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State v. Shine

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 17, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DOUGLAS C. SHINE, JR. DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-606156-A

          ATTORNEYS FOR APPELLANT Edward M. Heindel, John B. Gibbons

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Amy Venesile Christopher D. Schroeder Assistant County Prosecutors

          BEFORE: Per Curiam

          JOURNAL ENTRY AND OPINION

          PER CURIAM

         {¶1} Appellant Douglas C. Shine, Jr. ("appellant") appeals from his convictions for multiple counts of aggravated murder, murder, felonious assault, and other offenses in connection with four shootings. Appellant assigns 21 errors for our review.[1] Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.

         {¶2} Following a shooting at East 149th Street on January 24, 2015, appellant was indicted in Cuyahoga C.P. No. CR-15-595119 for felonious assault against Walter Barfield ("Barfield"), John Harvell ("Harvell"), and Dominique Westbrook ("Westbrook"), discharge of a firearm near prohibited premises, and having a weapon while under disability.

         {¶3} Appellant was also indicted in Cuyahoga C.P. No. CR-16-606156A in connection with additional shootings. One subset of charges pertained to the January 20, 2015 attempted murder of Stefon Robinson ("Robinson"), and charged appellant with attempted murder, two counts of felonious assault, improperly discharging a weapon into a habitation, and having a weapon while under disability. A second subset of charges pertained to a January 22, 2015 shooting outside John Adams High School, and charged appellant with attempted murder, felonious assault, improperly discharging a weapon, and having a weapon while under disability.[2]A third subset of charges arose in connection with the February 5, 2015 shooting at Chalk Linez Barbershop in Warrensville Heights in which Barfield, Brandon White-Ladson ("Brandon"), and William Gonzalez ("Gonzalez") were killed, and three others were wounded. This group of charges set forth six counts of aggravated murder, aggravated burglary, three counts of murder, three counts of attempted aggravated murder, 20 charges of felonious assault, and having a weapon while under disability. The fourth subset of charges pertained to the June 4, 2015 fatal shooting of Aaron Ladson ("Ladson"), a witness to the barbershop shooting. This group of charges alleged aggravated murder, conspiracy to commit aggravated murder, and two counts of felonious assault. The indictment also set forth multiple one-year and three-year firearm specifications, gang specifications, notice of prior conviction (from a 2012 aggravated burglary) and repeat violent offender specifications.

          {¶4} Appellant pled not guilty to all charges. The state moved to join the two indictments, arguing that the January 24, 2015 and February 5, 2015 shootings were both directed at Barfield, and involved the same weapon, and the June shooting was to prevent Ladson from testifying regarding the February 5, 2015 shooting. The court granted the motion for joinder, and all charges proceeded to a jury trial under CR-16-606156-A. The trial court held a voir dire hearing on the admissibility of various eyewitness testimony and a statement Ladson gave to the police several months before his death. The court denied a defense motion to suppress this evidence. The counts of having weapons while under disability were tried to the court, and the remaining charges were tried to a jury.

         The January 20, 2015 Shooting

         {¶5} The state's evidence indicated that the Loyal Always gang operates in the area of the Lenacrave Avenue and Angelus Avenue in Cleveland. According to the state's evidence, it engages in criminal activity and its members included Robinson, Barfield, Lamar Sears ("Sears"), and Jesus Bey ("Bey"). Appellant was a member of a different criminal gang, the Heartless Felons.

         {¶6} On January 20, 2015, police responded to a shooting and found Robinson, who had been shot 12 times, in front of his grandmother's home on Angelus Avenue. Robinson survived that shooting and refused to identify his assailant.

         {¶7} Bey, who was incarcerated in the county jail when Robinson was shot, telephoned appellant and accused him of the shooting. In this tape recorded phone call, appellant stated that "Ching [Robinson] know what he did * * * he * * * tried to get up on me, " and was also armed.

