State v. CrockettState v. Crockett
JUDGMENT: Affirmed in part Reversed and Remanded in part
APPEARANCES:
For Plaintiff-Appellee Paul Gains Prosecutor Ralph M. Rivera Assistant Prosecutor 21 W. Boardman Street., 6th Floor Youngstown, Ohio 44503-1426
For Defendant-Appellant Spencer Cahoon Assistant State Public Defender 8 East Long Street – 11th Floor Columbus, Ohio 43215
Dated: June 12, 2009
{¶1} Defendant-appellant, Gary Crockett, appeals his jury-trial conviction and sentence in the Mahoning County Common Pleas Court for aggravated murder with a firearm specification. The main issues on appeal are: (1) speedy trial; (2) the trial court allowing the videotaped statement of a witness to be played before the jury as a recorded recollection under
{¶2} On November 3, 2006, Bertrum Moore, Eric Lewis, and Keith Tillis were driving around Youngstown, Ohio smoking marijuana. While traveling on Glenwood Avenue, Lewis spotted Martwain Dill in a pickup truck. Lewis phoned Crockett and directed Moore, who was driving, to drive them to Crockett‘s girlfriend‘s house to pick him up. Once there, Crockett got in the vehicle carrying an assault rifle in a black plastic trash bag and a 9mm semiautomatic handgun. Crockett gave the handgun to Lewis. Shortly thereafter, they spotted Dill in his truck again at a side street to Glenwood Avenue, Earle Street. Moore stopped the vehicle in front of Dill‘s truck and Crockett, Lewis, and Tillis exited the car. Crockett and Lewis opened fire on Dill while he was seated in his truck and Tillis fled the scene on foot. Dill suffered numerous gunshot wounds and perished. Police later recovered numerous assault rifle and 9mm shell casings from the scene.
{¶3} On November 21, 2006, a Mahoning County grand jury indicted Crockett and Lewis for aggravated murder with a firearm specification, Crockett for having a weapon while under disability, and Moore for complicity to aggravated murder. Crockett pleaded not guilty and the case proceeded to discovery and other pretrial matters. Crockett, Lewis, and Moore‘s cases eventually were ordered to be tried separately. A jury trial commenced on November 27, 2007, on Crockett‘s aggravated murder charge, with the having a weapon while under disability count deferred. On December 4, 2007, the jury found Crockett guilty. That same day, the state moved to dismiss the having a weapon while under disability count. On December 4, 2007, the trial court sentenced Crockett to life imprisonment with parole
{¶4} Crockett raises five assignments of error. Crockett‘s first assignment of error states:
{¶5} “Revised Code Section 2967.28 authorizes post-release control for felonies of the first through fifth degree. Aggravated Murder is a special felony with no level, which is sentenced under R.C. 2929.03. The trial court violated due process and committed plain error when it imposed post-release control without statutory authority to do so.”
{¶6} Crockett argues that because he was convicted only of aggravated murder, a special felony, the trial court‘s imposition of post-release control was plain error. The state concedes this error and asks this court to simply correct the error without the need for resentencing.
{¶7} “Defendants convicted of certain classified felonies (not including aggravated murder) are subject to a mandatory period of postrelease control. See
{¶8} “However, an individual sentenced for aggravated murder * * * is not subject to postrelease control, because that crime is an unclassified felony to which the postrelease-control statute does not apply.
{¶9} Based on this statutory scheme, the trial court was not authorized to impose post-release control as part of Crockett‘s sentence. When a trial court imposes a sentence that is unauthorized by law, the sentence is unlawful. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at ¶21. An unlawful act is not merely considered erroneous or voidable, but it is wholly unauthorized and void. Id. at ¶22. Thus, the trial court must conduct a new sentencing hearing.
{¶10} Accordingly, Crockett‘s first assignment of error has merit.
{¶11} Crockett‘s second assignment of error states:
{¶12} “Felony charges must be brought to trial within 270 days under
{¶13} Crockett argues that 164 days of his incarceration were chargeable to the state thus violating his speedy-trial right. He maintains that two of the court‘s
{¶14} The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” This right was made applicable to the States by the Fourteenth Amendment. Article I, Section 10 of the Ohio Constitution also guarantees an accused the right to a speedy trial.
