State v. MartinState v. Martin
RELEASED: July 2, 2009
JOURNALIZED:
James E. Valentine
323 Lakeside Avenue
Suite 450
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Blaise D. Thomas
Michael Graham
Assistant Prosecuting Attorneys
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant, Jojwan Martin, appeals his murder conviction with a firearm specification. After a thorough review of the record and all pertinent law, we affirm.
{¶ 2} The following facts give rise to this appeal.
{¶ 3} On January 5, 2007, a Cuyahoga County Grand Jury indicted appellant on one count of aggravated murdеr, in violation of
{¶ 4} The following testimony was elicited at trial.
{¶ 5} Joseph and Janet Oberstar testified that on November 11, 2006, at approximately 2:45 p.m., a car crashed into their home. They saw a black male in the driver‘s side of the vehicle (lаter identified as Antonio Williams). Williams was injured but still breathing. Janet spoke with the driver, while Joseph called 911.
{¶ 6} Williams had a bullet lodged in his spine, rendering him a quadriplegic. He stayed at Metrohealth Medical Center for five weeks and was then transferred
{¶ 7} Dan Galita, M.D. (Dr. Galita), a forensic pathologist and Deputy Coroner from the Cuyahoga County Coroner‘s Office, determined that the bullet entered the left side of Williams‘s neck and traveled through his cervical spine. Dr. Galita determined that the gunshot wound ultimately caused the bronchial pneumonia that resulted in Williams‘s death.
{¶ 8} Two witnesses later came forward identifying appellant as the shooter. Earwin Watters testified that, on the day of the shoоting, he went into Papi‘s, a store on the corner of East 71st and Hecker Avenue. As he walked into Papi‘s, he noticed appellant talking to a man in a vehicle on the opposite side of the street. When Watters was inside the store, he heard screeching tires and a gunshot. He looked out the glass door of the store and saw appellant on foot chasing after the car. Watters ran in the opposite direction and heard two more gunshots.
{¶ 9} Debby Crayton lived on East 71st Street. She had known appellant for several years. Crayton heard gunshots while she was in her bathroom. She looked out the window and saw appellant running down Hecker Street with a gun in his hand, yelling “that‘s what you do for motha f***.” (Tr. 754.) A few moments later she saw appellant‘s car speed away.
{¶ 11} Appellant has presented five assignments of error for our review.
{¶ 12} ASSIGNMENT OF ERROR NUMBER ONE
“THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY DENYING APPELLANT‘S REQUEST FOR A JURY INSTRUCTION ON INVOLUNTARY MANSLAUGHTER.”
{¶ 13} Appellant argues the trial court abused its discretion when it denied his request for an instruction on involuntary manslaughter. Based on a review of the record and pertinent law, we disagree.
{¶ 14} Appellant was charged with one count of aggravated murder pursuant to
{¶ 15} It is in a trial court‘s discretion to allow a jury instruction on a lesser included offense. State v. Mitchell (1988), 53 Ohio App.3d 117, 559 N.E.2d 1370.
{¶ 16} It is not disputed that involuntary manslaughter is a lesser included offense of aggravated murder. State v. Thomas (1988), 40 Ohio St.3d 213, 215, 533 N.E.2d 286;
{¶ 17} The charges of aggravated murder and murder require the defendant to purposely cause the death of another.
{¶ 19} The court determined that is was unreasonable to conclude Clark was merely reckless. Id. at _42. Clark shot the victim three timеs and was obviously involved in a fight with the victim at the time of the shooting. Id. at _11. Similarly, in this case, appellant was seen standing next to the victim‘s car moments before the shooting. Appellant then chased after the vehicle firing three shots directly at the driver. The state presented sufficient evidence to conclude the crime was purposeful.
{¶ 20} Finding no merit to this argument, assignment of error one is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
“THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION.”
{¶ 21} Appеllant argues the evidence presented at trial was insufficient to support his conviction. Specifically, he argues that there was no evidence that he acted purposefully, and there was no evidence to support that the victim‘s gunshot wound was the proximate cause of death. For the following reasons, we disagree.
“An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in the 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, paragraph two of the syllabus.
{¶ 23} Appellant was charged with one count of aggravated murder, and the jury was instructed on the lesser included offense of murder. Both offenses require purposeful intent. Circumstantial evidence can be used to demonstratе intent. State v. Carter, Cuyahoga App. No. 87705, 2006-Ohio-6427. When determining intent this court has previously held:
“Those surrounding facts and circumstances include the nature of the instrument used, its tendency to end life if designed for that purpose, and the manner in which any wounds were inflicted. A jury can infer intent to kill by the defendant‘s use of a firearm, an inherently dangerous instrumentality, the use of which is likely to produce death.” State v. Mackey (Dec. 9, 1999), Cuyahoga App. No. 75300.
