State v. Brown ( 2011 )


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  • [Cite as State v. Brown, 
    2011-Ohio-6782
    .]
    COURT OF APPEALS
    RICHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    :   JUDGES:
    STATE OF OHIO                                 :   William B. Hoffman, P.J.
    :   John W. Wise, J.
    Plaintiff-Appellee   :   Julie A. Edwards, J.
    :
    -vs-                                          :   Case No. 2011-CA-0021
    :
    :
    CHRISTOPHER L. BROWN                          :   OPINION
    Defendant-Appellant
    CHARACTER OF PROCEEDING:                           Criminal Appeal from Richland
    County Court of Common Pleas Case
    No. 2010-CR-700D
    JUDGMENT:                                          Affirmed
    DATE OF JUDGMENT ENTRY:                            December 23, 2011
    APPEARANCES:
    For Plaintiff-Appellee                             For Defendant-Appellant
    JAMES J. MAYER, JR.                                PATRICIA O’DONNELL KITZLER
    Prosecuting Attorney                               Anderson, Will, O’Donnell
    Richland County, Ohio                              & Kitzler, LLC
    3 North Main Street, Ste. 801
    BY: DANIEL J. BENOIT                               Mansfield, Ohio 44902
    Assistant Prosecuting Attorney
    38 South Park Street
    Mansfield, Ohio 44902
    [Cite as State v. Brown, 
    2011-Ohio-6782
    .]
    Edwards, J.
    {¶1}    Appellant, Christopher Lamar Brown, appeals a judgment of the Richland
    County Common Pleas Court convicting him of murder in violation of R.C. 2903.02(A)
    with a firearm specification (R.C. 2941.145), murder in violation of R.C. 2903.02(B),
    felonious assault (R.C. 2903.11(A)(2)) and carrying a concealed weapon (R.C.
    2932.12(A)). Appellee is the State of Ohio.
    STATEMENT OF FACTS AND CASE
    {¶2}    On March 9, 2010, Shawntease Moore heard appellant and DeCarrio
    Couley arguing in front of a home in her neighborhood. She was familiar with both
    DeCarrio and appellant. She saw a tan Chevy Blazer with tinted windows speed away
    from the argument with tires squealing.              As the vehicle drove past her house, a
    streetlight illuminated the vehicle and she saw appellant in the driver’s seat. Appellant’s
    driving was too fast and out of control, nearly striking a light post. She was concerned
    that things were about to turn bad in the neighborhood and called her children in for the
    night. She noticed that appellant was wearing a black hoodie and grey faded jeans and
    had his hair pulled back in a ponytail that was bushy in the back. Later that evening,
    Shawntease and her children made their way to another part of the neighborhood where
    a friend was picking them up to take them to the Dollar General store.
    {¶3}    Shawntease’s         son,     Shaquan   Moore,   knew   DeCarrio   from   the
    neighborhood. He also knew appellant by sight, although he only knew him as “Chris.”
    He did not know appellant’s last name until after the shooting. Shaquan was playing
    football outside with his brother when he saw appellant and DeCarrio arguing outside a
    home owned by Rico Feagin.                  Appellant and DeCarrio were shoving each other.
    Richland County App. Case No. 2011-CA-0021                                            3
    Appellant told DeCarrio to get out of his face. DeCarrio responded, “Fuck you, you ain’t
    going to do shit about it.” Appellant responded, “You get out of my face. I don’t fuck
    with nobody down here in Mansfield.” Appellant told DeCarrio, “Every time you see me,
    I either got my son or my strap. So you better watch your back.” Shaquan knew that in
    his neighborhood, a “strap” is a gun. After this argument, Shawntease called Shaquan
    and his brother into the house. Shaquan saw appellant speed off in his SUV, telling
    DeCarrio, “I’ll be back.” Shaquan noted that appellant was wearing a black hoodie, dark
    faded jeans and had his hair pulled back in a bushy ponytail.
    {¶4}   While walking with his mother and siblings to meet their ride to the Dollar
    General, Shaquan’s younger brother dropped a spider monkey toy. When Shaquan
    went back with his brother to retrieve it, he saw appellant and DeCarrio walking up the
    street together. He saw them walk up Sixth Street toward an alley and noticed a police
