COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60435 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION DEVAUGHN JACKSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-247635. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Carmen M. Marino Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Marcus Lloyd Poole 4117 Lee Road Cleveland, Ohio 44128 James Jefferson, Jr. 2000 Standard Building Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant DeVaughn Jackson ("Jackson") appeals from his jury-trial conviction of one count of aggravated murder [R.C. 2903.01] and one count of aggravated robbery [R.C. 2911.01], each with firearm specifications. For the reasons adduced below, we affirm. A review of the record reveals that the twenty-five year old victim in this case, Kevin T. Fielding ("Fielding"), died from a single contact gunshot through his left ear on December 31, 1988, at approximately 4:30 a.m. The corpse was found slumped over in the driver's seat of his Mazda 626. This car was found in the parking lot area of a Dairy Mart convenience store located at East 149th Street and Euclid Avenue in the City of East Cleveland. At the trial, the prosecution presented the testimony of ten witnesses. The first witness, Dr. Stanley Seligman, an assistant county coroner who performed the autopsy on the victim on the morning of December 31, 1988, testified that: (1) the location and condition of the wound and the surrounding tissues indicated that the murder weapon was in contact with the skin surface at the time of firing; and, (2) two deformed bullet fragments were recovered inside the victim's skull, and these fragments were initialed and turned over to the police department. - 3 - The second witness, Thomas Lucey, is a detective with the scientific investigation unit of the Cleveland Police Department. Mr. Lucey, whose specific task is to examine firearms and related instruments, stated that the combined weight of the bullet fragments was consistent with a .38 caliber bullet. The third witness was Sharon Rosenberg, a trace evidence examiner at the coroner's office, who testified that: (1) the victim's wallet contained two dollars in cash, eight credit cards, and a driver's license; (2) State Exhibit No. 6, was a Titan Tiger revolver with a two-inch barrel, serial number N001697; (3) human blood was detected inside the barrel of State Exhibit No. 6; (4) the quantity of blood inside the barrel was insufficient to obtain a blood group. The fourth witness was East Cleveland Detective Jerome Johnson, a police patrolman at the time of the shooting, who noticed the victim's car on a grassy area of the Dairy Mart store's parking lot at 4:35 a.m. on December 31, 1988. The car was resting against the concrete base of a sign, engine running, with backup lights on. Upon closer investigation, Johnson noticed the victim in the driver's seat. No vital signs were present. Some wrapped gifts on the rear seat appeared undisturbed. The fifth witness was Walter Burst, who was employed at the Dairy Mart store and working at the time of the shooting. Mr. Burst testified that: (1) he was working that morning with co- - 4 - employee Maverick Naylor; (2) he closed the store for restocking about 2:30 a.m. and locked the doors; (3) he saw the victim's car drive through the store's parking lot at 4:15 a.m.; (4) he heard a gunshot around 4:30 a.m. and, looking out the front window, did not see anything unusual or anybody around; (5) he had seen all of the suspects except Andre King in the store on days prior to the date of the shooting; (6) he did not see any of the suspects on the morning of the shooting; (7) no one was allowed into the store while it was closed. The sixth witness was Susan M. Beal, a friend of the victim, who, along with another male friend, entertained themselves at several taverns and restaurants in the area surrounding Willoughby from 7:30 p.m. on December 30, 1988, until 3:30 a.m. on December 31, 1988. The victim, at the start of the evening, obtained forty dollars from an automatic transfer machine. Miss Beal recalled that they ate breakfast together at a Bob Evans restaurant on Ohio Route 91 in Willoughby. Prior to leaving this restaurant at 3:20 a.m., Miss Beal noted that the victim could not pay for the meal because he had no money left. She also testified that there were packaged Christmas presents and some unopened liquor bottles on the back seat of the victim's car. Miss Beal further testified that: (1) the victim lived on Holmes Avenue in the Collinwood area of Cleveland, near the vacant Conrail railroad yard off East 152nd Street; (2) the victim's most likely route from her house was to take Interstate 90 to the - 5 - East 152nd Street exit; (3) the Dairy Mart is five to ten minutes past the victim's house; (4) as far as she knew, the victim was headed home after dropping her off. The