STATE OF OHIO v. DARNELL HOLLOWAY
No. 101289
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 19, 2015
[Cite as State v. Holloway, 2015-Ohio-1015.]
BEFORE: Kilbane, J., Celebrezze, A.J., and Keough, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-577833-B
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 19, 2015
ATTORNEY FOR APPELLANT
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Brent C. Kirvel
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Darnell Holloway (Holloway), appeals his convictions for aggravated murder, murder, felonious assault, discharge of a firearm on or near prohibited premises, and having a weapon while under disability. For the reasons that follow, we affirm.
{¶2} In September 2013, Holloway and codefendant Jamal Malone (Malone) were charged in a six-count indictment for thе death of Kishaun Stratford (Stratford).1 Count 1 charged them with aggravated murder. Count 2 charged them with murder. Count 3 charged them with felonious assault. Count 4 charged them with kidnapping. Count 5 charged them with discharge of a firearm on or near prohibited premises.2 Count 6 charged Holloway with having a weapon while under disability. Count 7 charged Malone with having a weapon while under disability. On February 24, 2014, the matter proceeded to a joint jury trial, at which the following evidence was adduced.3
{¶3} In the evening hours of July 2, 2012, Stratford was shot and killed near his apartment located at 6110 Denison Avenue in Cleveland, Ohio. Through their investigation, Cleveland police learned that Malone and Holloway were involved in Stratford’s death. Malone desired to kill Stratford because of an incident that occurred during the late evening hours of June 30, 2012, at a house on W. 31st Street owned by Stratford’s cousins, Harold Moore (Moore) and Martez Robertson (Robertson). Stratford and others would record rap music in Moore’s homemade studio. While sitting on the frоnt porch of Moore and Martez’s house, waiting to use Moore’s studio, Malone was robbed by two assailants. One of the assailants tried to disguise his
{¶4} Asa Prude (Prude), Malone’s cousin, was on his way to Moore’s studio when Malone was robbed. Prude was also a longtime friend of Stratford. When he arrived at Moore’s house, he observed Malone sitting on the porch with a towel covering his mouth. Malone was bleeding and a tooth was knocked оut of his mouth. Malone asked Prude to call Chill a.k.a. David Cousin (Cousin) and ask him if he has seen Stratford because Malone wanted to finish working on a song together. Cousin gave Stratford’s number to Prude, and approximately five minutes later, Malone called Cousin asking if he had seen Stratford because Malone was trying to record a track with him. Cousin testified that he thought that both calls were odd, given that he never observed Malone and Stratford record together.
{¶5} Then, at approximately 6:30 p.m. on July 2, 2012, Stratford left the apartment he shared with his girlfriend, Amada Gamez (Gamez), and rode his bicycle to his cousins’ house on W. 31st Street.4 After spending about 30 minutes in Moore’s studio, Stratford rode his bike back to his apartment on Denison Avenue. On his way back home, Stratford decided to stop at the corner gas station to purchase a cigar.
{¶6} While riding to get the cigar, Stratford called Cousin at approximately 7:35 p.m. Stratford noticed a car parked on the street near Partner’s Pub, a bar located acrоss from Stratford’s apartment. While talking to Cousin on the phone, he stated, Is that Mal? Mal and Hot Mal are Malone’s nicknames. He told Cousin that he would call him back and ended their call. Surveillance video from Partner’s Pub, which was played for the jury, depicts Stratford riding his bicycle up to a white Chevy Impala, later determined to be Malone’s car. He parked his bicycle and approached the driver, later determined to be Malone. While Stratford
{¶7} Richard Nesmith (Nesmith), a resident in the area, was in his driveway washing his car when he observed an argument between a young black man on a bicycle, later determined to be Stratford, and people inside of a white car. He did not pay much attention to this argument because it was near a local bar, and it was normal to hear arguing. He first heard what he thought were fireworks and then heard a woman screaming. He ran to the end of driveway and observed the white car, later determined to be Malone’s Chevy Impala, as it sped away and saw Stratford stumble across the street and fall against a wall. When he ran up to Stratford, Barbara Lydston (Lydston), Stratford’s neighbor, was already on scene. Nesmith knows Lydston from the local neighborhood bar. Nesmith held Stratford’s head up, and told him he was going to be all right. He testified that Stratford was in shock. He was bleeding, his eyes were glazed, and he could barely speak.
