State v. McCoyState v. McCoy
Michaela M. Stagnaro, for Defendant-Appellant.
Note: We have removed this case from the accelerated calendar.
{¶1} Defendant-appellant Scott McCoy appeals his convictions for the aggravated murder and aggravated robbery of Kevin Johnson and the aggravated robbery of Kevin Redding. McCoy contends that the trial court erred by overruling his motion to exclude the testimony of “cooperating witnesses” and by denying his request for a reliability hearing related to this testimony. He also challenges the sufficiency and weight of the evidence adduced to support his convictions, the trial court‘s handling of the jury‘s questions during deliberations, and the sentences imposed by the court. We affirm.
I. Background
{¶2} In the early morning hours of August 28, 2002, Johnson was shot while running from a group of armed men seeking to rob him on McMicken Avenue in the Mohawk area of Cincinnati. He died from his wounds.
{¶3} Andre Thomas (“Andre“), one of Johnson‘s assailants, discovered Redding asleep inside Johnson‘s truck. Andre took Redding‘s money and cellular phone and forced him into the back of the truck. Andre drove Redding to Eugene Jackson‘s house to meet the other assailants. There, Redding was beaten in a successful effort to obtain the location of Johnson‘s apartment, which was later ransacked. Andre later fatally shot Redding in a wooded area.
{¶4} The state‘s theory of the case was that McCoy, Andre, Andre‘s cousin Harold Thomas (“Harold“), Eugene Jackson, and Angelo Howard were responsible for the crimes against Johnson and Redding, and that they had targeted Johnson for the robbery because they believed he was a drug dealer.
{¶6} Jackson, Andre, and Howard cooperated with the state and entered into plea agreements. Before his trial, McCoy anticipated that the state would call these codefendants as witnesses against him. Thus, he moved to exclude their expected testimony, which he characterized as “biased and inherently unreliable” because the state had “compensated” them for the testimony.
{¶7} McCoy also sought a pretrial hearing to address the reliability of the testimony, in part because the particulars of the plea agreements had been sealed by the trial court and could not be explored on cross-examination. McCoy cited the passage of time in the case, the lack of physical evidence linking McCoy to the crimes, and the ability of the cooperating witnesses to collaborate as additional reasons for the hearing.
{¶8} The trial court received argument on the motion, and as a result, it ordered that the plea agreements of the codefendants be made available to McCoy. The court then overruled the motion to exclude the cooperating witnesses’ testimony and the request for a reliability hearing.
{¶10} Further, Andre disclosed that he was serving prison terms for the deaths of Kevin Redding and Kevin Johnson as part of a plea agreement. The plea agreement had allowed him to plead guilty to the reduced charges of manslaughter for Johnson‘s death and murder for Redding‘s death and to receive reduced sentences in exchange for his cooperation, including giving truthful and accurate testimony against McCoy. His conviction for the murder of Redding contained a life tail, meaning that he would be in prison for the rest of his life unless he was released earlier by the parole board.
{¶11} Andre further admitted that he also had prior felony convictions for murder, assault, drug trafficking, and weapons offenses. And Andre admitted that he had lied to the police on several occasions during the investigation. This issue, as well as the potential for bias in Andre‘s testimony, was thoroughly explored on cross examination.
{¶12} When Harold first testified, he claimed that he could not remember McCoy‘s face and could not say that McCoy was with him and the others on McMicken Avenue. At that point, the prosecutor excused him as a witness. When the state recalled him the next day, Harold admitted that he had pleaded guilty to an offense concerning the murder of Redding, that he was serving eight years in prison,
{¶13} Eugene Jackson did not testify at all, but his younger brother, Carlos Jackson (“Carlos“), who hoped to receive leniency in a federal case, did testify in a videotaped deposition. Carlos testified that he had not witnessed the crimes but that he had learned what had happened from McCoy and others who said they had been present. McCoy told him that Johnson‘s robbery had been planned and that Andre had shot Johnson and, later, Redding. The jury was made aware of Carlos‘s lengthy criminal record and the motives for his testimony, including the promise of leniency.
{¶14} McCoy presented an alibi defense from his former girlfriend. She claimed that McCoy had been with her at the time of the offenses. After closing arguments, the court instructed the jury on the applicable law, including a special instruction on how to evaluate the testimony of an accomplice.
{¶15} The jury found McCoy guilty of the aggravated murder and aggravated robbery of Johnson and the aggravated robbery of Redding, all with firearms specifications, but not guilty of the aggravated murder and kidnapping of Redding and having weapons under a disability. McCoy moved for an acquittal under Crim. R. 29(C). The trial court accepted the jury‘s guilty verdicts and imposed sentences for each offense, for an aggregate term of 33 years to life in prison. This appeal followed.
