State v. Timothy Josso
| Decision Date | 01 June 1989 |
| Docket Number | 55436,89-LW-1750 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Timothy JOSSO, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal From the Common Pleas Court Case No. CR-221107.
John T Corrigan, Cuyahoga County Prosecutor by Michael Russo and Dominic Del Balso, Assistant County Prosecutors, Cleveland for plaintiff-appellee.
John Carlin, Cleveland, for defendant-appellant.
JOURNAL ENTRY AND OPINION
Defendant-appellant, Timothy Josso ("appellant"), appeals his conviction for aggravated murder with a gun specification. Appellant was initially indicted by the Cuyahoga County Grand Jury in Case No. 219232 and charged with one count of aggravated burglary (R.C. 2911.11) with a felony specification and one count of aggravated robbery (R.C. 2911.01) with a violence specification.
On September 18, 1987, appellant was indicted in Case No. 221107 and charged with one count of aggravated murder (R.C. 2903.01) with a murder of a witness specification, a gun specification and an aggravated felony specification.
On December 7, 1987, the state moved to consolidate the two indictments for trial. Appellant filed a motion in opposition to the state's motion to consolidate. The trial court subsequently granted the state's motion and the consolidated action proceeded to trial.
The evidence adduced by the state revealed that on July 5, 1987, Patrolman Russell Sack ("Sack") received a radio call to proceed to 3542 West 45th Street, Cleveland, Ohio. (Tr. 95). Sack interviewed the victim, Debra Ols ("victim"), who told him that two men had broken into her apartment. (Tr. 98-99).
Sack testified that the padlock on her door was pulled away from the door jamb. (Tr. 100). The victim informed Sack that a firearm was removed from the premises. (Tr. 103). There was also evidence of physical violence as the victim had marks on her face. (Tr. 109).
Detective Richard Beck of the Cleveland Police Department ("Beck") testified that he conducted further investigation on the alleged break in. (Tr. 111-112). Beck proceeded to the victim's address on July 6, 1987. The victim told Beck that a .22 caliber handgun was taken from her possession by the appellant. (Tr. 116-118). The victim also showed Beck two holes which appeared in her bedroom ceiling as a result of the gun being fired. (Tr. 117). The gun was allegedly fired to frighten appellant and his companion into leaving the dwelling.
Beck interviewed appellant at police headquarters on July 7, 1987. (Tr. 118). Appellant told Beck that the victim had telephoned him that day and asked him for money. When appellant stated that he did not have any money, she replied that it would be the last time he would hear from her. (Tr. 119). Appellant then picked up his friend, Larry Sadesky, and traveled to the victim's apartment. (Tr. 120). As the two men proceeded up the stairs to the apartment, they heard a gun shot. (Tr. 120). It was alleged by appellant that they entered the apartment and found the victim slumped over a table. (Tr. 121).
Beck testified that a preliminary hearing was set for July 22, 1987. He met the victim on that day and introduced her to the prosecutor who was handling the case. (Tr. 121-122). He also received a subpoena for a grand jury proceeding that was to be held on August 12, 1987. Beck testified at that hearing, but the victim was not present. (Tr. 122). However, the grand jury did have a copy of the statement that the victim had given to the police on July 6, 1987. (Tr. 124).
Beck received a second subpoena to appear before the grand jury on August 24, 1987. (Tr. 125). Prior to this date, Beck learned that the victim had died. Beck, however, did testify before the grand jury. (Tr. 125). Appellant was indicted by the grand jury following those proceedings. (Tr. 126).
Assistant Cuyahoga County Prosecutor, James Valentine ("Valentine"), testified that he represented the state at the preliminary hearing held on July 22, 1987. (Tr. 148). Valentine stated that the victim testified at that hearing and identified appellant and his accomplice as the persons who broke into her apartment. (Tr. 150). While under oath, the victim also stated that appellant assaulted her and took her .22 caliber handgun.
The transcript of this hearing was offered into evidence at trial as State's Exhibit 21. The court reporter who transcribed the hearing testified as to what parties were present at the hearing and that she, in fact, recorded their testimony. (Tr. 168). The transcript of the hearing was read to the jury and put into evidence.
