State v. Mark A. Brown
| Decision Date | 30 January 2001 |
| Docket Number | 96 C.A. 56,01-LW-0275 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. MARK A. BROWN, DEFENDANT-APPELLANT CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court Case No. 94CR120
Hon Gene Donofrio, Hon. Edward A. Cox, Hon. Joseph J. Vukovich
For Plaintiff-Appellee: Paul J. Gains, Prosecuting Attorney Janice T. O'Halloran, Assistant Prosecuting Attorney Mahoning County Courthouse, 120 Market Street, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Mary Jane Stephens, Atty. John B. Juhasz, 7330 Market Street, Youngstown, Ohio 44512
Defendant-appellant, Mark Brown, appeals his conviction in the Mahoning County Court of Common Pleas on two counts of aggravated murder, for one of which appellant was sentenced to death.
During the evening of January 28, 1994, appellant was walking in the Kimmelbrook housing projects in Youngstown, Ohio when Gary Thomas and his nephew Allen Thomas drove by. Allen Thomas, a friend of appellant, had Gary Thomas stop the car and pick up appellant. The three men proceeded to a drive-through store at the corner of Albert and Victor Streets, where they purchased beer and wine. Upon leaving the store, the three drove to the residence of Lisa Dotson, a relative of Allen Thomas. En route to the Dotson residence, the three stopped at a convenience store at the corner of Elm and New York Avenues called the Midway Market, to buy "blunt" cigars. These "blunt" cigars were emptied of tobacco and refilled with marijuana.
Upon their arrival at the Dotson residence the three men began to play cards. A number of juveniles were at the house at the time including Myzelle Arrington, Marcus Clark, and Antwaine McMeans. While the men played cards Allen Thomas and appellant drank Thunderbird wine into which valium had been dissolved. In addition, appellant smoked some of the "blunt" cigars containing marijuana. While playing cards appellant stated to Allen Thomas that he wanted to do what the characters in "Menace to Society" had done. According to the testimony of Gary Thomas, "Menace to Society" is a movie, at the beginning of which some individuals enter an "Oriental store" and kill two store clerks before leaving with the store's cash. Gary Thomas also testified that he noticed that appellant had a gun on him while they were playing cards.
After several hours, the three men left the house and returned to Kimmelbrooks to purchase more marijuana. After making the purchase, the three then returned to the Midway Market to purchase more "blunt" cigars. At about the same time as the three men were driving towards the store, the juveniles at the Dotson residence began walking to the store. Indeed, Marcus Clark testified that the juveniles were leaving the store just as appellant and Allen Thomas were entering.
The Salman family had owned and operated the Midway Market as a family business for over twenty years. On duty in the store on January 28, 1994 were Isam Salman (Salman) and Hayder Al-Turk (Al-Turk). Salman, at the time aged 32 and the father of seven children, was the son of the store owner, and Al-Turk had been an employee at the store for approximately a year. Notably, because a family member was working on the night in question, the video surveillance cameras inside the store were not turned on.
When the three men arrived at the store, Gary Thomas stayed in the car listening to music while Allen Thomas and appellant went inside. Allen Thomas and appellant returned to the vehicle but appellant then stated that he had forgotten to do something and went back into the store. Marcus Clark testified that he saw appellant put on a mask before re-entering the store but that Allen Thomas remained in the vehicle. Another of the juvenilles, Myzelle Arrington testified that both appellant and Allen Thomas re-entered the store. Gary Thomas testified that Allen Thomas did re-enter the store with appellant but came back out immediately.
In any event, Clark, Arrington, and Gary Thomas all testified that while appellant was in the store they heard gunshots being fired. Appellant returned to the vehicle and when questioned by Gary Thomas about the gunshots, appellant responded that it had just been some firecrackers exploding. The three men then left the scene and returned to the Dotson residence where appellant was observed wiping off his gun. In addition, Gary Thomas testified to seeing blood on appellant's hands and clothing.
