State v. Leegrand

• Decision Date: 04 June 2020
• Docket Number: No. 108626,108626
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. TYRONE LEEGRAND, II, Defendant-Appellant.
• Court: Ohio Court of Appeals

2020 Ohio 3179

STATE OF OHIO, Plaintiff-Appellee, v. TYRONE LEEGRAND, II, Defendant-Appellant.

No. 108626

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

June 4, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-17-623531-A

Appearances:

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Katherine E. Mullin and Brad Meyer, Assistant Prosecuting Attorneys, for appellee.

Thomas Rein, for appellant.

MARY J. BOYLE, P.J.:

{¶ 1} Defendant-appellant Tyrone Leegrand, II, appeals his convictions. He raises five assignments of error for our review:

1. The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29[A], on the charges, and thereafter entering a judgment of conviction of that offense as those charges were not supported by sufficient evidence, in violation of defendant's right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution.

2. Appellant's convictions are against the manifest weight of the evidence.

3. The trial court erred in the admission of hearsay evidence and testimonial statements, in violation of Appellant's right to confront his accusers, as protected by the Sixth Amendment of the United States Constitution.

4. The trial court erred by ordering Appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.

5. The trial court erred by ordering Appellant to serve an improper sentence.

{¶ 2} Finding merit to his final assignment of error, we affirm Leegrand's convictions but vacate his sentence and remand to the trial court for resentencing.

I. Procedural History and Factual Background

{¶ 3} The charges in the case arose from events that took place on June 10, 2013. At 11:13 p.m. that night, Nunzio's Pizza on Lorain Avenue received a call for a pizza order to be delivered to 5822 Bridge Avenue. In the early morning of June 11, 2015, Nunzio's driver, Michael Prock, drove to 5822 Bridge Avenue with the pizza order in his green Buick. Witnesses saw Prock get out of his car, speak with someone, get back in his car, and, with the pizza order still in his vehicle, start to drive away. He turned onto West 59th Street and drove toward Ellen Avenue. As he drove down West 59th Street, someone shot at his vehicle from behind. One witness who knew Leegrand testified that she saw him shoot at Prock's vehicle. She described his gun as "black and clunky * * * like a Hi-Point." One of the bullets struck Prock. Prock turned left onto Ellen Avenue, crashed into a parked silver Pontiac, and came to a stop near the sidewalk in front of a home located at 6110 Ellen Avenue. Prock passed away within seconds or minutes after he was shot. The shooter fled. Police found a broken cell phone and four spent shell casings near 5822 Bridge Avenue. The cell phone had been stolen on June 6, 2015, and someone used it to order the pizza from Nunzio's on June 10. The spent shell casings were later connected to a Hi-Point 9 mm semiautomatic pistol found in the oven of an Akron townhome that Leegrand had visited in June 2015. Leegrand's girlfriend and friend both testified that Leegrand told them that he was responsible for the pizza delivery homicide.

{¶ 4} In December 2017, over two years after Prock's death, Leegrand was indicted on ten counts as follows:

Count 1: Aggravated murder in violation of R.C. 2903.01(A), an unclassified felony, with one- and three-year firearm specifications;

Count 2: Aggravated murder in violation of R.C. 2903.01(B), an unclassified felony, with one- and three-year firearm specifications;

Count 3: Murder in violation of R.C. 2903.02(B), an unclassified felony, with one- and three-year firearm specifications;

Count 4: Felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony, with one- and three-year firearm specifications; Count 5: Felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with one- and three-year firearm specifications;

Count 6: Aggravated robbery in violation in R.C. 2911.01(A)(1), a first-degree felony, with one- and three-year firearm specifications;

Count 7: Aggravated robbery in violation in R.C. 2911.01(A)(3), a first-degree felony, with one- and three-year firearm specifications;

Count 8: Carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a fourth-degree felony;

Count 9: Tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree felony; and

Count 10: Having weapons while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony.

{¶ 5} In January 2018, Leegrand pleaded not guilty to all ten counts. In March 2019, Leegrand waived his right to a jury trial as to Count 10, having weapons while under a disability, which was tried to the bench. On March 4, 2019, an eight-day jury trial ensued on the remaining nine counts.

