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State v. Williams

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
MARQUEZ A. WILLIAMS, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-618543-B

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brian Kraft, Assistant Prosecuting Attorney, for appellee.

          Thomas A Rein, for appellant.



         {¶ 1} Defendant-appellant Marquez Williams appeals his convictions for the death of Elante Johnson ("Johnson"). We affirm.


         {¶ 2} On April 9, 2017, at approximately 3:00 p.m. on a sunny Sunday afternoon, customers were buying gasoline and patronizing the market at the Speedy Grub Hub food market and gas station ("Speedy") on Broadway Avenue in Cleveland's Slavic Village neighborhood. Twenty-one-year-old Johnson was walking out of the market toward Broadway Avenue when a male jogged across the street and, when he was just a few feet from Johnson, pulled out a gun and fired.

         {¶ 3} Johnson turned and attempted to retrieve his weapon as he began running in the opposite direction. The gunman followed Johnson behind Speedy to the next block and shot Johnson again. Johnson fell in the street and, as he attempted to scoot backwards away from the shooter, the shooter walked over to Johnson and shot him three times at point-blank range.

         {¶ 4} The shooter, followed by a second male who was talking on a cell phone, began walking down the street. They were promptly picked up by a blue Chevrolet Impala with distinctive black wheels and left the scene as two officers arrived to attend to Johnson.

         {¶5} Johnson suffered five gunshot wounds that resulted in his death. Williams was indicted on June 24, 2017, three days after the indictment of Williams's cousin and codefendant Damon Chapman, Jr.[1] ("Chapman"), the male who was picked up by the Impala along with the shooter. Williams was charged as a participant in Johnson's shooting, as the driver of the Impala.

         {¶ 6} On April 11, 2018, the trial court granted Williams's motion to sever the trials of Williams and Chapman and the trial commenced the same date. At the close of the evidence, Williams moved for judgment of acquittal pursuant to Crim.R. 29 on all counts. The prosecution voluntarily withdrew the gang activity specifications. The trial court denied the motion on the remaining counts as well as the renewed motion for acquittal presented shortly thereafter.

         {¶ 7} The trial court instructed the jury on aiding and abetting and complicity. Williams was convicted of aggravated murder, murder, two counts of felonious assault and discharge of a firearm in or near prohibited premises. Each count carried one- and three-year firearm specifications.

         {¶ 8} The state requested that the murder and felonious assault charges merge into the aggravated murder conviction for sentencing, and requested a separate sentence for discharge of a firearm in or near prohibited premises. Williams was sentenced to 20 years to life on the aggravated murder charge; three-years on the discharge of a firearm charge to run concurrent with the aggravated murder; and consecutive terms of three years each for two firearm specifications to be served prior to the primary sentence, for a total of 26 years to life with a possibility of parole after 26 years, and a mandatory five-year period of postrelease control.

         {¶ 9} Williams appeals the convictions.


         {¶ 10} Williams proffers seven assigned errors for our review:

I. The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29(A), on the charges, and thereafter entering a judgment of conviction of that offense as those charges were not supported by sufficient evidence, in violation of defendant's right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution.
II. Appellant's convictions are against the manifest weight of the evidence.
III. Appellant was denied a fair trial by the homicide detective's improper comments and conclusions while testifying.
IV. The trial court erred when it admitted other acts testimony in violation of R.C. 2945.59, Evid.R. 404(B) and Appellant's rights under Article I, Section 10 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution.
V. The trial court denied Appellant's right to a fair trial by not giving a complete jury instruction.
VI. Appellant was denied effective assistance of counsel as guaranteed by Section 10, Article I of the Ohio Constitution and the Sixth and Fourteenth Amendments.
VII. The trial court erred by ordering convictions and a consecutive sentence for separate counts and specifications because the trial court failed to make a proper determination as to whether those offenses are allied offenses pursuant to R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14.


