State v. Lee

• Decision Date: 20 April 2017
• Docket Number: No. 104682,104682
• Citation: 2017 Ohio 1449
• Parties: STATE OF OHIO PLAINTIFF-APPELLEE v. RAMEL J. LEE DEFENDANT-APPELLANT
• Court: Ohio Court of Appeals

2017 Ohio 1449

STATE OF OHIO PLAINTIFF-APPELLEE v. RAMEL J. LEE DEFENDANT-APPELLANT

No. 104682

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

April 20, 2017

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-16-604198-A

BEFORE: Blackmon, P.J., Celebrezze, J., and Jones, J.

ATTORNEY FOR APPELLANT

P. Andrew Baker

11510 Buckeye Road

Cleveland, Ohio 44104

ATTORNEYS FOR APPELLEE

Michael C. O'Malley

Cuyahoga County Prosecutor

By: Daniel A. Cleary

Assistant County Prosecutor

The Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

PATRICIA A. BLACKMON, P.J.:

{¶1} Appellant Ramel J. Lee ("Lee") appeals his convictions for murder, attempted murder, felonious assault, and discharging a firearm near prohibited premises. He assigns the following errors for our review:

I. The trial court erred when it denied [Lee's] motion for severance.

II. The trial court erred when it improperly removed a juror.

III. The trial court erred when it refused to give a self-defense instruction.

IV. The trial court erred in convicting [Lee] when the conviction was against the manifest weight of the evidence.

V. The trial court erred in convicting [Lee] when there was prosecutorial misconduct.

VI. The trial court erred when it improperly sustained the prosecutor's objection to defense counsel's closing argument.

VII. The trial court erred when it violated [Lee's] right to be present at all critical stages of the trial when it answered jury questions.

{¶2} Having reviewed the record and the pertinent law, we affirm the trial court's decision.

{¶3} On March 16, 2016, Lee was indicted in a 13-count indictment in connection with two shootings. Counts 1-7 pertained to the February 21, 2012 armed attack on Charles Elder ("Elder") and T.T. (a minor), and resulted in the death of T.T.¹ As is relevant herein, Counts 8-13 pertained to the April 15, 2013 shooting of Elder and fatalshooting of Regina Neal ("Neal"). In connection with this shooting, Lee was charged with aggravated murder, murder, attempted murder, three counts of felonious assault, and discharging a firearm near prohibited premises, all with one-year and three-year firearm specifications and criminal gang activity specifications. Lee pled not guilty and filed a motion to sever the charges pertaining to the February 21, 2012 shooting from the charges pertaining to the April 15, 2013 shooting. The trial court denied the motion and the matter proceeded to trial on May 16, 2016. Lee waived his right to a jury trial with respect to the gang activity specifications, and the remaining charges were tried to a jury.

{¶4} The evidence demonstrated that Lee is a member of the J-Park gang that operates in the area of East 131st Street and Harvard Avenue in Cleveland. A rival gang, ATM Jack Boyz, operates in the area of East 131st Street and Caine Avenue in Cleveland near Garfield Heights. The evidence also established that it is generally considered unsafe for members of a gang to go into the territory of a rival gang because a fight or shootout could result.

{¶5} Elder testified regarding the events of both shootings. Elder denied being a member of any gang, but he stated that he was friends with all of the ATM Jack Boyz gang members, including T.T. With regard to the February 21, 2012 shooting, Elder testified that after T.T. had two separate altercations with the girlfriend of a J-Park gang member, Elder and T.T. were fired on while walking in the area of East 131st Street and South Parkway. T.T. was shot in the back of the head and died. Elder fled and was nothit. Elder spoke with Garfield Heights police officers after the shooting but he indicated that he did not see his assailants.

{¶6} With regard to the April 15, 2013 shooting, Elder testified that immediately prior to this shooting, he and Neal were walking near Neal's home on East 134th Street near Caine Avenue when they were attacked by armed assailants. Neal was shot in the head and killed, and Elder was struck in the leg and survived. Elder observed one of his assailants about five houses away on the west side of the street. He told police that he believed that this man was Jamall Lewis ("Lewis"), a J-Park member who had been in a previous altercation with Elder's brother. Elder denied having a weapon during this attack, and stated that to the best of his knowledge, no one returned fire during this shooting.

{¶7} Cleveland Police Det. James Raynard ("Det. Raynard") located and photographed a number of spent shell casings near the front and side yards of a home on East 134th Street. According to Cleveland Police Officer Vincent Walker, six casings were from a Federal .40-caliber Smith & Wesson weapon, five nearby casings were from a CCI .45-caliber semiautomatic weapon, and another four Blazer 9 mm Luger casings were from a Blazer 9 mm weapon were found immediately across the street.