II. Pretrial Motions
{¶16} In his first assignment of error, McCoy contends that the trial court erred as a matter of law by overruling his combined pretrial motions for a reliability hearing and for the exclusion of the cooperating witnesses’ testimony.
{¶18} The United States Court of Appeals for the First Circuit addressed an issue similar to ours in United States v. Dailey, 759 F.2d 192 (C.A.1, 1985).2 In Dailey, the United States appealed the district court‘s pretrial order excluding the testimony of three cooperating witnesses who were alleged accomplices. The district court‘s decision had been based on its conclusion that the plea agreements entered into by the accomplices were so likely to induce perjurious testimony that to allow them to testify would have violated the defendant‘s due-process rights. In reversing, the appellate court stated the following: “Long ago the courts rejected the notion that the testimony of co-defendants and other interested witnesses was so likely to be unreliable that it should be excluded. Recognizing that such individuals were frequently the most knowledgeable witnesses available, the courts have chosen to allow them to testify and to rely upon cross-examination to ferret out any false testimony they might give. As the Supreme Court put the matter in Hoffa v. United States, ‘the established safeguards of the Anglo-American legal system leave the
{¶19} The Dailey court continued its analysis by noting that courts have followed this rule even when confronted with an agreement that leaves an accomplice‘s sentence open until after he has testified.4
{¶20} After reviewing the case law in this area, we reject McCoy‘s suggestion that the testimony of a “cooperating witness” is unreliable as a matter of law. We also reject his argument that the trial court was required to have a pretrial reliability hearing in this case.
{¶21} In support of his request for a hearing in the trial court, McCoy complained that he did not have access to Andre‘s and Howard‘s plea agreements. But the trial court ordered those records unsealed before trial. Further, each “cooperating witness” testified about the complete extent of his plea agreement, including the leniency promised. The defense cross-examined Andre, Thomas, and Carlos on this issue and on their ability to collaborate with each other before cooperating with the state. And the jury was properly instructed about the heightened scrutiny that it should give to the testimony of an accomplice. The facts of this case do not demonstrate that the “established safeguards” mentioned in
{¶22} We conclude that the credibility of these “cooperating witnesses” was for the jury to decide, and that the trial court did not err in declining McCoy‘s invitation to prejudge the admissibility of the testimony in a pretrial reliability hearing outside the presence of the jury. Accordingly, we overrule the first assignment of error.
III. Sufficiency and Weight
{¶23} In his second assignment of error, McCoy argues that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. To address this assignment of error, we provide a more detailed rendition of the facts as elicited at trial.
{¶24} Cincinnati Police Officer Scott Owen testified that on August 28, 2002, at about 3:00 a.m., he was on patrol in his vehicle. As he travelled on McMicken Avenue towards Mohawk Avenue, he heard gunshots coming from the area in front of him. In the distance, he saw a sport-utility vehicle parked across both lanes of McMicken Avenue.
{¶25} After taking cover behind his cruiser, Officer Owen saw Johnson running down McMicken Avenue towards him. Blood was spurting from the area of Johnson‘s legs. Eventually, Johnson collapsed to the ground. When Owen approached him, Johnson cried out, “[J]ust take my wallet, please don‘t shoot me anymore.” Johnson died shortly thereafter.
{¶27} Andre and Harold both testified that they and others, including McCoy, had approached Johnson, who was urinating on the side of a building near his truck on McMicken Avenue. Thomas testified that McCoy had then asked Johnson, “[W]here‘s the money?” Johnson ran towards his truck, which was parked in the middle of the street.
{¶28} According to Harold, McCoy and others shot at Johnson, but McCoy in particular shot at him multiple times. Andre testified that only McCoy had shot Johnson, but that he and others had displayed guns. Andre further testified that, during the robbery, he had discovered Redding inside Johnson‘s truck. When he jumped in the truck, Redding offered him all of his belongings, and Andre took them.
{¶29} Andre drove Johnson‘s truck to Eugene‘s house, where he met with the others. Andre took money, crack cocaine, and a gun from Johnson‘s truck, and he then took clothing, jewelry, electronics, and a “little dope” from Johnson‘s apartment, which he had located with information gained from Redding. Andre admitted that he had taken Redding to the woods and shot him because Redding had seen the faces of his assailants. Andre further testified that McCoy had not accompanied him when he had raided Johnson‘s apartment or when he had killed Redding.
