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State v. Harris

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 11, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BYRON HARRIS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-589543-A

          ATTORNEY FOR APPELLANT Rick L. Ferrara.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Jeffrey Schnatter Assistant Prosecuting Attorney.

          BEFORE: Keough, A.J., Kilbane, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE.

         {¶1} Defendant-appellant, Byron Harris, appeals his convictions. For the reasons that follow, we affirm.

         {¶2} In February 2015, Harris was named in a seven-count indictment charging him with aggravated murder (Count 1), murder (Count 2), two counts of felonious assault (Counts 3 and 4), discharge of a firearm on or near prohibited premises (Count 5), and two counts of a having weapon while under disability (Counts 6 and 7). Counts 1 through 5 contained one- and three-year firearm specifications, and Counts 3 through 5 contained repeat violent offender specifications and notices of prior conviction.

         {¶3} Prior to the start of trial, the state dismissed Count 7, and Harris executed a jury waiver on Count 6 and the repeat violent offender specifications and notices of prior conviction attendant to Counts 3 through 5. All other counts were tried before a jury, who heard the following evidence.

         {¶4} In the early afternoon of August 17, 2014, Tyler Spaulding was riding the bus home after work. Seated in front of him were three males and a female who, according to Tyler, were talking about robbing him. Fearing for his safety, he called his sister Mary, told her what he had overheard, and asked her to have his brother meet him at the bus stop. Mary testified that she called their brother Isaac Spaulding to meet Tyler.

         {¶5} Tyler testified that two of the males - the one with the tattoo under his eye and wearing blue jeans, and the other darker-skinned male with a backpack - got off the bus near East 123rd Street. The other male and the female stayed on the bus.

         {¶6} When Tyler got off the bus on Lakeview Road near Save-A-Lot, his brother Isaac and his cousin's girlfriend, Chastity Spencer, were waiting for him. Tyler told them what had happened on the bus. As they were walking away, Tyler and Isaac's brother Harry Spaulding, and friend James Parker, Jr., approached. Although Tyler told them what had happened, he indicated that it was over and to leave it alone.

         {¶7} Meanwhile, over on Osceola Avenue, Martinez Hunter was sitting on a porch when he received a call from his sister Mary that someone was trying to rob Tyler. After leaving the residence, he saw three males - one who he knew from the neighborhood as the "CD dude." Martinez testified that the CD dude sells CDs and movies outside USA Food Mart. Because Martinez had worked at USA Food Mart, he had seen the CD dude numerous times. According to Martinez, the CD dude was wearing gray jogging pants with no shirt and carrying a book bag on his back. He also testified that the CD dude has a tattoo on his face. Martinez identified Harris in court as the "CD dude."

         {¶8} According to Martinez, one of the other males with Harris was shorter in height with darker skin and dreadlocks; Martinez could not remember much about the third male, except that he was short.

         {¶9} Martinez testified that when Harris and the other two men walked by him, Harris said "what's up?" and Martinez, not knowing that the males had been on the bus with his brother Tyler, responded the same. The males continued walking, not knowing that they were about to cross paths with Tyler's group, who were walking toward East 123rd Street.

         {¶10} When Tyler saw two of the males from the bus, he pointed them out, and Parker started yelling at them that he wanted to talk to them; when the males did not stop, Parker questioned if they wanted to fight. The males started walking faster, and Tyler and his group of four followed. Within moments, Tyler's group of four grew to five when their friend, Marcus Burton, joined the pursuit.

         {¶11} Soon thereafter, Martinez saw Tyler, Marcus, Isaac, Harry, Chastity, and Parker. He could hear Tyler yelling out to him to "stop them, " pointing to the group of males and stating that they were the ones who tried to rob him. Martinez then witnessed a transaction between Harris and his friends involving a book bag - Martinez initially testified that he saw Harris retrieve a gun from the bag, but then later said the male with the dreadlocks pulled the gun from the bag. Nevertheless, Harris took possession of the gun.

         {¶12} After the transaction, Harris and the other two males started running, and Marcus and Parker chased after them. Martinez also followed as they all ran toward the corner of Phillips Avenue and East 123rd Street by Satellite Cleaners. During the chase, Martinez saw Harris pull the gun off his hip. Martinez testified that the gun was a .38 that he had seen before when Harris was trying to sell it at USA Food Mart.