         The January 24, 2015 Shooting at East 149th Street

         {¶8} On January 24, 2015, Westbrook and Harvell were parked near the address of 3597 East 149th Street. They saw a man get out of a car, then heard gunshots. Westbrook reported the incident to police. Three bullet holes were in her car. Police recovered 39 spent 9 mm shell casings from the area. Ballistic examination linked 14 of the casings to a Luger handgun and 25 were either from a Glock, Smith & Wesson Sigma, or Springfield Armory pistol. Four .45-caliber shell casings were recovered from the porch of the house. Cell phone tower information indicated that appellant's and Barfield's cell phones were in the general vicinity during the time of the shooting.

         The February 5, 2015 Shooting at Chalk Linez Barbershop

         {¶9} At approximately 7:30 p.m., a man armed with two handguns entered the Chalk Linez Barbershop in Warrensville Heights. The man, who was wearing a black-hooded sweatshirt, shot 23-year-old Barfield approximately 20 times, killing him. The assailant also shot and killed 31-year-old Brandon and 32-year-old Gonzalez, one of the shop's owners. Whitney Clay, an employee, was shot once in the arm and survived. Customers Sears and Christopher Perkins ("Perkins") were shot multiple times and also survived their injuries.

         {¶10} Cell phone evidence placed appellant in the vicinity of the barbershop. Cosmetologist Jasmine Evans was certain that appellant was the assailant, and she identified him in a photo array and again in court. Christopher Perkins was also certain that appellant was the assailant, likewise identifying him in a photo array and again in court.

         {¶11} Immediately after the shooting, barber Alvin Wright told police that the assailant was a "tall, light skinned guy, bushy eyebrows with a little goatee." Wright fled the city but later met with police secretly to provide them with an Instagram photo of appellant. Wright was certain that the photo he provided depicted the assailant.

         {¶12} Sears also identified appellant as the assailant. However, he admitted that his testimony was provided in exchange for "promises" made by the state regarding Sears's pending drug charges, and that he hoped to receive probation in that case. Barbershop employee Jameel Bell also identified appellant as the shooter with certainty, but he equivocated on some details of his description of the assailant. Whitney Clay observed that the shooter had a teardrop tattoo. She identified appellant in a photo array, but was unable to make an in-court identification.

         {¶13} Other individuals who were in the barbershop at the time of the shooting were unable to identify the assailant.

         {¶14} Several days after the barbershop shooting, Ladson spoke with Warrensville Heights police and made a written statement identifying appellant as the assailant. Warrensville Heights Police Detective Parris Johnson ("Det. Johnson") also conducted a videotaped interview of Ladson. According to Ladson's statements, Ladson, Barfield, and Sears went to the barbershop and waited for haircuts. Ladson, who was under indictment for drug charges, left to meet with his lawyer. When he returned, he sat in his car that was parked outside the barbershop and spoke with his wife on his cell phone. He observed appellant enter the barbershop. A short time later, Ladson saw appellant exit with guns in each hand. Appellant aimed his weapons at Ladson and repeatedly told Ladson that he had spared his life, before fleeing the scene. Ladson left the barbershop but returned a short time later to find out what had happened to his brother, Brandon.

         {¶15} Ladson went to SouthPointe Hospital to check on his brother. While at the hospital with his wife Shirley, Ladson received a call from appellant. In this call, which was overheard by Shirley, Ladson accused appellant of killing his brother. Approximately an hour later, according to both Shirley's testimony and Ladson's statement to police, appellant called Ladson again and said, "[W]hy [are] you saying my name? I'm going to kill you."

         {¶16} A total of 35 shots were fired in the barbershop shooting. Ten shell casings from the crime scene were from a .40-caliber a Glock, Smith & Wesson or Springfield Armory pistol, and 25 were from a 9 mm Luger. This was the same Luger that was used during the January 24, 2015 shooting. Additionally, a .45-caliber Rock Island Armory handgun was found tucked into Barfield's waistband, and this weapon was also linked to the January 24, 2015 shooting.

         {¶17} Cuyahoga County Regional Forensic Science Laboratory Forensic Scientist Carey Baucher ("Baucher") testified that appellant was the major contributor of DNA found on five Luger shell casings recovered from the barbershop. A minor contributor was also present "at a very low level" but this contributor was deemed inconclusive to insufficient information. Baucher also opined that the DNA was present though primary transfer, or actually touching the casings.

