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State v. Davidson9/14/2001
er of the facts. See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. In her appeal, Davidson concedes that this principle applies to her case, but submits that the jury lost its way when resolving the conflicts in the evidence, because her testimony, coupled with that of the friend to whose home she had fled after stabbing and cutting Robinson, made it clear that she had not been the aggressor and had acted only to defend herself.
Davidson insists that Robinson's past assaults upon her made his testimony that she had attacked him "simply not believable." We cannot agree. The jury was left, after the submission of all the evidence, with a clear choice of whether to believe Davidson's version of the events or to accept those of the witnesses for the prosecution, together with inferences properly drawn, especially the characterization of the wounds to Robinson's forearms as "defensive." The issues were submitted to the jury with instructions that were correct in law, unchallenged here, and appropriate to the case. The record convinces us that the jury made its choice in reliance upon substantial, probative evidence, and that it did not lose its way or otherwise create a miscarriage of justice. Resultantly, the second assignment must be, and is, overruled.
The third assignment of error is that Davidson was not afforded the effective assistance of trial counsel, because counsel failed to file a motion to suppress the utterances Davidson made when Officer Neeley had asked her, " hy did you do it * * * ?"
After Neeley testified that Davidson had said, " e deserved it," the prosecutor attempted to elicit from him a further explanation of what Davidson had "meant" when she made the statement. When Neeley responded that Davidson had "referred to the incident where he was subsequently convicted on felonious assault," defense counsel immediately interposed an objection. The court retired to chambers with defense counsel and the prosecutor to discuss the legal issues broached by the objection.
Initially, defense counsel predicated the objection on the failure of the prosecutor to provide Davidson's statement in response to a demand for discovery and notice of evidence filed and served on the prosecution on March 16, 2000. The response to that demand was filed May 17, 2000, and declared in pertinent part as follows:
1. Defendant's statements:
None known to the prosecutor as of May 5, 2000.
Counsel said the defense was not claiming surprise or relying on a possible lack of adequate Miranda warnings, because "it was a simple statement." He suggested that they "ought to stop with what's in and just keep the trial going."
Then the court brought Officer Neeley into the conference to determine what Neeley might say if questioned further about Davidson's statements. Neeley said that Davidson's utterance that "he had it coming" was "the extent of it." After being advised by defense counsel that the objection pertained to possible additional testimony as a product of custodial interrogation, rather than the already-given testimony, the court admonished the prosecutor to limit the questions to "what he said and she said." The only significant addition to the exchange between Neeley and Davidson was that Davidson had "relayed to [Neeley] that [Robinson had] nearly killed her with a ball-peen hammer a few years earlier, and that he should know that."
Defense counsel had made clear to the jury in his opening statement that the case pivoted on whether "the sum of the evidence" would enable the jury to "find what Betty [had done] was in defense of herself to prevent further personal injury." Davidson's testimony o
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