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State v. Gordon

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 14, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-609261-A

          ATTORNEY FOR APPELLANT Joseph V. Pagano P.O.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Maxwell Martin Assistant County Prosecutor Justice Center.

          BEFORE: Blackmon, J., E.A. Gallagher, A.J., and Kilbane, J.



         {¶1} Neeko Gordon ("Gordon") appeals from his convictions for multiple offenses associated with the murder of Ricardo Nieves ("Nieves"). As Gordon states in his appellate brief, "There is no dispute that Ricardo Nieves died on August 25, 201[6] from a gunshot wound to the head. The issue in this case is who did it." Gordon assigns the following errors for our review:

I. Appellant's convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal.
II. The convictions were against the manifest weight of the evidence.
III. The trial court erred by admitting a jail call that was not properly authenticated and violated Evid.R. 401, 402 and 403 and deprived appellant of his constitutional rights to due process and a fair trial.
IV. The trial court erred by admitting a Facebook photograph that was not properly authenticated and violated Evid.R. 401, 402 and 403 and deprived appellant of his constitutional rights to due process and a fair trial.
V. The trial court erred by giving a flight instruction over appellant's objection and that was not supported by the record.
VI. The trial court erred and violated appellant's due process right to a fair trial by allowing Joe Butler to testify, over the defense's objection, that appellant carries a revolver and had been seen with it days before the shooting.

         {¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.

         I. Introduction

         {¶3} On August 25, 2016, Robert Holsey ("Holsey") agreed to purchase marijuana from Gordon. Holsey and Gordon knew each other from playing basketball at Trent Park. Nieves drove Holsey to the marijuana-purchase- meeting place on W. 38th Street in Cleveland. As Nieves and Holsey drove toward the meeting place, they saw Gordon, became suspicious, and started to drive away. Through the side mirror of the car, Holsey saw Gordon raise his arm with an object in his hand, then Holsey heard shots fired. Gordon ran away. Holsey realized Nieves had been shot. Holsey, who was in the passenger seat of the vehicle, ducked to avoid further gunfire and pressed the gas pedal with his hand. Holsey stopped the car at the next intersection, put Nieves in the back seat, and drove toward MetroHealth. Holsey got into an accident near the hospital, and called 911.

         {¶4} When the police arrived, Holsey told them that Nieves was shot by a man named "Neeko" who stays at a house on W. 41st Street. The police went to this house and found Gordon there. Holsey identified Gordon as the person who shot Nieves. Nieves later died from a gunshot wound to the neck and head.

         {¶5} On September 2, 2016, a grand jury indicted Gordon for aggravated murder, murder, attempted murder, three counts of felonious assault, discharging a firearm in a prohibited area, tampering with evidence, and having a weapon while under disability. On June 20, 2017, a jury acquitted Gordon of the aggravated murder and attempted murder charges and convicted him of all other counts. On June 29, 2017, the court sentenced Gordon to an aggregate prison term of 28 years to life. It is from these convictions that Gordon appeals.

         II. Trial Testimony

         Eyewitness Robert Holsey

         {¶6} Holsey testified that he and Nieves ran into Gordon at a convenient store on Fulton Road on August 25, 2016. Holsey knew Gordon because they had played basketball together in the neighborhood. Video surveillance footage from the convenient store was introduced into evidence. It showed Holsey, Nieves, and Gordon in the store and in the parking lot on the day in question. Gordon was wearing an orange shirt in the video, and he had a dark-colored shirt or towel slung over his shoulder.

         {¶7} Holsey arranged to buy marijuana from Gordon. Gordon said the marijuana was "stashed, " and they were to meet nearby on W. 38th Street. Nieves drove his white Toyota Corolla, with Holsey in the passenger seat, to the meeting place. As they were driving north on W. 38th Street toward Robert Avenue, they saw Gordon waving at them.

         {¶8} According to Holsey, "something odd came about." Holsey continued:

As we was coming closer, he kept going back toward the fence. * * * That's cool. But what didn't make sense is what the neighbors - he's an African American man and * * * there's Caucasian white people right there and they're just staring at him. And he's waving us towards the gate. That didn't make no sense. That was hot. As I mean hot that was too - that was too noisy policewise. The neighbors look like why is he there? That didn't make sense to us. So as we drove off, Neeko Gordon was come here, right here. I got it right here. It didn't make no sense at all.