         The June 4, 2015 Shooting

         {¶18} Appellant was arrested and incarcerated approximately one week after the barbershop shootings. Ladson went to stay with his grandmother on Harvard Avenue. In recorded phone calls from the Cuyahoga County Jail, appellant asked his brother, Kevin McKinney ("McKinney") if "Pudge, " a.k.a. Ladson, made a statement about him. McKinney asked, "His statement got you charged, right?" Appellant responded affirmatively, and instructed McKinney to have a family member print out the discovery in his case. A short time later, McKinney's girlfriend purchased a Pure Talk flip phone, and left it at McKinney's house.

          {¶19} While at the Justice Center in connection with pending drug cases, Ladson and Shirley ran into McKinney. According to Shirley, McKinney called Ladson "a snitch ass bitch." On May 13, 2015, Lawrence Kennedy ("Kennedy"), a friend of appellant's texted, "Text me da address" to the Pure Talk flip phone left with McKinney. In response, Kennedy received the address of Ladson's grandmother on Harvard Avenue.

         {¶20} On June 3, 2015, appellant called McKinney from jail and McKinney said that he hoped he would have some "good news" for appellant when he visited him later. That evening, there was a home invasion approximately five houses away from where Ladson was staying, and the assailants were looking for "Pug."

         {¶21} On the morning of June 4, 2015, Ladson was gunned down in the driveway of his grandmother's home. Police chased a suspect but did not catch him.

         {¶22} The gang impact unit of the Cleveland Police, working together with the Sheriffs Office, set up surveillance equipment to record appellant's statements during the planned visit with McKinney. During this conversation, appellant told McKinney to deny any knowledge of the phone number that communicated with Kennedy.

         {¶23} Kennedy was subsequently shot and killed on June 7, 2015. His cell phone was taken into evidence, and police obtained text messages from the phone. Approximately two weeks before Ladson's murder, Kennedy texted "what is da address?" The response provided Ladson's grandmother's address. On the day of the murder, Kennedy also texted "Checkmate" to the Pure Talk phone. After an inquiry as to whether it was "done, " Kennedy responded affirmatively and received word back to get rid of his phone and that he would receive a new one. Kennedy also texted that he was being chased by police. Police determined that Kennedy's phone was in the vicinity of both the Harvard Avenue home invasion and the murder of Ladson.

         {¶24} The defense moved for a judgment of acquittal that was denied in its entirety. Appellant presented expert testimony from Dr. Harvey Shulman ("Dr. Shulman") who was qualified as an expert in the field of eyewitness testimony. According to Dr. Shulman, identification of an armed assailant may be rendered unreliable where "weapons focus" impairs perception. Poor visibility, loud noises, and little time to process also impair the process of encoding a memory. Further, misidentification may occur from viewing an image depicted in the news, or in a line-up, as "post-event distortion" that causes new information to taint the witness's memory. Misidentification may also occur even where the witness has some familiarity with the suspect, but erroneously recalls where and when they actually saw the individual. Finally, Dr. Shulman testified that a witness's apparent confidence level in the identification does not necessarily reflect accuracy.

         {¶25} Appellant was acquitted of all charges pertaining to the January 22, 2015 shooting, two felonious assault charges, and several specifications. He was convicted of all remaining charges. The jury recommended that appellant receive the death penalty, but the trial court sentenced him to four consecutive life sentences without the possibility of parole, plus 380 years for the other offenses.

         I. Joinder

         {¶26} In the first assigned error, appellant argues that the trial court committed prejudicial error in granting the state's motion for joinder of the two indictments for trial. He asserts that the charges were too numerous, too complicated, too unrelated in time, and presented too high a risk of prejudice to be tried together. In opposition, the state argues that the ruling was proper because the events were interconnected and part of a common course of conduct involving related shootings.

          {¶27} We review a trial court's decision on joinder for an abuse of discretion. State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 90 (8th Dist); State v. Banks, 2015-Ohio-5413, 56 N.E.3d 289, ¶ 64 (8th Dist).

