State v. Johnson, Case No. 2016CA00069

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtGwin, P.J.
Citation2016 Ohio 8261
PartiesSTATE OF OHIO Plaintiff-Appellee v. CALVIN RICHARD JOHNSON Defendant-Appellant
Decision Date19 December 2016
Docket NumberCase No. 2016CA00069

2016 Ohio 8261

STATE OF OHIO Plaintiff-Appellee
v.
CALVIN RICHARD JOHNSON Defendant-Appellant

Case No. 2016CA00069

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

December 19, 2016


JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2015CR1295(B)

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

JOHN FERRERO
STARK COUNTY PROSECUTOR
110 Central Plaza South, Ste. 510
Canton, OH 44702

For Defendant-Appellant

DEREK LOWRY
116 Cleveland Avenue N.W.
Suite 800
Canton, OH 44702-1732

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Gwin, P.J.

{¶1} Appellant Calvin Johnson ["Johnson"] appeals his convictions after a jury trial in the Stark County Court of Common Pleas.

Facts and Procedural History

{¶2} Sade Edward has known Johnson for several years. Prior to August 2015, Edwards had not seen Johnson for 10 years. Sometime around August 2015, Edwards reestablished contact with Johnson through social media. When he came to Alliance, Edwards and Johnson began a romantic relationship. Johnson would often arrive with his brother, Corey Campbell and Chris Burnette. Burnette goes by the nicknames "Chicago" and "Cuz."

{¶3} On August 10, 2015, Edwards drove to Akron, Ohio to pick up Johnson, Campbell and Burnette. They drove to Edwards' home, were bored and decided to drive around. At the intersection of Morgan and Garwood in the city of Alliance Johnson tells Edwards to stop the car and park. Campbell and Burnette get out of the car. Edwards remained in her car listening to music and looking at Facebook.

{¶4} On August 10, 2015, at approximately 10:30 p.m., Albert Magee picked up some beer and some blunt rolls1 and drove to Cleave Johnson's residence. He parked his car out front. Cleve came outside and the two men drank a beer together. While they were drinking, Magee saw Edwards drive by in a Silver Pontiac Grand Am. Magee walked down the nearby alley because he thought Sade would stop and visit. Sade never stopped, so Magee went back to talk with Cleve.

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{¶5} After Sade drove by, Magee heard footsteps coming down the alley. He looked over and saw a guy with a gun who smiled and immediately started shooting at him. Magee then saw Johnson who also fired a gun at him. A third man with dread locks, (Campbell) was running around behind the two shooters- "like a chicken with his head cut off." Magee tried to crawl to his car to retrieve his pistol for protection. As he was crawling, Magee was hit with gunfire and saw Cleve fall. He then heard one of the shooters say, "This is how we do it in Chicago, motherfucker, Chicago style."

{¶6} After the shooting, Burnette, Johnson and Campbell ran back up the alley toward Edwards's car. Burnette ran past the car and continued down the street. Johnson and Campbell arrived after Burnette and jumped into Edwards's car. Johnson climbed into the front passenger seat and Campbell got into the right rear passenger seat. They picked up Burnette further up the street. Edwards drove them back to her house and asked them what happened. They did not say anything except that they needed to get out of town. Edwards then drove the three men back to Burnette's home in Akron.

{¶7} On the trip to Akron, Edwards learned about a shooting that evening. She got a call from her mother who told her that Magee had been shot. She overheard Johnson say to Burnett, "Cuz why did you start shooting so fast? I thought we was going to get closer." She heard Johnson and Burnett talk about throwing their poles (i.e., guns) under a porch. She heard Campbell tell Johnson and Burnett that they should have thrown the guns in the boat. After Edwards dropped them off, Johnson called and asked her to take them back to Alliance to get their guns.

{¶8} The Alliance City police responded to a shots fired call at the Cleve Johnson's address. When they arrived, the officers found Magee. Magee told the officers

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that "Calvin Johnson" had shot him and that Johnson and another shooter had been standing in the corner of the alley. Police showed Magee a photo taken from a Facebook page and he identified Johnson and another male in the photo, Chris Burnett, as shooters.

{¶9} The officers also found Cleve Johnson unresponsive lying in a fetal position in the middle of his front walk. Cleve had blood coming out of his nose and mouth and brain matter coming out of his head. Bystanders advised the responding officers that there were two shooters but later they refused to get involved.

{¶10} Both Magee and Cleve Johnson were transported to the hospital where Cleve died several days later. The Stark County Coroner determined that Cleve's death was due to a gunshot wound to the head. A bullet had destroyed much of his brain and skull. Multiple surgeries were performed to repair the shattered femur bone in Magee's right leg.

