STATE OF OHIO, Plаintiff-Appellee, v. HAROLD WILLIAMS, III, Defendant-Appellant.
No. 112481
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
February 1, 2024
2024-Ohio-337
SEAN C. GALLAGHER, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-654135-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 1, 2024
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Kristin M. Karkutt, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
SEAN C. GALLAGHER, J.:
{1} Harold Williams III appeals his convictions stemming from two incidents, the murder of Angelo Catala and the shooting of a convenience store
I. Facts
{2} In late October 2020, Williams sideswiped Catala‘s vehicle as Williams attempted to back out of the parking lot of a pizzeria. Catala‘s cousin worked at the pizzeria, and Catala had come to visit him. Williams was in the сar with an acquaintance, Tammy Bostic, whom he had just met in person. They previously knew each other only through social media. Williams had intended to meet a friend who lived above the pizzeria, but his friend was not responding to messages. The couple sat in the car for a while before Williams attempted to back out of the parking spot. Both Williams and Bostic were under the influence of cocaine, although Williams stated he also had marijuana in his possession at the time. The incident was recorded on the pizzeria‘s video surveillance cameras. After the collision, Catala approached Williams‘s vehicle.
{3} For about 20 minutes, Williams and Catala discussed the accident while the video recorded both Williams and Bostic walking around Williams‘s car at various times throughout the encounter. Catala‘s friend was also present. He is the named victim with respect to the felonious assault conviction arising from this encounter. According to both Bostic and Williams, Catala was brandishing a firearm during most of their discussion and would not let either of them leave. Bostic claims she sat in the car the entire time and slid into the driver‘s seat when Williams stepped out a second time to review the damage to the vehicles. The video differs a
{4} At one point, Catala‘s cousin, who was preparing to deliver pizzas and knew Williams, noticed the discussion. He approached, and according to him, Williams smelled of alcohol and stated that “[y]our cousin said I hit his car, but I got him, I‘m going to give him $50 or $100 or whatever it was.” It did not appear to the cousin that Williams was upset or under any duress. He also did not see any firearms. He left to make his delivery but returned a short time later while the discussion between Williams and Catala was ongоing. After the shooting, Williams told Catala‘s cousin, “He had to get it, Lou. He had to get it.”
{5} The surveillance video from the pizzeria depicted the following scene. Initially, most of the conversation between Catala and Williams occurred with Williams in the driver‘s seat of his vehicle and Catala standing in the open door. About 15 minutes into the encounter, Catala placed both his hands on the roof of Williams‘s vehicle, leaning down to continue the conversation. Catala was also smoking a cigarette, alternating it between hands as he smoked it.
{7} Bostic exited Williams‘s car at that point and looked around. She walked across the street (evidently looking for Williams, who had run off after the shooting). The other victim in this incident, the friend of Catala, claims Williams chased him and fired more shots. Surveillance footage from the car lot depicts the victim backing away from Williams with his hands in the air. When Williams walked back to his car, Bostic turned and followed him, this time running because Williams appeared to have fired a shot down the street.
{8} Catala died from his wounds. The other victim, Catala‘s friend, was physically unharmed.
{10} Williams was indicted for felonious assault and two counts of murder for the killing of Catala, felonious assault for attempting to cause physical harm by means of a deadly weapon to Catala‘s friend, and for having weapons while under disability for possession and use of the firearm, along with several associated three-year firearm specifications. Williams was indicted for attempted murder and felonious assault with respect to the employee he wounded, two counts each of robbery pertaining to each victim at the convenience store, and for having weapons while under disability. Williams filed a pretrial motion seeking separate trials for the charges arising in the two incidents, but the trial court denied the motion.
{11} Williams was convicted of all charges. The multiple offenses committed against Catala merged into the murder conviction, and the offenses committed against the wounded convenience store employee also merged into one count of attempted murder. Williams was sentenced to a term of 15 years to life for the murder of Catala, with all other sentences on the underlying offenses being concurrently imposed. He was also found guilty of four, three-year firearm specifications, resulting in a 27-years-to-life aggregate term of imprisonment.
II. Law
{12} In this appeal, Williams advances eight assignments of error. Each will be addressed, but where аppropriate, the various arguments will be combined and realigned for ease of reading.
a. Joinder of Offenses
{13} In the second assignment of error, Williams claims that the trial court erred by denying appellant‘s motion for separate trials. Williams‘s sole claim is that the charges pertaining to each event arose from “totally separate incidents, that occurred on different days” and should have been tried before separate juries. According to Williams, he was prejudiced by a “bootstrapping effect” of introducing evidence of both crimes at trial.
