[Cite as State v. Williamson, 2011-Ohio-4095.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95732
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
CORTEZ WILLIAMSON DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-534287
BEFORE: Blackmon, J., Kilbane, A.J., and Cooney, J.
RELEASED AND JOURNALIZED: August 18, 2011 2
ATTORNEY FOR APPELLANT
Thomas A. Rein Leader Building, Suite 940 526 Superior Avenue Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
By: John Hanley Blaise D. Thomas Asst. County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶ 1} Appellant Cortez Williamson (“Williamson”) appeals his conviction
for murder and assigns the following four errors for our review:
“I. The trial court erred in denying appellant’s motion for acquittal as to the charges when the state failed to present sufficient evidence against appellant.”
“II. Appellant’s convictions are against the manifest weight of the evidence.”
“III. The trial court erred when it overruled a motion to suppress statement where appellant exercised his right to counsel while being interrogated by homicide detectives 3 but was continued to be interrogated and the statements used against him in violation of Section 10, Article I, of the Ohio Constitution and Fifth, Sixth, and Fourteenth Amendments.”
“IV. The trial court erred in forcing appellant to choose between the jury instruction of self-defense and the lesser-included offense of voluntary manslaughter in violation of Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth Amendments.”
{¶ 2} Having reviewed the record and pertinent law, we affirm
Williamson’s conviction. The apposite facts follow.
{¶ 3} The Cuyahoga County Grand Jury indicted Williamson for one
count each of murder, discharge of a firearm on or near a prohibited premises,
tampering with evidence, and carrying a concealed weapon. He was also
indicted for having a weapon while under disability to which he pled
separately.
{¶ 4} Prior to trial, Williamson filed a motion to suppress his statement
to police, contending the police violated his right to an attorney by continuing
to question him after he requested an attorney. The trial court denied the
motion to suppress, and the matter proceeded to a jury trial.
{¶ 5} At trial, Williamson did not dispute that he shot the victim. He
contended that he either acted in self-defense or as a result of sudden passion
to support a voluntary manslaughter charge.
{¶ 6} On January 27, 2009, at around 2:30 p.m., Dexter McWorther
(“Dexter”) was shot and killed outside of Joe D’s Third World Lounge located 4 at East 135th Street and Miles Avenue. Prior to closing time, there was a
disturbance near the entrance of the bar. Williamson had pulled off
Antoinette Jefferson’s (“Antoinette”) hair extension. Enraged, Antoinette
punched Williamson several times in the face; Williamson responded by
punching her in the face. A crowd gathered to separate the two. Antoinette
was eventually carried away by a male friend.
{¶ 7} Jerome Fuller (“Jerome”), Sheldon Starling (“Sheldon”), and
Dexter were leaving the bar at the time of the altercation. As Jerome walked
past Williamson, he began calling Jerome names. Jerome had never met
Williamson. Williamson’s group then began yelling at both Jerome and
Sheldon. Sheldon attempted to shake Williamson’s hand to diffuse the
situation, but Williamson slapped it away. Dexter then approached to inquire
what was going on.
{¶ 8} Williamson swung at Sheldon, and he responded by pushing
him back. Williamson stumbled back and again tried to swing at Sheldon, who
again pushed him back. Sheldon stated that because of the way Williamson
was stumbling, he appeared to be intoxicated. The second time Sheldon
pushed him, Williamson smiled at him and pulled a pistol out of his
waistband. Everyone ran. At least four shots were fired. As Sheldon was
running, Dexter yelled to him that he was hit. Sheldon pulled Dexter behind
a car and waited with him for an ambulance. Dexter later died at the 5 hospital. According to Jerome and Sheldon, no one else but Williamson had a
gun. They testified that no one had threatened Williamson and that there
was no reason for him to start shooting.
{¶ 9} Williamson testified at trial. He admitted that he brought his
gun to the bar and that he fired the shots that killed Dexter. He admitted
being intoxicated that night and that his recollection of events was “fuzzy.”
He claimed he fired his gun because the crowd was “running up on me” and he
was “scared” and “snapped.” He also admitted he fled the scene and threw
his gun into Lake Erie. He was arrested a week later when police discovered
him hiding in a hotel.