    cruiser going across Sixth Street. As Shaquan got into the van to ride to the store, he
    heard a loud noise, which he believed was a firecracker.
    {¶5}   Between 7:30-8:00 p.m. on March 9, 2010, Shawntease’s sister,
    Shadeena Brooks, went outside to smoke a cigarette on her porch because she does
    not smoke in her home. There is a streetlight across from her home, on the corner.
    She knew both appellant and DeCarrio from math class in high school. The pair spent a
    lot of time together and were known at school as “Ebony and Ivory” because DeCarrio
    had lighter skin and appellant had darker skin. She also knew both men from when she
    worked at McDonald’s and Wendy’s, and they would come in and talk with her.
    {¶6}   After Shadeena saw Shawntease and her children on their way to the
    store, she heard arguing. She heard someone say, “Nigger, I saved you, I saved you…
    Richland County App. Case No. 2011-CA-0021                                              4
    You know it ain’t that serious. Come on back down here. Quit playing, you know it ain’t
    that serious.” She looked up to see two men walking. She heard one man say, “What
    nigger? I’ll pop you.” At this point she stood up to see what was going on. She heard,
    “Man, you ain’t gonna pop me.       We been friends since school.      It ain’t even that
    serious.” The other person pulled out a gun and said, “Nigger I will pop you.” The gun
    was fired. She could see DeCarrio’s face and knew he had been shot. DeCarrio fell to
    the ground. She heard DeCarrio say, “Ah, shit nigger. You shot me. You shot me.
    Chris, man, it ain’t even that serious. Just go on about your business. I ain’t gonna say
    shit. Just go and leave me alone.” She saw DeCarrio get shot two more times. When
    the shooter moved before shooting DeCarrio the third time, his face was illuminated by
    a streetlight and she recognized appellant as the shooter. Shadeena noticed a police
    car at the corner. Appellant stood in the alley like he was waiting for the officer to get
    out of the car. As the officer sped across the street, she heard a fourth shot and then
    saw appellant run down the alley.
    {¶7}   Officer David Johnson of the Mansfield Police Department was traveling
    north on Sycamore Street at 8:14 p.m. He could see two African-American males in an
    alley, one with a dark complexion and one with a lighter complexion. As he turned on to
    Sixth Street, he heard someone say, “Shut the fuck up nigger, I’ll kill you.” As he
    backed his cruiser up to the alley, he heard shots fired. He dove from his cruiser and
    saw the man with the lighter complexion fall to the ground. He saw a man north of the
    pair run away, and he looked up and saw a gun pointed at him. The man with the
    darker complexion then ran down the alley. The officer believed this man was wearing
    a hoodie, and his hair was bushy in the back. The man the officer viewed running away
    Richland County App. Case No. 2011-CA-0021                                                5
    to the north was later identified to be Cliff Mills, who did not meet the description of the
    man with a gun.
    {¶8}   Officers arrived on the scene and located four bullet casings.         Officer
    Steve Hornback arrived with his dog, Astor. Astor is trained to track a human scent, but
    not the scent of a specific individual. The first tracks the police found in the snow did
    not result in a successful track by Astor. However, police found a second set of tracks
    which they believed to be fresh because the sides of the print were raised.           Astor
    immediately picked up the track and pulled hard, indicating that the scent was fresh.
    The dog led police to a blue home at 348 Spayer Lane, next to a white house behind
    which two SUV’s were parked: a black and silver Chevy Blazer owned by appellant and
    a tan Blazer owned by appellant’s mother. The tan SUV matched the description given
    to police of the vehicle appellant was driving. Neighbors knew appellant lived in the
    blue house and he had been seen at the white house next door. However, appellant
    was not in the blue house when police followed Astor’s trail.
    {¶9}   Following the shooting, Shadeena was very upset and her family was
    called to the house. She told both her sister Shawntease and her stepfather, “I seen
    Chris shoot Carrio.” She told police the shooter was male, 25-27 years old, around 5’6”