As soon as we went * * * he fired two, three shots as he was running towards the car.

What I could see was him waving us towards the - trying to get us to exit the vehicle towards the car. We said no. There was people out there that was staring at him out the window like why is he right there and there was another guy on his porch looking him [sic] weird. We wasn't going to get out of the [sic] and do a drug deal and somebody call the police right there.
It was pure daylight. He was the only African American man by that fence and by that area and the rest were just two white guys and somebody staring out the window.

         {¶9} Asked what Gordon was wearing that day, Holsey replied, "Neeko Gordon was wearing an orange shirt. He had on like something on top of his shirt like he was holding like a towel because it was hot or a T-shirt because it was real hot." Holsey further testified that Gordon was wearing "black or bluish" sweatpants. Holsey testified that, from his "vantage point, " he did not see Gordon with a gun. Asked how he knew that Gordon fired the shot, Holsey testified as follows:

Because as I heard the first gunshot I looked back instantly and I could see through that side window right him going like this, his arm extended like this, orange T-shirt something still above his thing but there definitely was an object in his hand there should be no reason his arm was up pointed towards as soon as I looked through that side window right there and after the last shot I could see him run down.
He ran towards the main street. He seemed like he was just running. I'm sorry. It was a quick glance. It was fast because I wanted to duck from the bullet. But as soon as I looked through that side window was Neeko that guy right there with his arm up pointed forward just like that.
And I grabbed [Nieves] and I grabbed his head down so he wouldn't get hit but he was already dead. It was him. It was him. It was him.

         {¶10} Holsey testified that after he heard the first gunshot and noticed that Nieves was dead, he grabbed Nieves and "went down. I hit the gas pedal with my hand while grabbing [Nieves] and I'm steering and I just flew down the street. * * * I know I had to hit two or three cars but that's what I had to do. It was gunshots going." Holsey made it to the next street and "threw" Nieves in the back seat of the car. Holsey drove toward MetroHealth, but he rear-ended another car at the corner of W. 25th and Meyer Avenue. Holsey called 911. Holsey testified that Nieves was bleeding "uncontrollably" and ultimately Nieves was taken by ambulance to the hospital.

         {¶11} Holsey told the police that he knew where the person who shot Nieves was. "I know what house he at." Holsey testified that when he played basketball with Gordon, Gordon was "always in front of that house on 41st." Holsey told the police the shooter's name was "Neeko" and described his appearance, including "a tattoo that says 'Heaven' right here on his chest." The police drove Holsey to the house he identified at 3252 W. 41st Street. Gordon was there and the police brought him outside. Gordon had changed his pants and had no shirt on, but Holsey identified him as the person who shot Nieves.

         {¶12} On cross-examination, Holsey testified that he saw Gordon in the driver's side-view mirror "running towards the car with his arm extended, " although Holsey did not see Gordon with a gun. Defense counsel asked Holsey the following:

Q: Well, what did Neeko have in his hand every minute of this video that you just watched? What did he have in his hand the whole time he talked to you by that car? What did he have in his hand?
A: A phone.

         Officer Noel Hernandez

         {¶13} Cleveland police patrol officer Noel "Bo" Hernandez testified that on August 25, 2016, he responded to an emergency call of "a male shot * * * in the area of W. 38th and Clark." Officer Hernandez was rerouted to W. 25th Street and Meyer Avenue, where the shooting victim and the driver were involved in a motor vehicle accident. When officer Hernandez arrived at the scene, he saw a white car and Holsey "outside screaming for help. Screaming for my help and screaming for police help and yelling at us that his brother has been shot." According to Officer Hernandez, Holsey was "hysterical."

