State v. Boles

Majority - Osowik, Presiding Judge

No, the trial court did not abuse its discretion in admitting evidence, instructing the jury, or allowing prosecutorial conduct, nor did trial counsel provide ineffective assistance, because the challenged evidentiary items qualified under hearsay exceptions, testimony was proper lay opinion, and other alleged errors did not constitute plain error or prejudicial deficient performance. The court found that Key's statement to Rubin Smith about appellant threatening to kill her, initially admitted by the trial court under the state-of-mind exception, was properly admissible as an excited utterance pursuant to Evid.R. 803(2). Key's experience of hearing the death threat was startling enough to cause immediate nervous excitement while she was still on the phone with appellant, and the statement directly related to that startling event, satisfying the State v. Duncan four-part test. Similarly, the double hearsay statements (Glenn's observation of appellant breaking in to Key, and Key's subsequent report to Hodrick) were also properly admitted as excited utterances, as each layer met the requirements of Evid.R. 803(2), consistent with Evid.R. 805. Detective Forrester's testimony, which highlighted inconsistencies between appellant's statements and his phone records regarding his whereabouts, was properly admitted as lay opinion under Evid.R. 701. The testimony was rationally based on Forrester’s perception during his investigation and was helpful to the jury’s understanding of the evidence. Regarding allegations of prosecutorial misconduct and an improper jury instruction about determining 'guilt or innocence,' the court applied the plain error standard due to defense counsel's failure to object. The court found no plain error, as appellant did not demonstrate that the outcome of the trial would have been different. Specifically, the 'guilt or innocence' instruction, following State v. Coley, was deemed inconsequential within the context of instructing the jury not to consider punishment. Claims of ineffective assistance of counsel were evaluated under the two-pronged Strickland v. Washington test. The court found no deficient performance or prejudice regarding counsel's failure to object to: (1) the excusal of the only African-American juror, as the juror voluntarily stated she could not serve; (2) the coroner’s testimony on time of death, which was responsive and explained the limitations of scientific certainty; (3) prosecutorial misconduct, Detective Forrester's testimony, or the jury instruction, as the underlying issues were found to lack merit. The trial court's limitation of defense counsel's cross-examination of Jeannine Lamb regarding Rubin Smith's alleged drug use was not an abuse of discretion. Under Evid.R. 608(B), specific instances of conduct cannot be used to attack a witness's character for truthfulness through extrinsic evidence, especially when Smith had already denied using substances that night. Finally, the court dismissed the cumulative error argument as no prejudicial errors were found. After reviewing the extensive circumstantial evidence in the light most favorable to the prosecution, the court determined there was sufficient evidence to support the murder conviction and that the verdict was not against the manifest weight of the evidence, adhering to the standards of State v. Jenks and State v. Thompkins.