[Cite as State v. Crawford, 2012-Ohio-3595.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24833
v. : T.C. NO. 09CR879
DAMON CRAWFORD : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 10th day of August , 2012.
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414 Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Damon Crawford was convicted after a jury trial of murder with a firearm
specification. Crawford appeals from his conviction, raising three assignments of error. 2
For the following reasons, the trial court’s judgment will be affirmed.
I. Factual Background and Procedural History
{¶ 2} In the early morning of October 31, 1993, Ebony (“Punkin”) Fisher was shot
in the head while he was seated in a car in the parking lot of Spunky’s bar. Several
witnesses saw a man running away in the field adjacent to the bar’s parking lot. Soon
thereafter, Crawford was apprehended and arrested by Montgomery County deputy sheriffs
and returned in a cruiser to Spunky’s parking lot. Crawford was subsequently taken to the
Jefferson Township police station and questioned by the Jefferson Township police about
the shooting. After receiving Miranda warnings, Crawford invoked his right to counsel and
to remain silent and was later released. No one was prosecuted for the murder at that time.
{¶ 3} In January 2008, Detective Brad Daugherty reopened the investigation of
Fisher’s Halloween 1993 murder. He spoke with the original witnesses as well as newly
discovered witnesses and, in April 2009, after communicating with Crawford’s parole
officer, Daugherty questioned Crawford at the Adult Parole Authority’s office. Crawford
made incriminating statements during the interview.
{¶ 4} In August 2009, Crawford was indicted for murder with a firearm
specification. Crawford moved to suppress the statements that he made to his parole
officers and Daugherty. After a hearing, his motion was denied. In a separate ruling, the
trial court did suppress the 1993 identification of Crawford by two witnesses.
{¶ 5} The case was tried to a jury in October 2010; that trial ended in a hung jury.
Prior to a second trial, Crawford renewed his motion to suppress. The court again denied
the motion. A second jury trial was held in August 2011, at which time Crawford was 3
convicted of the murder charge and the firearm specification. The court sentenced him to
15 years to life for the murder, plus an additional three years for the firearm specification.
{¶ 6} Crawford appeals from his conviction, raising three assignments of error.
II. Motion to Suppress
{¶ 7} In his first assignment of error, Crawford claims that the trial court erred in
failing to suppress his statements to Detective Daugherty.1
{¶ 8} In reviewing the ruling on a motion to suppress, an appellate court must
accept the trial court’s supported findings of fact as true. State v. Dudley, 2d Dist.
Montgomery No. 24904, 2012-Ohio-960, ¶ 6. The court must then determine whether the
facts satisfy the applicable legal standard; this is done without deference to the conclusion of
the trial court. Id.
{¶ 9} At the suppression hearing, the State presented the testimony of Krista
Burke and Jason Butler, both of the Adult Parole Authority (“APA”), and Detective
Daugherty of the Montgomery County Sheriff’s Office. Their testimony established the
following facts.
{¶ 10} In November 2008, Burke became Crawford’s parole officer after his
release from prison on drug-related and weapon-related offenses. Burke initially met with
1 The day before oral argument in this case, Crawford filed a pro se “Motion for Leave to Add to and Clarify Appellant’s Brief.” In his motion, Crawford asserts that the trial court incorrectly concluded that he was not in custody, that he was free to leave, that he had not unequivocally asked for an attorney, and that Miranda warnings were not required because he was not being detained for the homicide when he was questioned by Daugherty. We do not consider pro se briefs filed by appellants who are represented by counsel on appeal. E.g., State v. Hall, 2d Dist. Montgomery No. 22788, 2009-Ohio-4601, ¶ 2. Accordingly, Crawford’s motion for leave is overruled. Regardless, the issues that Crawford attempts to raise are well presented in the brief filed by his counsel. 4
Crawford at the Montgomery County Jail, at which time Burke reviewed with Crawford the
conditions of his parole. These conditions included that Crawford refrain from using illegal
drugs and alcohol, that he be subject to random urine screens, and that he agree to
warrantless searches of his person, vehicle and residence by a supervising officer or other
employee of the Department of Rehabilitation and Corrections. Crawford signed a form,
acknowledging these conditions.
