State v. Diggle

SUPREME COURT CASES

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State v. Diggle

State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-1583

Case Date: 04/09/2012

Plaintiff: State

Defendant: Diggle

Preview:[Cite as State v. Diggle, 2012-Ohio-1583.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE,                                    CASE NO.   2-11-19
v.
GORDON W. DIGGLE, III,                                 O P I N I O N
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2010-CR-174
Judgment Affirmed
Date of Decision:    April 9, 2012
APPEARANCES:
Katherine A. Szudy   for Appellant
Edwin A. Pierce and Amy Otley Beckett   for Appellee

Case No. 2-11-19
PRESTON, J.
{¶1}   Defendant-appellant, Gordon W. Diggle, III (“Diggle”), appeals the
Auglaize County Court of Common Pleas’ judgment of conviction and sentence
entered against him following a jury trial where Diggle was found guilty of one
count of murder and one count of aggravated robbery.   For the reasons that follow,
we affirm.
{¶2}   In February of 2010, Steven Casad (“Casad”) was at home with his
girlfriend, Brenda Fischer (“Fischer”), and two friends, Larry Thomas (“Thomas”)
and Diggle.  (Trial Tr. at  351).    Thomas and Diggle began fighting in Casad’s
kitchen. (Id. at 352).   Casad called the police on the two men. (Id.).   Diggle did not
return to Casad’s house in the months following the incident. (Id. at 358).
{¶3}   On September 8, 2010, Casad went to happy hour at the Friendly
Tavern around  3 p.m.  (Id. at  325-328).   Diggle arrived at the Friendly Tavern
between 5 and 6 p.m. (Id. at 274).   Diggle sat near Casad and Casad bought them
each a couple of beers. (Id. at 288).   After finishing the drinks, Casad and Diggle
left the Friendly Tavern and went into the alley next to the building. (Id. at 281-
282). While in the alley, Diggle beat Casad and robbed him of roughly  $750,
telling Casad, “call the cops now” during the beating. (Id. at 350); (Ex. H).   Diggle
then walked across the street from the Friendly Tavern, got in his car, and left.
(Trial Tr. at 282).
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{¶4}   Casad, who lived about a block from the Friendly Tavern, returned
home around 6 p.m. (Id. at 283, 328).    Fischer could see Casad was bleeding from
multiple injuries and called 911. (Id. at 332, 336).   Emergency personnel arrived
and transported Casad to the local hospital where the medical staff discovered
Casad had an epidural hematoma, a traumatic brain injury.  (Id. at  336,  724).
Casad was then transferred by helicopter to a hospital near Dayton, Ohio, where
he underwent a craniotomy. (Id. at 353, 768).
{¶5}   Following the craniotomy, Casad was sedated to reduce the swelling
in his brain. (Id. at 770).   On September 12, 2010, Casad developed a pulmonary
embolism as a result of his immobility. (Id. at 771-773).   Casad died an hour and
ten minutes after the pulmonary embolism was detected. (Id. at 797).
{¶6}   The coroner determined that Casad died as a result of blunt force
trauma to the head. (Id. at 847).   During the trial, the coroner testified that the
craniotomy and sedation were necessary to treat the blunt force trauma, and the
pulmonary embolism was a result of the sedation. (Id. at 846-847).   Consequently,
the coroner determined that Casad’s death was a homicide caused by a blunt force
trauma. (Id. at 847).
{¶7}   On  December  22,  2010,  Diggle  was  indicted  on  one  count  of
felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree
(count two); one count of aggravated robbery in violation of R.C. 2911.01(A)(3), a
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felony of the first degree (count four); and two counts of murder in violation of
2903.02(B), felonies of the first degree (counts one and three). (Doc. No. 1).
{¶8}   Diggle had a jury trial on April 18-21, 25, and 26, 2010. (Trial Tr. at
1).   The jury found Diggle guilty on all four counts. (Doc. Nos. 145-148).
{¶9}   The trial court held a sentencing hearing on July 20, 2011 and issued
its judgment entry on July 22, 2011. (Doc. No. 209).   The trial court determined
that murder (count one) and felonious assault (count two) were allied offenses of
similar  import  and  should  merge.  (Id.).    The  trial  court  also  determined  that
murder  (count three) was pleaded as an alternative to murder  (count one), so
Diggle could not be sentenced on both counts.                                               (Id.).   Consequently, the trial court
found that Diggle was convicted of murder (count one) and aggravated robbery
(count four). (Id.).   The trial court sentenced Diggle to a prison term of 15 years to
life and a fine of $2,500 for his murder conviction (count one), and a consecutive
prison term of 10 years for his aggravated robbery conviction (count four), for a
total sentence of 25 years to life imprisonment and a $2,500 fine. (Id.).
