State v. Michael K. Love
| Decision Date | 11 May 2001 |
| Docket Number | 01-LW-1759,99-L-051 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. MICHAEL K. LOVE, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Court of Common Pleas Case No. 98 CR 000458
HON DONALD R. FORD, P.J., HON. WILLIAM M. O'NEILL, J., HON JOHN R. MILLIGAN, J., Ret., Fifth Appellate District, Sitting by assignment.
CHARLES E. COULSON, LAKE COUNTY PROSECUTOR, BRIAN L. SUMMERS, VINCENT A. CULOTTA, ASSISTANT PROSECUTORS, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee)
ATTY MARK E. SULLIVAN, 75 Public Square, #1016, Cleveland, OH 44113-2098 (For Defendant-Appellant)
OPINIONMILLIGAN J., Ret.
On September 25, 1998, appellant, Michael K. Love, was indicted by the Lake County Grand Jury for two counts of murder, in violation of R.C. 2903.02(A) & (B), with a gun specification. The indictment alleged that, on or about August 23, 1998 appellant purposely caused the death of Kenneth Johnson by shooting him with a firearm. The case came before the Lake County Court of Common Pleas for a jury trial commencing on February 22, 1999. At trial, the evidence showed that:
On August 22, 1998, appellant was at a bar named either Hellbusters or Hellraisers in Fairport Harbor, Ohio. Appellant, who is from Cleveland, Ohio, was at the bar as part of a promotional appearance for his rap music group, named Aftamaff. The bar was managed by one of his acquaintances from Cleveland, named Delmarcus Anderson (aka "Peanut"). Also at the bar were the other members of the group and several people he knew from his neighborhood in Cleveland. When he left the bar at closing time, about 2 a.m., appellant got into a car driven by John Turner, one of his friends from Cleveland. John Turner followed at least two other cars toward an after-hours party in Painesville. One car contained Marcus Perkins (aka "Boss"), Tomarve Smith, and Delmarcus Anderson. The other car contained Damon Anderson (aka "Long"), Richard Hayden (aka "Snoop"), Keith Bowles (aka "K.B."), and Jamal Russell (aka "Dred").
As they passed a bar, named Nino's, in Painesville, one of the members of the lead car recognized a person he knew, a man identified only as "Choc," talking to police officers in front of Nino's. Also with "Choc" were Michael Mann and a man identified only as "Squeak" or "Squirrel." The lead car turned around the three at Nino's told them that they had been "jumped" by a group of men from Painesville, including Kenneth Johnson (aka "Dirty") and Antonio Rimmer (aka "Stickman"). They went to an apartment complex in Painesville, known as the Argonne Arms, where the attackers lived. Appellant's car followed.
When appellant and John Turner entered the Argonne Arms complex, they saw "Boss," Marcus Perkins, being chased by a man carrying what looked like a sawed-off shotgun. The man with the gun turned out to be the eventual victim, Kenneth Johnson. Perkins was able to evade Johnson and was picked up by John Turner. At this point, they were attempting to leave the complex when they saw Damon Anderson and Richard Hayden kicking and stomping on a man that was lying on the ground. The man was Ollie Gipson, who later died from his injuries. Damon Anderson got back into the car and Richard Hayden continued to stomp on Ollie Gipson's head. John Turner pulled his car behind the other men's car and they saw Kenneth Johnson running towards Richard Hayden with a gun. Richard Hayden was able to knock Johnson's gun to the ground and the two began to tussle. Keith Bowles testified that he picked up the gun. The passengers of John Turner's car got out of the car, but ducked behind the open doors. John Turner and appellant testified that Johnson pointed the gun at their car, but did not fire. All of the witnesses testified that they heard many shots fired during the events.
John Turner testified that he saw appellant run out of the car and heard shots. He did not see appellant fire a gun, but testified that appellant got back into the car and said to go. Damon Anderson testified that he saw appellant run up to where Johnson and Hayden were scuffling and raise his arm, then he heard a pow, saw a small flash, and saw Johnson stop tussling. Appellant testified that he was very scared during the tussle and found a gun, a .380 left in Turner's car by appellant's brother. He testified that there were lots of shots being fired and lots of confusion surrounding the tussle. He testified that he was holding the gun, but did not point it and that it just went off. According to appellant, he did not realize that he had hit anybody. He testified that: "I'm not saying that I didn't fire it, I'm saying I find it very hard to believe that I killed somebody." He testified that he didn't intentionally fire the gun, but just "clutched up." When cross-examined about whether he fired the gun in self-defense, he answered "no, I was acting in fear."
The bullet entered Kenneth Johnson's left side and exited his left; it was never found. The bullet punctured his liver and severed his superior mesentery artery, which caused him to bleed to death.
As they were leaving the scuffle, Keith Bowles threw Johnson's gun in the trash and appellant threw his brother's gun in the trash. By that time, there were police at the scene. They briefly detained both cars, but let them leave. They all went back to the "keyhole," the dead end of East 117th street in their Cleveland neighborhood. There, appellant told many people that his gun "popped," but he did not know if he hit anybody.
Shortly after the shooting, appellant left the state to tour with his rap group. Damon Anderson retained an attorney and contacted the police to tell of his involvement with the deaths. The police wished to speak to appellant about his involvement, but he was out of state. Appellant learned that his name was "dirty" on the streets, meaning the police were looking for him. He was indicted by the Grand Jury while he was out of the state. He returned and testified that he attempted to contact the police. On October 16, 1999, the police apprehended him after executing an arrest warrant at his girlfriend's house.
On February 25, 1999, the jury found appellant guilty. The trial court sentenced appellant to a fifteen years to life term of incarceration and three years for the gun specification. Appellant assigns the following errors:
In his first assignment of error, appellant asserts that he was denied effective assistance of counsel because his attorney failed to subpoena certain witnesses, did not properly prepare appellant to testify as to self-defense, and failed to effectively present a self-defense case. To warrant reversal on the grounds that he was not provided the effective assistance of counsel, appellant bears the burden to meet the two-pronged test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, which requires a showing of both deficient performance and prejudice.
Appellant's argument fails because he fails to meet the prejudice prong of the Strickland test. The second prong requires a showing that counsel's errors were so serious as to deprive the appellant of a fair trial whose result is reliable. "To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. A reviewing court, in analyzing an ineffectiveness claim, must view the evidence presented to the jury in toto. Id. at 142, 538 N.E.2d at 379-380, citing Strickland.
Appellant first asserts that his trial counsel was inadequate for her failure to subpoena or call any of six different witnesses. At the end of the trial, she did proffer to the court statements by these potential witnesses from a police report that she argued should have been admitted under the "excited utterance" hearsay exception. Appellant argues that his counsel should have subpoenaed these witnesses and had them testify, rather than attempting to rely on the inadmissible police report.
Appellant is correct that his attorney should have subpoenaed these witnesses in order to have the testimony admitted. However, the failure to have the testimony admitted does not appear prejudicial to appellant. The police reports in question refer to questioning done at the emergency room by Painesville Police officers of friends and relatives of the victims. One woman stated that she saw four to six black males fighting and that Kenneth Johnson was fighting a black male. She had not seen Lisa Dunlap's car, the car in which appellan...
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