State v. McNeill

• Citation: 700 N.E.2d 596,83 Ohio St.3d 438
• Decision Date: 28 October 1998
• Docket Number: No. 97-929,97-929
• Parties: The STATE of Ohio, Appellee, v. McNEILL, Appellant.
• Court: United States State Supreme Court of Ohio

Page 438

83 Ohio St.3d 438

700 N.E.2d 596

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

No. 97-929.

Supreme Court of Ohio.

Submitted May 12, 1998.

Decided Oct. 28, 1998.

[700 N.E.2d 600] Appellant, Freddie McNeill, Jr., appeals his conviction and death sentence for the aggravated murder of Blake Fulton.

On the evening of May 13, 1994, Blake Fulton and Robert Rushinsky drove about the city of Lorain seeking to purchase crack cocaine. Seeing several men they believed to be crack dealers at the corner of Massachusetts Avenue and G Street, the two stopped. As was customary, the first dealer to the car, McNeill, got the sale.

Fulton and Rushinsky knew McNeill from prior drug transactions. Rushinsky, who was riding in the front passenger seat of the two-door car, let McNeill into the back. As McNeill directed, Fulton drove south on Massachusetts Avenue and headed for McNeill's residence, where McNeill stated he kept the crack cocaine. As they drove, McNeill asked Fulton for twenty dollars. Fulton replied: "No. * * * You know how it works. I want to see [the crack] first." Fulton and McNeill continued to argue about the money. When the trio reached McNeill's house, Fulton stopped the car. McNeill produced a gun, saying, "This is a stickup," and "I want the money." Fulton jumped from the car and ordered McNeill out. As Rushinsky leaned forward and opened his door, McNeill grabbed the keys from the ignition and jumped out.

McNeill aimed his gun at Rushinsky and asked if he had any money. Rushinsky replied he had none. McNeill then pointed the gun at Fulton, saying, "You don't think this gun's real?" and "You don't think this thing's loaded?" Fulton told McNeill to return his keys. After further argument, McNeill walked away. Fulton, who was a locksmith, got into his car and attempted to start it using his locksmith's tools.

While Fulton was trying to start the car, McNeill returned. McNeill put his gun to Fulton's head, said, "Played me for a bitch," and shot Fulton. Fulton died several hours later.

The grand jury indicted McNeill on one count of aggravated murder, R.C. 2903.01(B), with a robbery-murder specification, R.C. 2929.04(A)(7), and a firearm specification, R.C. 2941.141. In addition to Rushinsky, four young children who were playing nearby saw and heard many of the events surrounding the murder. The trial judge questioned the children, who were all under the age of ten, and determined they were competent to testify.

The jury found McNeill guilty of aggravated murder with a robbery-murder specification. Following the penalty hearing, the jury recommended the death penalty. Consistent with the jury's recommendation, the trial judge imposed a death sentence. The court of appeals affirmed McNeill's conviction and sentence. McNeill now appeals to this court as of right.

Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E. Rosenbaum, Chief Counsel, Criminal Division, for appellee.

Annette Powers and Renee Green, Akron, for appellant.

COOK, Justice.

In accordance with the mandate of R.C. 2929.05(A), we have reviewed each of McNeill's seventeen propositions of law, independently weighed the aggravating circumstance against the mitigating factors, and evaluated the approspriateness

                and proportionality of the death penalty.    For the following reasons, we affirm the judgment of the court of appeals
                

I

Repeatedly, we have held that R.C. 2929.05 does not require this court to address and discuss, in opinion form, each proposition of law raised in a capital appeal. See, e.g., State v. Mitts (1998), 81 Ohio St.3d 223, 226, 690 N.E.2d 522, 526; State v. Keith (1997), 79 Ohio St.3d 514, 684 N.E.2d 47; State v. Wogenstahl (1996), 75 Ohio St.3d 344, 351, 662 N.E.2d 311, 318. Many of McNeill's arguments either have been previously addressed, have been waived, or both. Accordingly, we reject McNeill's eighth, thirteenth, fourteenth, fifteenth, and seventeenth propositions of law, and portions of his eleventh, on the authority of State v. Wilson (1996), 74 Ohio St.3d 381, 387, 659 N.E.2d 292, 301; State v. Phillips (1995), 74 Ohio St.3d 72, 101, 656 N.E.2d 643, 669; State v. Biros (1997), 78 Ohio St.3d 426, 455, 678 N.E.2d 891, 915; State v. Moore (1998), 81 Ohio St.3d 22, 33 and 37, 689 N.E.2d 1, 12-13, 15-16; State v. Brooks (1996), 75 Ohio St.3d 148, 159-162, 661 N.E.2d 1030, 1040-1042; and State v. Davis (1996), 76 Ohio St.3d 107, 121, 666 N.E.2d 1099, 1111, respectively.

II

Felony-Murder

In his first and second propositions of law, McNeill contends that he is not guilty of aggravated murder under R.C. 2903.01(B) and that the R.C. 2929.04(A)(7) death specification is inapplicable because the state failed to prove he killed Fulton while attempting to commit aggravated robbery.

