2006 Ohio 5009 | Ohio Ct. App. | 2006
{¶ 3} On May 12, 2005, appellant was charged with one count of aggravated murder in violation of R.C.
{¶ 5} A criminal defendant is entitled to a jury instruction on a lesser included offense "only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense."State v. Thomas (1988),
{¶ 6} At trial, the state argued that the underlying crime was aggravated robbery in violation of R.C.
{¶ 7} In the instant case, the state presented the following evidence: a police officer testified that Futrell stated he had been shot and robbed; no cash was found on Futrell when the police arrived at the scene; Futrell died as a result of internal bleeding caused by a gunshot wound; a trace evidence expert from the coroner's office testified that test results were consistent with Futrell's hand not touching appellant's gun and a muzzle-to-target distance of at least four feet.
{¶ 8} Appellant's version of the events was based on his written confession to the East Cleveland police given May 6, 2005, in which he stated the following:
"At that point we knew he did not give us all the money and webegan arguing about the rest of the money. [Futrell] was sayingthat we cannot take all the money and we had told him what wewere going to give him. * * * We were still arguing with[Futrell] over the money, but he did not want to give the rest ofit to us. [Johnson] kept asking for the money and so was I, Ireached in the back of the car with my gun a .38 caliber specialchrome automatic pistol. I was trying to scare him, [Futrell]started fighting with me over the gun and it went off. I was inshock and thought I was shot, I did not see where the bullet wentand I do not know if anybody was shot."
{¶ 9} Appellant additionally claims to have ended up with $400 of the approximately $800 that Futrell received after cashing the stolen paycheck.
{¶ 10} No matter which version of events a jury chose to believe, it is apparent from the record that appellant had a deadly weapon while he was committing or attempting to commit a theft offense. This set of facts falls squarely under the offense of aggravated robbery, which is a first-degree felony and an offense of violence. Therefore, the resulting death cannot be an "accident" amounting to involuntary manslaughter, and the court did not err in refusing to instruct the jury as such. See, Statev. Miller,
{¶ 11} Accordingly, appellant's first assignment of error is overruled.
{¶ 13} The Sixth Amendment's Confrontation Clause affords criminal defendants "the right * * * to be confronted with the witnesses against him." This right applies to both state and federal proceedings. Pointer v. Texas (1965),
{¶ 14} The United States Supreme Court recently revised this area of law in Crawford, supra. The first determination to be made regarding whether an out-of-court statement violates a criminal defendant's Sixth Amendment right to confrontation is whether the statement is testimonial in nature. Crawford,
{¶ 15} Appellant's argument is as follows: Futrell spoke with the knowledge that his statements would be used in a court proceeding and the statements were made while under police interrogation; therefore, the statements are testimonial in nature. Furthermore, Futrell was unavailable to testify and there was no opportunity for cross-examination. As a result, bringing Futrell's statement into court via the police officer's testimony violates the Confrontation Clause.
{¶ 16} The state, on the other hand, argues that Crawford does not apply to the instant case because the victim's statements were not testimonial in nature, in that they were his final words before dying, and were made under stress rather than a concern for future prosecution. The state argues that Futrell's statements fall under the long-standing excited utterance and dying declaration exceptions to the evidentiary rule against hearsay, and are not disturbed by Crawford.
{¶ 17} Evid.R. 804(B)(2) defines dying declaration, or a statement under belief of impending death, as "a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death."
{¶ 18} In the instant case, the first police officer to arrive at the scene had a brief conversation with Futrell. The testimony regarding what Futrell said follows:
"Q: Did you question him as to what happened to him? A: Yeah. When I first got there he was saying he was hard ofbreathing and so forth. I told him, "Lie down. Relax." EMS wascoming. Asked him, you know, general question, what happened. Andhe said, "They shot me." * * * I asked him, you know, "Do youknow who shot you?" And — Q: Officer Taddesse, when you originally spoke with Mr.Futrell, you said he was having difficulty breathing? A: Yes, he was.
{¶ 19} Q: He seemed distracted? A: Very. Q: Worried? A: Yes. Q: Worried for his health and whether he might make it ornot? A: He seemed very upset. You know, he had obviously been thevictim of a violent offense, been shot. He was sweating, he wasrolling and in the dirt, and he was explaining he was havingdifficulty breathing. Q: And did he indicate to you who did this to him?
* * *
A: His words were, `The niggers on Taylor.' Q: Was he able to name any names? A: No. I asked him you know, `Do you know who they are?' Andhe shook his head yes. And I asked him if he knew what theirnames were. He said no. So I gathered from that he may have beenfamiliar with the parties. Q: Did he indicate why they did this? A: Yeah, I asked him why, or if he knew why. He said, `Theyrobbed me.'"
{¶ 20} Futrell made this statement sometime around 11:00 p.m. By 11:29 p.m. he was pronounced dead.
{¶ 21} Whether a dying declaration can co-exist with the principles outlined in Crawford is a case of first impression in this court. For guidance, we turn to the United States Sixth Circuit Court of Appeals' decision in U.S. v. Cromer (C.A. 6, 2004),
{¶ 22} We note that the Crawford court stated in dictum that "we need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is suigeneris." Crawford,
{¶ 23} We agree with the reasoning in Nix and hold that a dying declaration does not implicate Crawford and remains an exception to the rule against hearsay.
"The rationale for the exception is that such statements areinherently reliable because the declarant, believing he or she isabout to die, will be motivated to tell the truth for fear ofpunishment in the hereafter. Such statements are admitted, also,out of simple necessity, since a homicide victim is often theonly witness to his murder or the only person to understand itscircumstance." Nix, supra, at ¶ 72 (internal citations omitted).
{¶ 24} Furthermore, we hold that in the instant case, Futrell made the statements in question while believing his death was imminent, and the nature of the statements concerns the circumstances of his death. Although the statements were made to a police officer, the facts of this case do not lead us to believe that the colloquy was an interrogation, nor do we believe that Futrell made the statements in anticipation of a criminal prosecution.
{¶ 25} Given this, allowing the officer's testimony regarding Futrell's dying declaration did not violate appellant's right to confrontation as sculpted by Crawford. We offer no opinion on the state's argument concerning the relationship between excited utterances and Crawford. Appellant's second assignment of error is overruled.
{¶ 27} substantively deficient." Specifically, appellant argues that the state failed to identify in the indictment the offense of violence that served as the underlying crime for the felony murder charge.
{¶ 28} We have repeatedly held that in an indictment for felony murder or involuntary manslaughter, both of which predicate themselves on an underlying offense, specification of the underlying felony or misdemeanor is not required. See, Statev. Jones, Cuyahoga App. No. 80737, 2002-Ohio-6045; State v.Hunter, Cuyahoga App. No. 86048,
{¶ 29} Appellant's third assignment of error is overruled.
{¶ 31} The state concedes that the reckless homicide and murder convictions should be merged for sentencing purposes. See,State v. Moore (1998),
{¶ 32} In Moore, the defendant was sentenced to death on both murder counts. In the instant case, appellant was sentenced to five years on the reckless homicide count and 15 years on the felony murder count, to run concurrently. Because the terms are to run concurrently, the aggregate sentence of 15 years for murder is the same whether or not the convictions are merged, thus rendering the error harmless. As in Moore, a merger of the sentences at the appellate level will cure any error.
{¶ 33} Accordingly, we sustain appellant's fourth assignment of error for the limited purpose of merging the two murder sentences into one 15-year sentence, to be served consecutively to the three-year sentence for the firearm specification. This renders appellant's fifth assignment of error regarding ineffective assistance of counsel moot.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Dyke, A.J., and Corrigan, J., concur.