State v. Levett, 2006 Ohio 2222 (OH 5/5/2006)
| Decision Date | 05 May 2006 |
| Docket Number | Appeal No. C-040537. |
| Citation | 2006 Ohio 2222 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Eric Lamont Levett, Defendant-Appellant. |
| Court | Ohio Supreme Court |
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Appellee.
Ravert J. Clark, for Appellant.
DECISION.
{¶1} Defendant-appellant Eric Lamont Levett was indicted for the murder of Carlos Manuel, also known as Monty. At trial, Levett argued that he killed Monty in self-defense. The jury rejected Levett's claim of self-defense and found him guilty of murder, along with two gun specifications. The trial court sentenced Levett to a total of eighteen years to life in prison. We affirm.
{¶2} At Levett's trial, the state presented nine witnesses, and Levett called seven. Of the sixteen witnesses, eight were at the scene when Levett shot Monty. These eight witnesses told essentially the same story regarding the facts of the shooting.
{¶3} On a sunny Sunday afternoon in October 2003, Levett, who was 17 years old, headed to the Cold `N Quick Drive-Thru in Avondale with his brother Deon Levett and their friend Christopher J. Williams. Both Levett and Williams sold drugs, which were supplied to them by Monty. Levett and Williams would sell the drugs and then give Monty money from the sales. On that Sunday afternoon, Levett owed Monty $75.
{¶4} While Levett and the others were at the Cold `N Quick, Monty drove up and got out of his car. Monty approached Levett and said, "Give me my money." According to Williams's testimony at an earlier hearing, Levett replied, Monty then pushed Levett. Deon Levett began arguing with Monty, and Monty shoved him to the ground. Deon sustained a dislocated shoulder.
{¶5} Deon testified that Monty said that he was going to get a gun from his car. Williams also testified that Monty said he was going to get his gun. Similarly, another witness, Reshon Mann, testified that, after shoving Deon to the ground, Monty said that he was going to get his gun.
{¶6} Velita Wise had stopped at the Cold `N Quick that afternoon. She had her three-year-old son in the back seat of her car. She testified that, while she waited in her car for her order, she noticed a confrontation between several individuals, one of whom had a gun in his back pocket. The individuals were arguing and had their fists raised as if they were going to fight.
{¶7} Wise testified that she received her order, pulled through the drive-thru, and drove into the parking lot, intending to drive away. While waiting to turn onto the street, Wise saw one of the individuals, Monty, hit Levett. Wise screamed at them,
{¶8} Wise testified that, after hitting Levett, Monty began to walk away. Then she noticed that Levett had a gun in his hand. Upon seeing the gun, Monty ran away from Levett towards Wise's car. Monty ran around the car, opened the front passenger door, and jumped in. He begged Wise to drive away. Wise testified that, before she could go anywhere, Levett fired one shot above her car at Monty and then two shots at him through the open driver's window. Levett then ran around the back of Wise's car and shot about four more times at Monty while he lay in Wise's car.
{¶9} Charles Gardner, a Cincinnati police officer, was off-duty that Sunday afternoon and in his pickup truck stopped at a traffic light in front of the Cold `N Quick. While waiting for the traffic light, he noticed two individuals who looked like they were about to fight. The fight then appeared to break up, and the two men began to walk away in separate directions.
{¶10} Gardner testified that while one of the individuals, Monty, walked around the back of Wise's car, the other individual, Levett, pulled a gun out of his waistband. Seeing the gun, Monty began to run. He continued around the back of Wise's car and along the passenger side. Levett chased Monty and fired one shot. Levett followed Monty around the back of Wise's car, and Monty jumped into the car. Levett then fired another four or five times at Monty as he lay in the car. Levett then put the gun back in his waistband and ran off.
