Searching over 5,500,000 cases.

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. Robertson

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 26, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-612274-A

          ATTORNEY FOR APPELLANT Russell S. Bensing.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor, Shannon Raley, Brandon A. Piteo Assistant Prosecuting Attorneys

          BEFORE: E.A. Gallagher, A.J., E.T. Gallagher, J., and Keough, J.



         {¶1} Defendant-appellant Herbert Robertson appeals his convictions for felonious assault following a bench trial. Robertson contends that (1) the trial court erred in admitting hearsay testimony by the investigating detective regarding statements the victim made to him, and (2) his convictions are against the manifest weight of the evidence. For the reasons that follow, we affirm the trial court's decision.

         Factual and Procedural Background

         {¶2} On December 22, 2016, a Cuyahoga County Grand Jury indicted Robertson on two counts of felonious assault (with one-year and three-year firearm specifications) and one count of having weapons while under disability in connection with the November 23, 2016 shooting of David Talley. Robertson waived his right to a jury trial and the case was tried to the bench.

         {¶3} Talley, Cleveland patrol officer Carmen Messina and the detective who investigated the incident, Cleveland police detective Aaron Reese, testified on behalf of the state.

         {¶4} Talley testified that during the early morning of November 23, 2016, while he was driving to a bar on St. Clair Avenue, he stopped for a red traffic signal at the intersection of East 55th Street and Quincy Avenue in Cleveland. While waiting at the light, he looked "down for a second" at his phone. When he looked up, he saw a tan Ford Explorer "shoot around me, like almost ahead of me" and that the driver began shooting at him. Talley identified Robertson -whom he knew as "Too Too" - as the shooter. Talley testified that he saw Robertson "on the passenger side of me," driving the Explorer from which the shots originated, "[l]ike right before they started." Talley testified that Robertson had a gun in his hand and that when he looked over towards him, the shots "started coming." Talley could not state whether the gun he saw was a revolver or semi-automatic. Talley testified that when the shooting started, he "balled up," then drove away and "never looked back." Talley was shot five times - four times in his right arm and once in the right side of his abdomen. Talley testified that he did not see anyone else in the Explorer at the time of the shooting.

         {¶5} Talley identified his car in police photographs taken after the incident, showing multiple bullet holes in the passenger-side doors and windows. He testified that his car had had no bullet holes prior to the incident. Talley did not see whether any shell casings had been expelled from the gun when it was fired.

         {¶6} Talley testified that after he left the scene, he drove several blocks north to the intersection of East 55th Street and Euclid Avenue. He flagged down two Cleveland police officers and told them he had been shot. Talley testified that he passed out and woke up in the hospital, where he again spoke with police.

         {¶7} Officer Messina testified that he and his field training officer were in a zone car, stopped at a red traffic light at the intersection of Euclid Avenue and East 55th Street, when Talley pulled up alongside them in his vehicle, screaming that he had been shot and asking for help. As the officers got out of their vehicle to assist him, Talley opened the driver's door of his vehicle and fell out of the vehicle onto the ground, "writhing in pain." Officer Messina testified that Talley had "quite a few wounds" to his right arm and a wound in his right abdomen area that was "bleeding profusely." The officers requested EMS assistance and began to administer first aid. Officer Messina testified that they asked Talley where and when the shooting had occurred and that he responded that it had "just happened" at the intersection of East 55 Street and Quincy Avenue. EMS arrived approximately ten minutes later and transported Talley to MetroHealth hospital.

         {¶8} After EMS arrived, the officers inspected Talley's vehicle from the outside to see if they could see a weapon, bullet fragments or other evidence to corroborate Talley's claims. Officer Messina testified that he observed that "the vehicle had been shot up quite a few times" with numerous bullet holes in the passenger side doors and windows but that he saw little else.

         {¶9} Officer Messina and his field officer interviewed Talley at the hospital. Officer Messina testified that Talley "seemed very upset," "very much in pain" and "very shut down[, ] [l]ike he didn't want to talk." He testified that when the officers "finally got him to open up and talk," he "shied away * * * like he was scared." Messina testified that Talley told the officers that he was shot while he was sitting in his vehicle after a tan Ford Explorer pulled up alongside the passenger side of his vehicle at the corner of East 55th Street and Quincy Avenue. He said that the driver of the vehicle was shooting at him and that he knew him only as "Too Too."

         {¶10} Detective Reese, the Cleveland police detective assigned to investigate the case, was the state's final witness. He testified that, as part of his investigation, he visited both the intersections of East 55th Street and Quincy Avenue and East 55th Street and Euclid Avenue. The detective indicated that he found no surveillance footage or any broken glass, spent shell casings, bullets or other physical evidence at either location. Detective Reese testified that, due to Talley's injuries, he was not able to speak with Talley immediately, but "followed up" and interviewed him "seven or eight days later" at Talley's sister's house. The detective testified that, during the interview, Talley "reiterated what he had told the responding officers," identifying the shooter as "Too Too," told the detective the "background story" involving Too Too and provided the detective with a photograph of Too Too.

         {¶11} As to the "background story" involving Too Too, the detective testified that Talley told him that he had first met Too Too when they were both incarcerated at Big Sandy, a federal correctional facility. Talley told the detective that Too Too told him he had been hired to kill Talley. The detective testified that Talley also told him that, a month before the shooting, he ran into Too Too at a plaza on East 79th Street. After Too Too showed Talley a firearm with an extended magazine, Talley felt "so unsafe" that he went inside a nearby cell phone store "to be sure that if anything happened to him, that it would be captured on surveillance video inside the store."

         {¶12} After interviewing Talley, the detective spoke with the owner of the cell phone store Talley had mentioned. The owner indicated that he recalled Talley "being there" but that no surveillance video was available.

         {¶13} Detective Reese testified that he learned the identity of Too Too after reaching out to several contacts he had at the federal probation department. He gave his contacts the relevant incarceration dates and asked if they knew anyone with the nickname "Too Too." These contacts provided the detective with Robertson's name and information. The detective reviewed Robertson's information, looked at photographs of him, compared them to the photograph he had received from Talley and determined that Too Too and Robertson were, in fact, the same person.

         {¶14} Robertson was arrested, and Detective Reese interviewed him as well. The state introduced a video recording of the interview into evidence.[1] During the interview, Robertson confirmed that his nickname was "Too Too," that he knew Talley as "Hot Boy" and that he knew Talley's brother. Robertson denied any involvement in Talley's shooting but stated that he went to the hospital after Talley had been shot. Robertson also stated that he ...

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.