State v. Gilbert

Citation2012 Ohio 1165
Decision Date20 March 2012
Docket NumberCASE NO. 08 MA 206
PartiesSTATE OF OHIO PLAINTIFF-APPELLEE v. HATTIE GILBERT DEFENDANT-APPELLANT
CourtUnited States Court of Appeals (Ohio)
OPINION

CHARACTER OF PROCEEDINGS:

Criminal Appeal from the Court of

Common Pleas of Mahoning County,

Ohio

Case No. 08 CR 382 A

JUDGMENT:

Affirmed in Part. Reversed in Part.

Remanded.

APPEARANCES:

For Plaintiff-Appellee:

Atty. Paul J. Gains

Mahoning County Prosecutor

Atty. Ralph M. Rivera

Assistant Prosecuting Attorney

For Defendant-Appellant:

Atty. Timothy Young

Ohio Public Defender

Atty. Kristopher A. Haines

Assistant State Public Defender

JUDGES:

Hon. Cheryl L. Waite

Hon. Gene Donofrio

Hon. Joseph J. Vukovich

WAITE, P.J.

{¶1} Appellant Hattie Gilbert appeals her convictions on complicity to attempted murder, complicity to felonious assault, complicity to aggravated robbery, and complicity to kidnapping, along with four corresponding gun specifications. She received a combined sentence of fifty years in prison. Appellant raises eight assignments of error in this appeal. The state has conceded that the trial court should have merged the gun specification sentences, and we correct this error herein. Appellant also argues that there were allied offenses that should have merged at sentencing. The analysis for appellate review of allied offenses was recently changed in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Under the Johnson analysis, and based on the specific facts of this case, aggravated robbery and kidnapping are not allied offenses and the sentences should not have merged. Similarly, under the facts of this case, attempted murder and felonious assault are not allied offenses and the trial court properly imposed sentences for both crimes. Appellant raises an error regarding jury instructions, but Appellant did not object to the jury instructions and the caselaw cited in support is not relevant to the issue raised. Appellant argues that there was insufficient evidence of complicity to robbery, but the record does not support the argument. Her Fourth Amendment arguments likewise are not persuasive. She raises a Sixth Amendment Confrontation Clause issue regarding a hearsay statement attributed to her codefendant Taran Helms, but any error is harmless in light of the otherwise overwhelming evidence of her guilt. She further argues that there should have been a change of venue due to pretrial publicity, but the record does not show jury bias asa result of the alleged publicity or that the publicity was excessive. The record also supports the imposition of maximum consecutive sentences, and does not establish ineffective assistance of counsel.

{¶2} All of Appellant's arguments, except those related to her first assignment of error, are overruled. The sentences for the firearm specifications are hereby merged. Appellant's convictions and the remaining aspects of her sentence are hereby affirmed.

Facts and Procedural History

{¶3} On April 3, 2008, Taran Helms and Hattie Gilbert were indicted by a Mahoning County Grand Jury on counts of attempted murder, felonious assault, aggravated robbery, and kidnapping, as well as four accompanying firearm specifications. The charges arose from a series of events that occurred on March 24, 2008, wherein the victim, Joseph Kaluza, was robbed and shot while on the way to make a bank deposit for his employer, a Kentucky Fried Chicken restaurant. As he headed for the bank, a blue-gray Saturn vehicle pulled up and suddenly stopped in front of him, causing an accident with Kaluza's vehicle. Kaluza called his district manager to report the accident, then called the police. Immediately following the accident, a man came up from behind Kaluza's vehicle and shot Kaluza in the neck. The man took the deposit money, pushed Kaluza's car to a more secluded spot, and threatened to shoot Kaluza again. The man then fled on foot. Police investigations eventually led to the arrests of Appellant and Helms.

{¶4} Appellant filed a motion to suppress on August 8, 2008. She sought to suppress statements she made to the police at her home prior to her arrest. The motion was denied on August 28, 2008.

{¶5} Co-defendant Helms filed a motion for change of venue on September 3, 2008, arguing that extensive pretrial publicity about the case necessitated a change of venue. Helms attached approximately 35 articles from newspaper and internet sources, ranging from lengthy detailed articles to single-line references, regarding the robbery, the investigation and legal proceedings, and the medical recovery of the victim. Helms later supplemented his motion for change of venue, attaching a DVD of television news coverage of the incident. Appellant joined Helm's motion on September 15, 2008. The motion was denied on September 15, 2008.