{¶10} On August 22, 2011, Diggle filed a notice of appeal and now raises
three assignments of error for our review.1 (Doc. No. 225).
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
IMPOSED SEPARATE SENTENCES FOR OFFENSES THAT
1 The end of the 30 day time period for filing a notice of appeal fell on Sunday, August    21, 2011.   Under
App.R. 14, Diggle was permitted to file his notice of appeal on Monday, August 22, 2011.
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AROSE   FROM   THE   SAME   CONDUCT,   WERE   NOT
COMMITTED  SEPARATELY  OR  WITH  A  SEPARATE
ANIMUS,  AND  SHOULD  HAVE  BEEN  MERGED  FOR
SENTENCING PURPOSES UNDER R.C.  2941.25  (JULY  22,
2011 JOURNAL ENTRY; SENTENCING T. PP 24-25)
{¶11} In his first assignment of error, Diggle argues the trial court abused
its discretion when it determined his murder and aggravated robbery convictions
were not allied offenses of similar import.   Diggle contends that the counts of
murder and aggravated robbery were committed with the same conduct and the
same animus.   As a result, Diggle argues the trial court should have merged the
two offenses.
{¶12} Whether offenses are allied offenses of similar import is a question
of law that this Court reviews de novo. State v. Stall, 3d Dist. No. 3-10-12, 2011-
Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. No. 1-10-31, 2011-Ohio-1461, ¶
36.
{¶13} R.C. 2941.25, Ohio’s multiple-count statute, states:
(A)  Where  the  same  conduct  by defendant  can  be  construed  to
constitute  two  or  more  allied  offenses  of  similar  import,  the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B)  Where  the  defendant’s  conduct  constitutes  two  or  more
offenses of dissimilar import, or where his conduct results in two or
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more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain  counts  for  all  such  offenses,  and  the  defendant  may  be
convicted of all of them.
{¶14} In  State  v.  Johnson,  the  Supreme  Court  of  Ohio  modified  the
analysis for determining whether offenses are allied offenses of similar import
under R.C. 2941.25. 128 Ohio St.3d 153, 2010-Ohio-6314.   First, the court must
determine whether it is possible to commit both offenses with the same conduct.
Id. at ¶ 48.                                                                            “If the multiple offenses can be committed with the same conduct,
then the court must determine whether the offenses were committed by the same
conduct, i.e., ‘a single act, committed with a single state of mind.’” Id. at ¶ 49,
quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J.,
dissenting).   If it is possible to commit the offenses with the same conduct and the
defendant did, in fact, commit the multiple offenses with the same conduct, then
the offenses are allied offenses of similar import and will merge. Id. at  ¶  50.
However, “if the court determines that the commission of one offense will never
result in the commission of the other, or if the offenses are committed separately,
or if the defendant has separate animus for each offense, then according to R.C.
2941.25(B), the offenses will not merge.” Id. at ¶ 51.
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{¶15} In the present case, Diggle was convicted and sentenced for murder
in violation of  R.C.  2903.02(B), and aggravated robbery in violation of  R.C.
2911.01(A)(3). (Doc. No. 209).   R.C. 2903.02(B), the murder statute, states, “[n]o
person shall cause the death of another as a proximate result of the offender’s
committing or attempting to commit an offense of violence that is a felony of the
first or second degree and that is not a violation of section 2903.03 or 2903.04 of
the Revised Code.”   R.C. 2911.01(A)(3), the relevant aggravated robbery statute,
provides, “[n]o person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the attempt
or offense, shall do any of the following: * * * (3) [i]nflict, or attempt to inflict,
serious physical harm on another.”
{¶16} In regards to the first prong of the Johnson test, it is possible to
commit  murder  under  R.C.                                                              2903.02(B)  and  aggravated  robbery  under  R.C.
2911.01(A)(3) with the same conduct. State v. Irbey,  6th Dist. No. L-10-1139,
2011-Ohio-2079,                                                                          ¶                                                   21.   Each  offense  requires  an  act  of  violence.  R.C.