seventh witness was Robert Kalvitz, an East Cleveland police detective, who stated that Mr. Tremel Smith told him at the police station on January 3, 1989, at approximately 7:00 - 8:00 p.m. that he had information about the homicide in question, specifically, who was involved and where they could be found. Up to this point, the police had no leads in the investigation. Mr. Smith identified the following as having involvement with the shooting: Andre King aka "Dre"; the defendant aka "Capone"; and Charles Van Johnson. Mr. Smith indicated that they could be found at 14149 Euclid Avenue, Suite No. 5. Detective Kalvitz, accompanied by five other officers at about 9:00 p.m. went to the location given by Mr. Smith with the intention of making arrests. At the door of the apartment, loud music was heard by the witness. The witness knocked on the door. A voice within asked, opened immediately by Andre King. The witness, at the entranceway, could see the living room within. On the coffee table, two live rounds, which appeared to be .38 caliber, and a magazine clip for a semi-automatic weapon were visible. The officers then entered the apartment and secured Mr. King. An unloaded .38 caliber Titan Tiger revolver, which was the property of Mr. King, was found on the floor beside the coffee table along - 6 - with ammunition. The officers heard other persons in the apartment, and, upon investigation, found Marcus Scott and the defendant in an unfurnished carpeted room. A loaded .38 caliber Titan Tiger, earlier identified as State Exhibit 6, was laying on the floor of this room in plain view, about four to five feet from the area where the defendant was coming from. The defendant had a large sum of money on his person when arrested. The apartment was Mr. King's, and the defendant was allowed to stay there on occasion. Mr. Smith, on October 27, 1989, gave a more detailed statement to the police. The eighth witness was Maverick Naylor, who worked with Walter Burst at the Dairy Mart at the time of the shooting. Mr. Naylor testified that: (1) he heard the gunshot, looked out the window, but did not see anything or anybody; (2) the store was closed temporarily at the time of the gunshot; (3) the parking lot of the store is artificially illuminated; (4) no non-employee was allowed in the store when it was closed. The ninth witness was Tremel Smith who testified that: (1) he was presently confined in prison on a guilty plea to aggravated burglary and felonious assault; (2) he had pled guilty to charges of manslaughter and robbery in connection with this homicide, but was awaiting sentencing; (3) he first met defendant selling drugs on a street corner in September of 1988; (4) his girlfriend was Rita Peak; (5) he, Miss Peak and Mr. Johnson were at an apartment on Wymore Avenue in the early morning hours of - 7 - the day of the shooting, drinking beer and smoking cocaine; (6) he had met Mr. King selling drugs on the witness's street, and that Mr. King was also known as "Dre"; (7) defendant also was known as "Capone"; (8) Mr. Johnson wanted the witness to ask Miss Peak to go out and perform an act of prostitution in order to obtain funds to buy drugs for the group's benefit; (9) Miss Peak initially refused to prostitute herself, but agreed to do so because Mr. Johnson would inflict bodily harm upon the witness if she did not agree to the request; (10) the witness, Miss Peak, and Mr. Johnson walked together to the area of the Dairy Mart store; (11) Mr. Johnson talked to the victim as he, the victim, was parked in his car in front of the store; (12) Miss Peak then walked to the car as Mr. Johnson walked to the store and was let inside by an employee of the store; (13) the witness stood beside a telephone booth near the parking lot and observed the unfolding events; (14) by the time Miss Peak got into the car, Mr. Johnson had exited the store and proceeded to walk down Chapman Avenue which was along one side of the store; (15) Miss Peak was touching and talking to the victim as they sat inside the car; (16) he heard a car door shut and saw Mr. King and the defendant walking on Chapman Avenue toward the victim's car, having exited Mr. Johnson's car; (17) Mr. King pulled Miss Peak from the car, entered the car, and began wrestling with the victim; (18) Miss Peak then stood with the witness by the telephone booth; (19) he heard Mr. King tell the victim to give him something; (20) the - 8 - defendant opened the driver's door, put a gun to the victim's left ear, and fired one shot into the victim's head as Mr. King exited the car; (21) the witness and Miss Peak, after the shooting, walked to an apartment on Wymore Avenue; (22) Miss Peak denied any knowledge of a planned shooting; (23) the defendant, Mr. King and Mr. Johnson arrived at the apartment several minutes later and threatened the witness to remain silent about the shooting; (24) he saw guns in the bathroom and that the defendant told Van to take a gun, which Mr. Johnson did; (25) no offers were made to the witness in exchange for his information or testimony, but he hoped to avoid possible future confinement. At that point in the trial, the court held a voir dire examination of prosecution witness Rita Peak out of the hearing of the jury with counsel present. Miss Peak refused to testify. The court determined that Miss Peak was unavailable as a witness and, over the objection of defense counsel, allowed Miss Peak's police statement of October 25, 1989, and prior court testimony of February 5, 1990, refuting the police statement, to be read to the jury. R. 171-192. Miss Peak's statement followed the testimony of her boyfriend, Mr. Smith, except for the events immediately after the shooting, to-wit: "Andre and the white guy started wrestling in the car. This white guy was trying to get away. By that time DeVaughn pulled a pistol out from under his coat and - 9 - shot the white guy in the head. At that time everybody panicked and ran. "I ran straight down Euclid to Wymore. I went back to John Morrison's apartment, but no one would open the door. So then I went to the phone booth on Euclid by Mister Donut's to call a taxi. I was waiting for the taxi, and I saw Van Johnson standing by McCall's Motel. "I saw Van flagging down his car. DeVaughn was driving it, and Andre was on the passenger's side. They pulled into the parking lot of McCall's. So I walked over to the car. Van got into the driver's side. DeVaughn moved over to the front passenger's seat. Andre and I got into the back seat. "Once we got in the car, Van drove Andre and DeVaughn to the corner of Euclid and Amherst, where Andre and DeVaughn got out of the car and ran to the rear of the apartment building. Van then drove me home to 11802 Phillips, number 10, and dropped me off. Van left and I don't know where he went." R. 186-187. Miss Peak, in her statement, also said that: she had no idea that Mr. King and the defendant would be at the area of the store; and, the defendant was also known as "Capone" and Mr. King was also known as "Dre." Miss Peak's testimony of February 5, 1990, took place during a hearing on a motion to suppress her police statement at her trial in connection with this homicide. In that testimony, Miss Peak: (1) recalled giving and signing a statement to the police on October 25, 1989; (2) admitted that a statement of her constitutional rights was included at the top of the statement form; (3) totally denied the contents of her answers in the statement as being a lie. R. 193-216. - 10 - The tenth witness was Edward Barko, the acting chief of police in East Cleveland, who stated that: (1) Miss Peak voluntarily came to the police station on October 25, 1989, and gave a voluntary statement after having been read her rights; (2) Miss Peak had not been formally charged at the time of her police statement; (3) in Miss Peak's oral statement, which immediately preceded the written version, she told the police that she knew a robbery was going to be attempted and her role in that attempt; (4) this oral statement did not appear in the final written version because Miss Peak did not want it included; (5) Mr. Smith was interviewed again on October 27, 1989; (6) the defendant was interviewed, subsequent to his arrest, on November 1, 1989, following a reading of his rights and gave an oral statement only; (7) Mr. Smith and Miss Peak both named the defendant as the triggerman; (8) the defendant had $859.00 in cash on his person at the time of arrest; (9) the defendant denied being present at the shooting; (10) the defendant said he had no reason to rob anyone because his drug sales were very lucrative for an eighteen 1 year old man ; (11) the defendant said that he may have touched the victim's car that morning because he sold drugs to the victim at 1:00 a.m. on the day of the shooting; (12) the defendant broke 1 The defendant testified at this trial that he sold between one to three thousand dollars worth of drugs during an average week, and that on the first day of each month, when general assistance checks arrived, he would sell about eight thousand dollars per day. The defendant also testified that he began selling drugs when he was sixteen. - 11 - down and confessed saying "You got me" but refused to make a written statement (R. 237-238); (13) he told Miss Peak that she was a suspect only prior to taking her statement, and she was free to stop the interview and leave at any time. Testimony on behalf of the State was then concluded, and the defense moved unsuccessfully for acquittal pursuant to Crim. R. 29. The defense then offered the testimony of two witnesses in its case-in-chief. The first witness for the defense was Anthony Matthews, a nineteen year old friend of the defendant who has known the