State v. Walker

• Decision Date: 26 July 1978
• Docket Number: No. 77-984,77-984
• Citation: 55 Ohio St.2d 208,378 N.E.2d 1049
• Parties: , 9 O.O.3d 152 The STATE of Ohio, Appellee, v. WALKER, Appellant.
• Court: Ohio Supreme Court

Page 208

55 Ohio St.2d 208

378 N.E.2d 1049, 9 O.O.3d 152

The STATE of Ohio, Appellee, v. WALKER, Appellant.

No. 77-984.

Supreme Court of Ohio.

July 26, 1978.

Raymond Walker, a. k. a. Dewitt Ingram (appellant), was indicted on March 12, 1976, by the Stark County grand jury for the crime of first degree murder, R.C. 2901.01. The indictment, in relevant part, reads:

"That Raymond Walker * * * on or about the 22nd day of July in the year of our Lord one thousand nine hundred and seventy two * * * did purposely, in perpetrating or attempting to perpetrate robbery, kill Guy Mack * * *."

Guy Mack (decedent), an off-duty city of Canton police officer, was shopping with his wife for their weekly groceries in an A & P store located at 1800 East Tuscarawas, Canton, Ohio, on the morning of July 22, 1972. While their purchase was being tabulated, three men entered the store. One remained by the door, another entered the manager's cage and the third proceeded to the checkout counters. The decedent then attempted to grab this third man, as he was collecting the money from the checkout counter. This third man fired three shots, two of which struck the decedent fatally wounding him.

Subsequently, Warren Davidson and Fred Ogeltree were arrested in connection with their participation in this crime. Both were convicted, in 1973, of first degree murder and sentenced to life imprisonment. While serving their sentences at Lucasville, Davidson and Ogeltree implicated the appellant as the person actually responsible for fatally shooting the decedent.

The second trial of the appellant for the murder of the decedent was commenced on August 23, 1976 (the first trial resulted in a hung jury). Both Davidson and Ogeltree testified at trial as to appellant's participation in the robbery. Ogeltree stated that he saw the appellant shoot the decedent. It was admitted during the trial that the Stark County prosecutor had agreed to send a recommendation to the Governor of Ohio, noting the cooperation of Davidson and Ogeltree in return for their testimony in the instant cause.

The state of Ohio (appellee) also introduced an eyewitness, Rene Clark, who at the trial positively identified the appellant as the man who shot the decedent. Other evidence was adduced by appellee to support its case. This evidence included, Inter alia : (1) The decedent's wife, although unable to positively identify the appellant as the murderer, stated that he definitely looks very much like the man, and (2) Mrs. Willie Mae Hart testified that shortly after the crime occurred she saw a brown compact automobile being driven by a man with a bad complexion similar to appellant's. This testimony of Mrs. Hart to some extent supported Ogeltree's and Davidson's testimony concerning the details of their and appellant's departure from the scene of the crime. ¹

The appellant introduced the defense of alibi. Appellant submitted in evidence the records of the Cuyahoga County jail, which show that appellant was therein incarcerated from April 14, 1972, until his release on August 1, 1972. Appellant further introduced other evidence in an attempt to discredit the testimony of Davidson and Ogeltree and that of Rene Clark.

In order to discredit appellant's alibi, appellee adduced various testimony, attempting to disprove the credibility of the records of the Cuyahoga County jail, including, but not limited to, the testimony of three people to the effect that they had seen appellant not in police custody but free in Cleveland in June of 1972.

On September 3, 1976, the jury returned a verdict of guilty. The trial judge thereupon sentenced the appellant to a term of life imprisonment.

Appellant then appealed to the Court of Appeals, which affirmed the judgment of the trial court.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

James R. Unger, Pros. Atty., and Dale T. Evans, Massillon, for appellee.

Merkel, Campbell, Dill & Zetzer, Ernest P. Mansour, Eli Manos, David B. Cathcart and Stanley E. Tolliver, Cleveland, for appellant.

PER CURIAM.

I.

Appellant, in his first proposition of law, essentially asserts that the evidence presented at trial did not attain the requisite degree of proof needed to support his conviction. Our consideration of this proposition is limited to an examination of the record at the trial to determine whether the evidence presented, "which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." Atkins v. State (1926), 115 Ohio St. 542, 546, 155 N.E. 189, 190. This review is thus confined to a determination of whether there was substantial evidence. State v. Sheppard (1956), 165 Ohio St. 293, 135 N.E.2d 340, paragraph five of the syllabus; State v. Stewart (1964), 176 Ohio St. 156, 160, 198 N.E.2d 439.

