State v. Robinson

• Decision Date: 14 November 1994
• Docket Number: No. 66226,66226
• Citation: 649 N.E.2d 18,98 Ohio App.3d 560
• Parties: The STATE of Ohio, Appellee, v. ROBINSON, Appellant.
• Court: Ohio Court of Appeals

Page 560

98 Ohio App.3d 560

649 N.E.2d 18

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

No. 66226.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Nov. 14, 1994.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Karen L. Johnson, Asst. Pros. Atty., Cleveland, for appellee.

David L. Doughten, Cleveland, for appellant.

HARPER, Judge.

Defendant-appellant, Rozell Robinson, appeals from his convictions for involuntary manslaughter and aggravated robbery following a jury trial in the Court of Common Pleas of Cuyahoga County. A careful review of the record compels affirmance of appellant's convictions.

On February 7, 1993, appellant, Demetrius Bailey (a.k.a. Scarface or Face), Diorethius Hudson (a.k.a. Da Da), and Archie Goggans (a.k.a. Bam Bam) entered a late model burgundy station wagon which had been stolen by Goggans two days earlier. Goggans drove to the vicinity of the Martin Luther King Plaza. The four males observed an individual walking, and decided to rob or "jack" the individual of his tennis shoes. Goggans stopped the car; appellant and Bailey exited the car. Bailey pulled out a purportedly unloaded .38 automatic given to him by appellant earlier, and ordered the intended victim to the ground. The intended victim responded by firing two shots at Bailey, and then fleeing.

Bailey, after falling to the ground, pulled himself back up and was helped into the car. Appellant, Hudson, and Goggans decided it was too risky to be caught in a stolen vehicle, so rather than take Bailey to a nearby hospital, Goggans drove to 1629 Elberon in East Cleveland. The location was almost two miles from the shooting and a block away from a Folks ¹ Gang "clubhouse." Bailey was left in the car while appellant went to the clubhouse and directed Disean Buggs (a.k.a. Damage) to "put it [the .38 automatic] up." Investigating officers never recovered the gun or identified the intended victim.

Police officers and emergency technicians arrived at the Elberon location shortly thereafter. The station wagon was impounded after officers discovered it to be stolen, but no significant trace evidence was ever discovered on or in the vehicle. A footprint was seen on the front hood, a footprint which matched the shoes of Buggs, who was eventually arrested by the police.

Goggans and Sanchez Dunlap (a.k.a. Sonny) were present at 1629 Elberon and were also taken into custody. Goggans provided a statement to the police at approximately midnight, and subsequently accompanied police officers to the scene of the robbery and shooting near Ansel and Kenmore in Cleveland. Both East Cleveland and Cleveland police officers photographed the scene, and blood samples were retrieved as well. Finally, Goggans supplied information as to appellant's whereabouts following Goggans's and Dunlap's revealing his identity.

Officers eventually identified three suspects: appellant, who was identified by his street name, Death Row, or by just Row; Goggans; and Hudson. Appellant's last name was confirmed following a three-way telephone conversation between Detective James Hughey of the East Cleveland Police Department, Hudson, and Hudson's mother, and follow-up involving the use of a crisscross directory, telephone records, and motor vehicle records.

Police officers first attempted to locate appellant on February 8, 1993. He was not, however, at his known address. A message that appellant should contact the police department was left with appellant's mother. Appellant made an appointment with the East Cleveland Police Department on February 10, 1993.

Appellant arrived at the station as arranged, and immediately asked whether he would be going to jail. He was told, "no," but was informed that he was wanted for questioning. Appellant was directed to the Detective Bureau, where he was Mirandized and provided with a written form detailing his rights. Appellant appeared to read the form, and then signed it. According to the detectives then present, appellant was also advised at this time that he was a suspect in a homicide. Appellant himself admitted that an acquaintance of his named Latwanna advised him that he might be charged with Bailey's murder.

After the detectives re-Mirandized appellant, he provided a written statement in which he admitted his initial participation in the robbery plan. However, he explained that once it seemed that the intended victim was entering an apartment building, he had doubts about the plan. Appellant went with the detectives to the scene after providing his statement, and he was then taken home.

According to the detectives, appellant did not appear to be intoxicated or under the influence of drugs when he spoke with them, and was advised of his rights. It also seemed that appellant read and understood the forms given to him, and his written statement. Appellant was not threatened or promised anything in return for his cooperation, and he never requested to see an attorney or invoked his right to remain silent.