2911.01(A)(3); 2903.02.   Thus, it is possible that the victim could die from the
serious physical harm inflicted in the course of the aggravated robbery, resulting
in the victim’s murder.   Since it is possible to commit the two offenses with the
same conduct, this Court must examine Diggle’s conduct in the present case to
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determine whether he did commit the two offenses with the same conduct and the
same animus. Johnson at ¶ 50-51.
{¶17} The  evidence  presented  at  trial  demonstrated  that  Diggle  had  a
separate animus for each offense.   According to the trial testimony, Casad had
previously reported Diggle to the police when Diggle began fighting in Casad’s
home. (Trial Tr. at 352).   Diggle and Casad no longer spent time with one another
following that episode as they had before. (Id. at 358).   On the afternoon of the
incident that resulted in this case, Diggle asked a mutual friend, Thomas, where he
could find Casad. (Id. at 445).   That same afternoon, Diggle went to the Friendly
Tavern, a bar where Casad frequently attended happy hour. (Id. at 274).   Diggle
beat Casad in the alley next to the Friendly Tavern, telling Casad during the
beating,  “[c]all the cops now.”  (Id. at  350).    Diggle also reached into Casad’s
pocket and took roughly $750. (Id.); (Ex. H).   These facts show that Diggle had
the intent to beat Casad as revenge for calling law enforcement on Diggle, which
is a separate animus from his intent to steal his money.    Since Diggle had a
separate animus for the felonious assault that resulted in his murder conviction
from his animus for the aggravated robbery, the murder and aggravated robbery
offenses are not allied offenses of similar import.   This conclusion is consistent
with determinations made by other Ohio courts of appeals concluding that murder
and aggravated robbery offenses can be committed with a separate animus, and
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when this is the case, they are not allied offenses of similar import under Johnson.
State v. Tibbs, 1st Dist. No. C-100378, 2011-Ohio-6716, ¶ 43-50 (Defendant had a
separate animus in robbing and killing the victim); Irbey at ¶ 24-25 (Court found
evidence that the defendant planned to murder the victim in addition to robbing
him).
{¶18} Additionally, the extent of Casad’s injuries provides further support
for this Court’s conclusion that the two offenses are not allied offenses of similar
import.   Casad’s injuries included lacerations to his face, swelling to his face and
arms, a hairline fracture in his orbit  (eye socket), bruising and swelling in his
brain, and an epidural hematoma (bleeding in the brain) requiring a craniotomy.
(Trial Tr. at 718-725).   These multiple, serious injuries show Diggle used greater
force than necessary to complete the aggravated robbery.    Thus, the extent of
Casad’s injuries are further evidence that Diggle had the animus to beat Casad as
revenge for calling the police on him in addition to his animus to steal Casad’s
money.   This conclusion is also consistent with other Ohio courts of appeals that
have determined a defendant’s excessive use of force is an indication of a separate
animus. State v. Ruby, 6th Dist. No. S-10-028, 2011-Ohio-4864, ¶ 61 (Extent of
beating  demonstrated  a  separate  animus  for  the  attempted  murder  and  theft
offenses); Tibbs at ¶ 43 (Manner in which defendant killed the victim showed a
separate intent for the murder from the aggravated robbery).
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{¶19} Diggle’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
GORDON  DIGGLE,  III’S  SIXTH  AMENDENT  RIGHT  TO
CONFRONTATION  WAS  VIOLATED  WHEN  THE  STATE
INTRODUCED  TESTIMONIAL  HEARSAY  STATEMENTS
FROM THE VICTIM-DECEDENT DURING MR. DIGGLE’S
TRIAL.    SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION;   SECTION                                                                 10,   ARTICLE   I   OF   THE
CONSTITUTION; CRAWFORD V. WASHINGTON (2004), 541
U.S. 36, 124 S.CT. 1354. (APRIL 16, 2011 JOURNAL ENTRY;
VOLUME II, T. PP 376, 389-392, 413, 555-556, 602-603)
{¶20} In his second assignment of error, Diggle argues that the trial court
violated his Sixth Amendment rights by admitting Casad’s testimonial hearsay
statements.   Specifically, Diggle points to the testimony of Officer Turpin, Captain
Kramer, Nicholas Scott, Captain Sweigart, and Sergeant Eberle.   Diggle contends
that the statements Casad made to these men when they arrived at his house in
response to Fischer’s 911 call were testimonial in nature.   Diggle argues that the
admission of  these statements during the trial was a violation of  his right to
confront the witnesses presented against him.