         {¶14} Holsey indicated that he knew who the shooter was, and he believed he knew where the shooter went - to a house on "41st and Storer." Officer Hernandez called his Lieutenant and got permission to bring Holsey to the house in question. Police officers knocked, and three black males opened the front door. All three males were shirtless. All three denied being in the area of the shooting. The police told the men they were "investigating a shooting that happened not too long ago." One officer also stated, "and this might be related to a possible homicide." Gordon responded, "So he died?"

         {¶15} The officers took Gordon outside for a cold stand. Officer Hernandez "heard [Holsey] scream that's him. That's the shooter. That's the guy who killed [Nieves]." The police arrested Gordon at this time.

         Detective Walter Emerick

         {¶16} Cleveland police detective Walter Emerick testified that he works for the crime scene investigation unit, and he performed a gunshot residue test on Gordon's hands while Gordon was outside on W. 41st Street, just over two hours after the shooting took place. Detective Emerick also recovered an "[o]range T-shirt out of the hamper within one of the bedrooms, " a black cell phone, and ".22 live rimfired rounds, " which are unfired bullets. On cross-examination, Det. Emerick testified that he did not "bag" Gordon's hands nor were Gordon's hands bagged at anytime that he was aware of.

         Detective David Borden

         {¶17} Cleveland police homicide Det. David Borden testified that he responded "to the intersection of W. 38th and Robert [Avenue] and we started to canvass the area for witnesses and other evidence that might be useful in this homicide investigation." Det. Borden spoke with Anthony Sobczyk, who lives one or two houses from where the shots were fired. Sobczyk gave the following description of the suspect: "black male, five-ten, five-eleven, medium build, wearing a red shirt and blue jeans and short hair." According to Det. Borden, Sobczyk informed him that the suspect used a revolver in the shooting and fired two shots. Det. Borden testified that the police did not find any shell casings on the scene. According to Det. Borden, "[r]evolvers do not eject casings"

         {¶18} Det. Borden testified that he interviewed Farmer Baker, who lives on the corner of W. 38th and Robert Avenue and saw "an individual running west on Roberts" wearing a red shirt.

         Forensic Scientist Lisa Przepyszny

         {¶19} Lisa Przepyszny testified that she is a forensic scientist in the trace evidence department of the Cuyahoga County Medical Examiner's Office. Przepyszny analyzed the gunshot residue test taken from Gordon's hands on August 25, 2016. She found "particles that were characteristic of * * * gunshot primer residue and that would indicate that either the individual fired a gun, was in close proximity to a fired gun, or handled an object that had gunshot residue on it"

         Deputy Medical Examiner Dr. Todd Barr

         {¶20} Dr. Todd Barr testified that he is a forensic pathologist who is serving as a deputy medical examiner in the Cuyahoga County Medical Examiner's Office. Dr. Barr performed Nieves's autopsy on August 26, 2016, and concluded that Nieves died from "a gunshot wound to the head and neck." In Dr. Barr's opinion, Nieves' wound "is most consistent with a distant gunshot wound [of] [g]reater than four feet." According to Dr. Barr, "the path of the projectile, it entered in the * * * left side in the back of the neck, back of the head, and basically went through the skin soft tissue muscles. * * * And then it travels through and fractures one of his neck bones, one of his vertebrae. * * * And then it comes out through the back of his mouth * * *." Dr. Barr determined that the manner of death was homicide.

         Eyewitness Anthony Sobczyk

         {¶21} Anthony Sobczyk testified that he lives at 3278 W. 38th Street in Cleveland, and on August 25, 2016, at about 4:30 p.m., he witnessed a shooting on his street. He was getting pizzas out of the passenger side of his car, which was parked on the street, when he saw a "[b]lack male, about 18, short, short hair, medium build" walking "suspiciously" down the street. Sobczyk testified that the person was wearing "I believe jeans and I think a bright shirt." According to Sobczyk, this person was suspicious because "in a matter of seconds he disappeared. * * * He crouched behind the fence."

         {¶22} Sobczyk's testimony continued: "Then I seen a white car coming down the street slowly. It wasn't racing or nothing. Stopped at the stop sign. Next thing I know the guy jumped up, went in the street, fired the shot, car took off, he took off, that was it." Sobczyk testified that he did not see anybody else on the street, and he only heard one shot. According to Sobczyk, the man was about 15 feet from the car when he fired the shot.

