Lead Opinion
{¶ 2} On October 9, 2003, the Cuyahoga County Grand Jury indicted Lynch and a co-defendant, Marcus Hemphill ("Hemphill"), on two counts of aggravated murder with mass murder and felony murder specifications, in violation of R.C.
{¶ 3} These charges arose out of a fatal shooting that occurred in the early morning of September 31, 2003. The victims in this case, Alvin Scales ("Scales") and Timothy Campbell ("Campbell"), were best friends and roommates. On the night of September 30, 2003, Scales and Campbell drove to the Gentle Persuasions bar in Cleveland, where they remained until their departure around 2:00 a.m. The two men left in Scales' automobile, a 1969 Buick Rivera that he had restored, making the car very unique. They drove to a Marathon gas station located on the corner of Harvard Avenue and East 93rd Street, where the shooting occurred.
{¶ 4} It was Campbell's testimony that the gas station was deserted except for the cashier inside. Campbell was with the cashier at first, purchasing cigarettes. As he was walking back to Scales' car, Campbell noticed a white pickup truck at a gas pump furthest away from the cashier, although no one was pumping gas. Lynch was in the driver's seat of that truck. As Campbell returned to Scales' car, he saw another man, Hemphill, with his back toward Scales' car. Hemphill then turned and ran to Scales' car brandishing a revolver and demanded, "you got to come up off that," which Campbell took to mean that Hemphill wanted Scales to get out of the car.
{¶ 5} A struggle ensued between Scales and Hemphill over the gun. Hemphill stepped back and fired three to four shots into the automobile. Campbell was struck by one shot, but it was not fatal, and he was eventually able to recover from that injury. Another shot struck Scales' in his left arm, went through his chest, and pierced his left lung, heart and liver. After the shooting, Hemphill got back into the white pickup truck, and he and Lynch sped off. Scales was badly wounded, but he still attempted to leave the gas station. However, shortly after Scales got the car moving, he passed out due to his injuries, and he died that morning at 3:15 a.m.
{¶ 6} Prior to trial, the state amended its complaint to delete both the felony murder and mass murder specifications as they related to counts one and two of the indictment. On April 6, 2004, the jury found Lynch guilty of the lesser included offense of murder, in violation of R.C.
{¶ 7} The trial court sentenced Lynch to fifteen years to life for the counts of murder (which merged due to operation of law); eight years for both counts of felonious assault (one of the terms consecutive to the murder sentence and the other concurrent); five years for tampering with evidence, consecutive to the other sentences; ten years for the aggravated robbery, consecutive to the other sentences; and twelve months for having a weapon while under a disability, concurrent with the other sentences. The trial court also sentenced Lynch to three consecutive years in prison for the firearm specification, which merged for the purposes of sentencing.
{¶ 8} Lynch now appeals both the underlying conviction and the sentence imposed, citing six assignments of error for our review.1
{¶ 10} Lynch's conviction is primarily based upon the theory of accomplice liability. Lynch contends that he was simply in the wrong place at the wrong time and that the evidence does not support a finding that he "aided and abetted" Hemphill's actions. The evidence presented at trial contradicts that contention.
{¶ 11} This court notes the importance of any evidence demonstrating the elements of this crime as it pertains to either Lynch or Hemphill because, under the theory of accomplice liability, anyone who is an accomplice to a crime "shall be prosecuted and punished as if he were a principal offender." R.C.
{¶ 12} Viewing the evidence in a light most favorable to the prosecution, there is sufficient evidence to support the inference that Lynch and Hemphill conspired to commit a felony car-jacking and that the murder of Scales was a product of that conspired felony. There was also credible evidence presented that there was "bad blood" between Hemphill and Scales.
{¶ 13} The surviving victim, Campbell, testified that he believed Lynch and Hemphill had followed Campbell and Scales to the gas station. This contention is supported by several pieces of evidence. First, the uniqueness of Scale's automobile makes it valuable to be the target of a car-jacking. Second, when the victims first arrived at the gas station, no one else was there. The victims pulled in, and Scales parked the car right in front by the cashier. The pickup truck driven by Lynch pulled in after the victims, and Lynch parked the truck at the gas pump furthest from the cashier, which was also the pump closest to the road for a potential easy getaway. Also, even though the pickup truck was pulled up to a gas pump, there was no attempt to purchase gas. We find there was sufficient evidence to support the underlying conviction, thus appellant's first assignment of error is without merit.