{¶15} Every person who is charged with an offense for which he may be deprived of his liberty or property is entitled to this fundamental right of a speedy trial. State v. Dunlap, 7th Dist. No. 01-CA-124, 2002-Ohio-3178, at ¶10. This is so because the right to a speedy trial “‘is premised upon the reality that fundamental unfairness is likely in overlong prosecutions.‘” State v. Anderson, 7th Dist. No. 02-CO-30, 2003-Ohio-2557, at ¶13, quoting Dickey v. Florida (1970), 398 U.S. 30, 54, 90 S.Ct. 1564, 26 L.Ed.2d 26.
{¶16} Pursuant to
{¶17} This court previously set out the standard of review for speedy trial issues in State v. High (2001), 143 Ohio App.3d 232, 241-242, 757 N.E.2d 1176, as follows:
{¶18} “Our standard of review of a speedy trial issue is to count the days of delay chargeable to either side and determine whether the case was tried within the
{¶19} As the record below reveals, Crockett never brought his speedy-trial concerns to the attention of the court. This court has consistently held that a defendant‘s failure to file an appropriately-timed motion to dismiss on speedy-trial grounds constitutes a waiver of the issue on appeal. State v. Trummer (1996), 114 Ohio App.3d 456, 470-471, 683 N.E.2d 392. However, in this case, Crockett argues that his trial counsel was ineffective for failing to file such a motion. That claim necessarily fails if Crockett‘s speedy-trial right was never violated. Thus, this court will examine whether his speedy-trial rights were indeed violated.
{¶20} Crockett was arrested November 27, 2006. The date of arrest does not count in the speedy trial calculation. State v. Lautenslager (1996), 112 Ohio App.3d 108, 110, 677 N.E .2d 1263. Therefore, Crockett‘s speedy-trial clock began to run the day after his arrest, November 28, 2006. The clock ran until December 18, 2006, when he filed numerous motions, including motions for discovery and a bill of particulars.
{¶21} On December 21, 2006, Crockett‘s appointed counsel filed a motion to withdraw since Crockett had retained new counsel. (Docket 18). On December 27, 2006, the trial court granted the motion. (Docket 19). Crockett‘s new counsel did not file a notice of appearance until January 19, 2007. (Docket 20). The state argues that during the period from December 27, 2006, to January 19, 2007, Crockett was without counsel which tolled the speedy-trial clock under
{¶22} On January 31, 2007, the case was called for trial. The trial court filed a judgment entry sustaining a joint motion to continue, noting that discovery was ongoing and resetting trial for March 7, 2007. (Docket 23).
{¶23} In the meantime and before the scheduled March 7, 2007 trial date, discovery continued. On February 1, 2007, a “REQUEST AND DEMAND FOR DISCOVERY NOTICE AND RECEIPT” was filed with the trial court. In the first section, Crockett‘s attorney makes a “request and demand” for all discovery entitled to him pursuant to Crim.R. 16 and Loc.R. 9. (Docket 22). In the next section, Crockett‘s attorney contemporaneously acknowledges receiving certain items in response to the aforementioned general discovery request. In the last section, the state indicates that it complied with Crockett‘s discovery request and proceeds to make a “request and demand” for all discovery to which it is entitled from Crockett. In other words, the state made a request for reciprocal discovery. On February 22, 2007, the state filed a supplemental discovery notice. (Docket 27). Additionally, similar “REQUEST AND DEMAND FOR DISCOVERY NOTICE AND RECEIPT” filings were made on February 22, 2007, and February 27, 2007. (Docket 28, 29).
{¶24} On March 2, 2007, the trial court continued the case until May 9, 2007, due to the court‘s unavailability. (Docket 32). As indicated,
{¶25} On May 9, 2007, the trial court filed a judgment entry ordering codefendant Moore‘s case to be tried separately and setting Crockett‘s trial, along with codefendant Lewis, for July 2, 2007 “by agreement.” (Docket 37). The entry also noted that the trial was being continued due to the unavailability of the court and the courtroom. As already indicated, these types of events continued to toll Crockett‘s speedy-trial clock, now still at 21 days.
{¶26} On July 2, 2007, Crockett‘s counsel moved for a continuance which the trial court granted, resetting the trial for October 15, 2007. (Docket 39, 40). In that entry and subsequent entries, it is apparent that a different trial court judge had taken over the case. “[I]t is well-established that defense counsel may request a continuance in order to obtain more time to prepare for the case without the defendant‘s agreement, and the defendant is bound thereby.” State v. Smith, 2d Dist. No.2003 CA 93, 2004-Ohio-6062, at ¶19, citing State v. McBreen (1978), 54 Ohio St.2d 315, 376, N.E.2d 593, syllabus.