         {¶13} According to Martinez, when Harris pulled the gun, he told Marcus and Parker that Harris had a "little ass gun." Parker was now in between Martinez and Harris, as he cut across Satellite Cleaners' parking lot and ran to the middle of Phillips Avenue. Harris was on the sidewalk about three or four houses down on Phillips Avenue when he started shooting in the direction of Martinez and Parker. Martinez testified that he heard a bullet go whistling by his ear. According to Martinez, the second gunshot hit Parker's hand, causing Parker to yell out that "It hit my hand." Parker then retreated and took cover behind a tree. However, Harris kept firing while approaching Parker, this time hitting Parker in the arm area. Martinez testified that Harris was approximately three or four feet from Parker and fired the gun again, hitting Parker in the chest, causing Parker to spin around and ultimately collapse in Satellite Cleaners' parking lot. Parker was subsequently pronounced dead at MetroHealth Medical Center.

         {¶14} Dr. Joseph Andrew Felo, deputy medical examiner who performed Parker's autopsy, testified about the gunshot wounds to Parker's body. According to Dr. Felo, one wound was consistent with the gun pointed at an angle in a downward direction, and another wound was consistent with the gun being fired straight on. The exit wound of one of the gunshots was consistent with Parker's back up against something, like a tree.

         {¶15} A grainy surveillance video was played during Martinez's testimony that showed Parker and his group following another group of individuals across the parking lot of Satellite Cleaners. Martinez described to the jury his location in relation to Parker and the shooter. The jury could see a sudden retreat by the larger group, Parker retreating, and then collapsing in the parking lot. Detective Thomas Lynch also testified about the video, stating that after the first shot and everyone scatters, about 10 to 15 seconds pass and the shooter approaches Parker, who is hiding behind a tree.

         {¶16} According to Martinez, he was "right there" next to Parker and witnessed the entire event. Detective Lynch testified that based on Martinez's statement and the surveillance video, Martinez was in the best position to witness the shooting. In fact, Detective James Raynard recovered a .38 caliber casing in front of the third house down on Phillips Avenue - the exact area where Martinez testified that he witnessed Harris firing the gun.

         {¶17} Sharon Collins, who lived four houses down from East 123rd Street on Phillips Avenue, testified that she was sitting in her living room when her attention was directed out her front window because she heard shouting. When she looked out her window, she saw a black male wearing gray jogging pants pointing a gun toward the corner of Phillips Avenue and East 123rd Street. She testified that she heard two to four gunshots. She could not recall any more identifying details about the shooter, except that the gun was not a revolver, and she could not identify the shooter at trial.

         {¶18} When the police arrived, Martinez was interviewed on scene by Detective Lynch. He told the officers that the shooter had a teardrop tattoo under his right eye, and pointed to his own left eye - the jury saw that Harris has a teardrop tattoo under his left eye. Detective Lynch testified that on the day of the shooting, Martinez described the shooter as a black male with a teardrop tattoo, wearing gray jogging pants with no shirt.

         {¶19} Subsequently, Martinez was shown two photo arrays and asked to identify the CD dude - the man who shot Parker. In the first photo array, the photos were generated based on information of a possible suspect, and the second photo array was generated based on Harris's description. In the first photo array, Martinez identified another male and indicated that he was only 50 percent certain that he knew this individual. Martinez identified Harris in the second photo array. At trial, Martinez testified that the shooter wore gray jogging pants, and he was one hundred percent certain that Harris shot Parker.

         {¶20} The state also provided testimony from the five other members of Parker's group who witnessed various parts of the altercation from different vantage points. Each witness provided differing details regarding the identity of the shooter, who was carrying the backpack, and who handed the gun to the shooter.

         {¶21} Like Martinez, Isaac knew Harris as the CD man, and stated that Harris shot Parker. Isaac testified that when Parker was trying to "get to the guys, " the three guys stopped and did a "transaction" with a book bag. Isaac described the males to the jury along with the roles they played in the transaction - the male with the dreadlocks passed the book bag to the man he knew as the CD guy with the tattoo on his face. According to Isaac, the third guy was of average height and wearing a ball cap. Isaac identified Harris as the CD guy, who he saw pull a gun from inside the book bag and subsequently shoot Parker.