         A. Sufficiency and Manifest Weight of the Evidence

         {¶ 11} We combine Williams's first and second errors challenging the sufficiency and weight of the evidence for ease of analysis. We find that these errors lack merit.

         1. Standard of Review

         {¶ 12} "A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence." State v. Capp, 8th Dist. Cuyahoga No. 102919, 2016-Ohio-295, ¶ 19.

Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the state's evidence is insufficient to sustain a conviction for an offense. Accordingly, an appellate court reviews a trial court's denial of a defendant's motion for acquittal using the same standard it applies when reviewing a sufficiency-of- the-evidence claim.

State v. Hoskin-Hudson, 8th Dist. Cuyahoga No. 103615, 2016-Ohio-5410, ¶ 7, citing State v. Capp, 8th Dist. No. 102919, 2016-Ohio-295, ¶ 19.

         {¶ 13} "The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different." State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A challenge to the sufficiency of the evidence is a question of law that asks whether the state met its burden of production. A manifest weight challenge is a question of fact and asks whether the state met its burden of persuasion. State v. Jackson, 8th Dist. Cuyahoga No. 88028, 2007-Ohio-823, ¶ 11, citing Thompkins at 386.

         {¶ 14} Thus, a sufficiency inquiry is not whether the prosecution's evidence "is to be believed, but whether, if believed, the evidence admitted at trial supported the conviction." State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 32, citing State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25. We view the evidence in a light most favorable to the prosecution and determine whether "'any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.'" State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶ 15} "A manifest weight inquiry looks at whether the evidence was substantial enough for a jury to reasonably conclude that all of the elements of the alleged crime have been proved beyond a reasonable doubt. We sit 'as a thirteenth juror.'" Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Newett, 8th Dist. Cuyahoga No. 103518, 2016-Ohio-7605, ¶ 39.

         {¶ 16} Thus,

[w]e review the entire record, consider the credibility of the witnesses, weigh the evidence and all reasonable inferences, and determine whether the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81. "Weight is not a question of mathematics, but depends on its effect in inducing belief." Black's Law Dictionary 1594 (6th Ed.1990). Thompkins at 387. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Martin at 175.

Newett at ¶ 40.

         2. Discussion

         {¶ 17} Williams admits that his vehicle is depicted in the surveillance video and that he was present at the gas station when the shooting occurred. However, Williams denies that he had anything to do with the shooting.

         {¶ 18} Cleveland Police Department ("CPD") Detectives Kathy Cruz ("Det. Cruz") and Raymond Diaz ("Det. Diaz") testified that they arrived at the scene at 4:00 p.m. The detectives requested that Forensic Video Specialist Tom Ciula ("Ciula") retrieve multiple videos from four businesses and a residence in the area of the incident. Ciula prepared a report, photographs, and a video compilation of the events that transpired prior to, during, and shortly after the shooting. The evidence was viewed by the jury.

         {¶ 19} The videos depict the Impala circling the area near Speedy prior to entering the gas station and initially appears to contain four individuals. Johnson is seen walking down Broadway toward Speedy. The Impala circles back into camera view on Broadway and now appears to have only two occupants. A male alleged to be Chapman is observed walking along the route behind Johnson while talking on his cell phone. The Impala pulls into the second of two rows of gas station pumps with its tank on the opposite side of the pumps that parallel Broadway Avenue facing west toward Hinde Avenue, while Johnson is inside of Speedy.

         {¶ 20} Chapman, still talking on the cell phone, is standing near the sidewalk in the driveway of the business immediately adjacent to Speedy. Chapman is facing Broadway Avenue and gesturing to someone across the street. Chapman moves further up the driveway and stands behind a small white commercial vehicle parked where he can view the Speedy lot. Johnson exits the Speedy market, walking toward Broadway, when a male wearing a black-hooded sweatshirt and bright-white athletic shoes jogs across Broadway Avenue toward Johnson, pulls out a gun, and shoots Johnson who turns to run and drops a gun that he attempts to pull from his pocket.

