State v. Hooper, Unpublished Decision (6-1-2001)

CourtOhio Court of Appeals
DecidedJune 1, 2001
DocketC.A. Case No. 18375, T.C. Case No. 99-CR-632
StatusUnpublished

This text of State v. Hooper, Unpublished Decision (6-1-2001) (State v. Hooper, Unpublished Decision (6-1-2001)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law.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
State v. Hooper, Unpublished Decision (6-1-2001), (Ohio Ct. App. 2001).

Opinion

OPINION
Defendant, Damean Hooper, appeals from his conviction and sentence for murder with a firearm specification, carrying concealed weapons, and having weapons while under disability.

After an argument with his girlfriend, Carmen Norvell, Stephen Harris stayed out all night on February 19, 1999, and did not come home. The next day, February 20, 1999, Norvell paged Harris because she wanted to know where he had been and wished to exchange cars with him. Harris answered the page and agreed to meet Norvell at the corner of Lexington and Catalpa in Dayton.

Norvell arrived first, at around 3:00 p.m., and parked on Lexington next to the curb. Harris then pulled in behind Norvell and parked. Harris got into Norvell's vehicle and they began to talk. Shortly thereafter, Defendant pulled up alongside Norvell in a black sport utility vehicle.

Defendant is a first cousin to Norvell's children. Norvell got out of her vehicle and approached the open passenger window on Defendant's vehicle to ask what Defendant wanted. Defendant indicated that he wanted to talk to Harris. Harris then approached the passenger window of Defendant's vehicle.

An argument quickly developed between Harris and Defendant. When Norvell intervened and asked Defendant what was going on, Defendant said he had heard that Harris and his friends had beat up Defendant's uncle. Defendant threatened to harm Harris if he found out Harris was involved. Defendant then showed Norvell the butt end of a gun he had hidden underneath a coat on the center console of his vehicle. Norvell tried to calm both men down, and she told Harris to give up the argument because Defendant had a gun. Harris continued to argue with Defendant, however, and Defendant continued to threaten Harris.

Defendant backed up the SUV he was driving until the open passenger window was directly across from Harris, who by then was standing on the sidewalk. While the two men were calling each other names and issuing threats, Harris challenged Defendant by throwing up his hands and telling Defendant to go ahead and shoot him. Defendant then fired three shots at Harris from the open passenger window. Harris fell to the ground. Defendant then backed his SUV in reverse, raised himself up off the seat, and fired two more shots out the window at Harris as he lay motionless on the ground. Defendant yelled, "I told you I would kill you," and then sped away down Lexington. Norvell ran to a nearby home and called 911.

Helene Thomas, a neighborhood resident who was walking home from the store with her son at the time, heard two men arguing, heard gunshots, and then saw Harris turn away from the street as a black SUV sped off down Lexington. Another resident, Arnetta Roebuck, heard the gunshots and observed the black SUV speeding off Eastbound down Lexington. She also observed Harris lying on the ground, and an hysterical Norvell beside him.

Harris died at Grandview Hospital soon after as a result of his gunshot wounds. An autopsy revealed that one bullet had entered the middle of Harris' back, struck his spine, perforated his left lung and heart, and exited his chest. This shot caused massive internal bleeding and reduced Harris' blood pressure to zero within seconds. A second bullet entered Harris' lower back and lodged in his pelvis.

Defendant was apprehended in Las Vegas, Nevada, eight months after this shooting. Neither the gun used nor the black SUV were ever found.

Defendant was indicted on two counts of murder, one in violation of R.C. 2903.02(A) and the other in violation of R.C. 2903.02(B). Each count carried a three year firearm specification per R.C. 2941.145, and a five year specification per R.C. 2941.146. Defendant was also indicted on one count of having weapons while under disability, R.C. 2923.13(A)(3), and one count of carrying concealed weapons, R.C. 2923.12(A). Defendant subsequently waived his right to a jury trial on the weapons under disability charge only, electing to try that offense to the court in order to avoid the jury's learning of his three previous convictions.

Defendant was found guilty following a jury trial of both counts of murder, all firearm specifications, and carrying concealed weapons. The trial court separately found Defendant guilty of having weapons while under disability. At sentencing, the trial court merged the two counts of murder and sentenced Defendant to one term of fifteen years to life. The court also merged all firearm specifications into one five year term to be served consecutively. The trial court sentenced Defendant to eighteen months on the carrying concealed weapons charge, to be served concurrent with the other sentences. The trial court sentenced Defendant to one year imprisonment for having weapons while under disability, consecutive to the other sentences, for a total aggregate sentence of twenty-one years to life.

Defendant has timely appealed to this court from his conviction and sentence.

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY UNDULY RESTRICTING THE CROSS EXAMINATION OF THE ONLY EYEWITNESS IN THE CASE.

Defendant argues that the trial court committed prejudicial error in not allowing him to impeach the credibility of the State's sole eyewitness to this shooting, Carmen Norvell.

During Defendant's cross-examination of Norvell, the trial court sustained objections by the State to attempts by the defense to question Norvell about whether she had previously used a gun to shoot someone. Norvell's previous conduct in shooting someone had resulted in her conviction for negligent assault, which is a misdemeanor offense that does not involve any dishonesty or false statement. Thus, pursuant to Evid.R. 609(A), Norvell's previous misdemeanor conviction was not admissible to impeach her credibility.

We further note that while Evid.R. 608(B) does not permit specific instances of the conduct of a witness for the purpose of attacking the witness' character for truthfulness to be proved by extrinsic evidence, such conduct may be inquired into on cross-examination of the witness if, in the discretion of the court, the conduct is clearly probative of truthfulness.

In this case the trial court concluded, and we agree, that Norvell's previous conduct in shooting someone, though probative of a propensity for violence, is not probative of her character for truthfulness. Thus, the requirements of Evid.R. 608(B) have not been satisfied. The trial court did allow the defense to question Norvell about how it is that she is sufficiently familiar with guns to describe the gun used in this shooting as a nine millimeter or three eighty caliber semi-automatic. No error, much less an abuse of discretion by the trial court, has been demonstrated.

The defense also asked Norvell during cross-examination if she had ever been put in the hospital at the hands of the deceased, Stephen Harris. Norvell answered "no." In order to impeach Norvell's credibility on that point, the defense asked Norvell a question which implied that there were hospital records that would contradict her on that point. The State objected, and the trial court sustained the objection.

While Defendant was entitled to impeach Norvell by showing bias, prejudice or motive to misrepresent, per Evid.R. 616, Defendant was confined in his cross-examination to Norvell's denial of the fact that this question propounded.

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Cite This Page — Counsel Stack

Bluebook (online)
State v. Hooper, Unpublished Decision (6-1-2001), Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hooper-unpublished-decision-6-1-2001-ohioctapp-2001.