City of Garfield Heights v. Winbush

931 N.E.2d 1148, 187 Ohio App. 3d 302
CourtOhio Court of Appeals
DecidedApril 15, 2010
DocketNo. 92276
StatusPublished
Cited by4 cases

This text of 931 N.E.2d 1148 (City of Garfield Heights v. Winbush) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Garfield Heights v. Winbush, 931 N.E.2d 1148, 187 Ohio App. 3d 302 (Ohio Ct. App. 2010).

Opinion

Patricia Ann Blackmon, Judge.

{¶ 1} Appellant Mario Winbush appeals his convictions following a jury trial in the Garfield Heights Municipal Court. Winbush assigns the following errors for our review:

I. Defendant’s conviction for counts of failure to have insurance, disregarding public safety, speeding, and fleeing and eluding were against the manifest weight of the evidence.
II. The trial court erred by denying the accused’s request for an investigator in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.
III. The trial court erred by allowing the prosecutor to elicit hearsay testimony from Officer Marks.
IV. The trial court erred by allowing inadmissible testimonial statements to be admitted through non-declarant testimony in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.
V. The trial court erred by admitting the written witness statement of Charletta Peterson in contravention of Evidence Rule 801, the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.

{¶ 2} Having reviewed the record and pertinent law, we reverse Winbush’s convictions and remand this matter to the trial court. The apposite facts follow.

{¶ 3} On March 18, 2008, the city of Garfield Heights charged Winbush with fleeing and eluding, failure to have insurance, disregarding public safety, and speeding. Winbush pleaded not guilty at his arraignment, and on September 22, 2008, a jury trial was held.

Jury Trial

{¶ 4} Five witnesses testified at the trial. Officer John Marks, a 20-year veteran of the Garfield Heights Police Department, testified that on March 17, 2008, he was detailed to traffic enforcement. On that date at 10:52 a.m., he observed a 1992 gold Cadillac speeding. Using his radar, he confirmed that the vehicle was moving at 44 miles per hour in a 25-miles-per-hour zone. He stopped [305]*305the vehicle and advised Winbush why he was stopped, and Officer Marks requested his driver’s license and proof of insurance. Winbush told the officer that he did not have his driver’s license and identified himself as Amad Dale as he also provided his social security number and date of birth.

{¶ 5} Officer Marks stated that when he returned to his police cruiser to verify the information, the vehicle sped away. Officer Marks gave chase, pursuing the vehicle into the city of Cleveland but lost sight of the vehicle in the vicinity of Benwood Avenue. Officer Marks abandoned the pursuit and returned to the station.

{¶ 6} Officer Marks had a good look at the driver at the time he stopped the vehicle and described the driver as a black male with dreadlocked hair, who was wearing a black baseball hat and a black and white checkered coat. Officer Marks later discovered that the driver of the vehicle had provided false information.

{¶ 7} Officer Marks was able to locate and visit the home of the vehicle’s registered owner, Charletta Peterson. Peterson indicated that she had loaned her car to someone named Fred, whom she had met two months earlier. Peterson visited the police station later that day and indicated that Fred had called her and apologized for the chase and told her where she could find her car.

{¶ 8} Officer Timothy Baon testified that he assisted in the chase but never saw the driver. Officer Baon stated that as a result of the telephone call that Peterson received from Fred, he conducted a reverse 4-1-1 search to determine the location of the call’s origin. Officer Baon subsequently responded to that location, where he observed two persons, one of whom fit the description Officer Marks had provided.

{¶ 9} Officer Baon later obtained a photograph of the person who fit the description Officer Marks had provided. He showed Officer Marks the picture, and he confirmed that was the person involved in the chase. Officer Baon created a photo array containing the picture of Winbush and showed it to the vehicle’s owner. Officer Baon stated that the vehicle’s owner indicated that the picture of Winbush looked like the person she knew as Fred. Officer Baon testified that the vehicle’s owner later contacted them to indicate that the photo of Winbush was the person she had loaned her car to, but she was afraid of reprisals for identifying him.

{¶ 10} At trial, brothers Willie and Troy Clark, as well as their mother, Eleanor Clark, testified that they had known Winbush for more than 20 years. All three witnesses testified that Winbush was at their home in Cleveland Heights on the morning in question. All three witnesses testified that Winbush stayed at their home from approximately 11:00 a.m. until noon.

[306]*306{¶ 11} The jury found Winbush guilty of all charges. On September 30, 2008, the trial court sentenced Winbush to prison terms of six months for fleeing and eluding, one month for failure to have insurance, and five days for speeding. The trial court ordered the sentences served consecutively. In addition, the trial court imposed court costs of $500, assessed six points on Winbush’s license, and suspended his driver’s license for 30 days.

{¶ 12} The trial court granted a stay of execution of the sentence. Winbush now appeals.

Admission of Evidence

{¶ 13} We will address the third, fourth, and fifth assigned errors together because of their common basis in fact and law and because we find them dispositive of the appeal. Winbush argues that admission through the testimony of Officers Marks and Baon of hearsay evidence relating to what Peterson told them violated his Sixth Amendment right to confront the witnesses against him pursuant to Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, and Davis v. Washington (2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. We agree.

{¶ 14} The admission of evidence lies within the broad discretion of a trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice. State v. Cunningham, 6th Dist. No. WD-08-063, 2009-Ohio-6970, 2009 WL 5174151, citing State v. Noting, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43. “Abuse of discretion” connotes more than an error of law or judgment; it implies that the trial court’s attitude was arbitrary, unreasonable, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.

{¶ 15} The Sixth Amendment to the United States Constitution guarantees that a person accused of committing a crime has the right to confront and cross-examine witnesses testifying against him. Pointer v. Texas (1965), 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923. In Crawford,

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Cite This Page — Counsel Stack

Bluebook (online)
931 N.E.2d 1148, 187 Ohio App. 3d 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-garfield-heights-v-winbush-ohioctapp-2010.