{¶11} Danielle Mason-Strauss was with several friends in line behind Velita Wise at the Cold `N Quick. She and her friends heard some commotion and realized there was an argument going on between several men. Mason-Strauss saw an individual, later identified as Monty, punch another individual, Deon, who fell to the ground. She then saw Levett pull out a gun and point it at Monty. Consistent with other testimony, Mason-Strauss testified that Monty ran away from Levett to the passenger side of Wise's car while Levett fired at him from the driver's side. Monty then dove into Wise's car. Levett followed Monty around the back of Wise's car and fired four more shots at Monty as he lay in the car.
{¶12} Levett testified in his own defense. He claimed that Monty had punched Deon and then said he was going to get his gun. Levett testified that he pulled out his own gun, which he always carried with him for protection. According to Levett, Levett continued, "I pointed my gun at him, and then, he ducks, and ran around on the other side of the car * * *." Levett said that he then shot his gun until it was empty.
{¶13} Levett further testified that he believed that Monty knew Wise and thought that Monty might have had a gun in Wise's car. Levett testified, "[I] [t]hought he was going to take my life, that's what I was thinking: either me or him." But on cross-examination, Levett admitted that he could have safely run away from the parking lot without shooting Monty. When asked why he did not just run away, Levett answered,
{¶14} Levett disposed of the gun in the Ohio River and eventually went to Tennessee to stay with relatives for a few days. Several months later, back in Cincinnati but still eluding the police, Levett visited his mother at her house. Pamela Levett testified that Levett told her he had killed Monty out of fear. She testified as to what Levett had told her about the shooting: "[H]e was just in so much fear because he felt like if he hadn't taken him out, he was coming back to get him along with anybody else in our family along with anybody else." Pamela elaborated,
{¶15} Cincinnati paramedic Thomas J. Bayer was the first on the scene to administer aid to Monty. Bayer testified that, when he arrived, Monty was already dead. Hamilton County deputy coroner Dr. Daniel L. Schultz testified that Monty had been shot five times. Schultz testified that one bullet had gone through Monty's heart and lung, most likely causing death within a few minutes. Schultz testified that Monty's other gunshot wounds were serious, but not necessarily fatal.
{¶16} In his first assignment of error, Levett argues that the trial court failed in several ways to properly instruct the jury.
{¶17} Levett begins by arguing that the jury instructions included a conclusive, or mandatory, presumption. When instructing the jury on the meaning of "purpose," the trial court stated, "If a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life or inflict deadly bodily harm, purpose to cause death may be inferred from the use of a weapon." Levett claims that the instruction allowed the jury to presume Levett had a purpose to kill because he used a firearm to defend himself. Levett contends that the presumption relieved the state of its burden to prove every element of the charged offense beyond a reasonable doubt.
{¶18} In State v. Getsy,1 the trial court used this same instruction. Getsy argued that the jury instruction created a mandatory presumption that violated the constitution. The Ohio Supreme Court decided that because the trial court used the word "may," the presumption was permissive and was "one the jury could accept, not one the jury was required to accept."2 The court held that "there was no error, plain or otherwise."3 Similarly, in Levett's case, we find no error in the trial court's instruction.
{¶19} Levett next argues that the trial court erroneously instructed the jury that he had a duty to retreat.
{¶20} The court instructed the jury first on the law of self-defense, stating, "To establish self-defense, the defendant must prove that he was not at fault in creating the situation giving rise to the assault, and he had reasonable grounds to believe, an honest belief, that he was in imminent danger of death or great bodily harm, and that his only means of retreat from such danger was by the use of deadly force, and he had not violated any duty to retreat to avoid danger."
{¶21} The court then instructed the jury on the duty to retreat, stating, "The defendant had a duty to retreat if the defendant was at fault in creating the situation giving rise to the assault; or if the defendant did not have reasonable grounds to believe, an honest belief, he was in imminent danger of death or great bodily harm; and that his only means of escape from danger was by the use of deadly force."
{¶22} Levett contends that he did not have a duty to retreat when doing so would have created an unreasonable risk of danger to himself or others. But the law does not require retreat when it is too dangerous. That is, if the only means of escape from danger is...
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