{¶21} The Confrontation Clause of the Sixth Amendment states, “[i]n all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with
the witnesses against him.”   This Court reviews de novo the question of whether a
defendant’s  constitutional  rights  under  the  Confrontation  Clause  have  been
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violated. State v. Guiterrez, 3d Dist. No. 5-10-14, 2011-Ohio-3126, ¶ 43, citing
State v. Smith, 162 Ohio App.3d 208, 2005-Ohio-3579, ¶ 8 (8th Dist.).
{¶22} In  Crawford  v.  Washington,  the  United  States  Supreme  Court
determined  that                                                                      “[w]here  testimonial  evidence  is  at  issue   *   *   *  the  Sixth
Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” 541 U.S. 36, 68, 241 S.Ct. 1354 (2004).   The
Court did not establish a comprehensive definition of “testimonial” but stated that
at a minimum, it included prior sworn testimony and police interrogations. Id.
{¶23} The United States Supreme Court expanded on how courts should
determine whether statements are testimonial in Davis v. Washington, stating:
Statements are nontestimonial when made in the course of police
interrogation  under  circumstances  objectively  indicating  that  the
primary purpose of the interrogation is to enable police assistance to
meet  an  ongoing  emergency.     They  are  testimonial  when  the
circumstances  objectively  indicate  that  there  is  no  such  ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution. 547 U.S. 813, 822, 126 S.Ct. 2266 (2006).
{¶24} The United States Supreme Court addressed this issue most recently
in Michigan v. Bryant, 131 S.Ct. 1143 (2011).   The Court stated that the standard
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rules of hearsay are also relevant in determining whether out of court statements
are  testimonial.  Id.  at                                                                1155.    A  court  must  further  “objectively  evaluate  the
circumstances in which the encounter occurs and the statements and actions of the
parties”  to  determine  whether  the  primary  purpose  was  to  assist  an  ongoing
emergency. Id. at 1156.   As a result, “the relevant inquiry is not the subjective or
actual purpose of the individuals involved in a particular encounter, but rather the
purpose  that  reasonable  participants  would  have  had.”  Id.    The  court  should
consider the primary purpose of both the declarant and the interrogator. Id. at
1160.   This analysis prevents problems that could arise from mixed motives on the
part of the declarant or the interrogator, and also considers that police officers
often fulfill the dual responsibilities of first responders and criminal investigators.
Id. at  1161.    The court should also take into account that the parties’ primary
purpose can change over the course of the interrogation. Id. at 1159.   In those
instances, the trial court should exclude those portions of  the statements that
become testimonial. Id. at 1159-1160.
{¶25} Courts  should  look  at  all  of  the  relevant  circumstances  when
determining whether statements are testimonial. Id. at 1161.   Specifically, courts
should consider the medical condition of the victim and formality of the encounter
between the declarant and police officer. Id. at 1159-1160.   The Court explained,
“[t]he medical condition of the victim is important to the primary purpose inquiry
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to the extent that it sheds light on the ability of the victim to have any purpose at
all in responding to police questions and on the likelihood that any purpose formed
would necessarily be a testimonial one.” Id. at 1159.   Additionally, the formality
of the encounter is relevant because a formal interrogation suggests that the parties
are no longer in an emergency situation, although courts should be aware that
“informality does not necessarily indicate the presence of an emergency or the
lack of testimonial intent.” Id. at  1160.    If the circumstances indicate that the
primary purpose of the statements is to address an ongoing emergency, then it is
presumed that the statements will be reliable and do not require cross-examination
pursuant to the Confrontation Clause. Id. at 1156.
{¶26} In the present case, Diggle contends that statements Casad made in
the presence of Officer Turpin, Captain Kramer, Nicholas Scott, Captain Sweigart,
and  Sergeant  Eberle  were  testimonial  because  their  primary  purpose  was  to
investigate a crime, not to deal with an ongoing emergency.    Officer Turpin,
Captain Kramer, Nicholas Scott, and Captain Sweigart were the first responders
who arrived at Casad’s home in response to Fischer’s 911 call. (Trial Tr. at 372,
387, 412, 554).   Officer Turpin was the police officer first called to the scene,
while Captain Kramer, Nicholas Scott, and Captain Sweigart were all paramedics
who arrived at the same time as Officer Turpin. (Id.).   Sergeant Eberle, another
police officer, arrived shortly thereafter. (Id. at 556, 602).