{¶31} Finally, Carlos testified that McCoy told him that he had “walked away” from making a decision about Redding and that Andre had eventually shot Redding.
{¶32} McCoy‘s alibi witness, Destiny Cue, testified that almost seven years earlier, in August 2002, she and McCoy had been living together in English Woods, and she had been seven months’ pregnant with McCoy‘s child. Because hers was a high-risk pregnancy, McCoy was always with her, including on the evening of August 27, 2002, and into the next day.
{¶33} Based on this evidence, McCoy was convicted of the aggravated murder of Kevin Johnson in violation of
{¶35} The law on aiding and abetting is well settled. ” ‘To support a conviction for complicity by aiding and abetting pursuant to
{¶36} Under
{¶37} The aggravated-robbery charges in this case were governed by
{¶38} To establish the three-year firearm specifications, the state was required to prove that McCoy or his accomplice had a firearm on or about his person or under his control while committing the offenses and displayed it, brandished it, indicated that he possessed it, or used it to facilitate the offenses.10
{¶39} McCoy argues primarily that the state failed to prove his involvement in the offenses. He contends that the credibility of the cooperating witnesses was severely undermined due to the plea bargains, the witnesses’ criminal histories, and the conflicts among their testimony. He argues also that no physical evidence directly linked him to the crimes and that he had a strong alibi in his former girlfriend‘s testimony. Further, according to McCoy, the jury‘s acquittal on some of the counts indicated that the jurors were not convinced of his guilt.
{¶40} The test for sufficiency is circumscribed: the 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 proved beyond a reasonable doubt.11 In this case, the testimony of the cooperating witnesses
{¶41} After reviewing the evidence under the sufficiency test, we conclude that the jury could have drawn the inference that McCoy had participated in the offenses as a principal or an accomplice, and that he had the culpable mental state for the commission of each offense. Further, consistency between verdicts on several counts of an indictment is not required and does not show that the jury was not convinced of the defendant‘s guilt.14 The jury‘s decision as to one count is independent of, and unaffected by, the jury‘s finding on another count. Thus, we conclude that McCoy‘s convictions were supported by sufficient evidence.
{¶42} Because there was sufficient evidence to support the convictions, we next consider McCoy‘s claim that the convictions were against the manifest weight of the evidence. Our inquiry in this respect is broader than the inquiry for sufficiency. We review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether the trier of fact clearly lost its way and created a manifest miscarriage of justice in finding McCoy guilty.15
{¶43} In his brief, McCoy has carefully detailed the conflicts in the testimony of the cooperating witnesses. Although these conflicts were not immaterial, they were less material than the consistent testimony of the cooperating
{¶44} The cooperating witnesses’ motives for testifying against McCoy were fully explored at trial. While all three had been provided with or were expecting leniency in exchange for their testimony, we note that, even with that leniency, Andre was sentenced to life in prison for Redding‘s murder.
{¶45} Further, Officer Owen‘s testimony and the physical evidence in the case offered some corroboration for the testimony of the cooperating witnesses. And, importantly, we do not find the testimony of McCoy‘s alibi witness, Destiny Cue, compelling. Cue, McCoy‘s former girlfriend and the mother of his child, recalled that seven years earlier McCoy had been with her from the evening of August 27, 2002, through August 28, 2002. She claimed that she had a high-risk pregnancy and that she would have remembered if McCoy had not been home with her. But Cue could not remember any specific events on those dates except that she and McCoy had gone to his grandmother‘s retirement home on the evening of August 28 to celebrate the grandmother‘s birthday. Also, Cue acknowledged that she had been convicted of theft, a crime of dishonesty.
{¶46} The jury was presented with all the relevant facts and instructions. On this record, we cannot say that the jury clearly lost its way and created a manifest miscarriage of justice in rejecting McCoy‘s alibi defense and finding him guilty of the offenses.
{¶47} Accordingly, we overrule the second assignment of error.
IV. Jury Deliberations
{¶49} The record demonstrates that on a Friday afternoon, less than one hour after the commencement of deliberations, the jury requested transcripts of Andre‘s, Harold‘s, and Carlos‘s testimony. The court, noting that transcripts were not yet available for all three witnesses, denied the jury‘s request at that time and instructed the jurors to continue to deliberate while relying upon their collective memories. The court left open the possibility that it would provide the testimony later if the jury found it necessary for its deliberations. Defense counsel objected to the court‘s resumption of deliberations without providing the requested transcripts.