{¶ 15} Appellant here challenges the trial court's decisions to exclude an out-of-court statement made by Lynch's co-defendant. "The admission or exclusion of evidence rests within the sound discretion of the trial court." State v. Jacks (1989),
{¶ 16} An abuse of discretion connotes more than an error in law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),
{¶ 17} "An abuse of discretion involves far more than a difference in * * * opinion. The term `discretion' itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an `abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment, but the defiance thereof, not the exercise of reason but rather of passion or bias."Huffman v. Hair Surgeon, Inc. (1985),
{¶ 18} In reviewing the facts presented before the trial court, this court cannot say that the lower court abused its discretion on this issue. Both Lynch and Hemphill made statements to Detective Denise Kovach upon their arrest. The statement given by Hemphill at that time essentially asserted that he was totally to blame and that Lynch had nothing to do with it. This statement was made out of court and was not subject to any cross-examination. At trial, the defense attempted to introduce this statement by way of cross-examination of Detective Kovach. This court holds that the trial court properly excluded this hearsay evidence from a declarant, Hemphill, who was available to testify.
{¶ 19} The Ohio Rules of Evidence define hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Hearsay is generally not admissible unless it falls within one of the exceptions enumerated in the rules of evidence. Evid.R. 802. In this assignment of error, Lynch concedes Hemphill's statement is hearsay, but contends that it does fall under one of exceptions pursuant to Evid.R. 804(B)(3), which states in pertinent part:
{¶ 20} "(B) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
{¶ 21} "* * *
{¶ 22} "(3) Statement against interest. A statement that * * * at time of its making * * * so far tended to subject a declarant to civil or criminal liability, * * * that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."
{¶ 23} The trial court ultimately excluded the introduction of Hemphill's statement ruling that it was hearsay and the declarant was available to testify. Lynch's attorney even stated at trial that: "Mr. Hemphill is on the witness list. He is here. I have talked to him. We are going to make a decision as to whether or not he's going to be called as a witness."
{¶ 24} Lynch eventually chose not to call Hemphill as a witness during trial. The wisdom of that trial strategy was up to Lynch's attorney and is an issue we will discuss later. However, the trial court correctly held that the decision did not render Hemphill "unavailable," as defined by the evidentiary rules. Therefore this court finds that the trial court did not abuse its discretion in excluding this statement. We also find no substance to appellant's throw-in contention that it is in the interest of justice that we find abuse of discretion on the part of the trial court here. Appellant's second assignment of error is without merit.
{¶ 26} In the case sub judice, appellant contends that his trial counsel was ineffective for failing to properly introduce Hemphill's statement into evidence. This contention is without merit. The trial court properly ruled that, according to the circumstances of this case, the statement declarant, Hemphill, was available to testify. Thus, the only way for trial counsel to introduce the evidence at that point would be to call Hemphill to testify.
{¶ 27} The decision to call the co-defendant and actual shooter in this case is a strategic decision a trial attorney should not make lightly. There were definite drawbacks in deciding to call this man to the stand at trial. For one, Hemphill was a drug trafficker with several convictions, all of which could be brought up on cross-examination and then brought to light for the jury's consideration. Also, there were several contradictions between Hemphill's statement and the physical evidence presented at trial. The jury would then have those contradictions to weigh in determining Hemphill's truthfulness. With this in mind, a trial attorney cannot be found to have provided ineffective counsel by deciding it would be best not to have Hemphill testify. Therefore, appellant's third assignment of error is without merit.
{¶ 29} The trial court should give an instruction on a lesser included offense only when the evidence warrants it. State v. Johnson (1988),
{¶ 30} After receiving the requests to instruct the jury on the lesser included offenses of both murder and involuntary manslaughter, the court held that the most appropriate lesser included offense to instruct the jury on was murder "B". R.C.
{¶ 31} Furthermore, the difference between the crimes of murder and involuntary manslaughter is the element of intent. Murder is defined as the "purposeful" killing of another, while involuntary manslaughter defines intent as "recklessly." The trial court found sufficient evidence that Lynch purposefully caused the victim's death. Thus, the evidence at trial did not support both an acquittal on the murder charge and a conviction on an involuntary manslaughter charge. We find no abuse in the court's ruling here. There was evidence of bad blood between Hemphill and Scales. The evidence further shows that Hemphill took deliberate steps back, regrouped, and then fired three to four shots at his victims. Those are purposeful actions that cannot be deemed to fall to the level of mere recklessness. For all these reasons, appellant's fourth assignment of error is without merit.
{¶ 33} The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v.Florida (1982),
{¶ 34} Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983),
{¶ 35} "There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."
{¶ 36} Moreover, it is important to note that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967),
{¶ 37} In the case at bar, the evidence demonstrates that it cannot be said that the jury clearly lost its way. There were facts presented demonstrating that Hemphill obtained another's truck in exchange for crack cocaine, and Lynch was present during at least one of these exchanges. Furthermore, Lynch drove the truck as they pulled into the gas station. Lynch kept the getaway vehicle ready for their escape. After witnessing the shooting, Lynch sped off with the shooter as his passenger. As such, appellant's fifth assignment of error is without merit.