{14} Williams also claims that his election to have the crimes arising from the convenience store shooting tried to the bench, to in effect bifurcate the
{15} “Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged * * * are of the same or similar character * * *.”
{17} In Lott, the Ohio Supreme Court upheld a conviction for murder after unrelated charges were joined at trial. It was held that the defendant has the burden to affirmatively demonstrate prejudice from the joinder, and only then does the state bear any burden to negate such claims. Id. at 163. The prosecutor can use two methods to dispel the demonstrated prejudice caused by the joinder. Id. Under the first method, the “other acts” test, the state may argue that it could have introduced evidence of previous crimes under
{18} Williams does not present any argument pertaining to his burden to demonstrate prejudice from the joinder as required under
{19} Before addressing the state‘s burden, the defendant must demonstrate the existence of prejudice caused by the joinder of counts for trial. Williams has not presented an argument upon which this conclusion could be reached. Without this panel impermissibly crafting an argument on Williams‘s behalf or through the establishment of a presumption of prejudice from the jury hearing evidence of interrelated crimes stemming from events occurring days apart, no relief can be afforded. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19.
{20} The second assignment of error is overruled.
b. Evidentiary Rulings
{21} In the fourth, fifth, and seventh assignments of error, Williams claims that (1) the trial court erred in permitting a police officer to testify about statements made by nontestifying witnesses in violation of Ohio Rules of Evidence and the Confrontation Clause; (2) the trial court erred by admitting the surveillance videos, which were not properly authenticated; and (3) the trial court erred by allowing the state to introduce “other acts” evidencе under
i. Nontestifying Witnesses
{22} At trial, one of the investigating officers interviewed Catala‘s friend, the second victim in the pizzeria shooting, immediately after the shooting. Williams chased after and at least threatened that victim with a firearm, an event memorialized on the surveillance video obtained from the car lot. In addition, an officer testified to the photo-array identification of Williams by the two employees of the convenience store. Only one of the employees testified at trial.
{23} On this point, Williams first argues that the officer was permitted to testify that the victim of the felonious assault during the pizzeria incident told the officer that he was shot at, which according to Williams is a violation of the Confrontation Clause. Williams cites two recent decisions from this court: State v. Johnson, 8th Dist. Cuyahoga No. 110942, 2023-Ohio-445, and State v. Smith, 8th Dist. Cuyahoga No. 111274, 2023-Ohio-603, in support of his argument.
{25} Whether statements to police officers are testimonial depends on the primary purpose of the interrogation. “[S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency.” Id. at 822. Further, police interrogations of witnesses and victims can be deemed nontestimonial after the initial encounter if an
{26} Notwithstanding, any conclusion determining that there is no ongoing emergency is not dispositive of the Confrontation Clause question. Cleveland v. Merritt, 2016-Ohio-4693, 69 N.E.3d 102, ¶ 22 (8th Dist.). There is another step under the primary purpose test that reviewing courts must consider. “[I]n addition to whether there is an ongoing emergency, other relevant considerations to the primary purpose test include the formality versus informality of the encounter, and the statements and actions of both the declarant and the interrogators, in light of the circumstances in which the interrogation occurs.” (Emphasis added.) Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015), citing Bryant at 360.
{27} Neither Smith, 8th Dist. Cuyahoga No. 111274, 2023-Ohio-603, nor Johnson, 8th Dist. Cuyahoga No. 110942, 2023-Ohio-445, followed the totality of the black-letter law pertaining to the Confrontation Clause, and in fact, relied on the dissent‘s analysis from Merritt, which is controlling authority in this district. Smith did not discuss Merritt, despite their factual similarity and Smith‘s tacit reliance on
{28} In Smith, the victim was receiving medical care from emergency medical technicians before police officers were able to respond to the initial call for an assault that had just occurred, with the suspect still at large. Id. The majority made no distinction as to any differences between the first questions posed by the responding officer (who had no information as to why he was responding) and any later questions posed by the officer or the EMT. Id. The black-letter law is unambiguous; “[a] 911 call * * * and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establish or prove’ some past fact, but to describe current circumstances requiring police assistance.” Davis, 547 U.S. at 827. Although that rule is not entirely without exception, the law generally favors the admissibility of the witnesses’ or victim‘s initial interaction with either a police officer responding to emergency calls for assistance or an EMT providing emergency medical treatment.
{29} According to the Smith majority, admissibility of the victim‘s initial statements to the responding police officer was an all-or-nothing proposition. At a minimum, however, statements made to emergеncy responders are considered on a continuum. Merritt recognized that although at some point an emergency responder could veer into investigatory questioning, statements made at different points of the interrogation must be reviewed independently. Merritt, 2016-Ohio-4693, 69 N.E.3d 102. Smith simply declared that the first question posed by a police officer responding to an emergency call for assistance was testimonial because the emergency had already ended based on the victim‘s subsequent answers to the officer‘s initial questions.
