State v. Lewis , 2011 Ohio 6155 ( 2011 )

[Cite as State v. Lewis, 2011-Ohio-6155.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95964
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
NNE LEWIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-533055
BEFORE: Sweeney, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: December 1, 2011
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ATTORNEY FOR APPELLANT
John H. Lawson, Esq.
Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Brent C. Kirvel, Esq.
Erica Barnhill, Esq.
Assistant County Prosecutors
Ninth Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant Nne Lewis (“defendant”) appeals his conviction for
murder with firearm specifications. For the reasons that follow, we affirm.
{¶ 2} On January 6, 2010, defendant’s cousin Erik Lewis was pronounced dead
from multiple gunshot wounds. His death was ruled a homicide.
{¶ 3} Prior to Erik’s death, both he and defendant were residing with their aunt
and uncle, Cynthia Lewis Anderson and Isaac James Anderson at their Allandale Avenue
home in East Cleveland. Many witnesses described the relationship between defendant
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and Erik as being very close, like brothers. It was said that they never fought and were
raised together by defendant’s father and Erik’s mother, who were siblings that lived
across the street from one another. Nne’s father put him out of the house for “trust
issues” relating to Nne’s use of his father’s credit card to purchase an engagement ring.
Nne’s father intended for his son to return to his home and repent and was not happy that
his sister Cynthia had “housed” him. Cynthia testified to her understanding that Nne had
also attempted to remove his father’s guns from the house. Nne’s father denied that and
said Nne did not know the combination to the safe where his 9 mm guns were kept.
{¶ 4} Nne’s father described him as a docile person who did not have the stomach
for violence. Several witnesses testified that Nne and his girlfriend TaShawna had a
tumultuous relationship where they physically attacked one another. At one point,
TaShawna’s brother Michael physically assaulted defendant in retaliation for abusing his
sister. This was witnessed by TaShawna, her mother, and several other people and was
confirmed by Michael. When the couple expressed their intent to remain together,
Michael distanced himself from the situation. Michael was at the hospital with his
daughter at the time of Erik’s murder and he passed a “stress test” administered by the
police. Video surveillance from the hospital reportedly confirmed his alibi.
{¶ 5} TaShawna said that defendant repeatedly accused her of being unfaithful
with “everyone,” including his cousin Erik. Although she testified she had remained
faithful to defendant, she for some reason let, and at times intentionally lead, defendant to
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believe the opposite was true. Regardless, there was no mention of Erik in this regard
during defendant’s conversations with TaShawna on January 6, 2010. On that day, she
was leaving defendant with the impression that she had been with another man. Both that
man and TaShawna’s friend said she told them she was breaking up with Nne that night.
TaShawna said she did not break up with Nne but continued to converse with him by
phone into the early morning hours.
{¶ 6} TaShawna said she had observed defendant with a gun on three occasions.
Her mother also testified that defendant brought a gun into her home once. Cynthia said
she would never allow a weapon in her home and was not aware of one being there,
however, she did not go through her nephew’s belongings.
{¶ 7} Cynthia and Isaac both said Nne was the only other person home when they
went to bed on January 5-6, 2010. Isaac, who went upstairs around 1:00 a.m., indicated
that Erik was usually home from work earlier but had not yet returned by that time this
particular day. Cynthia corroborated this fact.
{¶ 8} The autopsy report indicated that Erik had consumed alcohol shortly before
his death; approximately six drinks. Erik’s girlfriend had spoken with him but did not
know where he went after work. No one was able to identify where Erik had been before
returning to the Allandale home. An officer on patrol saw him walking towards
Allandale just moments before his death but did not observe the murder.
{¶ 9} Erik’s mother and defendant’s father testified that Erik was a great person.
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By all accounts he was a hard worker, spent some time in military training, supported his
daughter and had no known enemies. He and defendant were active in the community,
avid basketball players and musicians. Erik’s mother expressed her dissatisfaction with
the investigation and her belief that defendant had nothing to do with her son’s death.
{¶ 10} Cynthia awoke to gunfire and observed flashes of light outside. At trial
she said it sounded like the shooter was coming up the stairs as the shots sounded closer.
She may have told police that it sounded like the shooter was coming in the house. She
called 9-1-1 and heard her daughter Zoe pick up the phone requesting an ambulance.
