State v. GarnerState v. Garner
For Plaintiff-Appellee
JOHN D. FERRERO, PROSECUTING ATTORNEY, STARK COUNTY, OHIO
BY: RENEE M. WATSON Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413
For Defendant-Appellant
BERNARD L. HUNT 2395 McGinty Rd NW North Canton, Ohio 44720
{¶1} Defendant-appellant Marcus A. Garner appeals his conviction in the Stark County Court of Common Pleas on one count of voluntary manslaughter, with a firearm specification, and one count of having weapons under disability. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 21, 2009, Appеllant visited a bar known as The Spot in Canton, Ohio. At the bar, Appellant got into a heated argument with Monaray Jones and Daryle Bryant about something that had occurred the week before. Monaray Jones left the patio area of the bar and walked back into the bar. Appellant followed. A fight then erupted inside the bar between Appellant and Jones. Bryant observed Appellant throw a chair and saw him fighting with a number of people. The bar’s bouncers broke up the fight and made the participants leavе the bar.
{¶3} Outside of the bar, Quinn Bradley witnessed Appellant and Jones arguing in the parking lot. She saw Appellant with a gun, but did not see Jones with a gun. She saw Jones backing away from Appellant with his hands up and telling Appellant to put the gun down. Appellant then shot into the air onсe and then again at Jones’ feet. Following the second shot, Appellant turned around and walked back toward the bar. As he did, Jones obtained a gun and returned fire. Appellant shot back, shooting Jones in the face. Appellant then got on his motorcycle and fled the scene. Jones died as a result of his injuries.
{¶4} Appellant was subsequently arrested and charged with one count of voluntary manslaughter with a firearm specification and one count of having weapons
{¶5} Appellant now appeals, assigning as error:
{¶6} “I. THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THE APPELLANT’S MOTION TO INSTRUCT THE JURY ON SELF DEFENSE.
{¶7} “II. THE CONVICTION OF THE APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.
{¶8} “III. THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT’S MOTION FOR A CRIMINAL RULE 29 ACQUITTAL.
{¶9} “IV. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.”
I.
{¶10} In the first assignment of error Appellant maintains the trial court committed error in failing to instruct the jury on self-defense.
{¶11} A trial court must fully and completely give all jury instructions that are relevant and necessary for the jury to weigh the evidence and to discharge its duty as the factfinder. State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus. In examining the trial court‘s jury instructions we must review the court‘s charge as a whole, not in isolation, in determining whether the jury was properly instructed. State v. Burchfield (1993), 66 Ohio St.3d 261, 262, 611 N.E.2d 819.
{¶13} The Ohio Jury Instruction for self-defense against danger of death or great bodily harm provides, in part:
{¶14} “2. SELF-DEFENSE. The defendant claims to have acted in self-defense. To establish a claim of self-defense, the defendant must prove by the greater weight of the evidence that
{¶15} “(A) he/she was not at fault in creating the situation giving rise to (describe the event in which death or injury occurred); and
{¶16} “(B) he/she had reasonable grounds to believe and an honest belief, even if mistaken, that he/she was in (imminent) (immediate) danger of death or great bodily harm, and that his/her only reasonable means of (retreat) (escape) (withdrawal) from such danger was by the use of deadly force; and
{¶17} “(C) he/she had not violated any duty to (retreat) (escape) (withdraw) to avoid the danger.” 4 Ohio Jury Instructions (2006), Section 411.31.
{¶18} Regarding the elements of “deadly force” self-defense, the Supreme Court of Ohio has held:
{¶20} At trial, Appellant argued to the jury the case was about mistaken identity, not self defense. Further, numerous witnesses testified they witnessed Appellant brandish a gun, point it at Jones and make intimidating statements. The testimony established Appellant brandished and shot his gun first.
{¶21} The witnesses all stated Jones did not initially have a gun at the time Appellant made the intimidating and instigating statements. At trial, Quinn Bradley testified:
{¶22} “Q. And when you exited the bar who was out there?
{¶23} “A. Lot of people that was in the bar went outside. And I was going toward my car. I was walking towards my car and my friend was supposed to have been coming, but she had liked pulled up kind of late, like after I was gone. I was just going to my car. It was just people from the bar and I seen Marcus and Monaray.
{¶24} “Q. You see Marcus. What was he doing?
{¶25} “A. He had a gun pointed up to Monaray.
