STATE OF OHIO v. FULLER MURRAY
No. 102779
Court of Appeals of Ohio, Eighth Appellate District
January 14, 2016
2016-Ohio-107
BEFORE: Boyle, J., Stewart, P.J., and S. Gallagher, J.
[Cite as State v. Murray, 2016-Ohio-107.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102779
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
FULLER MURRAY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-589379-A
BEFORE: Boyle, J., Stewart, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: January 14, 2016
Thomas A. Rein
700 W. St. Clair Avenue
Suite 212
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Stephanie N. Hall
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Fuller Murray, appeals his conviction, raising the following four assignments of error.
I. Appellant’s rights to due process and equal protection under the Ohio and United States Constitutions were violated when the state excluded an African-American juror without providing a satisfactory race-neutral reason.
II. The trial court erred in denying Appellant’s motion for acquittal when the state failed to present sufficient evidence tо sustain a conviction.
III. Appellant’s convictions are against the manifest weight of the evidence.
IV. Appellant was denied his right to a fair trial when the prosecutor improperly disclosed a prior conviction.
{¶2} After a thorough review of the record and arguments raised, we affirm.
A. Procedural History and Facts
{¶3} Fuller was indicted on five counts: improperly discharging into a habitation, in violation of
{¶4} On the evening of September 14, 2014, Murray and his next-door neighbor, Yul Martin, got into an argument over Murray’s cell phone. Yul Martin testified that he
{¶5} While Yul was gone, his wife, Bianca, returned home from work and encountered Murray on her front porch. Bianca testified that Murray was looking for her husband and had indicated that he and Yul “had words” about Murray’s phone. According to Bianca, Murray was intoxicated and acting “very aggressive.”
{¶6} Ten minutes later, Yul returned home, spoke to his wife, and then called outside for Murray. Yul testified that Murray “was cussing like going off” and that Murray was grabbing his clothes. Yul kept “breaking him away,” telling Murray to get his hands off of him. According to Yul, the altercation lasted three to five minutes before he left to go inside. Throughout the encounter, Bianca was calling for Yul to return inside.
{¶7} Approximately 15 to 20 minutes later, while Yul and Bianca were inside their bedroom, they heard a loud noise and glass shattering in their dining room. Bianca immediately called 911.
{¶8} Murray also called 911 following the shooting. According to Khadija Kelly, the 911 dispatcher who took Murray’s 911 call, Murray had slurred speeсh and
{¶9} The state presented the testimony of the Cleveland officers that responded to the scene and the officer who picked up Murray a couple of blocks from his residеnce. Cleveland police officer Westley Woods testified that he found Murray walking southbound on East 100th Street, toward Wade Avenue — approximately two blocks from Murray’s residence. Officer Woods arrested Murray, placed him in the back of his patrol car, and returned to Dunlap Avenue where several other officers were already on the scene. Officer Woods testified that Murray was intoxicated, “saying I didn’t do nothing.” Officer Woods ultimately transferred Murray to the zone car of Officer Karl Lloyd — the lead officer on the scene.
{¶10} Cleveland police officer Timothy Hannon testified that he and his partner, Officer Lloyd, arrived on the scene and immediately spoke with the victims. Inside the victims’ home, Officer Hannon observed the dining room window that had been “broken out.” According to Officer Hannon, “there was glass all over the floor and when we looked at the wall parallel to it, it was full of pellet holes or a hundred pellet holes just peppered through the wall which would be cognizant like a shotgun blast bird shot.” He further explained that he noticed that the kitchen window of the house next door was also “broken out,” prompting the officers to go next door.
{¶12} Officer Lloyd testified that Murray’s demeanor was “very bad” while he awaited in the patrol car. Officer Lloyd was forced to put up the window in the back seat after Murray yelled profanities out the window to Yul (who was standing outside his house) and threatened that “he was going to fuck him up when he got out.” Officer Lloyd further testified that Murray was highly intoxicated.
{¶13} Officer Lloyd also testified as to his observations of Murray’s kitchen window that had been fired upon. According to Officer Lloyd, the “window was shot out from close range” based upon the fact that the glass from Murray’s window did not spread.
{¶14} The state also produced evidence of Murray’s prior 2008 conviction for aggravated assault.
{¶15} Murray testified on his own behalf. Murray admitted to possessing the sawed off shotgun and admitted to having a prior conviction for aggravated assault. He also acknowledged that he was intoxicated on Sunday, September 14. According to Murray, he felt threatened after his encounter with his neighbor and believed that the
{¶16} On cross-examination, Murray stated that he had owned the shotgun for four years and assumed that he loaded the shotgun, but did not remember doing so. According to Murray, he had been drinking ever since he got out of church that day but denied being “that drunk.” Murray stated that he placed the gun in the basement to keep it away from the kids. Upon the prosecutor questioning Murray on his 911 call, Murray stated that he was referring to himself when telling the operator that he was “going to fuck somebody up.”