{¶8} Lydston testified that she was outside her apartment when she heard gunshots. She then ran across the street and found Stratford lying face down with bullet holes in his back and buttocks. Barbara, a home health care provider, attempted to assist Stratford by taking the t-shirt from Stratford’s shorts pocket and using it to apply pressure to the gunshot wounds. Lydston described Stratford as in shock, he could not believe he was shot. He was losing blood and was barely breathing. He could not move his head and was mumbling. Lydston asked him,
{¶9} Gamez also arrived on the scene. Gamez was home at the time of the shooting and heard the gunshots at the same time as Nesmith and Lydston, but she initially thought it was fireworks. Gamez’s neighbor informed her that Stratford had been shot, and Gamez rushed over to find Lydston administering CPR to Stratford.
{¶10} Paramedics and Cleveland police officers arrived on the scene. The paramedics transported Stratford to MetroHealth where he was pronounced dead. Officers on the scene learned that a white or gray, early 2000 model Chevy Impala was used in the murder. Homicide Detective Ignatius Sowa (Sowa), a 33-year veteran оf the Cleveland Police Department, investigated the matter. He interviewed numerous witnesses, including Lydston, who mentioned someone named Mal as a suspect. He also interviewed Cousin, Robertson, and Moore, all who mentioned Mal and another man named Aces as suspects. Sowa later learned that Mal was Malone and Aces was Prude. Sowa also learned that a 2002 white Chevy Impala was registered to Malone.
{¶11} Sowa continued to investigate Stratford’s murder through the summer and early fall of 2012, focusing on locating Malone, Prude, and the Chevy Impala. In October 2012, Sowa discovered that the title to that Impala had been transferred to Jontay Noles (Noles). Sowa contacted Noles and advised her that her car was the subject of a murder investigation. After obtaining consent from Noles, police searched the car and determined that there was a defect on the driver’s side door consistent with it being hit by a bullet. The police also determined that the driver’s side interior panel had been previously removed and reattached and the plastic foam beneath the previously removed interior panel had been disrupted.
{¶13} The next major step in the investigation took placе in December 2012, when Sowa reinterviewed Robertson and showed him the surveillance video. Robertson identified the car in the video as Malone’s white Chevy Impala, however he was unable to identify the shooter.
{¶14} The investigation then stagnated until May 2013, when two key developments occurred. First, police located and interviewed Prude, who agreed to cooperate in exchange for consideration from the prosecutor’s office. Prude was interviewed by detectives in May 2013 and again in June 2013. During these interviews, Prude was shown the surveillance videos by a detective, who served as a blind administrator. While watching the videos, Prude identified Stratford as the victim, Holloway as the shooter, and Malone’s Chevy Impala as the car used in the murder.
{¶15} Second, John Young (Young) became Holloway’s cellmate in Cuyahoga County Jail. After Holloway learned that he was being investigated in connection with a murder following Prude’s viewing of the surveillance tape, Holloway discussed the murder with Young. Young testifiеd that Holloway told him that the murder occurred on the west side around Denison Avenue, a guy named Hot Mal had hired someone to shoot Stratford because Stratford had robbed Hot Mal.
{¶16} In June 2013, Sowa interviewed Holloway as a suspect in Stratford’s murder. During this interview, Holloway repeatedly told Sowa that he did not know Malone, despite the fact that Malone and Holloway are cousins and Holloway’s prescriptions were found on Malone when he was arrested in November 2012. Following the interviеw with Sowa, Holloway
{¶17} Young was not the only person that Holloway confided to while in the Cuyahoga County Jail. Rodell Smith (Smith) was placed in Holloway’s pod in June 2013. Holloway was friends with Smith’s brother. Holloway began discussing with Smith details of a murder case he was concerned about. Holloway told Smith that he was present for the murder and that a car was involved in the murder. Smith testified that he witnessed a conversation between Holloway and Malone.
