State v. Anthony Walker
| Decision Date | 20 June 2000 |
| Docket Number | 74773,00-LW-3440 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. ANTHONY WALKER, Defendant-Appellant |
| Court | Ohio Court of Appeals |
Application for Reopening, Motion No. 14647. Lower Court No. CR-266354 Common Pleas Court.
For Plaintiff-Appellee: WILLIAM D. MASON, ESQ., Cuyahoga County Prosecutor, LISA REITZ WILLIAMSON, ESQ., Assistant Prosecuting Attorney, The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113
For Defendant-Appellant: JOHN P. PARKER, ESQ., The Brownhoist Building, 4403 St. Clair Avenue, Celveland, Ohio 44103
Anthony Walker ("applicant"), through counsel filed a timely Application for Reopening on February 14, 2000. Applicant is attempting to reopen the judgment of this court is State v. Walker (Nov. 15, 1999), Cuyahoga App. No. 74773, unreported, which affirmed applicant's convictions of aggravated burglary, aggravated robbery, attempted murder, kidnapping of two people, and aggravated murder in the course of aggravated burglary or robbery, all of which firearm specifications. The prosecutor filed a Memorandum of Law in Opposition to the Application for Reopening. For reasons argued by the prosecutor and for those that follow, we deny the Application for Reopening.
TRIAL, APPEAL, AND SECOND TRIAL
The facts are as follows:
Defendant [who is the applicant seeking reopening of his appeal] was charged with complicity along with six co-defendants in the killing of Derrick Harris during a burglary occurring on April 30, 1991. He was originally tried and found guilty by a jury in 1991 leading to imposition of the death penalty. His original conviction was reversed by this Court on appeal due to ineffective assistance of counsel in failing to seek suppression of evidence seized from defendant's premises without warrant App. No. 62862, unreported. The evidence at his second trial leading to this appeal will be summarized below.
The State's first witness was Relana English who met defendant in 1991 and was frequently at defendant's house on East 118th and Union Avenue. Regular patrons at these affairs include [sic] Marvin, Willie and Eddie Burrage, their step-brothers, David and Craig Thomas, and English. English was Marvin Burrage's girlfriend at the time. Others who came to defendant's house included Annette Dean and the victim's girlfriend, Angela Harvey.
English knew Derrick Harris, the victim, since 1989. About six or seven days prior to the victim's death on April 30, 1991, English, Angela Harvey, Annette Deane and the defendant were at the defendant's house when a discussion regarding the victim occurred. Angela stated that the victim had a lot of money to buy ' a truck and she knew that he had the money in the house because she had seen it. She also explained where people were living in the victim's house.
On April 30, 1991, at 1:40 a.m., English went to defendant's house. When she arrived, defendant, Marvin Burrage, Craig Thomas, David Thomas, two other men and one woman were all standing outside. English followed the group in her car as they drove to East 81st and Kinsman. The two men, one later identified as Steve Cox (a.k.a. "Coz") and the woman drove separately in a maroon car. When they arrived, Marvin Burrage, Eddie Burrage, Craig Thomas, David Thomas and Coz got out of their cars and went into a house. Defendant stayed in his car. Approximately ten minutes later, English heard a gunshot and the men ran back to their cars. All the cars then proceeded back to defendant's house.
At defendant's house, defendant asked English where the victim, Derrick Harris, lived and she agreed to show him. Prior to leaving, English saw three Tec-9 firearms on defendant's bed. The group then left defendant's house and proceeded to the victim's house at 11216 Lardet Avenue. English drove her car along with Jason Peterson, Willie Burrage and Eddie Burrage. Defendant parked about six houses down from the victim's house and the group walked to the house. English and the defendant remained at the cars. About fifteen minutes later, the group returned from the victim's house and they all went back to defendant's house. At defendant's house, the group discussed the victim's beating and what items they took from the victim and his house. The items English observed included a cellular phone, a briefcase, some jewelry, bottles of wine and a black pouch. Defendant divided up the stolen money between the group. English received $40 from defendant for driving the truck. Defendant then collected the guns and brought them to his room.
The next day, English learned of Derrick Harris' death and the death of another man at East 81st and Kinsman.