{¶17} The jury ultimately found Murray guilty on all counts, and the trial court imposed a total sentence of six years in prison. This appeal follows.
B. Batson Challenge
{¶18} In his first assignment of error, Murray, who is African American, argues that his constitutional rights were violated when the trial court allowed the state to peremptorily excuse prospective Juror R., an African-American male, over his Batson objection. We disagree.
{¶20} Trial courts are to apply a three-step procedure for adjudicating a Batson claim. First, the opponent of the peremptory strike must make a prima facie case of racial discrimination. Id. at 96. To establish a prima facie case of purposeful discrimination in choosing jurors, the accused must demonstrate (1) that members of a recognized racial grоup were peremptorily challenged, and (2) that the facts and circumstances raise an inference that the prosecutor used the peremptory challenge to exclude the jurors on account of their race. Id. Second, if the trial court finds that the opponent has set forth a prima facie case, then the proponent of the strike must come forward with a racially neutral explanation for the strike. Id. at 95. However, the “еxplanation need not rise to the level justifying exercise of a challenge for cause.” Id. at 97. Finally, if the proponent puts forth a racially neutral explanation, the trial court must decide, based on all the circumstances, whether the opponent has proved purposeful racial discrimination. Id.
{¶21} At the final stage of the Batson inquiry, the court “must examine the prosecutor’s challenges in context to ensure that the reason is not merely рretextual.” State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65. The judge must “assess the plausibility” of the prosecutor’s reason for striking the juror “in
{¶22} “A trial court’s finding of no discriminatory intent will not be reversed on appeal unless clearly erroneous.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 64, citing State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 64. This deferential standard arises from the fact that step three of the Batson inquiry turns largely on the evaluation of credibility by the trial court. Seе State v. Herring, 94 Ohio St.3d 246, 257, 2002-Ohio-796, 762 N.E.2d 940, citing Batson, 476 U.S. at 98, 106 S.Ct. 1712, 90 L.Ed.2d 69.
{¶23} Following the state’s use of its third peremptory strike on prospective Juror R., the defense raised a Batson challenge. At that point, the state had already moved to excuse two other African-American individuals — (1) an African-American male, who is a criminal-defense attorney known to the prosecutor, defense counsel, and trial judge, and (2) an African-American female, whose son had been convicted approximately one month еarlier for a gun violation.
{¶24} In response to the trial court’s inquiry, the prosecutor provided the following reasons for excusing Juror R.:
He’s falling asleep. He appears, during the voir dire, he appears to be disinterested. Outside of the fact when we cleared up why he was upset
{¶25} The defense counsel responded to the prosecutor’s remarks as follows:
Obviously [the prosecutor] is seated closer to him, but I didn’t see him falling asleep, I didn’t notice that disinterested aspect, maybe the Court did, but I did not notice that, I would say that.
{¶26} The trial judge stated that he had not noticed the same things described by the prosecutor, but acknowledged that he had not been watching Juror R. The trial judge ultimately rejected the defense counsel’s Batson challenge after discussing the basis of each previously exercised peremptory strike and implicitly finding no pretext for racial discrimination. The record reflects that, after the trial judge excused Juror R., one African-American woman remаined among the 12 in the jury box and a single African-American male remained among the three potential jurors left in the jury pool.
{¶27} Murray argues that the state failed to provide a race-neutral explanation to exclude Juror R. The prosecutor relied on Juror R.’s demeanor and body language as grounds to exclude him, stating that he initially seemed offended when the trial judge discussed bias and prejudice and then ultimately disinterested to the point of “falling аsleep.” Contrary to Murray’s assertion, “[b]ody language and demeanor are permissible race-neutral justifications for exercising a peremptory challenge.” State v. Williams, 1st Dist. Hamilton No. C-130277, 2014-Ohio-1526, ¶ 40, citing State v. Brown, 8th Dist. Cuyahoga No. 84059, 2004-Ohio-6862.
{¶29} While it is true that a trial judge’s first-hand observations are of great importance when the explanation for a peremptory challenge invokes a juror’s demeanor, a trial judge may still accept the prosecutor’s explanation even if the trial judge does not personally recall the juror’s demeanor. State v. Moseley, 8th Dist. Cuyahoga No. 92110, 2010-Ohio-3498, ¶ 39. Indeed, “the best evidence of the intent of the attorney exercising a strike is often that attorney’s demeanor.” Thaler v. Haynes, 559 U.S. 43, 49, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010), citing Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), and Hernandez v. N.Y., 500 U.S. 352, 365, 111
{¶30} We likewise find this court’s decision in State v. Strong, 8th Dist. Cuyahoga No. 100699, 2015-Ohio-169, to be distinguishable and does not support reversing the trial court’s decision in this case. In Strong, the prosecutor’s proffered reason for exercising a peremptory strike against a juror was that he had concerns of the juror being able to pay attention because “[h]e has an extremely wide-eyed look, like he has a thousand-yard stare.” We held that the trial court failed to appropriately evaluate the context of the prosecutor’s proffered reasoning for excusing a juror under the third step of Batson, especially since the juror’s responses during the voir dire process directly refuted any claim of an inability to pay attention. Id. at ¶ 29. We also found the prosecutor’s proffered explanation both offensive and disconcerting, emphasizing that “it was not the juror’s body language that was being questioned but his physical appearance.” Id. at ¶ 23.