         {¶22} However, Isaac was cross-examined with the formal written statement he provided to the police shortly after the murder. His statement provided that he did not know any of the males. Isaac testified that his statement was not true. Additionally, in his statement, he described the males to the police: (1) 15-18 years old, tall, slim to medium build, braided black hair, with a tattoo on the right side of his face, wearing camouflage pants and an orange shirt carrying a backpack; (2) 18-year-old male, caramel skin color, wearing burgundy pants and a white and black shirt, and a ball cap; (3) under 20 years old, black male, average build wearing a blue shirt and black jean shorts. Additionally, the jury heard that Isaac told the police that he did not see any of the males with a weapon. Again, Isaac told the jury that his statement was not true.

         {¶23} While Martinez and Isaac unequivocally identified Harris as the shooter, Marcus Burton and Harry Spaulding testified that Harris was not the shooter, but gave the shooter the gun from the backpack. Marcus testified he recognized one of the males -who had a tattoo and sold CDs at the USA Food Mart - from the neighborhood. Marcus identified Harris in the courtroom as the man he recognized. However, Marcus testified that Harris was not the shooter; rather, Harris took the gun out of the backpack that the darker-skinned male was wearing and handed it to the darker-skinned male.

         {¶24} Harry, Parker's best friend, testified that he only recognized one of the males - the one known as the "CD guy, " who was identified as Harris. Harry described another male as light-skinned with tight braids, and the third as a darker-skinned, heavy-set male with a "little [A]fro" hairstyle. Harry told the jury that Parker kept arguing with the group of males. During that time, he saw Harris take the backpack off his back and put it in front of him and then pass something to the darker-skinned male wearing a striped shirt. According to Harry, once Harris passed the backpack to the dark-skinned male, Harris and the other male ran away. However, when the scene escalated between Parker and the darker-skinned male, the male started shooting.

         {¶25} Chastity testified that the male with the book bag handed something from his pocket to the male with the dreadlocks.

         {¶26} Tyler's identification was made solely on the presence of the teardrop tattoo on Harris's face. He testified that he saw the "tattoo guy" pull a gun out from the other male's book bag. He identified Harris in court as the shooter - as "the black guy with the teardrop tattoo." He made this in-court identification even though he had not identified Harris in the two photo arrays he viewed shortly after the murder. On one of the photo arrays, the officer wrote next to the photo that Tyler said: "The teardrop. I'll never forget the teardrop. He's the shooter." Tyler admitted he picked those individuals because they each had a teardrop tattoo on their face. Additionally, Tyler admitted that he and his brothers discussed that the male with the teardrop tattoo was the shooter prior to talking with detectives on a later date.

         {¶27} Detective Lynch testified that after the shooting, he received a telephone call from Parker's mother with information about the shooter and the name "Byron." Based on the descriptions, photo array identifications, the surveillance video, and the information he received from Martinez and Parker's mother, Detective Lynch obtained a warrant for Harris's arrest. Harris was subsequently arrested in September 2014 in Texas.

         {¶28} The jury found Harris guilty of all counts it considered, including the one-and three-year firearm specifications, and the trial court found him guilty of all counts and specifications tried to the bench. Harris was sentenced to life in prison with the possibility of parole after 29 years.

         {¶29} Harris now appeals, raising five assignments of error, which will be addressed out of order.

         I. Sufficiency of the Evidence - Aggravated Murder

         {¶30} Harris argues in his second assignment of error that insufficient evidence was presented to support his conviction for aggravated murder. Specifically, he contends that the state failed to present sufficient evidence that the shooter acted with prior calculation and design.

         {¶31} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). "'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. Walker, Slip Opinion No. 2016-Ohio-8295, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶32} In the Ohio Supreme Court's recent Walker decision, the court discussed the elements of aggravated murder, specifically (1) purpose and (2) prior calculation and design, addressing what each element requires. It stated in its syllabus, "the elements of purpose and prior calculation and design are distinct, and the state must prove ...


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