{¶18} In July 2013, an Assistant Cuyahoga County Prosecutor received letters from both Young and Smith.5 Both letters contained details regarding Holloway’s involvement in Stratford’s murder. Young and Smith testified they knew to write to this prosecutor because Holloway showed them paperwork relating to a search warrant that was executed on Holloway while in jail. Young and Smith both asked for assistance in their respective cases in exchange for testifying against Holloway. The prosecutor granted their requests, and both Young and Smith received plea agreements for lesser charges in their respective cases.
{¶19} At the conclusion of the state’s case, the trial court granted Holloway’s
{¶20} Holloway now appeals, raising the following four assignments of error for review, which shall be discussed together where appropriate.
Assignment of Error One
[Holloway] was denied his right to a fair trial as guaranteed by
Section 10, Article 1, of the Ohio Constitution and theSixth andFourteenth Amendments to the United States Constitution when the court failed to order separate trials for him and [Malone (his codefendant)].
Assignment of Error Two
[Holloway] was denied his right to a fair trial as guaranteed by
Section 10, Article 1, of the Ohio Constitution and theSixth andFourteenth Amendments to the United States Constitution when the court failed to order separate trials and permitted statements attributed to [Malone,] which implicated [Hоlloway] in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and State v. Moritz, 63 Ohio St.2d 150, 407 N.E.2d 1268 (1980).
Assignment of Error Three
The trial court erred in denying [Holloway’s] motion for acquittal as to the charges when the State failed to present sufficient evidence to sustain a conviction.
Assignment of Error Four
[Holloway’s] convictions are against the manifest weight of the evidence.
Joinder of Trial
{¶21} In the first assignment of error, Holloway argues that the trial court erred when it joined his trial with Malone’s trial. Specifically, he argues his defense and Malone’s defense were antagonistic because the state’s theory was that Mаlone killed Stratford as revenge for an earlier attack and mugging where Malone was the victim. Since Holloway was not a victim to the mugging, he contends that any defense that he was not at the scene and had no involvement in this homicide, would be detrimental because of his ties to Malone.
{¶22} We note that it is well established that the law and public policy generally favor the joinder of charges and defendants, which involve the same acts, transactions, or course of criminal conduct.
{¶23} Initially, we note that Holloway did not to object to the joinder of his trial at any stage of the proceedings. A party waives any claim of error concerning the joinder by failing to
{¶24} In reviewing the record, we are unable to find that Holloway suffered any prejudice as a result of the joinder. Malone’s defense centered on inculpating Prude and Jemeal Evans (Evans), the individual Gamez thought was responsible for the murder. Evans is also known аs Mal and was dating Stratford’s ex-girlfriend at the time of the murder. Malone tried to inculpate Prude by pointing out his history of driving Malone’s Chevy Impala. Malone tried to inculpate Evans by pointing out Gamez’s allegations on the night of the murder, the prior relationship between Evans’s girlfriend and Stratford, and Evans owning a car similar to the one used in Stratford’s murder. Conversely, Holloway’s defense focused on discrediting Prude, who identified Holloway in the surveillance video, and Young and Smith, Holloway’s cellmates from the county jаil who testified to Holloway confessing his involvement in Stratford’s murder. At no point in trial did Holloway or Malone attempt to inculpate each other.
{¶25} Holloway further argues the prejudicial effect of the joinder was evident by the trial court’s statement that: [t]his should have been two trials. We should have bifurcated this, to avoid this exact problem. But regardless, pare it down and we’ll go. The court made this comment during the discussion among defense counsel for Malone and Holloway and the prosecutor regarding Smith’s testimony.
