State v. Linzy
| Citation | 2013 Ohio 1129 |
| Decision Date | 25 March 2013 |
| Docket Number | Case No. 2012-CA-33 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. CAREES LINZY Defendant-Appellant |
| Court | United States Court of Appeals (Ohio) |
JUDGES:
Hon. W. Scott Gwin, J.
OPINION
For Defendant-Appellant
RANDALL FRY
{¶1} Defendant-appellant, Carees Linzy, ["Linzy"] appeals his convictions on two count of murder, each with a firearm specification, having a weapon while under disability, carrying a concealed weapon, tampering with evidence and possession of criminal tools. Plaintiff-appellee is the State of Ohio.
{¶2} On December 25, 2011, Linzy and his friend Kenny Graves went to Kostas Bar in Mansfield, Ohio. Linzy drank, shot pool, and ordered a six-pack of beer to go. Around 1:45 a.m. on December 26, 2011, Linzy left the bar carrying the six-pack of beer he had purchased. He sat down outside the bar at the table normally reserved for the bouncer and waited for his friend Graves.
{¶3} Gary Hall approached Linzy and told him he could not sit at that table. Hall then went back inside the bar. Graves came outside and spoke with Linzy. Hall came outside again to get a pack of cigarettes out of his car. Linzy followed behind Hall to his car, yelling and taunting him. As Hall attempted to return to the bar, he tried to avoid Linzy and Graves. However, Linzy and Graves encircled Hall. Linzy was yelling at Hall and got in his face.
{¶4} Hall punched Linzy in his left eye. A fight ensued. Linzy and Hall wrestled and fell into the fence that surrounded the smoking area. Linzy pointed a revolver and shot Hall twice. One shot was in the side of Hall's neck down into his lung. The next shot was across Hall's body. Hall then began to back up into the bar when Linzy shot Hall a third time. This bullet went through Hall's body and out his back, lodging in the wall of the Kostas Bar. {¶5} Gary Hall ran inside the bar saying someone outside had a gun. Hall then ran to the kitchen and fell down, where he died.
{¶6} Steve Bulakovski, manager of the Kostas Bar that night, went outside to investigate. He asked Linzy who had the gun. Linzy said he did not know. Bulakovski then saw Linzy with the gun. Linzy began to walk away from the bar up Tower Drive and into a wooded lot. Bulakovski followed Linzy up the street. Officer Joseph Soehnlen of Mansfield Police Department arrived and followed them.
{¶7} Linzy attempted to hide behind a tree with a brush pile. Officer Soehnlen drew his weapon and approached. Linzy came out with his hands up and was arrested without incident. The search incident to arrest did not reveal the presence of a gun on Linzy's person. The gun was found hidden in a nook in the tree behind which Linzy had attempted to hide. The nook in the tree was above eye level, about seven feet off the ground. An examination of the revolver revealed three spent shell casings and two live rounds contained in the chambers.
{¶8} A gunshot residue kit was performed on Linzy and photographs were taken of the blood on his knuckles and hands. Upon booking, it was revealed that Linzy also had a bruised left eye.
{¶9} Linzy declined to make a statement and exercised his right to consult an attorney. While being transported to the jail, and after being told that he would be charged with murder, Linzy made an unsolicited statement to Officer Soehnlen,
{¶10} Evidence was collected after the homicide. A DVD copy of the video security system recording some of the incident was collected. DNA standards from Linzy, Gary Hall, and Kenny Graves were collected. The car in which Kenny Graves had fled in and his coat and sweater that had blood on them were collected.
{¶11} DNA testing of the handle, the trigger, and the front of the gun revealed that Linzy was the major contributor. Both Hall and Graves were excluded from that sample. The blood on Graves' jacket and sweater was Linzy's blood. Linzy was found positive for gunshot residue, as was Hall, but not Graves.
{¶12} A jury convicted Linzy on all six counts and specifications. The trial court sentenced Linzy on March 26, 2012, and a subsequent Sentencing Judgment Entry was filed on March 29, 2012. Subsequent to the Sentencing Entry filed on March 29, 2012, an amended Sentencing Entry was filed on April 10, 2012 after the Court discovered that it had neglected to include Linzy's sentence on count six of the indictment (criminal tools) in the previous sentencing entry. Linzy was sentenced to an aggregate sentence of 21 years to life with five years post-release control.
