State v. Keith I. Davis, Ii
| Decision Date | 19 November 1999 |
| Docket Number | 96-CO-44,99-LW-5946 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. KEITH I. DAVIS, II, DEFENDANT-APPELLEE CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from Columbiana County Court of Common Pleas, Case No 96-CR-1.
For Plaintiff-Appellee: Atty. Robert L. Herron, Columbiana County Prosecutor, Atty. Sherrill L. Liebschner, Assistant Prosecuting Atty., 105 S. Market St., Lisbon, Ohio 44432.
For Defendant-Appellant: Atty. R. Eric Kibler, 127 N. Market St Lisbon, Ohio 44432.
Hon Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich.
This timely appeal arises from a jury verdict finding Appellant guilty of aggravated murder. For the following reasons, this Court affirms the jury verdict and overrules Appellant's assignments of error.
Shortly before 7:00 p.m. on December 11, 1995, in East Liverpool, Columbiana County, Ohio, Willie Coleman, an off-duty Columbiana County Sheriff's Deputy, exited his house on Morton Street and heard a crashing sound followed by a woman screaming. (Tr. 165-166.) Coleman observed his neighbor, Alice Timmons, run from her house and down the middle of the street holding her child. (Tr. 166.) Appellant, Keith I. Davis, II, pursued Alice down the street and eventually took hold of her right arm. (Tr. 168, 170-171.) Appellant and Alice made their way closer to Coleman's house where Alice stated to Coleman that Appellant, "* * * is going to do something to me." (Tr. 171.) Coleman inquired as to what was occurring and Appellant responded, (Tr. 173.) Coleman then noticed that Appellant was concealing a gun behind his back and advised Appellant to put it down and to not do anything "stupid." (Tr. 173.)
After Coleman made several more attempts to persuade Appellant to drop the gun, Appellant began to slowly retreat away from Coleman. (Tr. 174.) Coleman then went into his house to retrieve his off-duty weapon and to contact the East Liverpool Police Department. (Tr. 175.) After Coleman contacted the police and While still in his house, he heard two gun-shots. (Tr. 175.) Coleman ran outside and saw the child standing alone in the middle of the street crying. (Tr. 176.) Coleman grabbed the child and turned around to see Alice lying on the ground behind his truck which was parked in the street. (Tr. 176.) Alice was bleeding from her head and, according to Coleman, had no pulse. (Tr. 176.) Coleman then took the child to his house, gave the child to his wife and instructed her to contact the police department and request an ambulance. (Tr. 177.) Coleman then returned to the street to wait for the police and to see if Appellant was still in the area. (Tr. 176-177.)
At 7:19 p.m. that evening, Appellant walked into the East Liverpool Police Department and advised Dispatcher Ron Brooks that the police were looking for him. (Tr. 245, 246.) When Brooks asked why the police were looking for him, Appellant stated that he had just shot his girlfriend. (Tr. 245.) About that time, Chief Michael McVay of the East Liverpool Police Department, who was then off-duty, entered the police station to retrieve something that he had left in his office. (Tr. 267.) McVay casually asked Brooks what was going on and Brooks responded that there had been a shooting. (Tr. 267.) Brooks motioned to Appellant who was standing at the counter next to McVay and indicated that Appellant was the offender. (Tr. 267.) Appellant then stated, "I'm the one who shot her." (Tr. 267.)
McVay asked Appellant if he had the gun at that time and Appellant responded that he did not. (Tr. 268.) McVay conducted a pat-down search and confirmed that Appellant was unarmed. (Tr. 268.) McVay then asked Appellant where the gun was at and Appellant responded that he had thrown it in a ditch. (Tr. 268.)
Upon McVay's request, Appellant entered the squad room where McVay read the Miranda rights directly from a Miranda card to Appellant. (Tr. 269-270.) When McVay asked Appellant if he understood his rights, Appellant responded, "I'm not sure." (Tr. 270.) McVay then reread the Miranda rights to Appellant who then indicated that he understood them and asked McVay, "Can I continue my statement?" (Tr. 270.)
Appellant stated that he and Alice were fighting and that she had thrown a telephone at him. (Tr. 271.) Appellant then stated that he heard glass break and observed Alice running across the street towards Deputy Coleman's house. Appellant said that he followed Alice to Coleman's house and that he was holding her from behind. (Tr. 272.) Appellant then claimed that "I knew [Coleman] was going in the house to get his gun, I knew he was going to kill me." (Tr. 272.) Appellant stated that he tried to drag Alice back to their house when they stumbled down a small hill. (Tr. 272.) Appellant said that, "I pushed the baby away with my right hand, then [Alice] got shot." (Tr. 272.) McVay asked Appellant whether the shooting was an accident; Appellant responded, "I shot her and I'll have to take responsibility for it." (Tr. 272.)
