State v. Brooks, 94-1871

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPFEIFER; MOYER; G. GARY TYACK, J., of the Tenth Appellate District, sitting for RESNICK; THOMAS J. GRADY, J., of the Second Appellate District, sitting for COOK; DOUGLAS; FRANCIS E. SWEENEY, Sr.
Citation661 N.E.2d 1030,75 Ohio St.3d 148
PartiesThe STATE of Ohio, Appellee, v. BROOKS, Appellant.
Docket NumberNo. 94-1871,94-1871
Decision Date04 March 1996

Page 148

75 Ohio St.3d 148
661 N.E.2d 1030
The STATE of Ohio, Appellee,
BROOKS, Appellant.
No. 94-1871.
Supreme Court of Ohio.
Submitted July 26, 1995.
Decided March 4, 1996.

Maureen O'Connor, Summit County Prosecuting Attorney, and William D. Wellemeyer, Assistant Prosecuting Attorney, for appellee.

[661 N.E.2d 1035] Annette L. Powers and Irving B. Sugerman, Akron, for appellant.

Page 151

PFEIFER, Justice.

Appellant has raised eighteen propositions of law. We have reviewed each and have determined that none justifies the reversal of appellant's convictions for aggravated murder. However, appellant's proposition of law regarding faulty jury instructions in the sentencing phase does have merit.

Particularly, the trial judge's instruction that the jury was required to determine unanimously that the death penalty was inappropriate before it could consider a life sentence was reversible error. We therefore affirm appellant's convictions but reverse the sentence of death.

Evidentiary Issues

Appellant's propositions of law four, five, six, nine and ten raise evidentiary issues. In proposition four, Brooks argues that prejudicial hearsay was admitted over objection. At trial, the first police officer at the scene, Bennett, described finding a child next to Griffin's body. Bennett testified that the child stated, "They hurt my mommy," and that the child put his finger into the victim's nose and head wound.

The child's statement was not hearsay because it was not offered to prove the truth of the matter asserted. Bennett was merely describing the circumstances of how he discovered Griffin's slain body. The child's statement was not offered to prove that Griffin had been injured, but was a part of Bennett's description of the crime scene. Thus, proposition four lacks merit.

In his fifth proposition of law, Brooks argues that the trial court abused its discretion by refusing to permit Brooks to cross-examine Buster Massingill about the fact that Buster had originally been charged with complicity in the murders. As appellant points out, Evid.R. 609 is not relevant. Evid.R. 609 deals only with evidence of criminal convictions. In this case, Buster was never convicted of complicity. Appellant argues that the cross-examination should have been allowed under Evid.R. 608(B). Evid.R. 608(B) vests a trial court with discretion to allow cross-examination about specific instances of conduct of a witness "if clearly probative of truthfulness or untruthfulness." The rule reads, in part:

"Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than conviction of a crime as provided in Evid.R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness * * *." (Emphasis added.)

The fact that police originally charged Buster with complicity was not probative of Buster's truthfulness and is not conduct by Buster. Evid.R. 608 therefore is

Page 152

not relevant. However, the cross-examination should have been allowed under Evid.R. 616, which reads:

"Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by extrinsic evidence."

Although the original charge of complicity was not evidence of Buster's character for truthfulness, it was evidence of a motive for him to be untruthful and attempt to foist blame onto appellant. Still, the error in denying the cross-examination was harmless for the following reasons.

The jury was privy to a bevy of examples of conduct probative of Buster's truthfulness. The trial court allowed Brooks free rein to cross-examine Buster about all aspects of his involvement with Rabbit, Brooks, and the murders. Brooks cross-examined Buster about his use of drugs, his hiding or losing the murder weapon, the shells, and the bullets, and all his conversations with police. The jury knew that Buster, with three burglary convictions, was on parole when the murders occurred. The jury also knew that Buster, indicted for tampering with evidence and obstruction of justice in the murders, had pled guilty and was in prison for tampering. The jury knew that Buster had plea-bargained and agreed to testify against [661 N.E.2d 1036] Brooks. In short, the jury had concrete examples of Buster's truthfulness, or lack thereof, and also knew of the motivations which might have influenced his testimony. Proposition five thus lacks merit.

