State v. Dell
| Citation | 192 N.E.3d 1288 |
| Decision Date | 19 July 2022 |
| Docket Number | 2021 CA 00079 |
| Parties | STATE of Ohio, Plaintiff-Appellee v. Eric DELL, Jr., Defendant-Appellant |
| Court | United States Court of Appeals (Ohio) |
WILLIAM C. HAYES, Licking County Prosecutor, BY: J. BRANDON PIGG, Assistant Prosecutor, 20 S. Second Street, 4th Floor, Newark OH 43055, For Plaintiff-Appellee.
WILLIAM T. CRAMER, 470 Olde Worthington Road, Suite 200, Westerville, OH 43082, For Defendant-Appellant.
JUDGES: Hon. W. Scott Gwin, PJ., Hon. William B. Hoffman, J., Hon. John W. Wise, J.
{¶1} Defendant-appellant Eric Dell, Jr. ["EDJ"] appeals his conviction and sentence after a negotiated guilty plea in the Licking County Court of Common Pleas.
{¶2} EDJ was charged in a juvenile complaint with aggravated robbery in violation of R.C. 2911.01(A)(1), a first-degree felony; felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony; improperly discharging a firearm at or into a habitation in violation of R.C. 2923.161(A)(1), a second-degree felony; and having a weapon while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony. These charges included a firearm use specification under R.C. 2941.145.
{¶3} On May 5, 2021, the juvenile court held a bind-over probable cause hearing pursuant to Juv.R. 30(A). The following facts were presented during that hearing.
{¶4} At the start of the hearing, the state asked for a preliminary ruling on its notice of intent to rely on hearsay evidence during the hearing. EDJ's counsel objected arguing that denying EDJ the ability to confront and cross-examine the witnesses violated the Due Process clause of the United States and Ohio constitutions. The trial court overruled EDJ's objections, noting that although the Fifth District Court of Appeals had not ruled on this issue; surrounding districts have unanimously concluded that hearsay is admissible in juvenile bind over hearings. PC.T. at 9-121 . Later, when the state attempted to elicit hearsay, EDJ's counsel objected and requested a continuing objection.
{¶5} EDJ was born September 26, 2004, and was sixteen years old on February 22, 2021. PC.T. at 18. The guardian ad litem ["GAL"] testified about EDJ's prior juvenile history, which included adjudications for having a weapon while under disability and attempted felonious assault. PC.T. at 126-127. Furthermore, EDJ was on parole at the time of this incident. Id.
{¶6} On February 22, 2021, two 9-1-1 calls were made between 3:07 and 3:08 p.m. regarding a shooting occurring at 2 Pleasant Street, Newark, Ohio. PC.T. at 39-412 . Hannah Schaffer who resided at 2 Pleasant Street made one of those 9-1-1 calls. PC.T. at 40-41. Officers responded and found Alexander Nkuitabong ["Alex"] shot on the porch of the residence. Id. at 43. {¶7} Detective Jarad Harper testified that Ms. Shaffer told police that someone she only knew as "E.J." had shot Alex. When officers spoke to Alex, he also stated someone he knew as "E.J." had shot him. PC.T. at 87. When later shown a photograph of EDJ, Alex positively identified him as the person who shot him. Id.
{¶8} Detective Harper testified that Ms. Shaffer described the shooter fleeing in a blue Impala. In the second call, the caller described two black males, wearing black clothing, and brandishing a gun. The caller said they left in a blue Ford Focus. PC.T. at 46.
{¶9} The detective spoke with Alex when he returned from the hospital. Alex reported that "EJ" came over to see him with an unknown male. They wanted to come inside, but one of Alex's roommates thought it was strange and said no. One of the males asked Alex where he was from and then told him to, "Run your pockets." PC.T. at 53. Alex saw "EJ" with a gun and was then shot in the leg. Alex confirmed that "EJ" was EDJ. PC.T. at 52-54. Alex said the shooter was in Snapchat as "GMG Glizzo," but could not find him. One of Alex's roommates said he heard of that person and pulled up the account on his phone. Alex then identified EDJ through the "GMG Glizzo" Snapchat account on his roommate's phone. PC.T. at 86-87.
{¶10} The detective testified that a neighbor observed the blue vehicle and two males walking down the road. PC.T. at 48. The neighbor asked them if they were looking for someone, but they gave her a name she did not recognize. She saw them continue down the street toward 2 Pleasant Street and a few moments later, she heard a gunshot. The neighbor had cameras at the front of her house and provided the footage to the police.3 The detective reviewed the footage, which show a blue vehicle travelling northbound when two males jump into the rear seats and the car then drives off. PC.T. at 46-50.
{¶11} Detectives also found a cellphone at the scene of the shooting. PC.T. at 43. The phone was found to belong to Gilbert Frazier, III. PC.T. at 44. The contents of the phone were examined and there were photos of a blue Ford Focus contained therein. Id. at 56. In those photos, detectives were able to identify the license plate number, which came back being registered to Aiyana Tate. Id. Detectives spoke to Ms. Tate and she identified EDJ as one of the persons she was with in the car on February 22, 2021 the day of the shooting. PC.T. at 58.
{¶12} EDJ's cellphone was also recovered. PC.T. at 58. On the cellphone was the application "Snapchat" and it was signed in under EDJ's account. Detective Harper testified that a feature of Snapchat is that it monitors and keeps records regarding the location of the account holder. Detective Harper testified that this location data is recorded by the longitudinal and latitudinal location. Detective Harper testified that the records for EDJ's Snapchat account were obtained and revealed that at 3:04 pm, EDJ was within the margin of error of 120 feet of 2 Pleasant Street. PC.T. at 63.
{¶13} The defense noted that a report from a second police officer lists the suspect as "Elijah Morrow." Detective Harper said that he did not see that report until later. The detective did not know who Morrow was and did not recall ever looking into Morrow. The detective admitted that he probably just dismissed Morrow because the victim identified EDJ. The detective admitted that Alex did not know EDJ's name; instead, he only knew him as "EJ." PC.T. at 93-96.
{¶14} Additionally, the defense played a recording from another officer where Alex can be heard saying that he knew "EJ," but did not know the person who shot him. Alex also told the officer that he was asked where he was from, and when he responded "Orlando," he was shot. Alex made no mention of being asked to "run his pockets." Based on this recording, Detective Harper admitted that Alex had changed his story. PC.T. at 96-97; 117-121.
{¶15} At the conclusion of the probable cause hearing, the juvenile court found that EDJ was sixteen years old at the time of the alleged offenses, and found probable cause to believe that he committed the offenses and used a firearm during the offenses. Because the first count for aggravated robbery with a firearm was a mandatory transfer offense, EDJ was immediately transferred to the Court of Common Pleas on that count. The remaining discretionary-transfer offenses were scheduled for an amenability hearing.
{¶16} On May 13, 2021, EDJ was indicted for aggravated robbery with a firearm use specification as alleged in the original juvenile complaint.
{¶17} On June 30, 2021, the juvenile court held an amenability hearing on the remaining counts from the juvenile complaint and found that EDJ was not amenable to rehabilitation through the juvenile court system. The court then transferred the remaining counts to the Licking Court of Common Pleas. Despite the transfer order, it does not appear that EDJ was ever indicted or otherwise charged as an adult with these counts.
{¶18} On September 7, 2021, EDJ pled guilty to the aggravated robbery with the firearm use specification. The trial court then imposed a prison term of eight to twelve years on the aggravated robbery, with a consecutive term of three years for the firearm use specification.
{¶19} EDJ raises two Assignments of Error,
{¶20} "I. APPELLANT'S RIGHT TO DUE PROCESS UNDER THE STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED WHEN THE JUVENILE COURT AT THE BINDOVER HEARING DENIED APPELLANT THE ABILITY TO CONFRONT HIS ACCUSERS.
{¶21}
{¶22} EDJ claims in his First Assignment of Error that the trial court violated his constitutional right to confront and cross-examine his accusers by allowing the admission of hearsay testimony and not requiring the witnesses to testify at the hearing on the motion to transfer the case to the Licking County Court of Common Pleas.
{¶23} "
State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶6. Because the assignment of error involves the interpretation of the constitutional protection mandated by the Confrontation Clause of the United States and Ohio constitution, which is a question of law, we review the trial court's decision de novo. Med. Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13 ; Accord, State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9 ; Hurt v. Liberty Township, Delaware County, 5th Dist., 97 N.E.3d 1153, 2017-Ohio-7820, ¶ 31.
Issue for appellate review: Whether fundamental fairness require that juvenile...
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