         {¶28} Under Crim.R. 8(A), indictments may be joined if they "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"

         {¶29} Ohio law "'favors joining multiple offenses in a single trial'" if the requirements for joinder under Crim.R. 8(A) are met. Nitsche at ¶ 85, quoting State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 59. "Joinder is 'liberally permitted' to preserve the public fisc, conserve judicial resources, reduce the opportunity for inconsistent results in successive trials and diminish inconvenience to witnesses." Nitsche, quoting State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992).

         {¶30} However, if it appears that a defendant is prejudiced by joinder, the trial court may grant a severance under Crim.R. 14. A defendant seeking severance must "'furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant's right to a fair trial.'" State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166, quoting State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981).

         {¶31} The state may rebut the defendant's argument by showing: (1) there is no prejudice to the defendant from joinder because, in separate trials, the state could introduce evidence of the joined offenses as "other acts" under Evid.R. 404(B); or (2) the evidence of each crime joined at trial is "simple and direct" so it is unlikely that the jury could confuse the evidence pertaining to each of the offenses. Dean at ¶ 61; Nitsche at ¶ 89.

         {¶32} Here, the offenses were alleged to be connected transactions that were parts of a common scheme or plan and part of a course of criminal conduct with a shared purpose, or scheme, and occurred over a short time, as contemplated by Crim.R. 8. The offenses alleged in both Case Nos. CR-15-595119 and CR-16-606156 involved Barfield and appellant. According to the state's evidence, each shooting explained and motivated the next. The state maintained that appellant set out to shoot Barfield, shot at him on January 24, 2015, killed him and others on February 5, 2015, then killed an eyewitness on June 4, 2015. In addition, the aggravated murder charges in Case No. CR-16-606156 set forth a course of conduct specification. Evidence in both matters included statements made by appellant and McKinney and weapons possessed by appellant and Barfield. Under Evid.R. 404(B), evidence from other shootings would have been admissible to prove appellant's identity as the shooter, as well as his plan and preparation. Therefore, there was no prejudice from the joinder. The evidence going to each crime was also simple and direct. It was unlikely that the jury would have confused the evidence pertaining to each offense, and the jury was able to consider each charge separately, because appellant was acquitted of the charges related to the January 22, 2015 shooting. Therefore, appellant was not denied his right to a fair trial.

         {¶33} In accordance with the foregoing, we find no abuse of discretion, and the first assigned error is without merit.

         II. Motion for Mistrial Related to Comment Directed Toward a Juror

         {¶34} In the second assigned error, appellant asserts that the trial court erred in denying his motion for a mistrial in connection with a statement made to a juror's daughter at the juror's granddaughter's school, which was later brought to the attention of other jurors. In opposition, the state argues that the trial court questioned the jurors about this issue and did not err.

         {¶35} "In cases involving outside influences on jurors, trial courts are granted broad discretion in * * * determining whether to declare a mistrial." State v. Herring, 94 Ohio St.3d 246, 259, 2002-Ohio-796, 762 N.E.2d 940, quoting State v. Phillips, 74 Ohio St.3d 72, 89, 656 N.E.2d 643 (1995).

         {¶36} The complaining party must show actual prejudice, i.e., he must show that the communication biased one or more jurors. Id., citing Crim.R. 33(A), and State v. Keith, 79 Ohio St.3d 514, 526-527, 1997-Ohio-367, 684 N.E.2d 47. A trial court may rely upon a juror's testimony as a basis for finding that his or her impartiality was not affected. Herring.

         {¶37} In Herring, a juror received a disturbing phone call during the course of the trial and discussed it with several other jurors. The court conducted a hearing pursuant to Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), to ascertain the impact upon the jurors and determine whether their partiality was affected by the incident. The jurors testified that the incident would not affect his or her verdict. The court determined that the call did not impact the jurors' impartiality, and the Supreme Court affirmed. The court concluded that the trial court could rely upon the jurors' testimony, and did not abuse its discretion in denying the defendant's motion for a mistrial.

