IN THE SUPREME COURT OHIO. Appellee, On Appeal from the Hamilton County Court of Appeals, vs. First Appellate District

Transcription

1 IN THE SUPREME COURT OHIO STATE OF OHIO, 09-9 p Appellee, On Appeal from the Hamilton County Court of Appeals, vs. First Appellate District AURIA MORALES, Court of Appeals Case Nos. C Appellant.. C MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT AURIA MORALES Robert R. Hastings, Jr. ( ) Law Office of the Hamilton County Public Defender 230 East Ninth Street, Suite 2000 Cincinnati, Ohio (513) Fax No. (513) bhastings@cros.hamilton-co.org COUNSEL FOR APPELLANT AURIA MORALES Joseph T. Deters ( ) Prosecuting Attorney Hamilton County Prosecutor's Office 801 Plum Street, Room 225 Cincinnati, Ohio (513) Fax No. (513) joe.deters@hcpros.org COUNSEL FOR APPELLEE, STATE OF OHIO AN 0 i20o,q 'I CR^ FJ^' CUUR7' L SUPRFM CQURT OF HI

2 TABLE OF CONTENTS Paee EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION 1 STATEMENT OF THE CASE AND FACTS 1 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW 2 Proposition of Law I: Where the evidence does not establish that the declarant's statement was made while the declarant believed that his death was imminent, the statements concerning the cause of circumstances of what the declarant believed to be his impending death, are inadmissible as evidence. Pronosition of Law II: Where the hearsay statements of the Appellant's mother were improperly admitted into evidence under a false representation, the admission of the statements caused prejudice to the Appellant and denied her right to a fair trial. Proposition of Law III: Where the conduct of the prosecutor deprives the Appellant of a fair trial, the Appellant is denied due process Proposition of Law IV: Where the elements of the offense have not been proven by proof beyond A reasonable doubt, a conviction based upon insufficient evidence violates The Due Process provisions of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution. 12 CONCLUSION 14 PROOF OF SERVICE 15

3 APPENDIX ADpendix Page Decision of the Hamilton County Court of Appeals (April 17, 2009) 1 Judgment Entry of the Hamilton County Court of Appeals (April 17, 2009) 16 ri

4 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION This case presents two issues regarding the application of Ohio case law and the Ohio Rules of Evidence to the admission of a purported "dying declaration" and to hearsay statements made to the police by Appellant's mother, that were offered not for the truth of the statements but to provide context to understanding the police investigation, but in fact were offered to prove that the Appellant and her mother had lied to the police. The admission of these statements denied the Appellant her right to confrontation as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution. Additionally, this case presents the issue of whether the Appellant was denied her Due Process right to a fair trial under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution, due to the prosecutorial misconduct that occurred during closing argument when the prosecutor repeatedly argued theories that had no basis in the evidence, argued that defense counsel would agree with the prosecutor that the Appellant, who did not testify, made everything up, and called the Appellant's behavior psychotic. STATEMENT OF THE CASE AND FACTS A. Procedural Posture The Appellant, Auria Morales, was arrested and charged with Murder on April 1, On April 9, 2007 the Hamilton County Grand Jury returned an indictment against the Appellant charging her with Murder, Section (A) O.R.C. with Specifications in Count One; Murder, Section (B) O.R.C. with Specifications in Count Two; and Conspiracy Section (A)(2) O.R.C. with Specification in Count Three. 1