    or 5’7” tall, dark skinned, with hair sticking out of the back of his head and a goatee.
    She identified appellant from a photo array the evening of the shooting.
    {¶10} DeCarrio was pronounced dead at the hospital.              Four bullets were
    recovered from his body. According to the coroner, he had four gunshot tracks: three
    in his torso, and one which passed through his genitals, scrotum, and right thigh.
    Richland County App. Case No. 2011-CA-0021                                                  6
    {¶11} Appellant turned himself in at the police station on March 10, 2010. He
    was indicted under case no. 10-CR-176D for two counts of murder, one count of
    attempted murder, felonious assault, and carrying a concealed weapon, all with firearm
    specifications. The first trial resulted in a mistrial after jurors visited the crime scene on
    their own.
    {¶12} Appellant was reindicted in the instant case on October 8, 2010, with
    aggravated murder with a firearm specification, two counts of murder with firearm
    specifications, one count of attempted murder with a firearm specification, felonious
    assault with a firearm specification, and carrying a concealed weapon. The earlier
    indictment was dismissed.
    {¶13} Appellant filed a motion for appropriation of funds for an expert witness on
    eyewitness identification. The court denied the motion. However, after trial the court
    granted a motion for extraordinary fees, which included $1,000.00 to be paid to the
    expert for consulting.
    {¶14} The case proceeded to jury trial in the Richland County Common Pleas
    Court. Appellant was convicted of murder in violation of R.C. 2903.02(A) with a firearm
    specification (R.C. 2941.145), murder in violation of R.C. 2903.02(B), felonious assault
    (R.C. 2903.11(A)(2)) and carrying a concealed weapon (R.C. 2932.12(A)). The trial
    court sentenced him to a term of incarceration of 15 years to life for murder, and
    merged the second murder conviction and the felonious assault conviction into this
    conviction. The court sentenced appellant to twelve months incarceration for carrying a
    concealed weapon and three years incarceration on the firearm specification, for an
    Richland County App. Case No. 2011-CA-0021                                                7
    aggregate term of 19 years to life. The charges of aggravated murder and attempted
    murder were dismissed. Appellant assigns three errors on appeal:
    {¶15} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
    APPELLANT’S MOTION FOR AN EXPERT AT STATE EXPENSE, THUS DEPRIVING
    APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY SECTION 16,
    ARTICLE 1 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT
    OF THE U.S. CONSTITUTION.
    {¶16} “II. APPELLANT’S CONVICTIONS ARE CONTRARY TO THE MANIFEST
    WEIGHT AND SUFFICIENCY OF EVIDENCE PRESENTED AT TRIAL, THUS
    DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE
    FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND
    UNDER ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.
    {¶17} “III. IT WAS PLAIN ERROR FOR THE COURT TO PERMIT THE
    PROSECUTOR’S PARTICIPATION IN THE DECISION TO DENY THE MOTION FOR
    AN EYEWITNESS IDENTIFICATION EXPERT AT STATE EXPENSE.”
    I
    {¶18} In his first assignment of error, appellant argues that the trial court erred in
    overruling his motion for the appointment of an expert witness on eyewitness testimony.
    {¶19} R.C. 2929.024 provides in pertinent part:
    {¶20} “If the court determines that the defendant is indigent and that
    investigation services, experts, or other services are reasonably necessary for the
    proper representation of a defendant charged with aggravated murder at trial or at the
    sentencing hearing, the court shall authorize the defendant's counsel to obtain the
    Richland County App. Case No. 2011-CA-0021                                               8
    necessary services for the defendant, and shall order that payment of the fees and
    expenses for the necessary services be made in the same manner that payment for
    appointed counsel is made pursuant to Chapter 120. of the Revised Code.”
    {¶21} As a matter of due process, indigent defendants are entitled to receive the
    “raw materials” and the “basic tools of an adequate defense.” Ake v. Oklahoma (1985),
    
