State v. Kirks ( 2024 )

[Cite as State v. Kirks, 2024-Ohio-468.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112473
v. :
MARCUS KIRKS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 8, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-668950-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and John Hirschauer, Assistant Prosecuting
Attorney, for appellee.
Allison F. Hibbard, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Appellant Marcus Kirks (“appellant”) brings this appeal challenging his
conviction by the Cuyahoga County Court of Common Pleas of numerous charges
including aggravated murder, murder, felonious assault, and aggravated burglary.
After a thorough review of the applicable law and facts, we affirm the judgment of
the trial court.
I. Factual and Procedural History
This matter arises from the shooting death of 29-year-old Deandre
Graham (“Graham”) in October 2021. Graham had been dating Angel Brown
(“Brown”) on and off for over two years at the time of his death. On the night of the
shooting, Graham had gone over to Brown’s house, which was a duplex on East 47th
St. in Cleveland.
Appellant is the former boyfriend of Brown. They had stopped seeing
each other in 2019 and had not spoken for some time until several weeks prior to
the shooting. At that time, they had run into each other at a gas station and had
become friendly again, texting and calling each other. Appellant’s number was saved
in Brown’s phone under the nickname “My Giant.”
On the night in question, Brown and Graham had engaged in sexual
relations and later, Brown heard tapping on the back door, which was glass. She
looked out and because it was dark, she could only see a tall male with a silver
handgun. She told Graham about it, and he pulled her away from the window. He
looked out the window himself and was shot through the window. The bullet hit
him in the neck, and he died from the wound.
In the ten days leading up to the shooting, Brown and appellant had
communicated via cell phone nearly every day. On the night of the shooting,
appellant called Brown several times after 2:30 a.m.; all of the calls went
unanswered. He then texted, “Well, I’m on my way,” and then “Tell yo (sic) side1 to
leave now.” These texts were sent just minutes prior to the shooting.
Brown called appellant after the shooting and asked why he had called
her. He told her that he was drunk and did not remember the reason. He stated
that he was at The Dstrkt Lounge in Cleveland that night but that he was home at
2:54 a.m.
A surveillance camera at a funeral home captured a silver Mercedes
Benz that drove by and parked near Brown’s residence. The video was not clear
enough to show the license plate of the vehicle; however, a 2015 silver Mercedes
Benz was registered to appellant. Police were able to utilize the footage from various
city surveillance cameras to track the vehicle as it had made its way from East 26th
St. and St. Clair Avenue, the direction of the Dstrkt Lounge, to the vicinity of Brown’s
residence. After the vehicle left the scene, cameras showed it heading eastbound
until around the intersection of St. Clair Avenue and Addison Road.
Police were able to subpoena appellant’s cell phone number and
determine the area where his cell phone was located in the minutes prior to and after
the shooting. At the time the homicide occurred, appellant’s cell phone had
connected to the cell phone tower that was in the general area of Brown’s residence.
1 Brown testified that “side” meant “someone that you cheat on outside of your
relationship” and acknowledged that it was basically “someone that you’re sleeping with.”
She denied that Graham was a “side.”
The day after the shooting, appellant began using a new cell phone with
a different number. He sent messages to his contacts telling them to erase his old
number and only use the new one.
Appellant was arrested and told police that he had not seen or talked
to Brown in over a year and a half. When asked about what vehicles he owned or
that were registered to him, he did not mention the Mercedes Benz. Regarding his
cell phone, appellant denied using the number that had been subpoenaed by police
and denied that he had texted or called Brown.
Appellant was charged with two counts of aggravated murder
(Counts 1 and 2), two counts of murder (Counts 3 and 4), three counts of felonious
assault (Counts 5, 6, and 8), one count of attempted murder (Count 7), two counts
of aggravated burglary (Counts 9 and 10), and four counts of having weapons while
under a disability (Counts 11 through 14). Counts 1 through 10 had accompanying
one- and three-year firearm specifications. Counts 11 through 14 also had forfeiture
specifications.