{¶ 11} On March 9, 2009, Crawford came into Burke’s office for a scheduled
meeting, including a drug test. After Crawford failed the drug screening, he began to yell
that people were trying to kill him and “you're not listening to me and I'm asking for help
here.” Crawford made “erratic comments” that Burke did not understand. Burke had
Crawford walk back to her office so that she could address his failure to comply with his
drug treatment program. Along the way, she asked Butler, another parole officer who knew
Crawford, to walk with them and to help calm down Crawford.
{¶ 12} Once in Burke’s office, Crawford asked for protection due to his belief that
he was being investigated for a murder and that people were trying to kill him. Crawford
told the parole officers that he had been at a bar named Spunky's on Halloween in 1992 or
1993, that he was pulled over by the police as he was walking home, and that he thought he
was going to prison. Crawford told the officers that he was “real high” that night and had
fallen asleep in the police cruiser, and he woke up when the cruiser was at a murder scene.
Crawford stated that he was taken to jail and questioned, but was later released. Crawford
stated that people had been trying to kill him since that time. Crawford also told Burke that
he was taking notes and writing the story of his life, and he wanted to show the notes to her. 5
Burke and Butler had not previously heard about the murder; when Crawford left, Burke told
him to talk to her supervisor the following day.
{¶ 13} The following day, Crawford returned with his notebook and spoke with
Burke, Burke’s supervisor, and Butler. Butler made a copy of the notebook and returned
the original to Crawford. After Crawford left, Burke contacted the Sheriff's Office to look
into Crawford's claims. The following day, she spoke with Detective Daugherty, who
informed her that he was investigating a cold case murder at Spunky's and that he had been
interviewing people about the crime. Daugherty speculated that Crawford may have heard
about the investigation.
{¶ 14} In mid-April 2009, Crawford was reassigned to Butler. On the morning of
April 27, Detective Daugherty contacted Butler and told him that a confidential informant
stated that there were weapons and drugs in Crawford’s residence. Daugherty also told
Butler that Crawford was a suspect in Fisher’s murder and that he wanted to speak with
Crawford. Daugherty and Butler planned to go together to Crawford’s apartment that
afternoon.
{¶ 15} By coincidence, Crawford came unexpectedly to Butler’s office later that
morning, and he asked Butler to copy a journal that he (Crawford) had. Crawford talked
about needing protection. Butler contacted Daugherty and told the detective that Crawford
was at the parole office. Daugherty stated that he would be there in five to ten minutes.
Before the detective arrived, Butler asked Crawford, “Would you be willing to talk to the
detectives without a lawyer present?” Crawford responded, “Yes. I want to get my story
out there and I want to let them know what’s going on with me.” Butler explained to 6
Crawford that he was not under arrest at that point; Butler did not inform Crawford of his
Miranda rights.
{¶ 16} Daugherty and another detective, both in plain clothes, arrived within a few
minutes. At Butler’s suggestion, they moved to a small conference room, which was also
located in a secure area of the office. Daugherty testified that he advised Crawford that he
was not under arrest, and Crawford went back and forth about wanting a lawyer.
{¶ 17} Without Crawford’s knowledge, Daugherty audio-recorded the interview.