{¶6} The joint trial for Helms and Appellant commenced on September 15, 2008. Joseph Kaluza testified that he was a manager for a Kentucky Fried Chicken restaurant. One of his duties was to take the restaurant's deposits to the bank. While he was driving to the bank on March 24, 2008, a car decelerated suddenly in front of Kaluza, causing him to hit the rear of her vehicle. Appellant was the driver of that vehicle. Kaluza immediately called the police and the area manager for his restaurant. Appellant got out of her car and asked to use Kaluza's cellular phone. She used the phone and returned it to Kaluza. She then returned to her car. Shortly thereafter, codefendant Taran Helms appeared at the driver's side of Kaluza's car and shot Kaluza in the neck, instantly paralyzing him. Helms walked to Gilbert's car, motioned for her to leave, then returned to Kaluza's car and pushed it off of the main road and onto a side street in front of an abandoned house. Helms then looked inthe car for the deposit bag, and once he had found the bag containing $300.00, he said to Kaluza: "Where's the rest of the money, or I'm gonna shoot you in the head." (Tr., p. 1569.) Kaluza testified that, at that point, a man in a truck stopped and asked if Kaluza and Helms needed help, and Helms declined the offer of assistance. Helms then hurriedly grabbed another bag in the car (which turned out to be trash) and ran off.

{¶7} Kaluza further testified that Kimberly Helms, the defendant's mother, used to work at Kaluza's restaurant and knew the deposit procedure, but she was fired the prior spring for theft.

{¶8} Kandace Johnson testified that she lived in a house a short distance away from where the incident occurred. Johnson stated that she saw the car accident occur, and saw Appellant exit her car, speak to Kaluza, and return to her car. Johnson testified that Appellant was wearing a pink coat. Johnson saw Helms walk from Ravenwood Street onto South Avenue, the main street where the accident occurred. Helms walked up to Kaluza's car, fired a shot into the car without breaking his stride, and continued to Gilbert's car. Helms and Appellant spoke together for a minute. Johnson then saw Helms point for Appellant to leave, which she did. Johnson saw Helms immediately return to Kaluza's car and start "fumbling around," by reaching into the car through the driver's side window. (Tr., p. 1611.) Johnson saw Helms push the car, turn the car off, fumble around a bit more, then pull the car off of South Avenue and onto a side street, Hilton. Johnson estimated that 90 seconds elapsed between the gunshot and moving the car. Johnson saw Helmscontinue to look around in Kaluza's car on the front passenger's side. Johnson saw Helms run through a yard as tow-trucks arrived at the scene.

{¶9} Jeremy Vignon, a passerby, testified that he saw Kaluza in his car shortly after the accident had occurred. As he drove by, Vignon noticed that Kaluza was slumped over and bleeding. Vignon decided to turn around and go back to the scene as Helms was finishing pushing the car onto Hilton. Vignon asked Helms if he needed any help, and Helms responded that he only had a flat tire. Vignon drove off again, but noticed that the car did not have a flat tire, and called the police. Vignon circled around again, and when he returned to the scene, Helms was running through the yard and tow trucks were arriving.

{¶10} David White, a tow truck driver for Ludt's Towing, arrived on the scene as Helms was rummaging through Kaluza's vehicle. He and Mr. Vignon both observed Helms get out of Kaluza's vehicle and run through a backyard heading north, carrying an object in his hand.

{¶11} Law enforcement officers testified regarding their investigation of the incident. Police arrived on the scene shortly after the accident and realized that a potential homicide had taken place. Officer Justin Coulter and a K-9 unit were called to the scene to search the area. Coulter started the search near the spot where Kaluza's vehicle had come to rest. The dog immediately began to track a scent. His tracking first led to a firearm. Next, the dog led Officer Coulter around a fence to a black and orange jacket laying on the ground. The dog followed the scent to a footprint behind a garage, but lost the track soon after that.

{¶12} A Western Reserve Transit Authority ("WRTA") bus video captured the accident, showing a 2001/2002 blue-gray Saturn L series vehicle. Police generated a list of owners of similar vehicles, which later led to a police interview at Appellant's residence because her car matched the car in the video. Police discovered a damaged Saturn vehicle at Appellant's home similar to the car in the video. Detective Lieutenant Milstead testified that he asked Appellant if she knew why he was there, and she answered "Yeah. It's probably that crash I got into on South Avenue." (Tr., p. 1741.) Appellant admitted she wore a pink coat at the time and retrieved it for the detective. She was placed under arrest and taken to the Youngstown Police Department. She was read her Miranda rights and waived them in writing. She soon confessed to planning the...

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