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State v. McCray

Court of Appeals of Ohio, First District, Hamilton

May 26, 2017

STATE OF OHIO, Plaintiff-Appellee,
TRASHON MCCRAY, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1406872

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson and Demetra Stamatakos, Assistant Public Defenders, for Defendant-Appellant.


          Myers, Judge.

         {¶1} Defendant-appellant Trashon McCray appeals the judgment of the Hamilton County Common Pleas Court convicting him, after a jury trial, of murder, felonious assault, and two counts of having a weapon while under a disability. Finding no merit to his assignments of error, we affirm the trial court's judgment.

         {¶2} On March 21, 2014, at the end of the school day, students walked from Dohn Community School on Essex Place to the bus stops on William Howard Taft Road. A large crowd gathered to watch a fight that had broken out at the intersection of Essex and Taft. McCray's younger brother, D.M., and other Dohn students were involved in the fight. Fourteen-year-old J.M. and 17-year-old D.L. were standing in the crowd when 19-year-old McCray, a Dohn student at the time, drove up and fired a gun at them. J.M. died as a result of his gunshot wounds. D.L. was shot multiple times in the legs, sustaining serious permanent injuries. Video cameras on a nearby city bus recorded the shooting.

         {¶3} The vehicle that McCray was driving belonged to a family friend, Lakeisha Hicks. Hicks's teenaged son D.W. was the front-seat passenger. After the shooting, McCray drove around the block to McMillan Street and picked up Hicks's other son, 20-year-old Miniko, who got in the back seat. McCray drove back around the block to drop Miniko off near Essex and Taft, where J.M. and D.L. were still lying on the ground.

         {¶4} Before Miniko got out of the car, he took the gun from McCray. And McCray told him, "I did what I had to do." Then McCray and D.W. drove off. As Miniko stood on Essex, he fired the gun into the remaining crowd, striking and injuring two people. Miniko ran away toward Taft Road, where he met up with his other brother, 18-year-old Donyell Walker. Their aunt, Carletta Hayes, was driving by when she and her teenaged daughter spotted them. Hayes stopped to pick them up, and Miniko and Walker got into the back seat. As Hayes started to drive away, she was stopped by police. Police recovered the gun that McCray and Miniko had fired, a Kel-Tec semi-automatic pistol, from the back seat of Hayes's vehicle. Miniko and Walker were arrested.

         {¶5} Shortly after the shooting, Janet Thomas, Hicks's coworker, saw Hicks and several carloads of teenagers in the parking lot of their workplace, two blocks away from Essex and Taft. Thomas recognized Hicks's vehicle. She saw one of the young men with Hicks enter the office building and go into the men's bathroom. He had been wearing a gray hoodie before he went into the bathroom, but was no longer wearing it when he exited.

         {¶6} Five days later, police seized Hicks's vehicle. The following day, they photographed the vehicle and took lifts from it, attempting to obtain prints and gunshot residue. Testing revealed gunshot residue on the interior surface of the driver's door and D.W.'s palm print on the exterior surface of the left rear door. Lifts taken from the steering wheel and from the interior surface of the left rear door tested negative for gunshot residue.

         {¶7} An arrest warrant was issued for McCray. McCray did not return to attend Dohn school, and police did not find him until ten months later. McCray was arrested at his girlfriend's apartment, where police recovered a Bryco firearm from a bedroom dresser.

         {¶8} In an interview with police detectives about the events of March 21, 2014, McCray said that someone had called to tell him that his younger brother, D.M., was in a fight. McCray told the police that he had been walking near the fight when he heard gunshots and then ran the other way.

         {¶9} The detectives told McCray that they knew he was driving Hicks's vehicle and that they had him "on video." McCray asked if he could see the video, but the detectives refused. McCray then admitted that he had been in Hicks's vehicle, but denied that he had fired a gun.

         {¶10} Later in the interview, McCray admitted that he had been driving Hicks's vehicle and that he had fired two or three shots near the crowd before driving away. McCray said that he stopped to pick up Miniko and then drove back around the block. He said Miniko took the gun and got out of the car. According to McCray, he heard four or five shots as he drove away, and he figured that Miniko had fired them.