The trial court described portions of the audiotape, stating:
* * * The audio of the interview reveals that in the first two and a half
minutes of the encounter, Defendant stated three times that he wanted an
attorney, but continued to converse with Daugherty. During this time, no
questions were asked regarding the homicide. Daugherty testified, and the
audio confirmed, that * * * he asked Defendant, “Here’s the question,
Damon. Do you want to talk with us without an attorney?” The audio
provided in State’s Exhibit 5 confirms that Defendant said, “yes.” Defendant
was also told at two minutes and fifty seconds that he was not under arrest
and was free to leave. Defendant stated that he wanted to talk to the
detectives. Defendant then proceeded to answer the detective’s questions
and elaborate on why people were trying to kill him. This information was
similar to what Defendant had written in the journal that he gave to Butler to
copy. [Approximately 12 minutes into the interview, Crawford said that he
was “cool with them Arlington Court people so they know I ain’t killed 7
Punkin yet.”] At approximately 31 minutes into the interview, Defendant
states that he wants to go [to] the job center, and 35 minutes into the
interview, Defendant stated that he was through with Daugherty. A couple
of minutes later, he stated that he wanted an attorney. The interview then
ended * * *.
{¶ 18} Based on information that Crawford had possible drugs and guns at his
residence, Butler handcuffed and detained Crawford in order to investigate those allegations.
Butler testified that Crawford’s detention was unrelated to the murder investigation.
{¶ 19} Butler and another parole officer took Crawford to his residence; the parole
officers were followed by Detective Daugherty in a separate vehicle. Daugherty stood and
chatted with Crawford outside the residence while Butler searched inside. After suspected
heroin was located, Crawford was detained by the parole officers on a parole violation, and
Daugherty took the suspected drugs in order to pursue new drug charges against Crawford.
{¶ 20} After Crawford was indicted for murder, Crawford moved to suppress the
statements that he made to Daugherty and to his parole officers. The trial court found that
Crawford’s statements to the parole officers on March 9, March 10, and April 27 were
voluntary and not the product of custodial interrogation. As for Crawford’s statements to
Daugherty on April 27, the trial court found Crawford did not unequivocally invoke his right
to counsel prior to speaking with Daugherty and that Crawford was not subject to custodial
interrogation when he was being questioned by the detective. In a footnote, the trial court
noted that Crawford’s invocation of his right to counsel in 1993 did not invalidate the
statements he made in 2009. Finally, the court found that Crawford’s statements to 8
Daugherty outside of his (Crawford’s) residence were unsolicited and did not require
suppression.
{¶ 21} The Fifth Amendment to the United States Constitution provides that “[n]o
person * * * shall be compelled in any criminal case to be a witness against himself.” The
United States Supreme Court has held that the State may not use statements stemming from
a defendant’s custodial interrogation unless it demonstrates the use of procedural safeguards
to secure the defendant’s Fifth Amendment privilege against self-incrimination. Miranda v.
Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). To counteract the
coercive pressure of custodial interrogations, police officers must warn a suspect, prior to
questioning, that he has a right to remain silent and a right to the presence of an attorney.
Maryland v. Shatzer, U.S. , 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010),
citing Miranda, 384 U.S. at 444. “After the warnings are given, if the suspect indicates that
he wishes to remain silent, the interrogation must cease. Similarly, if the suspect states that
he wants an attorney, the interrogation must cease until an attorney is present.” Id.
{¶ 22} A defendant may waive his Miranda rights. Id. However, in order for a
defendant’s statements made during a custodial interrogation to be admissible, the State
must establish that the accused knowingly, voluntarily, and intelligently waived his or her
rights. Miranda, supra; State v. Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976),
overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).
{¶ 23} In contrast to a defendant’s Fifth Amendment rights, “the Sixth
Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of
the criminal proceedings,” including any police interrogation that occurs after an adversary 9
judicial process has been initiated. See Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct.
2079, 173 L.Ed.2d 955 (2009). Unlike a defendant’s right to counsel under Miranda, a
defendant need not be in custody in order to assert his Sixth Amendment right to counsel, so
long as an adverse criminal proceeding has begun. Patterson v. Illinois, 487 U.S. 285, 290,
298-99, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). To be clear, this case implicates
Crawford’s Fifth Amendment rights, not his rights under the Sixth Amendment.
{¶ 24} First, we agree with the trial court that Crawford’s invocation of his right to
counsel following his arrest in 1993 did not preclude Daugherty’s 2009 questioning. A
defendant’s invocation of his Fifth Amendment right to counsel ends when there has been a
break in custody sufficient to eliminate the coercive effects of police custody. See Shatzer,
supra (where, after a 14-day break in “Miranda custody,” police were permitted to question
defendant, even though defendant had previously invoked his right to counsel and was in
prison at the time on another matter). In this case, there was a 16-year delay between
Crawford’s initial questioning by the police, during which he invoked his right to counsel,
and Daugherty’s questioning in April 2009. Crawford’s invocation of his Fifth Amendment
right to counsel in 1993 did not preclude Daugherty from attempting to question him without
counsel in 2009.
{¶ 25} Second, the trial court did not err in concluding that Crawford was not in
custody while he was questioned by Daugherty at the APA offices regarding Fisher’s
murder. The record reflects that Crawford voluntarily and unexpectedly came to the APA
offices on April 27 in order to talk with Butler and to provide a copy of his journal. When
Butler asked Crawford if he would be willing to talk with detectives without an attorney, 10
Crawford agreed. Crawford was informed by Butler prior to the detective’s arrival and by
Daugherty within a few minutes of beginning the interview that he (Crawford) was not under
arrest and that he was free to leave. Although Butler indicated that his office and the
conference room were located in a secure area of the APA offices (i.e., a locked door
separated the parole officers’ offices from the waiting area), there is no suggestion that
Crawford could not have left if he wished. Butler subjectively intended to detain Crawford
for the parole violation after the interview ended, but there was no evidence that Crawford
was aware of that intention when the interview began, and Crawford was not, in fact,
detained until near the end of the interview with Daugherty. Based on the record, the trial
court reasonably concluded that Crawford was not in custody when he spoke with Detective
Daugherty about Fisher’s murder on April 27, including during the time that Crawford stated
that he “ain’t killed Punkin yet.” Accordingly, Crawford was not entitled to Miranda
warnings prior to questioning by Daugherty, and the detective was not obligated to cease
questioning Crawford when Crawford initially indicated that he wanted counsel.
{¶ 26} The trial court found that the interview concluded shortly after Crawford
expressed that he wished to go to the job center and then requested an attorney.
Approximately 30 minutes into the interview, Crawford indicated that he wanted to go to the
job center, and he was told by Daugherty and Butler that he would be given a ride home.
After a few additional questions related to Fisher’s murder, Crawford asked for a lawyer and
said he wanted the copy of his journal back. Butler then asked Crawford if he had
contraband at his residence, and Crawford was subsequently handcuffed before being taken
to his residence. Butler reiterated to Crawford that he was not under arrest at that time. 11
{¶ 27} Whether Crawford was in custody at the conclusion of the interview when
he was handcuffed presents a closer question than whether Crawford was in custody when
the interview began. Regardless, none of the statements that Crawford made at the
conclusion of the interview were used against him by the State at trial. Accordingly, any
error in the court’s failure to suppress the statements Crawford made at the conclusion of the
interview was harmless.
{¶ 28} The first assignment of error is overruled.
II. Manifest Weight of the Evidence
{¶ 29} Crawford’s second assignment of error claims that his conviction was
against the manifest weight of the evidence. He asserts that the State’s witnesses, many of
whom were recently released from prison, were not credible.
{¶ 30} “[A] weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581,
2009-Ohio-525, ¶ 12. When evaluating whether a conviction is contrary to the manifest
weight of the evidence, the appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider witness credibility, and determine whether, in
resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Elmore, 111
Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 44. 12
{¶ 31} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular
witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug.
22, 1997). However, we may determine which of several competing inferences suggested
by the evidence should be preferred. Id.
{¶ 32} The fact that the evidence is subject to different interpretations does not
render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A
judgment of conviction should be reversed as being against the manifest weight of the
evidence only in exceptional circumstances. Martin at 175.