{¶ 10} The jury found Williamson guilty of murder, discharging a firearm
near a prohibited premises, tampering with evidence, and carrying a concealed
weapon, along with the accompanying firearm specifications. The trial court
sentenced him to a total of 15 years to life in prison.
Insufficient Evidence
{¶ 11} In his first assigned error, Williamson argues there was
insufficient evidence to support his conviction for murder.
{¶ 12} Crim.R. 29 mandates that the trial court issue a judgment of
acquittal where the state’s evidence is insufficient to sustain a conviction for
the offense. Crim.R. 29(A) and sufficiency of evidence review require the same 6
analysis. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d
386.
{¶ 13} In analyzing the sufficiency issue, the reviewing court must view
the evidence “in the light most favorable to the prosecution” and ask whether
“any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus; State v. Carter, 72 Ohio St.3d
545, 1995-Ohio-104, 651 N.E.2d 965.
{¶ 14} Pursuant to R.C. 2903.02(A), a conviction for murder requires
the state prove that Williamson “purposely caused the death of another.”
Williamson argues that he did not purposely kill Dexter but acted out in
self-defense. The affirmative defense of self-defense has three elements: (1)
the defendant was not at fault in creating the violent situation, (2) the
defendant had a bona fide belief that he or she was in imminent danger of
death or great bodily harm and that his or her only means of escape was the
use of force, and (3) that the defendant did not violate any duty to retreat or
avoid the danger. State v. Williford (1990), 49 Ohio St.3d 247, 249, 551
N.E.2d 1279.
{¶ 15} Williamson claims the evidence shows that he was surrounded by
numerous males who were threatening him; therefore, he acted in 7 self-defense. Although Williamson and his brother testified that the men
were threatening him, the state’s witnesses testified that no one was
threatening Williamson. In order to assert the defense of self-defense,
Williamson had to prove that he was not the aggressor. The state’s evidence
showed that the group was attempting to calm Williamson who was upset due
to the altercation he had with Antoinette. In fact, both Sheldon and Jerome
testified that Williamson was acting aggressively toward them when they
attempted to calm him. According to Sheldon, Williamson attempted to
punch him several times. Therefore, the evidence supported the state’s
contention that Williamson was the aggressor. Additionally, no one else had a
weapon besides Williamson; therefore, there was no evidence he was in danger
of imminent death or great bodily harm that would justify the use of the gun.
{¶ 16} The evidence also does not support his claim that his actions
constituted voluntary manslaughter. The elements of voluntary
manslaughter are: “No person, while under the influence of sudden passion or
in a sudden fit of rage, either of which is brought on by serious provocation
occasioned by the victim that is reasonably sufficient to incite the person into
using deadly force, shall knowingly cause the death of another * * *.” R.C.
2903.03(A).
{¶ 17} Williamson argues that he reacted because he was angry due to
being pushed and hit. The only person who had struck Williamson was 8 Antoinette who punched Williamson several times because he pulled off her
hair extension. The evidence showed Antoinette was 5'2" and 115 pounds
and that Williamson was 6'6" and 250 pounds. Thus, although Antoinette
punched him several times, the size difference between them does not support
his contention that he was provoked to the extent that the use of deadly force
was reasonable.
{¶ 18} There was evidence that Sheldon pushed Williamson several times
but it was due to Williamson’s attempting to punch him. These
circumstances would not be enough for a reasonable person to become enraged
to the point of using deadly force. There was no evidence that anyone besides
Williamson had a weapon. Although Williamson contends that the murder
weapon was not recovered, he admitted at trial that he threw the gun into
Lake Erie.
{¶ 19} Although Williamson may not have intended to kill Dexter, courts
have previously held that evidence that the defendant shot a gun into a crowd
of people was sufficient to establish the purposefulness element of R.C.
2903.02(A). State v. Carter (1996), 115 Ohio App.3d 770, 686 N.E.2d 329;
State v. Smith (1993), 89 Ohio App.3d 497, 624 N.E.2d 1114; State v. Cottrell,
Cuyahoga App. No. 81356, 2003-Ohio-5806. Accordingly, Williamson’s first
assigned error is overruled.
Manifest Weight of the Evidence 9 {¶ 20} In his second assigned error, Williamson argues his conviction for
murder was against the manifest weight of the evidence.