Appellant, Goggans, Hudson and Bailey were all known members of the Gangster Disciple Nation, a branch of the Folks Gang. The gang was known throughout the Cleveland, Cleveland Heights, and East Cleveland area. The gang's clubhouse was located at 1637 Carlyon in East Cleveland, the home of a Mrs. Lewis and her daughter, Latwanna. Testimony revealed that police officers were at Mrs. Lewis's home approximately fifteen times in four years for a variety of illegal activity.

The leader of the Gangster Disciple Nation was a man known as "Cornbread." Dunlap identified appellant as being a "governor" of the branch on February 7, 1993 since Cornbread was serving an approximate one and one-half year prison term at the time. Appellant denied that he was a leader of any gang. He admitted that he owned two firearms, a .38 snub-nosed revolver and the .38 automatic which he gave to Bailey. Appellant claimed, however, that the .38 automatic was not operable and that Bailey knew it was not operable when he asked for it on February 7, 1993.

Appellant was observed firing the snub-nose revolver about three weeks prior to February 7, 1993, purportedly in self-defense against some attackers. The day following the alleged attack, appellant went to a nearby field, fired the remaining ammunition into the air, and then gave the revolver to Goggans. The snub-nose revolver was never recovered.

Finally, appellant explained that he was out of favor with the other members of the Gangster Disciple Nation following Bailey's death. Their displeasure stemmed from appellant's sending Bailey into a robbery with an inoperable firearm, his failure to protect Bailey from the intended victim, and his failure to seek proper medical attention for Bailey.

Appellant denied that he, Hudson, Bailey and Goggans planned to commit a robbery on February 7, 1993. The first time a robbery was mentioned was when Bailey saw a male wearing tennis shoes and expressed an interest in the shoes. Appellant advised Bailey not to commit any offense.

Notwithstanding this advice, Bailey ordered Goggans to stop the car and he exited it. Bailey asked appellant to accompany him. Appellant did so, but then changed his mind and told Bailey to stop because the intended victim lived nearby.

Bailey ordered the intended victim to "drop down." The intended victim did not comply, pulled out a gun and shot Bailey. Bailey fell back, and was helped into the car by appellant, Hudson and Goggans. Bailey was still breathing at the time. They decided to take Bailey back to their clubhouse, where someone would call for an ambulance.

The events of February 7, 1993, led to appellant's April 8, 1993 indictment for one count of involuntary manslaughter, R.C. 2903.04, and two counts of aggravated robbery, R.C. 2911.01. Each count carried a firearm specification.

Trial by jury commenced on July 27, 1993. The jury found appellant guilty of all three counts as charged in the indictment, but found him not guilty of each firearm specification. The trial court thereafter merged counts one and two, and sentenced appellant to serve consecutive terms of ten to twenty-five years on counts one and three.

This appeal followed with appellant claiming as error:

"I. The trial court erred in permitting the prosecution to introduce evidence of the defendant's juvenile record, as such evidence is highly prejudicial to the appellant, and barred by Evidence Rule 609(D).

"II. The trial court erred in permitting the state to introduce appellant's confession into evidence, when circumstances indicated that it was involuntary, and therefore testimony based on that confession constitutes fruit of the poisonous tree, and should have been excluded.

"III. The trial court erred in allowing the state to introduce irrelevant and unfairly prejudicial other acts into evidence in violation of Evidence Rule 404(B).

"IV. The appellant was denied his Sixth Amendment right to confrontation of witnesses when the trial court permitted the state to introduce statements of co-conspirators into testimony, but did not produce those witnesses for trial, thus depriving appellant of his right to cross-examine them.

"V. The evidence is constitutionally insufficient to sustain the convictions."

In his first assignment of error, appellant submits that the trial court erred in allowing evidence of a juvenile adjudication to be admitted at trial. Specifically, he argues that a portion of the prosecutor's cross-examination of him and the prosecutor's related comments during closing argument were highly prejudicial and barred by Evid.R. 609(D).

Appellant proposes a similar argument in his third assignment of error and we will thus review it simultaneously with his first assignment of error. He first acknowledges that he is a "member of a gang." However, appellant asserts that the state elicited testimony pertaining to his and his gang branch's activities which was totally irrelevant to whether he...