Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536779
ATTORNEY FOR APPELLANT Joseph Vincent Pagano.
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Saleh S. Awadallah Edward Fadel Assistant County Prosecutors.
BEFORE: Keough, J., Jones, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE.
(¶ 1} On May 19, 2010, defendant-appellant, Eric Wells, was indicted for the murder of Devin Webb. He was charged with aggravated murder in violation of R.C. 2903.01(A), with one- and three-year firearm specifications, and having a weapon while under disability in violation of R.C. 2923.13(A)(3). On April 23, 2012, Wells's trial commenced, and the jury heard the following evidence.
(¶ 2} In the early evening of August 14, 2006, police officers Klomfas and Miles responded to a call for a male shot in the area of West 80th Street and Detroit Road near a convenience store in Cleveland. Upon arrival, the victim, Webb, was being treated by paramedics and was transported to MetroHealth Medical Center where he was pronounced dead on arrival. Dr. Stanley Seligman, who conducted the autopsy, testified that Webb suffered three gunshot wounds — one each to his chest, hand, and wrist. According to Dr. Seligman, Webb's cause of death was multiple gunshots wounds, and the manner of death was homicide. A city of Cleveland firearm examiner testified that based on the bullet recovered, the gun used to shoot Webb was consistent with a .38 special or .357 Magnum.
(¶ 3} At the crime scene, officers and detectives interviewed witnesses, collected evidence, and assessed the area. Officer Klomfas testified that based on his initial interviews with witnesses, he learned that two people knew the shooter. He also observed security cameras affixed to a nearby building that possibly would have captured the crime. He contacted the maintenance supervisor for the building, who in turn called the security company. The officers were able to obtain surveillance video from three different angles showing the location where the murder occurred and footage of the victim, suspect, and eyewitness prior to, during, and after the shooting. Detective Tom Ciula, video forensic specialist, testified that he was able to enhance the video and make still-frames of the scenes and suspect, but none of the video angles revealed the suspect's face.
(¶ 4} Detective Melvin Smith testified that when he arrived on scene with his partner, Detective Joselito Sandoval, he diagramed the crime scene and viewed the surveillance video, noting that the suspect had a pronounced way of swinging his arms back and forth and a limp in his walk. He also spoke with various witnesses, including Jasmine Diaz, and made reports from those interviews.
(¶ 5} Diaz testified at trial that in 2006 she was a known drug user and has a criminal history. She stated that two months prior to the murder, she was at "Dave's" drinking and doing drugs when she met "Eric, " who was wearing a white do-rag,  dark jeans, and a t-shirt; he also had dark moustache with gray spots. She saw "Eric" again about a day or two before the murder, they discussed a letter he received from RTA about a possible monetary settlement. "Eric" was again wearing a white do-rag, black t-shirt, blue pants, and white tennis shoes. Diaz testified that on the day of the murder, she was buying and using crack cocaine. She saw "Eric" again and spoke to him for a few minutes about the RTA settlement. According to Diaz, "Eric" told her that he "was working down his way to his people's house to get more money." About four or five minutes later, she heard shots being fired.
(¶ 6} Diaz was shown the surveillance video in open court. From the video, she identified "Eric" as the man in the white do-rag; the victim, who she knew as "Hottie" or "Teardrop"; and the other woman in the video as "Queenie." She admitted she did not witness the shooting, but said she saw "Eric" that day.
(¶ 7} Detective Sandoval testified that he also interviewed witnesses at the crime scene, including Gwendolyn Wiley and Lea Johnson.
(¶ 8} Wiley, who is also known as "Queenie, " testified that she has a criminal history, and that although she has been sober from drugs for about seven years, she was a drug addict in 2006. She stated that she knew Webb as "Hottie" and a man with a slender build, a "hitched walk, " salt and pepper beard, and do-rag as "Eric." On August 14, 2006, Wiley witnessed the murder of Webb. She testified that she saw Hottie going to the store, so she decided to wait for him in the street. At that point, Eric, wearing a white do-rag, approached her and asked her about drugs. She told him that Hottie might have some, but Hottie said "no." Eric then asked her, "Queenie, what's he saying?" to which she replied, quoting Hottie, "If you ain't got no money get off my damn block." Wiley stated she and Hottie started laughing about this, but Eric then ran towards Hottie and shot him.