Frances Harris, the victim's mother, testified that she lived at 11216 Lardet Avenue with her brother, Walter Harris, and her son, Derrick Harris. On April 30, 1991, at approximately 3:00 a.m., two men pulled her out of bed and told her to wake everyone in the house up at gunpoint. After she woke up her brother and her son, they pushed Mrs. Harris to the floor and shot her in the stomach. They proceeded to beat her son as they asked him for money. She later found her son laying face down dead on her mattress. When she returned to her house after the hospital, she noticed several things missing, including bottles of wine and her cellular phone.
Annette Deane testified she was also at defendant's house when defendant and English discussed the victim, Derrick Harris, and his money for the truck. She testified that they discussed robbing the victim. After hearing this discussion, she told the victim "to watch his back, to be careful." She warned the victim to watch out for English and the defendant. Deane testified that during March and April, 1991, she has seen Tec-9 weapons at defendant's house on more than one occasion.
Walter Harris, the brother of Frances Harris and the uncle of Derrick Harris, also testified. He lived on the second floor of Frances' house on Lardet Avenue and Derrick lived on the third floor. On April 30, 1991, at approximately 3:00 a.m., he was awakened by Frances knocking on Derricks head. Walter was immediately told to look at the floor and he was taken upstairs to the bathroom of Derrick's apartment. When they arrived in the bathroom, the men pushed him down and put a rag over his head. After the men left, he discovered Frances had received a gunshot wound and Derrick had been shot dead.
Cleveland Detective Sahir Hasan testified that on May 10, 1991, he was conducting a surveillance for the police department. He observed defendant and Steve "Coz" Cox looking in the trunk of Cox's automobile on the corner of East 118th Street and Union. After backup police arrived, the men were arrested and two semi-automatic Tec-9 guns and a chrome .357 magnum were confiscated from the trunk of the car.
Marvin Burrage testified that in 1991 he pled guilty to aggravated murder in the death of Derrick Evans. Marvin Burrage testified that he met defendant in 1990 and thereafter, he began selling drugs for defendant and spending a lot of time with him.
Marvin Burrage testified that on April 30, 1991, he participated in two "licks" or robberies. Earlier that day, Marvin was at defendant's house when defendant told him to take Dorian Brown, a.k.a. Drum, home to get his gun, a Tec-9. Defendant told them that he planned to rob a "fat guy" who had "money all around the house and dope in the refrigerators." Defendant stated that two guys lived downstairs and they would~have to kick in the door and take them out. Defendant passed out his weapons to the group. Drum got defendant's Magnum .380. Jason Peterson got defendant's Tec-9. Craig Burrage got Drum's Tec-9 and an Uzi.
At defendant's direction, the group left his house and drove in various cars to a house on 83 rd Street. The group drove to the house in English's truck, defendant's rental car and Dorian Brown's car. After they arrived, English and defendant stayed in the cars. Jason Peterson kicked in the door and Drum shot the man in the house. They proceeded to beat him. The group looked around for dope and money, but did not find any. Craig then shot the man in the head and they ransacked the house. The group went back to the cars and returned to defendant's house. Marvin told defendant that they had killed the occupant and "there wasn't no money in the house." Defendant then told English to call Derrick Harris and see if he was home. She called twice and when he answered, she hung up. Defendant then stated,
The group, along with defendant, took the guns again and left defendant's house. Marvin Burrage drove with defendant as English led the way to the victim's house. Defendant and English again stayed at the cars. Jason Peterson kicked in the back door and the group entered the house with their guns drawn. Marvin testified that they dragged Frances Harris upstairs and began stomping and beating Derrick Harris. They also took Walter Harris upstairs, put him in the bathroom and put a rug over him. While the group was searching for the money, Marvin's step-brother, David, shot Frances Harris. Jason then kicked Derrick Harris down the stairs and Marvin brought him into his mother's bedroom where Marvin's step-brother, Craig, shot him.
The group again went back to defendant's house. Marvin gave defendant the stolen items and left the guns at defendant's house.
Subsequently, two weeks prior to defendant's trial, defendant asked Marvin Burrage not to testify. Marvin had previously lied under oath in another case because one of defendant's friends had raped Marvin's wife.
Det William Cunningham of the Cleveland Police...
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