State v. Anderson

Decision Date06 August 2009
Docket NumberNo. 91209.,91209.
Citation2009 Ohio 3900,917 N.E.2d 843,183 Ohio App.3d 522
PartiesThe STATE of Ohio, Appellee, v. ANDERSON, Appellant.
CourtOhio Court of Appeals

William D. Mason, Cuyahoga County Prosecuting Attorney, and Steven E. Gall, Assistant Prosecuting Attorney, for appellee.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant.

JAMES J. SWEENEY, Judge.

{¶ 1} Defendant-appellant, Jamal Anderson, appeals his convictions of multiple offenses stemming from a high-speed car chase and subsequent car crash involving the police. After reviewing the facts of the case and pertinent law, we affirm in part, reverse in part, and remand for further proceedings.

The Chase

{¶ 2} On July 10, 2006, Cleveland police officer Michael Legg and his partner, Officer Taylor, recognized a silver Mercury Sable parked near Euclid and Burgess Avenues in Cleveland, which defendant, who was wanted on several outstanding warrants, had been seen driving. The officers radioed for assistance. Several police vehicles were positioned nearby, waiting for defendant to get in the car. The plan was to box defendant in at a nearby traffic light and arrest him. However, when defendant saw the first police vehicle attempt to cut him off, he managed to get through the intersection and head west on Euclid Avenue. The police cars in the area turned their lights and sirens on and began to pursue him.

{¶ 3} The chase quickly approached speeds of 80 to 90 miles per hour, with defendant leading the police through the city of East Cleveland, onto I-90 westbound.

{¶ 4} Cleveland police officer John Kubas heard about the chase over the police radio. He and his partner, Officer Spahia, entered I-90 westbound at the E. 55th Street entrance ramp in a black and white marked police car. Officer Kubas saw defendant's vehicle approaching from behind, being pursued by several marked police cars with lights and sirens activated. Defendant's car swerved toward Officers Kubas and Spahia's vehicle, causing them to drive off to the side of the road. According to Officer Kubas, defendant's car was traveling in excess of 60 to 70 miles per hour.

{¶ 5} Officer Kubas testified that if he and his partner had not gotten out of the way when defendant's vehicle swerved toward them on I-90, "our zone car would have been struck by the auto. * * * I was afraid that we were going to get hit. And being a policeman for 13 years, I've seen many accidents, and I was scared we were going to get hit and possibly injured."

{¶ 6} Defendant exited I-90 at St. Clair Avenue and reentered the highway approximately one eighth of a mile away, at Superior Avenue, this time heading east. For a time, Cleveland police officer Vincent Lucarelli was driving his police vehicle adjacent to defendant's car. Defendant swerved toward Officer Lucarelli's vehicle, and Officer Lucarelli had to take evasive action to avoid an accident. According to Officer Lucarelli, they were traveling "well over 90 miles an hour" at this point.

{¶ 7} Defendant next approached the Eddy Road exit of I-90. Two marked Bratenal police cars, with their overhead lights on, were positioned at the end of the Eddy Road exit ramp in another attempt to block defendant's car. When defendant did not slow his vehicle down as he exited I-90, Bratenal police officer Daniel Gomillion and Sergeant Barton moved their cars out of the way to avoid being hit.

{¶ 8} Officer Legg testified that his vehicle was parallel to defendant's vehicle for a few blocks and he got a good look at the driver, who he identified in court as defendant. Officer Legg also testified that there was no way defendant did not see and hear the police lights and sirens surrounding him. "It seemed like the closer we got to Eddy Road, the more the Sable began to accelerate. So at that point we thought the collision was inevitable is what we were anticipating," Officer Legg stated.

{¶ 9} Officer Gomillion testified that defendant was driving 80 to 90 miles an hour when he drove across the Eddy Road ramp: "I see the vehicle speeding at a high rate of speed, and I see he's not even slowing down. I instruct my sergeant, we got to get out of the way. I throw my car in reverse and peel out backwards. He throws his car in drive and peels out forward." Officer Gomillion further testified that defendant's vehicle went airborne as it crossed over Eddy Road and that it missed hitting his and Sgt. Barton's police vehicles by just a few feet. Asked what he thought would have happened had he not moved his vehicle out of the way, Officer Gomillion stated, "I'm not sure I would be a police officer right now, let alone be alive."

{¶ 10} Finally, defendant exited I-90 at East 140th Street, ending up on a side street off Euclid Avenue, where he jumped out of the car and took off running. At this point, only the police vehicle driven by Officer Legg had kept up with defendant. By the time the other police vehicles arrived at the scene, defendant was out of sight in a nearby wooded area. Defendant was not arrested that night.