(¶ 9} Johnson testified that she knew Webb as "Hottie." On the night of the murder, she saw Hottie walking from the corner store, and then saw a male run up to him, point a gun, and shoot the gun three times. Johnson stated that she could not see the shooter's face, but the male was wearing a white wave cap, a white t-shirt with a black shirt over it, blue jeans, and white tennis shoes.
(¶ 10} Detective John Morgan also worked the crime scene interviewing witnesses, including the Washtocks. Helen Washtock testified that on August 14, 2006, at around 7:50 p.m. she heard gunshots. When she ran to the window, she saw a black man who was wearing a white do-rag, a dark colored shirt with a white-colored shirt underneath, and blue jeans, running from the direction of the store. She said he then "jumped" into an older model car that was greenish-blue in color.
(¶ 11} Other witnesses also testified regarding what they saw that evening. Joanne Flores testified that she was about to go to the corner convenience store when she saw a young black man with a "goatee — pepper-like" wearing a white do-rag or hat and white tennis shoes and pacing around the side of the street. About 15 minutes later, she heard gunshots. She opened the curtains and saw "the dude running away" and "Hottie" lying on the ground. She saw the male who was running put a "long black gun" in the back of his pants. Although she told police that she could recognize the male again, she was never contacted by the police to look at any photo array. She was not asked at trial if Wells was the person she saw that evening.
(¶ 12} Anas Husien, the convenience store owner, testified that after he heard gunshots, he saw a man walking up the street pretty quickly tucking, what appeared to him to be a .357 gun, in the back of his pants. Husien described the man as wearing jeans, a white do-rag, and a dark shirt over a t-shirt.
(¶ 13} Based on all the interviews and observances from the surveillance video, the detectives had a consistent description of the suspect — black male, wearing a white do-rag, jeans, white tennis shoes, and white t-shirt with a black shirt over it. They also knew the suspect was named "Eric, " "Will, " or "Wills."
(¶ 14} The following day, Detective Sandoval interviewed David Morgan, and received from him, a wave cap that the suspect was purportedly wearing. It was unclear whether the cap was relayed as the cap the suspect was wearing that night, but Morgan affirmatively stated that the cap belonged to the suspect. Detective Smith testified the wave cap was an important piece of evidence because, at the time, no one could identify the suspect by name, and therefore, DNA on the cap could lead to an identification. Ultimately, no DNA from the cap was matched to Wells.
(¶ 15} Morgan testified that he is a known drug user and has a criminal history. He stated that on August 14, 2006, he was living off West 83rd Street and Detroit Road. He knew Webb as "Hottie" and Wiley as "Queenie." He testified that Hottie was his drug dealer, and he used to smoke with Queenie. Morgan also testified that he used to smoke with Wells and that Wells would "crash" at his apartment. He described Wells as scruffy with a slight build, salt and pepper goatee, and said dressed like a construction worker — jeans, boots, tennis shoes, a t-shirt, flannel shirt, and a wave cap under a baseball hat.
(¶ 16} Morgan testified that Wells had discussed with him previously that he had a problem with a guy on West 80th. According to Morgan, it had something to do with a confrontation with Hottie and Wells's cousin. Morgan testified that Wells had spent the night at his house the night before the murder. According to Morgan, Wells told him that his cousin was supposed to come over because "they had to take care of some family business." He said that before he left the apartment. Morgan testified that Wells was wearing a white wave cap, black t-shirt, a dark flannel shirt, and jeans, and had in his possession a .357 revolver. After Wells left, Morgan heard three gunshots and then saw Wells running away from the scene.
(¶ 17} According to Detective Smith, the case became cold over time. Because they had surveillance video and the suspect had a distinct walk, he asked the Crimestoppers unit to assist in the investigation. Sergeant David Rutt, coordinator of the Crimestoppers unit, created a television episode with the use of the surveillance video tape. The episode aired in February 2009, and remained on the internet. After the video aired, the police received a tip on February 28, 2009, that the shooter in the video was Eric Wells.