Cynthia ventured down the stairs and realized that the victim was Erik; not Nne as Isaac
had initially thought. She did not see Nne and was concerned for his safety. Cynthia
called Nne’s girlfriend TaShawna looking for Nne. Nne’s father went to the hospital and
later returned to Cynthia’s house. Cynthia testified that Nne’s father said, “Don’t be
surprised if Nne has something to do with this.” Nne’s father adamantly denied making
such a statement and insisted his son had not murdered his cousin. Nne’s father said he
based his opinion on Nne’s statement to police and the evidence but had not ever
discussed the matter with his son directly.
{¶ 11} Cynthia and Isaac testified that Nne was last seen on the telephone and they
assumed he had been talking to TaShawna. According to TaShawna, she had been
speaking with Nne and had intentionally lead him to believe that she was having sex with
another man that night. This apparently upset Nne, who told TaShawna he could not
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wait until Erik got home so he could tell him what she had done. However, TaShawna
spoke with Nne subsequently when she returned to her house and things had calmed
down. Nne got off the phone with her and said he would call her back. She did not hear
from him again until later that morning and after Erik had died. TaShawna indicated that
when the subject of Erik’s death arose, defendant asked her “was he your first?” — which
she took to mean her first lover.
{¶ 12} Isaac also heard the gunfire and thought perhaps some shots were fired
from the outside. He went downstairs to investigate and saw a body laying in front of the
doorway. The door was opened but the screendoor was shut. He initially thought it was
Nne. Isaac’s daughter Zoe arrived home from work and saw the body in the doorway.
{¶ 13} Several officers and EMS responded to the scene within minutes. Officers
recovered six fired cartridge casings and three spent bullets from the scene; they were all
from the same 9 mm gun. One bullet was found in a neighboring home and another was
found days later in the basement of the Allandale residence.
{¶ 14} One man testified that he saw defendant walking quickly down Allandale
immediately after the shots were fired. He described the gunfire as being distant, not
“personal,” otherwise he would have left the area. He could not recall specifics because
he was intoxicated, having been drinking for hours in a car with his friends. Another
man had been loitering outside a nearby Convenient store and had also seen defendant
that night. Both men identified defendant’s picture from a photo array. Both individuals
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had criminal records and testified that the state had intervened in their cases to aid in their
ability to remain on probation despite violations. 1 They recalled that defendant was
wearing dark clothing.
{¶ 15} Later that morning, defendant appeared at the home of a woman who lived
on East 143rd Street asking to use the phone. He had spent the night in an abandoned
home. The woman believed defendant was calling his girlfriend to pick him up. When she
overheard defendant repeatedly asking if his girlfriend’s people had anything to do with
it, she suspected something was wrong. The woman inquired further of what had
happened and defendant said someone had shot his cousin and was shooting at him.
Defendant then called his father to pick him up. The woman recalled that defendant was
wearing only a white sweatshirt, which she felt was inappropriate for the extremely cold
weather. She had offered him a coat.
{¶ 16} Defendant’s father picked him up from that location but almost immediately
thereafter the police arrested defendant. Defendant looked scared and defendant’s father
said his actions made sense to him as defendant was in fear for his own life.
{¶ 17} Defendant waived his Miranda rights and voluntarily spoke to police. He
also agreed to submit his DNA for testing. Defendant said he heard the door open and
then shots were fired. He heard the victim asking why did you do that? Defendant’s
hearing was affected from the gunshots and he ran out of the house over “the body.”
1
Probation was only continued for one of the men and the other was sent to prison.
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Defendant told police he encountered his Aunt Cynthia at the steps. Defendant at one
point in his statement told police that he was shot from the front of the house and at
another time said shots were fired at him from behind the house. The detective testified
that he did not feel defendant was being forthcoming and therefore decided not to obtain a
written statement from him.
{¶ 18} Many neighbors testified and said they did not hear any gunfire. One
resident, who had been awake, heard the shots but only saw a dark figure running down
the street. Another man had observed a car parked and running in front of Cynthia’s
residence, which he found unusual, however, this was at least an hour prior to the
shooting. The men who were drinking in the car outside did not see anyone besides
defendant.
{¶ 19} The East Cleveland Police utilized the services of BCI to prepare a shooting
reconstruction. Agent Mark Kollar conducted an investigation and concluded that the
bullet trajectory determinations indicated that the shots were fired from inside of the
residence, with at least one bullet being fired from the first floor landing on the stairwell.