{¶27} On October 11, 2007, the trial court held a pretrial conference. The court ordered Crockett and Lewis to be tried separately – Lewis on October 15, 2007, and Crockett on November 26, 2007. The dates were decided “after considering the trial calendar of defense counsel and the Court and the prosecutor.” (Docket 48). Thus, the speedy-trial clock continued to toll.
{¶28} Crockett‘s trial began on November 27, 2007. Therefore, his speedy trial could not have elapsed more than 22 days, well within the 90-day statutory limit. As discussed, the majority of delays were attributable to the court‘s unavailability and motions filed on Crockett‘s behalf. Moreover, at no time did Crockett ever indicate that he was concerned that his speedy-trial right was being jeopardized and never filed a motion seeking discharge on that basis.
{¶29} Accordingly, Crockett‘s second assignment of error is without merit.
{¶30} Crockett‘s third assignment of error states:
{¶31} “Defendants have the fundamental right to effective assistance of counsel. An attorney who fails to impeach the State‘s only identification witness with on-the-record information severely undermining his testimony is ineffective. Mr. Crockett‘s counsel was ineffective for failing to argue that Keith Tillis was the shooter of the assault rifle, since he was captured on video wearing the camouflage coat that Lucretia [sic] May identified the assault rifle‘s shooter as wearing.”
{¶32} As indicated earlier, Moore, Lewis, Tillis, and Crockett were driving around the southside of Youngstown looking for Dill. When they spotted his truck at the intersection of Glenwood Avenue and Earle Street, Moore stopped the vehicle in front of Dill‘s, essentially stopping traffic in the northbound lane. Lacreshia May was traveling behind Moore‘s vehicle when this occurred. She witnessed three of the occupants exit the vehicle. One of them tripped and fell, and ran away. The other two opened fire on Dill‘s truck. She identified the person shooting the assault rifle as wearing a camouflage coat.
{¶33} Before Moore, Lewis, and Tillis began driving around, they had been at Life Skills on Market Street in Youngstown. Video surveillance cameras at the facility captured the three leaving the building, getting into Moore‘s vehicle, and leaving the facility. At the time Crockett‘s appellate counsel filed the appellate brief and before he was able to view the video, he believed that it showed that Tillis was wearing a camouflage coat. In his reply brief, Crockett‘s counsel states that he viewed the video and now agrees with the state that Tillis was not wearing a camouflage jacket. Consequently, Crockett‘s counsel withdraws this assignment of error.
{¶34} Crockett‘s fourth assignment of error states:
{¶35} “The rules of evidence govern admissibility. Recorded recollections are admissible under
{¶36} Thirteen days after the murder, Crockett‘s girlfriend, Tara Rust, was interviewed by Detective Sergeant Rick Bruno Spotleson at the Youngstown Police Department and the session was videotaped. In that interview, it was revealed that Crockett had stayed with Rust at her home on John Street in Youngstown the night before the murder. The morning of the murder, Crockett had received a phone call and left in a dark green, four-door car around 10:30 a.m. carrying an assault rifle in a black trash bag. Crockett returned in the green car 30 to 45 minutes later and told Rust to open the garage door. The car was backed into the garage and Crockett retrieved the assault rifle in the bag from the trunk. Later, Rust drove Crockett and Lewis to the east side of town where she dropped them off at Crockett‘s mother‘s home and they took the rifle with them.
{¶37} When Rust was called to testify at trial, she vacillated about what occurred the day of the murder. Concerning her statement to Detective Spotleson, she contended that she lied. She maintained that she was pressured into giving the
{¶38} Crockett argues that the trial court erred in allowing the statement to be played to the jury under that exception because Rust made it clear that she had lied to the police in that interview. The state argues that it was within the trial court‘s discretion to determine Rust‘s credibility and determine if she was being truthful when she gave the statement, and that this court should not substitute its judgment for the trial court‘s.
{¶39} In reviewing a trial court‘s decision to admit or exclude evidence, an appellate court must limit its review to whether the trial court abused its discretion. State v. Bey, 85 Ohio St.3d 487, 490, 1999-Ohio-283, 709 N.E.2d 484. Based upon an abuse of discretion standard of review, an appellate court is not permitted to substitute its judgment for that of the trial court on evidentiary issues. State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 473 N.E.2d 264.
{¶40} Hearsay is an out-of-court statement, offered in court, to prove the truth of the matter asserted.
{¶41} “A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.”
