State v. McAlpin, 2019-0926

CourtUnited States State Supreme Court of Ohio
Writing for the CourtStewart, J.
Citation2022 Ohio 1567
Decision Date12 May 2022
Docket Number2019-0926
PartiesThe State of Ohio, Appellee, v. McAlpin, Appellant.


The State of Ohio, Appellee,

McAlpin, Appellant.

No. 2019-0926

Supreme Court of Ohio

May 12, 2022

Submitted June 15, 2021

Appeal from the Court of Common Pleas of Cuyahoga County, No. CR-17-623243.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Callista N. Plemel and Mary M. Frey, Assistant Prosecuting Attorneys, for appellee.

David L. Doughten and John B. Gibbons, for appellant.

Stewart, J.

{¶ 1} Appellant, Joseph McAlpin, was charged with kidnapping, robbing, and murdering Michael Kuznik and Trina Tomola at their used-car business in Cleveland in 2017. At his trial by jury, McAlpin waived his right to counsel and represented himself. McAlpin was found guilty of all charged offenses, including two counts of aggravated murder with four death-penalty specifications attached to each count. Following the jury's recommendation, the trial court sentenced McAlpin to death.


{¶ 2} We now review McAlpin's direct appeal of right. For the following reasons, we affirm his convictions and sentence of death.


A. The robbery of Mr. Cars

{¶ 3} Andrew Keener testified at McAlpin's trial that on April 14, 2017, McAlpin and McAlpin's brother Jerome Diggs met him on the east side of Cleveland. McAlpin and Diggs spoke for about 30 minutes in McAlpin's car, and then Diggs asked Keener whether he wanted to make some money. Diggs said that he and McAlpin planned to "hit this spot for titles and car keys" and then sell the cars. He promised Keener money and drugs if Keener would drive a stolen vehicle off the lot. Keener agreed and got into McAlpin's car. Keener thought that this was around 4:00 or 5:00 p.m.

{¶ 4} Keener testified that McAlpin drove to a side street near Mr. Cars and parked. McAlpin appeared to be wearing multiple layers of clothing, including red jogging pants, a black hooded sweatshirt, and brown boots. When McAlpin got out of the car, his sweatshirt was lifted up a little bit and Keener saw the butt of a gun near his hip. McAlpin pulled his sweatshirt back down, hiding the gun.

{¶ 5} Keener testified that after McAlpin left on foot and had been gone for about 20 minutes, Diggs used Keener's cell phone to call McAlpin and asked what was taking so long. About five minutes later, Diggs called McAlpin again. McAlpin eventually called Keener and told him that "the car's on and ready." Keener entered the Mr. Cars lot and saw McAlpin, who was wearing different clothes than the ones he had been wearing earlier in the evening. McAlpin was also wearing a baseball cap, pulled down low to hide his eyes.

{¶ 6} Keener got into a 2006 Mercedes 430 and moved it. Keener drove the car off the lot and down a side street, where Diggs was waiting. Keener then moved to the passenger seat, and Diggs drove the car. They followed McAlpin, who was driving a 2008 BMW 528i, to a parking lot on the west side of Cleveland. Keener


and Diggs left the Mercedes in that lot and got into the BMW with McAlpin. Keener noticed that McAlpin was holding a stack of banking and credit cards.

{¶ 7} McAlpin drove the BMW to another spot on the west side and parked. A woman picked up McAlpin and Diggs and left. Keener contacted his girlfriend, who picked him up.

{¶ 8} According to Keener, several days passed before he found out that people had been murdered during the robbery. He had called McAlpin's phone multiple times because he had not been paid. Eventually he spoke to Diggs, who told Keener that they had not yet sold the cars. Keener was never paid.

{¶ 9} In exchange for testifying against McAlpin, the state offered Keener a plea deal. Keener pleaded guilty to involuntary manslaughter with two firearm specifications that would merge for the purposes of sentencing and one count of grand theft. He was sentenced to an aggregate six-year prison term.

B. The discovery of Michael's and Trina's bodies

{¶ 10} In April 2017, Michael and Trina lived around the corner from Mr. Cars. Three children lived in the home with them at the time of the murders-19-year-old son Colin Zaczkowski, a 13-year-old daughter, and a 6-year-old son.

{¶ 11} Around 9:00 or 9:30 p.m. on April 14, 2017, Trina and Michael's daughter told Zaczkowski that she was concerned that their parents were not home yet. Zaczkowski drove to Mr. Cars and noticed multiple things that were not as they should be. For instance, Michael and Trina's car was still parked in front of the building. Zaczkowski also noticed that the "blockers," cars that they typically parked in front of the car lot's gate to deter theft, were not in place. Also, the lights inside the dealership were off, but the showroom door was propped open.