    470 U.S. 68
    , 77, 
    105 S.Ct. 1087
    , 
    84 L.Ed.2d 53
    , quoting Britt v. North Carolina (1971),
    
    404 U.S. 226
    , 227, 
    92 S.Ct. 431
    , 
    30 L.Ed.2d 400
    . In State v. Mason (1998), 
    82 Ohio St.3d 144
    , 150, 
    694 N.E.2d 932
    , the Ohio Supreme Court held that “due process * * *
    requires that an indigent criminal defendant be provided funds to obtain expert
    assistance at state expense only where the trial court finds, in the exercise of a sound
    discretion, that the defendant has made a particularized showing (1) of a reasonable
    probability that the requested expert would aid in his defense, and (2) that denial of the
    requested expert assistance would result in an unfair trial.”
    {¶22} In State v. Sargent, 
    169 Ohio App.3d 679
    , 
    864 N.E.2d 155
    , 2006 -Ohio-
    6823, the Court of Appeals for the First District found that the trial court abused its
    discretion in denying the appointment of an expert witness on eyewitness testimony
    where the state’s case was based on the identification of one person, and that person
    was under the stress of being held at gunpoint.        Id. at ¶13.   Similarly, in State v.
    Bradley, 
    181 Ohio App.3d 40
    , 
    907 N.E.2d 1205
    , 
    2009-Ohio-460
    , the Eighth District
    found the trial court abused its discretion in denying the appointment of an expert on
    eyewitness identification where the state’s case was based primarily on the
    identification of the victim, who was attacked and traumatized by the incident, had never
    Richland County App. Case No. 2011-CA-0021                                               9
    seen the perpetrator before, did not identify him until 30 days after the incident, and the
    case involved cross-racial identification. Id. at ¶16.
    {¶23} In the instant case, Shadeena Brooks was the primary witness to the
    shooting. She was not the victim and thus was not under the stress of having the gun
    pointed at her. Although Shawntease Moore testified that it was drizzling outside, all
    other witnesses testified that the night was clear. There was snow on the ground,
    reflecting light from the streetlight. Brooks went to high school with both appellant and
    the victim. She specifically saw appellant’s face when he stepped into the illumination
    of the streetlight before he shot the victim a second time, and she heard DeCarrio call
    the shooter “Chris” as he lay on the ground. Shortly after the shooting, she told both her
    sister and her stepfather that she saw appellant shoot DeCarrio, and she identified
    appellant from a photo array that night. The identification did not involve cross-racial
    identification.   In addition, both Shawntease Moore and her son Shaquan identified
    appellant as the man they saw arguing with DeCarrio earlier in the day, and they both
    knew both appellant and DeCarrio from the neighborhood. The shooting was witnessed
    in part by Officer David Johnson, who described the shooter as wearing a hoodie and
    having bushy hair in the back, a description which matched that of appellant given by
    Shawntease and Shaquan. In addition, a police dog tracked the shooter from the crime
    scene to appellant’s front door.
    {¶24} Appellant has not demonstrated that the trial court abused its discretion in
    finding that there was not a reasonable probability that an eyewitness would aid in the
    defense and denial of the expert would result in an unfair trial.       The fact that the
    shooting took place at night is a factor within the understanding and experience of the
    Richland County App. Case No. 2011-CA-0021                                               10
    jury, and the court further allowed the jury view to take place after dark. In addition, the
    trial court allowed $1,000.00 to be paid to the expert for consultation, and counsel
    extensively cross-examined witnesses on their identification of appellant.
    {¶25} Appellant also argues the court erred in taking judicial notice of the
    testimony at the first trial in ruling on the motion. The judgment entry does not reflect
    that the court took judicial notice of any testimony from the first trial. The court merely
    cites to factual differences between the identification of the perpetrator in Bradley and
    that in the instant case. These factual differences were set forth in the State’s response
    to the motion for appropriation of funds for an expert.
    {¶26} Finally, appellant argues the State had no standing to respond to his
    motion. Appellant cites no legal authority in support of his proposition that the State
    lacked standing to file a response.
    {¶27} The first assignment of error is overruled.
    II
    {¶28} Appellant argues that the judgment is against the manifest weight and
    sufficiency of the evidence.      He argues that the testimony of the witnesses is
    inconsistent and therefore not credible.
    {¶29} In determining whether a verdict is against the manifest weight of the
    evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
    record, weighs the evidence and all reasonable inferences, considers the credibility of
    witnesses, and determines whether in resolving conflicts in evidence 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. Thompkins, 
    78 Ohio St.3d 380
    , 387, 678
    Richland County App. Case No. 2011-CA-0021                                              
    11 N.E.2d 541
    , 
    1997-Ohio-52
    , quoting State v. Martin (1983), 
    20 Ohio App.3d 172
    , 175,
    
    485 N.E.2d 717
    .
    {¶30} An appellate court's function when reviewing the sufficiency of the
    evidence is to determine whether, after viewing the evidence in a light most favorable to
    the prosecution, any rational trier of fact could have found the essential elements of the
    crime proven beyond a reasonable doubt. State v. Jenks (1991), 
    61 Ohio St. 3d 259
    ,
    
