State v. Percy June Hutton
| Decision Date | 28 April 1988 |
| Docket Number | 51704,88-LW-1440 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Percy defendant-appellant.= |
| Court | Ohio Court of Appeals |
Criminal appeal from Common Pleas Court, No. CR-203416.
John T Corrigan, Cuyahoga County Prosecutor, Cleveland, for plaintiff-appellee:
Floyd B. Oliver, Cleveland, for defendant-appellant.
JOURNAL ENTRY and OPINION
Defendant-appellant, Percy "June" Hutton, appeals his conviction, death sentence and other sentences for two counts of aggravated murder with gun, mass murder, and felony murder specifications; two counts of kidnapping with gun specifications; and one count of attempted murder with gun and violence specifications.
On October 16, 1985, the grand jury of Cuyahoga County returned a true bill of indictment against the appellant for: two counts of aggravated murder, one count of attempted murder, and two counts of kidnapping, all with various specifications (as enumerated above). The defendant entered a plea of not guilty to these charges at his arraignment on October 18, 1985.
The matter went to trial on January 13, 1986. The appellant was convicted of all five counts and specifications as follows:
a) one count of aggravated murder (R.C. 2903.01(A)) of Derek "Ricky" Mitchell with gun, mass murder, and felony murder specifications;
b) one count of aggravated murder (R.C. 2903.01(B)) of Derek "Ricky" Mitchell with gun, mass murder, and felony murder specifications;
c) two counts of kidnapping (R.C. 2905.01) of Derek "Ricky" Mitchell and Samuel Simmons, Jr. with gun specifications;
d) one count of attempted murder of Samuel Simmons, Jr. (R.C. 2903.02/2923.02) with gun and violence specifications.
The evidence at trial offered by the state and the defendant was frequently parallel. However, the major factual issues were vigorously disputed. We will discuss the evidence under the following two headings below.
The evidence at trial on behalf of the state of Ohio began with the testimony of Samuel Simmons, Jr. Samuel Simmons, Jr. (victim number one) was to evolve in this matter as the victim of the third count of the indictment, kidnapping, and the fifth count of the indictment, attempted murder. Simmons testified that he knew the appellant nearly all of his life and commonly referred to him as a "brother,' although they were not related. Simmons stated that in mid-September of 1985, the appellant approached Simmons regarding an allegedly stolen sewing machine which the appellant accused Simmons and Derek "Ricky" Mitchell (victim number two) of stealing. The appellant threatened to kill both Simmons and Mitchell (victim number two under the first and second counts of aggravated murder with specifications and the fourth count of kidnapping) if the appellant found out that they had anything to do with the theft of the appellant's sewing machine.
Simmons testified that the defendant and Bruce Laster (the co-defendant in this case, but not on trial in the case sub judice ) picked Simmons up at his house in the early morning hours of Monday, September 16, 1985, ostensibly to repair a motor vehicle Simmons said the appellant wanted him to help the appellant repair. Simmons testified that he entered the back seat of appellant's Chrysler Cordoba automobile and seated himself next to a .22 caliber rifle. However, before going directly to the vehicle needing repair, the appellant, co-defendant Laster, and Simmons drove to Mitchell's house on Norman Avenue to discuss the appellant's missing sewing machine. Simmons testified that he had been told by the appellant that $750 in cash was hidden in the sewing machine. The money was to be used by the appellant for his tuition at an auto mechanic's school in Indianapolis, Indiana.
After speaking with the appellant, Mitchell then agreed to go with the appellant, co-defendant Laster, and Simmons to talk to an unidentified man who had told the appellant that Mitchell tried to sell him a stolen sewing machine. Instead of driving to the unidentified man's house, the appellant drove to the Regional Transit Authority lot on East 93 Street. Upon arrival, the appellant ordered Mitchell out of the car and walked him to the edge of the street. Although Simmons could not hear the conversation, Simmons did see the appellant hold a handgun to Mitchell's head. Simmons remained in the car with the co-defendant Laster, who held a rifle in his hand.
The appellant and Mitchell returned to the car. Then Mitchell directed the appellant to drive to East 30 Street and Community College Avenue. Mitchell entered a house and shortly thereafter motioned for the appellant to come into the house. The appellant went into the house. The appellant then returned to the car with a white sewing machine case and placed it in the trunk of the car. Mitchell also returned from the house to the appellant's car.