{¶26} “Q. And this other person that he had the gun pointed to, did they have - - did you see them with a gun?
{¶28} “* * *
{¶29} “Q. Did you hear them say anything?
{¶30} “A. I heard Marcus talking.
{¶31} “Q. Do you remember what he said?
{¶32} “A. Something about you being scared or something.
{¶33} “Q. He was saying that to the person he was pointing the gun at?
{¶34} “A. Yes.
{¶35} “Q. After he got done saying you being scared, pointing this gun аt this person, what happened?
{¶36} “A. I seen him shoot at the ground.
{¶37} Tr. at 26-27.
{¶38} Daryle Bryant testified:
{¶39} “Q. What did you see when you catch up to Monaray outside?
{¶40} “A. Him and Marcus was still arguing.
{¶41} “Q. What is being said?
{¶42} “A. Really I don’t know. He was just talking stuff to Monaray or whatever.
{¶43} “Q. And what else happened?
{¶44} “A. Then when he was talking stuff he had his gun out talking stuff. Monaray was just backing up. We was telling him put the gun down or whatever. And he never put the gun out or whatever. And he started talking back to Monaray and whatever. That’s when he shot towards Monaray’s leg, foot or something or whatever.
{¶45} “Q. What did Monaray do after the first shot?
{¶46} “A. He just back up like this with his hands up.
{¶47} “Q. And you said you saw - - how close were you to both Mоnaray and the Defendant when this was going on?
{¶48} “A. I was like behind him. Behind him, but I was like on the side of the truck.
{¶49} “Q. When you say behind him, do you mean Monaray or Marcus?
{¶50} “A. I was behind both of them. Both was in front of me or whatever.
{¶51} “Q. Did you - - were you able to see what was going on?
{¶52} “A. Yeah.
{¶53} “Q. And after that shot to the grоund what did Marcus do, the Defendant do next?
{¶54} “A. He ended up turned around like walking towards the front of the bar area or whatever. I guess he was about to get on his motorcycle and leave and stuff.
{¶55} “Q. Then what happened?
{¶56} “A. That’s when Monaray comes out with his gun and like runs like across from him and he like shоt back at his foot or whatever he shot at, whatever. That’s when Marcus turned around and shot back and in the midst of that Monaray ended up getting hit.
{¶57} “Q. And so now Monaray has a gun and he fires and how many shots did he fire?
{¶59} “Q. Wеre you able to see what Marcus did, the Defendant? Did you see him fire another shot?
{¶60} “A. Yes.
{¶61} “Q. Did you see what happened to - - how did this all end?
{¶62} “A. All end with Monaray getting shot. It was the end.”
{¶63} Tr. at 53-55.
{¶64} Brandon Isles testified:
{¶65} “Q. Did you see the Defendant outside?
{¶66} “A. Yes.
{¶67} “Q. What is he doing?
{¶68} “A. He got a gun in his hand chasing Monaray around.
{¶69} “Q. So when you get outside do you see the Defendant and Monaray saying anything to each other?
{¶70} “A. Just arguing back and forth, Monaray backing up.
{¶71} “Q. So Monaray is backing up. You see anything - - did Monaray have a gun at this time?
{¶72} “A. I didn’t see him pull no gun at that time, no.
{¶73} “Q. So you see the Defendant and he has a gun?
{¶74} “A. Yes.
{¶75} “Q. Did he say anything to Monaray?
{¶77} “Q. What’s Monaray doing?
{¶78} “A. Just backing up holding his hands up.
{¶79} “Q. What happens next?
{¶80} “A. I just hear a shot, shot at his legs or something like that.
{¶81} “Q. You said you hear a shot. Did you see him the Defendant shoot?
{¶82} “A. Yes.
{¶83} “Q. What does Monaray do?
{¶84} “A. Just back up and run towards like the trash cans like back there.
{¶85} “Q. You were pointing to?
{¶86} “A. Like he ran like back there (indicating).
{¶87} “Q. What does the Defendant do?
{¶88} “A. After he like shoots I guess he walks back up to the front.
{¶89} “Q. You see him walk up or did you just - -
{¶90} “A. I didn’t see nothing. I heard a shot, just like duck, try to get out the way.
{¶91} “Q. What’s the next thing you see - - that you saw happen?
{¶92} “A. I saw Monaray come up with a gun and start shooting.
{¶93} “Q. Did you see who he’s shooting at?