         {¶38} Here, juror No.1 indicated that during the presentation of the state's case, a woman approached her daughter at her granddaughter's school, requesting that the juror "go easy on her play son." The juror's daughter said that she could not discuss the incident, but the woman continued and "kept going on and said, 'it only takes one of them' to get him off.'" Before informing the court, juror No. 1 asked other jurors what to do. She did not want to speak in front of appellant and was fearful of remaining on the jury. The trial court permitted the attorneys to question juror No.1, then excused her.

         {¶39} The court held a Remmer hearing in open court during which the incident was raised with the entire panel. Each of the other jurors and alternate jurors were individually voir dired under oath about the incident. During this individual questioning, the jurors were all questioned by the court and the attorneys about their awareness of the incident, whether they could remain impartial, and whether they could proceed without being influenced by the contact directed toward juror No.1. Each of the jurors spoke. Some candidly told the judge that they had gotten "anxious, " "worried, " "concerned, " or "paranoid" due to the incident, but others either knew little of the incident or experienced no impact from it. One alternate juror thought the comment came from an individual affiliated with appellant. However, the jurors ultimately indicated that they could remain on the panel, would be impartial, and follow the law during their deliberations.

         {¶40} Following the voir dire, the court provided the attorneys with an opportunity to argue the matter. After that, the court instructed the jury as a group that appellant was presumed innocent and that the burden of proof remained with the state. At that point, the court asked each of the jurors whether they could disregard the incident, proceed without bias, and decide the case solely upon the evidence. Finally, the court gave the jury a cautionary instruction to disregard any "discussion, observation, perception" about the incident as well as any "inherent bias, " and "directed and ordered [them] to decide this case * * * based solely upon the evidence."

         {¶41} From all of the foregoing, the record demonstrates that the trial court did not err insofar as it determined that the contact would not impair the jurors' abilities to perform their duties, and did not err in denying the motion for a mistrial.

         III. Motion for Mistrial Related to Comment from Witness

         {¶42} Appellant next argues that the trial court erred in refusing to grant a mistrial after Perkins stated during his direct examination that "The Terminator" approached him and told him to "change his testimony." Appellant asserts that he was not informed of this contact prior to trial. In opposition, the state argues that this information is referred to in appellant's August 19, 2016 telephone call from appellant to "Wayne." In the call, appellant issues instructions that "The Terminator" should inform Perkins that Kennedy was the person who committed the barbershop shooting. The state also states that it orally informed the defense of the contact, a claim the defense denies.

         {¶43} The granting or denial of a motion for mistrial rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937 (2001), citing State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987).

         {¶44} Under Crim.R. 33, a new trial may be granted on the grounds of, inter alia, "irregularity in the proceedings" that deprived the defense of a fair trial, or surprise that materially affected his substantial rights.

         {¶45} A new trial may also be warranted under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where there has been a due process violation due to suppression of evidence favorable to an accused where the evidence is material either to guilt or to punishment. State v. Brown, 186 Ohio App.3d 309, 2010-Ohio-405, 927 N.E.2d 1133, ¶ 35 (7th Dist). Brady evidence includes evidence bearing on the credibility of the state's witnesses. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, such evidence "shall be deemed material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the syllabus. The defendant carries the burden to prove a Brady violation rising to the level of a denial of due process. State v. Glover, 2016-Ohio-2833, 64 N.E.3d 442, ¶ 35 (8th Dist), citing State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶ 42, and Iacona at 92.

         {¶46} In this matter, the taped jail discussions indicate that appellant instructed that "The Terminator" contact Perkins and explain that Kennedy was the barbershop shooter. This discovery was provided to the defense. Later, during his testimony at trial, Perkins stated that "The Terminator" did in fact speak with him about changing his testimony. The defense complained that it did not know that contact actually occurred after the phone call. The state explained that Perkins revealed this information to them shortly before trial and they orally informed the defense, but there was no police report documenting this contact. The defense denied that they were informed of the contact, and the trial court offered the defense additional time to prepare and also offered to provide a curative instruction. The defense declined both offers. The court subsequently permitted the defense to voir dire Perkins outside the presence of the jury. Perkins identified "The Terminator" as his friend Lavelle Ramsey and further explained that Ramsey did not want anything to do with the matter and stated that Perkins should not change his testimony. The defense cross-examined Perkins the following day.

