State v. Clark

• Decision Date: 27 February 1995
• Docket Number: No. 65805,65805
• Citation: 655 N.E.2d 795,101 Ohio App.3d 389
• Parties: The STATE of Ohio, Appellee, v. CLARK, Appellant. *
• Court: Ohio Court of Appeals

Page 389

101 Ohio App.3d 389

655 N.E.2d 795

The STATE of Ohio, Appellee, v. CLARK, Appellant. ^*

No. 65805.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided Feb. 27, 1995.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Edward M. Walsh, Assistant Prosecuting Attorney, Cleveland, for appellee.

C. Randolph Keller, Cleveland, for appellant.

NUGENT, Judge.

Defendant-appellant, Lamont Clark, timely appeals from a judgment of conviction from the Cuyahoga County Court of Common Pleas stemming from a jury verdict finding him guilty as indicted of the murder of Tanya Banks in violation of R.C. 2903.02.

At appellant's jury trial, Brenda Banks, Tanya's mother, testified first for the state. Banks explained that Tanya and appellant had lived together for approximately one and one-half years prior to her murder. Tanya and appellant had one child together, Damontais, who was approximately two years old. Tanya also had another child, Denver (age four), who lived with her and appellant.

Tanya and appellant lived with Banks for a couple of months and eventually moved into an apartment of their own. However, Banks testified that after moving into their own apartment, Tanya and the children would sometimes stay with her when Tanya and appellant were fighting. Banks testified that Tanya and appellant frequently argued in 1992.

On July 25, 1992, appellant's brother came to Banks's house and told her that Tanya had been shot. Banks proceeded to Huron Road Hospital, where she received the news of Tanya's death.

Dr. Elizabeth K. Balraj, the Cuyahoga County Coroner, testified next. Balraj performed an autopsy on Tanya Banks on July 26, 1992. Balraj testified that Tanya had an entrance gunshot wound on the right side of her upper abdomen and an exit wound on her left lower back. The bullet traveled through soft tissue from front to back, from the right to the left side and in an upward path. The cause of death was a gunshot wound of the abdomen with perforations of the abdominal viscera, including the intestines and kidney, and hemoperitoneum or internal hemorrhaging in the abdominal cavity. Balraj ruled Tanya's death a homicide. Tanya was eleven weeks pregnant.

Patrolman Steven Zedella, an officer of the Cleveland Police Department, Sixth District, was working the second shift, from 3:30 p.m. to 11:30 p.m., when he received a radio assignment, at approximately 6:00 to 6:30 p.m., to respond to Huron Road Hospital for a victim of a self-inflicted gunshot wound. Officer Zedella testified that while proceeding to the hospital, he received a second call that there was an irate male at the hospital.

Once at the hospital, Officer Zedella was directed to appellant, who, it was learned, had brought the victim to the hospital with another female, later identified as Nicki Hicks. At this point, Officer Zedella was told that the victim was in stable condition.

Officer Zedella spoke with appellant at the hospital. Appellant told Officer Zedella that he and Tanya had been fighting earlier in the day. Later, appellant was in the bathroom, sitting on the toilet, when Tanya approached him with a gun. An argument ensued, and appellant took the pistol from her. Tanya sat down on the edge of the bathtub and began talking with appellant. Next, Tanya attempted to take the pistol from appellant, and the gun went off. Appellant told Officer Zedella that Tanya had grabbed the gun by the barrel when it went off. After speaking with appellant, Officer Zedella placed him under arrest and read him his constitutional rights, which appellant stated he understood. Appellant then told Officer Zedella that the gun was back at the apartment.

Officer Zedella took appellant to the apartment to confiscate the weapon. Zedella's partner stayed with appellant in the kitchen while Zedella proceeded to the bathroom to locate the weapon. Zedella failed to locate the weapon where appellant had told him it was located. Subsequently, Nicki Hicks told him that she had moved the weapon and placed it on top of the headboard of appellant's bed. Zedella then retrieved a .9mm handgun which had one live round in the chamber and six rounds in the clip.

Officer Zedella further explained that Nicki Hicks was at the hospital and knew the officers were going to return to the apartment to retrieve the weapon but remained silent as to the weapon's whereabouts. Hicks remained uncooperative at the hospital and refused to give the officers any information.

Once inside the apartment, Officer Zedella noticed a large lamp which had been knocked over, dirt on the floor and a plant near the front door which had also been knocked over.

Zedella and appellant went into the bathroom, where appellant attempted to reenact the incident. Appellant told Zedella that Tanya was to his left and sitting on the bathtub when she attempted to reach for the gun and it went off. Zedella observed a bullet hole in the shower approximately six feet off the ground. Zedella also looked for, but was unable to find, a spent bullet casing.

As Zedella and appellant were leaving the apartment to proceed to police headquarters, another male came into the apartment. Appellant took out a wad of money and gave it to the male, claiming it was for rent. At the Sixth District police station, Zedella learned that the victim had died. He then went back to the apartment to get photographs but was unable to get inside.

On cross-examination, Zedella stated that appellant told him he had purchased the .9mm handgun from a friend because his apartment had been broken into approximately one month earlier.

Detective Mike O'Malley, a homicide detective with the Cleveland Police Department, also conducted an investigation into the shooting. Det. O'Malley received the assignment at approximately 9:15 p.m. on the night of the shooting. He met with a Lieutenant Emory, Officer Zedella, Nicki Hicks and appellant.

After being advised of his constitutional rights, which he stated he understood, appellant made a second oral statement. Appellant told Det. O'Malley that on the evening of the shooting, he was in the bedroom when he got up and walked into the bathroom. Tanya then entered the bathroom with the gun in her hand. Appellant told Tanya a couple of times to put the gun away. Tanya gave the gun to appellant but attempted to take it back. When she reached for the gun, it went off. Appellant then took Tanya to the hospital.

Det. O'Malley testified that appellant's mother and Nicki Hicks were also at Sixth District headquarters. Det. O'Malley stated that after being informed of his identity, Hicks became very agitated and began sucking her thumb. Appellant's mother and Hicks later asked to see appellant, but after being informed that there was no visitation, they stormed out of the Sixth District headquarters.

On July 28, O'Malley executed a search warrant for appellant's apartment to recover any pellets or shell casings and to photograph the scene. O'Malley had photographs taken of the apartment, including the bathroom, and also took measurements of the bathroom. O'Malley also recovered a pellet from behind the shower stall.

Emory Carroll, a salesman at the Stonewall Pistol Range in Broadview Heights, Ohio, sold the instant .9mm revolver on July 22, 1992 to Jesse Ware, whom he knew to be a regular customer at the pistol range. Carroll was able to identify the handgun by matching the registration number listed on the sales receipt and ATF form to the number found on the gun. On July 22, Ware purchased the handgun and some ammunition, and he and others whom he was with practiced at the shooting range.

Raymell Taylor also testified at trial. Taylor was with Ware when Ware purchased the handgun at appellant's request. According to Taylor, appellant wanted to buy the gun but did not have any identification, so Ware bought the gun for appellant. After leaving the shooting range, appellant left with the gun.

Sharon Rosenburg, a forensics examiner in the coroner's office, Trace Evidence Department, also testified for the state. Rosenburg testified that a gunshot residue test performed on the victim's hands revealed no reaction for components of ammunition. Further, a trace metal detection test on the victim's hands revealed no reaction except where there was blood. In short, Rosenburg had no evidence to indicate that the victim had handled or fired a weapon.

Rosenburg conducted further examinations on the victim's clothing. She found bullet holes or defects which corresponded with the injuries on the victim's body. Rosenburg and Det. O'Malley ran muzzle-to-target distance tests on the instant 9mm revolver and determined that the minimum muzzle-to-target distance where no fouling or stippling would be detected was thirty to thirty-six inches. Rosenburg also performed a Greis test on the victim's clothing and was unable to detect the presence of fouling or stippling. Therefore, Rosenburg concluded that the minimum muzzle-to-target distance at the time the fatal shot was fired was thirty to thirty-six inches. Rosenburg provided her findings to James Wentzel.

On cross-examination, Rosenburg acknowledged that while she found no evidence that the victim had handled a gun, the instant handgun had a plastic or rubberized grip, and Rosenburg would not expect a reaction from the trace metal detection test in question had the victim touched the grip of the gun.

James T. Wentzel testified next for the state. Wentzel is a forensic photographer and crime scene reconstructionist at the Cuyahoga County Coroner's Office. Wentzel used an IBM 286 computer and AutoCAD software to reconstruct the instant crime scene. Wentzel explained that AutoCAD is a brand name for computer-assisted drafting software which maintains sixty percent of the market share. AutoCAD is used by automobile and aircraft manufacturers, and it is also used to construct buildings and bridges. In essence, Wentzel explained, AutoCAD is...