{¶13} Linzy raises six assignments of error:
{¶14} "I. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT-APPELLANT'S MOTION TO CONTINUE THE JURY TRIAL.
{¶15} "II. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT-APPELLANT'S MOTION IN OPPOSITION TO THE STATE'S MOTION FOR JURY VIEW.
{¶16} "III. THE TRIAL COURT ERRED IN OVER-RULING [sic.] THE DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO OHIO CRIMINAL RULE 29(A).
{¶17} "IV. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-APPELLANT'S OHIO CRIMINAL RULE 29(C) MOTION FOR ACQUITTAL.
{¶18} "V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT INCLUDING THE DEFENDANT-APPELLANT'S PROPOSED REQUEST FOR INFERIOR DEGREE CHARGES IN THE COURTS JURY INSTRUCTION.
{¶19}
{¶20} Linzy argues that the court erred in denying his motion to continue. Linzy argued that the state intended to call 34 witnesses at trial and that counsel had insufficient time to prepare for trial.1
{¶21} Ordinarily a reviewing court analyzes a denial of a continuance in terms of whether the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921(1964). If, however, the denial of a continuance is directly linked to the deprivation of a specific constitutional right, some courts analyze the denial in terms of whether there has been a denial of due process. Bennett v. Scroggy, 793 F.2d 772 (6th Cir. 1986). A defendant has an absolute right to prepare an adequate defense under the Sixth Amendment of the United States Constitution and aright to due process under the Fifth and Fourteenth Amendments. United States v. Crossley, 224 F.3d 847, 854(6th Cir. 2000).
{¶22} Among the factors to be considered by the court in determining whether the continuance was properly denied are: (1) the length of the requested delay, (2) whether other continuances had been requested and granted, (3) the convenience or inconvenience to the parties, witnesses, counsel and court, (4) whether the delay was for legitimate reasons or whether it was "dilatory, purposeful or contrived", (5) whether the defendant contributed to the circumstances giving rise to the request, (6) whether denying the continuance will result in an identifiable prejudice to the defendant's case, and (7) the complexity of the case. Powell v. Collins, 332 F.3d 376, 396(6th Cir.2003); State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078, 1080(1981); State v. Wheat, 5th Dist. No. 2003-CA-00057, 2004-Ohio-2088, ¶ 16.
{¶23} In the present appeal, Linzy does not point to any identifiable prejudice to his case as a result of the denial of his motion to continue the trial date, such as the inability to subpoena a witness. Further, the trial court was not presented with any facts to indicate that defense counsel was unable to interview the state's witnesses. There was no showing of what efforts, if any, had been made to locate and interview state witnesses. Similarly, with respect to defense witness, he presented no facts to the court to indicate their identity, the materiality of their testimony, or the reasonable likelihood that they could be found. Finally, defense counsel gave no specifics to support his contention that he needed more time to adequately prepare a proper defense. Counsel did not, for example, state that he was otherwise committed, that he was unable to obtain sufficient discovery from the prosecutor, or that he neededadditional time to obtain evidence critical to his defense, such as psychiatric evaluation or medical records. State v. Sowders, 4 Ohio St.3d 143, 145, 447 N.E.2d 118(1983).
{¶24} We must be mindful of the " * * * elementary proposition of law that an appellant, in order to secure reversal of a judgment against him, must not only show some error but must also show that that error was prejudicial to him." See Smith v. Flesher, 12 Ohio St. 2d 107, 233 N.E. 2d 137(1967); State v. Stanton, 15 Ohio St.2d 215, 217, 239 N.E.2d 92, 94(1968); Wachovia Mtg. Corp. v Aleshire, 5th Dist. App. No. 09 CA 4, 2009-Ohio-5097, ¶16. See, also, App.R. 12(D).
{¶25} Considering the lack of information presented to the trial court at the time of the request, the trial court clearly felt that competent counsel adequately represented Linzy and that there was no reason to delay the trial. As such, we find that the trial court did not abuse its discretion when it denied the motion to continue the trial.
{¶26} Linzy's first assignment of error is overruled.
{¶27} Linzy contends that the trial court erred in granting the state's motion for a jury view.
{¶28} In the case at bar, the state filed a motion for a jury view February 22, 2012. On February 23, 2012, Linzy filed a motion in opposition to the state's motion. On February 24, 2012, the trial court granted the state's motion for a jury view.
{¶29} Linzy submits that where the jury is shown videotape footage of the scene and portions of the occurrence at the...
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