         {¶11} At some point, Hicks entered the car. And, according to McCray, they went with Hicks to her workplace to drop off her car. When asked if he had entered a building there to use the bathroom, McCray said he had. He said that he was so scared by firing a gun for the first time that he used the bathroom there to relieve his bowels.

         {¶12} In recorded telephone calls from jail, McCray told his mother, "They got me." When she asked him for what, he responded, "What do you think?" He told her that the police told him that they had pictures of him at the scene and witness statements. When in one of the jail calls a friend warned McCray that police would lie to get him to incriminate himself, McCray claimed that the police had shown him pictures of him and the car at the scene, and pictures from a video recording.

         {¶13} McCray was charged with murder and felony murder for the death of J.M., two felonious-assault offenses for the injuries to D.L., and having a weapon while under a disability. McCray was charged with a second weapon-under-disability offense for his possession of the firearm on the date of his arrest. The predicate disability for both weapons offenses was a 2012 juvenile adjudication for robbery.

         {¶14} At trial, the parties stipulated to the predicate disability for the weapons offenses.

         {¶15} In his defense, McCray testified at trial that on the day of the shootings, D.W. drove up in Hicks's vehicle. McCray told D.W. to scoot over, so that he could drive. As D.W. scooted over to the passenger's seat, McCray noticed a Kel-Tec handgun in the middle of the driver's seat. McCray said that D.W. grabbed the gun and set it in his lap. After receiving a call that his brother, D.M., was "getting jumped, " McCray drove to the fight. McCray testified:

I had pulled up next to the fight. And then as I was trying to maneuver to pull up to Essex, I just heard gunshots from behind my head. So then I started to drive off.
I guess, like, [D.W.], maneuvered, like - - I don't know how he maneuvered to get behind me to shoot out the window. I just know he maneuvered behind me and he was sitting back down as we pulled away.

         {¶16} McCray said that he did not ask D.W. why he had fired the gun. McCray said that when he drove around the block, he stopped to pick up Miniko. Miniko jumped into the back seat and asked for the gun. According to McCray, Miniko grabbed the gun from D.W. McCray said that when they drove back around the block, he did not see anyone who had been shot, and he assumed that D.W. had fired the gun into the air.

         {¶17} McCray testified that then he saw Hicks, so he pulled over. McCray got into the backseat, and Hicks drove to her workplace. McCray said that he had asked to use the bathroom there, but was told that he was not allowed to be in the building.

         {¶18} McCray acknowledged that his trial testimony differed from what he had told the detectives. He said that in his interview with police, he had been trying to be loyal to Hicks and D.W., and not implicate them. McCray admitted that, despite what he told his friend in the recorded jail call, the police had not shown him witness statements, photographs or video recordings. He admitted that the Bryco gun recovered from the apartment was his.

         {¶19} At the conclusion of the trial, the jury found McCray guilty of all the offenses. For sentencing purposes, the trial court merged the felony-murder count with the murder count, and merged the second felonious-assault count with the first felonious-assault count. The trial court imposed an aggregate term of 38 years to life. McCray now appeals.

         First Assignment of Error: McCray's Prior Juvenile Adjudication

         {¶20} In his first assignment of error, McCray argues that the use of a prior juvenile adjudication to establish the disability element of his weapon-under-disability convictions under R.C. 2923.13(A)(2) violated his right to due process. He contends that, pursuant to State v. Hand, __Ohio St.3d__, 2016-Ohio-5504, __N.E.3d__, "it was unconstitutional to use his juvenile adjudication as the basis" for his weapon-under-disability convictions. He argues that this due-process violation was further compounded because evidence of his prior juvenile adjudication would not otherwise have been admissible at trial.