The appellant then drove to his mother's house on East 101 Street and Cedar Avenue and took the white colored sewing machine case into the house. The co-defendant Laster held a rifle in his hand until the appellant came out of the house.
Then they all drove up the street to an alley where the appellant stopped and pointed to a Cadillac Eldorado which Simmons claims the appellant wanted Simmons to repair for the appellant.
After Simmons and the appellant got out of the appellant's car, the appellant then decided to move his Chrysler Cordoba away from the Cadillac Eldorado which was parked in the alley. The appellant moved his Chrysler Cordoba out of view from the alley to a point on the next street. Co-defendant Laster and Mitchell remained in appellant's automobile. Appellant then walked back to Simmons who was still standing in the alley, opened the driver's door and the hood of the car, and told Simmons to get into the car and start the car with a screwdriver. Simmons testified appellant then shot him twice in the back of the head with a handgun while Simmons was seated in the Cadillac Eldorado. Whereupon, the appellant ran down the alley to his Chrysler Cordoba on the next street. Simmons fell out of the Cadillac Eldorado onto the alley. With great difficulty, Simmons made his way up the alley and down the street to the appellant's mother's house where he banged on the door. However, no one answered the door. Simmons immediately proceeded to the next door neighbor's house, banged on the front door, and requested help. When Simmons heard the appellant drive up to the house, he ran into the backyard. The appellant repeatedly told Simmons (Tr. 972). Simmons asked the appellant to take him to the hospital, fearing he would die without treatment. Co-defendant Laster and Mitchell were still in the appellant's auto. The wounded Simmons entered the appellant's auto whereupon the appellant, Mitchell and co-defendant Laster all drove Simmons to St. Luke's Hospital. En route, Simmons told Mitchell that the appellant had shot him, but the appellant denied Simmons' version and said he (appellant) saw a man come out of a house in the vicinity of the Cadillac Eldorado and shoot Simmons. (Tr. 973-974). On cross-examination, Simmons testified that he did not tell Mitchell who had shot him. He also testified that he repeatedly asked Mitchell to go into the hospital with him. (Tr. 1097, 1105).
Upon arrival at St. Luke's Emergency Room, none of the occupants of the car wished to accompany Simmons into the hospital. However, Mitchell did help Simmons out of the car and guided him into the arms of a security guard who ran outside to assist Simmons. Mitchell returned to the appellant's car and thereafter, the appellant, co-defendant Laster, and Mitchell sped off. Then the appellant, co-defenant Laster, and Mitchell drove to Mitchell's house to pick up Eileen Sweeney, Mitchell's girlfriend. Ms. Sweeney had been living there with her boyfriend, Mitchell. They all drove Sweeney to St. Luke's so she could check on Simmons' condition. Sweeney testified that this was the last time she saw Mitchell alive.
Simmons testified that he spoke with Sweeney at the hospital before he went into surgery. He told her (Tr. 977). Sweeney rushed out of the room and Simmons didn't see her again that morning (Monday, September 16, 1985).
Eileen Sweeney testified she ran outside to the parking lot but appellant's car was gone. She waited at the hospital until the appellant returned to the hospital parking lot. The appellant and co-defendant Laster did return to the hospital but without Mitchell. Sweeney inquired of appellant as to the whereabouts of Mitchell. The appellant told her that Mitchell was at home and that he would take her there. However, instead of taking her directly home, Sweeney testified that co-defendant Laster dropped her and the appellant off at a park on Fairhill Road where the appellant raped her. Defense counsel objected prior to the introduction of the rape testimony, and after a sidebar conference, the trial court instructed the jury that they were "about to receive evidence which might tend to show that this Defendant committed other criminal acts which have not been included in this case and, therefore, are not before you [the jury] for your consideration. * * * " (Tr. 1181). The court instructed the jury to disregard any other evidence with respect to the conduct of the appellant. (Tr. 1182). Further, the trial court later cautioned the jury that the testimony was admitted for the very limited purpose of establishing continuity of the events. (Tr. 1332).
It should be noted that in...
To continue reading
Request your trial