State v. White

1 Ohio App. Unrep. 276
CourtOhio Court of Appeals
DecidedFebruary 8, 1990
DocketCase No. 56518
StatusPublished

This text of 1 Ohio App. Unrep. 276 (State v. White) 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. White, 1 Ohio App. Unrep. 276 (Ohio Ct. App. 1990).

Opinion

DYKE, J.

On March 2,1988 the appellant David White and co-defendant Gene Gareau were indicted by the Cuyahoga County Grand Jury in Case Number 225956 in a single count indictment charging the aggravated murder of James Bass (R.C. 2903.01) with firearm specification.

After arraignment and entry of a plea of not guilty, jury trial was held before the Honorable Donald Nugent of the Cuyahoga County Common Pleas Court on August 17, 1988.

During trial the State dismissed the charge against the co-defendant Gareau. On August 25, 1988 the jury returned its verdict finding the appellant guilty of the lesser included offense of murder without a finding of guilt on the firearm specification.

I

THE APPELLANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE LOWER COURT DENIED HIS MOTION FOR SEVERANCE AND SUBSEQUENT MOTION FOR MISTRIAL BASED THEREON.

In his first assignment of error appellant complains that the trial court erred when it denied his motion to sever his aggravated murder trial from the aggravated murder trial of Gene Gareau. Appellant and co-defendant Gene Gareau were indicted for aggravated murder, a violation of R.C. 2903.01, without specifications of aggravating circumstances.

Criminal Rule 14 provides in part:

[277]*277"If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, information or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires."

"Absent some abuse of discretion, to be demonstrated by a clear showing of prejudice and the consequent denial of a fair trial, the determination is not subject to reversal." State v. Perod (1968), 15 Ohio App. 2d 115. Thus, in order to substantiate a claim of prejudicial joinder, the appellant must affirmatively demonstrate that his rights were prejudiced and that the trial court abused its discretion.

Appellant argues that the defendants' defenses were antagonistic and thus their joinder was prejudicial. The appellant has failed to demonstrate that his rights were actually prejudiced. His allegations are unsupported given the entire record in this instance.

Appellant further contends under this first assignment of error that the state's dismissal of his co-defendant and their use of his testimony at trial created a prejudicial effect and thus a new trial is mandated. On this record, we are unable to say that appellant has demonstrated compelling prejudice sufficient enough to require a new trial. Appellant's co-defendant was subjected to a vigorous and thorough cross-examination by appellant. His credibility was thoroughly explored. His past convictions were revealed to the jury as well as his reasons and motivations for testifying. It was the jury's function to assess his reliability and credibility, and they had before it information by which such judgment could be made. Appellant argues that he was prejudiced because the state's dismissal of charges against his co-defendant bolstered the co-defendant's testimony against him. This argument lacks merit for two reasons. Firstly, it is speculation that the dismissal bolstered the state's case. It is equally possible that the jury could have been swayed by the dismissal to disbelieve the state, as the state had in opening arguments stated that the evidence would show that the co-defendant was guilty of aggravated murder. Secondly, the cross-examination of the co-defendant completely revealed his motivation for testifying, i.e., that the charges for aggravated murder were dropped in exchange for his testimony. The jury was given a detailed picture of the co-defendant's history and person, and as a result were in a position to judge his credibility. We will not disturb their apparent finding that the co-defendant was telling the truth. State v. DeHass (1967), 10 Ohio St. 2d 230.

The first assignment of error is overruled.

II

THE VERDICT AND JUDGMENT OF THE LOWER COURT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

In his second assignment of error, appellant argues that the evidence linking him to the killing was minimal and weak. Appellant states that the evidence was [278]*278insufficient as a matter of law and thus against the manifest weight.

A challenge to the sufficiency of the evidence supporting a convictionrequiresus to view evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261; State v. Martin (1983), 20 Ohio App. 3d 172. Our review of a challenge to the manifest weight of the evidence is broader. Martin, supra at 175. As the Martin court stated:

The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id. (Citations omitted.)

We further note that evaluating witness credibility is primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230.

R.C. 2903.02 defines murder and states in relevant part:

(A) No person shall purposely cause the death of another.

The evidence at trial showed that on March 4, 1988 Gene Gareau went to the King's Motel in Strongsville where his nephew, the appellant, David White had a room adjoining that of the decedent, James Bass. Present at the hotel were: Margaret Scampatilla, appellant's aunt; Kelly Higgins, appellant's girlfriend; June Letizio, decedent's girlfriend and; Patty White, appellant's sister. All of these individuals used cocaine that evening for several hours.

At approximately 9:00 p.m. JamesBass left the hotel to buy some cocaine and returned. At some point after Bass returned, Gene Gareau left the hotel for a little while and returned about 1:30 a.m. on March 5, 1988. Upon Gareau's return, he saw appellant, accompanied by Margaret Scampatilla, Kelly Higgins and Patty White, leave the hotel in a van. Appellant dropped Kelly Higgins and Patty White off at his uncle Raymond Gareau's house on Rocky River Drive. Appellant proceeded on with Margaret.

At trial, appellant and Gareau essentially agreed on the above statement of the night's events. However, their versions of the remainder of that night's events were divergent.

Appellant claimed that after he dropped of Kelly Higgins and Patty White, he drove Margaret to the residence of another aunt and uncle, Ed and Ann Medardi, and dropped her off. Appellant claimed he stayed approximately 20 minutes at their home and then left. Appellant claimed he returned to the Raymond Gareau home where he stayed the remainder of the evening.

[279]

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Related

State v. Martin
485 N.E.2d 717 (Ohio Court of Appeals, 1983)
State v. Perod
239 N.E.2d 100 (Ohio Court of Appeals, 1968)
State v. Dehass
227 N.E.2d 212 (Ohio Supreme Court, 1967)
State v. Bridgeman
381 N.E.2d 184 (Ohio Supreme Court, 1978)

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Bluebook (online)
1 Ohio App. Unrep. 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-white-ohioctapp-1990.