{30} There is no precedent supporting that form of analysis. On the contrary, according to Merritt, which relied on generally accepted applications of black-letter law, the initial interaction with police officers responding to emergency calls for assistance are not testimonial because “officers called to investigate need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Merritt at ¶ 24, quoting Davis, 547 U.S. at 832, and Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). Thus, the initial questions of the
{31} Moreover, the Smith majority adopted the dissent‘s analysis from Merritt. Smith, 8th Dist. Cuyahoga No. 111274, 2023-Ohio-603. The dissent in Merritt would have found that introducing the initial statements made to responding officers at trial violated the Confrontation Clause because there was no ongoing emergency. Merritt, at ¶ 41, 43-44 (Stewart, J., dissenting). That conclusion was based on the victim‘s answers to the officer‘s initial questions revealing that (1) the dispute was largely private between two individuals; (2) the assailant was known to the victim; (3) nothing in the record indicated that the assailant posed a threat to the public because the assailant was already detained and there was no weapon involved; and (4) the victim was safe due to the police presence and the separation from the aggressor. Id.
{32} Despite the fact that the majority in Merritt, 2016-Ohio-4693, 69 N.E.3d 102, rejected that narrow focus under the ongoing emergency inquiry, the Smith majority used the same analysis, concluding that use at trial of the initial questioning by the first responding police officer violated the Confrontation Clause because the victim‘s answers to those initial quеstions arguably revealed that (1) the dispute was only between two individuals; (2) the assailant was known to the victim;
{33} We cannot rely on Smith or Johnson, 8th Dist. Cuyahoga No. 110942, 2023-Ohio-445. Doing so would further the precedential rift caused by Smith and Johnson.
{34} In this case, however, it is not clear that Williams even preserved an objection to the officer‘s testimony with respect to the pizzeria incident based on the Confrontation Clause. This defines the scope of aрpellate review. When the officer initially testified as to the victim‘s statement at issue, the trial court sustained the defense‘s objection, which then prompted the state to elicit testimony regarding the excited utterance exception to Ohio‘s hearsay rule. No specific objections were included within this record. After obtaining testimony that the victim was still under the stress of excitement caused by the shooting, the court permitted the officer to testify as follows: “Q. Officer Miranda, what did [the victim] tell you? A. [The victim] stated that he was shot at.”
{35} The state‘s evidentiary rules, however, are only applicable if the statement does not violate the Confrontation Clause: “Whenever the state seeks to introduce hearsay into a criminal proceeding, the сourt must determine not only whether the evidence fits within an exception, but also whether the introduction of
{36} “It is hornbook law that a defendant may not on appeal urge a new ground for his objection.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577, 2018-Ohio-5031, ¶ 4, quoting State v. Milo, 10th Dist. Franklin No. 81AP-746, 1982 Ohio App. LEXIS 12440, 15 (Sept. 30, 1982), and Yuin v. Hilton, 165 Ohio St. 164, 134 N.E.2d 719 (1956); State v. Deadwiley, 8th Dist. Cuyahoga No. 108488, 2020-Ohio-1605, ¶ 23. In Hernandez, the panel recognized that the specificity of the evidentiary objection defines the scope of appellate review. Id. at ¶ 5. In that case, the defendant objected to certain evidence on relevancy grounds. Id. In the appeal, the defendant attempted to claim that the evidence also violated
{37} Because no specific objection based on the Confrontation Clause was preserved at the trial, appellant forfeited all but plain error.
{38} This is not the extraordinary case warranting appellate intervention even if the admission of the testimony was deemed to have been in error.
{39} With respect to the two employees of the convenience store, although Williams broadly claims that the officer‘s testimony violated his right to confront the witnesses, his sole argument pertains to whether the statements are inadmissible hearsay. Accordingly, our focus is on whether the statements were admissible under
{40} As previously mentioned, under
{41} The fourth assignment of error is overruled.
ii. Authenticity of Surveillance Video
{42} In the fifth assignment of error, Williams claims the trial court erred by admitting the surveillance vidеos from the car lot into the trial record based on the lack of testimony authenticating the recordings. Williams never objected to the videos being introduced at trial. His first objection as to the authenticity of the videos obtained from the car lot‘s surveillance system came at the close of all
{43} Because Williams failed to object to the admissibility of the surveillance videos obtained from the pizzeria and relied on those videos during his trial testimony, he has waivеd any error as to the authenticity of the recordings admitted into the record.
