State v. Kenneth Brown

Decision Date29 February 1996
Docket Number96-LW-0904,68761
PartiesSTATE OF OHIO, Plaintiff-appellee v. KENNETH BROWN, Defendant-appellant
CourtOhio Court of Appeals

Criminal appeal from Court of Common Pleas Case No. 312982.

FOR PLAINTIFF-APPELLEE: Stephanie Tubbs-Jones, Esq., Cuyahoga County Prosecutor, By: Richard J. Bombik, Esq., Assistant Prosecuting Atty., The Justice Center, 1200 Ontario Street Cleveland, Ohio 44113.

FOR DEFENDANT-APPELLANT: David A. Lambros, Esq., 5709 Smith Road Brook Park, Ohio 44142.

OPINION

HARPER J.

Defendant-appellant, Kenneth Brown, appeals from his conviction for murder following a jury trial in the Court of Common Pleas of Cuyahoga County. Appellant assigns a variety of errors for this court's review relating to the sufficiency and weight of the evidence, the trial court's charge to the jury, and the conduct of the trial court, defense counsel and the prosecutor. A careful review of the record compels affirmance.

I.

On July 16, 1994, Michael Sheffield, his two young children, and Joseph Miller, residents of New Jersey, drove to Cleveland, Ohio to visit their sister and aunt, Deborah Miller. Ms. Miller was hosting a party that evening at her home located at 19120 McCracken Road, at the corner of Camden Avenue, in Maple Heights, Ohio. Ms. Miller knew appellant from childhood as he was her cousin; Sheffield met appellant in 1993 at a family reunion.

Guests started to arrive at the party between 5:00 and 6:00 p.m. Ms. Miller, Cynthia Cannon, Chejuana McCully (Ms. Miller's daughter), William Harris (McCully's fiance and father to their child), and other relatives of Sheffield's, were present in the basement throughout the evening, playing cards and drinking wine and beer. Appellant arrived at Ms. Miller's house sometime around midnight to take Sheffield, Joseph Miller, and Harris, to a few local establishments. Joseph Miller telephoned appellant earlier to inform him about his and Sheffield's arrival. According to Sheffield and Ms. Miller, there was no "bad blood" between any of these men.

Appellant drove Sheffield, Joseph Miller, and Harris in his vehicle to one bar where they stayed for a drink. Appellant then took the men to his house on Donover Road, Warrensville Heights, Ohio, to show off his basement. The men stayed at the house for about a half an hour. As they were leaving the house, Harris, who was not visibly intoxicated, vomited at the end of appellant's driveway. Appellant then drove Sheffield, Joseph Miller and Harris to a second bar, but a dress code prohibited their entry. By now, everyone but appellant wanted to return to Ms. Miller's house. According to Sheffield, appellant stated that since he was driving, they had to go with him to a third bar located in Garfield Heights, Ohio.

Harris was reluctant to go into this third bar due to the reputation of its patrons. The men entered, but stayed for only about ten to fifteen minutes. Sheffield testified that an argument between appellant and Harris, which started in the bar over a couple of women, "really started" after they returned to appellant's car. When asked about the nature of the argument, Sheffield responded, "Because he -- because Billy [Harris] was saying that he didn't want to know such and such females, that Kenny [appellant] was saying you don't disrespect my friends like that, and it just went back and forth, back and forth for a while."

The verbal argument between appellant and Harris continued until appellant pulled into a gas station and put the car in park. Sheffield testified that appellant then opened the car door, exited, reached up under the driver's seat, pulled out a gun, and aimed it at Harris who was seated in the back seat. Sheffield described appellant as "upset," and noted that he stood outside the vehicle for about five minutes, "mouthing" at Harris.

Sheffield acknowledged during cross-examination that he did not tell police officers upon his initial interview that appellant pulled out a gun at the gas station. He also admitted to speaking with others about the incident afterwards. Sheffield, testified, however, that he might have forgotten about it initially because of being upset, but remembered it clearly at the time of trial.

Appellant admitted to pulling into the gas station and pulling out a gun, a .32 caliber semi-automatic handgun. He denied, however, that he exited the car and pointed it at Harris. Appellant explained that since he was going to collect money for his newspaper delivery route soon after dropping Sheffield, Joseph Miller and Harris off at Ms. Miller's house, he had the gun in his possession for protection. He only pulled the gun out as a deterrent in an attempt "to keep the situation calm."