{¶ 24} When reviewing the facts of this case, we conclude there was sufficient evidence that appеllant acted purposefully. Appellant chased after the car and discharged a deadly firearm into the driver‘s side of a moving vehicle. Appellant fired a total of three shots, continuously pursuing the vehicle. It is clear, when
{¶ 25} Appellant also argues that the verdict is not supported by sufficient evidence because the state failed to prove the correlation between the gunshot wound and the victim‘s death from pneumonia. We disagree.
{¶ 26} Dr. Galita specifically testified as to the cause of death. The victim‘s gunshot wound through the neck rendered him quadriplegic, which resulted in bronchial pneumonia and then death. The victim survived for approximately five weeks after the shooting until eventually succumbing to pneumonia.
{¶ 27} Appellant argues that the victim had emphysema, which may have been the cause of his death. However, Dr. Galita expressed the opinion that the gunshot wound, and not emphysema, was the cause of the pneumonia. Appellant had the opportunity to cross-examine Dr. Galita on this issue.
{¶ 28} In factually similar cases, this court concluded the testimony of a deputy coroner regarding cause of death is sufficient. State v. Sellers, Cuyahoga App. No. 88535, 2008-Ohio-4681, _39. In State v. Sellers, the defendant was charged with involuntary manslaughter. The victim was severely beaten and after being in a vegetative state for several years, eventually died from pneumonia. Id. at _6.
{¶ 30} In the instant case, Dr. Galita specifically testified that the victim died from pneumonia that resulted from the gunshot wound. The state is not required to provide any further evidence to support causation. Finding the state presented sufficient evidence to demonstrate causation, this assignment of error is overruled.
{¶ 31} ASSIGNMENT OF ERROR NUMBER THREE
“THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 32} Appellant argues his conviction was not supported by reliable evidence. We disagree.
{¶ 33} When a court determines a conviction is supported by sufficient evidence, it may still determine the conviction to be against the weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. “The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id. at 387, quoting State v.Martin (1983), 20 Ohio App.3d 172, 175. When assessing weight of the evidence, the court must look to
“[t]he inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be еstablished before them.” Id. at 387, quoting Black‘s Law Dictionary (6 Ed.1990) at 1594. (Emphasis in original.)
{¶ 34} Appellant argues that the two eye-witnesses who identified him as the shooter lacked credibility. Watters testified that his federal sentence may be decreased by approximately 30 months based upon his testimony in this case. Appellant argues Watters only revealed information regarding the shooting when he was arrested on fedеral charges and had something to gain. However, Watters only provided this information when he was approached and specifically questioned. Watters had known appellant for seven years and identified him in a photo array. Watters explained that he did not come forward when the incident happened because he did not want to become involved.
{¶ 35} While it is true that Watters may reсeive a reduced federal sentence based upon his testimony, Watters had not been guaranteed anything for his testimony. Further, the jury heard the testimony regarding the possible deal, and it was not unreasonable for them to believe Watter‘s testimony in spite of this. Watters was able to provide the jury with a detailed account of the incident.
{¶ 37} While there were some inconsistencies in Crayton‘s statements, it is not unreasonable for the jury to have believed her. She witnessed the shooting from her window. She knew appellant and immediately recognized him as the shooter. Crayton‘s testimony corroborated that given by Watters. Both witnesses identified the shooter as appellant and gave a detailed description of his clothing. Crayton saw appellant run from the scene and then moments later saw his сar drive by. She later identified appellant when a detective visited her home; however, she was reluctant to provide a name because she was scared and did not want to become involved.
{¶ 38} Appellant contends the bullet hole in the rear window of the car demonstrates that he was firing the gun recklessly, and not aiming directly at the victim. This is an argument for sufficiency of the evidence, howеver, it is inconsequential. The mere fact that the bullet entered through the back window rather than the front does not indicate appellant did not act purposefully.
{¶ 39} Lastly, appellant argues that the state did not introduce medical records documenting the victim‘s medical treatment, therefore, the evidence failed to support the state‘s conclusion that the victim died from the gunshot wound. This argument lacks merit.
{¶ 40} This argument also addresses the sufficiency of the evidence and not manifest weight; however, the state presented Dr. Galita who specifically testified as to the cause of death. Dr. Galita explained that the victim had been rendered a quadriplegic. Consequently, the victim‘s lungs had difficulty expanding, rеsulting in the accumulation of bacteria and eventually pneumonia. Appellant argues the victim may have died from emphysema. However, no evidence was presented by the appellant to support this theory. The only evidence presented regarding cause of death was the testimony of Dr. Galita from the coroner‘s office who determined the gunshot wound resulted in the victim‘s death.