{¶ 33} The State’s evidence at trial revealed the following facts:
{¶ 34} At approximately 3:00 a.m. on October 31, 1993, Fisher was shot in the
head while he was seated in the passenger seat of Deon Cunningham’s silver Oldsmobile
Delta in the parking lot of Spunky’s, a night club formerly located at the intersection of
Derby Road and Germantown Pike. The bullet entered above Fisher’s right ear and traveled
down and to the left, causing fatal injuries.
{¶ 35} Kirby Ben-Israel2 (fka Kirby Peterson) testified that he, Crawford, Lamar
Lenore, Darryl Jones, and two women drove around to different bars on the night of October
31, 1993. All of the men were drug dealers and all carried guns. Ben-Israel stated that they
arrived at Spunky’s around closing time and parked “to the right and to the rear of the silver
car that’s parked there.” Ben-Israel, Lenore, and Jones got out and walked around together;
Crawford got out of the Ben-Israel’s car and went off separately. The three men saw Fisher
2 The transcript incorrectly identifies this witness as Kirby Benezra. 13
in the parking lot and spoke with him about rumors that he was targeting and robbing drug
dealers. After a few minutes, the conversation ended, and Fisher walked over to and got
into the front passenger side of the silver car; another man, (who other witnesses identified
as Cunningham) was seated in the driver’s seat. Ben-Israel briefly stood by the car and saw
Fisher talk on a car phone.
{¶ 36} Ben-Israel testified that he then saw a man, whom he believed was
Crawford, run up to the silver car and shoot Fisher with a “bright” revolver through the
“cracked” (i.e., partially open) door. Although the shooter was masking his face, he was
wearing the same clothes that Crawford had been wearing that night – maroon sweatpants
and a black athletic jacket with “Sox” on the back. After the shooting, the shooter ran past
the fence separating the property from a field. Ben-Israel, Lenore, Jones, and the women
left in Ben-Israel’s vehicle; Ben-Israel did not see Crawford again that night.
{¶ 37} Ben-Israel further testified that he later talked with Crawford about the
shooting. Crawford had stated that he buried the gun in some leaves and that his brother
had retrieved the gun for him. Crawford also reportedly stated that he shot Fisher because
“he seen the opportunity and he took it” and “he can’t negotiate with a guy like that.”
Crawford stated that he “did everybody a favor.”
{¶ 38} Approximately 100 to 150 people were in the parking lot area at the time of
the shooting, including Jefferson Township Police Chief Leon Frazier, Officer Steven
Gephart, Darren Byrd, Kevin Byrd, and Paul Harrington.
{¶ 39} Harrington testified that, as he was leaving Spunky’s around closing time on
October 31, 1993, he was looking for his friend, Cunningham, who had left shortly before 14
him. As he and a friend made their way to Cunningham’s car, they saw Fisher talk to
Cunningham and get into the front passenger seat. Fisher left the door open and used
Cunningham’s phone. Harrington saw someone wearing a hood walking toward the car
from along the fence line; as the person got closer, Harrington recognized that it was
Crawford. A few seconds later, Harrington heard a shot. Harrington saw Crawford “raise
up from the back passenger door area and turn and take off and run * * * down the fence line
area and ran through the field.” Harrington recalled that Crawford had a black hoodie
jacket with white lettering on the back and that Crawford was wearing gloves.
{¶ 40} Darren Byrd testified that he was employed as a bouncer at Spunky’s on
October 31, 1993. As he was trying to disperse people from the area, he saw a silver car
pull up near the building, playing music loudly. Darren3 saw Frazier (who was off-duty and
providing security for Spunky’s) approach the car and tell the driver to turn the music down.
A few minutes later, Darren heard a single “pop” in the area of the silver car and heard a
man say, “I’ve been shot.” Darren observed that the car door was open, and he saw a man
walking toward the back of the vehicle. Darren did not see the person’s face, but the man
was wearing a jacket with an “applique or something” on the back of a black jacket. The
man walked along the fence line. At the time of the offense, Darren further recalled that the
man had also worn a dark hooded sweatsuit, had “[s]omething shiny at his side,” and “[took]
off running.”