{¶26} Prior to Smith testifying, Malone objected to any testimony regarding the conversation Smith witnessed between Holloway and Malone inside county jail. Malone’s
{¶27} Accordingly, the first assignment of error is overruled.
Bruton Violation
{¶28} In the second assignment of error, Holloway argues the joint trial denied him from his
{¶29} In Bruton, the United States Supreme Court found that the introduction of the accomplice’s out-of-court confession at defendant’s trial violated the defendant’s
An accused’s right of cross-examination secured by the confrontation clause of the
Sixth Amendment is violated in a joint trial with a non-testifying codеfendant by the admission of extrajudicial statements made by the codefendant inculpating the accused.
{¶30} A review of the record, however, reveals that there was not a single statement attributed to Malone that implicated Holloway. The statements attributed to Malone focused on Malone’s motive for killing Stratford, Malone’s efforts to contact Stratford prior to the murder, and Malone’s transfer of the title to the Chevy Impala to Noles. None of these statements referenced Holloway or incriminated Holloway in any way.
{¶31} Accordingly, the second assignment of error is overruled.
Sufficiency of the Evidence
{¶32} In the third assignment of error, Holloway argues the state failed to establish that he murdered Stratford. He contends that there is no direct physical evidence that links him to the murder.
{¶33} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the evidence as follows:
Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing such a challenge, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶34} We are mindful that, in considering the sufficiency of evidence, a certain
{¶35} In the instant case, the evidence presented by the state was sufficient to sustain Holloway’s convictions. Nesmith testified that he was in his driveway when he observed an argument between Stratford and people inside of a white car. After hearing gunshots and a woman screaming, he observed the white car speeding away and Stratford stumbling across the street. When he ran up to Stratford, Lydston was already on scene assisting Stratford. Both Nesmith and Lydston testified that Stratford was in shock. He was bleeding, his eyes were glazed, and he could barely speak. Lydston asked him, “who did this?” Stratford responded by repeatedly saying “Mal.”
{¶36} Prude, who is Holloway’s cousin, identified Holloway from the survеillance video as the shooter. Prude wrote Holloway’s name next to the shooter on a still frame of the video. He testified that he knew Holloway “from his body weight.” The two jailhouse informants, Young and Smith, testified to Holloway’s involvement in the murder. While Young and Holloway were cellmates, Holloway told Young that a murder occurred around Denison Avenue, a guy named “Hot Mal” hired someone to shoot the victim, and there was a motive for the
{¶37} Based on the foregoing, when viewing the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of the crimes proven beyond a reasonable doubt.
{¶38} Therefore, the third assignment of error is overruled.
Manifest Weight of the Evidence
{¶39} In the fourth assignment of error, Holloway claims that his convictions are against the manifest weight of the evidence. Holloway challenges the crеdibility of the testimony of the two jailhouse informants, Young and Smith.
{¶40} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13, citing Thompkins, 78 Ohio St.3d at 390. The Ohio Supreme Court in State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:
[T]he reviewing court asks whose evidence is more persuasive — the state’s or the defendants? * * * “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’and disagrees with the factfinder’s resolutiоn of the conflicting testimony.” [Thompkins at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.
{¶42} We note that when considering a manifest weight сhallenge, the trier of fact is in the best position to take into account inconsistencies, along with the witnesses’s manner, demeanor, gestures, and voice inflections, in determining whether the proffered testimony is credible. State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26; see also State v. Lilliard, 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385, 2013-Ohio-4906, ¶ 93 (In considering the credibility of witnesses on a manifest weight challenge, an appellate court is “guided by the presumption” that the jury, or the trial court in a bench trial, is “‘best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’” Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984)). Therefore, we afford great deference to the factfinder’s determination of witness credibility. State v. Ball, 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, ¶ 36.
{¶43} Here, Holloway claims that Young and Smith cooperated with the state and lied on the witness stand in exchange for a better plea deal because they both were in county jail facing serious charges.
{¶45} Accordingly, the fourth assignment of error is overruled.
{¶46} Judgment is 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 issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s сonvictions having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR