COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67971 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DEANGELO CAPONE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 20, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-308025 JUDGMENT: Affirmed in part, Reversed in part. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender MICHAEL S. NOLAN, ESQ. Assistant County Prosecutor BY: ROBERT R. CLARICO, ESQ. THOMAS A. REIN, ESQ. Assistant Public Defender Assistant County Prosecutor The Marion Building, Room 307 8th Floor Justice Center 1276 West Third Street 1200 Ontario Street Cleveland, Ohio 44113-1569 -2- Cleveland, Ohio 44113 -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant DeAngelo Capone appeals his convictions for aggravated murder, aggravated burglary, and aggravated robbery. He assigns the following five errors for our review: I. THE TRIAL COURT DENIED DEANGELO CAPONE DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND HIS STATUTORY RIGHTS UNDER REVISED CODE SECTION 2941.25 WHEN IT IMPOSED SIX SENTENCES FOR THREE HOMICIDES. II. THE TRIAL COURT DENIED DEANGELO CAPONE DUE PROCESS OF LAW GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN IT ORDERED DEANGELO CAPONE TO BE PLACED IN SOLITARY CONFINEMENT ON FEBRUARY 24TH OF EACH YEAR OF HIS INCARCERATION. III. WHEN IT ALLOWED AN INCOMPETENT MINOR CHILD TO TESTIFY, THE TRIAL COURT ABUSED ITS DISCRETION AND THEREBY DEPRIVED APPELLANT DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XVI OF THE CONSTITUTION OF THE STATE OF OHIO. IV. THE TRIAL COURT ABUSED ITS DISCRETION AND THEREBY DEPRIVED APPELLANT OF HIS RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XVI OF THE CONSTITUTION OF THE STATE OF OHIO WHEN IT ADMITTED IN-COURT IDENTIFICATIONS BASED UPON IMPERMISSIBLY SUGGESTIVE PRETRIAL LINEUPS. V. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. -4- Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court in part and reverse it in part. The apposite facts follow. On February 24, 1992, defendant-appellant DeAngelo Capone, Robert Owens, and Kishaun Cotchery entered Aizig Solomon's home. Capone was reported to have asked Solomon "where is the stuff at?" An argument ensued and Capone shot Solomon once in the head. At that time, Owens and Cotchery exited the house. Capone then shot Terrance Faust. Four children under the age of five were present and witnessed the killings. A four year old named Billy Hundley testified that Capone placed a gun to his head and ordered Madeline Rivera to kneel or Capone would kill him. Rivera did as ordered and Capone shot her once in the head. Thereafter, Capone took money and jewelry from the three victims. The money was determined to be $3,800. After exiting the house, Capone encountered two men, Dan and Herbert Barb, who were on their way to visit Solomon. They later identified Capone. Cotchery and Owens accepted plea bargains in exchange for their testimony against Capone. Jose Castro also accepted the plea bargain. He was with the group but did not enter Solomon's house. He stayed in the car with Wilson and Antonio Judkins. Capone was charged with three counts of aggravated murder with specifications under R.C. 2903.01(A), three counts of aggravated -5- murder with specifications during the commission of a robbery or burglary under R.C. 2903.01(B), one count of aggravated burglary with specifications, two counts of aggravated robbery with specifications, and two counts of kidnapping. At trial, Wilson, who drove the men to Solomon's home, testified that on the night of the incident, Castro placed a gun to his head before ordering him to drive to the west side. Owens testified, before the group went to Solomon's house, Capone had been talking about robbing someone and selling drugs. Cotchery testified, while they were in the Solomon house, Owens and Faust were talking about how much money they made from the sale of drugs. According to Cotchery, after shooting Solomon, Capone said "F... these m..... f.....s. They seen my face." The reference was to the Barb brothers. Castro testified Capone showed him jewelry that he had taken from the victims. The police testified the bullets that killed the victims all came from one .380 caliber gun. Capone was convicted of all six aggravated murder counts, the aggravated burglary count and the two aggravated robbery counts. A directed verdict of acquittal was entered on one of the kidnapping counts at the close of the state's evidence and the jury acquitted Capone on the other kidnapping count. Capone was sentenced to consecutive terms of 30 years to life on each of the six aggravated murder counts with an additional three years for the firearm specification. He was also sentenced to consecutive terms of 10 to 25 years on each of the aggravated burglary and aggravated robbery counts. He was also ordered to -6- spend each February 24th (the day of the killings) in solitary confinement. This appeal followed. The issue raised by Capone's first assignment of error is whether the trial court erred in imposing six sentences for three homicides. In connection with each of the three murder victims, Capone was charged with and convicted of aggravated murder under R.C. 2903.01(A) and R.C. 2903.01(B). R.C. 2903.01(A) provides: No person shall purposely, and with prior calculation and design, cause the death of another. R.C. 2903.01(B) provides: No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit *** aggravated robbery or robbery, aggravated burglary or burglary **** In R.C. 2929.03(C)(2), if the indictment or count in the indictment contains one or more specification of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, and if the offender is found guilty of both the charge and one or more of the specifications, the penalty to be imposed on the offender shall be death, life imprisonment with parole eligibility after serving twenty full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment, The penalty for aggravated murder as set forth in R.C. 2929.03(C)(2) is as follows: If the indictment or count in the indictment contains one or more specifications of -7- aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, and if the offender is found guilty of both the charge and one or more of the specifications, the penalty to be imposed on the offender shall be death, life imprisonment with parole eligibility after serving twenty full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment **** Capone was sentenced to thirty (30) years to life on each of the six aggravated murder counts. He now argues, and the prosecu- tion concedes, he should have received three sentences instead of six. The law is settled on this issue. The Ohio Supreme Court has held when a defendant is convicted on two aggravated murder counts involving a single killing, the trial court may sentence on only one count. State v. Hawkins (1993), 66 Ohio St.3d 338,346. See also State v. Webb (1994), 70 Ohio St.3d 325,341. In this case, there were three homicides. Consequently, Capone should have received three sentences for aggravated murder. We order a merger of the aggravated murder counts as to each victim, which reverses the three life sentences entered on counts four, five, and six. Capone next argues the trial court denied him due process of law by ordering him to serve each February 24th of his sentence in solitary confinement. The state agrees the trial court's order was improper. Pursuant to our holding in State v. Dawson (November 18, 1993), Cuyahoga App. No. 63122, unreported at 18, we reverse the portion of the judge's order sentencing Capone to spend each February 24th in solitary confinement. -8- In his third assignment of error, Capone argues the court erred in allowing the testimony of five-year-old Billy Hundley. Capone argues the voir dire examination of Hundley revealed that he was not competent to testify. Under Evid.R. 601(A), the proponent of the testimony of a witness under the age of ten must prove that the witness is capable of receiving just impressions and relating them truthfully. State v. Clark (1994), 71 Ohio St.3d 466,469. The trial court must make preliminary determinations about the competency of witnesses. Id. Such determinations will not be disturbed on appeal unless the trial court is found to have abused its discretion. Id. According to Capone, Billy's answers during voir dire indicated that he could not remember the events of the evening. He also argued Billy did not understand the duty to answer questions truthfully. Although Billy answered "no" when asked whether it was wrong to tell a lie, he also said that he would be punished if he told a lie and that he did not like being punished. Also, while Billy exhibited some reluctance in answering the questions posed to him, he answered affirmatively when asked whether he was present when the victims were shot. Consequently, we find that Billy's answers during voir dire indicated that he understood his duty to be truthful and that he was capable of describing the events about which he testified. In his fourth assignment of error, Capone argues he was denied due process because of the impermissibly suggestive pre- trial line-ups conducted by police. Specifically, he takes -9- exception to the police officers' decision to place Capone in the first of the two lineups viewed by each of the Barbs. Both men picked Capone out of the first lineup. Capone argues, because the Barb brothers told police they saw only one man fleeing the victims' home, it was unlikely that they would pick a second man out of another lineup. An in-court identification made after a pre-trial identification will not be suppressed unless the pre- trial identification procedure was so impermissibly suggestive that the subsequent in-court identification was irreparably tainted. State v. Halley (1994), 93 Ohio App.3d 71. In this case, we find nothing unduly suggestive about the line-up assembled by the police. The police officer testified that the line-up was comprised of other males of similar height, weight, and age. Our review of the photographs of the men who participated in the lineup confirms that all the men had similar physical characteristics. In addition, despite Capone's argument to the contrary, we find that the presentation of a second lineup after the witnesses identified Capone in the first lineup was not unduly suggestive. There is absolutely no indication that placing Capone in the first lineup was a deliberate attempt to influence the witnesses to select him. At the time of the second lineup, the witnesses had already identified Capone, so the second lineup cannot be said to have influenced their identification. Even when it follows an improper out-of-court identification, an in-court identification will be upheld where it is shown that the witness had a sufficiently reliable independent basis for his -10- identification. State v. Broom (April 11, 1991), Cuyahoga App. No. 58386, unreported. When evaluating the reliability of an eyewitness identification, we must consider the witness' opportunity to view the criminal during the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the witness' level of certainty at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers (1972), 402 U.S. 188,189. The testimony introduced at trial established that the Barbs picked Capone out of the lineup immediately. Capone matched the description the Barbs gave police. The lineup was conducted just five days after crime. Barbs said he viewed Capone for 5 to 10 seconds as he passed within a few feet of them and stared at them intently. Although the Barbs admitted having some conversation with one another while at the police station, both testified that their conversation took place after they had each identified Capone. Because we find that the pre-trial identification procedures used by the police were not unduly suggestive, we find that the trial court did not err by admitting the identification testimony of the Barbs. In his fifth assignment of error, Capone argues his conviction was against the manifest weight of the evidence. A verdict will not be reversed as against the manifest weight of the evidence unless the court, after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, finds that the jury clearly lost its way -11- in resolving the conflicts in the evidence and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172,175. The state presented evidence that Capone went to the victims' apartment with the intent of robbing them. According to the state's witnesses, Capone entered the apartment with a .380 caliber gun and used it to fire a shot into the head of each of the three victims. Police ballistics tests revealed that all of the bullets recovered from the victims came from one .380 caliber gun. Several witnesses testified that Capone laughed after the killings and said that he shot the victims to ensure that no one could identify him. There was also evidence that Capone stole money and jewelry from the victims and from the wall safe in the apartment. We find no indication that the jury lost its way when evaluating the evidence and created a manifest miscarriage of justice. Under the circumstances, we cannot find that Capone's convictions for aggravated murder, burglary, and robbery were against the manifest weight of the evidence. Capone's fifth assignment of error is overruled. Judgment affirmed in part and reversed in part. -12- Affirmed in part and reversed in part. It is ordered that Appellant and Appellee share 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. DAVID T. MATIA, J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 journaliza- .