{¶42} Thus, a statement is admissible under
{¶43} Here, there is no debate about the first, second, and fourth requirements. The issue here concerns the third requirement – whether Rust‘s statement correctly reflected her knowledge of the events that occurred on the day of the murder. When asked about the videotaped statement, Rust testified as follows:
{¶44} “Q Okay. If you don‘t remember these things, do you have any reason to doubt that what you said on the tape is true for the most part?
{¶45} “A Yes.
{¶46} “Q You do?
{¶47} “A (Nodding head).
{¶48} “Q And why is that?
{¶49} “A Because I was pregnant and they was yelling at me, basically -- I mean, I know that they was yelling at me and things like that.
{¶50} “Q Okay. What does that have to do with the truthfulness of your statement?
{¶51} “A Because they pressured me into my statement.
{¶52} “Q They pressured you into your statement?
{¶53} “A Yes.
{¶54} “Q How did they do that?
{¶55} “A By yelling at me and saying that I know stuff that I didn‘t know.” (Tr. 454-455.)
{¶56} “Q Okay. But this statement you gave was just 13 days after it happened?
{¶57} “A Okay. And this is a year later and I don‘t remember.
{¶58} “Q Okay. Well, that‘s what I‘m asking you. Isn‘t it true that your memory was better when you gave that statement to Detective Spotleson than it is today?
{¶59} “A Yes.
{¶60} “Q Yes. And isn‘t it true that what you told Detective Spotleson that day was true? Because you don‘t remember today. Your memory was better then. And you told him the truth.
{¶61} “A No.
{¶62} “Q No?
{¶63} “A (Shaking head).
{¶64} “Q But how do you know what the truth is if you don‘t remember anything?
{¶65} “A I really can‘t tell you, but I know that all of that wasn‘t the truth.
{¶66} “Q You know that wasn‘t the truth?
{¶67} “A I said that I know all of it wasn‘t the truth.
{¶68} “Q All of it --
{¶69} “A I can‘t say that all of it wasn‘t the truth. But I can‘t remember exactly what happened.
{¶70} “Q Well, then some of it was true; is that right?
{¶71} “A Yes.” (Tr. 463-464.)
{¶72} Specifically, concerning whether Crockett had the assault rifle with him when she took him and Lewis to the east side, she testified:
{¶73} “Q You remember telling them that he had the gun?
{¶74} “A Uh-huh.
{¶75} “Q But he didn‘t have the gun?
{¶76} “A I remember I lied about that at the time.
{¶77} “Q I can‘t understand you.
{¶78} “A I remember that I lied about that at the time of my statement.
{¶79} “Q You lied about that?
{¶80} “A Uh-huh.” (Tr. 472-473.)
{¶81} According to Rust, her statement did not correctly reflect her knowledge of the events of that day. She testified that she was pregnant and the police had
{¶82} Nevertheless, any error the trial court may have committed in allowing the statement to be played could not have affected the outcome of the trial and amounted only to harmless error. While Tillis stopped short of saying that he actually witnessed Lewis and Crockett open fire on Dill, he did testify to the events leading up to and immediately before the murder. As he ran from the scene he heard gunshots. Lacreshia May, who happened upon the scene in traffic, corroborated Tillis’ version of the event and explained how the other two men opened fire on the truck. Additionally, the state presented evidence that assault rifle shells retrieved from the scene matched those that had been recovered from Rust‘s house where Crockett had kept the rifle. In sum, Rust‘s statement to police concerning Crockett‘s possession of the assault rifle the day of the murder was duplicative. In other words, her statement aside, there was ample evidence upon which to convict Crockett.
{¶83} Accordingly, Crockett‘s fourth assignment of error is without merit.
{¶84} Crockett‘s fifth assignment of error states:
{¶85} “The rules of evidence govern admissibility of evidence. Statements are not admissible unless specifically provided for by the rules of evidence. The trial court erred in admitting prejudicial statements and information, which had the cumulative effect of denying Mr. Crockett a fair trial.”
{¶86} “The cumulative error doctrine refers to a situation in which the existence of multiple errors, which may not individually require reversal, may violate a
{¶87} As discussed above, the errors Crockett alleges do not have merit. Thus, no cumulative error exists. Accordingly, Crockett‘s fifth assignment of error is without merit.
{¶88} The judgment of conviction is hereby affirmed and the judgment entry of sentence reversed and remanded for resentencing pursuant to the resolution of Crockett‘s first assignment of error.
Vukovich, P.J., concurs.
Waite, J., concurs.