State v. Williams

[Cite as State v. Williams, 2015-Ohio-3578.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DONALD MAURICE WILLIAMS : Case No. 2014CA00199
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No.
2014CR1056
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 31, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JACOB T. WILL
Prosecuting Attorney 116 Cleveland Ave. NW
Suite 808
By: RONALD MARK CALDWELL Canton, OH 44702
Assistant Prosecuting Attorney
110 Central Plaza South, Suite 510
Canton, OH 44702
Stark County, Case No. 2014CA00199 2
Baldwin, J.
{¶1} Appellant Donald Maurice Williams appeals a judgment of the Stark
County Common Pleas Court convicting him of attempted murder (R.C. 2923.02(A),
R.C. 2903.02(A)), felonious assault (R.C. 2903.11(A)(1)), and aggravated burglary (R.C.
2911.11(A)(1)). Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} During the early morning hours of June 29, 2014, Melissa Johnston
knocked frantically on the front door of the Canton residence of Clifford Jordan.
Jordan's friend Joe Sherrell, who was visiting from Tennessee, answered the door to
find a bloodied and scared Johnston. Sherrell immediately got Jordan to come to the
door. Johnston repeatedly told the men, "He's going to kill me." They observed cuts on
her legs and arms. Before they could close the door, appellant pushed Jordan aside
and entered the residence.
{¶3} Jordan warned appellant that he was calling the police. Appellant pushed
Johnston on a couch, grabbed her, tore her shirt off, and said that he was going to get
her. Appellant was holding a knife with a blade four to six inches long. The men tried to
talk appellant out of hurting Johnston, while Johnston continued screaming that
appellant was going to kill her. Finally Jordan called his dog, a Lab-Rottweiler mix, from
the basement. Upon seeing the dog, appellant fled. Jordan shut the front door and
called 911.
{¶4} Canton Police Officer James Nixon responded to the call. When he
arrived, paramedics were attending to Johnston, who was in the ambulance. After
speaking to Jordan and Sherrell, Officer Nixon spoke to Johnston in the ambulance.
Stark County, Case No. 2014CA00199 3
She told him that she stays with appellant but they do not have a permanent residence,
they move from house to house together. They were staying at a home around the
corner from Jordan's home. She argued with appellant about whether she was involved
with or talked to another man, and he assaulted her, giving her a black eye and stab
wounds. She told the officer that appellant was intoxicated. She broke free, and fled to
Jordan's house for help, where appellant followed her and continued the attack. Officer
Nixon noted that Johnston had a serious stab wound to her neck, and other cutting
wounds to the back of her neck, her thigh, and her abdomen.
{¶5} Johnston was transported to Aultman Hospital where she was treated for
23 lacerations. Ten of the wounds were closed by stitches, and she had numerous
other abrasions, scrapes and bruises covering her body.
{¶6} Appellant was indicted with attempted murder, felonious assault, and
aggravated burglary, all including repeat violent offender (RVO) specifications. The
case proceeded to jury trial. During the reading of the indictment, the court
inadvertently read the RVO specifications, which had been severed for purposes of trial
and were to be tried to the court. The court declared a mistrial.
{¶7} A second jury trial commenced one week later. Appellant was found guilty
of all charges by the jury, and the court found appellant guilty of the RVO specifications.
He was sentenced to an aggregate prison term of nineteen years.
{¶8} Appellant assigns two errors on appeal:
{¶9} "I. APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT
WITNESSES AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT
PERMITTED THE ADMISSION OF HEARSAY STATEMENTS.
Stark County, Case No. 2014CA00199 4
{¶10} "II. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
I.
{¶11} Appellant argues that the admission of Johnston's statement to Officer
Nixon violated his Sixth Amendment right to confront witnesses. Johnston was
unavailable to testify at trial.
{¶12} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004), the United States Supreme Court concluded that the Sixth Amendment prohibits
the introduction of testimonial statements by a nontestifying witness, unless the witness
is “unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Id. at 54. Applying that definition to the facts in Crawford, the court held
that statements by a witness during police questioning at the station house were
testimonial and thus could not be admitted. Id.{¶13} In Davis v. Washington and Hammon v. Indiana, 547 U.S. 813, 126 S.Ct.
