State v. E.T.

• Decision Date: 02 April 2019
• Docket Number: No. 17AP-828,17AP-828
• Citation: 2019 Ohio 1204,134 N.E.3d 741
• Parties: STATE of Ohio, Plaintiff-Appellee, v. [E.T., Jr.], Defendant-Appellant.
• Court: Ohio Court of Appeals

134 N.E.3d 741

2019 Ohio 1204

STATE of Ohio, Plaintiff-Appellee,

v.[E.T., Jr.], Defendant-Appellant.

No. 17AP-828

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on April 2, 2019

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee. Argued: Valerie Swanson.

On brief: Timothy Young, Ohio Public Defender, and Timothy B. Hackett, for appellant. Argued: Timothy B. Hackett.

DECISION

DORRIAN, J.

{¶ 1} Defendant-appellant, E.T., Jr., appeals the October 25, 2017 decision of the Franklin County Court of Common Pleas. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} This matter arises out the homicide of Jaurice Blakely which occurred on or about the late evening of January 12, 2015 to the early morning hours of January 13, 2015 at Players Family Billiards ("pool hall") in Franklin County.

{¶ 3} On January 14, 2015, a complaint of delinquency was filed in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch ("juvenile court"). The complaint charged appellant with the offense of murder, in violation of R.C. 2903.02(A), an unclassified felony. On January 22, 2015, the juvenile court filed an order amending the complaint to include a firearm specification pursuant to R.C. 2941.145.

{¶ 4} On January 22, 2015, plaintiff-appellee, State of Ohio, filed a motion to relinquish jurisdiction pursuant to R.C. 2152.12(B) and Juv.R. 30 and transfer the cause to the Franklin County Court of Common Pleas, General Division ("trial court"). On the same date, an entry was filed in the juvenile court notifying appellant that proceedings would occur to determine whether the court's jurisdiction would be relinquished and the case transferred to a court having jurisdiction over the matter. Appellant's counsel signed the entry acknowledging notification on behalf of appellant and appellant's parent, guardian, or custodian. On February 10, 2015, the juvenile court filed an entry accepting the stipulations of the parties, finding that all parties had been properly served with the January 22, 2015 motion to relinquish jurisdiction, and finding appellant was 14 years of age at the time of the alleged offense.

{¶ 5} On July 15, 2015, the juvenile court held a probable cause hearing on the motion to relinquish jurisdiction. At the hearing, Ralph Rickels, a detective of the Whitehall Division of Police, testified he investigated a homicide at the pool hall between January 12 and 13, 2015. Rickels testified he obtained surveillance video from the pool hall.

{¶ 6} John Dickey, a detective of the Whitehall Division of Police, testified he responded to the report of a homicide at the pool hall after midnight on January 13, 2015. Dickey testified that when he reviewed the surveillance video from the pool hall, he observed a male who appeared to be firing a gun at a vehicle outside the pool hall. After locating the vehicle, Dickey found a bullet hole in the left front quarter panel of the vehicle as well as two bullet holes in the hood. Dickey spoke with the vehicle's owner, Layshonda Quintero, who stated that she and MarQeal Fox were present at the pool hall on the night of the incident.

{¶ 7} Mark Hopper, a detective of the Whitehall Division of Police, testified he investigated the incident in question. Hopper testified he recovered three shell casings and two bullets from inside the pool hall and five shell casings were recovered outside the pool hall.

{¶ 8} James Reichgott testified that on January 12, 2015, he was working at the pool hall until between 8:00 and 9:00 p.m. when his shift ended. After he finished his shift, he joined some friends at the pool hall to watch Ohio State play in the college football national championship game. Between 12:15 and 12:30 a.m. on January 13, 2015, after he finished watching the game, he was preparing to leave when a fight started. According to Reichgott, two men were involved in the fight, including a "black male with light complexion * * * who was approximately 5' 7", 170 pounds" and another man "who was also 5' 7", 170 pounds with an afro style haircut." (July 15, 2015 Tr. at 66-67.) He also observed two women involved with the situation, but did not recall whether they were fighting.

{¶ 9} Reichgott observed the fight as it moved from one pool table to another in the pool hall until he heard someone say, "[H]e's got a gun." (July 15, 2015 Tr. at 63.) Reichgott then sustained a gunshot wound

to his right leg and fell to the ground. He heard between three and four gunshots, but did not see the person who shot him. Reichgott observed another man on the floor by the door to the patio. Reichgott was rushed to the hospital where he received treatment for his injury. He missed two months of work and now has arthritis in his leg.