A second bullet hole could have been fired from either inside or outside of the residence
depending upon the angle of the front door at the time of impact. Kollar concluded that
the fact that the first responders found the door angle being open beyond 90 degrees with
the victim laying inside, made it more likely the shot was fired from inside. Although a
bullet was found in a neighboring residence, Kollar opined that it had exited through the
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storm door and ricocheted off the front driveway into the neighboring home. He noted
that this would account for the bullet’s insufficient energy to penetrate the wall it
ultimately struck as well as the deformity of the bullet.
{¶ 20} The Cuyahoga County Coroner testified regarding the gunshot wounds to
the victim. He was unable to state with certainty how many times the victim was shot
because the wounds could overlap. The Coroner estimated there were eight or possibly
nine shots fired. There were some shots that went from the back to the front and others
that entered from the front and exited from the back. He explained that the position of the
body at time of impact was not known and would affect this determination. There was
conflicting evidence as to whether a bullet hole in the victim’s back was an entrance or
exit wound.
{¶ 21} Gunshot primer residue was collected from the victim’s hands but not
tested. Likewise, the fingernail scrapings were collected but not tested. The experts
explained this testing was not done because the reports indicated that there was no close
contact between the victim and the shooter.
{¶ 22} The trace evidence supervisor of the Coroner’s office testified that there
were eleven bullet holes in the victim’s jacket, which could be both entrance and exit
holes. He testified that testing revealed that several shots were fired from a distance of
four to five feet or more, while others indicated shots being fired between one and three
feet, still others were inconclusive for distance. The trace evidence supervisor said if
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someone fires a gun they will have gunshot primer residue (“GSR”) on their hands.
However, GSR is easily removed from the skin. While GSR can also be removed from
clothing, it is more difficult due to it getting embedded in the weave of the fabric.
{¶ 23} Defendant was tested for GSR, however, the police did not test any other
occupants of the Allandale home for GSR who were also present at the scene of the
murder; which included Cynthia, Isaac, and Zoe.
{¶ 24} Samples of defendant’s clothing were submitted for testing, including the
cuff and pocket portions of his sweatshirt. Two particles that are highly indicative of GSR
were found on defendant’s left cuff and pocket area. Records indicate that defendant is
right handed. No GSR particles were found on the samples taken from his pants. There
was insufficient DNA obtained from the bullets to run any testing on it.
{¶ 25} Tests conducted on the spent casings indicated they were all from the same
type of bullet. Several witnesses testified that 9 mm guns expel casings but revolvers do
not.
{¶ 26} Cynthia testified that it was her personal opinion that defendant had
committed the crime. Under cross-examination she admitted that this was not based on
any evidence but was told to her by the Lord during prayer. Conversely, the victim’s
mother, also defendant’s aunt, echoed defendant’s father’s opinion that defendant had not
committed the murder and explained that this opinion was derived from the evidence and
their understanding of his relationship with his cousin. She, however, also had not spoken
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with defendant directly about the incident.
{¶ 27} The murder weapon was never recovered and defendant’s father testified
that he had possession of both of his 9 mm guns at the time in question.
{¶ 28} The jury found defendant guilty and the trial court imposed an eighteen year
to life prison sentence. Defendant appeals.
{¶ 29} “Assignment of Error I: The guilty verdict and conviction found by the jury
against Appellant was based upon insufficient evidence.”
{¶ 30} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is 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} As the record reflects, the case against defendant is almost entirely based on
circumstantial evidence. Nonetheless, “[p]roof of guilt may be made by circumstantial
evidence as well as by real evidence and direct or testimonial evidence, or any
combination of these three classes of evidence. All three classes have equal probative
value, and circumstantial evidence has no less value than the others.” (Citations and
quotations omitted.) State v. Nicely (1988), 39 Ohio St.3d 147, 151, 529 N.E.2d 1236.
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{¶ 32} Defendant argues that the evidence was insufficient to prove that he
purposely caused his cousin’s death and focuses on the following areas: gunshot primer
residue, negative DNA tests, the shooting reconstruction, defendant’s flight and period of
absence, his access to guns, his suggested jealousy, and his relationship with TaShawna.
{¶ 33} In terms of a sufficiency analysis, the focus remains on whether the state
has presented any evidence, that if believed, would support a conviction of murder
pursuant to R.C. 2903.02(A) that defendant “purposely cause[d] the death of [Erik
Lewis].”