5 Several pre-trial motions were filed including a Motion in Limine regarding a statement made by Michael Brantley during a 911 call, prior to his death. On September 11, 2007 a jury trial commenced on the charges set forth above. Nine days later, after seven days of trial, the jury returned verdicts of not guilty as to the Murder charge in Count One of the indictment; guilty of Murder in Count Two of the indictment but not guilty of any firearms specifications; and guilty of Conspiracy in Count Three of the indictment but not guilty of any firearms specifications. In their decision rendered on April 17, 2009, the Court of Appeals reversed and discharged the Appellant on the Conspiracy conviction. The trial court imposed a sentence of 15 years to life on Count Two and a 10 year sentence on Count Three with an order that the sentences run concurrently. A timely notice of appeal was filed to the Court of Appeals. On January 8, 2008 a Motion for New Trial was filed in the trial court. On March 14, 2008 the Motion for New Trial was denied. A second Notice of Appeal was filed as to that ruling. The Court of Appeals consolidated the two appeals. B. Factual Posture THE BACKGROi1ND Morales resided with her mother at 6142 Joyce Lane in Cincinnati, Ohio. For some period of time before March 27, 2007, Michael Brantley, Morales' boyfriend had been sleeping at Morales' apartment. Starting about 6:00 p.m. on March 26, 2007 Brantley had been with his friend Christopher Banks. Brantley had been drinking vodka and smoking marijuana before he returned to Joyce Lane at about 10:30 p.m. Morales became upset with Brantley because he did not bring any food home, only alcohol. Brantley and she drank some vodka and then had sex before they fell asleep. Morales woke up and started looking through Brantley's text messages. 2

6 When she came upon an explicit text message from the mother of Brantley's child, Morales became very upset. Morales threw the phone and a pillow at Brantley and told him to get out. The argument continued until Morales' mother, Michelle Clark, overheard the argument and came to the bedroom where she saw Brantley choking her daughter. The argument continued with Clark trying to calm down both Morales and Brantley. Even as Brantley began to gather his property the argument continued. Finally at 3:03 a.m. on March 27, 2007 Clark called 911. The police never responded to Clark's 911 call. Connie Sisk, a neighbor, who lived at 6131 Joyce Lane, heard the argument. When Sisk looked outside she saw a woman place laundry in the rear seat of a vehicle and then saw the vehicle leave the area. Within five to ten minutes Sisk heard gunshots. She described the shooter as being 5'6" to 5'7" tall; slender to medium build; and wearing a black top, white T- shirt and dark pants. Then Sisk saw the shooter and another person leave the area. Another neighbor, Carla Goins, said she hear firecracker noises which woke her up. When she looked outside she saw two persons get into a car parked in a parking lot although she could not see anyone's face. At 3:24 a.m. the Cincinnati Police Department received a second 911 call from Brantley at the same address as the earlier 911 call. When Police Officer Nathan LeRay arrived at 6142 Joyce Lane at 3:25 a.m. he observed an individual, later identified as Brantley, sitting on the porch in front of 6140 Joyce Lane. Brantley was bleeding profusely from the area underneath his legs. Once Officer LeRay cleared the scene he called for medical assistance. Brantley was transported to University Hospital where he was pronounced dead at 4:14 a.m. on March 27,

7 Dr. Michael Kenny, a forensic pathologist employed by the Hamilton County Coroner's Office, performed the autopsy on Brantley. Dr. Kenny testified that Brantley had two wounds - a gunshot wound to his left leg above the knee that went from the outside of the left leg through the leg and exited the left inside of the left leg. The second wound was to the right leg just above the knee on the inside portion of the right leg. A bullet fragment was recovered from inside Brantley's leg. The cause of death was determined to be from exsanguination from wound to the right leg. Criminalist Kimberly Pendarvis responded to 6142 Joyce Lane at 7:39 a.m. on March 27, 2007, where she observed placards that had been placed at various locations where evidence had been recovered. There were two areas of interest at the scene. One was located in the courtyard were eleven shell casings were recovered. The other was the area in front of the doors to 6140 and 6142 Joyce Lane. The distance between the two areas of interest was slightly over fifty one feet. Several bullet fragments were recovered from the area near the bottom of the front door for 6142 Joyce Lane. Inside 6142 Joyce Lane blood stains were present on the stairway to the second floor, in the kitchen and in the living room on a chair and on the carpet in front of the chair. The photograph of Brantley's property in front of 6140 Joyce Lane, including his television which was sitting on the porch, shows that the glass in the door was broken above the television set but that the television set was undamaged. THE INVESTIGATION Shortly after the shooting Office LeRay encountered Clark and placed her in his police cruiser. Captain Jeffrey Butler, Jr., the night commander, also talked to Clark at the scene. Based upon their conversations they went to Patrice Caldwell's residence located on California Avenue. Morales had been taken to Caldwell's residence by Clark after the shooting. Both 4

