State v. William Clark
| Decision Date | 29 April 1982 |
| Docket Number | 44015,82-LW-2245 |
| Parties | STATE OF OHIO APPELLEE, v. WILLIAM CLARK APPELLANT. |
| Court | Ohio Court of Appeals |
For plaintiff-appellee: John T. Corrigan.
For defendant-appellant: James M. Dubelko.
JOURNAL ENTRY AND OPINION
This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and was argued by counsel for the parties; and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Common Pleas Court is affirmed. Each assignment of error was reviewed and upon review the following disposition made:
On December 26, 1980, defendant-appellant, William Clark (hereinafter appellant), was indicted for six counts of felonious assault (R.C. 2903.11). The counts of the indictment were as follows: Counts one-three for his assaults against Emery Franklin; Counts four and five for his assaults against Velma Edwards; and Count six for his assault against Jack Simpson. The indictment arose from an incident which occurred at approximately 9:00-9:30 p.m. on November 22, 1980 at the home of Eleanor Simpson, appellant's sister.
Appellant pleaded not guilty and was tried before a jury in the Cuyahoga County Court of Common Pleas. During the course of the trial the court granted defense counsel's motions for acquittal for Count Six (Jack Simpson) and Count Four (Velma Edwards). The jury returned a verdict of guilty for the remaining Count as to Velma Edwards. As to the three counts of felonious assault as to Emery Franklin, the jury found as follows; guilty of one count of felonious assault and one count of the lesser included offense, aggravated assault; not guilty as to the third count of felonious assault. Appellant was sentenced to three terms of imprisonment of three to fifteen years to run concurrently at the Columbus Correctional Facility.
The evidence adduced at trial is as follows:
Velma Edwards testified that she arrived at the home of her friend (Eleanor Simpson) between 1:00 and 2:00 p.m. on November 22 1980 to help prepare Thansgiving dinner. When she decided to leave, between 9:00 and 9:30 p.m., she called her friend Emery Franklin to come to take her home. Emery Franklin arrived between 9:00 and 9:15 p.m. He was there about fifteen to twenty minutes when Velma Edwards got up to get her coat to leave. Emery Franklin turned and started to proceed from the dining room to the living room when appellant fired his gun. Emery Franklin turned to face appellant and, upon seeing the gun, asked him what was going on (Tr. 108). Appellant asked him to leave the house and proceeded to fire a second shot at Emery Franklin which missed. As Emery Franklin exited from the living room to the front porch, he heard a third shot fired. After firing these shots appellant fled through the back or side door, came around to the side of the front porch and fired two more shots across the porch at Emery Franklin. The first of these latter shots struck Emery Franklin in his left leg (Tr. 109).
After the first series of shots had been fired, Velma Edwards followed appellant to the back (or side) door, locking it after him. She then proceeded to the front door where she witnessed Emery Franklin being shot by appellant (Tr. 40). Velma Edwards testified that it was at this moment, while standing at the front door, that she first realized that she too had been shot in her right leg; however, she could not recall the exact moment the bullet had struck her (Tr. 65).
Both Velma Edwards and Emery Franklin testified that neither one of them had guns (Tr. 49, 112) and that they didn't know what had precipitated the shooting by appellant.
Appellant testified in his own defense. He explained, in pertinent part, that at about 8:30 p.m., while installing a stove in his sister's kitchen, Velma Edwards opened her purse, pulled out a gun, threatened to shoot him with it, and subsequently returned the gun to her purse. Contrary to any testimony produced by the state, appellant testified that after he and Velma Edwards had argued she proceeded to make a phone call. Approximately fifteen minutes later Emery Franklin arrived. Appellant had seen Velma Edwards putting on her coat, and thinking that she had already left, he asked, "Is that old, dumb bitch gone yet?" Appellant testified that he had also called her a hooker, whereupon she began to pull her gun out of her purse. Appellant remembered removing his gun from his tool box, backing away, firing his gun at Velma Edwards before she was able to remove the gun from her purse (Tr. 215), and watching her as she was struck in her leg (Tr. 208). He testified further that he had not pointed his gun at Emery Franklin but had only fired his gun to frighten him and to keep him away (Tr. 209, 216).
After firing these shots appellant ran out of the house in an attempt to flee the scene (Tr. 220). While inching along, wedged between the side of the front porch and a car which was in the driveway, appellant observed Velma Edwards handing Emery Franklin her gun. Appellant thought Emery Franklin was going to shoot him, after seeing Velma Edwards point to him from the front porch where she was talking with Emery Franklin. Appellant then fired two shots at Emery Franklin, the first of which struck him in his leg, and left his sister's house.
Appellant is appealing not only the finding of the jury which found him to be guilty of felonious assault as to both Emery Franklin and Velma Edwards and guilty of one count of aggravated assault as to Emery Franklin, but also the imposed sentence. Appellant alleges eight errors.
Criminal Rule 16(B)(1)(g) sets forth the following procedure to be followed in conducting an in camera inspection of a witness' statement:
This court interpreted Criminal Rule 16(B)(1)(g) in State v. Britten (Eighth App. Dist., March 27, 1980, Unreported Case No. 40644) wherein we stated:
®1¯
Footnote 1 On October 22, 1981 this court certified the record of State v. Daniels (Eighth App. Dist., October 22, 1981), No. 43145 to the Supreme Court of Ohio for its review. In Daniels this court interpreted Crim. R. 16(B)(1)(g) as requting ". . . that defense counsel must be afforded the opportunity of actually examining a statement of a witness subsequent to the witness giving direct testimony in the trial of the case."
This interpretation gives defense counsel, ". . . the right to call to the attention of the court any inconsistencies existing between the testimony of the witness and his statement." Daniels, supra, at page 5.
Therefore, we find that the trial court did not err in refusing to permit defense counsel to participate in the in camera inspection.
After completing its in camera inspection of Velma Edwards' statement, the trial court determined that two inconsistencies existed between her testimony and her written statement®2¯ made to the police concerning the events which took place on November 22, 1980. Although the trial court permitted defense counsel to ask the witness about these inconsistencies, they were not permitted to see the statement and use it during their cross-examination of the witness.
Footnote 2 "THE COURT: I don't see anything inconsistent with what she said so far other than that she says in the statement that when she was coming back up from locking the door, 'When I was coming back up the stairs, I realized I was shot in the right leg.' That is from locking the door.
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