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State v. Wilson

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 25, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598675-A

          ATTORNEY FOR APPELLANT Joseph V. Pagano

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Anna M. Faraglia Assistant Prosecuting Attorney

          BEFORE: E.A. Gallagher, P.J., McCormack, J., and Celebrezze, J.



         {¶1} Defendant-appellant Willie Wilson, Jr. appeals his convictions in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm but remand for the trial court to issue a nunc pro tunc entry in compliance with State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.

         Factual and Procedural Background

         {¶2} Wilson and his codefendant, James Alexander, were charged with two counts of aggravated murder, murder, three counts of attempted murder, aggravated burglary, two counts of kidnapping, six counts of felonious assault all with attendant one-and three-year firearm specifications and two counts of having weapons while under disability. The case proceeded to a joint jury trial where the following facts were adduced.

         {¶3} At 2:48 a.m. on April 14, 2015, Miyazhane Vance and her brother, Brandon Fisher, were shot in Vance's apartment at 656 East 99th Street. Vance was shot nine times and suffered fatal gunshot wounds to her head and upper abdomen. She was shot in her bedroom while her son, A.V., slept next to her in bed and her daughter, Z.V., slept in a nearby crib. Fisher suffered five life threatening gunshot wounds to the face, neck and left arm.[1] Fisher was transported to MetroHealth Medical Center where he was treated for injuries to his cervical vertebra, left carotid and vertebral arteries and an extensive fracture to his humerus. A permanent stent was placed in his neck to support one of his arteries and doctors were unable to remove a bullet that remains permanently lodged behind his face. He was placed in a medically induced coma for three days following his initial treatment.

         {¶4} When Fisher regained consciousness, he implicated Willie Wilson and James Alexander in the shootings. Initially he described Wilson as the shooter but in subsequent interviews, and at trial, he described both Wilson and Alexander as having shot him and his sister.

         {¶5} The evidence at trial established that Fisher, Wilson and Alexander were friends in 2014. They would smoke and drink together. The three possessed guns that they either bought or stole. Fisher testified that Wilson possessed a 9 millimeter handgun. Wilson began dating Vance in December 2014. Fisher moved into Vance's apartment and began living with her around the same time.

         {¶6} During March 2015, Fisher had a falling out with Wilson and Alexander. He stopped hanging around with Wilson because Wilson "started acting crazy" and was "trying to get me to do stuff I didn't want to do." Fisher described an incident near the end of March 2015 when Wilson stole a .38 Taurus revolver from Fisher's friend, L.R., when Fisher, L.R., Wilson and Alexander were drinking together on a rapid transit train. Fisher did not see Wilson or Alexander after that incident until the night of the shooting.

         {¶7} A second incident occurred three to four days prior to the shooting. Fisher testified that he was given the impression that his sister had broken up with Wilson. He, Vance, L.R. and one of Vance's friends went to the home of one of Wilson's former girlfriends looking for Wilson for the purpose of demanding that he return a key he possessed to Vance's apartment. Wilson was not present at the home and an argument ensued during which Vance threw rocks at the home and attempted to fight with the former girlfriend. The incident culminated with L.R. kicking in a side door to the home and the group fleeing after the homeowner threatened to call the police.

         {¶8} After the incident, Fisher was contacted via a Facebook call by Wilson. Wilson stated that he heard that Fisher was looking for him. Fisher replied that they just needed Vance's apartment keys returned. Alexander also joined in the call, admonishing Fisher for kicking the door at the former girlfriend's home and acting "tough."

         {¶9} On the evening of April 13, 2014, Fisher and L.R. stole a van and were pursued by police. Fisher eluded arrest and returned to Vance's apartment at approximately 12:30 a.m. Vance and her two children were present in the apartment along with a friend of Vance, D.A., who had begun living in the apartment in the beginning of April. Vance and her children went to sleep in the back bedroom, D.A. went to sleep in her own room and Fisher slept near the locked front door to the apartment unit.