{¶ 12} Zaczkowski entered the building and found who he thought was his mother-in fact, it was Michael-dead in a pool of blood. He immediately left the building and called 9-1-1.


{¶ 13} Cleveland police detectives Alexander Gumucio and Kevin Warnock responded. Detective Warnock interviewed Zaczkowski, and Detective Gumucio, who was wearing a body camera, did a walkthrough of the building. The state played excerpts from Gumucio's body-camera video for the jury.

{¶ 14} The first excerpt showed a dead man lying face down behind a desk, just beyond the front entrance. Next in the video, Detective Gumucio walked around the showroom and into a back hallway, where he saw a dead dog. The back hallway led to an office where Gumucio saw a dead woman. The bodies were identified as Michael and Trina and their dog, Axel.

C. The police investigation

{¶ 15} Zaczkowski told Detective Arthur Echols that at least three cars were missing from Mr. Cars: a BMW, a Mercedes, and a Chevrolet Tahoe. Echols later learned that the Tahoe had been sold on April 13.

{¶ 16} Zaczkowski testified that Michael always carried cash on him. Testimony established that two customers had purchased cars from Mr. Cars on April 14, 2017. They made cash payments totaling at least $7, 500. Michael's wallet was stolen and there was no other cash found at Mr. Cars.

{¶ 17} The security system at Mr. Cars was stolen, and key components of the system, including the digital video recorder, were gone. However, investigators were able to get security footage of the Mr. Cars lot from a business across the street. Investigator Tom Ciula testified that the camera was too far away to identify faces but that magnification made it possible to see what was going on during the relevant period. Detective Echols also recovered surveillance footage from a wireless-phone store located one block north of Mr. Cars. Based on the other businesses' surveillance footage, investigators confirmed that at least two individuals were involved in the crimes.

{¶ 18} Detective Echols received an anonymous tip in April indicating that Diggs and "Joshua McAlpin, or McAlpine" were involved in the crimes at Mr.


Cars. On April 20, patrol officers recovered the stolen BMW at 3310 West 48th Street. The stolen Mercedes was recovered from a banquet-center parking lot in a southwestern Cleveland suburb.

{¶ 19} On June 8, 2017, the Cuyahoga County Regional Forensic Science Laboratory notified Detective Echols that DNA matching McAlpin's DNA profile was found on a modem collected from the back office of Mr. Cars and on swabs collected from inside the back pocket of Michael Kuznik's jeans and inside the stolen BMW.

{¶ 20} McAlpin was arrested on June 13, 2017. Detective Echols read McAlpin his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). McAlpin waived his right to counsel and denied all involvement in the crimes.

D. Medical examiner's testimony

{¶ 21} Dr. Erica Armstrong, the deputy medical examiner and a forensic pathologist for the Cuyahoga County Medical Examiner's Office, conducted the autopsies of Michael and Trina. She also examined Axel, the dog found dead at the scene.

{¶ 22} Michael had been shot in the middle of his forehead and in his left cheek. The bullet in his forehead traveled from front to back, right to left, and downward, exiting through Michael's left ear. Dr. Armstrong noted stippling around the entrance wound; the amount of stippling indicated that the gun muzzle was approximately two and one-half to three feet from Michael's head. No stippling was present around the entrance wound on Michael's cheek, but Dr. Armstrong noted "a little bit" of black discoloration around the edge of the wound. She testified that this looked like fouling, which would indicate that the gun muzzle was at close range, potentially inches away from Michael's face when the gun was fired. Dr. Armstrong concluded that the cause of death was "gunshot wounds of head, with skull and brain injuries."


{¶ 23} Trina also died from a gunshot to the head that caused skeletal, brain, and spinal-cord injuries. The bullet entered the back of Trina's head on the left side. Dr. Armstrong testified that although part of the bullet had lodged in Trina's skull, part of it had broken off, exited her scalp, and lodged in her right shoulder. Stippling around the entrance wound on Trina's skull suggested an intermediate range of fire-i.e., less than three feet.

{¶ 24} Dr. Armstrong took an X-ray of the dog's head and was able to see a bullet, confirming that the dog had been shot.

E. Forensic evidence

{¶ 25} Cellular-phone analysis, location-data analysis, and surveillance video illustrated the timeline of events on April 14, 2017, and corroborated Keener's account of the crimes. At trial, the state introduced subscriber information and historical call data from three phone companies. The state also presented McAlpin's Google account information, including location and content data.

{¶ 26} FBI Special Agent Brian Young reviewed cell-phone records to determine whom McAlpin was in touch with on April 14, 2017, between 4:00 and 8:00 p.m. He concluded that during that...

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