2266, 165 L.Ed.2d 224 (2006), which the U.S. Supreme Court decided together, the
court concluded that statements are not testimonial if the primary purpose of the
interrogation by law enforcement was to enable police to respond to an ongoing
emergency. Statements are testimonial when the circumstances objectively indicate
that there is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish past events that are potentially relevant to later criminal
prosecution. Id. at 822.
{¶14} The Supreme Court further expounded on the primary purpose test in
Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). In that case,
Stark County, Case No. 2014CA00199 5
the victim of a shooting made statements to the police within five to ten minutes of the
shooting, which ultimately resulted in his death. The armed shooter remained at large.
In finding the victim's statements to the police to be non-testimonial, the court explained
that the existence of an “ongoing emergency” at the time of the encounter is among the
most important circumstances informing the interrogation's “primary purpose.” Id. at
361. Whether an emergency exists and is ongoing is a highly context-dependent
inquiry. Id. at 363. An assessment of whether an emergency threatening the police and
public is ongoing cannot narrowly focus on whether the threat to the first victim has
been neutralized because the threat to the first responders and public may continue. Id.An emergency's duration and scope may depend in part on the type of weapon
involved. Id. at 364.
{¶15} A victim's medical condition is also important to the primary purpose
inquiry to the extent that it sheds light on the victim's ability to have any purpose at all in
responding to police questions and on the likelihood that any such purpose would be
testimonial. Id. at 364-365. The victim's condition also provides an important context
for first responders to judge the existence and magnitude of a continuing threat to the
victim, themselves, and the public. Id. at 365. An emergency does not necessarily last
the entire time that a perpetrator is on the loose, but trial courts can determine in the
first instance when an interrogation transitions from non-testimonial to testimonial. Id.{¶16} Finally, another factor to consider pursuant to the "primary purpose" test is
the encounter's informality. Id. at 366. Formality suggests the absence of an
emergency, but informality does not necessarily indicate the presence of an emergency
or the lack of testimonial intent. Id. However, the court distinguished the facts in
Stark County, Case No. 2014CA00199 6
Bryant, where the questioning occurred in an exposed public area, before emergency
medical services arrived, and in a disorganized fashion, from the formal station-house
interrogation in Crawford. Id.{¶17} The circumstances reflect that at the time police spoke to Johnston, there
was an ongoing emergency. Officer Nixon arrived on the scene about seven minutes
after dispatch received the 911 call. Johnston had been attacked by a man armed with
a knife in one location, and he had pursued her into the street and into another home.
She indicated to police that appellant was intoxicated. He fled on foot with the knife in
his possession. It was night-time, and there were known "flop houses" in the area
which could possibly provide cover for the armed assailant. The officer testified that he
did not have a reason to believe that the victim was still in danger from appellant, but
there "were other issues going on in the neighborhood outside at that time." Tr. (II) 66.
After speaking to Johnston, police first secured a home in the area which had high
bushes that might conceal the presence of an assailant. Officer Nixon then noticed that
the door to the duplex where the attack began was open, and he radioed for backup
and a canine unit to search the home. The actions taken by the officers after speaking
to Johnston clearly indicate that they perceived an ongoing emergency until they could
determine whether appellant was still present in the neighborhood.
{¶18} In addition, Johnston's medical condition lends itself to a conclusion that
her statements were non-testimonial. She was in pain, scared and upset when Officer
Nixon spoke to her. She had been stabbed 23 times and the officer was concerned
about a stab wound to her neck. Her condition further indicates that appellant posed a
Stark County, Case No. 2014CA00199 7
threat to first responders and others in the area, as he repeatedly attacked her with a
knife in more than one location.
{¶19} Finally, the setting in which Johnston was questioned was informal.
Unlike Bryant, emergency personnel had arrived on the scene before police spoke to
Johnston. However, the questioning occurred shortly after the attack and while the
victim was still in an ambulance in the neighborhood where the incident took place, not
in a more formal setting such as the police station.
{¶20} The court did not err in finding that the statement Johnston made to the
police was non-testimonial in nature, and its admission did not violate the Confrontation
Clause. The first assignment of error is overruled.
II.
{¶21} In his second assignment of error, appellant argues that the judgment is
against the manifest weight and sufficiency of the evidence, specifically as to the
identity of the perpetrator. He argues that the identification offered by Jordan and
Sherrell was unreliable and equivocal, and that there were discrepancies in their
testimony concerning what both Johnston and appellant were wearing.
{¶22} 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,
Stark County, Case No. 2014CA00199 8
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717 (1983).
