Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Kimberly Kendall-Corrall
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Brian Radigan Maxwell Martin Assistant
County Prosecutors Justice
BEFORE: McCormack, P.J., E.T. Gallagher, J., and S.
JOURNAL ENTRY AND OPINION
McCORMACK, PRESIDING JUDGE
On January 30, 2015, a shooter gunned down 30-year-old
William Burton ("victim") near the entrance of a
bathroom at Club Fly High, a bar in Cleveland's east
side. The bar was plagued with a history of crimes. Appellant
Daverrick Lash ("appellant" hereafter) was
identified by a witness several days later as the shooter.
Another witness saw the shooter spit just before opening fire
on the victim. A sample of what appeared to be spit collected
near the shooting matched appellant's DNA. These two
eyewitnesses wavered subsequently in their testimony at
trial. Despite the wavering, the jury found appellant guilty
of aggravated murder and other related offenses. On appeal,
appellant argues the state presented insufficient evidence to
prove that he was the shooter or that the murder was
committed with prior calculation and design. After a review
of the record and applicable law, we affirm his convictions.
Six months after the shooting at Club Fly High, a grand jury
indicted appellant for aggravated murder, murder, four counts
of felonious assault,  two counts of inducing panic, and three
counts of gun offenses. He pleaded not guilty to each count
and was tried before a jury. At the lengthy trial, the state
produced 17 witnesses. The defense did not present any
witnesses. The state's key witnesses were three patrons
at Club Fly High present on the night of the shooting:
Jasmine Rogers, Kendra Mathis, and Robert Bailey. The
testimony of the three reflects the following facts
surrounding the shooting and its aftermath.
Jasmine Rogers testified that on the night of the incident,
she arrived at Club Fly High between 12:30 a.m. and 1:00 a.m
after drinking at several other bars. The victim, whom she
knew, was playing pool with a woman, later identified as
Kendra Mathis. At one point, while Rogers was talking with
another friend by the bar stools, she saw a man with a gun
standing about ten feet away. She thought he was just showing
the gun but then she heard six or seven gunshots. She saw the
victim, who was standing on one side of a pool table across
from the bathroom, "dodge" toward the bathroom and
fall. She ran to help him. His mouth was filling with blood
and soon he stopped breathing. She tried to perform CPR on
him but could not revive him. She testified that there was no
argument or any kind of altercation prior to the shooting.
The shooting occurred ten minutes after she entered the bar.
Rogers testified that she went to the police station that
night but was unable to identify the shooter from several
photo lineups. She acknowledged that when a police officer
came to her house to show her a photo lineup five days later,
she identified appellant as the shooter from the photo
lineup. Under cross-examination, however, Rogers wavered on
her identification. She stated that she "cannot"
identify the person she circled in the photo lineup as the
shooter because the shooting occurred well over a year ago.
She also stated that although she picked out appellant from
the photo lineup, she only saw the shooter's face from
the side. She testified that she was now not sure whether the
person she once identified as the shooter in the photo lineup
was the shooter.
Detective Kevin Fischbach was the "blind"
administrator who showed Rogers the photo lineup at her
house. He testified that she circled appellant's picture
and that he wrote down the notation "this is the male
whom shot victim" next to appellant's picture to
reflect what Rogers said when identifying appellant from the
Kendra Mathis did not know the victim but played pool with
the victim before he was shot. She admitted she had been
drinking all night. Her testimony about the shooting was
evasive and reflected her reluctance to testify for the
state. She testified that when she came out of the
women's restroom, "somebody spit and it went right
across my face." She saw the person for a brief second.
Soon after, she saw "a man" pull out a pistol. When
she saw the pistol, she made her way toward the front door.
She was facing the front door when she heard gunshots
erupting behind her. She ran outside and then ran back to the
bar to grab her coat. She and other bar patrons were then
told to remain at the bar to be questioned by the police
about the shooting.
Mathis was unwilling to testify that the man who spat was the
same person who pulled out a pistol. She would only
acknowledge that when interviewed by the police, she
mentioned she was almost spat upon before the shooting. When
Mathis repeatedly insisted she did not know whether the
person who spat in her direction was the shooter, the state
asked the court to declare Mathis a hostile witness. The
state then asked her if she had told the police after the
shooting she saw the person who almost spat on her pull a gun
and shoot the victim. She claimed she did not remember. She
admitted she did not want to be a witness at this trial
because she was trying to mind her own business and to keep
her family safe.
In connection with the spit, Officer Matthew Nycz testified
that the police officers taped off the perimeter of the
shooting and blocked off an area where the officers were
alerted to the presence of spit by the shooter. Detective
James Raynard, a crime scene detective, testified that, based
on information given to him by other officers, he found and
collected two samples of what appeared to him to be saliva
behind the pool table. The saliva was still wet when
collected. Testimony from a forensic scientist and a forensic
DNA analyst at the Cuyahoga County Medical Examiner's
Office showed that, of the two suspected spit samples
collected, one matched the victim's DNA. The second
sample had a major and minor contributor. The major
contributor matched appellant's DNA and the minor
contributor was inconclusive due to insufficient information.