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{¶27} Captain  Kramer  testified  that  when  the  first  responders  arrived,
Casad’s “face was all bloodied, bruising and swelling, mostly on the left side, left
eye  was  almost  swelled  shut,  blood  all  over  his  face,  his  hands,  several
lacerations.”  (Id. at  373).    Nicholas Scott testified that Casad was  “covered in
blood and had been what appeared to be assaulted” and that the paramedics began
cleaning Casad to determine the extent of his injuries. (Id. at 388). Captain Kramer
described Casad as “upset and worried.” (Id. at 374).      Nicholas Scott testified that
while the paramedics began cleaning and treating Casad, Officer Turpin asked him
what happened. (Id. at 405).   Casad stated that he had been at the Friendly Tavern
and was jumped in the alley, beaten, and robbed.  (Id. at  406).   Officer Turpin
asked Casad if he knew who had beaten him. (Id.).   Casad responded that it was
Gordon Diggle.  (Id.).    Officer Turpin asked Casad if it was the same Gordon
Diggle that drove a white Cadillac, and Casad told him it was. (Id.).   During this
exchange, the paramedics continued to clean Casad and evaluate the extent of his
injuries. (Id. at 390).   The paramedics then strapped Casad to their cot and loaded
him into the ambulance. (Id.).
{¶28} At trial, Officer Turpin, Captain Kramer, Nicholas Scott, Captain
Sweigart, and Sergeant Eberle all testified that Casad had been jumped, beaten,
and robbed by Diggle based on Casad’s statements.  (Id. at  371-415,  553-608).
Specifically, Officer Turpin testified that Casad told him “that he was jumped in
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the alley by the Friendly by Gordon Diggle” and that Casad said “that while he
was being jumped, Gordon Diggle reached into his pocket and took seven hundred
and fifty dollars ($750.00) in cash from him.” (Id. at 555-556).   Captain Kramer
testified that Casad “said he had been at the Friendly Tavern having a few beers
because he gave us the name of the gentleman that did this to him and he said they
had actually had a few beers.   He had bought the beer.” (Id. at 376).   Captain
Kramer testified that the “gentleman’s” name was Gordon Diggle. (Id.).   Nicholas
Scott testified that Casad “said that he was at the Friendly Tavern and he said he
got  up  to  leave  and  was  followed  out  into  the  alley and  from  there  he  was
punched,” referring to Diggle as the assailant. (Id. at 389-392).   Captain Sweigart
testified that as they started treating Casad, he said, “I know who did this to me”
and identified Diggle.  (Id. at  413).    Sergeant Eberle testified that  “Mr. Casad
indicated that he had been assaulted or jumped when he left the Friendly Tavern”
and that he said Gordon Diggle was who had assaulted him. (Id. at 608).
{¶29} The trial court determined that Casad’s statements to the emergency
personnel  were  not  testimonial  and  were  admissible  pursuant  to  the  hearsay
exceptions  in  Evid.R.                                                                   803(1)                                                                  (present  sense  impression),   803(2)   (excited
utterance), 803(4) (statements for purposes of medical diagnosis or treatment), and
804(A)(4)(B)(6)                                                                           (forfeiture  by  wrongdoing).    We  agree  with  the  trial  court’s
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conclusion  that  Casad’s  statements  were  not  testimonial  and  admissible  as
statements made for the purposes of medical diagnosis or treatment.
{¶30} Turning first to the question of whether Casad’s statements were
testimonial, the evidence presented at trial established that Officer Turpin arrived
on the scene with the paramedics as the first responders to Fischer’s emergency
call. (Id. at 554)   At the hearing on Diggle’s motion in limine to exclude Casad’s
statements, Officer Turpin testified that when he arrived on the scene, he believed
Casad may have been part of a bar fight and there could have been other injured
individuals.                                                                              (Motion  Hearing  Tr.  at  63).    At  the  trial,  Officer  Turpin  further
testified  that  when  he  began  interviewing  Casad  his  “principle  objective  was
trying to figure out exactly what happened at that immediate time.” (Trial Tr. at
566).   He stated that he did not view the interaction as a criminal investigation
while he was at Casad’s house because he asked very few questions and mainly let
the paramedics take care of Casad. (Id.).   Officer Turpin testified that his interview
of Casad did not become a criminal investigation until he had more details about
what had occurred. (Id.).   Officer Turpin’s testimony is supported by an objective
view of his questions to Casad, which were limited to asking what had occurred,
who else was involved, and clarifying that Casad was referring to Diggle and not
Diggle’s father, who has the same name. (Id. at 405-406).   The interview was very
brief, taking place while the emergency personnel were evaluating the nature of
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Casad’s injuries and preparing to load him into the ambulance. (Id. at 413).   Thus,
the purpose of Officer Turpin’s interview with Casad was to deal with an ongoing
emergency by determining what had happened to Casad and who else had been
involved, which enabled Officer Turpin to establish the potential danger to Casad,
the public, and what steps were necessary to deal with the situation.
