State v. Keith A. Bowles

• Decision Date: 11 May 2001
• Docket Number: 99-L-075,01-LW-1760
• Parties: STATE OF OHIO, Plaintiff-Appellee v. KEITH A. BOWLES, Defendant-Appellant CASE
• Court: United States Court of Appeals (Ohio)

STATE OF OHIO, Plaintiff-Appellee v. KEITH A. BOWLES, Defendant-Appellant

No. 99-L-075

01-LW-1760 (11th)

Court of Appeals of Ohio, Eleventh District, Lake County.

May 11, 2001

Criminal Appeal from the Court of Common Pleas Case No. 98 CR 000429

HON DONALD R. FORD, P.J., HON. WILLIAM M. O'NEILL, J., HON JOHN R. MILLIGAN, J., Ret., Fifth Appellate District, sitting by assignment.

CHARLES E. COULSON, LAKE COUNTY PROSECUTOR, BRIAN L. SUMMERS, VINCENT A. CULOTTA, DAVID J. HACKMAN, JR., ASSISTANT PROSECUTORS, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee)

ATTY PAUL A. MANCINO, 75 Public Square, #1016, Cleveland, OH 44113-2098 (For Defendant-Appellant)

OPINION

MILLIGAN J., Ret.

Appellant, Keith Bowles, appeals from the judgment of the Lake County Court of Common Pleas, convicting him of murder, in violation of R.C. 2903.02(B).

On the evening of August 22, 1998, appellant and three of his friends, Richard Hayden, a.k.a. "Snoop," Damon Anderson, a.k.a. "Long," and Jamal Russell, a.k.a., "Dred," drove from Cleveland to see a rap music group perform at Hellbusters, a bar in Fairport Harbor, Ohio. Appellant and his friends left the bar at 2:30 a.m., and drove to Painesville to attend an after-hours party at the Argonne Arms Apartment complex. On their way to the party, they drove past a bar named Nino's located on Prospect Street in Painesville. Outside Nino's, Hayden saw his cousin, Marcus Moore, a.k.a. "Choc," who appeared to be injured, yelling at police officers. When appellant and his friends drove past the bar again to look for Moore, he was gone. The group proceeded to drive up Prospect Street, where they saw Moore and some of their other friends from Cleveland. Appellant, Hayden, Long, and Russell learned that Moore and the others had been jumped and beaten up by a group of guys from Painesville, Antonio Rymmer, a.k.a. "Stickman," and his friends.

Appellant, Hayden, Long, and Russell then decided to drive to the Argonne Arms Apartment complex to find Rymmer and beat him up in revenge for jumping their friends. When they arrived at the apartment complex, they found Rymmer, but because he was holding a gun, they drove past him. As they were driving through the complex, they also saw another man, later identified as Kenneth Johnson, a.k.a. "Dirty," holding a rifle and talking to Long's brother, Delmarcus, a.k.a. "Peanut." They next encountered Ollie Gipson, a.k.a. "Nato" or "Trenne," whom they did not know. At that point, appellant, Hayden, and Long got out of the car and started to beat Gipson by punching, kicking, and stomping on him. Gipson died as a result of the injuries he sustained in the attack.

On September 4, 1998, the Lake County Grand Jury indicted appellant on one count of murder, in violation of R.C. 2903.02(B), for causing a death as a proximate result of committing felonious assault, in violation of R.C. 2903.11. A jury trial commenced on March 1, 1999. After the state presented its case, appellant moved for acquittal pursuant to Crim.R. 29, which was denied by the trial court. Appellant reasserted his motion for acquittal at the close of the presentation of evidence, which was again denied by the trial court. On March 3, 1999, the jury returned a verdict of guilty to the charge of murder. The trial court sentenced appellant to serve an indefinite term of imprisonment of fifteen years to life. On March 9, 1999, appellant filed a motion for judgment of acquittal, or in the alternative, a motion for a new trial. On April 14, 1999, the trial court denied appellant's motion. From his judgment of conviction, appellant assigns the following errors:

"[1.] Defendant was denied a fair and impartial trial jury venire.

"[2.] Defendant was denied due process of law when the court called Richard T. Hayden as a court's witness.

"[3.] Defendant was denied due process of law and a fair trial when the court permitted questioning of defendant and commented on the fact defendant did not make a statement to the police.