A review of the record reveals that appellee produced the testimony of two accomplices, Davidson and Ogeltree, as to appellant's participation in the crime. Ogeltree testified that he saw appellant shoot the decedent. The record also contains the in-trial identification of appellant as the decedent's murderer by Rene Clark, an uninterested eyewitness. Her in-court identification of appellant withstood a vigorous cross-examination by appellant's counsel. Furthermore, the decedent's wife, Mrs. Mack, testified that the appellant looked "very much like the man" who shot her husband. The testimony of Mrs. Hart, introduced by the appellee, corroborated the testimony of Davidson and Ogeltree with respect to their and appellant's fleeing the scene of the crime. Mrs. Hart, who lives in the proximity of the A & P food store, testified that on the morning of July 22, 1972, she observed two cars traverse the street where she lives at a very high rate of speed. Mrs. Hart stated that the first car was white and occupied by two males, and the second was a brown compact and was driven by a man with a rough complexion similar to the appellant's. Appellee also produced, in addition to the testimony of Davidson and Ogeltree, three other witnesses, who stated at trial that they had seen the appellant in Cleveland and free of custody during the period the records of the Cuyahoga County jail reflect his confinement therein.

Appellant, in his first proposition of law, does not argue the inadmissibility of any of the preceding evidence. Instead, appellant at first reiterates the evidence that was produced during the trial with respect to his alibi of incarceration in the Cuyahoga County jail on the date of the murder, I. e.: (1) The court and jail records show he was in jail on that date; (2) inmates testified that he was in jail continuously during the period of confinement; and (3) no evidence of appellant's escape from or surreptitious re-entering into the jail was produced at the trial. Appellant then proceeds to recount the evidence presented against him. He argues with respect to the testimony of Davidson and Ogeltree that they testified with the hope of leniency, referring to the Stark County prosecutor's promise to send a recommendation to the Governor. Appellant also states that Ogeltree bore malice toward him because of appellant's involvement with Ogeltree's former wife. Furthermore, appellant argues that it was revealed at trial that Ogeltree had told three people that appellant was not involved in the robbery and murder. Concerning the testimony of Rene Clark, appellant cites her earlier identification of a person other than appellant as the decedent's murderer. Moreover, appellant states that there was testimony that, after Rene Clark failed to identify appellant in a lineup, she was verbally abused by Sergeant William Newkirk of the Canton Police Department. Appellant thus implies intimidation with respect to her in-trial identification of appellant, but the record reveals that she denied this and stated that her earlier misidentification was the intentional product of her fear. Appellant continues to proceed with his refutation of appellee's evidence. This court, however, discerns little utility in complete reiteration of appellant's argument.

It is readily apparent that appellant, in his first proposition, is not asserting the insufficiency of the evidence presented at trial, but is engaging in an attack on the credibility of the evidence. Clearly, the evidence produced by the appellee, "if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." Atkins, supra, 115 Ohio St. at page 546, 155 N.E. at page 190. Credibility is a question of fact to be determined by the jury and a reviewing court should not substitute its judgment for that of the jury. State v. Kehn (1977), 50 Ohio St.2d 11, 361 N.E.2d 1330; State v. Wolery (1976), 46 Ohio St.2d 316, 348 N.E.2d 351. This court's recent statement in Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 72, 362 N.E.2d 646, 648, is controlling in this cause:

"Since reasonable minds could reach different conclusions concerning this testimony, determination as to what occurred was a question of fact for the jury. * * * State v. Antill (1964), 176 Ohio St. 61, 197 N.E.2d 548. This court on review will not disturb this jury finding so long as there was competent evidence to support it. * * * "

Determining, therefore, upon our review of the record that there was substantial evidence presented which, if believed, would convince the average mind of defendant's guilt beyond a reasonable doubt, we find no merit to appellant's first proposition of law.

II.

Appellant, in his second proposition of law, alleges that for the reasons stated in his first proposition the verdict in the instant cause was clearly against the weight of the evidence and that the Court of Appeals failed to weigh the evidence.

We find no merit to appellant's second proposition of law. It is the function of the jury to resolve the facts of the case and determine the credibility of the witnesses before it. State v. Clay (1...