The Collision

{¶ 11} On July 12, 2006,1 Sergeant Eugene Sharpe, of the Cuyahoga County Sheriff's Office, received a tip from a confidential informant that defendant was seen driving a maroon Chevy Lumina at the American Motel on Euclid Avenue, in Cleveland. Sgt. Sharpe was working undercover in the fugitive task force, which is a joint agency with the FBI, the Cuyahoga County Sheriff's Office, the Cleveland Police Department, and the Cleveland Metropolitan Housing Authority. Sgt. Sharpe and his fellow fugitive task force officers went to the motel and set up surveillance of the suspect vehicle in the parking lot.

{¶ 12} Sgt. Sharpe and FBI Special Agent Phillip Torsney saw defendant exit one of the motel rooms and get behind the wheel of the Lumina. A female followed defendant and also got in the vehicle. As defendant backed out of his parking space, Sgt. Sharpe and another officer walked toward the front of the car, identifying themselves as police officers, and motioned and yelled for defendant to stop the vehicle. Instead, defendant put the vehicle in drive and headed straight toward the officers. Sgt. Sharpe drew his weapon and yelled, "Police. Stop. Stop. Stop the vehicle. Stop the vehicle now." Defendant initially put his hands up in the air, then suddenly accelerated toward Sharpe, who jumped out of the way. Sgt. Sharpe testified about what happened next:

{¶ 13} "The vehicle goes right past me. I turn around. Now I'm behind the vehicle and I see him getting ready to hit Agent Torsney who is out of his vehicle. He's going right at him. At that point, I'm thinking he's going to kill him or seriously hurt him. At that point, I immediately fire one or two rounds from my service weapon trying to stop the vehicle.

{¶ 14} "Also at the same time, Special Agent Torsney is also firing as he's trying to escape the path of the vehicle from the front or the side area. The vehicle then tries to get through. At this time, he's trying to get through the small area where Torsney parked his vehicle and the fence. It's not very large. He guns past there and runs right into [Cuyahoga County Sheriff's Office] Detective Domonkos's Tahoe which is now pulled up. He hits Detective Domonkos' Tahoe at the same time that Detective Domonkos is getting out of his vehicle causing Domonkos to immediately fall to the ground and he hit his head on the ground."

{¶ 15} Special Agent Torsney testified that the task force wanted to apprehend defendant before he had a chance to leave in his car, given the dangerous chase that defendant had led the Cleveland police on two days before. Torsney further testified that when defendant's car began to move, Torsney drew his weapon and said, "Police, FBI, stop, show us your hands." He also testified that he heard other officers telling defendant similar things. At first, defendant put his hands in the air, but his car kept moving forward at a slow pace. Torsney testified about what happened next:

{¶ 16} "He accelerates the vehicle, and it almost hits Detective Sharpe who is further up and to the right. He gets out of the way.

{¶ 17} "* * *

{¶ 18} "At this point, this vehicle is coming right at me.

{¶ 19} "Well, I know I have a female passenger in that car, and this car is right up on me and it's coming at me. And I get off to the side of it and brace with my left hand. It hits me on the right side around my knee, the side of the car, brushing past me. In my mind, I feared for the life of Officer Sharpe, my own life at that point, and I know there's other officers behind me. And I fired two rounds trying to stop that vehicle."

{¶ 20} According to Special Agent Torsney, the vehicle kept going and ran into Det. Domonkos's vehicle.

{¶ 21} Det. Domonkos testified as follows regarding when he pulled into the motel parking lot: "I stop my vehicle and start coming out. As I'm coming out, I hear stop, police. Let me see your hands, several times. I then hear an engine rev. I hear a couple of gunshots, and then I'm picking myself up off the ground because the vehicle that the defendant was driving struck mine."

{¶ 22} After the collision, the authorities pulled defendant from the vehicle, got him on the ground, and handcuffed him. Sgt. Sharpe and Special Agent Torsney saw a plastic bag containing crack cocaine on the floor of the car near the driver's seat and the butt of a loaded handgun sticking out from underneath the driver's seat.

{¶ 23} On August 22, 2006, defendant was indicted for the following offenses in Cuyahoga County Common Pleas case No. CR-485157, which is associated with the chase on July 10, 2006: failure to comply with order or signal of a police officer in violation of R.C. 2921.331, five counts of felonious assault of a peace officer in violation of R.C. 2903.11 (officers Kubas, Spahia, Lucarelli, Barton, and Gomillion), and ...

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    ...Form 13-1 Spring Motors Distributors, Inc. v. Ford Motor Co. , 98 N.J. 555, 579-580, 489 A.2d 660 (1985), §22:02 State v. Anderson , 183 Ohio App.3d 522, 917 N.E. 2d 843, (Ohio, 2009), §9:63 Stanek v. Swierczek , 307 N.W.2d 807 (Neb. 1981), §6:61 State Farm Fire & Cas. Co. v. Southtowns Tel......
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