         {¶10} Fisher testified that he was awakened after 2:00 a.m. by Wilson who was using his key to open the door to the apartment. Wilson and Alexander entered the apartment and stepped over Fisher who was laying on the floor near the door. Alexander had a .357 revolver in his hand and Wilson had his gun concealed with his hands in his pockets. Alexander confronted Fisher saying, "I heard you wanted to bust me." Before Fisher could reply, Wilson began firing, striking Fisher twice in the arm. Fisher testified that Alexander then shot him once in the back of the neck. Fisher saw Wilson and Alexander enter Vance's room and heard shots before he passed out. He regained consciousness and attempted to get up but Wilson returned and shot him two more times in the right side of his face causing him to black out again.

         {¶11} When Fisher regained consciousness, Wilson and Alexander were gone. He crawled out of the apartment and into the hallway seeking help. Fisher was discovered by D.A., who was unharmed in the incident and who called 911. D.A. testified that she was awoken by the sound of male voices talking in the living room and kitchen and then heard gunshots. She did not see the shooters who fled the apartment before she exited her bedroom. She and another neighbor heard the backdoor of the apartment complex, which was unlocked, slam shut shortly after the shooting.

         {¶12} Police and emergency medical personnel responded to the scene and transported the victims to MetroHealth Medical Center. Police recovered eight 9 millimeter caliber shell casings from the scene. The door to Vance's apartment unit showed no signs of forced entry. Wilson's DNA was recovered from the interior and exterior doorknob of the first floor rear exit door although the Cuyahoga County Medical Examiner's office could not determine if it had been deposited there the night of the shooting or at a prior time.

         {¶13} While awaiting trial, Wilson instructed a third party, during a jailhouse phone call, to communicate with Fisher through Wilson's Facebook account, named "KingWill Da Shooter." In the Facebook exchange, Wilson indicated that he had seen a video statement made by Fisher and said, "Just continue to be a snitch and Amma continue being a gangsta[.]"

         {¶14} Jacob Kunkle, an FBI special agent, testified that he performed a cellular analysis on Alexander's cell phone and found that Alexander had an outgoing phone call that ended at 2:43 a.m. the night of the shooting and that the records placed Alexander's cell phone in the vicinity of the crime scene at that time.

         {¶15} The state nolled one count of having weapons while under disability against Wilson. Wilson was found guilty of all remaining offenses. At sentencing the trial court merged as allied offenses the various offenses unique to each of the four victims. The state elected to proceed to sentencing on the count of aggravated murder pertaining to Vance and the three attempted murder charges pertaining to Fisher, A.V. and Z.V. Wilson was also sentenced on the counts of aggravated burglary and having weapons while under disability which were not merged as allied offenses. The trial court imposed a prison term of 30 years to life for aggravated murder, 11 years on each of the three attempted murder counts, 11 years on the aggravated burglary count and 36 months on the having weapons while under disability count. The trial court ordered the three attempted murder sentences and the having weapons while under disability sentence to be served concurrently but all remaining sentences to be served consecutively, including five three-year terms for the firearm specifications attached to the counts of aggravated murder, attempted murder and aggravated burglary. Wilson's aggregate sentence was 56 years to life.

         Law and Analysis

         I. Motion to Sever

         {¶16} In his first assignment of error, Wilson argues that the trial court erred in denying a motion to sever and be tried separately from Alexander. Wilson argues that his confrontation clause rights were violated in his joint trial with Alexander when the state introduced a statement made by Alexander at the time of his arrest wherein he stated: "I didn't do the shooting. I only watched it, but they didn't want to hear that last time."

         {¶17} R.C. 2945.13, which governs joinder in felony cases, states:

When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court, for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, orders one or more of said defendants to be tried separately.

         {¶18} Pursuant to Crim.R. 8(A), two or more offenses may be joined if the offenses "are of the same or similar character * * * or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct." While the law favors the joinder of offenses that are of the "same or similar character, " the court may sever the charges under Crim.R. 14 upon a showing of prejudice. State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990).