{¶23} 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, 61 Ohio St. 3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
{¶24} Johnston identified appellant to Officer Nixon as the person who attacked
her. She knew appellant, as they were living together and romantically involved at the
time of the incident. Jordan's in-court identification of appellant was equivocal due to
appellant's growth of a beard. He testified that appellant looked familiar, but he was not
sure about the beard. However, Sherrell positively identified appellant as the
perpetrator, noting that he didn't have a beard at the time of the incident. While there
were discrepancies in the testimony of the two men regarding the clothing worn by
Johnston and appellant, they testified that they were paying more attention to
appellant's knife and Johnston's medical condition than to what they were wearing.
{¶25} The evidence was sufficient to identify appellant as the perpetrator of the
offenses, and the judgment is not against the manifest weight of the evidence.
Stark County, Case No. 2014CA00199 9
{¶26} The judgment of the Stark County Common Pleas Court is affirmed.
Costs are assessed to appellant.
By: Baldwin, J.
and Delaney, J. concur.
Hoffman, P.J. concurs in part
and dissents in part.
Stark County, Case No. 2014CA00199 10
Hoffman, P.J., concurring in part and dissenting in part
{¶27} I concur in the majority's analysis and disposition of Appellant's second
assignment of error. However, I respectfully dissent from the majority's disposition of
Appellant's first assignment of error.
{¶28} Unlike the majority [and trial court], I do not find the circumstances herein
justify the characterization of Johnston's statements to Officer Nixon as non-testimonial
due to the existence of an "ongoing emergency".
{¶29} I find the majority's conclusion based upon the primary purpose test set
forth in Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed. 2d 93(2011), leads
me to a different conclusion.1 I find the factual distinctions between Bryant and the case
sub judice significant.
{¶30} First and foremost is that the weapon involved herein was a knife whereas
the weapon in Bryant was a gun. Second, unlike the scenario in Bryant, here Johnston
was already in the ambulance and being attended to by medical personnel at the time
Officer Nixon was questioning her.
{¶31} The object of Appellant's violent act was clearly focused on Johnston.
Appellant took no violent action against either Jordan or Sherrell, nor did the nature of
the attack suggest a random, unprovoked threat against the general public.
{¶32} Appellant, having been told Jordan was calling the police and upon seeing
Jordan's dog, fled. At that point, it seems unlikely Appellant would attempt to re-enter
Jordan's residence to continue his assault on Johnston.
1
Of the eight justices participating in Bryant, two dissented.
Stark County, Case No. 2014CA00199 11
{¶33} By the time Officer Nixon arrived, Johnston was already being attended to
by medical personnel and had been secured in the ambulance. This is a far different
scenario from that in Bryant where the victim was found by the police lying in a gas
station parking lot bleeding from a mortal gunshot wound.
{¶34} Of significance to the majority in Bryant, in concluding the emergency
encompassed a potential threat to the police and the public, was the fact the case
involved a gun; therefore, the physical separation between the victim and the defendant
was not necessarily sufficient to end the threat. In contrast, I find the physical
separation between Appellant and Johnston was sufficient to end the potential threat
given the fact the weapon involved, a knife, and the injuries inflicted during the attack
required close proximity between Appellant and Johnston or, for that matter, any other
person. Appellant fled before the ambulance or police arrived. Unlike situations we too
frequently see reported on the national news involving random mass shootings in public
locations - this attack was clearly focused on one individual and involved a weapon less
potentially threatening to armed police officers. I find the threat to the first responders
and general public was insufficient to find an ongoing emergency existed.
{¶35} Also of significance to the majority in Bryant was the medical condition of
the victim. Unlike the medical condition of the victim in Bryant, whose response to
questions by the police were punctuated by his questions about when emergency
medical services would arrive, Johnston was already being attended to by medical
personnel and secured in the ambulance. While the circumstances lacked the
"formality" attendant to the station-house interview in Crawford, it was more formal than
the unsafe, not tranquil environment existent in Davis v. Washington, and Hammon v.
Stark County, Case No. 2014CA00199 12
Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 224 (2006). I find the "primary
purpose" of the questioning of Johnston would have been understood by her and Officer
Nixon to establish or prove past events potentially relevant to later criminal prosecution.
{¶36} In conclusion, I find Johnston's statements to Officer Nixon were
testimonial and were improperly admitted in violation of Appellant's Sixth Amendment to
confront witnesses.