{¶ 41} Kevin Byrd was employed at Spunky’s to provide inside security. At
around 2:30 a.m., when the bar closed, Byrd began dispersing people to their cars. Soon
3 To avoid confusion, we will refer to Darren Byrd and Kevin Byrd by their first names. 15
after, a fistfight broke out in the middle of the parking lot; Kevin and other security
personnel went to break up the fight. Kevin left the altercation and began walking back
toward the front entrance while the rest of the security personnel handled the fight. As he
neared the front door, Kevin heard a gunshot and saw a man (who others identified as
Cunningham) “jump out” of the driver’s side and yell that he had been shot. When Kevin
approached to see what was going on, the man said that “Punkin” was in the car.
{¶ 42} As Kevin went to the car, he saw another man “running around the fence
line from that area and going around the fence” into a large field. The man was wearing
maroon pants and a dark-colored jacket with “a big insignia on the back. Kind of looked
like it might have said Sox or White Sox or something on the back.” The man was carrying
something that looked like a 9 mm or 45 mm silver handgun. Kevin testified that other
patrons ran to their cars when they heard the gunshot, but he did not see anyone else run into
the field.
{¶ 43} Officer Gephart was seated in his police cruiser in the Spunky’s parking lot
at the time of the shooting, and he drove to the location of Cunningham’s car based on a
radio call from Frazier that there had been a shooting by the front door. When Gephart
arrived at Cunningham’s car, he noticed that all of the vehicle’s windows were closed and
unbroken. Gephart looked in and around the vehicle for the bullet, shell casing, and gun; he
did not find them at the scene. After the vehicle was moved to a garage at the Sheriff’s
Office, a very small portion of the bullet was located in the dashboard. Gephart also
obtained fingerprints from the exterior of the car, and a hair was collected from the exterior
handle of the front passenger door. 16
{¶ 44} While at the scene, Gephart heard a broadcast on his police radio that a man
was seen fleeing from the scene and heading north across the field adjacent to Spunky’s
parking lot. Within thirty minutes, Gephart heard that a Montgomery County sheriff’s
deputy had apprehended a suspect, who was later identified as Crawford.
{¶ 45} Crawford was taken into custody at 3:30 a.m. near the intersection of
Gettysburg Avenue and Germantown Pike, at which time his clothing was collected. His
clothing consisted of a White Sox Starter jacket with a hood, a hooded sweatshirt, gym
shoes, and maroon sweatpants. Crawford’s hands were tested for gunshot residue, but none
was detected. He was subsequently released.
{¶ 46} Scott Moore testified that he spoke with Crawford in 1994, after his
(Moore’s) release from prison. Crawford told Moore that he discovered who had broken
into his (Crawford’s) grandmother’s home and that he “took care of the person who did it” in
Spunky’s parking lot on Halloween night in 1993. Moore testified: “He told me the club
had let out that night and he just saw Ebony Fisher, had saw Punkin in the parking lot and he
said he watched him get into somebody’s car and get on the telephone. And he said he
decided to take him out at that point in time.” Crawford told Moore that he had come from
Marable’s night club, which was near Spunky’s, came along the passenger side of the car
from the rear, stuck the gun in the car, and shot Fisher in the head with a .357 magnum.
Crawford said he was wearing a hoodie, gloves, and a jacket. Crawford reported that he ran
through the field after the shooting and discarded the hoodie, gun, and gloves as he ran.
Crawford told Moore that he was apprehended, arrested, taken to jail, and tested for gunshot
residue; Crawford indicated to Moore that the gunshot residue test was negative. 17
{¶ 47} Finally, Detective Daugherty testified regarding his cold case investigation.
