State v. BushState v. Bush
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: June 25, 2010
Joseph T. Deters, Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
D E C I S I O N.
{¶1} Defendant-appellant William Bush appeals from his murder conviction. He challenges on appeal the overruling of his motion to suppress, the trial court‘s refusal to instruct the jury on self-defense, alleged instances of prosecutorial misconduct, and the weight and sufficiency of the evidence to support his conviction. Finding no merit to any of these challenges, we affirm his conviction.
I. Statement of Facts and Procedural Posture
{¶2} On May 30, 2008, Charles Lunsford and Robert Walls drove to downtown Cincinnati for the purpose of purchasing illegal drugs. Upon arrival, Walls left the car and eventually discovered an individual who would sell the drugs Walls desired. Before the transaction was completed, an apparent dispute arose between Walls and his seller. This dispute culminated with Walls stabbing Bush in the shoulder. Allegedly, Bush, and possibly others, chased Walls back to the car where Lunsford was waiting. Walls made it back to the car, but not before suffering a fatal gunshot wound to the face. Walls died in the car as he and Lunsford made their unsuccessful escape.
{¶3} Bush was eventually apprehended and arrested. He was indicted on one count of murder with firearm specifications. Prior to trial, Bush filed a motion to suppress statements made while in police custody. Bush had admitted shooting Walls, but claimed that the shooting was accidental. Bush‘s motion was overruled by the trial court, and the recorded statements made in police custody eventually were entered into evidence.
{¶4} At the close of the prosecution‘s case, Bush made a
II. Motion to Suppress
{¶5} We address first Bush‘s fourth assignment of error, in which he challenges the overruling of his motion to suppress statements he had made while in police custody. Bush argues that the statements should have been suppressed because he was denied the assistance of counsel despite asking for a lawyer on numerous occasions throughout the police interview. Bush also claims that he was intoxicated at the time of the interview, and therefore that he was incapable of giving a knowing and voluntary waiver of his rights. Finally, Bush argues that even though he had signed a police-supplied “notification of rights” form, the police did not orally ask if he understood his rights.
{¶6} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact.1 When considering a motion to suppress, the trial court assumes the role of the trier of fact.2 An appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence.3
{¶7} Ordinarily, when a suspect in police custody invokes his Fifth Amendment right to counsel, police interviewers must cease the interrogation and
{¶8} Although the police must cease an interview if the suspect requests the assistance of counsel, the suspect himself may initiate further communication and conversation with the police.7 The suspect himself must initiate the dialogue with the police and must knowingly and voluntarily waive his right to counsel.8
{¶9} After a thorough review of the record, we hold that Bush was properly advised of his Miranda rights and that he knowingly and voluntarily waived those rights prior to his interview with police. Before the interview began, Bush was given a “Notification of Rights” form that detailed in writing his Miranda rights. Bush signed the form prior to the interview. In addition, testimony revealed that the police did not smell alcohol on his person, and the recorded interview reveals that Bush coherently answered the questions posed to him, and that he did not sound intoxicated during the interview.
{¶10} We further hold that the police did not improperly continue the interrogation despite Bush‘s repeated requests for counsel. Even though Bush requested the assistance of counsel several times during the interview, each time he further initiated the interrogation by continuously speaking to the interrogators, or
{¶11} Because Bush knowingly and voluntarily waived his Miranda rights, and because each time Bush requested the assistance of counsel, he soon after reinitiated the interrogation, the trial court did not commit reversible error when it overruled Bush‘s motion to suppress. We, therefore, overrule Bush‘s fourth assignment of error.
III. Self-Defense Instruction
{¶12} In his fifth assignment of error, Bush argues that the trial court erred when it did not instruct the jury on the affirmative defense of self-defense. Bush asserts that a defendant does not need to testify about his knowledge concerning a danger or the need for the use of force if the defendant otherwise presents evidence supporting the elements of the defense.9 Bush further argues that he, in fact, did present adequate evidence to support the elements of self-defense.
