State v. Dewberry
| Decision Date | 28 February 2020 |
| Docket Number | Appellate Case No. 27434 |
| Citation | 2020 Ohio 691 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. GEORGE L. DEWBERRY, SR. Defendant-Appellant |
| Court | Ohio Court of Appeals |
(Criminal Appeal from Common Pleas Court)
OPINIONMATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409 Attorney for Defendant-Appellant
{¶ 1} George L. Dewberry, Sr., was found guilty after a jury trial in the Montgomery County Court of Common Pleas of aggravated murder, murder, 2 counts of felonious assault, attempted murder, and having weapons while under disability, along with numerous firearm specifications. After merging several charges and specifications, the trial court sentenced Dewberry to an aggregate term of life without parole plus 20 years in prison. For the following reasons, the trial court's judgment will be affirmed.
{¶ 2} Shortly before midnight on August 20, 2015, Jesse Pierce and his girlfriend, Laura Castro, were shot multiple times while seated in Castro's vehicle. Pierce, seated in the driver's seat, died from his injuries at the scene. Castro, seated in the front passenger seat, was shot twice in the face, but survived her injuries. An extensive police investigation ensued.
{¶ 3} On the morning of the shooting, Detective William Geiger went to the hospital and met with Castro, who could communicate in writing. Castro did not identify her shooter at that time. By August 25, the police had identified Dewberry as a suspect. Castro then was shown a photographic lineup containing Dewberry's photo, but she did not identify anyone as the shooter. After Castro was released from the hospital, she left the Dayton area and decided to contact the police about the shooting. In September 2015, Castro met with Detective Brad Daugherty and showed him a photograph from Facebook of the person who shot her; the photo was of Dewberry. Subsequently, on September 25, Castro was shown another photographic lineup, which contained the same individuals as the prior lineup but in a different order. Castro identified Dewberry as the shooter and indicated that she was 100 percent positive of her identification.
{¶ 4} The police spoke with Dewberry prior to Castro's identification. On September 8, Detective Daugherty and Detective Tom Cope went to Dewberry's residence and spoke with Dewberry on his back patio. The conversation was recorded. On September 22, after Castro identified Dewberry as the shooter based on the Facebook photo, Daugherty obtained and executed a search warrant for Dewberry's residence.1 Just prior to executing the search warrant, the police arrested Dewberry outside his home. Dewberry requested an attorney at the police station, so no interview occurred. However, as he was being taken to the jail, Dewberry repeatedly asked what Castro was saying, and he made a comment to the officers that "you'll never get her [Castro] on the stand to testify against me." Dewberry also made another comment as he passed by television cameras.
{¶ 5} On October 1, 2015, Dewberry was indicted for aggravated murder (prior calculation/design), attempted murder, felonious assault (deadly weapon), felonious assault (serious physical harm), murder, and having weapons while under disability. All of the charges, except for the charge of having weapons while under disability, included a firearm specification.
{¶ 6} Dewberry subsequently moved to suppress statements he made and any evidence obtained as a result of the search of his residence and of his warrantless arrest. He separately filed a motion to suppress the photospread identification by Castro. Thecourt held a hearing on the statements and the search warrant issues on March 18, 2016, and a separate hearing on the photospread identification on March 29, 2016.
{¶ 7} At the beginning of the first hearing on March 18, the court addressed whether Dewberry would be able to call the witness who made an identification (Castro); the court stated, "unless I determine a certain way, the complaining witness will not be required to come here for the motion to suppress." At the end of the first hearing, the court stated that the hearing on the identification would occur on March 29 and that (Tr. at 44-45.) On March 29, the court heard from four police officers regarding the photospread identifications.
{¶ 8} At defense counsel's request, the trial court permitted the parties to file simultaneous post-hearing memoranda by April 8 on whether it would be appropriate for defense counsel call the witness who made the photospread identifications. Both parties filed memoranda on April 8, focusing primarily on whether the procedures were unduly suggestive. Defense counsel asked the court to suppress Castro's identification or, alternatively, to require Castro to give testimony at a later suppression hearing regarding the photospread process and her identification of Dewberry. The State asked the court to overrule the motion to suppress because the procedures were not unduly suggestive. The State indicated that, if the court were to find something unduly suggestive, then the State would request a hearing regarding the reliability of the identification, at which time the State would anticipate calling Castro to testify.
{¶ 9} On April 18, 2016, the trial court overruled Dewberry's motions in their entirety, including Dewberry's request to call Castro as a suppression hearing witness.
{¶ 10} The court conducted a jury trial over several days in January 2017. The jury convicted Dewberry of all counts and specifications. After merging some of the charges and firearm specifications, the trial court sentenced Dewberry to a mandatory term of life in prison without parole for the aggravated murder, 11 years in prison for attempted murder, and 36 months in prison for having weapons while under disability, all of which were to be served consecutively to each other. The court also imposed an additional 3 years each for two firearm specifications. As stated above, Dewberry's aggregate sentence was life without parole plus 20 years in prison.
{¶ 11} Dewberry's original appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon an initial review, we found that non-frivolous issues existed. We rejected the Anders brief and appointed new counsel for Dewberry. Dewberry now raises seven assignments of error, which we will address in an order that facilitates our analysis.
{¶ 12} Dewberry's second assignment of error claims that his convictions were based on insufficient evidence and against the manifest weight of the evidence.
{¶ 13} "A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law." State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless "reasonable minds could not reach the conclusion reached by the trier-of-fact." Id.
{¶ 14} In contrast, when reviewing an argument challenging the weight of the evidence, an appellate court may not substitute its view for that of the trier of fact, but reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether, in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 15} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin at 175.
{¶ 16} In reviewing challenges based on the sufficiency and/or manifest weight of the evidence, we are required to consider all of the evidence admitted at trial, regardless of whether it was admitted erroneously. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284; State v. Rosales, 2d Dist. Montgomery No. 27117, 2018-Ohio- 197, ¶ 16, citing State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.).
{¶ 17} The State's evidence at trial established the following facts.
{¶ 18} Shortly before midnight on August 20, 2015, Pierce and his girlfriend, Castro, were shot while seated in Castro's vehicle on Vina Villa Avenue in Dayton. Pierce, who was in the driver's seat, was shot eight times; six of those shots were "in a line...
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