State v. Glover
| Decision Date | 05 May 2016 |
| Docket Number | 102831.,102829,Nos. 102828,s. 102828 |
| Citation | 64 N.E.3d 442 |
| Parties | STATE of Ohio, Plaintiff–Appellant v. Laurese GLOVER, et al., Defendants–Appellees. |
| Court | Ohio Court of Appeals |
Timothy J. McGinty, Cuyahoga County Prosecutor By: Anthony Thomas Miranda, Daniel T. Van, Assistant County Prosecutors, Cleveland, OH, for Appellant.
Carmen P. Naso, Milton A. Kramer Law Clinic, Cleveland, OH, Mark A. Godsey, Ohio Innocence Project, University of Cincinnati,Cincinnati, OH, for Laurese Glover.
Brett Murner, Wellington, OH, James E. Valentine, Cleveland, OH, for Eugene Johnson.
Brian Howe, Ohio Innocence Project, University of Cincinnati, Cincinnati, OH, Carmen P. Naso, Milton A. Kramer Law Clinic, Cleveland, OH, for Derrick Wheatt.
Before: E.A. GALLAGHER, P.J., BOYLE, J., and CELEBREZZE, J.
{¶ 1} In this consolidated appeal, plaintiff-appellant, the state of Ohio, appeals the trial court's decision granting the motions for a new trial filed by defendants-appellees, Eugene Johnson, Laurese Glover, and Derrick Wheatt. The state raises the following three assignments of error:
{¶ 2} Finding no merit to the appeal, we affirm and remand the case for a new trial.
{¶ 3} In January 1996, appellees were convicted of murder in connection with the shooting death of 19–year–old Clifton Hudson on February 10, 1995, on Strathmore Avenue in East Cleveland. Appellees were juveniles at the time of the murder and were bound over to the common pleas court pursuant to Juv.R. 30, where they were tried together as adults. We summarize the evidence presented at their trial as follows.
{¶ 4} Tamika Harris, who was 14 years old at the time of the murder, was the state's sole eyewitness. Harris testified that she and a girlfriend were walking southbound on Strathmore Avenue approaching an overpass at approximately 5:45 p.m. when they heard two gunshots. Harris looked under the bridge and observed the shooter come from behind a black Chevy Blazer type truck that was stopped on Strathmore by the post office driveway. The shooter, who was standing in the street, fired five more shots at Hudson, who was on the sidewalk. According to Harris's testimony, she observed "a boy shooting a boy."
{¶ 5} After the shooting, the Blazer sped down Strathmore, under the bridge, and turned right on Manhattan Avenue, almost hitting another car. The shooter, who was running after the Blazer, ran past Harris, and the Blazer slowed down. The shooter approached the Blazer and disappeared behind it. Although Harris did not see the shooter get into the Blazer, she assumed he entered the vehicle because she did not see him again after it sped away a second time. Harris testified that she saw the face of the shooter as he ran past her and positively identified Johnson as the shooter at trial.
{¶ 6} Harris talked to police at the scene and made a written statement later that night at the East Cleveland police station. Harris told police the shooter had a medium complexion, was taller than 5'7?, and was wearing "a red and blue Tommy Hilfiger coat, black skully, and black pants." When police asked Harris if she could identify the male she saw firing the gun, she replied, "No, I didn't see his face that clear." Despite that, the day after the murder, she identified Johnson as the shooter from a photo array. She also identified Johnson's hooded sweatshirt and Nautica down jacket as the shooter's clothing, and the black Blazer as the one she had seen on Strathmore at the time of the murder. The Nautica jacket was similar to the down Tommy Hilfiger jacket she described in her previous statement. Detective Michael Perry testified that the police did not direct Harris's identification of the shooter, his clothes, or the Blazer, though there was only one black Blazer in the police garage.
{¶ 7} Wheatt, Glover, and Johnson were arrested within hours of the shooting. Johnson was wearing a blue, green, and maroon Nautica down jacket over a black hooded sweatshirt at the time of his arrest. In the presence of their parents, they each gave a statement to police and independently conveyed the same story that they were in the black Blazer on Strathmore at the time of the shooting and happened to witness the murder. According to their statements, Glover was driving, Wheatt sat in the front passenger seat, and Johnson sat in the back seat. They each stated that the shooter was a thin, light-skinned black man. Wheatt and Glover indicated the shooter was wearing a blue jacket. Johnson, however, stated the shooter's jacket was brown.
{¶ 8} The Ohio Bureau of Criminal Investigation processed the Blazer for gunshot residue. There were no firearms found in the vehicle but forensic scientists found lead particles on the exterior passenger-side door below the window, the interior passenger-side door armrest, and the front passenger seat bottom. An expert at trial testified that the lead particles were consistent with gunfire.
