State v. Robert L. Wells

• Decision Date: 03 February 1994
• Docket Number: 64575,94-LW-3662
• Parties: STATE OF OHIO, Plaintiff-appellee v. ROBERT L. WELLS, Defendant-appellant
• Court: United States Court of Appeals (Ohio)

STATE OF OHIO, Plaintiff-appellee v. ROBERT L. WELLS, Defendant-appellant

No. 64575.

94-LW-3662 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

February 3, 1994

Criminal appeal from Court of Common Pleas Case No. CR-275,130A.

For plaintiff-appellee: STEPHANIE TUBBS JONES, Cuyahoga County Prosecutor, STEVE W. CANFIL, Assistant, Justice Center Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.

For defendant-appellant: HYMAN FRIEDMAN, Cuyahoga County Public Defender, ROBERT INGERSOLL, Assistant, 307 The Marion Building, 1276 West Third Street, Cleveland, Ohio 44113.

OPINION

DONALD C. NUGENT, J.

This is an appeal from a judgment of conviction and sentence of defendant-appellant, Robert K. Wells, arising from a jury verdict finding him guilty, as indicted, of felonious assault in violation of R.C. 2903.11, together with firearm, violence and face officer specifications (count one of the indictment), and guilty of possession of criminal tools in violation of R.C. 2923.24 (count two of the indictment). Appellant was sentenced to a term of incarceration of eight to twenty-five years, to run consecutive to three years actual for the firearm specification, on count one and a term of eighteen months on count two, to run concurrent with the sentence imposed in count one.

Appellant timely appeals, raising the following assignments of error for our review:

I. ROBERT WELLS' CONVICTIONS FOR FELONIOUS ASSAULT AND POSSESSION OF CRIMINAL TOOLS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT DENIED ROBERT WELLS HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, WHEN IT DENIED HIS MOTION TO SUPPRESS AN EYEWITNESS IDENTIFICATION THAT THE RESULT OF A HIGHLY SUGGESTIVE PHOTOGRAPHIC ARRAY. (sic.)

III. THE TRIAL COURT DENIED ROBERT WELLS A FAIR TRIAL AND DUE PROCESS OF LAW, WHEN IT FAILED TO INSTRUCT THE JURY REGARDING THE INHERENT UNRELIABILITY OF EYEWITNESS IDENTIFICATION WHERE SUCH INSTRUCTIONS WERE APPROPRIATE AND NECESSARY UNDER THE FACTS OF THE CASE.

IV. ROBERT WELLS WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED HIM BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION.

V. ROBERT WELLS WAS DENIED HIS DUE PROCESS RIGHT TO PUT ON A DEFENSE, WHEN THE TRIAL COURT OVERRULED THE MOTION TO HAVE MR. WELLS EXAMINED WHILE UNDER THE AFFECTS (sic.) OF HYPNOSIS AND SODIUM PENTOTHAL.

I.

In appellant's first assignment of error, appellant contends his convictions for felonious assault and possession of criminal tools are against the manifest weight of the evidence.

Reversal of a verdict as being contrary to the weight of the evidence requires the concurrence of all three appeals court judges hearing the case. Article IV, Sec. 3(B)(3) of the Ohio Constitution provides that "*** no judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by the concurrence of all three judges hearing the cause." See, State v. Porello (1941), 188 Ohio St. 289; State v. Sowell (1988), 39 Ohio St.3d 322.

An appellate court's function when reviewing the [weight or] sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Franklin (1992), 62 Ohio St.3d 128; State v. Chapman (1992). 73 Ohio App.3d 132.

A review of the evidence admitted at trial reveals sufficient evidence which would convince the average mind of the appellant's guilt beyond a reasonable doubt. Cleveland Police Officer Timothy McGinty testified that on November 22, 1991, at approximately 3:00 a.m., he and three other Cleveland police officers left their shifts from the Second District Police Headquarters. Officer McGinty state that they left in separate cars and formed a line as they travelled southbound on I-71. Officer McGinty was the last in line, driving his 1987 Volkswagen four-door Jetta. After Officer John Thomas exited on the West 130th exit, Officer McGinty observed in his rear view mirror another car rapidly closing in on him. Officer McGinty maintained a constant fifty-five miles per hour as he exited I-71 at the I-480 split. As Officer McGinty approached the I-480/Route 237 split, the other car caught up to his and rode next to him. Just before the split, Officer McGinty heard a shot fired, which shattered his front driver's side window and caused glass to embed in the side of his face. Officer McGinty immediately glanced into the car next to him and observed two white males. The driver of the other car glanced over at Officer McGinty, and then the automobile veered off onto Route 237 as the passenger appeared to be sitting back into the seat. Officer McGinty, being trained as a police officer, identified the car as an early 1980's, maroon-colored, two-door Cadillac with an Ohio license plate with the first three letters reading "HZW." Officer McGinty further described the driver as a dark-haired white male in his early-to mid-twenties, and the passenger as dark-blond-haired, white male, also in his early-to mid-twenties.