defendant for about three years. Mr. Matthews testified that: (1) the defendant and Mr. King picked him up at his girlfriend's house at East 105th Street and St. Clair Avenue about 7:00 p.m. on the evening before the shooting; (2) it was still light out when they picked him up; (3) Mr. King was driving a light blue Pontiac Grand Am, which belonged to someone else; (4) they drove around drinking beer and smoking marijuana, stopping at several different houses for periods of time; (5) they left the Near West Side of Cleveland around midnight and headed toward the East Side of the City; (6) along the way, they picked up two more people, arriving at King's house between 1:30 - 2:00 a.m.; (7) the defendant and Mr. King went inside the house; (8) one of the person's who had been picked up then drove the witness home to a location on West 10th Street, arriving there around 2:00 a.m.; (9) the people that had been picked up was the owner of the - 12 - Pontiac and a lady friend of his; (10) he first spoke with defense counsel on the morning of testifying. The defendant then took the stand in his own defense, testifying that: (1) he borrowed Mr. Johnson's car and, with Mr. King, left around 9:30 p.m. on the night before the shooting with the purpose of selling drugs as they drove around; (2) they stopped at Mr. Matthews' home, but he was not there; (3) they then picked up Mr. Matthews at the girlfriend's house at East 125th or 129th and St. Clair Avenue; (4) Mr. King, the defendant, and Mr. Matthews then drove around, stopping periodically to sell drugs between the girlfriend's house and the Near West Side of Cleveland; (5) as they headed back toward East Cleveland around 2:00 a.m., the car was flagged down by Mr. Johnson and Miss Peak; (6) the defendant, who was driving the car, stopped the car, and Mr. Johnson then shared the front seat with the defendant-driver and Miss Peak, Mr. King and Mr. Matthews shared the rear seat; (7) they arrived at Mr. King's apartment building at 2:30 a.m. with Mr. King and the defendant getting out, and the other three then left in the car; (8) he and Mr. King remained at Mr. King's apartment the rest of the night; (9) after his arrest, he was advised of his rights and freely made an oral statement to the police; (10) he denied being involved in any murder, but admitted that he sold drugs; (11) he denied ever being known as "Capone"; (12) he had $854.93 on his person at the time of his arrest and had no reason to commit a robbery; (13) none of the guns belonged - 13 - to him at the apartment; (14) he did not see Mr. Johnson, Miss Peak or Mr. Matthews again that day after they dropped him off at Mr. King's apartment; (15) he never told the police "You got me"; (16) while some drug dealers carry a gun, he did not; (17) the police, at his arrest, did find a live shotgun shell in the pocket of a coat he was using, but the coat was borrowed from a friend; (18) he did not know if Mr. King, when selling drugs, carried a gun; (19) there were two guns found in Mr. King's apartment, but the police lied when they said they found a loaded gun within five feet of him; (20) Mr. Smith and Miss Peak lied in their statements to the police; (21) he understood his rights when he was so advised prior to speaking with the police; (22) he doesn't know where the police found the gun with the blood in the barrel; (23) when the police entered the apartment of Mr. King, the defendant and Mr. Scott were headed toward the living room and were stopped by the police; (24) at the time of arrest, Mr. King had a packet of cocaine on his person; (25) he bought a gun from a friend a week or two before his arrest. The defense then rested and renewed, unsuccessfully, his motion for acquittal pursuant to Crim. R. 29. Following the guilty verdict by the jury, the defendant filed the present appeal raising five assignments of error. Assignments of error one and two will be discussed jointly. I THE TRIAL COURT ERRED IN ALLOWING THE ADMISSION INTO EVIDENCE OF A CO-DEFENDANT'S - 14 - OUT OF COURT WRITTEN AND ORAL STATEMENTS WHICH ARE INADMISSIBLE UNDER OHIO'S RULES OF EVIDENCE AS INADMISSIBLE HEARSAY. II THE TRIAL COURT MADE A REVERSIBLE ERROR IN ALLOWING THE UNSWORN STATEMENT OF AN UNAVAILABLE CO-DEFENDANT TO BE ENTERED INTO EVIDENCE AND IN ALLOWING TESTIMONY AS TO SAID CO-DEFENDANT'S ORAL STATEMENTS TO POLICE OFFICERS, FOR BY ENTERING SUCH STATEMENTS IN EVIDENCE APPELLANT'S RIGHT TO CROSS EXAMINATION AS SECURED BY THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT WAS VIOLATED. The statement referred to by the appellant in these assignments is the police statement, both oral and written, of October 25, 1989, made by Miss Peak which was read to the jury and testified to by Officer Barko after Miss Peak refused to testify at the trial. The oral and written statements of Miss Peak are clearly hearsay in nature. Evid. R. 