{44} Further, as it pertains to all the car lot videos introduced at trial, Williams conceded at trial that the videos displayed the encounter as it unfolded. Tr. 595:10-11 (explaining that he fired his weapon in the vicinity of the victim who was standing by Williams‘s car after the shooting as “captured” on the car lot‘s video surveillance cameras). Williams waived any authenticity concerns but, more to the point, arguably authenticated the car lot surveillance videos through his own testimony. In light of the limited arguments presented on the authentication issue, we conclude that this is not the exceptional case in which to exercise our discretion to grant relief on plain error review. Hill, 92 Ohio St.3d at 203, 749 N.E.2d 274, citing Long, 53 Ohio St.2d 91, 372 N.E.2d 804, at paragrаph three of the syllabus. The fifth assignment of error is overruled.
iii. Evid.R. 404(B)
{45} In the seventh assignment of error, Williams claims the trial court erred by admitting videographic evidence of the convenience store shooting during
If the evidence was used to show the jury Williams still had his gun on October 24, 2020 - he already admitted that fact. The evidence was likely introduced to undermine the fact that he was defending himself on October 21, 2020, by implying he had a propensity to fire a gun.
(Emphasis added.) Disregarding the speсulative nature of the argument presented, all of the statements at issue under this assignment of error were elicited during the state‘s cross-examination of Williams. The state did not seek to introduce evidence of the convenience store shooting in its case in chief as presented to the jury. This is an important distinction.
{46} It has been generally noted that “[t]he introduction of evidence of other bad acts can be prejudicial and is generally prohibited by
{47} The video recording of the convenience store shooting was first discussed in front of the jury after Williams initially claimed selective amnesia аs to
{48} During the pretrial proceedings in which the trial court concluded that the convenience store shooting evidence would not be presented to the jury, the trial court expressly cautioned that although not generally admissible in the state‘s case to the jury, it would be admissible if the defense “opened the door” during its presentation of evidence. Tr. 207:9-208:11. During the state‘s cross-examination of Williams, the trial court sustained several objections when the state‘s questioning veered too far from the limited door opened by Williams‘s testimony. Tr. 604:8, 605:22, 606:3.
{49} Williams did not file a reply brief to offer any further clarification in response to the state‘s arguments or the procedural posture of when the evidence was presented to the jury and in what context. See
c. Weight of the Evidence
{51} In the first and third assignments of error, Williams claims that his convictions are against the weight of the evidence based on his testimony establishing the elements of self-defensе. According to Williams, the record conclusively demonstrates that he acted in self-defense when his testimony is considered to the exclusion of the state‘s evidence rebutting the assertion of self-defense. In the alternative, Williams claims that his convictions for killing Catala are not supported by sufficient evidence or are against the weight of the evidence because the state failed to prove that Williams purposefully acted in the murder of Catala.
{52} When evaluating a claim that a jury verdict is against the weight of the evidence, appellate courts “review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether
{53} The act of asserting self-defense is a concession that the defendant “had the purpose to commit the act, but * * * was justified in his actions.” State v. Talley, 8th Dist. Cuyahoga No. 87143, 2006-Ohio-5322, ¶ 45. Self-defense, thus “presumes intentional, willful use of force to repel force or escape force.” State v. Champion, 109 Ohio St. 281, 286-287, 142 N.E. 141 (1924). In this regard, Williams‘s arguments with respect to lack of evidence demonstrating his purposefully shooting Catala are without merit. The fact he claimed to be acting in sеlf-defense demonstrates the requisite mens rea for the commission of the murder. Self-defense offers a justification for the action but necessarily concedes that the act was purposely committed.
{54} Williams‘s arguments that the jury lost its way in rejecting his assertion of self-defense is solely focused on his evidence to the exclusion of the state‘s evidence. It is well-settled that “a conviction is not against the manifest weight of the evidence simply because the jury rejected the defendant‘s version of
{55} The first and third assignments of error are overruled.1
d. Miscellaneous Assignments of Error
{56} In the sixth and eighth assignments of error, Williams сlaims that the
{57} The felony murder conviction, based on a violation of
{58} And finally, in three paragraphs of explanation and analysis, Williams claims that the trial court erred by failing to provide the jury with a curative instruction after a police officer referenced jail calls made by Williams. Williams, however, expressly refused the trial court‘s invitation to provide that curative instruction. Tr. 556:6-10. Any error with regard to the lack of an instruction was
III. Conclusion
{59} The defendant‘s convictions are affirmed.
It is ordered that appellee rеcover 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 convictions 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.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, J., CONCURS;
MICHELLE J. SHEEHAN, P.J., CONCURS IN JUDGMENT ONLY