{¶ 10} Shakil Gardner testified that on the evening of January 12, 2015, he went to watch the national championship game at the pool hall with his girlfriend and other friends, including Jaurice Blakely. While there, Gardner played pool and drank beer and liquor.

{¶ 11} During his game of pool, Gardner observed a man walk past him and give him "a certain type of look." (July 15, 2015 Tr. at 117.) Gardner looked back at the man for about two to three seconds until the man asked Gardner whether he remembered him. When Gardner replied in the negative, the man stated something about going to middle school together. Gardner replied that he did not remember the man. Eventually the man walked away and Gardner resumed playing pool.

{¶ 12} Gardner's friends asked what the exchange between Gardner and the man had concerned. Gardner replied that he believed the man was upset that Gardner did not remember him. Gardner observed that the man had walked to another group of people who were staring at him and pointing.

{¶ 13} Gardner and Blakely went to the bar together and observed that two men, one in red with long dreadlocks and another who was tall and wearing a red hat, were staring at them. After Gardner and Blakely left the bar area and resumed playing pool, they were approached by the two men who were staring at them at the bar. Gardner and Blakely exchanged words with the two men and followed them outside, believing that they wanted to fight. The two men denied wanting to fight and walked to a vehicle. Gardner thought the two men had a gun in the car, so he told Blakely to end the situation and return inside.

{¶ 14} Gardner and Blakely returned inside and confronted the first person who approached Gardner. Gardner tried to calm everyone down and resumed playing pool. At some later point, Gardner returned to the bar when he heard that a fight had started. Gardner walked toward the fight, observing a lot of wrestling and commotion, but was unable to see his friend. Gardner testified that as he was walking toward the fight:

I see like a gun -- before I even see the person's face or anything, I see somebody like this holding a gun, like -- like in their waistband or their pocket. That's when like I -- I like I paused in my stepping and looking and I am just steadily watching the gun, I'm like I'm still trying to look for my friend at the same time. So I'm trying to tell * * * him * * * somebody got a gun you feel me, like they wrestling. Then the -- the wrestling stopped like I'm thinking everybody see the gun, people trying to get ready to get to leave; that's when I -- I lose sight of him again [because] I'm * * * trying to look and see where everybody at. And then another -- another scuffle break out and as soon as that scuffle break out, I hear gun shots.

(July 15, 2015 Tr. at 120-21.)

{¶ 15} Immediately after hearing the shots, Gardner ran out of the building. As he ran away from the building, about halfway across the street, he "started hearing the gun shots and I stopped and turned back around and seen somebody holding -- pointing a gun towards me." (July 15, 2015 Tr. at 121-22.) Gardner stated, "I stopped and looked back. Like seeing somebody, I mean, it was dark, but I seen the same person who I seen inside with the gun and then I kept running." (July 15, 2015 Tr. at 108.) Gardner testified that the person who was pointing the gun at him was "the same person with the same clothes the same everything" as the person he saw inside with the gun. (July 15, 2015 Tr. at 108.) He resumed running until he found his friends and got in a car with them.

{¶ 16} Approximately one week after the incident, Gardner was called to speak to a detective and view a photo array. Before viewing the photo array, Gardner spoke with the detective about the incident. Gardner stated the shooter was wearing a hooded sweatshirt and a toboggan. Gardner also viewed a video of the incident, but he could not recall whether he viewed the video before the photo array.

{¶ 17} The detective placed the photo array in front of Gardner, stated the photos were in no particular order, and asked whether he saw the person with the gun. Gardner testified the photo array consisted of six pictures on a single sheet of paper, three in one row on the top, and three in another row below that. Gardner testified that after viewing the photo array, he stated:

I told him like I can't say a hundred percent that I seen him based off of these pictures. And he said if you -- if you had to -- if you think you seen -- do -- he said is any of them close to it? I pointed at this picture like yeah, I say, I mean it kind of looked like him, but to me like a lot of the people in the picture look a like and the person had on a hoodie. And then * * * I said I can't really tell off of like basically a 2D portrait of it. And he said if you have to say a percentage what would you say? I said I said it was like 50-50 for real.

(July 15, 2015 Tr. at 110.)

{¶ 18} On cross-examination, appellant's counsel showed Gardner the photo array and engaged in the following dialogue:

[Appellant's Counsel]: And do you recall telling him that * * * you could eliminate five photos, but you were

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