Sheffield successfully persuaded Harris not to get out of the vehicle. The four men then proceeded to Ms. Miller's house, a short distance away, in silence. Sheffield believed at this point that everyone was calmed down.

Sheffield testified that as soon as appellant pulled up to Ms. Miller's house, the driver's side of the vehicle facing the side door to the house, Harris exited the vehicle. Harris immediately broke the driver's window of the vehicle with his hand(s). The glass shattered and travelled across the width of the car, outside the front passenger window, and into the back seat. Sheffield testified that as Harris walked toward the side door, appellant exited the vehicle without putting it in park, and started shooting his gun from the street. Sheffield heard at least five shots, one right after the other. Ms. Miller and Cynthia Cannon recalled hearing two to three "firecracker" type noises at approximately 2:30 a.m. while playing cards in the basement. McCully knew that she heard at least three gunshots at the time. Sheffield testified that Harris continued to the house despite the gunshots.

Sheffield viewed the events from appellant's vehicle as it continued down Camden Avenue as a result of appellant's failure to put the vehicle in park. Joseph Miller, who was seated in the front passenger seat, exited the vehicle while it was in motion. Sheffield, seated in the rear seat behind Joseph Miller, then exited the vehicle. The vehicle struck the curb at the intersection of McCracken Road and Camden Avenue, hit the wall and then the bridge. Sheffield and Joseph Miller headed toward the house as appellant headed toward his vehicle. Sheffield testified that as he entered the home, he immediately saw Harris at the bottom of the basement steps, laying face down and bleeding out of his mouth.

Appellant returned to his home, and telephoned Ms. Miller's residence about twenty minutes after the shooting. According to him, he called to inquire as to why Harris fired a weapon at him. Appellant testified that as Harris exited his vehicle, Harris threatened, "to blow your fucking head off." Appellant thus explained that he only fired his weapon in Harris, direction because he thought that his driver's window was shattered as a result of Harris, firing a weapon at him. Appellant was later arrested at his home by Warrensville Heights police officers, and then taken into custody by officers from the Maple Heights Police Department.

Appellant related to both Patrolman Mackiewicz and Sergeant Greg Curtin, appellant's arresting officer, that he threw his gun away as he drove from Ms. Miller's home. Appellant identified the woods on the north side of Marvin Avenue at Camden Avenue as the location where he threw the weapon. However, searches of the area failed to result in the weapon's recovery.

Maple Heights Patrolmen Mark Tuzi and Machiewicz responded to 19120 McCracken Road in the early morning hours of July 17, 1994 within minutes of receiving a "shots fired" call. Tuzi observed two areas of broken glass on Camden Avenue--a larger area northeast of the house, about twelve or thirteen feet from the curb, and a smaller area just east of the larger one. He also observed that the side door to the house was approximately fifteen feet from the street, and higher than street level. Tuzi noticed four holes around the area of the side door: two holes were present in the siding to the right of the door; one was located in the awning; and the last hole was present at the top of the siding, to the left of the door. Ms. Miller remembered that the two holes on the right side were already there, but she testified that the hole on the left side was new to her. She did not remember ever looking at the awning. No bullets were recovered from the area as a bullet, if any, may have fallen inside the siding.

Detective Rudolph Prhne and Sergeant Michael Megyesi arrived separately at 19120 McCracken Road on July 17, 1994, at around 4:00 a.m. Prhne also observed the areas of broken glass and the holes in the side of Ms. Miller's house. He measured the distance in height of each hole from the ground, and the distance in length from the door to the street curb as eighteen feet, four inches. Megyesi retrieved a shell casing from a .380 automatic pistol from the eastbound lane of Camden Avenue.

Ronald Arko, a detective with the Maple Heights Police Department, first saw appellant as he was being booked on July 17, 1994 at approximately 3:15 a.m. Arko administered an atomic absorption test to appellant's hands a little over a half an hour later. The test kit was then delivered to the Ohio Bureau of Criminal Identification and Investigation ("BCI") located in Richfield, Ohio. Arko noticed the odor of alcohol on appellant's breath, but appellant did not appear to be intoxicated.

Jeffrey Lynn, a forensic scientist with BCI analyzed the atomic absorption kit. The kit contained four swabs from the backs and palms of appellant's hands. The four swabs revealed levels of antimony and barium, components of...

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