Following the introduction of evidence on the aggravated burglary and aggravated robbery charges, the state presented evidence as to the cause of the victim's death. Officer Ronald Phillips ("Phillips") testified that on August 21, 1987, he received a call to proceed to 3542 West 45th Street, Cleveland, Ohio. When he arrived at that address, he was met by Richard McCoy ("McCoy"). (Tr. 230). McCoy, the victim's boyfriend, gave Phillips a key to enter the victim's apartment. Upon entering the premises, Phillips found the victim's body on the couch. (Tr. 231). She had been shot in the head.
Phillips testified that he spoke with Perfecto Ramos and Janice Fitzer who were residents of the apartment building. (Tr. 235-236). Ramos informed Phillips that he heard a man and woman arguing in the apartment above his. (Tr. 246). Ramos heard a door slam, saw a male exit the building and observed this male as he got into a large white automobile. (Tr. 247).
Ramos was present at the trial and testified as to the above facts. (Tr. 313-318). Ramos stated that he was requested to view a line up at the Justice Center. (Tr. 327). Ramos identified appellant at the line up (Tr. 328), and stated that he had never seen appellant prior to the night he saw him leave the victim's apartment. (Tr. 329). Ramos was also asked to identify appellant's automobile which was in the police garage. He was able to identify the car from seeing it on the night in question. (Tr. 329).
Phillips also testified that he spoke with the victim's mother. (Tr. 239). She named the appellant as a possible suspect. (Tr. 240).
Detective Robert Moore ("Moore"), a member of the Cleveland Police Department Homicide Unit, testified that on August 21, 1987, he received an assignment to proceed to 3542 W. 45th Street. (Tr. 709). Moore interviewed several people at the crime scene and was given appellant's name as a possible suspect. (Tr. 710). Moore went to appellant's home. Appellant was not at the location, however, he telephoned his mother while the officers were there. Moore spoke with appellant, was given his location and remained there until Moore picked him up.
Moore testified that he prepared the line up from which Ramos identified appellant. (Tr. 718). Moore also accompanied Ramos when he identified appellant's automobile. (Tr. 717-718).
Several witnesses presented testimony as to the turbulent relationship that appellant had with the victim. Yvonne DiCarlo testified that she had known the victim and appellant for approximately four years. She observed the victim with a broken jaw, black eyes, bruises and one occasion when half of her hair was missing from her head. (Tr. 188). DiCarlo stated that she had seen the victim the day after the alleged break in on July 5, 1987. The victim told her that appellant and his accomplice had broken into her apartment. (Tr. 189).
DiCarlo testified that she also saw the appellant after her conversation with the victim. According to DiCarlo, appellant admitted that he had the victim's gun and he stated that if he could not have her, no one could. (Tr. 191). DiCarlo characterized appellant as a very possessive individual and stated that while the victim lived with him, DiCarlo could only see her when he was not at home. (Tr. 199).
Crystal Ols, the victim's daughter, testified that during the time when her mother lived with appellant he broke her mother's jaw. (Tr. 212). Crystal stated that appellant would call her on the telephone and state that he was going to kill her grandparents and her mom. (Tr. 210).
Crystal explained that after her mother and appellant broke up, he would continually drive past their home and beep his car horn. (Tr. 211). She identified appellant's automobile as a white Cadillac. (Tr. 211). This matched the description and identification of the automobile witnessed at the crime scene.
Richard McCoy stated that appellant had thrown bricks through the window of the victim's apartment. (Tr. 497). He also stated that he overheard telephone conversations between the victim and appellant. Apparently appellant was concerned about the victim's decision to testify against him at the preliminary hearing held on July 22, 1987. McCoy stated that appellant told the victim that he would give her anything not to testify. (Tr. 500).
Samuel Mangiopane ("Mangiopane") was a cellmate with appellant at the city jail in June of 1987. (Tr. 575). Mangiopane testified that appellant told him that he and another man had broken into the victim's apartment. (Tr. 577). According to Mangiopane, appellant admitted that he went to the victim's home to get her gun. (Tr. 578). They argued over her testimony at the hearing (Tr. 578), and appellant admitted that he shot her to keep her from testifying against him. (Tr. 579).
On cross-examination, Mangiopane stated that he had contacted the prosecutor's office and told them he had information on this case. (Tr. 585). He also stated that the state agreed to reduce pending charges against him in exchange for his testimony. (Tr. 587).
Janice Fitzer ("Fitzer"), a neighbor of the victim, was called as a defense witness. Fitzer heard gunshots on August 21, 1987....
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