{¶ 9} Detective Vincent Johnstone testified that he conducted an atomic absorption spectroscopy
test ("AAS test") on Wheatt and Johnson around 2:00 or 3:00 a.m. after they were in police custody on February 11, 1995. Johnstone swabbed their hands with a Q-tip swab and sent the swabs, along with ones from Glover, to the Cuyahoga County Coroner's Office. Both sides of both of Wheatt's hands were positive for antimony and barium. Based on this evidence, the state's expert concluded that Wheatt either fired a weapon or that his hands were "very, very close" to a weapon as it was fired. Johnson and Glover's hands were negative for gunshot residue. However, test results on the palm of Johnson's left glove were consistent with gunshot residue.
{¶ 10} The defense presented two witnesses. Leroy Malone testified he had known all three defendants since they were in kindergarten because they lived in the neighborhood. Malone was parking his car on Ardenall Avenue, one street over from Strathmore, when he heard five gunshots. He then observed a black Ford Bronco with tinted windows driving toward him with three men inside. There was a fourth man running behind the Bronco. Malone testified he could see the side of the man's face as he was running and that he was not Johnson, who was darker and taller. The man stopped, put something in his pants, and ran down Shaw Avenue. According to Malone, he never got into the vehicle.
{¶ 11} Eric Reed lived on Strathmore at the time of the murder. He stated that he was watching T.V. when he heard gunshots. He looked out the window and saw a man lying on the ground and another man going through his pockets. Reed described the man who was standing over the victim as a light-skinned black male, about 5 feet 11 inches in height, wearing a dark jacket with a hooded sweatshirt. He testified that none of the defendants resembled the man he saw. He also stated that he did not notice any vehicle on the street.
{¶ 12} The jury found all three defendants guilty of murder, and the trial court subsequently sentenced them to 15 years to life in prison on the murder charge. Johnson and Wheatt were also convicted of a three-year firearm specification that was ordered to be served consecutive to their 15 years to life prison term. Their convictions were all affirmed on appeal. State v. Glover, 8th Dist. Cuyahoga No. 70215, 1997 WL 15270 (Jan. 16, 1997) ; State v. Wheatt, 8th Dist. Cuyahoga No. 70197, 1997 WL 15273 (Jan. 16, 1997) ; and State v. Johnson, 8th Dist. Cuyahoga No. 70234, 1997 WL 15269 (Jan. 16, 1997).
{¶ 13} Over eight years later, in July 2004, Johnson filed a motion for a new trial after Harris averred in an affidavit that her identification of him was in error. Specifically, Harris testified that she improperly identified Johnson as the shooter because the photo array presented by police was unduly suggestive. The trial court granted Johnson a new trial in September 2004. In November 2004, Wheatt and Glover each filed a motion for leave to file a motion for a new trial, arguing they were also entitled to a new trial based on Harris's recanted testimony. While their motions for a new trial were pending, this court reversed the trial court's judgment granting Johnson a new trial. State v. Johnson, 8th Dist. Cuyahoga No. 85416, 2005-Ohio-3724, 2005 WL 1707012. The trial court subsequently denied Glover and Wheatt's motions for a new trial, which Wheatt appealed and this court affirmed. State v. Wheatt, 8th Dist. Cuyahoga No. 86409, 2006-Ohio-818, 2006 WL 439850.
{¶ 14} In January 2009, appellees obtained leave and filed another motion for a new trial, asserting that recent advances in the forensic science of gunshot residue warranted a new trial. They argued newly discovered scientific evidence demonstrated that evidence of gunshot residue collected in their case was unreliable. The new method, known as Scanning Electron Microscopy
/Energy Dispersive X-ray Spectroscopy (SEM/EDS), determines whether lead, barium, and antimony particles are fused or bonded together, not whether these elements are merely present at some level as under AAS. Appellees argued that in light of SEM/EDS testing, the state's expert could no longer testify to a reasonable degree of scientific certainty that the elements she tested under the AAS test are consistent with gunshot residue. The trial court denied the motion. In affirming the trial court's judgment, this court held that just because SEM/EDS testing is more accurate than AAS, it does not invalidate AAS testing. State v. Wheat, 8th Dist. Cuyahoga No. 93671, 2010-Ohio-4120, 2010 WL 3442286, ¶ 38 ; State v. Glover, 8th Dist. Cuyahoga No. 93623, 2010-Ohio-4112, 2010 WL 3442274, ¶ 26.
{¶ 15} Since their...
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