         {¶19} To effectively claim error in the joinder of defendants in a single trial, an appellant must make an affirmative showing that his rights were prejudiced. State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), syllabus. Prejudice is not demonstrated if one offense would have been admissible as "other acts" evidence under Evid.R. 404(B) or if the evidence of each crime joined at trial is simple and direct. State v. Schaim, 65 Ohio St.3d 51, 59, 1992-Ohio-31, 600 N.E.2d 661 (1997).

         {¶20} Furthermore, a jury is believed capable of segregating the proof on multiple charges when the evidence as to each of the charges is uncomplicated. Torres at 343-344. As such, joinder is not prejudicial when the evidence is direct and uncomplicated and can reasonably be separated as to each offense. Id.

         {¶21} Here, Wilson contends that the trial court violated the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and adopted by the Ohio Supreme Court in State v. Moritz, 63 Ohio St.2d 150, 407 N.E.2d 1268 (1980). In Bruton, the United States Supreme Court found that the introduction of the accomplice's out-of-court confession at defendant's trial violated the defendant's Sixth Amendment right to cross-examine witnesses against him. Id. at 126. In Moritz, the Ohio Supreme Court adopted the holding in Bruton and held that:

An accused's right of cross-examination secured by the confrontation clause of the Sixth Amendment is violated in a joint trial with a non-testifying codefendant by the admission of extrajudicial statements made by the codefendant inculpating the accused.

Moritz at paragraph one of the syllabus, citing Bruton.

         {¶22} The Moritz court further stated:

"[T]he Bruton rule applies with equal force to all statements that tend significantly to incriminate a co-defendant, whether or not he is actually named in the statement. The fact that the incrimination amounts to a link in a chain of circumstances rather than a direct accusation cannot dispose of the applicability of the Bruton rule. Just as one can be convicted on circumstantial evidence, one can be circumstantially accused."

Moritz at 155, quoting Fox v. State, 179 Ind.App. 267, 384 N.E.2d 1159 (1979).

         {¶23} Seven years after the Moritz decision, the United States Supreme Court revisited the topic in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (superseded by statute on other grounds). In Richardson, the court held that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence. Id. at 211. The court further limited the holding of Bruton by distinguishing between a confession that is "incriminating on its face" and, therefore, in violation of Bruton from a confession that amounts to "evidence requiring linkage" in that it may become incriminating in respect to a codefendant "only when linked with evidence introduced later at trial." The court refused to extend the rule of Bruton to confessions falling within the latter category.

         {¶24} In In re: Watson, 47 Ohio St.3d 86, 548 N.E.2d 210 (1989), the Ohio Supreme Court adopted the rule of Richardson for the Confrontation Clause of Section 10, Article I of the Ohio Constitution with respect to redacted confessions. Id. at 91. The court did not comment on the underlying rationale of espoused in Richardson that limited the holding in Bruton or what difference, if any, remained between Richardson and Moritz for the purposes of Section 10, Article I of the Ohio Constitution.

         {¶25} Even if we were to assume that there exists a divergence between the approach of the Ohio Supreme Court and the United States Supreme Court with respect to their respective confrontation clauses, we find no violation of the Bruton rule in this instance. Alexander's statement did not tend to significantly incriminate Wilson. Alexander's statement confirmed his own presence at a shooting and inferred that a third party fired the shots. It did not facially incriminate Wilson. Furthermore, the state's case against Wilson was not based on circumstantial evidence but rather on the direct account of Fisher. As such, Alexander's statement does not operate as a "link in a chain of circumstances" to incriminate Wilson. Fisher's detailed account of the event incriminated Wilson, not the statement by Alexander.

         {¶26} Finally, within this assignment of error, Wilson also argues that he was prejudiced by the testimony regarding the location of Alexander's cell phone during the time the offenses were committed. Despite his contention to the contrary, the evidence was plainly relevant as to Alexander's ...

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