(¶ 18} Detective Smith testified that based on that tip, the police refocused their investigation on the initial observation that the suspect had a pronounced limp. Detective Smith testified that after learning that the suspect was possibly Eric Wells, he waited in an area where he knew Wells would be. As he waited, he noticed a man with a walk and mannerisms consistent with the person on the surveillance video who shot Webb. Upon further investigation, he learned that the man he observed walking was Wells.
(¶ 19} In March 2010, Detective Smith compiled two photo arrays, depicting Wells at time periods approximately six years apart, and showed them to Wiley and Diaz. Wiley positively identified Wells as the person she saw shoot Webb. At trial, Wiley testified that she was 100 percent certain that Wells shot Webb. Diaz also identified Wells as the person she knew as "Eric" and who she saw wearing the white do-rag and spoke to right before the murder occurred. Morgan was also shown a photo array and identified Wells as the person he saw with a gun immediately before the murder and wearing the same clothes as the suspect.
(¶ 20} Around that same time, Stacey Jarrell, an estranged cousin of Wells, learned that the suspect in the Crimestoppers episode was possibly Wells. When he viewed the episode over the internet, he was certain the suspect was Wells based on his mannerisms and walk. The following day he told his supervisors at the sheriffs department and made a report.
(¶ 21} As a result of the Crimestoppers tip, observations, and identifications, Wells was arrested for Webb's murder. After Wells was arrested and in custody at the Cuyahoga County jail, Shakim Allah, another inmate in the jail, contacted the county prosecutor's office claiming he had information regarding Wells's involvement in Webb's death. Allah met with detectives and told them that Wells had approached him about whether Allah could locate "Queenie" and "Jasmine" in his case because he did not want them to come to court. After speaking with the detectives, Allah positively identified Wells from a photo array as the person who had approached him.
(¶ 22} Allah testified at trial that he had known Wells since he was kid and knew him to have a "limp." According to Allah, he spoke with Wells in 2010 and Wells asked whether he knew "Queenie, " "Shay, " and "Jasmine." When Allah told him "yes, " Wells inquired whether he could locate or call them because he did not want them to come to court and identify him. Wells also stated he was recorded on camera. According to Allah, Wells told him that he "popped Hottie because Hottie disrespected him, " and that it was allegedly payback for a robbery.
(¶ 23} On cross-examination, Allah admitted to his lengthy criminal history, that he had written to the prosecutor's office stating he had this information about Wells, and that he had an upcoming probation violation hearing — meaning that he wanted help with his case in exchange for information on Wells. The jury also heard that after he met with the detectives and provided this information, the prosecutor appeared at Allah's judicial release hearing and withdrew the state's previous objection for judicial release.
(¶ 24} While Wells was in police custody, Detectives Smith and Sandoval met with Wells to interview him. After the interview was over, Detective Sandoval used his cell phone to record Wells walking away with Detective Smith. The video was played for the jury to corroborate Detective Sandoval's testimony that he observed Wells walking with a distinct limp.
(¶ 25} The jury returned a verdict of guilty of aggravated murder and the attendant firearm specifications, and the trial court found Wells guilty of having a weapon while under disability. The trial court merged for sentencing the firearm specifications and ordered that the corresponding three-year sentence on the specification be served prior and consecutive to the sentence of 25 years to life on the aggravated murder charge. The court also sentenced Wells to 30 months on the weapon under disability charge, ordering that the sentence be served concurrently with the aggravated murder sentence.
(¶ 26} Wells now appeals, raising six assignments of error.
I. Speedy Trial
(¶ 27} From the time of Wells's arrest in April 2010 until his trial commenced in April 2012, Wells did not waive his right to a speedy trial. The record reveals that Wells, pro se, raised the issue of speedy trial at least five different times during the pendency of his case, with the earliest instance on November 5, 2010. Even so, the trial court only addressed Wells's concerns on one occasion when the court explained why the triple-count provision of R.C. 2945.71(E) did not apply. Accordingly, in his first assignment of error, Wells contends that his constitutional and statutory speedy trial rights were violated.