{¶ 34} Distilling the evidence to the basics, the record presents evidence that
defendant was home with Cynthia and Isaac when Erik entered the home. Shots were
fired. Cynthia and Isaac came downstairs and found Erik lying in the doorway with
multiple gunshot wounds. Zoe arrived almost immediately after the shooting and also
observed Erik’s body.
{¶ 35} Nne, who was home when Isaac went to bed at 1:00 a.m. and placed
himself there when shots were being fired, was no longer there when Cynthia and Isaac
discovered the body. Eyewitnesses saw him walking down the street right after shots
were fired. Although defendant made a statement that he ran away in fear for his life,
while being shot at, he was seen walking quickly down the street after shots had already
been fired. Defendant was inconsistent in his statement to police as to the location of the
shooter. He heard his cousin come inside and said the gunshots affected his hearing.
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Yet, he was able to leave the home going over Erik’s body and said he was shot at from
outside. This is contrary to Cynthia and Isaac’s testimony that indicated the shooter
sounded further inside the house with each successive shot.
{¶ 36} The shooting reconstruction concluded that the shots were likely fired from
inside the home and most of the neighbors did not hear the gunfire at all. The
eyewitnesses described defendant as wearing dark clothes when he was seen leaving the
scene yet he had on a white sweatshirt when he was arrested ten hours later. He did have
some particles indicative of GSR on some parts of his clothes that were tested despite that
he had been absent for approximately ten hours. The defense was able to suggest the
possibility of more than one shooter based on the number of gunshot wounds found in the
victim’s body and the fact that some weapons do not expel bullets. However, the evidence
collected from the scene was all consistent with having been fired from the same weapon.
The defense also elicited testimony of a possible robbery. But, Cynthia testified she held
the victim’s money, which would account for the fact that he was found with only change
in his pocket. Also, nothing had been taken from the Allandale residence. No weapon was
recovered but testimony placed defendant in possession of guns on at least three
occasions and indicated he may have attempted to recently remove guns from his father’s
home. There was sufficient evidence to sustain a murder conviction and this assignment
of error is overruled.
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{¶ 37} “Assignment of Error II: the guilty verdict and conviction were against the
manifest weight of the evidence.”
{¶ 38} To warrant reversal of a verdict under a manifest weight of the evidence
claim, this court must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in resolving
conflicts in evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the judgment must be reversed and a new trial ordered. State v.
Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶ 39} Having thoroughly reviewed the record, we cannot conclude that the jury
clearly lost its way in convicting defendant.
{¶ 40} Defendant admits he was in the home when the shooting occurred. He takes
exception with the conclusions of the shooting reconstructionist that all shots were likely
fired from inside of the residence and points to Cynthia’s testimony that she saw
“flashing” outside her window. While this may cast some doubt as to the location of the
shooter, it does not render the jury’s verdict against the manifest weight of the evidence
or lead to the conclusion that the jury clearly lost its way.
{¶ 41} We agree that the jury could have reached a contrary verdict based on the
evidence, depending upon the weight they applied to it. Nonetheless, there is evidence in
the record that does support his conviction; among it the detective’s testimony that
defendant’s version of events was inconsistent and was also contradicted by other
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evidence in the record. Defendant did have some GSR on him. While it was a small
amount, the testimony indicated additional GSR evidence could have been lost or
removed during the period of defendant’s absence. Further, the jurors received a flight
instruction; that permitted the jury to consider defendant’s flight as evidence of his
consciousness of guilt. Defendant believes the evidence of his possession of guns,
physical altercations with TaShawna, and his jealousy of his cousin were “remote” and
should weigh against his conviction. Defendant highlights the lack of direct evidence
linking him to the crime. As set forth above, the law does not require the state to present
direct evidence in order to sustain a conviction and provides that circumstantial evidence
is to be accorded the same weight. Considering the record as a whole, defendant’s
conviction was not against the manifest weight of the evidence and this assignment of
error is overruled.
{¶ 42} “Assignment of Error III: Appellant’s trial counsel committed ineffective
assistance of counsel.”
{¶ 43} To substantiate a claim of ineffective assistance of counsel, a defendant
must demonstrate that (1) the performance of defense counsel was seriously flawed and
deficient, and (2) the result of defendant’s trial or legal proceeding would have been
different had defense counsel provided proper representation. Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio
St.3d 144, 495 N.E.2d 407. In State v. Bradley, the Ohio Supreme Court truncated this
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standard, holding that reviewing courts need not examine counsel’s performance if the
defendant fails to prove the second prong of prejudicial effect. State v. Bradley (1989),
42 Ohio St.3d 136, 538 N.E.2d 373. “The object of an ineffectiveness claim is not to
grade counsel’s performance.” Id. at 143, 538 N.E.2d 373.