{¶50} The jurors deliberated until 4:00 p.m., when they were dismissed for the weekend. On Monday morning, the jury requested Carlos‘s transcript. Defense counsel told the court that he did not “want a transcript going back there, period,” because it would emphasize one witness‘s testimony over the others. The trial court declined to provide a transcript to the jury, but it did allow the court reporter to read from the transcript of Carlos‘s testimony. McCoy moved for a mistrial. The trial court overruled the motion.
{¶51} Approximately two and one-half hours later, the trial court received a note from the jury stating, “We are at an impasse. How should we proceed?” The court gave an instruction that complied with the mandates of State v. Howard16 and then a Martens charge.17 McCoy objected and urged the court to declare a mistrial.
{¶52} The jury resumed deliberations on Tuesday morning. Later, the jury requested a reading of Andre‘s testimony and asked, “Does complicity carry from beginning to end, or do we separate the counts?” The trial court clarified which counts the complicity instruction applied to and reiterated that each count had to be considered separately. The trial court then permitted the reading of Andre‘s testimony over McCoy‘s objection. The court further denied another motion by McCoy for a mistrial. On the following day the jury returned its verdict.
Reading of Testimony
{¶53} We first address McCoy‘s argument concerning the reading of witnesses’ testimony. McCoy claims that the trial court erred by allowing the reading of the testimony of only two of the state‘s witnesses and that this error required a mistrial because the court emphasized one witness‘s testimony over another.
{¶54} A trial court is vested with considerable discretion in responding to jury requests during deliberations.18 In this case, the court denied the jury‘s first request involving the testimony of Andre, Harold, and Jackson primarily for a logistical reason—by the time the transcripts would have been available for a reading the jury would have been ready to retire for the weekend. The court instructed the jurors to rely upon their collective memories at that point and to renew a request for
{¶55} Subsequently, the jury requested a transcript of Andre‘s and Carlos‘s testimony. Consistent with its prior ruling, the court allowed the court reporter to read this testimony to the jurors. The jury did not request a reading of Harold‘s testimony. We note further that Harold‘s testimony, which in McCoy‘s view, was deemphasized by the trial court‘s rulings, also implicated McCoy in the crimes.
{¶56} Based on these facts, we conclude the court‘s treatment of the jury‘s requests for a reading of testimony displayed a sound reasoning process and, therefore, was not an abuse of discretion or a basis for a mistrial.
Howard Charge
{¶57} We next review McCoy‘s claim that the trial court erred by giving the jury a Howard charge. The Howard charge is a supplemental instruction for the court to give a deadlocked jury to encourage the jurors to reach a verdict.19 “To avoid the pitfall of coercing a guilty verdict from an otherwise deadlocked jury, the supplemental jury instruction must advance two goals: it ‘must encourage a verdict where one can conscientiously be reached,’ and it ‘must be balanced, asking all jurors to reconsider their opinions in light of the fact that others do not agree.’ ”20
{¶58} McCoy argues the jury was obviously in conflict throughout its deliberations, and that forcing the jury to continue to deliberate pursuant to the Howard charge was coercive.
{¶60} In sum, we can perceive no potential for coercion created by the trial court‘s action. Thus, we find no abuse of discretion by the court on the basis of the Howard charge.23 And we find no ground for a mistrial. Accordingly, we overrule the fourth assignment of error.
V. Sentencing Issues
{¶61} In his final assignment of error, McCoy challenges the sentence imposed by the trial court. First, he argues, as he did at the sentencing hearing, that aggravated felony murder with the predicate offense of aggravated robbery and aggravated robbery are allied offenses of similar import, and, in this case, the offenses were not committed separately or with a separate animus. Therefore, McCoy contends, the trial court was required to merge the offenses for sentencing under
Allied Offenses of Similar Import
{¶62} As noted by the state, the Ohio Supreme Court has repeatedly held that aggravated felony murder, as defined in
Oregon v. Ice
{¶63} McCoy additionally argues that the United States Supreme Court‘s decision in Oregon v. Ice27 has effectively overruled the Ohio Supreme Court‘s decision in State v. Foster28 and, therefore, that the trial court must once again make specific factual findings before imposing consecutive sentences. But McCoy concedes that the Ohio Supreme Court has yet to determine the effect of Ice on
{¶64} Accordingly, we overrule the fourth assignment of error.
VI. Conclusion
{¶65} Based on our review, we conclude that McCoy‘s assignments of error are meritless. Accordingly, we affirm the judgment of the trial court.
Judgment affirmed.
HILDEBRANDT and MALLORY, JJ., concur.
Please Note:
The court has recorded its own entry on the date of the release of this decision.