State v. Vance Robinson and Richard Sales, 85-LW-4558
Decision Date | 24 October 1985 |
Docket Number | 49518 & 49577,49501,85-LW-4558 |
Parties | STATE OF OHIO Plaintiff-Appellee v. VANCE ROBINSON AND RICHARD SALES Defendant-Appellants |
Court | Ohio Court of Appeals |
CRIMINAL APPEAL FROM COURT OF COMMON PLEAS CASE NO. 187731.
For Plaintiff-Appellee: John T. Corrigan, Esq., Cuyahoga County Prosecutor, Frank Gaspar, Esq., Assistant County Prosecutor Courts Tower - Justice Center, 1200 Ontario Street Cleveland, Ohio 44113.
For Defendant-Appellants: Paul Mancino, Jr., Esq., One Public Square, Suite 1001, Cleveland, Ohio 44113, Jeff T. Zucco Esq., 900 Engineers Building, Cleveland, Ohio 44114, Bruce Tyler Wick, Esq., 1525 Leader Building, Cleveland, Ohio 44114.
JOURNAL ENTRY AND OPINION
On December 8, 1983, the defendants Richard Sales and Vance Robinson were jointly indicted by a grand jury for one count of aggravated burglary (R.C. 2911.11), with aggravated felony specifications, one count of grand theft (R.C. 2913.01), with violence specifications, and one count of possessing criminal tools (R.C. 2923.24), with violence specifications.
On October 5, 1984, a joint trial by jury commenced. On October 19, 1984, the jury returned guilty verdicts as to all counts, with count two being reduced to a misdemeanor. On October 23, 1984 each defendant was sentenced to terms of ten-to-twenty-five years on count one, with ten years of actual incarceration; three-to-ten years concurrently on count two; and three-to-ten years on count three, also to run concurrently.
Both defendants have appealed their convictions. Their appeals have been consolidated for review, since for the most part the errors assigned are the same.
The assignments are as follow:
Defendant-appellant Sales additionally raises the following under his Seventh Assignment of error:
D) THE VERDICT OF THE JURY, AND JUDGMENT OF THE TRIAL COURT, WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
The appellants join in raising Assignments VIII, IX and X as follows:
Appellant Robinson raises the following for his Eleventh Assignment of Error:
Appellant Sales asserts the following as his Eleventh Assignment:
XI. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS CERTAIN ALLEGED ORAL STATEMENTS OF MR. SALES GARNERED AS A RESULT OF THE ILLEGAL ARREST. DESPITE TIMELY AMD APPROPRIATE DISCOVERY REQUESTS, THE STATE DID NOT PROVIDE FULL INFORMATION CONCERNING THESE STATEMENTS UNTIL JUST BEFORE TRIAL.
The incident which gave rise to the indictment occurred the evening of November 23, 1983 in the area of Coventry and Derbyshire in Cleveland Heights. The two defendants were observed by a Cleveland Heights policeman, Officer Robertson, who was on patrol duty in the area. He testified that he observed two men walking on the sidewalk and then entering the driveway of the Zell residence on Derbyshire. At the halfway point on the drive they stopped and conversed, one of them pointed to the house. They then turned in the Officer's direction, turned away, walked across the side lawn, onto the sidewalk and away from the residence. (Tr. 129-30). As they crossed the side lawn, one of them threw something into the bushes. (Tr. 130).
Robertson testified that he approached them to see if they needed help. Sales came forward and told him they were there to purchase marijuana. He in turn questioned Robinson, who stated that they had had car trouble and were seeking assistance. Upon receiving their conflicting stories, Robertson requested assistance. (Tr. 139).
Upon the arrival of additional officers, a pat-down search for weapons was conducted, and a flashlight with a darkened lens was removed from the person of Robinson. (Tr. 140). The police recovered a green duffle bag from the bushes bearing Robinson's name. (Tr. 141-42). An automobile was located on Coventry, which a computer run reported as registered to a Deborah Sales (Tr. 144).
The defendants were placed under arrest, after a criminal trespass complaint was signed by Mr. Zell in the presence of a Sergeant Luskin, a deputy bailiff and police officer who had arrived on the scene. (Tr. 60, 63, 75-76, 82).
A neighbor testified that he had been given a key to the Fritz residence to keep an eye on the premises while the family was away. (Tr. 186). On November 24, 1984, he discovered that the house, which abutted the Zell property, had been broken into. (Tr. 186-87). He found a television, a radio and a pillowcase containing other items, outside the back porch. (Tr. 188-89). He also discovered a shoeprint on brown wrapping paper covering a rug on the Fritz back porch. (Tr. 192).
The investigating officer testified that no legible fingerprints were removed from the scene of the break-in (Tr. 242). He testified the shoeprint was sent to a forensic lab along with the defendants' shoes for comparison. (Tr. 244). He also testified to the following conversation with defendant Sales:
On cross-examination, he further testified:
(Tr. 267).
He also testified that the purpose for darkening a flashlight lens is to diminish the amount of light cast. (Tr. 256).
An expert testified that the analysis of the shoeprint indicated that while defendant Sales' shoes were similar in size and general characteristics, there were no identifying characteristics to make a positive identification. (Tr. 310).
Fritz testified that when he had left his house, it was in excellent condition, but upon his return it had been broken into. He further testified that the items found outside amounted to $145 in value. (Tr. 321).
The defendants' Rule 29 motion at the close of the evidence was overruled. (Tr. 355).
James Sales was called by the defense to testify that he had lent his car to his brother Richard on the night in question. He also testified that the following day it was located in a parking lot at Cedar and Coventry with battery problems. (Tr. 360).
A defense witness, Wanda Ballantine, was called to testify that she had received two phone calls from Sales on November 23. In the first call, Sales made arrangements to come to her house in the evening. In the second call, received in the evening, Sales indicated to her he had battery problems with the car. The content of the phone calls was objected to and excluded by the trial court. (Tr. 382-84, 389).
In rebuttal, the State called Officer Schmitt who testified that the case records kept by the police on the incident contained a computer request on a license plate. A printout indicating that a computer request on a '72 Olds registered to a Patricia Sales had been made in connection with the incident, was admitted into evidence over objection. (Tr. 392).
THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL AND STATUTORY RIGHT TO A SPEEDY TRIAL AND THE COURT ERRED IN NOT DISMISSING...
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