{¶ 41} Finding thаt the jury did not lose its way and that the verdict was supported by substantial evidence, this assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER FOUR
“THE TRIAL COURT ERRED IN IMPOSING A FINE AND COURT COSTS WITHOUT INQUIRY INTO APPELLANT‘S FINANCIAL CONDITION.”
{¶ 42} Appellant argues the court did not consider his ability to pay as required by
{¶ 43} It should be noted that appellant did not object when the fine was rendered against him. (Tr. 1046-47.) As appellant failed to object, the court must rеview the record for plain error. State v. Marbury (1995), 104 Ohio App.3d 179, 181, 661 N.E.2d 271.
{¶ 44} Normally, “an appellate court should not consider questions which have not been properly raised in the trial court and upon which the trial court has had no opportunity to pass. The plain error rule should be applied with caution and should be invoked only to avoid a clear miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 95-96, 372 N.E.2d 804.
{¶ 45} Appellant was convicted of a first dеgree felony, which carries a discretionary fine of up to $20,000, pursuant to
{¶ 46} Appellant argues that because he was found to be indigent, the court must not have considered ability to pay or the maximum fine would not have been imposed. However, a review of the record indicates the trial judge spoke at length before sentencing appellant. The trial judge heard from the victim‘s family, and read through a detailed account of appellant‘s previous criminal history. The court was also well aware that the defendant was indigent when she imposed the fine аs the record reflects appellant was appointed appellate counsel at that time.
{¶ 47} We conclude that there is sufficient indication from the record that the court considered ability to pay when imposing the fine. Accordingly, this assignment of error is overruled.
{¶ 48} ASSIGNMENT OF ERROR NUMBER FIVE
“THE PROSECUTOR COMMITTED MISCONDUCT IN HIS CLOSING STATEMENT IN VIOLATION OF APPELLANT‘S DUE PROCESS RIGHTS AND RIGHT TO A FAIR TRIAL.”
{¶ 49} Appellant argues the prosecutor committed misconduct during the closing arguments at trial when he misstated evidencе and attempted to shift the burden of proof. Based on a review of the record, we find no evidence of misconduct.
{¶ 50} When reviewing whether the statements prejudiced the defendant, the court must review the entire record. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048 at _170. “It must be clear beyond a reasonable doubt that, absent the prosecutor‘s comments, the jury would have found defendant guilty.” State v. Smith (1984), 14 Ohio St.3d 13.
{¶ 51} Appellant contends that the prosecutorial misconduct occurred during closing arguments. During closing arguments, parties may comment on the evidence presented, as well as the inferences which can be drawn from the evidence. State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293.
{¶ 52} Appellant first argues that, in closing arguments, the prosecutor misstated the evidence and stated that Detective Willson identified the bullet removed from the victim had been fired from the firearm recovered from appellant. A review of the transcript reveals that the prosecutor never addressed the bullet recovered from the victim in his closing argument. The fatal bullet was identified as Exhibit 28.
{¶ 53} The prosecutor specifically stated, “[n]ow, that gun, Exhibit 39, and Exhibit 33 were compared by Nate Willson. And he testified to you that Exhibit 39 fired the bullet that was exhibit—” (Tr. 974.) At that point appellant objected and the prosecutor never finished his sentence. The statements made by the prosecutor were accurate. It is unclear whether the prosecutor was about to make a statement regarding the fatal bullet; however, defense counsel interrupted the prosecutor before he could finish his statement. The prosecutor did argue that the shell casing
{¶ 54} Secondly, appellant argues that the prosecutor committed misconduct by attempting to shift the burden of proof regarding the cause of death to the defense. Specifically, the prosecutor stated “[t]here is no independent medical examiner‘s testimony to contradict the findings of the county coroner about the cause of death—.” (Tr. 1005.)
{¶ 55} Thеre was no comment regarding the burden of proof in this statement. Further, this statement was made during rebuttal, after the defense had argued the jury should not rely on the deputy coroner‘s testimony to determine the cause of death. The prosecutor has the right to respond in rebuttal to statements made by the defendant during closing arguments. State v. Diar, 120 Ohio St.3d 460, 487 2008-Ohio-6266.
{¶ 56} Even if we were to conclude the prosecution made inapprоpriate statements during closing arguments, any such statements would be harmless in light of the overwhelming evidence against the appellant. Two eye-witnesses identified the appellant as the shooter, and the shell casing found at the scene was identified as being fired from the gun recovered from appellant three weeks after the shooting.
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 issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and
LARRY A. JONES, J., CONCUR