The forensic scientist acknowledged that she did not perform
a specific test to determine if the substance was saliva.
Robert Bailey was at Club Fly High on the night of the
incident. He admitted he had been drinking since 6:00 p.m.
that night. He testified that he, the victim, and appellant,
whom he knew as D.J., all knew each other. On that night, a
group of four amateur rap singers, including appellant, met
up at Club Fly High before they went to a club called
"2-1-6" to participate there at a rap show there.
The "2-1-6" club is located at E. 33rd Street and
Lakeside, a mile and a half away and a seven-to-ten minute
drive away from Club Fly High. Although Bailey was not one of
the performers, he and some friends went to "2-1-6"
as well. Bailey however was turned away from
"2-1-6" because he did not have an ID with him.
Bailey was back at Club Fly High 20 or 30 minutes after he
left "2-1-6." Bailey testified he did not see
appellant the rest of the evening.
After Bailey returned to Club Fly High, he saw the victim
playing pool with Kendra Mathis. At one point, the victim,
pool stick in his hand, approached Bailey and asked him to
get a drink for him from the bar. Bailey walked to the bar to
order some drinks. All of a sudden, two shots went off. The
bar security guard ducked. Bailey ducked too. After a pause,
four or five more shots went off. Everyone was running. He
saw the victim's feet hanging out of the bathroom. Bailey
testified he did not hear any argument before the shooting.
The shooting came very suddenly. He estimated the shooting
took place 30 or 40 minutes after he returned to Club Fly
Bailey testified that, when questioned by the police who
quickly arrived at the scene, he told an officer that
"the girl over there shooting pool with [the victim]
should know everything." Bailey identified the girl as
Mathis and testified that she was "hysterical, crying,
and looking nervous" when the police interviewed her.
Bailey also described the look on Mathis's face as
"you ain't never seen nothing like that look,
shocked * * * and sad." He overheard her saying to an
officer "the guy who did it spit over there" while
pointing to the floor.
Investigation After the Shooting
Officer Gary Bartell testified that on the night of the
shooting, he and his partner Matthew Nycz were patrolling an
area near Club Fly High. They saw two black males running out
of the club's front door in a panic, and they followed
the fleeing men for about 50 yards in their patrol vehicle
before the two men split. One man jumped over a fence, and
the other man ran through a daycare center and disappeared. A
pedestrian approached the officers and informed them of the
shooting inside the bar. The officers went inside the bar and
found the victim on the bathroom floor, with his body
sticking out of the bathroom. The victim's friends were
attending to him and trying to revive him, but he was
unresponsive. Officer Bartell interviewed several people that
night, including Bailey and Kendra Mathis.
Officer Matthew Nycz testified similarly about the event but
added that one of the two man tripped and fell into a tree
lawn in the snow before he ran through the daycare center and
disappeared. Officer Nycz later returned to the area and
found a black semiautomatic handgun in the snow.
Detective James Raynard testified that he collected six shell
casings from the scene and it appeared six shots were fired.
Dr. Dolinak, who performed an autopsy on the victim,
testified that there were a total of five gunshot wounds -
two shots to the chest, one to the back, a superficial wound
to the victim's hip, and one shot to the right hand. The
order the wounds occurred was unknown, however.
Sergeant Philip Christopher of the Cuyahoga County Sheriffs
Department is in charge of inmate investigation in the county
jail. One of his duties is to monitor the inmate phone calls.
He authenticated a three-way phone call made by appellant to
a female family member and a friend "Prez." The
phone call was played before the jury. In the phone call,
appellant mentioned the names of Jasmine Rogers and Kendra
Mathis and spelled out their names. "Prez" was
heard saying, "ain't even worried about the dude, we
worried about those females."
Appellant was found guilty of all counts and sentenced to
life with the possibility of parole after 25 years.
On appeal, he raises eight assignments of error for our
review. They state:
1. The evidence cannot sustain the element of prior
calculation and design for the conviction of aggravated
murder pursuant to Ohio revised code 2903.01(A).
2. The evidence is not sufficient to sustain the convictions.
3. The trial court denied appellant due process under the
fourteenth amendment due to the fact his conviction for
aggravated murder with specifications was against the
manifest weight of the evidence and the jury's verdict
was inconsistent with the evidence and testimony presented at
4. The trial court denied appellant due process under the
fourteenth amendment by allowing prejudicially irrelevant
evidence, denying appellant of a fair trial.
5. Appellant's right to the effective assistance of
counsel was violated when trial counsel failed to object to
jury instruction to appellant's prejudice, in violation
of U.S. Constitution, amendment VI and Ohio Constitution,
article I, section 10.
6. Appellant was denied his right to a fair trial when he was
shackled in front of the jury in violation of U.S.
Constitution amendment V, VI, VIII, IX, XIV and Ohio