801, 802. However, Miss Peak, the declarant, absolutely refused to testify at trial despite an order of the court, in the form of a subpoena, to do so. Accordingly, the written statement was properly admitted as a hearsay exception due to the unavailability of the declarant. Evid. R. 804(A)(2). The oral statement of Miss Peak which was testified to by Officer Barko was properly admitted under the hearsay exception available for declarations against penal interest under Evid. R. 804(B)(3). The penal interest involved was, at the least, a potential charge of solicitation stemming from her firsthand involvement with the victim. The - 15 - corroborating circumstances also "clearly indicate the trustworthiness of the statement." Id. The trustworthiness of the oral statement was demonstrated by the fact that: it was made voluntarily by Miss Peak; the testimony of Mr. Smith largely corroborated Miss Peak's oral statements except for the actions of the two following the shooting; the oral statement was self- incriminatory and against her penal interest. See State v. Landrum (1990), 53 Ohio St. 3d 107, 114-115, citing Chambers v. Mississippi (1973), 410 U.S. 284, 300-301 and Green v. Georgia (1979), 442 U.S. 95, 97. The fact that Miss Peak was not available for cross- examination is also not determinative of the trustworthiness of the oral statement. See State v. Landrum, supra, at 114. The jury was free to assess the credibility of Officer Barko as a witness. Assignments overruled. III IN THE CASE AT BAR, APPELLANT'S FOURTH AMENDMENT CONSTITUTIONAL RIGHTS WERE VIOLATED, AND THUSLY THE CONVICTION MUST BE REVERSED. In this assignment, appellant argues that the warrantless search of Mr. King's apartment rendered the admission of the murder weapon, which was found five feet from the defendant, to be error. The defendant, by his own testimony, stated that he lived with his mother and stepfather. There was no evidence that the defendant, at the time of his arrest at Mr. King's - 16 - apartment, had anything but a fleeting connection to the apartment. See U.S. v. Wells (1971, CA 6 Ohio), 437 F.2d 1144. Also, the defendant denied any knowledge or possessory interest in the gun found near him. As such, the defendant had no reasonable expectation of privacy with regard to the weapon at the time of the search. See Rakas v. Illinois (1978), 439 U.S. 128; State v. Taub (1988), 47 Ohio App. 3d 5. Assignment overruled. IV THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF IRRELEVANT EVIDENCE AND EVIDENCE WHOSE PREJUDICIAL AFFECT OUTWEIGHED ITS PROBATIVE VALUE. In this assignment, appellant argues that the admission of State Exhibit Six -- the gun with blood inside the barrel, and which was found several feet from the defendant at the time of arrest -- was error in that this weapon was irrelevant evidence. Construing the testimony and evidence in the record, we cannot say that the trial court abused its discretion in admitting the gun into evidence. See State v. Sage (1987), 31 Ohio St. 3d 173; Evid. R. 401. The gun was clearly relevant as tending to prove an issue to be determined by the fact finder. Furthermore, we cannot say that the probative value of the evidence -- the gun -- was substantially outweighed by the danger of unfair prejudice to the defendant, particularly where the defendant disavowed any knowledge or interest in the gun. Thus, - 17 - the trial court did not abuse its discretion in admitting the gun into evidence. State v. Harcourt (1988), 46 Ohio App. 3d 52; Evid. R. 403(B). Assignment overruled. V THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY SINCE THERE WAS NOT SUFFICIENT EVIDENCE TO PROVE EVERY ELEMENT OF THE OFFENSE. In this assignment, appellant argues that there was no evidence or testimony offered which would indicate that the defendant purposely caused the death of the victim while committing or attempting to commit a robbery. Therefore, it is argued that the conviction for aggravated murder must be reversed. R.C. 2903.01. Contrary to the allegation of appellant, there was evidence submitted regarding an attempt to commit a robbery. Mr. Smith specifically testified that he overheard Mr. King, as the victim and Mr. King wrestled in the victim's car, demand that the victim give him something. R. 138. Additionally, Officer Barko testified that Miss Peak, during her oral statement, admitted she knew a robbery was going to be attempted and she knew her role in the attempt. R. 226. We find this evidence to be sufficient for the conviction in this case. See State v. Martin (1983), 20 Ohio App. 3d 172, paragraph two of the syllabus. Assignment overruled. Judgment affirmed. - 18 - It is ordered that appellee recover of appellant its 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. LEO M. SPELLACY, P.J., and PATRICIA A. BLACKMON, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .