State v. Dewitt McDonald
| Decision Date | 07 February 1997 |
| Docket Number | 97-LW-0500,E-95-046 |
| Parties | State of Ohio, Appellee v. DeWitt McDonald, Appellant Court of Appeals |
| Court | Ohio Court of Appeals |
Kevin J. Baxter, prosecuting attorney, for appellee.
Jeffrey M. Gamso and Alan S. Konop, for appellant.
This appeal comes to us from the Erie County Court of Common Pleas where a jury found appellant, DeWitt McDonald, guilty of aggravated murder and other charges following the death of a bystander and the wounding of another in a 1994 drive-by shooting. Because the trial court acted within its discretion in ruling on evidentiary questions and because the verdict was not against the manifest weight of the evidence, we affirm.
On the evening of January 5, 1994, appellant and companions Shawn Caston and Daryl Turner were drinking at Whitlee's Bar in Sandusky, Ohio. While at the bar, Caston became involved in an argument with Jerome Caffey. At the conclusion of this dispute, Caffey left Whitlee's and Caston rejoined appellant and Turner. The next morning at approximately 3:00 a.m., Caffey was in the house he shared with Anna Hunt, his aunt. With Caffey was an acquaintance, Sharon McGill. Caffey's aunt also had guests. Tammy Johnson, her sister Vivian Johnson, and Laurie Henry were returning from a graduation party for Vivian's daughter when Tammy and Laurie decided to stop at Anna Hunt's. Tired, Vivian Johnson remained in the car while the other two went inside. As Tammy and Laurie prepared to leave the house, it was sprayed with multiple gun shots.
In the house, a bullet struck Sharon McGill. Another bullet shattered the window of the car in which Vivian Johnson was sitting and struck her in the neck. The bullet which struck Sharon McGill lodged in her abdomen, but she survived. Vivian Johnson died two days later as a result of her wound.
Police investigators searched the scene and found twelve spent nine millimeter shell casings of a type compatible with those used in an Intertech nine millimeter semiautomatic weapon. In an initial interview with police, a neighbor across the street stated that he had heard, but not seen, the shooting. He described hearing a four cylinder car with a loud muffler.
Police attention quickly focused on appellant, Caston and Turner. Witnesses described the dispute between Caston and Caffey at Whitlee's Bar. One witness at the bar reported overhearing a conversation the trio had after the dispute occurred. The witness relayed that appellant told Caston with reference to Caffey, that Appellant, Caston and Turner were also seen together just a few minutes before the shooting in a car at a Shell station a short distance from Caffey's house.
On June 6, 1994, late in the afternoon, police first interviewed appellant. Appellant denied making any statement to Caston to "cap" anyone. When asked of his whereabouts at the time of the shooting, appellant said he had spent the night with Daryl Turner at Turner's girlfriend's house. When Turner's girlfriend failed to substantiate this alibi, appellant said he had lied to keep secret an extra marital affair he was having with Krista Harris. According to appellant, he had spent the night with Harris in a motel.
Harris initially supported appellant's story and went so far as to provide him with an alibi when she testified before a grand jury. Later though, Harris changed her testimony. During appellant's trial, Harris stated that appellant was supposed to meet her in a motel room a few blocks from the shooting scene, but he did not show up until sometime after 3:15 a.m. When he did arrive, according to Harris, he appeared nervous and shaken. Harris also testified that the next morning she overheard a telephone conversation between appellant and Turner in which the shooting was discussed and appellant stated that they "had to get the gun." Appellant left and returned with Turner a short time later Turner was carrying a duffle bag.
Appellant and Turner then went to Columbus, Ohio, where they stayed for the next week. In her trial testimony, Harris reported receiving numerous telephone calls from appellant during this period. Appellant advised Harris during the phone calls, "*** not to talk to police, [and] that I was going to be his alibi so he wouldn't go to jail ***." Over appellant's objection, Harris also testified that during one of her telephone conversations with appellant he gave the phone to Turner. Turner, according to Harris, warned her that she was too involved to talk to the police. He also told Harris that he had provided Shawn Caston with the gun, "*** [t]o take Jerome Caffey out," and that he and appellant then, "*** got rid of it."
During the course of the investigation another witness changed his story. The neighbor from across the street who previously only reported hearing the shooting now admitted he had seen the shooting, but concealed the information from investigators out of fear of becoming involved. The neighbor told police and later testified that he had seen three black males in a compact car with a loud muffler shoot into the Caffey/Hunt house. He also noted that during the shooting he saw one of the occupants of the car pass the gun to a front seat passenger who shot it while holding it over the windshield.
The neighbor's observation of the gun being fired over the windshield became important because when investigators examined the car owned by Shaw Caston's girlfriend, a compact car without a muffler, they found another nine millimeter shell casing lodged in the well between the windshield wiper and the hood. Experts determined that the firing markings on this shell matched those of the twelve casings found at the shooting scene. In addition to this evidence, Daryl Turner admitted to police that he owned an Intertech nine millimeter pistol, but the weapon was never found.
Appellant, Turner and Caston were indicted on charges arising out of the drive-by shooting. Appellant was indicted on seven counts: aggravated murder, murder, and involuntary manslaughter (all relating to the death of Vivian Johnson), unlawful discharge of a firearm into an inhabited dwelling, felonious assault on Sharon McGill, and attempted aggravated murder and attempted felonious assault (both relating to Jerome Caffey). The charges also contained firearm specifications and injury specifications. Appellant plead not guilty and the matter proceeded to trial. The three men were tried separately.
At trial, the state presented evidence which included testimony concerning the altercation at Whitlee's and appellant's comments relative to Caffey. The neighbor who witnessed the shooting and Krista Harris also testified. At the conclusion of the state's case in chief, the trial court overruled appellant's motion for a judgment of acquittal. Appellant presented no defense. On deliberation, the jury found appellant guilty on all counts except the involuntary manslaughter charge. The trial court entered judgment on the verdict and sentenced appellant to life imprisonment.
Appellant now appeals, setting forth the following five assignments of error:
In his first assignment of error, appellant argues that the trial court erred to his prejudice when it permitted Krista Harris to testify to the telephone statements of Daryl Turner. Turner's out of court statements implicated himself and appellant in the shooting, revealing the intended purpose of the shooting which was to kill Jerome Caffey. Appellant objected to this testimony on ground that the statements attributed to Turner denied appellant his right to confront Turner as guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. Appellant argues to us that the introduction of the statements of a co-defendant violates the holdings of Bruton v. United States (1968), 391 U.S. 123 and State v. Young (1983), 5 Ohio St.3d 221.
The state responds that the statement of a co-conspirator made in the furtherance of a conspiracy is defined as "not hearsay" by Evid.R. 801(D)(2)(e) and, citing Bourjaily v. United States (1987), 483 U.S. 171, and State v. Carver (1972), 30 Ohio St.2d 280, 287, is, in any event, a firmly rooted exception to the hearsay rule which does not offend either the state or federal confrontation clause.
Hearsay is an out of court statement offered to prove the truth of the matter asserted, Evid.R. 801, and generally may not be admitted into evidence absent an exception to the rule. Evid.R. 802. Even when a hearsay exception exists or a type of testimony is deemed "not hearsay" under the rules, hearsay testimony must still be excluded as violative of the confrontation clause unless the statement bears an "indicia of reliability." Ohio v. Roberts (1980), 448 U.S. 56, 65-66. Such a reliability maybe inferred when the evidence, "falls within a firmly rooted hearsay exception." Id. at 66. A statement by a co-conspirator has been found to be a "firmly...
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