8 Morales and Clark were transported by the police to the Criminal Investigation Section on Broadway. Officer Keith Fangman transported Morales to CIS. Once they arrived, Morales started to explain what had happened. Fangman took notes of what Morales said but he did not ask questions as that would have been a violation of procedure and protocol to interview someone he was transporting. Clark was then interviewed by Detective Jennifer Luke from the Homicide Division. Next Luke interviewed Morales. Following the interviews both Morales and Clark were hugging each other and Morales told Clark, "No, I never saw them at the store. I never saw them at the Shell station. I never saw them anywhere, I swear". Based upon that statement, Detectives Gehring and Gormley went to the Shell station to investigate. Christopher Sisk, the night shift attendant at the Shell station testified that he had seen Morales standing outside by a pump talking to about four guys. He said the guys had been on the lot for a good half hour before Morales arrived and that one of them had purchased items two times. Sisk was not certain whether Morales approached the guys or whether she was approached by them. He did see Morales talking to one person next to a car. He was leaning on the hood of the car and Morales leaned on him for a second and then broke away. Next he saw Morales talking on a phone. The person that Morales had been talking to was 5'9" to 6'0" tall; was 20 to 25 years old and had gold teeth. Morales got in a car and drove away. The four guys entered another car and left in the same direction as Morales. A third car that Sisk described as a Lexus left next and went in the same direction as the first two cars. Sisk verified that there was no surveillance video of the area where he saw Morales and the others. When Clark called Luke she left a message to call her. Luke returned the call and confronted Clark about the fact that Morales had been at the Shell station. Shortly after that 5

9 conversation, John Hauck, Morales and Clark's civil attorney, contacted Luke regarding Luke's request to talk with Morales again. On April 1, 2007, Morales was interviewed again by Luke at CIS. At the conclusion of that interview Morales was arrested despite the fact that Luke had not reviewed any of the phone records at that time. Luke also interviewed Dante Harris and Ladon Smith regarding the homicide but neither was arrested or charged with any offense. Neither Harris nor Smith testified at trial. Neither Morales nor Clark testified at trial. THE TELEPHONE RECORDS The authenticity of the phone records of Ladon Smith, Michelle Clark (land line), Auria Morales (cell phone), Dante Harris, DeShawn Grant, Auria Morales (text messages), Michael Brantley, and Patrice Caldwell were all admitted as stipulated exhibits. Of all the calls, the one that was emphasized was the one at 2:16:05:5 hours on March 27, 2007 from Clark's land line to Harris' cell phone. The prosecutor asked Luke who Morales was talking to at 2:16 a.m. Luke replied Dante Harris. During cross examination Luke modified her answer about the call be connected by stating that by connection she did not necessarily mean that they spoke. Attached to the Motion for New Trial was the affidavit of Gary Foltz, from the Cincinnati Bell security department, which stated that the call lasted between 8.4 and 9.0 seconds; that the records indicated that the call was not answered; and that the call was forwarded to Cincinnati Bell's voice mail system. Luke admitted that Morales arrest was based upon her opinion that Morales had lied to her. It was Luke's testimony that if Morales told the truth she would not be charged. Luke told Morales if she continued to lie that she (Luke) was going to play her game against Morales instead of with her. 6

