State v. Larkins
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[Cite as State v. Larkins, 2003-Ohio-309.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY State of Ohio 052 Court of Appeals No. H-01- Appellee Trial Court No. CRI-01-0328 v. Thomas L. Larkins DECISION AND JUDGMENT ENTRY Appellant Decided: January 24, 2003 * * * * * Gregory A. Shell for appellant. Russell V. Leffler for appellee * * * * * RESNICK, J. {¶1} This matter comes before the court on appeal from the Huron County Court of Common Pleas wherein appellant, Thomas L. Larkins, was convicted on one count of cocaine possession, a violation of R.C. 2925.11(A)(c)(4)(E) and a felony of the first degree. {¶2} On appeal, appellant asserts the following assignments of error: {¶3} "I. THE LOWER COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE ITEMS FOUND IN ROOM 305 OF THE AMERIHOST INN. {¶4} "II. THE LOWER COURT ERRED BY ALLOWING THE JURY TO BE SELECTED IN A MANNER CONTRARY TO CRIMINAL RULE 24(D). {¶5} "III. THE DEFENDANT WAS DENIED A FAIR TRIAL DUE TO THE DEFICIENT PERFORMANCE OF MR. HARPER, TRIAL COUNSEL." {¶6} In contends that suppress. seized his the first court assignment erred of in error, denying his appellant motion to Appellant sought to suppress physical evidence from his motel room. A suppression hearing commenced on August 6, 2001. {¶7} Sheriff Sheriff's Office Robert McLaughlin testified that of on the March Huron 27, County 2001, he received a bulletin from authorities in Richland County, Ohio, regarding appellant, Thomas Larkins. The bulletin alerted the Huron County Sheriff's Office that Larkins, on parole for armed robbery, had violated his parole and was last seen fleeing south. The bulletin further cautioned that Larkins was considered armed and dangerous and may be staying at an Amerihost Motel. Larkins was associate with a woman named Erica Clements. known to He had fled Mansfield in a dark green Ford Expedition driven by Josh Mosley. {¶8} On March 29, 2001, McLaughlin testified he was contacted by Debra Mack, an employee of the Amerihost Motel in Huron County. Mack reported on suspicious activity taking place at the motel. Specifically, a woman by the name of Erica Clements and a male companion were receiving many visitors and frequently changed their motel room. According to Mack, the pair was currently staying in room 305. {¶9} Detective James R. Fulton of the Norwalk Police Department testified that on March 29, 2001 he went to the Amerihost motel in Norwalk, Ohio, to McLaughlin in a drug investigation. assist Sheriff In the parking lot they saw two vehicles with Richland County license plates. One of the vehicles was registered to Showana Mosley and one was registered to Erica Clements. Detective Fulton testified that he was talking to the motel desk clerk when a woman walked into the lobby. the woman as Erica Clements. The desk clerk identified The clerk also identified Larkins from a photo as the person staying with Clements at the motel. Detective Fulton asked Clements about Larkins but she claimed he was not at the motel. began to hyperventilate and started Fulton helped her to a couch. to Clements then cry. Detective Suddenly, Clements jumped up from the couch, grabbed a phone and dialed a number. yelled "run" into the phone. She Other officers took the phone away from her. Clements ran down a hallway to an elevator before she was apprehended by the officers. {¶10} Detective Fulton testified that he and the other officers proceeded to the room supposedly occupied by Clements and Larkins. Before entering they called the room but no one answered the phone. open the room door. They The officers used a key to announced themselves sheriff's department and received no response. as the A police dog was sent into the room to look for occupants while the officers stood outside of the room. Finding no one in the room, the dog returned to the officers. Sheriff Robert McDowell of the Huron County Sheriff's Department testified that from where he stood at the open door, he could see a clear plastic bag of vegetative material, later determined to be marijuana, on the bed in plain view. Meanwhile, other officers were outside in the {¶11} parking lot looking for Larkins in case he tried to escape in a car. While outside, one of the officer's observed someone's feet near a dumpster. person to reveal himself. The officer called to the The person hiding near the suppress, the dumpster was Larkins and he was taken into custody. When {¶12} considering a motion to trial court assumes the role of the trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of a witness. State v. Mills (1992), 62 Ohio St.3d 357, 366. Consequently, in its review, an appellate court must accept the trial court's findings of fact credible evidence. App.3d 592, 594. if they State are v. supported Guysinger by competent, (1993), 86 Ohio Accepting the facts as found by the trial court as true, the appellate court must then independently determine trial as a court's matter of conclusions, law, without whether deferring the facts to the meet the applicable legal standard. State v. Klein (1991), 73 Ohio App.3d 486, 488. {¶13} Constitution The and Fourth Amendment Section 14 to Article the I United of the States Ohio Constitution secure an individual's right to be free from unreasonable searches and seizures, and require warrants to search one's home probable cause. Fourth be particular and supported by "A hotel room can clearly be the object of Amendment office." to protection as much as a home or an Hoffa v. United States, (1966), 385 U.S. 293, 301, See, also State v. Miller, (1991), 77 Ohio App.3d 305. Probable cause arresting for a officer circumstances has which information warrantless within amount sufficient to to entry his exists knowledge reasonable warrant a and when the facts and trustworthy prudent man in believing that a crime or offense had been or is being committed. Beck v. Ohio (1964), 379 U.S. 89. Warrantless entry by law enforcement personnel {¶14} into premises in which an individual has a reasonable expectation of privacy is per se unreasonable, unless it falls within requirement. such a recognized exception to the warrant Minnesota v. Olson, (1990), 495 U.S. 91. exception is the exigent circumstances One exception. This exception applies when there is a reasonable basis for the police to believe that entry into a structure is necessary to protect or preserve life, or to avoid serious injury. {¶15} Mincey