[Cite as State v. Hawkins, 2021-Ohio-1484.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 109452 v. :
MARCUS HAWKINS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 29, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-627538-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine E. Mullin, Assistant Prosecuting Attorney, for appellee.
Stephen L. Miles, for appellant.
SEAN C. GALLAGHER, P.J.:
Defendant-appellant Markus Hawkins appeals his convictions
following a jury trial. Upon review, we affirm. Background
On April 6, 2018, appellant was indicted for offenses related to the
death of the victim, I.P., that occurred on or about December 18, 2016. Appellant
was charged with three counts of aggravated murder, one count of murder, two
counts of felonious assault, two counts of aggravated burglary, and one count of
kidnapping.
The case proceeded to a jury trial. The testimony and evidence
showed that the victim was stabbed to death, she sustained multiple wounds, her
three children were home when the murder occurred, and appellant was implicated
as the offender.
The victim’s sister, M.C., testified that the victim and appellant had
ended a relationship a couple of months prior to her death. M.C. testified to an
incident when appellant showed up at the victim’s house and appeared to have been
spying on the victim. She also testified that the victim was talking about appellant
the night before she was killed.
The victim’s three children, Q.D. Jr., X.D., and I.D., were in the home
when their mother was killed. At the time of their mother’s death, I.D. was almost
7 years old, X.D. was 10 years old, and Q.D. Jr. was 11 years old.
Q.D. Jr. testified that on the night of his mother’s death, he and his
siblings were staying at their mother’s house. He testified that he and I.D. were
living with their mother and X.D. lived with their father, but they would stay with
either parent at times. On the night of their mother’s death, all three children were at their mother’s house and their father was working. Q.D. Jr. testified that his mom
told him to go to bed around 12:00 a.m. and that X.D. was asleep before he was. He
testified that his mother and I.D. were in the living room watching television
together. Q.D. Jr. woke up and heard his mother screaming “call 9-1-1” and heard
his mother banging on her bedroom door from inside her bedroom. He testified
that he heard his mom screaming, “Markus please stop. You don’t have to do this.”
He also heard a gargling sound, he heard a window break, and then there was
silence. He was unable to get into his mother’s room and used a smartwatch to call
his father. Q.D. Jr. testified that when his father arrived, his father used a key to get
into the house, checked on the children, and broke down the door to their mother’s
bedroom, which was locked. Q.D. Jr. saw his mom on the floor. He identified
appellant in court as “Markus.” He testified he had met appellant four or five times
before the night of his mother’s death.
X.D. testified that Q.D. Jr. woke him up and asked if he could call their
father from his watch. X.D. testified that Q.D. Jr. called their father, who was at
work, and that Q.D. Jr. seemed scared of something. When their father arrived, he
checked on the children and then broke down their mother’s bedroom door. X.D.
saw his mother lying on the floor. X.D. testified that he does not know appellant.
However, X.D. testified that he lived with his father a lot during this time and that
there were times his brother and sister stayed with their mother when he was staying
with their father. I.D. testified that on the night her mother was killed, appellant was in
her house, but her mother did not let appellant into the house. I.D. testified that she
saw appellant with her mother by her mother’s bedroom door and that her mother
looked nervous. I.D. testified that she turned to watch television and soon heard her
mother screaming to “call 9-1-1.” I.D. testified that suddenly “it just went silent.”
I.D. testified that they could not open the door to their mother’s room and that they
called their father and waited for him to arrive. She identified appellant in court as
“Markus” and as the man she saw by her mother’s room the night her mother died.
She testified she had met appellant four or five times before the night of her mother’s
death.
Q.D. Sr., who is the children’s father, testified that his relationship
with the victim ended a year or two before she was killed and that they were on good
terms. He testified that on the night the victim was killed, he was at work and
received phone calls from Q.D. Jr., who sounded worried and concerned. The first
call was around 1:30/1:45 a.m. Q.D. Sr. testified he did not go to the victim’s house
immediately because he was worried that he could lose his job. He clocked out at
2:48 a.m., after receiving a second call from Q.D. Jr. When Q.D. Sr. arrived at the
victim’s home, he entered with a key he possessed. He checked on the children and
knocked on the locked door to the victim’s bedroom, but he did not get a response.
