STATE OF OHIO, Plаintiff-Appellee, vs. CHRISTOPHER ALEXANDER, Defendant-Appellant.
APPEAL NO. C-110035; TRIAL NO. B-0904637
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 10, 2012
[Cite as State v. Alexander, 2012-Ohio-460.]
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed
Rubenstein and Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OPINION
{¶1} Defendant-appellant Christopher Alexander appeals the judgment of thе Hamilton County Court of Common Pleas convicting him of aggravated murder, murder, attempted murder, and aggravated robbery, with firearm specifications. He was convicted after a jury trial.
{¶2} This case involves shootings that caused the deaths of Mark Davenport and Kenneth Gaines and that resulted in serious injuries to Ruben Willis. The stаte alleged that the crimes were perpetrated by Alexander and his accomplice Gerald Wilson.
A Feud Over $200
{¶3} Alexander and Davenport had a simmering feud over $200 in drug money. That dispute came to a head in July 2009.
{¶4} Johanna Sadler was Davenport‘s live-in girlfriend. She testified that on the night before the shootings, Davenport hаd received a telephone call. After the telephone conversation had ended, Davenport told her that the caller was Alexander and that Alexander had told him that he better enjoy his last day because he was going to kill him.
{¶5} The next day, Ruben Willis was standing with Davenport in front of Davenport‘s house when а car approached. Willis testified that Alexander had been driving the car and that he had pointed his finger at them as if he were firing a gun.
{¶6} Wilson testified that Alexander had called to enlist him in what Alexander described as a robbery. Wilson assented, and the two approached Davenport‘s house, with Alexander carrying a gun.
{¶7} Davenport, Gaines, and Willis were standing in front of Davenport‘s house. According to Wilson, Alexander opened fire in the direction of
{¶8} When police arrived, Davenport and Gaines had been fatally wounded, and Willis had suffered serious leg injuries. The police observed that Davenport‘s pants pockets had been turned inside out as if someone had reached into them to take the contents.
{¶9} Alexander turned himself in. In response to interrogation, Alexander confessed that he had been involved in thе crimes. But according to Alexander, he had intended to merely rob Davenport. He maintained that Wilson had possessed the gun and that he had fired the shots despite Alexander‘s attempts to restrain him.
{¶10} Eric Kleinholz was incarcerated in the Hamilton County Justice Center with Alexander. Kleinholz testified that Alexander had told him that he had shot someone in a dispute over $200.
{¶11} Tamela Scott took the stand for the defense and stated that she had dropped Alexander and Wilson off near the scene of the shootings and had picked them up later in the day. She also testified about a confrontation between Alexander and Davеnport before the shootings. Scott did not witness the shootings and was unable to remember details about what had happened after she had driven Alexander and Wilson from the area.
{¶12} The jury found Alexander guilty, and the trial court sentenced him to prison terms of life without the possibility of parole for aggravated murder, 15 yеars to life for murder, and two consecutive ten-year terms for attempted murder and aggravated robbery, as well as two consecutive three-year terms for the firearm specifications.
{¶13} In his first assignment of error, Alexander argues that the trial court erred in overruling his motion to suppress the confession he mаde to police soon after the shootings. He argues that the confession was coerced and therefore inadmissible.
{¶14} In a hearing on a motion to suppress a confession, the prosecution must prove by a preponderance of the evidence that the confession was voluntary. See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The Supreme Court of Ohio has stated that in deciding whether a defendant‘s confession is involuntarily induced “the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existencе of physical deprivation or mistreatment; and the existence of threat or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus. Coercive police activity is a necessary predicate to a finding that the admission of a confession would violate the defendant‘s due-process rights. State v. Cedeno, 192 Ohio App.3d 738, 2011-Ohio-674, 950 N.E.2d 582 (1st Dist.), ¶ 17, citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and State v. Combs, 62 Ohio St.3d 278, 285, 581 N.E.2d 1071 (1991).
{¶15} In the сase at bar, Alexander has failed to demonstrate any coercion or other impropriety on the part of the investigating officers. The interrogation lasted no more than two hours. During the interrogation, Alexander was permitted to take a break to smoke a cigarette, and he was provided with food. Alexander expressed the desire to tell his version of the events, and there was no indication that the officers placed undue pressure on him to talk. Under these
Admissibility of Davenport‘s Statement
{¶16} In his second assignment of error, Alexander contends that the trial court erred in admitting into evidence the statement that Davenport had made to Johanna Sadler on the night before he was killed. Alexander argues that the statement was inadmissible hearsay, while the state maintains that the statement was admissible as a present sense impression.
{¶17} A trial court generally has broad discretion in admitting or excluding evidence. State v. Stafford, 158 Ohio App.3d 509, 2004-Ohio-3893, 817 N.E.2d 411 (1st Dist.), ¶ 65, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987).
{¶18} In this case, the trial court did not abuse its discretion in admitting the statement. Sadler‘s testimony indicated that Davenport had repeated Alexander‘s threat from the telephone call immediately after the conversation had ended. Davenport had no time to reflect or to fabricate the substance of the conversation, and there was no indication that his statement was otherwise unreliable. Thus, the statement was properly admitted, and we overrule the second assignment of error.