v. Arizona, (1978), 437 U.S. 385, 392-393. In the present case, we find that both exigent circumstances and probable cause permitted the warrantless entry and search of Larkin's motel room. The officers had been advised that Larkins was likely armed and dangerous. Larkins had been identified as an occupant of room 305. The officers testified that they believed Clements had hurriedly warned Larkins that the police were in the motel looking for him. In the interest of protecting themselves as well as the employees and guests of the motel from an armed fugitive who had just been made aware of the officer's presence, the officers were justified in making a warrantless entry into Larkins' circumstances exception. room under the exigent Accordingly, the trial court did not err in failing to suppress any evidence gained from the entry to Larkins' motel room and his first assignment of error is found not well-taken. In {¶16} his second assignment of error, Larkins contends the trial court erred in failing to require the parties to exercise their peremptory challenges pursuant to Crim.R. 24(D) which states: "[P]eremptory challenges may be exercised after the minimum number of jurors allowed by the Rules of Criminal Procedure has been passed for cause and seated on the panel. Peremptory challenges shall be exercised alternately, with the first challenge exercised by the state. The failure of a constitutes party a to waiver exercise of a peremptory challenge that challenge. If all parties, alternately and in sequence, fail to exercise a peremptory challenge, the joint failure constitutes a waiver of all peremptory challenges. A prospective juror peremptorily challenged by either party shall be excused and another juror shall be called who shall take the place of the juror excused and be sworn and examined as other jurors. The other party, if that party has peremptory challenges remaining, shall be entitled to challenge any juror then seated on the panel." Larkins {¶17} allowing the contends parties to that the exercise court their erred in peremptory challenges at the same time as opposed to exercising the challenges alternately as required in Crim.R. 24(D). Larkins claims he was prejudiced in that he was ultimately forced to accept a juror who was related to a law enforcement officer. Initially we note that Larkins did not object {¶18} to the procedure below and thus he has waived any such error. State v. Greer Moreover, the manner exercised is generally (1988), in which a 39 Ohio peremptory matter of St. 3d 236. challenges local custom are and is traditionally left to the sound discretion of the trial court. United States v. Mosely (C.A.6, 1987), 810 F.2d 93, 96. Finding no abuse of discretion, Larkins' second error, Larkins assignment of error is found not well-taken. In {¶19} contends First, he his was Larkins third denied contends assignment effective his of assistance counsel was of counsel. ineffective in failing to object to certain testimony which Larkins claims colored the evidence against him. Next, Larkins contends his counsel was ineffective in failing to object to the court's failure to follow Crim.R. 24 in the exercise of peremptory challenges. Larkins also contends his counsel was ineffective in not allowing him to testify. contends that his counsel's suppression Larkins arguments were ineffectual in that he eventually obtained. counsel was conceded that a warrant was Finally, Larkins contends that his ineffective in failing to challenge the qualifications of fingerprint expert, Lawrence Reindl, an evidence technician for the Mansfield Police Department. The {¶20} standard for evaluating an ineffective assistance of counsel claim was enunciated by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, as follows: "2.Counsel's {¶21} ineffective proved unless to have reasonable performance and until fallen below representation will counsel's an and, not deemed performance objective in be standard addition, is of prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391; Strickland v. Washington [1984], 466 U.S. 668, followed.) prejudiced defendant by 3. To show that a defendant has been counsel's must prove deficient that there performance, exists a the reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." Further, there is "a strong presumption that counsel's conduct falls within the wide assistance***." supra, at competent. 689. range of reasonable professional Bradley, supra, at 142 quoting Strickland, Ohio presumes a licensed attorney is Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. Counsel will not be deemed ineffective merely because a defendant is convicted and not acquitted. State v. Hunt (1984), attacking 20 Ohio App.3d 310, 311. In the performance of trial counsel, Defendant must overcome the presumption that counsel's actions were part of a valid trial strategy. Strickland v. Washington, 466 U.S. at 689. Our scrutiny of counsel's performance is highly deferential. State v. Coulter, 75 Ohio App.3d at 230. {¶22} We have thoroughly reviewed the transcript in this case and find that Larkins has not shown there exists a reasonable probability that the result of the trial would have been different were it not for the alleged errors. While it is true that a warrant was eventually obtained for Larkins' motel counsel's the motion conduct warrant, state's of that motel room. trial, room, said warrant was not the to suppress. Rather, counsel the officers before they is, their warrantless entry focus of challenged obtained into the Larkins' In both the suppression hearing and the jury Larkins' counsel witnesses. thoroughly Even assuming cross-examined Larkins' the counsel's tactics were questionable, we are unpersuaded that these trial tactics constituted ineffective assistance of counsel. See State v. Clayton (1980), 62 Ohio St.2d 45, 49. Larkins' third assignment of error is found not well-taken. {¶23}On consideration whereof, the court finds that appellant was not prejudiced or prevented from having a fair trial, and the judgment of the Huron County Court of Common Pleas is affirmed. It is ordered that appellant pay the court costs of this appeal. JUDGMENT AFFIRMED. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Melvin L. Resnick, J. ____________________________ JUDGE Richard W. Knepper, J. ____________________________ Mark L. Pietrykowski, J. CONCUR. ____________________________ JUDGE JUDGE
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