{¶8} The police subsequently obtained information about the April 15, 2013 shooting from S.L. who testified as part of a plea agreement with the state. Under the terms of the plea, various charges against S.L., including aggravated robbery with firearm and gang specifications, and other offenses, would be tried as juvenile offenses. S.L.testified that he is a member of the J-Park gang, and that during the afternoon of April 15, 2013, ATM Jack Boyz gang member "Mane" shot at him. S.L. told other J-Park members Lewis, Shropshire, and Lee that "we should all do something about it."

{¶9} According to S.L., Lee subsequently drove the group to the area where S.L. had been fired upon. Lewis was armed with a .40 caliber semiautomatic weapon and Shropshire had a .45 caliber semiautomatic weapon. The group circled the area of East 134 and Caine Avenue several times looking for Mane. They spotted a large group of people, and assumed that they were all ATM Jack Boyz, so they decided to shoot at them. Lee parked the car about a block away and the J-Park members quickly discussed that Lewis and Shropshire would shoot at the group then run back to the car. Lewis and Shropshire subsequently exited the car then returned a short time later, and Lee drove everyone home. Later, the group learned from social media posts the names of the individuals who had been shot.

{¶10} S.L. admitted that when he spoke with police about the shooting, he was unsure of the date. He also admitted that after the shooting, he had been in possession of the .45 caliber weapon, and that he and other J-Park gang members blocked Lee on social media because they believed that Lee was a police informant.

{¶11} After obtaining S.L.'s proffer of evidence, the Garfield Heights Police arrested Lee, and detectives from the Garfield Heights Police Department and the Cleveland Police Department spoke with him. According to the testimony of Cleveland Police Detectives Colin Ginley ("Det. Ginley") and Tim Entenok ("Det. Entenok"), andGarfield Heights Police Detective Carl Biegacki ("Det. Biegacki"), Lee stated that after the J-Park gang learned that S.L. had been shot at, Lee drove S.L., Shropshire, and Lewis to the area of East 131st Street and Caine Avenue. Lee stated that before they got in the car, he questioned the group as to "why are we going out and doing this for [S.L.]?" The group circled ATM Jack Boyz's territory and parked about a block away from a group of people. Lewis and Shropshire got out of the car, and Lee heard shots being fired. The men then ran back to the car and Lee drove the group to Shropshire's house. Lee told the officers that Lewis told him that he was going to someone's house, and Lee believed that Lewis, and Shropshire were simply going to talk to the ATM Jack Boyz members.

{¶12} The defense presented the testimony of Det. Entenok. Det. Entenok testified that in Lee's statements to the detectives, Lee consistently stated that when he arrived at Shropshire's house in the afternoon of April 15, 2013, Lewis and S.L. were already there, that he did not know about S.L.'s desire to retaliate against the ATM Jack Boyz gang, and that he did not know what Lewis and Shropshire had planned to do after they exited the car. Det. Entenok also acknowledged that he told Lee that he believed that "someone may have shot at or shot back at Lewis and Shropshire."

{¶13} Lee was subsequently acquitted of all of the charges related to the February 21, 2012 shooting, but was convicted of the April 15, 2013 murder of Neal and the attempted murder of Elder, three counts of felonious assault on Neal and Elder, and all of the one-year and three-year firearm specifications for these offenses. The trial courtdismissed the firearm specifications on the charge of discharging a firearm near prohibited premises, and Lee was convicted of a first-degree misdemeanor level offense in connection with this charge. Lee also pled no contest to the criminal gang activity specifications and was convicted of them. The trial court merged the offenses pertaining to each victim and sentenced Lee to nine years on all of the specifications, and a total of fifteen years to life imprisonment on the remaining charges.

1. Severance

{¶14} In the first assigned error, Lee asserts that the trial court erred in denying his motion to sever the charges pertaining to the February 21, 2012 shooting death of T.T., from the charges pertaining to the April 15, 2013 shooting of Regina Neal and Charles Elder.

{¶15} We review the trial court's ruling on joinder for an abuse of discretion. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 58; State v. Webster, 8th Dist. Cuyahoga No. 102833, 2016-Ohio-2624, ¶ 42. The defendant "'bears the burden of proving prejudice and of proving that the trial court abused its discretion in denying severance.'" Dean at ¶ 60, quoting State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 29.

{¶16} Under Crim.R. 8(A), two or more offenses may be charged together if the offenses "are of the same or...