The day before trial was scheduled to begin, the state sought a
material witness warrant for Brown because it had been unable to locate her. The
state had issued subpoenas to multiple locations,2 and detectives had tried to contact
2 In his brief and at oral argument, appellant, through counsel, disputed the state’s
assertion that it had served the subpoenas at “multiple locations” and accused the state of
making “patently false” representations regarding the issuance of the subpoenas, which
the state vehemently denied. As will be fully discussed below, we need not determine this
issue.
her numerous times. The court granted the warrant request but did not move the
trial.
Brown later appeared at court that afternoon without the execution of
the warrant and voluntarily testified regarding Graham’s murder. The state also
presented the testimony of Rick Graham, the victim’s brother; Cleveland Police
Officer Stevie Green; Cleveland Police Detective Shane Bauhof; Macie Kalinowski, a
civilian analyst in the Cleveland Police Department Real Time Crime Center; Dr.
Thomas Gilson, the director of the Cuyahoga County Medical Examiner and Crime
Laboratory; Eric Strick, a crime scene detective with the Cleveland Police
Department; Matthew Seabold, a crime analyst with the Cuyahoga County
Prosecutor’s Office; Cleveland Police Detective Lisette Gonzalez; Lisa Moore of the
DNA Department of the Cuyahoga County Regional Forensic Science Laboratory;
Steven Gamble, who worked in Information Technology for the City of Cleveland,
Public Safety; Thomas Morgan, of the firearm and toolmark section of the Cuyahoga
County Regional Forensic Science Laboratory; and Cleveland Police Detective
Raymond Diaz.
The jury found appellant guilty on all counts except the attempted
murder count, which related to Brown. He was sentenced to an aggregate term of
31 years to life. Appellant then filed the instant appeal, raising three assignments of
error for our review:
1. The trial court erred in issuing a material witness warrant where the
state’s efforts were insufficient to establish probable cause that a
material witness warrant was necessary, and probable cause was not
established that the witness would not appear at trial.
2. Trial counsel was ineffective for failing to object to cell phone map
testimony by a non-expert witness who was an employee of the
Cuyahoga County prosecutor’s office.
3. Appellant’s convictions are against the manifest weight of the
evidence; therefore, his convictions are in violation of the Ohio state
constitution and the Sixth and Fourteenth Amendments to the United
States Constitution.
II. Law and Analysis
A. Material Witness Warrant
In his first assignment of error, appellant argues that the trial court
erred in granting a material witness warrant for Brown.
Pursuant to R.C. 2937.16 through 2937.18 and R.C. 2941.48, a
material witness warrant may be issued to secure the presence and testimony of a
witness at trial. However, the protections afforded by the Due Process Clause of the
United States Constitution must be observed in order to deprive witnesses of their
liberty. State ex rel. Dorsey v. Haines, 63 Ohio App.3d 580, 582, 579 N.E.2d 541(2d Dist.1991). A material witness warrant “‘must be supported by probable cause,
supported by oath or affirmation, to believe that the witness is material and that the
detention of the witness is necessary to procure her attendance at trial.’” State v.
Hollins, 8th Dist. Cuyahoga No. 103864, 2016-Ohio-5521, quoting Haines at 581.
The requirements for the issuance of a material witness warrant set
forth above are necessary to protect the due process rights of the witness, not the
defendant. See State v. Eatmon, 8th Dist. Cuyahoga No. 108786, 2020-Ohio-3592,
¶ 32, quoting Robinson v. Green, 7th Dist. Mahoning No. 16 MA 0134, 2016-Ohio-
5688, ¶ 9, quoting Haines at 581. This court has previously noted that it “could find
no Ohio case where a defendant successfully appealed the grant of a material witness
warrant in an effort to vindicate the due process rights of a witness because the
warrant was not supported by probable cause, or oath or affirmation.” State v. Kidd,
8th Dist. Cuyahoga No. 109126, 2021-Ohio-503, ¶ 11. We further noted that
“[w]itnesses have the ability to vindicate these due process rights on their own.” Id.,citing State v. Jeffery, 2d Dist. Montgomery No. 24850, 2012-Ohio-3104.