{¶19} In his third assignment of error, Alexander argues that he was prejudiced by prosecutorial misconduct.
{¶20} He first argues that improper comments by the prosecutor during closing arguments deprived him of a fair trial. He cites as improper the prosecutor‘s statement thаt the jury should not “let one of the killers walk away here.”
{¶21} To obtain a reversal on the ground of improper remarks made during closing argument, the defendant must demonstrate not only that the comments were improper, but also that they deprived the defendant of a fair trial. State v. Seay, 1st Dist. No. C-090233, 2010-Ohio-896, ¶ 23.
{¶22} In the case at bar, we find no impropriеty in the prosecutor‘s comment. In the context of the argument, the prosecutor simply emphasized that Alexander could not overcome the overwhelming evidence of his guilt by merely pointing the finger at Wilson. The prosecutor did not appeal to the passions of the jury and did not misstate the law or the еvidence. Accordingly, we cannot say that the comment deprived Alexander of his right to due process.
{¶23} Alexander also argues that the prosecutor engaged in misconduct by misstating the testimony of a witness. But Alexander does not specifically identify the testimony that was allegedly mischaracterized, and we find nоthing in the record to indicate that the state improperly commented on the evidence.
{¶24} Finally, Alexander argues that the state violated
Weight of the Evidence
{¶25} In his fourth assignment of error, Alexander argues that his convictions were against the manifest weight of the evidence.
{¶26} To reverse a conviction on the manifest weight of the evidence, a reviewing court must review the entire record, weigh the evidencе and all reasonable inferences, consider the credibility of the witnesses, and conclude that, in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice in finding the defendant guilty. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶27}
{¶29} Alexander contends that he had merely intended to rob Davenport and that Wilson had caused the confrontation to escalate. But that contention was refuted by the witnesses who testified about threats that Alexander had made and by thе testimony of the bystander who had seen Alexander fleeing with a gun in his hand. We cannot say that the jury lost its way in finding Alexander guilty, and we overrule the fourth assignment of error.
Jury Instruction on Complicity
{¶30} In the fifth assignment of error, Alexander argues that the trial court erred in instructing the jury on complicity. He maintains that because the state tried the case on the theory that he was the principal offender, the evidence did not support an instruction on complicity.
{¶31} A person who violates
{¶32} In this case, the trial court did not err in providing an instruction on complicity. The evidence presented by the state demonstrated that Alexander had acted in concert with Wilson in committing the crimes. Moreover, in Alexander‘s own statement to police, he admitted that he and Wilson had acted in concert, maintaining that Wilson had been the principal offender. Under these circumstances, the instruction on complicity was warranted, and we ovеrrule the fifth assignment of error.
Allied Offenses of Similar Import
{¶33} In his sixth assignment of error, Alexander argues that the trial court erred in imposing sentences for both aggravated murder and aggravated robbery. Specifically, he argues that the offenses were allied offenses of similar import because the aggravated murder was committed merely to effectuate the aggravated robbery.
{¶34} Under
{¶35} In this case, the trial court did not err in sentencing Alexander for both offenses, as the state demonstrated a separate animus for each. Alexander had planned to kill Davenport well in advance of the aggravated robbery, as reflected by the threats hе had made on the telephone and by the threatening gesture he had
Removal of Prospective Juror
{¶36} In the seventh assignment of error, Alexander argues that the trial court erred in removing a prospective juror for cause.
{¶37} A prospective juror who indicates that she cannot be fair and impartial or that she will not follow the law may be removed for cause.
{¶38} In the case at bar, the trial court did not abuse its discretion. The prospective juror in question stated that she did not feel comfortable sitting in judgment of others and that she therefore could not render a verdict in accordance with the law. Although the juror vacillated somewhat in her answеrs to the court, her final response indicated that she could not faithfully discharge the duties of a juror. The trial court was correct in removing her from the jury for cause, and we overrule the seventh assignment of error.
Denial of Motion for a New Trial
{¶39} In his eighth and final assignment of error, Alexander argues that the trial court erred in overruling his motion for a new trial based on alleged misconduct of a defense witness. In support of his argument, Alexander cites evidence in the record that a spectator at the trial had violated the court‘s order requiring separation of witnesses by revealing to Tamela Scott the testimony of other witnesses.
{¶41} Here, there was no abuse of discretion. Alexander bases his argument on
{¶42} In the instant case, Alexander argues that a defense witness had engaged in misconduct. Such misconduct is not one of the statutory bases for the granting of a new trial, and Alexander has failed to show that he was prejudiced by the alleged impropriety. Accordingly, we overrule the eighth assignment of error.
Conclusion
{¶43} The judgment of the trial court is affirmed.
Judgment affirmed.
HILDEBRANDT, Presiding Judge.
DINKELACKER and FISCHER, JJ., concur.
Please note: The court has recorded its own entry this date.