Daugherty reviewed the existing physical evidence and police file and spoke with various
witnesses that were mentioned in the file. In April 2009, Daugherty spoke with Crawford
about the homicide. Crawford stated that he was at Marable’s in the early morning hours of
October 31, 1993, and members of both the Dayton View Hustlers and Arlington Court gang
were there; Crawford was a member of the Dayton View Hustlers. During the conversation,
Crawford stated that he was “still cool” with the Arlington Court gang “because I ain’t killed
Punkin yet.” Crawford also asked for the return of the clothing that was collected from him
in 1993. (On cross-examination, Daugherty further testified that Crawford denied killing
Fisher and that Crawford said he had heard a rumor that Ben-Israel had killed Fisher.)
{¶ 48} Dion Cunningham testified on Crawford’s behalf. He stated that he went to
Spunky’s around 10:30 or 11:00 p.m. on October 30, 1993, with Harrington and Heath
Harding. While there, he saw Fisher in the club and gave Fisher his phone number. When
the club closed, Cunningham got into his car and pulled around to the front so that he could
find Harrington and Harding. Cunningham was playing music loudly, and security told him
to turn it down. While he was in his car, he saw Fisher walking toward him from the club.
Fisher walked up and asked Cunningham if he could use the phone; Cunningham agreed and
Fisher got into the front passenger seat. Before Fisher could use the phone, three men came
up to Fisher and talked with him through the lowered passenger window. After making
sure the men were not arguing, Cunningham turned his attention to some women with whom
he was talking through his window. Within minutes, Cunningham heard a “loud muffle,
boom,” and saw that Fisher was shot. Cunningham thought he had been shot, too, and 18
panicked.
{¶ 49} After Cunningham’s testimony, the parties stipulated that gunshot residue
testing (atomic absorption testing) had been performed on Cunningham, Crawford, and
Fisher. The results were negative for Crawford and Fisher, but positive for Cunningham’s
right palm.
{¶ 50} Crawford claims that the State’s witnesses were not credible and, therefore,
his conviction should be reversed as against the manifest weight of the evidence. Crawford
emphasizes that Ben-Israel had received a 24-year federal prison sentence for drug and
escape charges, but he was released from prison early after cooperating in the investigation
of this and another case; Ben-Israel did not identify Crawford as the shooter until September
1996, when he contacted federal agents and indicated that he would like to cooperate in the
investigation of Fisher’s murder in exchange for help in reducing his sentence. Crawford
further argues that Ben-Israel “couldn’t remember basic facts, e.g. whether the shooting
occurred on Halloween or Thanksgiving,” rendering his testimony not credible.
{¶ 51} Similarly, Crawford argues that Moore, who was serving a 24-year federal
prison sentence at the time of trial, did not contact the sheriff’s department about Fisher’s
shooting until August 2010, after he heard from Ben-Israel that Ben-Israel had provided
assistance in the investigation of two cold cases.
{¶ 52} Harrington also was serving a ten-year prison sentence for drug trafficking
at the time of Crawford’s trial. Although Harrington was questioned by Chief Frazier on
the night of the shooting, he waited until 2008 to tell Daugherty that he “heard a rumor” that
Crawford was the perpetrator and did not expressly identify Crawford as the shooter until 19
2010.
{¶ 53} Upon considering all of the evidence at trial, we do not agree that
Crawford’s conviction is against the manifest weight of the evidence. Although the
witnesses’ testimony varied to some degree and witnesses could not recall some details due
to the passage of time, the State’s witnesses described in a similar manner how the shooter
approached Cunningham’s car, shot Fisher, and fled into the field next to the property.
Several witnesses described Crawford’s clothing on that night and identified Crawford, or a
man wearing clothes consistent with Crawford’s, as the shooter. According to Moore and
Ben-Israel, Crawford confessed to shooting Fisher on Halloween 1993.