As such, a defendant lacks standing to raise potential violations of the rights of a
witness. State v. Rice, 2019-Ohio-1415, 135 N.E.3d 309, ¶ 44-50 (11th Dist.).
In the case sub judice, appellant is not simply asserting the rights of
the witness but is also maintaining that his own rights were violated by the state
making “patently false” misrepresentations in order to obtain the warrant. We do
not need to resolve this issue, though, because the warrant was never executed and
Brown voluntarily testified at trial. Any argument regarding the warrant has
therefore been rendered moot.
Appellant’s first assignment of error is therefore overruled.
B. Ineffective Assistance of Counsel
In his second assignment of error, appellant argues that his counsel
was ineffective by failing to object to cell phone map testimony by a nonexpert
witness. He contends that the evidence regarding the locations of towers to which
appellant’s cell phone connected on the night of the murder was unreliable and
should have been provided by an expert, rather than by Matthew Seabold
(“Seabold”), a crime analyst in the prosecutor’s office, who was merely a lay witness.
Further, appellant asserts that he was prejudiced by the testimony because the state
placed considerable weight on it, arguing that it was all they needed to convict him.
In order to establish ineffective assistance of counsel, a defendant
must demonstrate that (1) counsel’s performance was deficient and fell below an
objective standard of reasonableness and (2) that, but for counsel’s unprofessional
errors, there is a reasonable probability that the result of the trial would have been
different. State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216, ¶ 28 (8th Dist.), citing
Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The defendant must satisfy both prongs of the test in order to prove
ineffective assistance of counsel. Harris, 8th Dist. Cuyahoga No. 109083, 2020-
Ohio-4138, at ¶ 28, citing Strickland at 687.
Under Ohio law, “every properly licensed attorney is presumed to be
competent.” State v. Knight, 8th Dist. Cuyahoga No. 109302, 2021-Ohio-3674, ¶ 47,
citing State v. Black, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing State
v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, when
“evaluating counsel’s performance on a claim of ineffective assistance counsel, the
court must give great deference to counsel’s performance and ‘indulge a strong
presumption’ that counsel’s performance ‘falls within the wide range of reasonable
professional assistance.’” Id., quoting Strickland at 689.
“Objecting is a tactical decision.” State v. Frierson, 2018-Ohio-391,
105 N.E.3d 583,¶ 25 (8th Dist.), citing State v. Johnson, 7th Dist. Jefferson No. 16
JE 0002, 2016-Ohio-7937, ¶ 46. Accordingly, “‘the failure to make objections is not
alone enough to sustain a claim of ineffective assistance of counsel.’” Id., quoting
State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103.
Regardless, we have repeatedly found cell phone map testimony by a
lay witness admissible. State v. Dunn, 8th Dist. Cuyahoga No. 101648, 2015-Ohio-
3138, ¶ 43-46 (A layperson could compare the locations depicted on the phone
records to the corresponding location on the analyst’s site map.); State v. Daniel,
2016-Ohio-5231, 57 N.E.3d 1203, ¶ 68-72 (8th Dist.) (testimony regarding a
comparison of cell phone date records to locations where crimes occurred does not
require “specialized knowledge, skill, experience, training, or education” regarding
cellular networks); State v. Bradford, 2018-Ohio-1417, 101 N.E.3d 710, ¶ 86 (8th
Dist.), citing State v. Wilson, 8th Dist. Cuyahoga No. 104333, 2017-Ohio-2980 (cell
phone tower mapping by a lay person permits an inference to be drawn by the
factfinder that the cell phone owner was in the area at the listed time and to
corroborate other evidence of the defendant’s presence at a crime scene); State v.