         {¶ 21} Speedy customers and individuals in the immediate area begin to scramble when the shooting starts. Johnson runs toward Hinde Avenue with the shooter in pursuit. Chapman walks to the other side of the white commercial vehicle to observe the incident without obstruction, then touches the front of the white truck with both hands as he turns and exits the driveway.

         {¶ 22} Concurrently, an unidentified male exits the back seat of the Impala, begins walking toward the area where Chapman had been standing but abruptly returns to the Impala. Williams, the admitted driver, never exits the Impala. The Impala pulls out, turns right onto Hinde Avenue and makes a second right onto Broadway Avenue toward Morton Avenue as a police car pulls into Speedy.

         {¶ 23} Johnson emerges from the area behind Speedy onto Morton Avenue when he falls to the street, apparently hit from behind by another round of gunfire. As Johnson sits up and attempts to scoot backwards away from the oncoming shooter, the shooter walks over to Johnson and shoots him several more times.

         {¶ 24} The shooter walks down Morton Avenue in the opposite direction of Broadway Avenue followed by Chapman who is still talking on the cell phone. The Impala approaches from Broadway Avenue. Chapman and the shooter climb into the Impala and exit the scene as police arrive to attend to Johnson.

         {¶ 25} CPD Officers Friedrich Kaufmann and James Crivel ("Officer Crivel") testified that they were the first responders to Speedy and were immediately directed to Morton Avenue where Johnson was laying. Witnesses referred to Johnson as "E" and Officer Crivel recalled that an individual named "E" was reportedly involved in the shooting of Chapman about six months earlier.

         {¶ 26} CPD Detective Darren Robinson of the crime-scene unit recovered multiple Blazer Smith & Wesson .40 caliber bullet casings in front of the Speedy market building, in the gas station lot and on Morton Avenue. The 9 mm gun dropped by Johnson contained eight live rounds with one jammed in the slide.

         {¶ 27} Based on a witnesses' tip, Det. Diaz obtained a photograph of Chapman and discovered that Johnson may have been involved in a 2016 incident where Chapman was shot several times. CPD Fingerprint Examiner Shelby McMullen testified that the fingerprints taken from the hood of the white commercial truck belonged to Chapman.

         {¶ 28} Several days after the shooting, detectives received information that tied the Impala to Williams. A search of the license-plate reader database revealed multiple photographs of the Impala with the distinctive black wheels. Det. Diaz compared the photographs to the surveillance videos and Williams became a suspect. The Impala was registered to Williams's mother and was located at an apartment building in Euclid, Ohio. Crime Scene Detective Todd Clemens processed the Impala.

         {¶ 29} Williams contacted Det. Cruz on June 12, 2017, and requested to retrieve property from the vehicle. By that time, a warrant for Chapman was pending but Williams was still under investigation. On June 14, 2017, Williams voluntarily appeared at the police station and a videotaped interview was conducted by Det. Cruz and Det. Remington.

         {¶ 30} Though not under arrest, Williams was advised of his rights at the beginning of the interview. Williams identified his car in the video photographs, admitted that he was at Speedy when the shooting started but claimed that he was not involved and did not know who was. During the interview, Williams voluntarily surrendered a Smith & Wesson .40 caliber revolver that was in the vehicle that he arrived in. Williams was ultimately allowed to leave while police continued their investigation. Police also learned that Chapman and Williams were cousins.

         {¶ 31}Det. Diaz secured Williams's cell-phone and cell-tower records and contacted Williams for a second interview. Williams failed to appear. Chapman was arrested. Williams was subsequently arrested. At the interview following his arrest, Det. Diaz showed Williams the surveillance video but Williams maintained his innocence.

         {¶ 32} County Forensic Scientist Kristen Koeth testified that the seven Blazer .40 caliber cartridges located at the scene were fired from the same weapon but were not from the gun that police had recovered from Williams. County Deputy Medical Examiner Forensic Pathologist Dr. Erica Armstrong ...

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