He broke into the victim’s bedroom and found her lying face down and
unresponsive. The children were behind him yelling “mommy.” He noticed a
broken window in the room. At 3:09 a.m., 911 was called from the victim’s home. A responding
officer described a gruesome scene, observed the bedroom window was broken out,
and testified that the children were distraught. The police found a bloody knife
outside the bedroom window and observed footprints in the snow. Body camera
footage was introduced. Q.D. Sr. cooperated with the police, and his whereabouts
that night were confirmed by his employer. From their investigation at the scene,
the police determined appellant was a suspect.
A friend of appellant, R.T., testified that on the night of the victim’s
murder, he received a call from appellant and that he picked up appellant at
appellant’s mother’s house. R.T. observed appellant came from around back and
was wearing a “stringy” backpack when he got in the car. R.T. testified that when
they got to his apartment, appellant asked where the garbage can was to throw food
away, and R.T. directed appellant to a garbage can in the parking lot where the
dumpsters were located. R.T. did not see the backpack when appellant came inside
his house, and he did not see it in his car the next morning. When R.T. woke up the
next day, appellant was gone. Appellant’s brother called R.T. and asked what time
and where he had picked up appellant. R.T. also testified that a bag depicted in a
photograph at trial was not the same bag that he observed appellant wearing.
Appellant’s stepfather testified that appellant was at home the night
of the homicide and that the smoke detector was going off around 2:45 a.m. from
appellant making hot dogs. Appellant’s mother testified that on the night of the
homicide, appellant came home around 12:45 a.m., they talked for a while, and appellant cooked hot dogs. Appellant’s mother conceded on cross-examination that
after appellant’s arrest, she never called the police to say appellant was with her that
night.
Testimony was provided about the forensic investigation and DNA
analysis was done in the case. None of this evidence was linked to appellant. There
was a hair strand found on the victim’s shirt that was linked to another male, Z.B.
Z.B. testified that he was friends with the victim, that she braided his
hair at her house in the living room days before she died, and that they were still
friends at the time of her death. Z.B. had previously been convicted of domestic
violence and attempted felonious assault. He denied killing the victim. There was
no evidence as to Z.B.’s whereabouts on the night of the victim’s murder.
Q.D. Sr. testified that the victim braided people’s hair as a hobby.
Q.D. Jr. testified that he remembered Z.B. getting his hair braided in the living room
by his mom the week before his mom died. I.D. testified that Z.B. was not in the
house the night her mom died, and she confirmed appellant was the person she saw
by her mother’s room before she died.
Evidence showed that in the days before the murder, there was a
thread of messages on Facebook between appellant and the victim in which the
victim expressed to appellant, among other things, that “I’m over you,” “I’m with
someone that makes me happy,” “[w]e could never be together again or friends,” and
“I hate your guts to the core.” Cell phone records were introduced that placed appellant near the victim’s house at 12:09 a.m., near his mother’s house at 3:39 a.m.,
and near R.T.’s house at 5:37 a.m.
An undercover investigator on the case, who was posing as a friend of
a confidential informant, testified she visited appellant in jail and he held up a piece
of paper with three different questions he asked the investigator. The handwritten
questions he asked were as follows: “He told you the whole story,” “Well, I need you
for my alibi,” and “Sign language the phone number.” Video and audio devices were
used by the investigator.
Other testimony and evidence were introduced at trial. The trial court
granted a Crim.R. 29 motion as to Count 1 for aggravated murder in violation of R.C.