McNeill argues the attempted aggravated robbery ended the moment he walked away from Fulton's car. When McNeill returned and killed Fulton, the killing was "a new and separate crime" that did not occur while he was attempting to rob Fulton.

The term "while" in R.C. 2903.01(B), Ohio's felony-murder statute, neither requires that the killing occur at the same instant as the predicate felony, nor requires that the killing be caused by the predicate felony. Rather, the killing must be directly associated with the predicate felony as part of one continuous occurrence. State v. Cooey (1989), 46 Ohio St.3d 20, 23, 544 N.E.2d 895, 903.

Because the killing and predicate felony need not be simultaneous in order to constitute a felony-murder, the technical completion of one before the commission of the other does not remove a murder from the ambit of R.C. 2903.01(B). See, e.g., State v. Smith (1991), 61 Ohio St.3d 284, 290, 574 N.E.2d 510, 516. "[T]he question whether [the defendant] killed before he stole or stole [or attempted to The sequence of events in this case, examined in light of time, place, and causal connection, amounts to "one continuous occurrence." First, the attempted aggravated robbery and the killing were closely connected in time. Although the precise time lapse between McNeill's exit from Fulton's car and his return is unknown, a trier of fact could infer from the testimony of Rushinsky and Brittany Pasenow, one of the four child witnesses, that McNeill returned within a few minutes.

steal] before he killed is of no consequence." State v. Palmer (1997), 80 Ohio St.3d 543, 571, 687 N.E.2d 685, 709.

Second, the two crimes occurred in the same place. Because McNeill took Fulton's keys, Fulton was unable to leave between the robbery attempt and the murder. Third, and most significant, the murder would not and could not have occurred but for the attempted robbery. Had McNeill not taken Fulton's keys in attempting the robbery, Fulton could (and presumably would) have driven away.

McNeill also argues that robbery was not the motive for the killing, as shown by the fact he did not take Fulton's money after the shooting; rather, McNeill claims he shot Fulton because he felt humiliated. But R.C. 2903.01(B) does not require that the felony be the motive for the killing. See State v. Williams (1996), 74 Ohio St.3d 569, 576-578, 660 N.E.2d 724, 732-733. McNeill cannot " 'escape the effect of the felony-murder rule' " by claiming that the murder was an unrelated "afterthought." See Palmer, 80 Ohio St.3d at 572, 687 N.E.2d at 709, quoting State v. Biros (1997), 78 Ohio St.3d 426, 451, 678 N.E.2d 891, 912.

Our review indicates sufficient evidence supporting the jury's guilty verdict. On these particular facts, McNeill's brief departure before returning to murder Fulton is without legal significance. McNeill's first and second propositions of law are therefore overruled.

III

"Other Acts" Evidence

In his third proposition of law, McNeill argues the state introduced evidence of "other acts" in violation of Evid.R. 404(B). Lorain Police Detective Arnie Berrios testified he arrested McNeill in 1992 for selling drugs at the corner of Massachusetts Avenue and G Street; McNeill possessed over twenty-five doses of crack at the time. The trial court properly instructed the jury it could not consider the testimony "to prove the character of the Defendant in order to show that he acted in accordance with that character," but could consider it in determining "identity and/or knowledge." Absent evidence to the contrary, we presume the jury followed these instructions. State v. Woodard (1993), 68 Ohio St.3d 70, 73-74, 623 N.E.2d 75, 78.

                Pursuant to Evid.R. 404(B), evidence of other acts, crimes, or wrongs is admissible to prove identity.  State v. Allen (1995), 73 Ohio St.3d 626, 632, 653 N.E.2d 675, 683;  State v. Davis (1991), 62 Ohio St.3d 326, 338, 581 N.E.2d 1362, 1374.   In this case, Berrios's testimony was relevant to corroborate Rushinsky's identification of McNeill as the shooter.  Rushinsky testified he and Fulton knew McNeill from prior drug purchases.  However, on cross-examination the defense attacked Rushinsky's identification, forcing him to admit he initially told police he never purchased drugs from McNeill.  Berrios's testimony, which tended to show McNeill was in the business of selling drugs and his place of business was the corner of Massachusetts Avenue and G Street, served to rehabilitate Rushinsky.  The testimony tended to make it more believable that Rushinsky spoke truthfully when testifying he previously purchased drugs from McNeill and therefore recognized him on the evening of May 13, 1994
                

McNeill further contends Berrios's testimony was unnecessary to prove identity because the four children also identified McNeill. However, need is irrelevant to an Evid.R. 404(B) objection; moreover, McNeill also attacked the reliability of the children's testimony.

Because Berrios's testimony was admissible to prove identity under Evid.R. 404(B), McNeill's third proposition of law is overruled.

IV

Competency of Child Witnesses

In his seventh proposition of law, McNeill contends Christopher Ryan and...