{¶ 21} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1264, the Ohio Supreme Court addressed the standard of review for a
criminal manifest weight challenge, as follows:
“The criminal manifest-weight-of-the-evidence standard
was explained in State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541. In Thompkins, the court
distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these
concepts differ both qualitatively and quantitatively. Id. at
386, 678 N.E.2d 541. The court held that sufficiency of the
evidence is a test of adequacy as to whether the evidence is
legally sufficient to support a verdict as a matter of law,
but weight of the evidence addresses the evidence’s effect
of inducing belief. Id. at 386-387, 678 N.E.2d 541. In other
words, a reviewing court asks whose evidence is more
persuasive — the state’s or the defendant’s? We went on to
hold that although there may be sufficient evidence to
support a judgment, it could nevertheless be against the
manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. 10 ‘When a court of appeals reverses a judgment of a trial
court on the basis that the verdict is against the weight of
the evidence, the appellate court sits as a “thirteenth
juror” and disagrees with the factfinder’s resolution of the
conflicting testimony.’ Id. at 387, 678 N.E.2d 541, citing
Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
L.Ed.2d 652.”
{¶ 22} Williamson contends that the jury simply felt compelled to find
him guilty because he shot the gun and no other defendants were on trial. As
we stated above, evidence was presented showing that Williamson possessed
the requisite intent to commit murder by firing the gun several times into the
crowd of people. Accordingly, Williamson’s second assigned error is
overruled.
Motion to Suppress
{¶ 23} In his third assigned error, Williamson argues that the statements
he made to police should have been suppressed because detectives continued
to question him in spite of his request for an attorney.
{¶ 24} At a hearing on a motion to suppress, the trial court functions as
the trier of fact. Accordingly, the trial court is in the best position to weigh
the evidence by resolving factual questions and evaluating the credibility of
witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. On 11 review, an appellate court must accept the trial court’s findings of fact if those
findings are supported by competent, credible evidence. State v. Retherford
(1994), 93 Ohio App.3d 586, 592, 639 N.E.2d 498. After accepting such
factual findings as true, the reviewing court must then independently
determine, as a matter of law, whether the applicable legal standard has been
met. Id.
{¶ 25} The detectives’ questioning of Williamson was videotaped; the
video was played for the trial court at the suppression hearing. Our review of
the video indicates that the detectives recited Williamson’s Miranda rights
prior to questioning him. Williamson stated that he understood the rights as
explained to him. The detectives then prompted him to tell them what
happened. For approximately eight minutes, Williamson does not say
anything. The following colloquy then occurred:
{¶ 26} Williamson: “I’m going to need a lawyer ain’t I?”
{¶ 27} Detective: “Pardon?”
{¶ 28} Williamson: “I’m going to need a lawyer.”
{¶ 29} Detective: “You’re going to need a lawyer?”
{¶ 30} Williamson: “Am I?”
{¶ 31} The detectives then told Williamson that he had a right to an
attorney to be with him, but that the detectives could not give him legal
advice. Williamson then inquired if he would be able to talk with a lawyer 12 that day. The detective explained that because it was the weekend, he could
not get a lawyer until Monday and would have to spend the weekend in jail
unless he privately retained a lawyer. The detective resumed questioning
and Williamson, after several more minutes, admitted firing the gun.
{¶ 32} The trial court concluded that Williamson’s inquiry regarding his
right to an attorney did not amount to an unequivocal request for an attorney.
We agree. “A request for counsel must be clear and unequivocal.” Davis v.
United States (1994), 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362. “If
an accused makes a statement concerning the right to counsel ‘that is
ambiguous or equivocal’ or makes no statement, the police are not required to
end the interrogation or ask questions to clarify whether the accused wants to
invoke his or her Miranda rights.” Berghuis v. Thompkins (2010), U.S.
, 130 S.Ct. 2250, 2259-60, 176 L.Ed.2d 1098, citing Davis at 459.
Whether a suspect invoked his or her right to counsel is a question that must
be examined “not in isolation but in context.” State v. Murphy, 91 Ohio St.3d
516, 520-21, 2001-Ohio-112, 747 N.E.2d 765.
{¶ 33} Here, a review of the video shows that Williamson was equivocal
in discussing his need for an attorney. He never said he wanted an attorney.