2903.01(A). The jury found appellant guilty of all remaining counts. The trial court
sentenced appellant to a term of life with parole eligibility after 20 years on Count 3
for aggravated murder in violation of R.C. 2903.01(B), and to three years on Count 7
for aggravated burglary in violation of R.C. 2911.11(A)(1) to be served concurrently
with Count 3. All remaining counts were subject to merger.
Appellant timely filed this appeal.
Law and Analysis
Appellant raises three assignments of error for our review. Under his
first assignment of error, appellant claims the trial court erred by not declaring a
mistrial due to prosecutorial misconduct.
“The decision to grant or deny a mistrial lies in the trial court’s sound
discretion, and the court should grant one only when justice requires and a fair trial is no longer possible.” State v. Madison, Slip Opinion No. 2020-Ohio-3735, ¶ 196,
citing State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 89.
The relevant question in reviewing a claim of prosecutorial misconduct is “‘whether
the prosecutors’ comments “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.”’” State v. Froman, Slip Opinion No.
2020-Ohio-4523, ¶ 114, quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct.
2464, 91 L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643,
94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In answering that question, the reviewing
court considers “whether the conduct was improper and, if so, whether it
prejudicially affected the defendant’s substantial rights.” Id., citing State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 243. In evaluating
prejudice, the court considers “the effect that the misconduct had ‘on the jury in the
context of the entire trial.’” Id., quoting State v. Keenan, 66 Ohio St.3d 402, 410,
613 N.E.2d 203 (1993).
In this case, appellant moved for a mistrial during the state’s rebuttal
to defense counsel’s closing argument. Appellant claims that the state committed
prosecutorial misconduct during closing arguments by commenting repeatedly on
the moral character of defense counsel. Specifically, he contends the state (1)
insinuated defense counsel committed constant efforts to thwart justice, (2) claimed
defense counsel misled the jury regarding DNA testimony, and (3) claimed appellant
should have called witnesses regarding eyewitness identification. Our review reflects that during closing argument, defense counsel
challenged the credibility of the children and the lack of DNA evidence linking
appellant to the homicide. In rebuttal, the assistant prosecutor indicated that he
wished he could cross-examine defense counsel concerning his thoughts on DNA
testimony and stated defense counsel could have called an expert on eyewitness
identification. The trial court sustained an objection. As the Supreme Court of Ohio
has recognized: “‘[T]he state may comment upon a defendant’s failure to offer
evidence in support of its case. * * * Such comments do not imply that the burden
of proof has shifted to the defense * * *.’” State v. Kirkland, 160 Ohio St.3d 389,
2020-Ohio-4079, 157 N.E.3d 716, ¶ 122, quoting State v. Collins, 89 Ohio St.3d 524,
527-528, 733 N.E.2d 1118 (2000).
Also, during closing argument, defense counsel insinuated that after
three years, the state had “nothing to corroborate their case” and was relying on the
observations of a six-year-old child to establish identification in the case. Defense
counsel questioned I.D.’s perception of what was really happening by referring to
her testimony that X.D. told her he saw a knife in appellant’s pocket and by noting
other testimony in the case that discredited this statement was made by X.D. In
rebuttal, the assistant prosecutor questioned defense counsel’s attempt to “impeach
one with something that another one may have [seen]” and stated “How many times
did you hear that they were talked to? One line. They have been oaks and he knows
it[.]” Thereupon, an objection was made that the trial court sustained. The assistant
prosecutor reiterated that the children “have been consistent.” The Supreme Court of Ohio has stated that although it is improper for a prosecutor to express his
personal belief or opinion about the credibility of a witness, a prosecutor is
permitted to respond to defense counsel’s attacks on a witness’s credibility and refer
to facts in evidence that tend to make the witness more credible. State v. Graham,
Slip Opinion No. 2020-Ohio-6700, ¶ 96-99, citing State v. Williams, 79 Ohio St.3d
1, 12, 679 N.E.2d 646 (1997); State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981,