{¶31} Additionally, the formality of the encounter and Casad’s medical
condition are relevant in determining whether the statements were testimonial.
Michigan v. Bryant, 131 S.Ct. 1143 at 1159-1160.   The United States Supreme
Court has concluded that the interview is formal when it occurs at the police
station at some point after the event, or if the declarant calmly relates the facts to
the officer at the scene of the event after the emergency has ended. Id. at 1153-
1155; Davis, 547 U.S.  813.   On the other side of the spectrum is the informal
interview, which the Court has found includes when the declarant is on the phone
with  a  911  operator  while  the  emergency is  occurring. Bryant  at  1159-1160;
Davis.   The present case falls on the informal side of the spectrum.   The first
responders arrived at Casad’s home within minutes of Fischer’s emergency call.
(Trial Tr. at 394).   Casad had been recently beaten and robbed, and was suffering
from numerous serious injuries. (Id. at 373-376).   The paramedics testified that
Casad  was                                                                               “upset”  and   “worried.”   (Id.  at   373-374,   389).   Officer  Turpin
interviewed Casad at Casad’s house while paramedics treated him and prepared
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him for transport to the hospital, which occurred within the span of  10 to  15
minutes from the time the first responders arrived on the scene. (Id. at 372-375).
Furthermore, Casad was suffering from an epidural hematoma  (bleeding in the
brain),  swelling  in  his  brain,  a  fractured  orbit                                    (eye  socket),  and  numerous
lacerations. (Id. at 718-725).   The extent and nature of Casad’s injuries provides
additional  support  for  the  conclusion  that  the  primary  purpose  of  Casad’s
statements was to assist Officer Turpin in addressing the ongoing emergency.
{¶32} Finally, the issue of whether the statements are admissible under a
hearsay exception is relevant, but not dispositive, to this Court’s determination of
whether the statements were testimonial. Bryant at 1155.   Captain Kramer testified
that he did not remember what he said on the scene to Casad, but it would be
common for him to ask him general questions such as the time of day or if he
remembered what had happened. (Id. at 378-379).   Captain Kramer testified that
the purpose of these questions is to determine “a level of consciousness to see if
they are alert.” (Id. at 379).   The testimony at trial implied that Officer Turpin, not
Captain Kramer, questioned Casad regarding what had occurred. (Id. at 405-406).
However, Casad’s ability to recall what had happened to him was relevant to the
paramedics’  ability to  determine  Casad’s  level  of  consciousness  regardless  of
which first responder began the interview.   Thus, these statements were made for
the purpose of medical treatment and were thus admissible under Evid.R. 803(4).
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Since the primary purpose of the statements was to address an ongoing emergency
and  provide  the  paramedics  with  information  to  treat  his  injuries,  Casad’s
statements were not testimonial and therefore were admissible.
{¶33} Even assuming arguendo that the statements were testimonial, their
admission  would  be  harmless  error  in  light  of  the  remaining  evidence.           “A
constitutional error can be held harmless if we determine that it was harmless
beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-
791, ¶ 78, citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824 (1967).
{¶34} The  cumulative  evidence,  which  Diggle  does  not  contest  in  the
present  appeal,  demonstrates  that  any error  in  admitting  the  first  responders’
testimony is harmless beyond a reasonable doubt.    Numerous other witnesses
provided the same information as the first responders.   At trial, Fischer testified
that after he returned to the house, Casad stated that he had been beaten and
robbed by Diggle, and that Diggle stole $800. (Trial Tr. at 350).   According to
Fischer, Diggle told Casad, “call the cops now,” while Diggle was beating Casad.
(Id. at  333-350.)    Gary Cathcart, a physician’s assistant at the Joint Township
emergency department, testified that
the  patient  reported  to  me  he  was  assaulted  approximately  ten
minutes before calling EMS.   He was jumped from behind by what
he describes as a friend at the Tavern.   States he was sucker punched
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and he reports that the person that attacked him had an altercation at
his house earlier with another man.   He called the police to get them
out of the house and keep them from breaking up his house. (Id. at
717).