10 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW Proposition of Law No. I: Where the evidence does not establish that the declarant's statement was made while the declarant believed that his death was imminent, the statements concerning the cause or circumstances of what the declarant believed to be his impending death, are inadmissible as evidence. The declarant, Michael Brantley, made a call to 911 after he was shot. During that call he told the operator that his girlfriend had had him shot. Ohio Rule of Evidence 804 (B)(2) sets forth what constitutes a dying declaration. That section states that there is an exception to the hearsay rule where the declarant, while believing that his death was imminent, makes a statement concerning the cause or circumstances of what the declarant believed to be his impending death. Brantley was shot in the left leg and the bullet travelled through that leg and into his right leg. He then went into the house at 6142 Joyce Lane; went up the stairs to the second floor; returned to the first floor and went into the kitchen; sat in the chair in the living room and called 911; and then went back outside and sat on the porch as he waited for the police to arrive. Brantley's voice is very calm on the 911 call and it is clear that he is not excited. He reported that he had been shot in the leg. There was no statement about I am dying or get here fast so I do not die. In short, Brantley exhibited no belief that he though his death was imminent. In his dissenting opinion, Judge Painter found that the 911 call was not properly admitted as a dying declaration or an excited utterance. The dissent contains a complete analysis of the law regarding dying declarations and excited utterances. After a review of the law and the facts 7

11 Judge Painter states that the state did not show that Brantley had been fully aware that his recovery was impossible or that there was no hope or expectation of recovery. It was Judge Painter's opinion that the facts in this case do not come close to meeting the stringent requirement necessary to demonstrate that Brantley believed his death was imminent. Using the four prong test for the admission of excited utterances set forth in State v. Tavlor (1993) 66 Ohio St.3d 295, 612 N.E.2d 316, Judge Painter found that Brantley's statement did not meet the fourth prong of the test that Brantley had an opportunity to observe personally the matters asserted in his statement or declaration. There was no evidence in the record to support the conclusion that Brantley had personal knowledge that the Appellant had sent gunmen to shoot him. Brantley made no identification of the shooter or shooters. There was no showing that Brantley had observed the Appellant had sent anyone to shoot him. The prejudice caused by admitting Brantley's statement is clear in light of the facts that no one testified as to the Appellant telling anyone to shot Brantley; no one identified the shooter; no one identified the men at the Shell station; and it permitted the prosecutor to argue about unsubstantiated theories during his closing argument. Appellant submits that her right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution were denied by admitting this impermissible hearsay evidence. 8

12 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW Proposition of Law II: Where the hearsay statements of the Appellant's mother were improperly admitted into evidence under a false representation, the admission of the statements caused prejudice to the Appellant that denied her the right to a fair trial. Michelle Clark was subpoenaed by the State and the Appellant to appear as a witness. The prosecutor and defense counsel both informed the trial court that they did not intend to call Clark as a witness. Clark did not testify. Under the guise of offering the numerous statements of Clark to (1) demonstrate how her statements assisted the police and (2) to demonstrate that Clark's statements were a critical part of the police's actions after talking with Clark, the trial court permitted the introduction of all of Clark's statements to Officer LeRay, Captain Butler, Officer Clydia Dudley; Officer Jennifer Luke and DeShawn Grant. The prosecution informed the trial court that because the statements were lies that they were not offering them for the truth but merely to establish that they were said. A review of the Ohio Rules of Evidence discloses no exception to the hearsay rules permitting the introduction of hearsay statements for the purpose stated by the prosecution. A continuing objection was made by defense counsel regarding all Clark's hearsay statements. The true reason that the prosecution wanted Clark's statements admitted into evidence was revealed in closing arguments when the prosecutor argued, "How ridiculous is this to think that she is not at fault at all when mom lies the way she did?'. The prosecution used the hearsay statements to show that Morales lied. Just as Luke had arrested Morales for lying, the prosecution asked the jury to convict her because she lied. The prosecutor went on to say that Clark lied to protect her daughter and the shooters. The bottom line is that the prosecutor introduced hearsay evidence of a declarant who was available to testify. If Clark was called as a 9