Lucus, 2020-Ohio-1602, 154 N.E.3d 262, ¶ 98 (8th Dist.) (testimony about the
defendant’s cell phone records, the location of the cellular tower defendant’s phone
connected to, or a map based on this information was admissible as lay testimony).
In light of the foregoing, we find that Seabold’s testimony was
admissible as lay testimony. Accordingly, any objection by appellant’s trial counsel
to the presentation of such testimony would have been meritless. “The failure to do
a futile act cannot be the basis for claims of ineffective assistance of counsel, nor
could such a failure be prejudicial.” State v. New Bey, 8th Dist. Cuyahoga
No. 109424, 2021-Ohio-1482, ¶ 58, citing State v. Kilbane, 8th Dist. Cuyahoga
No. 99485, 2014-Ohio-1228, ¶ 37.
Appellant has not demonstrated that his counsel was ineffective or
that he was prejudiced by counsel’s failure to object to the cell phone map testimony.
Appellant’s second assignment of error is overruled.
C. Manifest Weight of the Evidence
In his third assignment of error, appellant argues that his convictions
were against the manifest weight of the evidence. Specifically, he contends that (1)
there was no DNA or ballistics linking him to the incident; (2) the cell phone tower
testimony was unreliable; (3) there was no testimony regarding the license plate of
the vehicle seen on the surveillance video in order to definitively tie it to appellant;
(4) there was no evidence that appellant knew where Brown lived; (5) there was no
evidence that appellant had any motive to harm Graham; and (6) Brown did not
believe that appellant was the shooter when questioned after the incident and only
identified him later after meeting with Graham’s brother.
When reviewing a manifest weight challenge, an appellate court
“‘weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the 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. Virostek, 8th Dist.
Cuyahoga No. 110592, 2022-Ohio-1397, ¶ 54, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reversal on the basis that a
verdict is against the manifest weight of the evidence is granted “‘only in the
exceptional case in which the evidence weighs heavily against the conviction.’” State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Martin at
175.
As this court has previously stated:
The criminal manifest weight of-the-evidence standard addresses the
evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio
St.3d at 386, 1997-Ohio-52, 678 N.E.2d 541 (1997). Under the manifest
weight-of-the-evidence standard, a reviewing court must ask the
following question: whose evidence is more persuasive — the state’s or
the defendant’s? Wilson at id. Although there may be legally sufficient
evidence to support a judgment, it may nevertheless be against the
manifest weight of the evidence. Thompkins at 387; State v. Johnson,
88 Ohio St.3d 95, 2000-Ohio-276, 723 N.E.2d 1054 (2000).
When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the manifest weight of the evidence, the
appellate court sits as a “thirteenth juror” and disagrees with the fact
finder’s resolution of the conflicting testimony. Wilson at id., quoting
Thompkins at id.State v. Williams, 8th Dist. Cuyahoga No. 108275, 2020-Ohio-269, ¶ 86-87.
In its role as the “thirteenth juror,” an appellate court must review
the entire record, weigh the direct and circumstantial evidence and all reasonable
inferences drawn therefrom, and consider the credibility of the witnesses to
determine “‘whether in resolving conflicts in the evidence, the [trier of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’” Thompkins at 387, quoting Martin.
“Direct evidence exists when ‘a witness testifies about a matter within the witness’s
personal knowledge such that the trier of fact is not required to draw an inference
from the evidence to the proposition that it is offered to establish.’” State v. Wachee,
8th Dist. Cuyahoga No. 110117, 2021-Ohio-2683, ¶ 36, quoting State v. Cassano, 8th
Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Conversely, “circumstantial
evidence requires ‘the drawing of inferences that are reasonably permitted by the
evidence.’” Id., quoting id. “‘Circumstantial evidence is proof of facts by direct
evidence from which the trier of fact may infer or derive by reasoning other facts in
accordance with the common experience of mankind.’” Id., quoting State v.
Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37. “Circumstantial
evidence and direct evidence inherently possess the same probative value.” State v.
Jenks, 61 Ohio St.3d 259, 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus.
In the instant matter, Brown testified that, at the time of the shooting,
it was very dark outside, and she could only see that someone was standing outside
with a gun who was tall and had a “bald or low cut.” She further testified to receiving
missed calls and text messages from “My Giant,” which was her nickname for
appellant, minutes prior to the shooting. The text messages stated that appellant
was “on [his] way” and that she should tell her “side” to leave.
When police initially asked Brown if she thought the shooter was
appellant, she wanted to “give him the benefit of the doubt” and told them that she
was “almost sure that it wasn’t him.” However, Brown further testified that during
her second interview with police, she told them that she was sure the shooter was
appellant. She had called appellant the morning after the shooting on speakerphone
while her sister and Graham’s brother were present. During the call, she asked
appellant why he had called her the night of the murder and what time he got home.
He told her that he had been at The Dstrkt Lounge, was drunk, and had arrived home
at 2:54 a.m. Brown testified that she changed her mind and decided that appellant
was the perpetrator because of the text messages he sent and the specific time that
he stated he arrived home.
In addition to Brown’s testimony, the prosecution presented a strong
circumstantial case to establish the identity of the shooter. “Although there are
obvious differences between direct and circumstantial evidence, those differences
are irrelevant to the probative value of the evidence — circumstantial evidence
carries the same weight as direct evidence.” Cassano at ¶ 13, citing State v. Treesh,
90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). “A conviction can be sustained
based on circumstantial evidence alone.” State v. Franklin, 62 Ohio St.3d 118, 124,
580 N.E.2d 1 (1991), citing State v. Nicely, 39 Ohio St.3d 147, 154-55, 529 N.E.2d
1236 (1988).
In this case, the state presented the cell phone mapping data that
showed appellant near The Dstrkt Lounge and then moving eastbound toward
Brown’s residence. At the time the shooting occurred and the 911 call was made,
appellant’s cell phone had connected with the tower that was in the general area of
the crime scene.
In addition, there was testimony presented that Brown and appellant
were previously in a relationship. They had reconnected in the weeks prior to
Graham’s murder and had been communicating via cell phone. Appellant lied
during his interview with police and stated that he had not talked to Brown. The
state presented the text messages sent between appellant and Brown since they had
reconnected, including the ones sent by appellant minutes before the shooting,
stating that he was on his way and telling her to have her “side” leave.
Further, a silver Mercedes Benz was seen on surveillance video driving
from The Dstrkt Lounge to East 47th St., which the jury was able to view. The vehicle
stopped on East 47th St. for a few minutes, then departed, heading east. Appellant
had registered a 2015 silver Mercedes Benz in his name only three months prior to
the murder. Yet, when police asked him to list the vehicles registered in his name,
he did not mention the Mercedes Benz.
Brown had appellant’s number saved in her phone under “My Giant”
and mentioned the same to him during their initial text messages after reconnecting
at the gas station. But when asked by police about the nickname, appellant denied
any knowledge of it.
Regarding the lack of direct physical evidence linking appellant to the
shooting, as we have explained, circumstantial evidence and direct evidence are
indistinguishable so far as the jury’s fact-finding function is concerned. All that is
required of the jury is that it weighs all of the evidence, direct and circumstantial,
against the standard of proof beyond a reasonable doubt. Having reviewed the
entire record, we cannot say the jury in this case clearly lost its way and created such
a manifest miscarriage of justice that appellant’s convictions must be reversed and
a new trial ordered.
Appellant’s third assignment of error is overruled.
III. Conclusion
The trial court did not err in ordering the material witness warrant,
and appellant did not receive ineffective assistance of counsel. Appellant’s
convictions were not against the manifest weight of the evidence.
All of appellant’s assignments of error are overruled, and the judgment
of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
SEAN C. GALLAGHER, J., CONCUR