Instead, he questioned whether he needed an attorney. “[A] reference to an
attorney that is ambiguous or equivocal in that a reasonable officer in light of
the circumstances would have understood only that the suspect might be 13 invoking the right to counsel * * * does not require the cessation of
questioning.” Davis at 459. Williamson’s statement, “I’m going to need a
lawyer, ain’t I?” and inquiry regarding when a lawyer could be available, did
not constitute unambiguous requests for an attorney. He might have been
thinking about requesting an attorney, but he did not do so.
{¶ 34} In fact, the U.S. Supreme Court in Davis found the similar
statement, “Maybe I should talk to a lawyer,” was not an unambiguous
request for counsel. See, also, State v. Zuffino, 9th Dist. No. 21514,
2003-Ohio-7202 (statements, “I think I need a lawyer,” and “Maybe I should
talk to a lawyer,” and “I think that I would like an attorney” were deemed too
ambiguous to constitute requests for an attorney); State v. Knight, 2d Dist. No.
04-CA-35, 2008-Ohio-4926 (defendant’s inquiry “Well, can I talk to my lawyer
then if there is something wrong like that? Do I need one or something?”
held to be equivocal requests for counsel); State v. Simmon, Cuyahoga App.
No. 86499, 2006-Ohio-4751 (defendant was only hypothesizing when he said
he would speak to police “with a lawyer and all that stuff, too,” and repeated
upon further questioning, “I’m going to have to get a lawyer and all that stuff
there, I mean,” and failed to say yes when police asked “Oh, you * * * want to
get a lawyer?”); State v. Neal, 2d Dist. Nos. 2000-CA-16 and 2000-CA-18,
2002-Ohio-6786 (statement, “‘I probably ought to talk to an attorney’ is similar
to ‘I think I need a lawyer’ which Supreme Court in Davis, found ambiguous”); 14
State v. Curtis, 10th Dist. No. 05AP-795, 2006-Ohio-4230 (defendant’s
question, “Can I have a public defender?” deemed ambiguous because he failed
to request an attorney after detective explained he could have a public
defender if he could not afford to retain an attorney.) Accordingly,
Williamson’s third assigned error is overruled.
Jury Instruction
{¶ 35} In his fourth assigned error, Williamson argues the trial court
erred by refusing to instruct the jury on self-defense.
{¶ 36} When reviewing a trial court’s jury instructions, the proper
standard of review for an appellate court is whether the trial court’s refusal to
give a requested instruction or giving an instruction constituted an abuse of
discretion under the facts and circumstances of the case. See State v. Wolons
(1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443. The trial court did not abuse its
discretion by ordering defense counsel to choose between an instruction on
voluntary manslaughter and self-defense. This court has previously held that
an instruction on voluntary manslaughter and self-defense is not possible
because the two legal theories are incompatible. State v. Loyed, Cuyahoga
App. No. 83075, 2004-Ohio-3961; State v. Brown, Cuyahoga App. No. 93007,
2010-Ohio-2460. As the court in State v. Harris (1998), 129 Ohio App.3d 527,
534-535, 718 N.E.2d 488, explained, voluntary manslaughter requires that the 15 defendant be under the influence of sudden passion or a fit of rage, while
self-defense requires the defendant to be in fear for his own personal safety.
{¶ 37} Although Williamson claims a self-defense instruction was
appropriate because he feared for his own personal safety, this fear does not
constitute sudden passion or fit of rage as contemplated by the voluntary
manslaughter statute. State v. Mack (1998), 82 Ohio St.3d 198, 201, 694
N.E.2d 1328 (upholding refusal to grant an aggravated assault instruction
when defendant testified that he acted out of self-defense). See State v.
Tantarelli (May 23, 1995), 10th Dist. No. 94APA11-1618 (testimony that
defendant was dazed, confused, and scared was insufficient to show sudden
passion or fit of rage); State v. Thompson (Feb. 23, 1993), 10th Dist. No.
92AP-1124 (“self defense on the one hand requires a showing of fear, whereas
voluntary manslaughter requires rage.”) Because counsel chose to request a
voluntary manslaughter instruction, which required a showing of rage, the
trial court properly denied his request to also give a self-defense instruction.
Accordingly, Williamson’s fourth assigned error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. The defendant’s conviction having been affirmed, 16 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.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, A.J., and COLLEEN CONWAY COONEY, J., CONCUR