State v. Shine
| Citation | 113 N.E.3d 160,2018 Ohio 1972 |
| Decision Date | 17 May 2018 |
| Docket Number | No. 105352,105352 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Douglas C. SHINE, Jr., Defendant–Appellant |
| Court | Ohio Court of Appeals |
Edward M. Heindel, 400 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113, John B. Gibbons, 55 Public Square, Suite 2100, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
Michael C. O'Malley, Cuyahoga County Prosecutor, By: Amy Venesile, Christopher D. Schroeder, Assistant County Prosecutors, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
JOURNAL ENTRY AND OPINION
{¶ 1} Appellant Douglas C. Shine, Jr. ("appellant") appeals from his convictions for multiple counts of aggravated murder, murder, felonious assault, and other offenses in connection with four shootings. Appellant assigns 21 errors for our review.1 Having reviewed the record and pertinent law, we affirm the decision of the trial court. The apposite facts follow.
{¶ 2} Following a shooting at East 149th Street on January 24, 2015, appellant was indicted in Cuyahoga C.P. No. CR–15–595119 for felonious assault against Walter Barfield ("Barfield"), John Harvell ("Harvell"), and Dominique Westbrook ("Westbrook"), discharge of a firearm near prohibited premises, and having a weapon while under disability.
{¶ 3} Appellant was also indicted in Cuyahoga C.P. No. CR–16–606156A in connection with additional shootings. One subset of charges pertained to the January 20, 2015 attempted murder of Stefon Robinson ("Robinson"), and charged appellant with attempted murder, two counts of felonious assault, improperly discharging a weapon into a habitation, and having a weapon while under disability. A second subset of charges pertained to a January 22, 2015 shooting outside John Adams High School, and charged appellant with attempted murder, felonious assault, improperly discharging a weapon, and having a weapon while under disability.2 A third subset of charges arose in connection with the February 5, 2015 shooting at Chalk Linez Barbershop in Warrensville Heights in which Barfield, Brandon White–Ladson ("Brandon"), and William Gonzalez ("Gonzalez") were killed, and three others were wounded
. This group of charges set forth six counts of aggravated murder, aggravated burglary, three counts of murder, three counts of attempted aggravated murder, 20 charges of felonious assault, and having a weapon while under disability. The fourth subset of charges pertained to the June 4, 2015 fatal shooting of Aaron Ladson ("Ladson"), a witness to the barbershop shooting. This group of charges alleged aggravated murder, conspiracy to commit aggravated murder, and two counts of felonious assault. The indictment also set forth multiple one-year and three-year firearm specifications, gang specifications, notice of prior conviction (from a 2012 aggravated burglary) and repeat violent offender specifications.
{¶ 4} Appellant pled not guilty to all charges. The state moved to join the two indictments, arguing that the January 24, 2015 and February 5, 2015 shootings were both directed at Barfield, and involved the same weapon, and the June shooting was to prevent Ladson from testifying regarding the February 5, 2015 shooting. The court granted the motion for joinder, and all charges proceeded to a jury trial under CR–16–606156–A. The trial court held a voir dire hearing on the admissibility of various eyewitness testimony and a statement Ladson gave to the police several months before his death. The court denied a defense motion to suppress this evidence. The counts of having weapons while under disability were tried to the court, and the remaining charges were tried to a jury.
{¶ 5} The state's evidence indicated that the Loyal Always gang operates in the area of the Lenacrave Avenue and Angelus Avenue in Cleveland. According to the state's evidence, it engages in criminal activity and its members included Robinson, Barfield, Lamar Sears ("Sears"), and Jesus Bey ("Bey"). Appellant was a member of a different criminal gang, the Heartless Felons.
{¶ 6} On January 20, 2015, police responded to a shooting and found Robinson, who had been shot 12 times, in front of his grandmother's home on Angelus Avenue. Robinson survived that shooting and refused to identify his assailant.
{¶ 7} Bey, who was incarcerated in the county jail when Robinson was shot, telephoned appellant and accused him of the shooting. In this tape recorded phone call, appellant stated that "Ching [Robinson] know what he did * * * he * * * tried to get up on me," and was also armed.