{¶ 39} In this assignment of error, the appellant contends that the sentence imposed was deficient in several respects including: (1) improper imposition of the maximum sentences; (2) improper imposition of consecutive sentences; (3) the sentence was disproportional; and (4) the sentence as imposed is unconstitutional in view of the recent United States Supreme Court decision in Blakely v. Washington (2004),
{¶ 40} As to appellant's constitutional argument based on Blakely,
that argument holds no merit in light of recent rulings by this court. This argument has been addressed in this court's en banc decision inState v. Lett (May 31, 2005), Cuyahoga App. Nos. 84707 and 84729. InLett, we held that R.C.
{¶ 41} As to appellant's arguments that the trial court's imposition of maximum and consecutive sentences do not satisfy statutory requirements, we find deficiency in the lower court's proceedings. In the case of imposing both maximum and consecutive sentences upon a defendant, a trial court must first satisfy several statutory requirements. When a trial court imposes the maximum prison term, it shall state on the record the reasons for imposing the maximum sentence. R.C.
{¶ 42} Likewise, R.C.
{¶ 43} Upon review of the record, this court finds significant deficiencies in the trial court's sentencing proceedings. While the record does indicate some attempt by the trial court to explain its reasons for imposing maximum and consecutive sentences, the explanations given are generic, vague and unclear. The trial court does not provide for the record satisfactory reasons for the sentence it imposed. It is also unclear from the record of the sentencing hearing what sentence was given for which conviction and why. These deficiency alone would require a remand from this court for resentencing.
{¶ 44} Furthermore, this court finds reversible plain error in the trial court's sentencing proceedings. To constitute plain error, the error must be obvious on the record, palpable, and fundamental, so that it should have been apparent to the trial court without objection. SeeState v. Tichon, (1995),
{¶ 45} In State v. Gooden, this court held:
{¶ 46} "Pursuant to R.C.
{¶ 47} "A review of the sentencing hearing transcript reveals that the trial court did in fact fail to satisfy the notification requirements of R.C.
{¶ 48} In the case at bar, a review of the record reveals that the trial court committed the same reversible error in sentencing. The sentencing entry imposes post-release control as part of the appellant's sentence while the trial court made no mention of the imposition of post-release control during the sentencing hearing. This reversible error is plain and obvious and requires that this matter be remanded for resentencing.
{¶ 49} Due to the reasons set forth above, this court finds no error in the underlying conviction, and it is therefore affirmed. We do find reversible error in the trial court's sentencing proceeding, and thus vacate the sentence of the lower court and remand the matter for resentencing.
{¶ 50} This cause is affirmed in part, vacated in part and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Rocco, J., concurs. Gallagher, J., concurs and concurs in judgment only (see separateopinion).
Concurrence Opinion
{¶ 51} I concur with the judgment and analysis of the majority on assignments of error numbered one, three, four, and five. I concur in judgment only with respect to assignments of error two and six.
{¶ 52} The second assignment of error presents the unique issue of a defendant seeking to introduce the hearsay statement of a co-defendant or accomplice in support of his defense. We addressed the implications ofCrawford v. Washington (2004),
{¶ 53} "Historically, the right of confrontation has not been absolute. Where a declarant was deemed unavailable at trial and the state sought to offer his out-of-court statement against the accused, the court was required to determine whether the Confrontation Clause permitted the state to deny the accused his usual right to force the declarant to submit to cross-examination. California v. Green (1999),
{¶ 54} "The test to determine admissibility was outlined by the United States Supreme Court in Ohio v. Roberts (1980),
{¶ 55} While I am not suggesting that the state has the same right to confrontation that the defendant possesses, the Crawford decision suggests the prior "reliability" tests are no longer valid. Although I agree with the assessment by the majority that Hemphill was not called by Lynch and thus was not "unavailable," I respectfully withhold support for the view that his testimony if unavailable would be assessed under the old Roberts rule.
{¶ 56} With respect to Lynch's sixth assignment of error, I concur in judgment only with the majority.1
"I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN APPELLANT'S CONVICTION."
"II. THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS RIGHTS THEREBY HIS RIGHT TO A FAIR TRIAL WHEN IT DENIED APPELLANT THE ABILITY TO INTRODUCE EXCULPATORY EVIDENCE."
"III. APPELLANT WAS DENIED HIS EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE
"IV. THE TRIAL COURT ERRED IN FAILING TO PROVIDE A JURY INSTRUCTION ON INVOLUNTARY MANSLAUGHTER WHICH WAS A LESSER INCLUDED OFFENSE OF AGGRAVATED MURDER."
"V. THE APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
"VI. THE TRIAL COURT ERRED BY IMPOSING MAXIMUM CONSECUTIVE SENTENCES IN VIOLATION OF R.C.