{¶ 44} Defendant asserts his counsel was ineffective for failing to request a jury
instruction with regard to the lesser included offense of voluntary manslaughter. The
Supreme Court of Ohio, in State v. Griffie (1996), 74 Ohio St.3d 332, 658 N.E.2d 764,
held that the decision to request a jury instruction with regard to a lesser-included offense
is a matter of trial strategy and does not constitute ineffective assistance of trial counsel.
See, also, State v. Clayton (1980), 62 Ohio St.2d 45, 402 N.E.2d 1189, certiorari denied
(1980), 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102. It must also be noted that a
defendant is not entitled to an instruction on a lesser-included offense if participation in
the charged wrongdoing is denied. State v. Reider (Aug. 3, 2000), Cuyahoga App. No.
76649.
{¶ 45} During the course of trial and even on appeal, defendant’s trial strategy
involved a complete denial of any criminal activity, that resulted in the death of the
victim. Defendant’s trial strategy prevented any request for a jury instruction with regard
to the offense of voluntary manslaughter. State v. Reider, supra. Accordingly, trial
counsel was not ineffective in this regard.
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{¶ 46} Secondly, defendant asserts that his attorney was ineffective because he
elicited testimony from his aunt that she based her opinion of his guilt on the fact that the
“Lord told” her that defendant did it. This did not amount to ineffective assistance of
counsel. Cynthia’s direct testimony and that of other family members clearly implied her
belief that defendant was guilty of the murder. The defense simply elicited testimony
that she had not based this opinion on any evidence. The defense further supplied
testimony from the victim’s own mother, also defendant’s aunt, that she did not believe
defendant had committed the murder. This was supported by defendant’s father’s
opinion that he did not commit the crime. Counsel’s scope of cross-examination was
within the realm of trial strategy and did not constitute ineffective assistance of counsel.
{¶ 47} This assignment of error is overruled.
{¶ 48} “Assignment of Error IV: The trial court erred in permitting hearsay
testimony to be admitted.”
{¶ 49} During direct examination of Cynthia Lewis the following exchange took
place over defendant’s objection:
{¶ 50} “Q: Did your brother ever make a comment to you that you felt was
concerning to you?
{¶ 51} “A. Yes.
{¶ 52} “Q. What was that comment?
{¶ 53} “[Defense counsel]: Objection
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{¶ 54} “THE COURT: Overruled.
{¶ 55} “A. The comment was, ‘Don’t be surprised if Nne has something to do with
this.’”
{¶ 56} Defendant submits that this testimony amounted to hearsay and its
admission resulted in prejudicial error requiring reversal. The state responds that any error
in its admission was harmless in that the defense called defendant’s father to the stand
who denied making the statement.
{¶ 57} Hearsay is any statement, other than one made by a declarant at trial, which
is offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). Generally,
a statement is not hearsay if it is admitted to prove that the declarant made it, rather than
to prove its contents. State v. Williams (1988), 38 Ohio St.3d 346, 348, 528 N.E.2d 910,
914. It is unclear whether the state offered the testimony to prove that defendant’s father
simply made the statement or whether they were offering it to prove its truth, that his
father believed defendant may have been involved in his cousin’s murder. Because the
State has not maintained it had offered the testimony for some reason other than to prove
the truth of the matter asserted therein nor has the State addressed the hearsay aspect of
the testimony at all, we will presume the testimony qualified as hearsay and should not
have been admitted. Nonetheless, defendant was able to confront the declarant, his father,
about the alleged statement during his case-in-chief. Defendant’s father adamantly denied
making such a statement. The Ohio Supreme Court directs, “the Constitution entitles a
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criminal defendant to a fair trial, not a perfect one * * * [and] ha[s] repeatedly reaffirmed
the principle that an otherwise valid conviction should not be set aside if the reviewing
court may confidently say, on the whole record, that the constitutional error was harmless
beyond a reasonable doubt.” Williams, supra at 349, other citations omitted. Any error in
admitting this isolated testimony by defendant’s aunt, which was unequivocally refuted by
defendant’s father’s testimony, was harmless beyond a reasonable doubt when
considering the whole record. This assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its 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.
JAMES J. SWEENEY, JUDGE
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MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR