State v. Derrick Wheatt
| Decision Date | 16 January 1997 |
| Docket Number | 70197,97-LW-0809 |
| Parties | STATE OF OHIO, Plaintiff-appellee v. DERRICK WHEATT, Defendant-appellant CASE |
| Court | Ohio Court of Appeals |
Criminal appeal from Court of Common Pleas Case No. CR-324,431.
For plaintiff-appellee: STEPHANIE TUBBS JONES, Cuyahoga County Prosecutor, MICHAEL D. HORN, Assistant, Justice Center Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.
For defendant-appellant: HARVEY B. BRUNER, BRET JORDAN, Attorneys at Law, Bruner and Shapiro Co., 1600 Illuminating Building 55 Public Square, Cleveland, Ohio 44113.
Defendant-appellant Derrick Wheatt[1] appeals from his conviction of murder with a firearm specification. We find no error in the court below and affirm the trial court's decision.
Defendant Wheatt, a juvenile, was charged with one count of aggravated murder, R.C. 2903.01, with a firearm specification. Pursuant to Juv.R. 30, he was bound over to the Cuyahoga County Common Pleas Court. After entering a plea of not guilty, he was tried jointly with two co-defendants. On January 18, 1996, a jury found Wheatt guilty of one count of murder, R.C. 2903.02, with a gun specification. On the same day, he was sentenced to fifteen years to life on the murder conviction and to three years on the gun specification. It is from these convictions that defendant Wheatt appeals, claiming errors at trial prejudiced his rights.
The state's evidence established that on Friday, February 10, 1995, Clifton Hudson, Jr. was murdered while walking on Strathmore Avenue in East Cleveland, Ohio. His death was caused by multiple gunshot wounds from one or more firearms, which caused him to bleed to death. The coroner ruled his death a homicide.
Tamika Harris, age fourteen witnessed the murder. She and her friend Monique were walking home on Strathmore Avenue about 5:45 p.m. when they heard a volley of two or three gunshots. Monique turned and ran, but Ms. Harris saw the shooter come around from the back of a black Blazer-type truck, stand in the street, and shoot Clifton Hudson as he was standing on the sidewalk. She testified that the person whom she saw shoot the victim had a black gun "larger than a .25." She then heard three to five more shots and saw Hudson fall to the ground. After the shots were fired, the truck went south and made a right on Manhattan, almost hitting another car. The shooter, whom she later identified as Eugene Johnson, ran past her. She was able to see him clearly as it was still light outside. She said Johnson ran toward the truck, and it slowed down. Although she did not see Johnson get into the truck, after the truck sped away, she did not see Johnson again. The truck then turned left on Ardenall. She was able to see two "black" people in the front seat of the truck. She then went over to the victim, heard him request, "Help," and saw his eyeballs roll back into his head.
Patrolman Tavano of the East Cleveland Police Department responded to the murder scene and interviewed Reginald Longino, Mike Wilson and Eric Reed, who were there. Although each stated he heard the shots, each man, including Eric Reed, told Ptl. Tavano that he did not see anything. When Ptl. Tavano spoke to Ms. Harris, however, he realized that she had pertinent information regarding the incident, and he directed her to the detectives. Ms. Harris gave a statement to the East Cleveland police that same evening regarding what she had witnessed, including her description of the black 4x4 truck, the shooter being of medium complexion and over 5'7", and the shooter's clothing, which she described as a "red and blue Tommy Hilfiger coat, black skully, and black pants."
Later that evening, Ptl. Tavano observed the suspect truck in the driveway at 1836 Knowles, about one-half mile from the scene of the murder. He then called the detectives, who went to the Knowles address. They subsequently followed the truck to Ardenall, where they arrested the defendant and the co-defendant, Laurese Glover. At the time of his arrest, defendant was wearing his Cleveland Indians jacket. The black 4x4 GMC truck was taken to the police garage. In the presence of their parents, defendant and Laurese Glover each gave a statement to the police. Later during the night, co-defendant Eugene Johnson was arrested and, in the presence of his mother, made his statement to the police. When arrested, Johnson was wearing his blue, green and maroon Nautica down jacket over a black hooded sweatshirt. A pair of gloves was found in his jacket pocket.
Detective Johnstone testified as to the oral statements made by Derrick Wheatt and his co-defendants to the police. In each of these statements, Wheatt and his co-defendants stated that while. they were in the black truck on Strathmore at the time of the murder, Glover was driving, defendant Wheatt sat in the front passenger seat, and Johnson sat in the back seat. Each stated that he witnessed the murder of Hudson by a thin, light-skinned black man. Defendant Wheatt and Glover noted the shooter as wearing a blue jacket; Johnson, however, stated the shooter's jacket was brown.
The day after the murder, Ms. Harris returned to the East Cleveland Police Station, where she identified the black 4x4 truck as the one she saw during the murder. She identified Johnson's black hooded sweatshirt and his Nautica down jacket as the clothing worn by the shooter whom she had seen. The Nautica jacket was similar in color and description to the one described in her statement the evening before that she misidentified as a "Tommy Hilfiger jacket." When Detective Perry showed her photographs of defendant Wheatt and co-defendants Glover and Johnson, she immediately picked the photograph of Eugene Johnson as the shooter. Detective Perry testified that the police did not direct Ms. Harris's identification of the shooter, of his clothes, or of the black 4x4 truck.
At the request of the East Cleveland police, co-defendant Glover's 4x4 truck was processed for gunshot residue. The Ohio Bureau of Criminal Investigation determined that lead residue consistent with a firearm having been fired was found on the exterior passenger-side door below the window, the interior passenger-side door armrest, and the front passenger seat bottom.
The hands of each of the subjects, including defendant Wheatt, were swabbed by the East Cleveland police during the night of their arrest for atomic absorption testing. The findings from both sides of both hands of defendant Wheatt were positive for antimony and barium, consistent with gunshot residue. The state's expert concluded that such findings indicate that the defendant either fired a weapon or that his hands were "very, very close" to a weapon as it was fired. The hands of each of the two co-defendants were found negative for gunshot residue. Defendant Wheatt's Cleveland Indians jacket was analyzed and found to have nitrite particles on the left sleeve consistent with its being exposed to gunshot residue. The jacket of co-defendant Johnson did not have a positive reaction to the testing; however, the test result on the palm of his left glove was consistent with gunshot residue. The results of the test on the right palm were inconclusive, and results of the test on the backs of the gloves were negative.
At the close of the state's case, the defense moved for acquittal pursuant to Crim.R. 29. The court found that sufficient evidence of prior calculation and design did not exist to prove the charge of aggravated murder, but evidence sufficient to support the charge of murder was presented by the state, and, therefore, the motion for acquittal was denied.
The defense presented two witnesses. First, Leroy Malone testified on behalf of co-defendant Johnson. He stated that he heard shots, observed a black Ford Bronco, and saw a light-skinned man running on foot behind the vehicle. The man stopped, put something in his pants, and ran down Shaw Avenue. He did not get into the truck. Malone stated that he knew all three defendants in this case. He saw the three people in the black truck who resembled the defendants. A neighbor told him it was Wheatt, Glover and Johnson, but he did not give the names of these individuals to the police because he "assumed" that the police already knew who they were. He testified that the man he saw running away was not one of the defendants.
Next, Eric Reed, testifying on behalf of defendant Wheatt, said that when he heard the shots, he ran to his upstairs window, from where he saw the shooter standing and the victim on the ground. He described the shooter as a light-skinned black male wearing a dark jacket and hood. He further testified that none of the defendants was the shooter whom he had seen that afternoon.
The defense rested, and counsel renewed the Crim.R. 29 motions for acquittal, which were denied by the court. Motions for mistrial were made and were denied by the court.
The jury returned guilty verdicts against defendant Wheatt on both the charge of murder and the gun specification. The defendant timely appeals these convictions.
Defendant-appellant contends that the trial court should have granted his motion for acquittal as the state failed to meet its burden of proof as required by R.C. 2901.05 (A), which provides that:
Each person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution.
Appellant contends that when the evidence presented at trial is examined, it is revealed that...
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