{¶ 8} On January 24, 2015, Westbrook and Harvell were parked near the address of 3597 East 149th Street. They saw a man get out of a car, then heard gunshots. Westbrook reported the incident to police. Three bullet holes were in her car. Police recovered 39 spent 9 mm shell casings from the area. Ballistic examination linked 14 of the casings to a Luger handgun and 25 were either from a Glock, Smith & Wesson Sigma, or Springfield Armory pistol. Four .45–caliber shell casings were recovered from the porch of the house. Cell phone tower information indicated that appellant's and Barfield's cell phones were in the general vicinity during the time of the shooting.
{¶ 9} At approximately 7:30 p.m., a man armed with two handguns entered the Chalk Linez Barbershop in Warrensville Heights. The man, who was wearing a black-hooded sweatshirt, shot 23–year–old Barfield approximately 20 times, killing him. The assailant also shot and killed 31–year–old Brandon and 32–year–old Gonzalez, one of the shop's owners. Whitney Clay, an employee, was shot once in the arm and survived. Customers Sears and Christopher Perkins ("Perkins") were shot multiple times and also survived their injuries.
{¶ 10} Cell phone evidence placed appellant in the vicinity of the barbershop. Cosmetologist Jasmine Evans was certain that appellant was the assailant, and she identified him in a photo array and again in court. Christopher Perkins was also certain that appellant was the assailant, likewise identifying him in a photo array and again in court.
{¶ 11} Immediately after the shooting, barber Alvin Wright told police that the assailant was a "tall, light skinned guy, bushy eyebrows with a little goatee." Wright fled the city but later met with police secretly to provide them with an Instagram photo of appellant. Wright was certain that the photo he provided depicted the assailant.
{¶ 12} Sears also identified appellant as the assailant. However, he admitted that his testimony was provided in exchange for "promises" made by the state regarding Sears's pending drug charges, and that he hoped to receive probation in that case. Barbershop employee Jameel Bell also identified appellant as the shooter with certainty, but he equivocated on some details of his description of the assailant. Whitney Clay observed that the shooter had a teardrop tattoo. She identified appellant in a photo array, but was unable to make an in-court identification.
{¶ 13} Other individuals who were in the barbershop at the time of the shooting were unable to identify the assailant.
{¶ 14} Several days after the barbershop shooting, Ladson spoke with Warrensville Heights police and made a written statement identifying appellant as the assailant. Warrensville Heights Police Detective Parris Johnson ("Det. Johnson") also conducted a videotaped interview of Ladson. According to Ladson's statements, Ladson, Barfield, and Sears went to the barbershop and waited for haircuts. Ladson, who was under indictment for drug charges, left to meet with his lawyer. When he returned, he sat in his car that was parked outside the barbershop and spoke with his wife on his cell phone. He observed appellant enter the barbershop. A short time later, Ladson saw appellant exit with guns in each hand. Appellant aimed his weapons at Ladson and repeatedly told Ladson that he had spared his life, before fleeing the scene. Ladson left the barbershop but returned a short time later to find out what had happened to his brother, Brandon.
{¶ 15} Ladson went to SouthPointe Hospital to check on his brother. While at the hospital with his wife Shirley, Ladson received a call from appellant. In this call, which was overheard by Shirley, Ladson accused appellant of killing his brother. Approximately an hour later, according to both Shirley's testimony and Ladson's statement to police, appellant called Ladson again and said,
{¶ 16} A total of 35 shots were fired in the barbershop shooting. Ten shell casings from the crime scene were from a .40–caliber a Glock, Smith & Wesson or Springfield Armory pistol, and 25 were from a 9 mm Luger. This was the same Luger that was used during the January 24, 2015 shooting. Additionally, a .45–caliber Rock Island Armory handgun was found tucked into Barfield's waistband, and this weapon was also linked to the January 24, 2015 shooting.
{¶ 17} Cuyahoga County Regional Forensic Science Laboratory Forensic Scientist Carey Baucher ("Baucher") testified that appellant was the major contributor of DNA found on five Luger shell casings recovered from the barbershop. A minor contributor was also present "at a very low level" but this contributor was deemed inconclusive to insufficient information. Baucher also opined that the DNA was present though primary transfer, or actually touching the casings.
{¶ 18} Appellant was arrested and incarcerated approximately one week after the barbershop shootings. Ladson went to stay with his grandmother on Harvard Avenue. In recorded phone calls from the Cuyahoga County Jail, appellant asked his brother, Kevin McKinney ("McKinney") if "Pudge," a.k.a. Ladson, made a statement about him. McKinney asked, "His...
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