State v. Everson
57 N.E.3d 289
Ohio Ct. App.2016Background
- On March 30, 2008 Terrell Roland was shot in a drive-by outside his mother’s house in Youngstown and later died; bystander Mickele Glenn identified the shooter as "Reg" and later picked Reginald Everson from a photo array.
- Everson was indicted for aggravated murder with a drive-by firearm specification and for having a weapon while under disability.
- At trial the victim’s out-of-court statement to his mother — "Reg shot me" — was admitted; other testimony included Glenn’s eyewitness ID, police investigative testimony, and 911 calls.
- The murder count and firearm specification were tried to a jury; the weapons-under-disability count was bifurcated and tried to the bench.
- Everson was convicted of aggravated murder, the firearm specification, and (in a separate bench proceeding) having a weapon while under disability; he was sentenced to an aggregate 38 years to life.
- On appeal the Seventh District affirmed the murder conviction and firearm specification but vacated and remanded the weapons-under-disability conviction because no written jury-waiver was in the record.
Issues
| Issue | State's Argument | Everson's Argument | Held |
|---|---|---|---|
| Admissibility of victim’s out-of-court statement ("Reg shot me") | Statement was admissible (trial court treated it as dying declaration) | Statement was hearsay and violated Confrontation Clause | Admission as dying declaration was error, but harmless because statement qualified as excited utterance; conviction unaffected |
| Admission of police testimony repeating third-party statements (e.g., that Everson had access to a black Buick Regal) | Testimony explained officers’ investigatory conduct (non-hearsay) | Testimony was impermissible hearsay used for truth of matters asserted | Testimony improperly became substantive as to the car but error was harmless given other evidence linking Everson; no reversal |
| Admissibility of 911 calls under Confrontation Clause and hearsay exceptions | 911 calls were nontestimonial and admissible as excited utterances | 911 calls were testimonial and inadmissible without prior cross-examination | Calls were nontestimonial (ongoing emergency) and met excited-utterance criteria; admissible |
| Bench trial of weapons-under-disability count without written jury-waiver | Court treated bifurcation and waiver as agreed in court | No written, signed, filed jury-waiver in record; Crim.R.23 and R.C.2945.05 require strict compliance | Reversed as to count two: no jurisdiction to conduct non-jury trial without strict compliance; conviction and sentence vacated and remanded |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause applies to testimonial out‑of‑court statements)
- Davis v. Washington, 547 U.S. 813 (2006) (statements made to resolve an ongoing emergency are nontestimonial)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (surrogate testimony regarding forensic analyst’s test implicates confrontation concerns)
- State v. Maxwell, 139 Ohio St.3d 12 (2014) (Ohio Supreme Court: autopsy reports are nontestimonial business records; surrogate examiner may give expert opinion)
- State v. Pless, 74 Ohio St.3d 333 (1996) (strict compliance required for written, signed, filed jury-waiver)
- Chapman v. California, 386 U.S. 18 (1967) (standard for harmless constitutional error: harmless beyond a reasonable doubt)