After the shooting, Officer McGinty pulled off 1-480 onto the boulder and applied pressure to the wounds on his face. He also wrote down the partial plate. Officer McGinty proceeded home, where he called "911" and notified the police dispatcher as to what happened. A cassette recording of Officer McGinty's call for assistance was played for the jury without objection. After giving a statement to the police, Officer McGinty went to Fairview Hospital for treatment to his wounds. Pictures of Officer McGinty's checkered and scabbed face were also admitted into evidence.

The following day, Officer McGinty met with Cleveland Police Department homicide detectives and gave them a description of the car, including the partial license plate, and the occupants. Detectives Mike O'Malley and John Masolonis did the investigation into the shooting. Det. O'Malley, with the assistance of the Ohio Bureau of Motor Vehicles, did a license plate search and learned that only two Cadillacs with a partial license plate of "HZW" existed in Cuyahoga and Medina Counties. Det. O'Malley testified that one was a light-colored Coupe DeVille and the other, belonging to Timothy King, was a maroon-colored Coupe DeVille.

Thereafter, Det. O'Malley made arrangements with Det. Masolonis and Officers McGinty and his partner, Robert Milek, to view the car in question. On November 27, 1991, the four officers conducted a drive-by of Timothy King's address, where they observed a maroon-colored, two-door Cadillac Coupe DeVille in the driveway, with two males and two females standing around it. After Officer McGinty stated that the car in question could possibly be the car from the shooting, the officers turned their unmarked car around and pulled into King's driveway. Det. Masolonis also requested assistance from Lakewood police. Officers from the Lakewood Police Department arrived as the officers pulled into King's driveway behind Timothy King's car.

As Officers McGinty, Milek, O'Malley and Masolonis exited their car and proceeded toward the Cadillac, Timothy King asked Officer Milek if he had a search warrant. Officer McGinty testified that Timothy King and two females were on the driver's side of the automobile, while appellant was either entering or exiting the vehicle on the passenger's side. Det. O'Malley also testified that appellant was outside the vehicle on the passenger's side. As Officer Milek approached the car, he observed a weapon inside the car and called out, "I have a weapon here." Officer Milek observed the handle of an automatic weapon sticking out of a bag full of equipment, with a black waist bag or belly bag partially covering the weapon. Officer Milek opened the car door, secured the weapon, and cleared it to make sure it was safe.

Det. O'Malley then read Timothy King his rights while Officer Milek asked whose gun it was. Officer Milek testified that appellant stated the gun belonged to a football player to whom they had earlier given a ride. Det. O'Malley then talked to appellant in the unmarked car. Det. O'Malley testified that appellant told him the gun belonged to Timothy King. Det. O'Malley then allowed appellant to go home, which was only across the street. As Det. O'Malley spoke with appellant, Timothy King approached Officer Milek and told the officer he knew why they were there and that he was not going to take the rap for appellant. Officer O'Malley called to Det. Masolonis, who also read Timothy King his rights. Timothy King then gave a statement implicating appellant in the shooting on the 22nd. Approximately ten to fifteen minutes later, Det. O'Malley learned from Det. Masolonis that Timothy King had informed the officers of appellant's involvement in the shooting in the morning of the 22nd.

Det O'Malley and Officer McGinty then went across the street to appellant's home, where they spoke to appellant and his father in the kitchen. Appellant was read his constitutional rights and taken to the Justice Center in downtown Cleveland, where appellant gave the officers a signed, written statement. After learning that latent fingerprints were lifted from the gun, appellant acknowledged, in his written statement, that he "had seen that type of gun before" and that he had "seen it [the black waist bag] in the back seat of the car that belongs to Timothy King." Later, when asked if he had ever handled the gun in question, appellant responded, "Just tonight when I picked up the bag and unzipped the bag and I took the gun out." Appellant denied ownership of...