In his sixth proposition of law, Brooks challenges the admission of certain brief portions of his taped confession. The transcript of the confession heard by the jury reads as follows:

"Q. You don't really show much remorse here, is there a reason for that, what do you think wrong place, wrong time or are you just protecting yourself?

"A. (inaudible)

"Q. How do you feel about killing those three girls?

"A. Real bad, I just did it to protect myself.

"Q. Do you belong to any organized gangs, street gangs?

"A. Yeah.

"Q. What gang is that?

"A. Gangster Disciples, it's a Chicago based gang.

"Q. Chicago based gang, Gangster Disciples, do they have a group in Detroit?

"A. No.

"Q. This is just a gang that you belong to?

"A. Yes.

Page 153

"Q. Anything else you can think of, Sgt. Hammond?

"Q. Have you ever killed anyone before?

"A. No, sir.

"Q. Have you ever been in jail?

"A. On Drugs."

As to most of this material, Brooks did not object at trial and waived all but plain error. Brooks only objected to the detective's remark that Brooks did not show remorse. The trial court did not order the detective's remark deleted because it would be "kind of hard" to edit the tape. Inconvenience, however, is not a sufficient reason to allow inadmissible evidence to go to the jury. Nevertheless, the detective's offhand remark did not materially prejudice Brooks. We find the error in admitting it to be harmless.

As to the other statements and comments, neither plain error nor material prejudice resulted. By the time the confession was played, the jury was well aware of Brooks's criminal past. In his counsel's opening statement in the trial's guilt phase, Brooks admitted that at age fourteen, he "got associated with gangs" as "a way of self-protection." As a result, his life "was filled with violence, street violence, fights." He supported himself in part by selling marijuana. His way of life was to "live on the street, deal drugs, make ends meet." In his testimony, Brooks elaborated on his background and admitted that he had come to Akron to sell cocaine. Thus, Brooks now objects to parts of the taped confession that mirrored his trial strategy and evidence. We reject Brooks's sixth proposition of law.

In his ninth proposition of law, Brooks argues that the trial court erred in admitting, over objection, four gruesome photographs. Three crime-scene photographs each depict a victim's head and gunshot wound, although in two photographs the wound is obscured. A coroner's slide depicts Griffin's head and torso injuries.

Pursuant to Evid.R. 403 the admission of photographs is left to the sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 121, 559 N.E.2d 710, 726; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus; State v. Morales (1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267, 273.

The two challenged photographs of Griffin are cumulative to each other. Error in admitting them, however, was harmless. Otherwise, the trial court did not abuse its discretion in regard to the photographs. The photos are not inflammatory. Each crime-scene photograph illustrates the testimony of police officers and has probative value in showing the injury and the killer's intention. See State v. DePew (1988), 38 Ohio St.3d 275, 281, 528 N.E.2d 542, 551. The slide

Page 154

illustrates the coroner's testimony, shows Griffin's head and torso injuries, and demonstrates[661 N.E.2d 1037] the killer's intention. No prejudicial error occurred. See State v. Slagle (1992), 65 Ohio St.3d 597, 602, 605 N.E.2d 916, 923; State v. Franklin (1991), 62 Ohio St.3d 118, 125, 580 N.E.2d 1, 7.

In his tenth proposition, Brooks argues that his confession was involuntary. A court, in determining whether a confession is involuntary, "should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement." State v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d 1051, paragraph two of the syllabus; see, also, State v. Brewer (1990), 48 Ohio St.3d 50, 57, 549 N.E.2d 491, 499.

Here, the evidence supports the trial court's finding that the confession was voluntary. During a pretrial suppression hearing, two police officers testified that the confession was voluntary, and Brooks presented no evidence. At trial, Brooks testified that he had confessed because police told him that if he did so, he would get just fifteen to eighteen years and would be on parole in six or seven years. No other evidence supports that claim. At a suppression hearing, the evaluation of evidence and the credibility of witnesses are issues for the trier of fact. See State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584.

The evidence in this case supports the trial court's finding that the confession was voluntary. Police took Brooks into custody at around 6:30 a.m., and he remained in custody for approximately ten hours before he confessed. Until midafternoon, police did not question him at the station except as to his identity and to secure his consent to an...

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