A. The State's Evidence Presented at Trial

1. The Crime Scenes on Bridge and Ellen Avenues

{¶ 6} Tanika Givhan testified that on June 11, 2015, she parked her red Chrysler on Ellen Avenue and walked with her friend Trell to Bridge Avenue to wait for her girlfriend to arrive home. Givhan testified that while on Bridge Avenue, she saw and spoke with Leegrand and her friend Chris. Givhan said that she had known Leegrand for "a few years" as "T.Y." She said that Leegrand was wearing dark clothing.

{¶ 7} Givhan testified that she saw a vehicle pull up to the corner of Bridge Avenue and West 59th Street, which she described as an ally, and Leegrand crossed Bridge Avenue to meet the driver. She said that the driver exited the car, Leegrand and the driver talked, and the driver got back in his car, turned onto West 59th Street, and started to drive toward Ellen Avenue. She then saw Leegrand shoot "at the car" once, wait about three seconds, and then fire seven to eight more shots. She stated that Leegrand then "disappeared." She testified that she saw Leegrand's gun as he was firing it and described it as "black and chunky * * * like a Hi-Point."

{¶ 8} Givhan testified that she and Chris approached the wrecked Buick on Ellen Avenue.¹ She did not know where Trell went. She stated that the driver was bloody and looked like he was dying. She testified that some of the neighbors came outside, and a younger white male called 911. Givhan testified that after she saw the driver, she and Chris got in her red Chrysler and left the scene.

{¶ 9} Givhan testified in prison clothes because she was serving a five-year prison term for an aggravated robbery conviction in Lake County. She had dreads at trial and identified a photo of herself with dreads from June 2015. On cross-examination, Givhan admitted that the state told her that if she testified in this case, it would recommend to the Lake County judge in her aggravated robbery case that she be released from prison before the end of her five-year sentence. She alsoadmitted that she had not spoken to police or anyone from the prosecutor's office about what she witnessed on June 11, 2015, until after she was arrested for aggravated robbery in September 2016. On redirect examination, Givhan testified that she was previously unwilling to testify because she feared for her safety and her family's safety if she testified against Leegrand.

{¶ 10} Scott Carney, who lived on Ellen Avenue, testified that in the early morning of June 11, 2015, he was on his porch when he heard three to four "booms," squealing tires, and a loud crash all within approximately ten seconds. He testified that from his driveway he saw an African-American male with "poofy hair," a short goatee, and a greenish-black hooded sweatshirt with the hood halfway up, just covering his ears. He stated that the male was walking on the sidewalk on West 59th Street toward Ellen Avenue. Carney said that when the man got to Ellen Avenue, he turned right and walked down Ellen Avenue toward West 58th Street, which was the opposite direction from where the vehicle had crashed. Carney testified that the man did not look like he had any physical disabilities and was not using crutches. Carney stated that West 59th Street is well lit, but Ellen Avenue is darker with not many streetlights.

{¶ 11} Carney "turned [his] focus on the accident site" and "went into help mode." As Carney was walking toward the accident, he saw two African-American males standing in the middle of Ellen Avenue near a red car that was parked on the street. He stated that one of them had dreads and other one had shorter hair. Although he believed that they were both males, he identified a photo of the one with dreads, who the state later established was Givhan.

{¶ 12} Carney could tell that the two people were "in shock and disbelief because the one with dreads had "a shakiness" to her voice. Carney said the one with dreads pulled out a cell phone, and Carney grabbed it to call 911 as they all approached the wrecked Buick. Carney noticed as he approached the Buick that it had what appeared to be a bullet hole on the back panel of the car. He then realized that a shooting had occurred. Carney handed the phone back to the person with dreads so that he could help the victim.

{¶ 13} Carney said that when he reached the Buick, it was still idling, and the driver was struggling to breathe. Carney reached inside the open driver's side window and turned off the car. Carney explained that the person with dreads was "freaking out" and could not talk to the 911 operator, so Carney took the phone back and reported the location. Carney tried not to touch anything but said that he held the driver's head in his hands and "said a prayer over him."

{¶ 14} Carney testified that after he ended the 911 call, the person with dreads said "that she couldn't be there." She grabbed her phone back, snapped a picture of the victim, got in the red car with her friend, who had gone to get the car, and drove away.

...