(¶ 28} Whether a trial court's ruling on a speedy trial question was correct presents a mixed question of law and fact. State v. Borrero, 8th Dist. Cuyahoga No. 82595, 2004-Ohio-4488, ¶ 10, citing State v. Barnette, 12th Dist. Fayette No. CA2002-06-011, 2003-Ohio-2014. Appellate courts apply a de novo standard of review to the legal issues but afford great deference to any findings of fact made by the trial court, if supported by competent and credible evidence. State v. Barnes, 8th Dist. Cuyahoga No. 90847, 2008-Ohio-5472, ¶ 17. This court must construe the statutes strictly against the state when reviewing the legal issues in a speedy trial claim. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 1996-Ohio-171, 661 N.E.2d 706. Morover, in analyzing the procedural timeline record of the case, this court is required to strictly construe any ambiguity in the record in favor of the accused. State v. Johnson, 8th Dist. Cuyahoga Nos. 78097, 78098, and 78099, 2001 Ohio App. LEXIS 999, *6 (Mar. 8, 2001).
(¶ 29} In this case, Wells sets forth two speedy trial claims — statutory and constitutional.
A. Statutory Speedy Trial Right
(¶ 30} R.C. 2945.71 requires the state to bring a felony defendant to trial within 270 days of arrest. Each day a defendant is held in jail in lieu of bail solely on the pending charge is counted as three days. R.C. 2945.71(E).
(¶ 31} If a defendant is not brought to trial within the speedy trial limits, the court, upon motion, must discharge the defendant. R.C. 2945.73(B). A defendant establishes a prima facie case for discharge based on a speedy trial violation when he or she demonstrates that more than 270 days elapsed before trial. See State v. Butcher, 27 Ohio St.3d 28, 500 N.E.2d 1368 (1986). The burden then shifts to the state to show R.C. 2945.72 extended the time limit. Brecksville, 75 Ohio St.3d at 55-56, 1996-Ohio-171, 661 N.E.2d 706.
(¶ 32} In this case, 734 days elapsed between the date of Wells's arrest on April 21, 2010, and the date of trial, April 24, 2012. He established, therefore, a prima facie case of a speedy trial violation. The burden now shifts to the state.
(¶ 33} Under R.C. 2945.72, the time within which an accused must be brought to trial is extended for various reasons, including motions filed by the accused, continuances requested by the accused, the time required to secure counsel for the accused, and reasonable continuances granted other than upon the accused's motion. See, e.g., State v. Byrd, 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283; State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283; State v. Pirkel, 8th Dist. Cuyahoga No. 93305, 2010-Ohio-1858.
(¶ 34} This case presents an interesting set of facts and circumstances that could affect the calculation of speedy trial. As previously stated, the record reveals that Wells, pro se, raised the issue of speedy trial at least five different times during his case. The earliest instance Wells challenged his right to a speedy trial was in his pro se motion filed on November 5, 2010. Although the issue was raised, neither the State nor the trial court addressed the issue — presumably because Wells was represented by counsel. On January 14, 2011, Wells moved to disqualify his trial counsel, and on January 24, the trial court conducted a hearing on that motion. When Wells expressed concern about his speedy trial rights during he hearing, specifically the effect of the probation violation hold in CR-525073 on his right to a speedy trial in the murder case, the following colloquy occurred between Wells and the court:
Wells: What about the — my 2945.17 statutory speedy trial right and this probation hold? You know, what I'm — I don't understand, why is I being held so long without trial, 270 days? I've been incarcerated for 270 days.
Court: You can have your attorneys explain that to you. I'll get you new attorneys. You're running one for one. You don't get three for one when you're being held under two cases. Right now you're a potential probation violation, depending on this case.
Wells: But the case, Your Honor, the case is — I was on probation in 2010, March, 2010, but the case supposedly happened in 2006, so where is the violation?
Court: When did the charges come?
Wells: The charges came —
Court: May 19, 2010 is when it was filed with the State of Ohio, with the pro — with the Clerk of Courts office.
(¶ 35} Accordingly, the first issue, which was raised by the defendant, pro se, with the trial court, was the effect the probation violation case had on Wells's speedy trial calculation for the murder case. Specifically, he argued that if the court was using the new murder charge as the predicate for the probation violation, the court was in error. He contended that because the murder offense occurred in 2006 before he was placed on probation in 2010, no violation could be found and any probation hold or capias issued based on the new murder charge was invalid. ...