In re Rachel Rivera, a Minor
| Decision Date | 22 August 1996 |
| Docket Number | 69320,96-LW-3879 |
| Parties | IN THE MATTER OF: RACHEL RIVERA, a Minor, Appellant |
| Court | Ohio Court of Appeals |
Appeal from Court of Common Pleas - Juvenile Court Division Case No 9504340.
For Appellant: JAMES A. DRAPER, Cuyahoga County Public Defender BARRY KING, Assistant Public Defender, 1910 Carnegie Avenue, Cleveland, Ohio 44115.
For Appellee: STEPHANIE TUBBS JONES, Cuyahoga County Prosecutor, MARK MAJER, Assistant JOSEPH RUSSO, Assistant Prosecuting Attorneys, 1200 Ontario Street, Cleveland, Ohio 44113.
Appellant Rachel Rivera, a minor, appeals from the Juvenile Court's finding of delinquency arising out of her complicity to commit murder (R.C. 2903.02(A) and 2923.03(A)). Appellant contends the prosecutor's misconduct denied her a fair trial; the trial court erred in not granting a continuance; limiting cross examination; not dismissing the case for lack of sufficient evidence; and in not granting a new trial. We find no reversible error and affirm.
Appellant, a 13 year old, was charged with complicity to commit the murder of Francine Lance, age 12, who was beaten and strangled in the presence of several adolescents, including appellant, on September 23, 1994, in an alley on Cleveland's near west side.
Detective Martin from the Cleveland Police Homicide Unit responded to the scene at 3:20 p.m. on that date and found the victim in full rigor mortis on the ground. Her pants were down around her ankles and her arm was bent behind her back with a rope tied around her right wrist. A blue and white bandanna was tied tightly around her neck.
Dr. Raaf from the Coroner's Office testified the cause of death was cervical compression from the bandanna around the neck with blunt impacts to the head, neck, trunk and extremities, and ruled it a homicide. She testified to the severe beating inflicted on the victim and the numerous contusions and abrasions sustained which occurred very close to the time of death and abrasions under the bandanna occurred after death. She testified that it took a minimum of four minutes to strangle the victim to death.
Several adolescents who were at the murder scene testified for the State. Nicole Hine testified that Francine Lance, the victim, was with Christina Keating, Jessica Keating, Steven Kidwell, Rachel Rivera and Richard Koballa the morning of the murder. She saw the victim being choked with her own bandanna by Kidwell. The choking lasted a couple of minutes. She testified that Francine, the victim, and Rachel, the appellant, did not like each other.
On re-direct examination, she testified that she was not able to testify to how the episode began because she was talking to Christina Keating. She was pretty sure Francesca Flores was present, but she did not remember . Upon refreshing her memory with her prior statement, she testified that Francesca was there. On re-cross examination, she again stated that Rachel, the appellant, was in the alley observing what occurred with Francine, the victim.
Barbara Rufty, appellant's cousin, testified for the State. She testified that the appellant was talking about a fight and Rachel told her the day before Francine was murdered that "they" were going to kill Francine. She also testified that she recalled telling the detectives in February 1995 that Rachel told her what happened to Francine.
Earl Hartwig testified that he saw a girl matching the Victim's description and wearing the clothing that the victim had on around 8:00 a.m. on September 23, 1994, in the vicinity of the murder scene. He also stated that she had her hair in a pony tail with something dark colored tied around it.
Francesca Flores stated she left Thomas Jefferson Junior High School about 9:30 a.m. with the appellant. They came across Kidwell, Koballa and others and a conversation concerning Francine took place. The conversation was not friendly and they were making fun of her. As their group was walking, they saw Francine on the other side of the street by herself. Rachel stated, "There's Francine," and they called her over. The group started going the opposite way they were originally going before they saw Francine. Rachel and Francine were up front and Rachel was leading the group which went into the alley behind some bushes. Rachel was talking to Francine and then she punched Francine with her fist in the face. Francine fell and everyone jumped in, which stopped her from getting up. Everyone was hitting and kicking her for some period of time. The appellant kicked and punched her numerous times.