At approximately 9:55 p.m. the Youngstown Police Department responded to a call concerning the Midway Market. Upon arriving at the scene police officers found the bodies of Salman and Al-Turk behind the counter inside the store. Al-Turk was found laying on the floor and Salman was found kneeling underneath the counter. Both victims had died from multiple gunshot wounds.
Appellant was arrested on February 3, 1994 at an apartment in Warren, Ohio. At the time of the arrest police officers recovered a 9 mm handgun underneath some cushions on a couch. Appellant was transported to the Youngstown Police Department where he was questioned by Detectives Maietta and McKnight. As a result of the questioning appellant made a confession to the killing of Al-Turk but denied shooting Salman. Subsequently, shell casings found at the store were found to have been fired from the handgun recovered during appellant's arrest.
On March 4, 1994 the Mahoning County Grand Jury returned an indictment charging appellant with two counts of aggravated murder by prior calculation and design, in violation of R.C. 2903.01(A), two counts of aggravated murder while committing, attempting to commit, or fleeing after committing an aggravated robbery, in violation of R.C. 2903.01(B), one count of aggravated robbery, in violation of R.C. 2911.01(A)(1), and one count of having a weapon while under a disability in violation of R.C. 2923.13(A)(3). Each of the aggravated murder counts contained death penalty specifications pursuant to R.C. 2929.04(A)(5)[1] and (A)(7)[2]. All of the counts contained firearm specifications pursuant to R.C. 2941.141 and the weapons under a disability count contained a physical harm specification pursuant to R.C. 2941.143.
On October 12, 1994 appellant filed a motion to suppress the statement given to police arguing that appellant had been incapable of waiving his Miranda rights, that the statement had not been made voluntarily, and that the statement had been made in violation of appellant's right to counsel. A hearing was held on October 12, 1995 and on October 27, 1995 the trial court overruled the motion.
After sustaining appellant's motion to quash the initial venire of jurors, jury selection began on January 4, 1996. The evidentiary phase of the trial commenced on January 30, 1996 and the matter was submitted to the jury on February 7, 1996. The jury found appellant guilty on both counts of aggravated murder by prior calculation and design, but not guilty on the remaining counts of aggravated murder and aggravated robbery. For both counts of aggravated murder by prior calculation and design the jury returned guilty verdicts on the R.C. 2929.04(A)(5) death penalty specifications, but not guilty on the R.C. 2929.04(A)(7) death penalty specifications. In addition, the jury returned guilty verdicts on the firearm specifications attendant to the two aggravated murder counts.
The penalty phase commenced on February 20, 1996. The jury began deliberations on February 22, 1996 and the following day informed the trial court that it had reached an agreement on one of the recommendations but was deadlocked as to the other. The trial court read the Howard charge to the jury and instructed it to continue its deliberations. On February 24, 1996 the jury returned its verdict, recommending death for the killing of Salman and life imprisonment for the killing of Al-Turk. The jury was polled, during which one juror, Ella York, stated that the verdicts were not her own and that she had compromised with the other eleven jurors.
Thereafter, the trial court re-read the original charge to the jury. Several hours later the jury returned the same verdict as before. When the jury was polled, Juror York stated that the verdicts were hers and the jury was discharged. On February 28, 1996 the trial court sentenced appellant to death for the killing of Salman and to life imprisonment without eligibility for parole for thirty years for the killing of Al-Turk. In addition, the trial court sentenced appellant to three years incarceration on the two firearms specifications, all sentences to run consecutively. On March 15, 1996, appellant filed a timely notice of appeal.
Appellant brings fifteen assignments of error, the first of which states:
In his first assignment of error, appellant advances several arguments in support of his assertion that the trial court erred in overruling his motion to suppress his confession.
Our standard of review with respect to motions to suppress is whether the trial courts findings are supported by competent credible evidence. State v. Winand (1996), 116 Ohio App.3d 286, 288, citing Tallmadge v. McCoy (1994), 96 Ohio App.3d 604, 608. This is the appropriate standard because "'[i]n a hearing on a motion to suppress evidence, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.'" State v. Hopfer (1996), 112 Ohio App.3d 521, 548, quoting ...
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