{¶11} At the hospital, the officers swabbed Magee's hands for gun residue and found none. The officers also showed Magee a Facebook picture of Burnett and Johnson. The note above Burnett's picture said "Chris Chicago Burnette." Magee identified Calvin Johnson and Burnett as being the two shooters and Edwards as the driver of the silver Pontiac Grand Am.

{¶12} Officers also responded to a suspicious person call at Edwards's home and observed a Silver Pontiac Grand Am parked outside the residence. At first, Edwards was not truthful about where she had been on the evening of the shooting. After the detective confronted her with information gathered in the investigation Edwards later changed her story. Edwards told the officers that she had been driving Johnson, Campbell and Burnett around Alliance that evening and that she believed that Johnson and Burnett were

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involved in the shooting. Edwards took the officers to a house with a boat in the lot the place she overheard Burnette and Johnson discuss having thrown their guns. At the location, the police recovered a Highpoint magazine, a .9-millimeter Highpoint pistol and a SCCY Industries .9-millimeter pistol from under the porch. The officers testified that there was evidence that the guns had recently been fired. The recovered Highpoint magazine fit inside the Highpoint handgun. The magazine removed from the SCCY was empty and the gun had a .9-millimeter Luger round in the chamber. Officers also recovered eighteen shell casings in the alley where Magee stated Burnette and Johnson shot their guns.

{¶13} Edwards provided the investigating officers with the cell phone number for Johnson and Campbell. Sprint provided GPS coordinates for the cell phones. The GPS established that Johnson and Campbell were traveling Westbound on Interstate 80 in Ohio. Ohio State Highway Patrol Officers stopped Johnson and Campbell as they were pulling into an Erie Service Plaza in Sandusky, Ohio and the two were placed under arrest.

{¶14} DNA samples were collected from Burnette, Johnson, Campbell and Edwards and submitted to the Bureau of Criminal Investigation (BCI) for analysis. Samuel Troyer, a forensic DNA analyst compared the DNA samples from the four co-defendants with swab samples collected from the guns and the magazines. Troyer found that the swabs taken from the .9-millimeter Highpoint and Highpoint magazine had a DNA profile consistent with Burnette. Johnson, Campbell, Sade, and Albert were excluded as possible contributors of the samples. Troyer testified that Burnette's statistical profile for the DNA collected from the Highpoint handgun occurred in one out of every five billion six

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hundred and nine million people (5,609,000,000). Troyer also testified that the statistical profile collected from the magazine can only be found in one out of every one hundred and ninety-two trillion eight hundred billion people and that this is significant because there are only seven billion people on earth.

{¶15} Troyer testified he examined the trigger swab, gun swab, and magazine swab for the SCCY .9-millimeter handgun and magazine. Troyer stated that the trigger swab included the DNA of at least one male but that there was too much of a DNA mixture to make any further comparisons. He also stated that the gun swab had too much DNA mixture for any comparisons and the magazine swab had a complex DNA mixture not suitable for comparisons.

{¶16} The recovered guns were submitted to BCI for analysis. Andrew Chappell a forensic scientist for BCI determined that both firearms were operable. Chappell determined that eight shell casings collected from the area where Burnette had been standing were fired from the .9 millimeter Highpoint to the exclusion of all other firearms. Chappell testified that the other shell casings collected from where Johnson had been standing were fired from the SCCY .9-millimeter handgun.

{¶17} Fourteen latent fingerprints, lifted from Sade Edward's vehicle, were submitted to BCI for analysis. Michelle Snyder, a fingerprint analyst examined the latent fingerprints. Snyder testified that only three of the lifted fingerprints had value. She identified the left index and left middle finger prints lifted from Sade's vehicle as a match for Calvin Johnson. Snyder also found the right thumbprint collected from the vehicle to be a match for Corey Campbell. She testified that as a matter of protocol, her results

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were passed on to a second examiner for verification. Sarah Pivovat, the second examiner put a notation on Snyder's report verifying that she agreed with Snyder's results.

{¶18} Prior to Burnette's trial Corey Campbell and Sade Edwards each pled guilty to felony counts of obstructing justice. Campbell received a two-year sentence. In exchange for truthful testimony, the State agreed to recommend community control for Sade. Thereafter, the court agreed to separate trials for Johnson and Burnett. In December of 2015, Burnett was found guilty of two counts of complicity to commit felonious assault and the firearm specifications and tampering with evidence. Burnett...

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