Brenda Warniment, a nurse at the Joint Township emergency department, testified
that  during  her  neuro  assessment  of  Casad,  he  told  her  that  he  was  kicked,
punched, and beat by Diggle. (Id. at 693-694).   Brenda Warniment further testified
that Casad stated that he had been assaulted because he had previously called the
police on Diggle. (Id. at 694-695).   Erica Zimpher, a flight nurse that did Casad’s
critical care transport, testified that Casad stated that he “had been stomped in the
head by a guy with steel toe boots.” (Id. at 730).   Thus, Casad consistently stated
that Diggle had robbed and beaten him because Casad had previously called the
police on Diggle.
{¶35} Diggle’s own actions provide further evidence.   Brenda Chaney, the
bartender at the Friendly Tavern, testified that Diggle left with Casad, appeared to
go into the alley with Casad, and then Diggle walked across the street to his car a
few minutes later. (Id. at 282).   Shortly thereafter, Brenda Chaney observed an
ambulance pull up to Casad’s house. (Id. at 282-283).   Thomas, a mutual friend,
testified that he went to breakfast with Diggle the morning of the incident. (Id. at
443).   At that time, Diggle had roughly $100. (Id.).   Thomas received a phone call
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from Diggle the day after the incident, and Thomas told Diggle he needed to turn
himself in. (Id. at 447-448).   Diggle told Thomas, “What?   I didn’t do nothing.
Steve Casad went in the alley and I took off.” (Id. at 448).   Diggle then threatened
to beat Thomas if he went to the police. (Id.).   Doug Adams, a friend of Diggle’s,
testified that Diggle showed up at his house unannounced between 6 and 6:30 p.m.
the day of the incident and that Diggle had a large amount of money with him. (Id.
at 424).   Randy Simpson worked at a concession wagon with Diggle in the days
following the incident and testified that Diggle had a large amount of money when
they left to work for the weekend.  (Id. at  677-680).    Randy Simpson further
testified  that  Diggle  told  him  that                                                  “the  law  was  looking  for  his  brother  for
something that happened in a bar with somebody getting beat up and robbed.” (Id.
at 681).   Finally, Loretta Avila, Diggle’s aunt, testified that she saw Diggle after
the incident and told Diggle “that guy died.” (Id. at 889).   In response, Diggle said,
“no way.” (Id.).
{¶36} In  addition  to  Casad’s  numerous,  consistent  statements,  Diggle’s
own actions thus establish that he was near the Friendly Tavern at the time that
Casad was beaten and left shortly before Casad arrived home seriously injured.
Diggle also had a substantially smaller amount of  money the morning of the
incident than in the evening and days following the incident.   Finally, Diggle made
incriminating statements to his co-worker, his aunt, and threatened a friend.
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Case No. 2-11-19
{¶37} This  Court  finds  that  the  first  responders’  statements  were
admissible because their primary purpose was to address an ongoing emergency.
However, if there was any error in admitting the statements of the first responders,
this Court concludes that it was harmless beyond a reasonable doubt due to the
cumulative effect of the evidence.
{¶38} Diggle’s second assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
OF    COUNSEL,    IN    VIOLATION    OF    THE    SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I (VOLUME II, T. PP. 340-344,
575-591, 597-599; APRIL 16, 2011 JOURNAL ENTRY)
{¶39} In his third assignment of error, Diggle argues his trial counsel was
ineffective.    Diggle contends that his trial counsel did not understand the trial
court’s ruling on Diggle’s motion in limine, and committed prejudicial error by
admitting statements that had been excluded.
                                                                                                                {¶40} A defendant asserting a claim of ineffective assistance of counsel
                                                                                       must establish:                                                                                                (1) the counsel’s performance was deficient or unreasonable under
                                                                                                                the circumstances; and  (2) the deficient performance prejudiced the defendant.
                                                                                                                State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466
U.S.                                                                                   668,              687,   104  S.Ct.                                                                            2052  (1984).    Prejudice  results  when                           “there  is  a
                                                                                                                reasonable probability that, but for counsel’s unprofessional errors, the result of
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Case No. 2-11-19
the proceeding would have been different.” Bradley,  42 Ohio St.3d  136,  142
(1989),  citing  Strickland  at                                                           694.   “A  reasonable  probability  is  a  probability
sufficient to undermine confidence in the outcome.” Bradley at 142; Strickland at
694.