         {¶21} In State v. Carnes, 1st Dist. Hamilton No. C-150752, 2016-Ohio-8019, we recently declined to extend the application of Hand to bar the use of a juvenile adjudication to prove the disability element of a weapon-under-disability charge under R.C. 2923.13(A)(2). Therefore, we hold that McCray's right to due process was not violated by the use of his prior juvenile adjudication to prove the disability element of his weapon-under-disability convictions. See Carnes; see also State v. Hudson, 7th Dist. Mahoning No. 15 MA 0134, 2017-Ohio-645. And, as McCray implicitly concedes, the disposition of the due-process issue renders moot his argument that without the weapon-under-disability offenses, evidence relating to his adjudication would be inadmissible other-acts evidence under Evid.R. 404(B). We overrule the first assignment of error.

         Second Assignment of Error: Voir Dire

         {¶22} In his second assignment of error, McCray argues that he was denied his constitutional right to an impartial jury because, during voir dire, "the state excessively detailed the facts and evidence, and asked prospective jurors if they could agree with the theory of prosecution." During voir dire, McCray objected only one time, to the prosecutor's phrasing of a question, and he did not renew his objection upon the prosecutor's restatement of the question.

         {¶23} The scope of voir dire lies within the sound discretion of the trial court. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 28. Voir dire may constitute reversible error only upon a showing that the trial court abused its discretion. State v. Williams, 79 Ohio St.3d 1, 6, 679 N.E.2d 646 (1997). In this case, we apply the even more deferential plain-error standard because McCray did not object to the questioning by the state. See State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 73.

         {¶24} The appellant bears the burden of demonstrating that a plain error affected his substantial rights. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14. The appellant must show that an error occurred, that the error was an obvious defect in the trial proceedings, and that the error affected the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

         {¶25} A. Outline of the facts. First, McCray claims that, during voir dire, the prosecutor excessively described the facts and evidence of the case. He points to the following remarks by the prosecutor:

The school had let out a short time before. There was a large number of people around. It developed into a fistfight, with some of the people, and the allegation is that the defendant, this man right here, Trashon McCray, shot and killed a 14-year-old person and shot and injured another teenager at the scene.
He then left the scene, and he wasn't arrested until January of 2015, around nine, ten months after the incident. Have any of you heard of the incident other than what I just told you? I think it got some attention just because it was a 14-year-old that was shot and killed, basically, at or near a school ground.

         {¶26} A prosecutor has a right to give an overview of the facts of the case and of those involved in order to ascertain whether prospective jurors know anything about the offense. State v. Tyler, 50 Ohio St.3d 24, 32, 553 N.E.2d 576 (1990). While jurors must be impartial, they need not be completely ignorant of the facts and issues involved in a case to be qualified as jurors. State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 38. In this case, the prosecutor explained that the case had gotten media attention, so he reasonably attempted to learn what, if anything, prospective jurors knew about the case. His statements and questions were designed to do so. The trial court did not err by allowing the prosecutor to outline the case's facts and evidence.

         {¶27} B. Plea bargains with state witnesses. McCray also asserts that the trial court erred by allowing the prosecutor to explain the state's reasons for giving plea deals to some witnesses. The prosecutor told prospective jurors that Miniko shot two people with the same gun that McCray had used, and that Miniko's brother, Donyell Walker, had assisted in Miniko's getaway. The prosecutor said that the state had offered plea deals to Miniko and Walker in exchange for their "truthful testimony" so the state could make its case against McCray, "who we feel is the most serious offender" and the "hands-on killer."

         {¶28} A prosecutor may not express his or her personal belief or opinion as to the defendant's guilt. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). So it was improper for the prosecutor to refer to the prosecution team's belief that McCray was guilty and that he was the worst offender. Even though the prosecutor's remarks were improper, McCray has failed to demonstrate plain error because the evidence of his guilt was overwhelming. See Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 16.

         {¶29} A prosecutor may validly explore the possibility that prospective jurors might be predisposed to discount the testimony of inmate witnesses. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 124. In other words, a prosecutor may try to " 'draw the sting' from the unfavorable fact that [some of] the state witnesses were accomplices and had plea-bargained to minimize their criminal exposure." State v. Lundgren, 73 Ohio St.3d 474, 484, 653 N.E.2d 304 (1995), quoting Tyler, 50 Ohio St.3d at 34, 553 N.E.2d 576. In this case, the prosecutor ...

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