{¶13} We hold that the trial court did not commit reversible error when it overruled Bush‘s request for a jury instruction on self-defense. Generally, “a trial court must give the defendant‘s requested instructions to the jury if they are correct, pertinent statements of law and are appropriate under the facts of the case.”10 In situations where a defendant requests a jury instruction on self-defense, the defendant must have demonstrated by a preponderance of the evidence at trial (1) that the defendant had not been at fault in creating the situation; (2) that he had a bona fide belief that he was in imminent danger; and (3) that he had not violated a
{¶14} A review of the record reveals that, during his interrogation with police, Bush claimed that the shooting had been accidental. Simple logic would dictate that a person cannot “accidentally” shoot someone in self-defense. A shooting in self-defense is purposeful, yet also justifiable. In addition, eyewitness testimony from the scene of the shooting indicated that Bush had stated, “I‘m going to kill this motherfucker!“, referring to Walls. Another witness testified that Bush had admitted shooting Walls because Walls had stabbed him. Two other witnesses testified to seeing Bush chase Walls back to his car and shoot Walls multiple times.
{¶15} Based on this evidence, we hold that Bush did not demonstrate by a preponderance of the evidence that he was entitled to a jury instruction on self-defense, and we further hold that the trial court did not abuse its discretion when it denied Bush‘s request for that instruction. Bush‘s fifth assignment of error is overruled.
IV. Prosecutorial Misconduct
{¶16} In his sixth assignment of error, Bush asserts that the prosecution engaged in misconduct in its closing statement when the assistant prosecuting attorney made the following comment: “The defendant himself never even told you.” Bush argues that this remark constituted a comment on his failure to take the stand and violated his constitutional privilege against self-incrimination, and that he is accordingly entitled to a new trial.
{¶18} It is well established that it is improper for a prosecutor to comment on a defendant‘s failure to testify.15 In this case, however, a further examination of the prosecutor‘s remark puts it into a much clearer context. From the transcript it is evident that the assistant prosecuting attorney was not commenting on Bush‘s decision not to testify at trial. Rather, she was commenting on Bush‘s original statement to investigators. As we have previously discussed, Bush stated to investigators that the shooting had been accidental. But during trial, he attempted to demonstrate that he had shot the victim in self-defense or in a fit of rage. The comment thus concerned Bush‘s changing explanations for the cause of the shooting. We hold that the comment, when put into its appropriate context, did not give rise to plain error. Accordingly, Bush‘s sixth assignment of error is overruled.
{¶19} In his first assignment of error, Bush argues that his conviction was not supported by sufficient evidence, and in his third assignment of error, Bush asserts that the trial court erred when it overruled his
{¶20} “The test [for the sufficiency of the evidence] is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.”16 A defendant‘s
{¶21}
{¶22} In his argument regarding the manifest weight of the evidence, Bush contends that the testimony and evidence did not support his conviction and that the jury clearly “lost its way” when it found him guilty. But the jury heard all the testimony and reviewed all the evidence, and it rejected Bush‘s theories that the shooting had been accidental, had been provoked by Walls himself, or was in self-defense. In the event that it could not find Bush guilty of murder, the jury was instructed to consider the lesser offense of voluntary manslaughter. The jury rejected that theory and determined that Bush had purposefully caused Walls‘s death. The weight to be given the evidence and the credibility of the witnesses were primarily for the trier of fact.19 Considering all the evidence and the testimony previously recited, we cannot say that Bush‘s conviction was against the manifest weight of the evidence. We, therefore, overrule his second assignment of error.
VI. Costs of Prosecution
{¶23} We note from the trial transcript that the trial court, during Bush‘s sentencing, verbally imposed the costs of the prosecution on Bush. However, the trial court failed to journalize its assessment of costs in the judgment entry. We must remand the case so that the court‘s judgment may be modified accordingly.20
{¶24} Therefore, we remand the case to the trial court for the imposition of mandatory costs under
Judgment affirmed and cause remanded.
CUNNINGHAM, P.J., and HILDEBRANDT, J., concur.
Please Note:
The court has recorded its own entry this date.