State v. Lowery

• Decision Date: 18 March 2005
• Docket Number: No. C-040157.,C-040157.
• Citation: 826 N.E.2d 340,2005 Ohio 1181,160 Ohio App.3d 138
• Parties: The STATE of Ohio, Appellee, v. LOWERY, Appellant.
• Court: Ohio Supreme Court

826 N.E.2d 340

160 Ohio App.3d 138

2005 Ohio 1181

The STATE of Ohio, Appellee, v. LOWERY, Appellant.

No. C-040157.

Court of Appeals of Ohio, First District, Hamilton County.

Decided March 18, 2005.

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Joseph T. Deters, Hamilton County Prosecuting Attorney, and Phillip R. Cummings, Assistant Prosecuting Attorney, for appellee.

Ryan D. Kirzner, for appellant.

GORMAN, Judge.

{¶ 1} A jury found the defendant-appellant, Jermaine Lowery, guilty of aggravated murder, in violation of R.C. 2903.01(B), and aggravated robbery, in violation of R.C. 2911.01(A). Both counts were accompanied by gun specifications. The trial court sentenced Lowery to prison for 20 years to life for the aggravated murder and ten years for the aggravated robbery, with each term to be served consecutively. Additionally, he was sentenced to a three-year term of imprisonment on each of the two gun specifications, to be served concurrently with each other but consecutively to the aggravated-murder and aggravated-robbery sentences. In total, Lowery was given life imprisonment with eligibility for parole after 33 years.

{¶ 2} Appealing his sentence and conviction, Lowery raises six assignments of error: (1) that there was insufficient evidence to support the jury's finding that he had engaged in a robbery, (2) that his convictions were contrary to the manifest weight of the evidence, (3) that the trial court erred by allowing the state to remove three prospective jurors of the same African-American race as Lowery, (4) that the trial court erred by allowing the jury to hear prohibited testimony, (5) that he was improperly sentenced based upon unsupported and constitutionally improper judicial fact-finding, and (6) that he was denied the effective assistance of counsel.

{¶ 3} For the following reasons, we affirm Lowery's convictions for aggravated murder and aggravated robbery with gun specifications. Furthermore, because the recent decision of the United States Supreme Court in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, does not apply to indeterminate sentences, we affirm the 20-years-to-life sentence imposed by the trial court for the aggravated murder. We agree with Lowery that Blakely precluded the judicial fact-finding necessary under Ohio's sentencing scheme to impose the maximum sentence for the aggravated robbery because it was among the "worst forms" of the offense. See State v. Bruce, 159 Ohio App.3d 562, 2005-Ohio-373, 824 N.E.2d 609. But we conclude that the court's finding was harmless error because the trial court's imposition of the maximum sentence on an alternative ground, that Lowery posed the "greatest likelihood of future crime," was expressly based on his history of prior convictions and thus did not violate Blakely and was supported by the record. Finally, because the case law surrounding Blakely does not, at least at this time, extend to the judicial findings necessary to impose consecutive sentences, and because the record supports the trial court's findings, we affirm the trial court's decision to run the sentences for the two offenses consecutively.

FACTS

{¶ 4} At trial, Sedrick Thomas admitted that he was a street-corner drug dealer in the village of Lincoln Heights, the community where he lived and had grown up. He recalled that on July 6, 2003, he was sitting at a wall on Adams Street with a friend of his, Darnell Grey, nicknamed "Cocheise," when a white "Blazer or Explorer-type truck" pulled up to the curb. The driver, Henry Woods, and the front-seat passenger, Lowery, were familiar to him. He testified that Woods got out of the car and queried him on the price of certain drugs and eventually asked him whether he would sell him the drugs on credit. Thomas testified that he rebuked Woods, telling him that his business was on a cash-only basis.

{¶ 5} According to Thomas, Lowery had remained in the car during this discussion. He testified that Woods then returned to the SUV and that the two men drove off. Asked whether he noticed any passengers in the back seat of the vehicle, he replied that he did not notice any at that time.

{¶ 6} Thomas and his friend Grey had stayed at the wall for several minutes when another friend of his, Kevin Williams, arrived on the scene. The three men then decided to go "sit somewhere and smoke us some weed." Thomas and Grey followed Williams in Thomas's car to Williams's girlfriend's house, to drop off his car, and then all three drove in Thomas's car to their eventual destination, a local pony keg. Thomas went inside to place an order for some chicken wings, and when he came out he noticed that Woods's white SUV was now parked alongside his vehicle in the parking lot.