         Officer Jonathan Holub

         {¶23} Cleveland police officer Jonathan Holub testified that he is Officer Hernandez's partner, and he was driving their zone car on August 25, 2016, when they responded to the shooting in question. The officers first went to W. 38th and Clark, near where the shooting occurred, then went to W. 25th and Meyer, where Holsey and Nieves got into the car accident. Next, Officer Holub drove Officer Hernandez and Holsey, who was in the backseat, to "the area of W. 41st [and] the house where the suspect was."

         {¶24} After Gordon's arrest, Gordon is captured on Officer Holub's body camera talking to a relative through the police car window. This family member came outside from the house where the police found Gordon. After reviewing the video from his body camera, Officer Holub testified that Gordon said, "it's not enough. [T]hey don't got shit on me." Officer Holub further testified that Gordon "said he was alone" at the time of the incident.

         Eyewitness Letha Sanchez

         {¶25} Letha Sanchez testified that she was sitting on the front porch of a home located at W. 38th Street and Robert Avenue on August 25, 2016, when she heard gunshots. Sanchez hurried off the porch and saw "somebody go by with a red shirt and black pants on. And it looks like he was putting a gun in his pocket as he was running. * * * I just hurried up and * * * got in my car and left." Sanchez testified that she "was in a panic" and her observation "was real brief." Sanchez recalled that the person was "a black male, " but other than his clothing, she could not identify him. Sanchez did not recall seeing anybody else.

         Detective Thomas Lynch

         {¶26} Cleveland police Det. Thomas Lynch testified that he interviewed Gordon, who had been taken into custody at 3252 W. 41st Street. Gordon was in the back seat of a zone car and agreed to speak with Det. Lynch about "what was going on that day." Det. Lynch testified that Gordon said he was at his girlfriend's house, then he took the bus to W. 25th Street and Clark, "then made his way to the convenience store on Fulton, Fulton Beverage * * *." Gordon ran into Holsey, who "he knew from the neighborhood, I believe he said it was from playing basketball * * *." Gordon told Det. Lynch that he was wearing a white T-shirt when he saw Holsey. Gordon said he took the white T-shirt off at his aunt's house on W. 41st Street, "before the police arrived." Det. Lynch asked Gordon if he had a cell phone, and Gordon told him that he did not, because he smashed it after a fight with his girlfriend and threw it in a dumpster.

         {¶27} Det. Lynch testified that the police obtained permission from the owner of the house on W. 41st Street to "take a look around" for a gun. The police recovered Gordon's cell phone and "some bullets" from the owner of the house's bedroom. Additionally, they "recovered an orange shirt with a stain on the front of it" from a clothes hamper.

         {¶28} Det. Lynch interviewed Gordon again at the police station the next day. Gordon now told police that he had two cell phones, the one he smashed and the one found in the house on W. 41st Street. Additionally, when the police told Gordon that surveillance video from the day of the shooting showed him wearing an orange shirt - and not a white one, which is what he previously told the police - Gordon admitted that he had been wearing an orange shirt the day before. Gordon then gave the police "three basic stories as to what had occurred."

[T]he first time we asked him about what had happened he said that he was walking on West 38th Street when the car that he had talked to at the convenient store drove by him and he told us as the car drove by him, someone from behind him had shot at the car. * * *
The second story that he told was that as he got to the corner after leaving the store and walking across the street as he was at the corner, the car passed by him and he saw the male that he had talked to at the store like had his hand in the air like he was saying what's up and he - so he responded like what's up like this, raising his hand up in the air.
But he could not explain how Ricardo Nieves got shot.
And then the third way he explained what had happened - basically about three-quarters of the way into the interview he's like I'm going to tell you the truth.
And he * * * stated that as he was walking down West 38th Street the vehicle that he had encountered and spoke with Robert Holsey in at the convenience store came down the street and as this vehicle approached him, Robert Holsey was holding his hand in the air like he had a gun and that Neeko held his hand up in the air * * * like to scare him like he had a gun pointed in his direction and then Neeko heard a ...

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