McVay proceeded to question Appellant concerning the gun used in the shooting. Appellant told McVay that the gun he used was a .45 caliber pistol. (Tr. 273.) McVay then asked Appellant if it was possible that a child could find the discarded gun and Appellant responded, "Yes, I'm sure somebody is going to find the gun." (Tr. 273.) Appellant then informed McVay that the gun was behind the Kent State University East Liverpool Campus. (Tr. 273.) Appellant agreed to show McVay where he hid the gun and reiterated that, "Somebody is going to find the gun." (Tr. 273.) When they were gathering their coats to drive to the location, Appellant stated to McVay, "I think I ought to have an attorney." (Tr. 273.) McVay stated that he ceased questioning Appellant at that point although he then asked Appellant whether he was still willing to show him were the gun was. (Tr. 274.) Appellant said "Yes" and restated that he believed somebody was going to find the gun. (Tr. 274.) Appellant directed McVay and another officer to the location of the gun. (Tr. 274.) Appellant indicated that the gun was under a piece of old carpet, which McVay pulled back to discover a .45 caliber pistol, a 9 mm pistol and a 9 mm bullet cartridge. (Tr. 275-276.) Both guns were empty and their magazines were missing. (Tr. 276.)
Alice Timmons died on the night of the shooting as a result of two gun shot wounds to her face.
On January 23, 1996, the Columbiana County Grand Jury indicted Appellant on aggravated murder with a firearm specification. On January 29, 1996, Appellant waived his right to a speedy trial and pled not guilty to the charge against him. On May 15, 1996, Appellant filed a motion to suppress/motion in limine. Appellant argued that any statements he made to police or any evidence obtained as a result of his interrogation should be suppressed as they were obtained in violation of his constitutional rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article One of the Ohio Constitution.
After a hearing on the motion, the trial court denied Appellant's request. At issue was whether Appellant's statement, "I think I ought to get an attorney," constituted an invocation of his right to counsel and whether Chief McVay's subsequent inquiry as to whether Appellant would still show the police where the gun was located violated Appellant's right to counsel. The court found that McVay's question as to whether Appellant desired to take police to the gun (after he purportedly requested counsel) was out of concern for the safety of other individuals, including children, who may have found the gun. The court also stated that Appellant's purported invocation of his right to counsel was too vague and thus did not "necessarily" constitute a request for counsel.
At trial, a jury found Appellant guilty of aggravated murder with a firearm specification. On June 21, 1996, the trial court sentenced Appellant to three years actual incarceration on the firearm specification and to life imprisonment on the aggravated murder. These sentences were to be served consecutively.
On July 2, 1996, Appellant filed his notice of app While his appeal was pending, Appellant requested the appointment of new appellate counsel stating his dissatisfaction with the appellate counsel originally appointed and that counsel had a serious conflict of interest. We granted Appellant's request. Appellant's new counsel filed a motion to supplement the record seeking this Court to order the preparation of a transcript of the suppression hearing which Appellant's original appellate counsel had not requested. However, at oral argument, counsel withdrew that motion based upon a stipulation that this Court would accept the trial court's factual findings at the suppression hearing as true.
Subsequent to oral argument, Appellant, pro se, filed motion for leave to supplement his previously filed pro se brief. This motion was denied as the matter had been fully briefed and heard by the Court.
Appellant raises six assignments of error; three with assistance of counsel and three pro se.
Appellant's first assignment of error alleges:
"THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE INTRODUCTION INTO EVIDENCE OF THE FIREARMS AND THEIR SUBSEQUENT TESTING, AS THE APPELLANT HAD CLEARLY INVOKED HIS MIRANDA AND SIXTH AMENDMENT RIGHT TO COUNSEL PRIOR TO CHIEF McVAY"S REINITIATION OF QUESTIONING, AND THE REOPENING OF SUCH INTERROGATION RESULTED IN DISCOVERY OF THE WEAPONS."
Appellant asserts that his statement, "I think I ought to get an attorney," was an invocation of his right to counsel requiring that subsequent interrogation cease. Appellant also argues that Chief McVay's inquiry as to...
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