"[4.] Defendant was denied a fair trial when the court permitted evidence to be offered concerning efforts made to contact defendant.

"[5.] Defendant was denied a fair trial when the prosecutor elicited from Richard T. Hayden that he had been convicted of murder.

"[6.] Defendant was denied due process of law when the court refused to instruct on the lesser included offense of assault.

"[7.] Defendant was denied due process of law when the court improperly informed the jury concerning a presumption of aiding and abetting.

"[8.] Defendant was denied due process of law and a fair trial when the court instructed the jury that an 'accomplice' had testified.

"[9.] Defendant was denied due process of law when the court would not instruct on a culpable mental state.

"[10.] Defendant was denied due process of law when the court instructed on flight.

"[11.] Defendant was denied a fair trial by reason of improper prosecutorial argument.

"[12.] Defendant was denied due process of law when the court overruled defendant's motion to dismiss.

"[13.] Defendant was denied due process of law when the court overruled defendant's motion for judgment of acquittal."

I.

In his first assignment of error, appellant alleges that he was denied a fair and impartial trial jury venire. Appellant contends that because the jury venire and panel contained no African-American jurors, he was denied his Sixth Amendment right to have a jury comprised of a fair cross-section of the community. Appellant further contends that the jury was not impartial because the jurors were exposed to pre-trial publicity. Appellant also asserts that Juror White should have been excused for cause pursuant to Crim.R. 24(B)(10) because he was the brother of the Painesville Chief of Police, who was not the complainant.

In State v. Fulton (1991), 57 Ohio St.3d 120, paragraph two of the syllabus, the Supreme Court of Ohio held that:

"In order to establish a violation of the fair representative cross-section of the community requirement for a petit jury array under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant must prove: (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the representation is due to systematic exclusion of the group in the jury-selection process."

In the instant case, appellant has not demonstrated that the representation of African-Americans in jury venires is not fair and reasonable in relation to the number of such persons in Lake County. Furthermore, appellant has not presented any evidence from which we can infer that the number of African-Americans included in jury venires in Lake County is due to systematic exclusion of this racial group in the jury selection process. Therefore, we cannot conclude that appellant's Sixth Amendment right to have a jury comprised of a fair cross-section of the community was violated.

Appellant argues that the publicity generated by the trial of Michael Love tainted the entire jury venire; however, mere exposure to pre-trial publicity does not necessarily taint a jury venire. Prospective jurors who are merely aware of some of the publicized circumstances of a crime but have not previously formed or expressed opinions with respect to the defendant's guilt are not subject to challenges for cause during voir when the trial court is satisfied from their examination that they can be impartial. State v. Duerr (1982), 8 Ohio App.3d 404, paragraph two of the syllabus.

In the instant case, a review of voir dire reveals that none of the jurors at appellant's trial indicated that they had formed an opinion as to appellant's guilt prior to the commencement of the trial. We cannot conclude that appellant was denied a fair and impartial jury due to the jurors' exposure to pre-trial publicity.

Appellant also argues that Juror White should have been excused for cause pursuant to Crim.R. 24(B)(10) because he is the brother of the Painesville Chief of Police. Crim.R. 24 provides in part:

"(B) A person called as a juror may be challenged for the following causes:

"(10) That he is related by consanguinity or affinity within the fifth degree to the person alleged to be injured or attempted to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted; or to the defendant."

Because Juror White is not related to either Ollie Gipson, the victim of crime for which appellant was charged, or appellant himself, Crim.R. 24(B)(10) does not apply to him. Appellant's first assignment of error has no merit.

In his second assignment of error, appellant alleges that he was denied due process of law when the trial court called Richard Hayden as its own witness. Appellant contends that the trial court had no grounds for calling Hayden as a court's witness because there was no indication that Hayden would recant, become hostile, or refuse to testify at appellant's trial.

Evid.R. 614(A) governs the calling of witnesses by the court; it provides that "[t]he court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called." We will not reverse a trial court's decision to call a witness as its own in the absence of an abuse of discretion. State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144, at paragraph four of the syllabus. An abuse of discretion "implies that the court's attitude is unreasonable, arbitrary, or unconscionable." State v. Apanovitch (1987), 33 Ohio St.3d 19, 22.

Contrary to appellant's contention, we...