836 N.E.2d 1173, ¶ 120.
The assistant prosecutor also stated, “Three years and it continues to
this day. On Monday we get a picture of a bag, right? Constant efforts to thwart
justice. Constant.” The assistant prosecutor was commenting on the defense
producing a picture of a different bag than the one appellant was described as
wearing on the night of the victim’s murder. Another objection was made by defense
counsel. The assistant prosecutor went on to note that the defense attorneys “are
literally two of the best we have in this county.” As the Supreme Court of Ohio has
stated, “Isolated comments by a prosecutor are not to be taken out of context and
given their most damaging meaning.” State v. Cunningham, 105 Ohio St.3d 197,
2004-Ohio-7007, 824 N.E.2d 504, ¶ 86.
Defense counsel moved for a mistrial during a sidebar discussion, and
the trial court denied the motion. When providing the jury instruction, the trial
court instructed the jury that “opening statements and closing arguments do not
constitute evidence in this case and they shall not be considered as evidence by the
jury.” In general, a prosecutor has considerable latitude in his closing
argument, and the prosecutor’s conduct during closing argument “must be
considered in light of the entire case to determine whether the accused was denied
a fair trial.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865,
¶ 149, citing State v. Maurer, 15 Ohio St.3d 239, 266, 269, 473 N.E.2d 768 (1984).
In this matter, to the extent the assistant prosecutor made any improper comments
during closing argument, we do not find, in the context of the entire trial, that these
comments prejudicially affected appellant’s substantial rights and deprived him of
a fair trial. We find the trial court did not abuse its discretion in denying the motion
for a mistrial. The first assignment of error is overruled.
Under the second assignment of error, appellant argues that the
convictions were against the manifest weight of the evidence. He challenges the lack
of DNA and fingerprint evidence or any other physical evidence to connect him to
the scene of the homicide. He also challenges the credibility of the children’s
testimony and points to contradictions in their testimony.
When reviewing a claim challenging the manifest weight of the
evidence, the court, reviewing the entire record, must weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, 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), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). When a court of appeals concludes that a verdict is against the weight of
the evidence, “the appellate court sits as the ‘thirteenth juror’ and disagrees with the
factfinder’s resolution of the conflicting testimony.” Id. “An appellate court’s
disagreement with the jurors’ weighing of the evidence does not require the special
deference accorded verdicts of acquittal.” Id. at 388. A judgment of conviction
should be reversed as against the manifest weight of the evidence only in the
exceptional case in which the evidence weighs heavily against the conviction. Id. at
387, citing Martin at 175.
“[A] lack of physical evidence, standing alone, does not render a
defendant’s conviction against the manifest weight of the evidence.” State v.
Robertson, 8th Dist. Cuyahoga No. 106279, 2018-Ohio-2934, ¶ 32, citing State v.
Payne, 8th Dist. Cuyahoga No. 105965, 2018-Ohio-1399, ¶ 30; see also State v.
Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-Ohio-1274, ¶ 37-38. In this
case, the testimony and evidence showed that the assailant was not invited into the
home, that he locked the victim in her bedroom, and that he stabbed her to death.
There was eyewitness testimony identifying appellant as the offender. Additionally,
circumstantial evidence was introduced that implicated appellant.
Two of the children heard their mother screaming to call 911. I.D. was
an eyewitness who testified that she saw appellant standing by the bedroom door
with their mother. I.D. also testified she had met appellant four or five times before,
he was not let into the house, he was saying something to her mother, and her
mother did not look happy to see him. I.D. testified she turned her head to watch television and heard her mother screaming to “call 9-1-1.” Q.D. Jr. also testified that
he had met appellant four or five times before and that he heard his mother scream
“Markus please stop. You don’t have to do this.” Both I.D. and Q.D. Jr. identified
appellant as “Markus” at trial.
While there were some discrepancies in the testimony, the children’s
accounts of what happened that night were credible. Even where discrepancies
exist, eyewitness identification testimony alone has been found sufficient to support
a conviction, so long as a reasonable juror could find the eyewitness testimony
credible. State v. Robinson, 8th Dist. Cuyahoga No. 100126, 2014-Ohio-1624, ¶ 12,
citing State v. Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 52. Also,
the excited utterance made by the victim has a high level of reliability. See State v.
Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316 (1993); see also Staff Note to Evid.R.
803(2).
The testimony and evidence also showed that the children’s father,
Q.D. Sr. was at work, he was called by Q.D. Jr., and he entered the victim’s home
with a key when he arrived. Information provided to the police led them to believe
appellant was a suspect. Z.B., whose hair was found on the victim’s shirt, testified
that the victim braided his hair days before the homicide, which was corroborated,
and that he did not murder the victim.
Although appellant’s parents testified that he was at home on the
night of the homicide, R.T. testified that he picked appellant up at his mother’s home
and that appellant had a “stringy” backpack that he did not see again. Also, cell phone records were introduced placing appellant near the scene of the crime,
followed by his mother’s home, and then near R.T.’s apartment. Further, evidence
was introduced showing that appellant and the victim had ended a relationship a
couple of months before the homicide and that Facebook messages were exchanged
between them in the days before her death.
Additionally, the undercover investigator testified that appellant
solicited her to be an alibi. “Trying to create a false alibi ‘strongly indicates
consciousness of guilt.’” State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001),
quoting State v. Campbell, 69 Ohio St.3d 38, 47, 630 N.E.2d 339 (1994).
Consciousness of guilt may also be inferred from lies told by an accused. State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 54.
After reviewing the entire record, weighing all reasonable inferences
drawn therefrom, and considering the credibility of the witnesses, we conclude that
appellant’s convictions were not against the manifest weight of the evidence.
Accordingly, we overrule the second assignment of error.
Under the third assignment of error, appellant claims his convictions
were not supported by sufficient evidence. “Sufficiency of the evidence is the legal
standard applied to determine whether the case may go to the jury or whether the
evidence is legally sufficient as a matter of law to support the jury verdict.” State v.
Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing Thompkins, 78 Ohio
St.3d at 386, 678 N.E.2d 541. In reviewing a sufficiency challenge, “[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 560 (1979).
Appellant was sentenced on Count 3 for aggravated murder in
violation of R.C. 2903.01(B), and on Count 7 for aggravated burglary in violation of
R.C. 2911.11(A)(1). The remaining counts on which he was found guilty were subject
to merger. Insofar as certain counts were subject to merger, we need not consider
the sufficiency of the evidence on a count that is subject to merger because any error
would be harmless. State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-
7685, ¶ 14, citing State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990).
Under his sufficiency challenge, appellant argues there was a lack of
physical evidence to corroborate his identity as the person who committed the
offenses. Although there was a lack of DNA and fingerprint evidence connecting
appellant to the scene of the crimes, our review reflects that the eyewitness
identification testimony and circumstantial evidence in the case were sufficient to
support the convictions.
The state presented testimony that showed appellant was not invited
into the home before the murder, I.D. observed appellant standing with her mother,
who appeared nervous, outside the bedroom door just before she was murdered,
I.D. and Q.D. Jr. heard their mother screaming to call 911, and Q.D. Jr. heard his
mother identify appellant as the assailant. The testimony and evidence further showed that the victim was locked in the bedroom, the assailant broke the bedroom
window, and Q.D. Sr. had to break the bedroom door to enter the room. Other
evidence was introduced to support the convictions, including testimony from the
police about the investigation, testimony from R.T. concerning appellant’s
whereabouts and the “stringy” backpack, cell phone records showing appellant’s
approximate location on the night of the victim’s murder, testimony from the
undercover investigator about appellant soliciting her to be an alibi, along with other
testimony and evidence in the case.
After viewing the evidence in a light most favorable to the
prosecution, we find any rational trier of fact could have found the essential
elements of the crimes proven beyond a reasonable doubt. Accordingly, we overrule
the third assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____ SEAN C. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and EMANUELLA D. GROVES, J., CONCUR