{¶31} Unlike Strong, there is no evidence in the record refuting the prosecutor’s explanation to excuse Juror R., and the prosecutor’s stated reasoning had nothing to do with Juror R.’s physical appearance.
{¶32} Based on the record before us, wе cannot say that the trial court’s denial of Murray’s Batson challenge was clearly erroneous.
{¶33} The first assignment of error is overruled.
C. Sufficiency of the Evidence
{¶35} When an appellate court reviews a record upon a sufficiency challenge, “‘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 proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶36}
{¶37} Under
{¶38} “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.”
{¶40} The second assignment of error is overruled.
D. Manifest Weight of the Evidence
{¶41} In his third assignment of error, Murray argues that his convictions are against the manifest weight of the evidence. We disagree.
{¶42} In contrast to а 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, ¶ 12. When reviewing a claim challenging the manifest weight of the evidence, “the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). After reviewing the entire record, the reviewing court must
{¶43} Murray essentially argues that the jury lost its way in convicting him because he did not knowingly fire his shotgun. Murray relies on his testimony in support of this claim. Although Murray testified that he accidentally discharged his shotgun, the jury obviously found his testimony not credible. And based on the evidence presented by the state, we find that the jury reasonably discarded Murray’s testimony. Murray’s actions severely undermined any claim that he accidentally discharged the shotgun. Notably, Murray retrieved the shotgun immediately following his altercation with Yul and specifically stated to the 911 dispatcher following the shooting that he was “going to fuck somebody up.” Further, Murray never once stated to the 911 dispatcher or the officers arriving on the scene that he “accidentally” discharged thе shotgun. And while Murray damaged his own kitchen window by shooting through it and into the Martins’ dining room window, we do not find that conclusive of an accidental shooting. Indeed, Murray was highly intoxicated and angry at the time of the shooting. Further, the testimony revealed that the firearm was fired at close range from his kitchen window and that the bird shot casing traveled directly into the Martins’ dining room. We find that the state’s evidence overwhelmingly belies any claim of an accidental shooting.
{¶44} The third assignment of error is overruled.
E. Prosecutorial Misconduct
{¶46} In addressing a claim of prosecutorial misconduct, we must determine whether the prosecutor’s remarks were improper and, if so, whether they prejudicially аffected Murray’s substantial rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). When applying this test, we consider the effect the misconduct had on the jury in the context of the entire trial. State v. Tilley, 8th Dist. Cuyahoga No. 96756, 2012-Ohio-1533, ¶ 19. We will not deem a trial unfair if, in the context of the entire trial, it appears beyond a reasonable doubt that the jury would have found the defendant guilty even without the improper comments. Smith at 15. (Citation omitted.)
{¶47} Murray complains of the following line of questioning by the prosecutor during her cross-examination of him:
[Prosecutor] Q.: Now, you’ve not only beеn convicted of aggravated assault, you’ve been convicted of a couple of violent crimes, it that correct?
[Murray]: A.: Yes.
[Prosecutor]: Q.: Domestic violence?
[Defense Counsel]: Objection, your Honor. May I approach?
[Murray]: I was never charged with that.
{¶48} The parties then engaged in a sidebar discussion wherein the defense counsel objected to the prosecutor asking Murray about his domestic violence conviction
Ladies and gentlemen, you are instructed to disregard the last question and answer with respect to whether the defendant was ever convicted of an offense of domestic violence. You are to ignore the question and any response given to that question.
Furthermore, I instruct you once again that the fact of a person’s prior conviction, whether a witness or a defendant, may only be used by the jury in assessing that individual’s credibility. You may consider it as one of the factors in determining whether or not you believe the testimony given by the individual on the witness stand but you may not consider it in determining whether that individual is guilty of any offense as charged in the indictment. Do you all understand that?
The Jury: Yes.
{¶49} The state concedes that the trial court properly excluded any testimony regarding Murray’s domеstic violence conviction but argues that the prosecutor’s question did not prejudicially affect Murray’s substantial rights. We agree. While Murray initially answered the prosecutor’s question affirmatively, he expressly denied having been convicted of domestic violence. But more importantly, the trial court immediately gave a curative instruction. See State v. Charley, 8th Dist. Cuyahoga No. 82944, 2004-Ohio-3463, ¶ 51, citing State v. Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994) (jury is presumed to follow the instructions, including curative instructions, given by a trial judge). Further, the jury was already aware оf Murray’s previous aggravated assault conviction based on Murray’s own testimony; thus, the impact on the
{¶50} The fourth assignment of error is overruled.
{¶51} Judgment affirmed.
It is ordered that appellee recover from appellant 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. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR