified that Beverl[e]y told him that her son was trying to hurt her. Although hearsay, these witnesses' testimony was properly admitted as an excited utterance, an exception to the hearsay rule under Evid. R. 803(2). In ruling on the motion for a new trial, the trial court should have considered whether the testimony of the officers, the Walmart employee, and the nurse was sufficient to support the credibility of the victim's excited utterances at the time of the offenses, even if the victim later recanted her testimony. The trial court should have also considered the testimony of the investigating officers, the Walmart employee and the medical professionals, who all testified that although Beverl[e]y was scared, she was lucid, articulate and not confused or disoriented at the time she described details of the events that had just happened to her. The mental, emotional and physical condition of [ ] Beverl[e]y's state of mind at the time she made statements to the officers and medical professionals was properly admissible under Evid. R. 803(3).

Id.

{¶ 6} Applying the factors used to assess the credibility of affidavits, as set forth in State v. Calhoun, 86 Ohio St.3d 279, 285, 714 N.E.2d 905 (1999), we determined that "the Calhoun factors justify a conclusion that the affidavits filed in support of the motion for a new trial lacked credibility." Id. at ¶ 21. We explained:

The trial judge who presided over the trial is the same judge who reviewed the affidavit and determined its lack of credibility. In their post-trial affidavits, both Quinn and his mother describe his level of intoxication on the night of the

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