According to Flores, Steven Kidwell then used the victim's bandanna to strangle her. She was strangled for one to two minutes. The victim's pants were pulled down during the attack. Her hands were tied behind her back with something brown, before Kidwell began to choke her.
According to Flores, Rachel stated, just prior to leading the group to the bushes, that they were going to beat her up or something. She also testified that Christina Keating and Jessica Keating were present, but did not remember if Nicole Hine was there. She testified that she had received threats about testifying.
The court liaison for Cleveland Public Schools testified to the attendance records of the children reflecting their absence from school at various times on September 23, 1994, relative to the time of the murder.
Diane Chada, the appellant's mother, was called as a court's witness during the State's case. She stated that she heard Rachel on the phone at 1:00 a.m. on September 23 with the victim and that she was planning on cutting school with Francine. She testified that she called the police about 10:30 a.m. to report her daughter truant from school and that she waited in a car by Raphael Santana's house for about one hour before the police arrived. The police only found Raphael and Christina Keating at the house. They then went to Elizabeth McNeely's house across the street where they found Rachel around 12:00 p.m. Chada stated this was the first time she saw her daughter that day.
Detective Garisek from the Cleveland Police Homicide Unit testified that Diana Chada, appellant's mother, told him that Rachel made a phone call at 1:00 a.m. on September 23, 1994, to Francine and planned on cutting school to meet her at the
Convenient Store on Clark Avenue. Rachel also told the detective that she was on the phone with the victim at 2:00 a.m. that day and planned to cut school and meet her at the Convenient Store on Clark. Rachel also told him that she cut school, at periods one-two, with McNeely, but Francine never showed up. Rachel also told Detective Garisek that she was having problems with Francine and they were supposed to fight, but things worked out and they never fought. The detective testified that he discovered the contents of the letter (State's Ex. 43), two weeks before trial. It was dated September 2, 1994, and was signed by Francine. This letter was found in the victim's purse. The detective also testified that McNeely's house was within a five minute walking distance from the murder scene and the same distance from Thomas Jefferson.
Amy Lance, the victim's sister authenticated the writing of the September 2 letter as her sister's handwriting, which stated: The appellant called no witnesses on her behalf.
The Juvenile Court found appellant delinquent and subsequently overruled a motion for a new trial. This timely appeal ensued.
We will address the assignments of error in the order presented.
MISCONDUCT ON THE PART OF THE CUYAHOGA COUNTY PROSECUTORS DENIED APPELLANT THE RIGHT TO A FAIR TRIAL IN VIOLATION OF ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
Appellant asserts that the State had information that Christina Keating and Jessica Keating were not present at the crime scene, but failed to divulge this information. The Keatings informed the State on June 22, 1995 (four days before trial) that they were recanting their prior written statements and now claiming that they were not present during the murder. The State cannot recall if this information was passed on to appellant's counsel, but maintained there was no prejudice since appellant was on notice that the Keatings, stated they were not at the scene since June 9, 1995 when the prosecution gave appellant's counsel copies of the Keatings, oral and written statements. In their first statements, the Keatings denied being at the scene.
The appellant's counsel argues that the State deliberately withheld this evidence, purposefully employed false testimony, and suppressed potentially exculpatory evidence. The United States Supreme Court in Brady v. Maryland (1963), 373 U.S. 83, 87 held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosection." See, also, State v. Johnson (1988), 39 Ohio St.3d 48. The prosecution is also required to produce impeachment evidence under this rule. United States v. Bagley (1985), 473 U.S. 667. In State v. Johnson (1988), 39 Ohio St.3d 48, paragraph five of the syllabus, the Court held:
In determining whether the prosecution improperly suppressed the evidence favorable to an accused, such evidence shall be deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.
The record shows that the State complied with the...
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