         {¶47} Our review of the record indicates that the trial court properly denied the motion for a mistrial. Although there was some dispute as to whether the state informed the defense that "The Terminator" actually contacted Perkins, the record demonstrates that the contact was discussed in jail calls that were provided to the defense. Moreover, we do not find the testimony regarding the contact from "The Terminator" to undermine the outcome of the trial, because Perkins later clarified that Ramsey is his best friend, and that Ramsey did not wish to be involved and did not care about the matter. Overall, there is no reasonable probability that the disputed information would have made the difference between conviction and acquittal in this case.

         {¶48} In accordance with all of the foregoing, we conclude that the trial court did not err in denying the motion for a mistrial. This assigned error is without merit.

         IV. Admission of Ladson's Statement to Police

         V. Statement from Ladson's Tablet

         {¶49} In his fourth assigned error, appellant argues that the trial court erroneously admitted evidence of Ladson's statements to police, which contained appellant's alleged remark, "I spared you." He argues that the ruling was erroneous under Evid.R. 804(B)(6), that it deprived him of his right of confrontation, and that it was not admissible under the doctrine of forfeiture by wrongdoing.

         {¶50} In his fifth assigned error, appellant argues that the trial court erred in permitting Shirley Ladson to read a statement she discovered on Ladson's tablet that identified appellant as the barbershop shooter and also expressed Ladson's fear and sadness over losing his brother. Appellant argues that the letter is inadmissible hearsay and was not admissible under Evid.R. 403(B).

         {¶51} In opposition to both arguments, the state maintains that the evidence did not violate the confrontation clause and was admissible under the rules of evidence.

         A. Confrontation Clause

         {¶52} As to Ladson's statements to police, we apply the de novo standard of review to evidentiary rulings involving the Confrontation Clause. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97.

         {¶53} The Sixth Amendment to the United States Constitution guarantees an accused the right "to be confronted with the witnesses against him." In general, it is a violation of the Confrontation Clause to admit "testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, Crawford explicitly held that confrontation claims are extinguished on equitable grounds where the accused's own misconduct is responsible for a witness's unavailability. Id. at 82. See also Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 105. This exception is purely equitable and does not purport to be an alternative means of determining the reliability of the statement. Crawford.

         {¶54} In Hand, this equitable exception to the Confrontation Clause was applied to permit numerous statements from a decedent regarding his anticipated receipt of money, and his plan to "take someone out" for defendant. After making this plan, the decedent was killed by the defendant "for the purpose of preventing his testimony as a witness." The court held that the statements were admissible, stating:

The trial court's preliminary determination that Welch's statements were admissible included a finding that Hand killed Welch to eliminate him as a potential witness. Indeed, Hand admitted to Grimes that he killed Welch to achieve that purpose (i.e., prevent him from being a witness against him). Thus, Hand forfeited his right to confront Welch because his own misconduct caused Welch's unavailability. See United States v. Garcia-Meza (C.A.6, 2005), 403 F.3d 364, 369-370 (defendant forfeited his right to confront his wife because his wrongdoing, i.e., his murder of her was responsible for her unavailability).

Id. . at ¶ 106.

         {¶55} Similarly, in this matter, the court heard evidence that Ladson was parked outside the barbershop and the shooter stopped near his car before fleeing. Shortly after the shooting, appellant called Ladson and threatened to kill him for "saying his name" as the suspect. As appellant sought additional information from McKinney about the witness against him, McKinney stated that it was Ladson and also provided Kennedy with Ladson's whereabouts. In a home invasion a few houses away from Ladson's grandmother's residence, the assailants asked for "Pug." The next morning, Ladson was gunned down in the driveway of the address provided to Kennedy.

         {¶56} From all of the foregoing, the trial court properly ruled that Ladson's statements, including that appellant said "I spared you, " as he fled the barbershop were admissible. Appellant forfeited his right to confront Ladson because his own misconduct was designed to cause, and did cause, Ladson's unavailability.

         B. ...


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