Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Newett

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 23, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DARNELL NEWETT DEFENDANT-APPELLANT

         Cuyahoga County Court of Common Pleas Case No. CR-13-572437-A Application for Reopening Motion No. 504141

          FOR APPELLANT Darnell Newett, pro se.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Anthony Thomas Miranda Assistant County Prosecutor

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, J.

         {¶1} On February 1, 2017, the applicant, Darnell Newett, pursuant to App.R. 26(B), applied to reopen this court's judgment in State v. Newett, 8th Dist. Cuyahoga No. 103518, 2016-Ohio-7605, in which this court affirmed his convictions for aggravated murder, murder, felonious assault, aggravated robbery, aggravated burglary, kidnapping, and tampering with evidence. Newett argues that his appellate counsel should have argued (1) that the convictions for aggravated burglary and felonious assault should have merged as allied offenses, (2) that the convictions for aggravated robbery and aggravated burglary should have merged as allied offenses, (3) that the convictions for aggravated robbery and felonious assault should have merged as allied offenses, (4) that the appellate counsel should have argued manifest weight of the evidence better, and (5) that the trial judge improperly prohibited him from testifying at trial in violation of his constitutional rights. On February 15, 2017, the state of Ohio filed its brief in opposition. For the following reasons, this court denies the application.

         {¶2} On the afternoon of March 5, 2013, Rhonda Jackson's boyfriend discovered her murdered body in her apartment.[1] Her body had over 70 stab, slicing, or cutting wounds. Additionally, the medical examiner would testify that she had suffered blunt force injures and compression of the neck; all these wounds contributed to her death. Newett lived four apartments from Jackson; they would visit each other, and there was evidence that they took drugs together.

         {¶3} When the police began their investigation, they noticed that there were blood stains on both the inside and outside of Jackson's front door. They also discovered a pile of clothes in a nearby dumpster: a beige shirt, two wallets, a pair of black boots, a pair of jeans, a pair of black gloves, and a knife with a broken tip. It appeared that the boots, jeans, and shirt had blood stains. Subsequent forensic analysis indicated that the blood stains were consistent with a spatter-producing event and that the blood stains found on the jeans were consistent with kneeling in blood. The jeans also contained various cards in the front pocket. A Medicare card and a Humana prescription card were in the name of Darnell Newett, and an Ohio ID card and an RTA card were in the name of Darnell Newett, Sr. DNA from the interior of the boots was consistent with Newett, and the DNA from the stain on the exterior of the boot was consistent with Jackson. Similarly, DNA from the jeans interior was consistent with Newett, and DNA from the blood stain on the knee of the jeans was consistent with Jackson. One of the wallets, a grey one, showed Jackson as the main DNA contributor; Jackson's boyfriend also identified the wallet as Jackson's. Similar results were obtained from the gloves. There was also evidence that Jackson's wallet may have had as much as $850 in it on the day of the murder.

         {¶4} During trial, Newett's ex-wife testified that in the fall of 2016, Newett told her that his apartment had been broken into and that he thought Jackson had set him up. She further stated that Newett said he was going to "f**k Jackson up." Another neighbor testified that on the day of the murder, Newett had changed clothes.

         {¶5} Based on this evidence, the jury found Newett guilty of two counts of aggravated murder, murder, felonious assault, aggravated robbery, aggravated burglary, kidnapping, and tampering with evidence. At sentencing the judge considered the arguments as to which counts should merge as allied offenses. Defense counsel argued that all counts should merge. The judge ruled that all of the murder counts, felonious assault, and kidnapping counts should merge, but none of the others. The state selected aggravated murder for sentencing. The trial judge sentenced Newett to 25 years to life for aggravated murder, ten years each for aggravated robbery and aggravated burglary, and three years for tampering with evidence. The sentences for aggravated robbery, aggravated burglary, and tampering with evidence were to be served concurrently with each other, but consecutively to the sentence for aggravated murder, for a total of 35 years to life.

         {¶6} Newett's appellate counsel argued that the paucity of evidence meant that there was insufficient evidence to convict Newett of aggravated murder (R.C. 2903.01(A) - prior calculation and design) because there was no evidence of prior calculation and design, rather than in the heat of the moment. He noted instantaneous deliberation does not constitute prior calculation and design. The multiple wounds indicated rage, not cold-blooded murder. Moreover, the ex-wife's testimony was problematic because she made inconsistent statements and the threat was made at least three months before the murder.

         {¶7} In the second assignment of error, appellate counsel argued that there was insufficient evidence to convict Newett of aggravated murder under R.C. 2903.02(B) -during a robbery, because there was no definitive evidence that Jackson still had the $850 she might have had on her or that Newett had taken the $850. The only evidence of theft was that Jackson's wallet was found in the dumpster. As a corollary, if there was insufficient evidence to prove aggravated murder under R.C. 2903.03(B), then there would also be insufficient evidence to prove aggravated robbery.

         {¶8} Finally, appellate counsel argued manifest weight: the incriminating evidence was the forensic evidence. However, the excess number of police officers investigating the crime scene contaminated and compromised the forensic evidence, leaving it unreliable.

         {¶9} Now, Newett argues that his appellate counsel was ineffective because, inter alia, he should have argued that the lesser counts should have merged into each other. In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

         {¶10} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney's work must be highly deferential. The court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.