{¶41} In order to show counsel’s conduct was deficient or unreasonable,
the defendant must overcome the presumption that counsel provided competent
representation  and  must  show  that  counsel’s  actions  were  not  trial  strategies
prompted by reasonable professional judgment. Strickland at  687.    Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance.   State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical  or  strategic  trial  decisions,  even  if  unsuccessful,  do  not  generally
constitute ineffective assistance.   State v. Carter, 72 Ohio St.3d 545, 558 (1995).
Rather,  the  errors  complained  of  must  amount  to  a  substantial  violation  of
counsel’s essential duties to his client. Bradley at 141-142, citing State v. Lytle, 48
Ohio St.2d 391, 396 (1976).
{¶42} According to Strickland, we must first determine whether counsel’s
performance was deficient or unreasonable under the circumstances. Id. at 687.   At
issue, in his motion in limine, is testimony Diggle contended was inadmissible.
(Doc No. 84).   The trial court granted Diggle’s motion in regards to statements
Casad made to Officer Turpin while Casad was at the Joint Township emergency
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department.  (Doc.  No.  109).    These  statements  included  Casad’s  assertion  to
Officer Turpin that Diggle stated “I’ll teach you to call the cops on me again,”
while he was beating Casad. (Id.); (Ex. H).
{¶43} During his cross examination of Officer Turpin, counsel questioned
Officer Turpin at length regarding the scope of his investigation. (Trial Tr. at 572-
578).   The purpose of this line of questioning was to impeach Officer Turpin’s
credibility regarding the extent of the investigation and demonstrate for the jury
that the police focused their investigation solely on Diggle and failed to consider
other  suspects.                                                                        (Id.).    During  defense  counsel’s  cross  examination,  the  State
objected, stating “[t]his witness is already instructed not to answer that question
pursuant to the Motion in Limine.”  (Id. at 587).   The following exchange then
occurred:
Trial Court: Okay.   But if the door’s opened, the door’s open. He
(defense counsel) opened the door. * * * He’s opened the door by
asking what all this officer contemplated and so forth.   So if he’s
opened the door, he’s opened the door.
Defense   Counsel:   I   just   want   to   make   sure   there’s   no
misunderstanding.   The Motion in Limine does not take and stop me
from doing anything.
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Case No. 2-11-19
Trial Court: That’s right and if you open the door, you open the
door.
Defense Counsel: And the door’s been opened because the Court
has said that all this testimony is admissible.
Trial  Court:  No,  that’s  not  true.     The  Court  limited  certain
testimony.   Now you’ve opened the door to it.   But he’ll answer the
questions.   I’ll instruct him to answer the questions. (Id. at 587-588).
This exchange between the trial court and defense counsel indicates that although
defense counsel had a tactical purpose for questioning Officer Turpin about his
investigation, defense counsel may not have realized the question was opening the
door  to  evidence  that  had  been  excluded  under  the  motion  in  limine.         (Id.).
Consequently, this Court must now consider whether Diggle was prejudiced by the
resulting testimony.
{¶44} After the trial court ruled defense counsel had opened the door to
previously excluded testimony, Officer Turpin testified on cross examination that
Casad had told him that Diggle stated, “I’ll teach you not to call the cops on me
again.” (Id. at 591).   The trial court also admitted Officer Turpin’s report, which
stated:
Mr. Casad said that he had gone into the Friendly Tavern and had
been drinking with Gordon Diggle.   He said it was just those two
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and the barmaid and that he had purchased a drink or two for Diggle.
Casad says he always carries a large quantity of cash that he rolls up
in his pocket and estimated it to be $700 to $750.   He says that as he
walked out of the Friendly Tavern and started to walk through the
alley,  he  was  assaulted  and  beaten  by Gordon  Diggle  who  then
reached in his pocket, stole his money.   Casad said that he thought
that Diggle was going to kill him.   He said that Diggle’s [sic] walked
across the street and left in his white Cadillac. (Ex. H).
{¶45} We  cannot  find  that  this  admitted  evidence  prejudiced  Diggle.
Throughout  the  trial,  other  witnesses  testified  to  the  same  facts.    Thus,  the
evidence was cumulative and did not result in prejudice to Diggle.   Consequently,
we cannot find that there is a reasonable probability that the outcome of the trial
would have been different absent this evidence.
{¶46} Diggle’s third assignment of error is, therefore, overruled.
{¶47} Having  found  no  error  prejudicial  to  the  appellant  herein  in  the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. concurs.
ROGERS, J. concurs; and concurs in Judgment Only as to Assignment of
Error No. II.
/jlr
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