{¶94} “A. Yes.
{¶95} “Q. Who was that?
{¶96} “A. Mr. Garner.
{¶98} “A. Like behind the truck.
{¶99} “Q. That’s the vehicle that you say is approximately by the white car on that photo?
{¶100} “A. Yes.
{¶101} “Q. Do you know where Monaray got this gun?
{¶102} “A. No.
{¶103} “Q. What did you see happen as Monaray is shooting?
{¶104} “A. I just seen Mr. Garner shoot back and I duck again, look back up. I don’t see Monaray standing no more.
{¶105} “Q. Where was Monaray?
{¶106} “A. Like right here (indicating).
{¶107} “Q. Did you go over to him?
{¶108} “A. Yes.
{¶109} “Q. And what was the condition of Monarary?
{¶110} “A. All I seen was blood dripping from his head and he had like pieces of his face on his shirt. I just thought he was gone, he was dead.”
{¶111} Tr. at 114-117.
{¶112} Based upon the above, we find the trial court did not abuse its discretion in not instructing the jury as to self defense. The evidence demonstrates Appellant was at fault in creating the situation giving rise to the shooting of Monaray Jones.
{¶113} The first assignment of error is overruled.
{¶114} Appellant’s second аnd third assignments of error raise common and interrelated issues; therefore, we will address the arguments together.
{¶115} Appellant argues the trial court erred in denying his Criminal Rule 29 motion for acquittal, and his conviction is against the manifest weight and sufficiency of the evidence. Specifically, Appellant asserts he acted in self-defense and the State’s witnesses lacked credibility.
{¶116} In determining whether a trial court erred in overruling an appellant‘s motion for judgment of acquittal, the reviewing court focuses on the sufficiency of thе evidence. See, e.g., State v. Carter (1995), 72 Ohio St.3d 545, 553, 651 N.E.2d 965, 974; State v. Jenks (1991), 61 Ohio St.3d 259 at 273, 574 N.E.2d 492 at 503.
{¶117} When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. Sеe State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541, 546 (stating, “sufficiency is the test of adequacy”); State v. Jenks (1991), 61 Ohio St.3d 259 at 273, 574 N.E.2d 492 at 503. The standard of review 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 оffense beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Jenks, 61 Ohio St.3d at 273, 574 N.E.2d at 503.
{¶118} Weight of the evidence addresses the evidence‘s effect of inducing belief. State v. Wilson, 713 Ohio St.3d 382, 387-88, 2007-Ohio-2202 at ¶ 25-26, 865 N.E.2d
{¶119} Again, numerous witnesses testifiеd at trial in this matter Appellant was the aggressor in the altercation outside the bar. Appellant brandished a gun, and Jones was not seen with a gun. Appellant made intimidating and instigating remarks to Jones, who had his hands in the air. Appellant shot his gun first, and subsequently shot and killed Jones.
{¶120} Bаsed upon the testimony and our analysis set forth in our disposition of Appellant’s first assignment of error, we find the state presented sufficient evidence from which a jury could conclude, beyond a reasonable doubt, Appellant committed the offenses with which he was charged.
{¶121} The second and third assignments of error are overruled.
IV.
{¶122} Appellant’s fourth assignment of error asserts he was denied the effective assistance of counsel at trial in this matter. Specifically, Appellant maintains counsel was ineffective in failing to call witnesses or provide evidence in support of Appellant’s claim he acted in self defense.
{¶124} In order to warrant a reversal, the appellant must additionally show he was prejudiced by сounsel‘s ineffectiveness. “Prejudice from defective representation sufficient to justify reversal of a conviction exists only where the result of the trial was unreliable or the proceeding fundamentally unfair because of the performance of triаl counsel.” State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965, citing Lockhart v. Fretwell (1993), 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180.
{¶125} The United States Supreme Court and the Ohio Supreme Court have held a reviewing court “need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.
{¶127} Based uрon the above and our analysis and disposition of Appellant’s first three assignments of error, we overrule the fourth assignment of error.
{¶128} Appellant’s conviction in the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Edwards, P.J. and
Gwin, J. concur
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards
HON. JULIE A. EDWARDS
s/ W. Scott Gwin
HON. W. SCOTT GWIN
For the reasons stated in our accompanying Opinion, Appellant’s conviction in the Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards
HON. JULIE A. EDWARDS
s/ W. Scott Gwin
HON. W. SCOTT GWIN