State v. McGee
2016 Ohio 7510
Ohio Ct. App.2016Background
- On Nov. 22, 2013, Marshall Frazier called 911 saying Mark McGee had threatened to kill him; minutes later a shooting occurred at Frazier’s apartment and Frazier died of a chest gunshot.
- Neighbors observed a man shoot another as the door opened; Frazier was found on the landing holding a kitchen knife; the bullet trajectory was downward consistent with a doorway shooting.
- McGee was treated at a hospital for a stab wound; he told police and the grand jury that Frazier stabbed him first while McGee was attempting to flee and that he had rented a gun he thought was unloaded.
- Indictment charged murder, felonious assault, firearm specs, concealed-weapon offenses, and tampering with evidence (state could not locate the gun); bench trial followed.
- Trial court convicted McGee of voluntary manslaughter (reduced from murder), carrying a concealed weapon, and tampering with evidence; sentenced to 18.5 years. McGee appealed.
Issues
| Issue | State's Argument | McGee's Argument | Held |
|---|---|---|---|
| Admission of 911 and related hearsay; Confrontation Clause | 911 statements were admissible as excited utterances and nontestimonial (primary purpose was to get emergency help) | 911 statements were hearsay/testimonial and violated Crawford confrontation rights; mother’s out-of-court statement was inadmissible hearsay | Court: 911 call admissible as excited utterance and nontestimonial; no Confrontation Clause violation; mother’s statement harmless in bench trial (no plain error) |
| Ineffective assistance for failing to object to hearsay | Counsel’s omissions were reasonable; statements were admissible or cumulative; no prejudice | Counsel ineffective for not objecting to hearsay | Court: Counsel performance not deficient and no prejudice under Strickland; claim denied |
| Sufficiency / manifest weight: carrying a concealed weapon and tampering with evidence | Evidence showed gun was concealed (back pocket under coat) and post-shooting inconsistent statements plus missing gun supported tampering intent | Insufficient evidence that gun was concealed or that McGee intended to impair evidence | Court: Evidence sufficient; convictions for concealed weapon and tampering stand (not against manifest weight) |
| Sentencing errors: consecutive findings, consideration of R.C. factors, DNA notification, clerical murder label | Court made required consecutive findings at hearing and entry, considered sentencing principles, DNA-notification omission is harmless, and murder label was clerical | Trial court failed statutory findings, failed to consider factors, failed to notify about DNA, and entry wrongly lists murder not manslaughter | Court: Sentencing affirmed (findings present); DNA notice error harmless; clerical error corrected via nunc pro tunc entry (remand for correction) |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (announcing testimonial hearsay rule under the Confrontation Clause)
- Davis v. Washington, 547 U.S. 813 (911 statements nontestimonial when primary purpose is obtaining emergency assistance)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- State v. Jenks, 61 Ohio St.3d 259 (sufficiency-of-the-evidence standard in Ohio)
- State v. Thompkins, 78 Ohio St.3d 380 (manifest-weight review in Ohio)
- State v. Siler, 116 Ohio St.3d 39 (treatment of 911 statements under Confrontation Clause)
- State v. Bonnell, 140 Ohio St.3d 209 (consecutive-sentence findings post-Bonnell)