    574 N.E.2d 492
    , paragraph two of the syllabus.
    {¶31} Appellant was convicted of murder in violation of R.C. 2903.02(A):
    {¶32} “(A) No person shall purposely cause the death of another or the unlawful
    termination of another's pregnancy.”
    {¶33} While the witnesses’ testimony may have differed somewhat on the details
    surrounding the events on the day of the murder, Shawntease Moore, Shaquan Moore,
    and Shadeena Brooks all knew both appellant and the victim.             Shawntease and
    Shaquan saw appellant and DeCarrio arguing earlier in the day. Shadeena witnessed
    the shooting and testified that she saw appellant’s face illuminated by the streetlight.
    She had known both appellant and DeCarrio for years. She further testified that she
    heard the victim say after he had been shot, “Chris, man, it ain’t even that serious,” thus
    confirming the shooter’s identity. Shadeena told two family members shortly after the
    shooting that she saw appellant shoot DeCarrio and selected appellant from a photo
    array the same evening as the shooting. The description of what appellant was wearing
    and how his hair was tied back in a bushy ponytail matched the description given by
    Officer Johnson, who witnessed the shooting. A police dog tracked the shooter from the
    scene to appellant’s front door. The state presented sufficient evidence to support the
    Richland County App. Case No. 2011-CA-0021                                                    12
    conviction, and appellant has not demonstrated that the jury lost its way in believing the
    testimony of the witnesses.
    {¶34} The second assignment of error is overruled.
    III
    {¶35} In his third assignment of error, appellant argues that the court committed
    plain error in not considering his motion for the appointment of an expert ex parte.
    {¶36} In order to prevail under a plain error analysis, appellant bears the burden
    of demonstrating that the outcome of the trial clearly would have been different but for
    the error. State v. Long (1978), 
    53 Ohio St.2d 91
    , 
    372 N.E.2d 804
    ; Notice of plain error
    “is to be taken with the utmost caution, under exceptional circumstances and only to
    prevent a manifest miscarriage of justice.” 
    Id.
     at paragraph three of the syllabus.
    {¶37} Appellant cites Ake v. Oklahoma (1985), 
    470 U.S. 68
    , 82-83, in which the
    United States Supreme Court stated:
    {¶38} “When the defendant is able to make an ex parte threshold showing to the
    trial court that his sanity is likely to be a significant factor in his defense, the need for the
    assistance of a psychiatrist is readily apparent.”
    {¶39} However, Ake does not require that the motion be considered ex parte.
    An ex parte hearing may be required when such protection is necessary to protect
    defense counsel’s strategy, but it is not required in every case. State v. Peeples (1994),
    
    94 Ohio App.3d 34
    , 
    640 N.E.2d 208
    . In the instant case, there is no indication that an
    ex parte hearing was required to protect counsel’s strategy.            Counsel’s strategy of
    attacking the eyewitness identification was not a novel or unique strategy in a case that
    rested in large part on the testimony of the witnesses to the shooting. Appellant has not
    Richland County App. Case No. 2011-CA-0021                                         13
    demonstrated that had he been given an ex parte hearing, his request for appropriation
    of fees would have been granted, the expert would have testified and appellant would
    have been acquitted.
    {¶40} The third assignment of error is overruled.
    {¶41} The judgment of the Richland County Common Pleas Court is affirmed.
    By: Edwards, J.
    Hoffman, P.J. and
    Wise, J. concur
    ______________________________
    ______________________________
    ______________________________
    JUDGES
    [Cite as State v. Brown, 
    2011-Ohio-6782
    .]
    IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                    :
    :
    Plaintiff-Appellee   :
    :
    :
    -vs-                                             :       JUDGMENT ENTRY
    :
    CHRISTOPHER L. BROWN                             :
    :
    Defendant-Appellant      :       CASE NO. 2011-CA-0021
    For the reasons stated in our accompanying Memorandum-Opinion on file, the
    judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed
    to appellant.
    _________________________________
    _________________________________
    _________________________________
    JUDGES
    

Document Info

Docket Number: 2011-CA-0021

Judges: Edwards

Filed Date: 12/23/2011

Precedential Status: Precedential

Modified Date: 10/30/2014