{¶ 54} Though the jury heard that Harrington, Moore, and Ben-Israel had served or
were serving lengthy prison sentences, each explained their reasons for not discussing the
shooting with law enforcement near the time of the shooting. They all admitted that they
had been drug dealers, and Ben-Israel and Harrington expressed that cooperating with the
police would have harmed their reputations or endangered their lives. For example,
Ben-Israel stated that going to the police “wouldn’t have been a good thing to do back then
for me * * * [b]ecause of the business I was in. That was a conflict.” He stated that he
decided to cooperate “so I can gain my life back.” Harrington explained his failure to
cooperate the past, saying, “I was a lot younger back then and I guess I didn’t feel it was that
important, you know, plus I was in the streets too, so I really wasn’t into telling on nobody or
snitching as they call it.”
{¶ 55} Defense counsel thoroughly cross-examined Ben-Israel and Harrington
about their failure to identify Crawford at the time of the shooting and questioned Moore 20
about his significant delay in contacting law enforcement about Crawford’s confession. As
stated above, the credibility of the witnesses and the weight to be given to their testimony
were matters for the jury, as the trier of fact, to determine. Upon review of the record, the
jury’s decision to credit the State's evidence did not create a manifest injustice.
{¶ 56} The second assignment of error is overruled.
III. Prosecutorial Misconduct
{¶ 57} In Crawford’s third assignment of error, he argues that the prosecutor
engaged in misconduct by disparaging defense counsel’s argument in the State’s rebuttal
closing argument.
{¶ 58} In reviewing claims of prosecutorial misconduct, the test is whether the
prosecutor's remarks were improper and, if so, whether those comments prejudicially
affected the substantial rights of the defendant. State v. Jones, 90 Ohio St.3d 403, 420, 739
N.E.2d 300 (2000). “The touchstone of analysis ‘is the fairness of the trial, not the
culpability of the prosecutor.’” Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct
940, 71 L.Ed.2d 78 (1982). Where it is clear beyond a reasonable doubt that the jury would
have found the defendant guilty, even absent the alleged misconduct, the defendant has not
been prejudiced, and his conviction will not be reversed. See State v. Underwood, 2d Dist.
Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations of prosecutorial
misconduct in the context of the entire trial. State v. Stevenson, 2d Dist. Greene No.
2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct.
2464, 91 L.Ed.2d 144 (1986).
{¶ 59} During the State’s rebuttal closing argument, the prosecutor stated: 21
And the Defendant tried to beat Scott Moore up pretty bad. He used
the term “immaculate confession;” didn’t he? Immaculate confession is
cute; it’s real cute. But let’s talk about what Scott Moore told you and why
he would be in a position to know and hear what he heard and saw and came
in and told you. * * * (Emphasis added.)
{¶ 60} Crawford did not object to the prosecutor’s statement; therefore, he has
waived all but plain error. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d
433, ¶ 175. The plain error rule is to be invoked only under exceptional circumstances in
order to avoid a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 95, 372
N.E.2d 804 (1978). Plain error does not occur unless, but for the error, the outcome of the
trial clearly would have been different. Id. at 97; Crim.R. 52(B).
{¶ 61} We have cautioned that the prosecution’s wide latitude to argue the relative
strengths of its case and the relative weakness of the defense “does not extend as far as
allowing the prosecution to denigrate the role of defense counsel.” State v. Thompson, 161
Ohio App.3d 334, 2005-Ohio-2508, 830 N.E.2d 394, ¶ 33. While the prosecutor’s use of
the words “real cute” may have been derisive and unnecessary, the record reflects that, by
this isolated statement, the State was not trying to denigrate defense counsel as much as it
was attempting to refute defense counsel’s argument that Moore’s testimony was not
credible, as demonstrated by the extensive discussion of Moore’s testimony that followed.
Upon review of the entire trial, we find no plain error occurred.
{¶ 62} The third assignment of error is overruled.
IV. Conclusion 22
{¶ 63} The trial court’s judgment will be affirmed.
FAIN, J. and FRENCH, J., concur.
(Hon. Judith L. French, Tenth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Andrew T. French J. Allen Wilmes Hon. Barbara P. Gorman