{¶ 7} Thomas testified that he saw Woods and Lowery in the front seat, as before. Responding to a gesture from Woods, Thomas walked over to the driver's-side window of the vehicle to speak to him. At that point, Thomas first noticed that two other acquaintances of his, Nicholas "Nick" Bolden and Randall Lowery, were sitting in the back seat.

{¶ 8} Woods continued to harangue him for drugs and money, Thomas testified. When still he refused, someone in the back seat, according to Thomas, passed Woods a shotgun, which Woods then pointed at him, bracing it on the window. Thomas recounted how Woods then repeated over and over that he was hungry and needed drugs.

{¶ 9} Thomas testified that, as he stood there, the gun pointed directly at him, he felt frozen. He saw Lowery then step out of the front seat on the passenger's side with what he described as an assault rifle. Thomas testified that Lowery then walked with the rifle in the direction of Williams, who had gotten out of Thomas's car and was apparently attempting to make a call on his cellular telephone. As Thomas continued to talk to Woods, trying to shame him into putting down the shotgun, he heard two shots.

{¶ 10} Thomas testified that at the sound of the shots he and Woods stared at each other in surprise. Although Woods kept the shotgun aimed at him, Thomas backpedaled until he was able to see around the SUV. At that point, he testified, he saw Williams lying on the ground, curled up, and Lowery "with the assault rifle just a couple of feet away from him." Thomas recalled the distance between Lowery and Williams as "five or six feet."

{¶ 11} According to Thomas, Williams then began saying words to the effect that he was "a killer" and that he had warned people "not to mess with him." Thomas testified that Woods soon started up the SUV and that he, Thomas, took off running as soon as he could.

{¶ 12} Asked who had shot Williams, Thomas replied, "I would have to say Jermaine [Lowery] shot him. He was the only one in the area. And he got out of the car with the rifle and he was the only one back there with Kevin [Williams] and he was bragging after it was over, so, you know, to my knowledge it was Jermaine."

{¶ 13} In addition to Thomas, Gray also testified that he saw Lowery step out of Woods's SUV with an assault rifle. He testified that while Thomas was talking to Woods through the driver's-side window, he stayed in Thomas's car, listening to a CD. He corroborated Thomas's testimony that Williams had stepped out to make a cellular telephone call, and he added to Thomas's testimony by stating that he saw Lowery point the assault rifle at Williams before he heard the same two shots recalled by Thomas. Like Thomas, he ran from the pony keg's parking lot after the shots were fired.

{¶ 14} Asked by the state whether Thomas and Williams were known to have money on their persons, Gray testified that they were. Questioned about this on cross-examination, Gray explained that both men were known to "have nice cars and dress nice and smoke all day."

{¶ 15} Officers arrived at the scene shortly after the murder. Sandra Stevenson of the Lincoln Heights Police Department testified that two shell casings were recovered from the scene. She testified that she obtained the names of all four suspects after speaking to Thomas and Gray. According to her, no other potential witnesses came forward to assist in the investigation.

{¶ 16} Williams subsequently died from his bullet wounds. Gary Utz, M.D., a forensic pathologist and Hamilton County deputy coroner, testified that the lack of soot and stippling around the wounds indicated a "close-range fire." He testified that both bullets exited from Williams's body. He further testified that the damage caused by the bullet wounds would have been extraordinary for a handgun and was consistent with a more powerful firearm.

Weight and Sufficiency

{¶ 17} In his first assignment of error, Lowery specifically challenges the sufficiency of the evidence to support the jury's determination that he was engaged in a robbery at the time of the murder. Without quarreling with the evidence that Woods was attempting to rob Thomas with the shotgun, he argues that there was no testimony that he himself was "robbing or attempting to rob" Williams with the assault rifle. Nor, he argues, was there any evidence presented that he was acting in complicity with Woods as Woods was attempting to rob Thomas with the shotgun. For him to have been acting as an accomplice in Thomas's robbery, he points out, would have required that he had assisted, encouraged, cooperated with, advised, or incited Woods. See R.C. 2923.03(A)(2); State v. Johnson (2001), 93 Ohio St.3d 240, 754 N.E.2d 796, syllabus. Asserting that there was no direct evidence that he did any of these things, he points to the testimony that the shotgun brandished during the robbery was handed to Woods by the two passengers in the back seat, not by him from the front seat.

{¶ 18} The problem with Lowery's argument is, of course, that it focuses exclusively on the direct evidence, or lack of it, and ignores completely the overwhelming circumstantial evidence of his complicity. Lowery was part of a group that...