13 State's witness the prosecutor could have asked the Court to declare her a hosdle witness if Clark changed her statements. Instead, the trial court was mislead by the prosecutor and the Defendant was prejudiced to such a degree that she was denied a fair trial under the Due Process Clause of Fifth and the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution as well as a violation of her right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution. The majority for the Court of Appeals found that the testimony of officers LeRay and Butler was admissible but that the trial court erred in admitting the testimony of officers Dudley and Luke as well as the testimony of witness Grant. Despite this finding the majority found that the admission was harmless error. Instead of holding the state to its burden to present proof beyond a doubt as to the elements of the crime, the majority found the inadmissible evidence to be harmless, and permitted a jury verdict stand that was obtained on inadmissible evidence in a case that was based solely on circumstantial evidence. Proposition of Law III: ARGUMENT IN SUPPORT OF PROPOSITION OF LAW Where the conduct of the prosecutor deprives the Appellant of a fair trial, the Appellant is denied due process. A review of the prosecuting attorneys closing arguments highlight the assumptions and speculation that the prosecution wanted the jury to consider instead of arguing what the evidence had shown. The following statements constitute prosecutorial misconduct which compromised the fairness of Appellant's trial. That Brantley heard Morales talking to Harris on telephone at 2:16 a.m. when there was 10

14 no evidence to substantiate such a claim. That Brantley freaked out when he heard Morales on the telephone with DeShawn Grant when there was no evidence that Brantley even overheard the telephone call. That Morales had made arrangements to met Harris at the Shell station when there was no evidence of any conversation between Morales and Harris. That Harris is the same person that matches the description of the shooter when the evidence was that Harris was taller than the description of the shooter given by the neighbor. That Morales is trying to call Clark from the Shell station to tell her to get out of the house, something bad is about to happen when there is no evidence to substantiate any such call. That purple car that Carla Goins saw was the same purple car that Christopher Sisk saw when none of the witnesses testified to the identification of a specific purple car. That Brantley knew that his girlfriend had someone come and shoot me because Brantley had heard Morales phone conversations when the record does not reflect that Brantley had observed Morales have anyone come to shoot him or that he could identify who shot him. Called Morales psychotic behaving when this was no more than character assassination by the prosecutor. That Morales knew Harris hung at Shell station when no such evidence was introduced. That two guys were hanging at Shell for quite a while like they were waiting on somebody when the only evidence about the men at the Shell station was that they had been there approximately 30 minutes and that one of the men had made two purchases at different times. That Harris had to know about the relationship Morales had with Brantley when there was no evidence of Harris' knowledge as he did not testify despite the fact that Detective Luke had interviewed Harris. If Harris knew about the Morales-Brantley relationship he was mad, getting ready to move in on Brantley's territory when there was no evidence that Morales and Harris had ever had any kind of relationship. That Morales made the whole story up and that Mr. Cutcher, her defense attorney, wouldn't argue about that, I don't believe, when defense counsel made no such statement. Morales solicited, procured, aided and abetted when she went to Shell and talked with 11

15 Harris when no one identified Harris as one of the men at the Shell station or the crime scene. That Morales and Harris had a conversation that constituted a conspiracy when no evidence of any conversation was introduced. A review of the entire record demonstrates that the prosecutor failed to limit himself to appropriate closing argument by stating facts that were not in evidence; by extensively giving his personal opinions on what might have been said; by characterizing the Appellant's behavior as psychotic; and by denigrating the defense by stating that defense counsel would not argue that his client made up the whole story. Given the totality of all these comments the prosecutor's conduct constituted prejudicial error that denied Appellant Due Process and a fair trial under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution. Appellant directs the Court's attention to the case of State v. Jackson (2007) 2007 Ohio 2494, 2007 Ohio App. LEXIS 2340, decided by the Eighth Appellate District Court of Appeals for Cuyahoga County, where the court remanded for a new trial on facts very similar to the ones in this case. Appellant submits that what the prosecutor did in this case created plain error. Proposition of Law IV: ARGUMENT IN SUPPORT OF PROPOSITION OF LAW Where the elements of the offense have not been proven by proof beyond a reasonable doubt, a conviction based upon insufficient evidence violates the Due Process provisions of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, Section 10 of the Ohio Constitution. No one identified the person who shot Brantley. The description given by Connie Sisk was that the shooter was 5'6" to 5'7" tall. Christopher Sisk said the taller man at the Shell 12

16 station was 5'9" to 6'0" tall. Morales said the shooter was a lot taller than her (5' 1") but not by much. Luke said that Harris was 5'3' tall but there was no evidence to substantiate her statement. No one testified that Morales solicited or procured anyone to do anything. No photographs of Hairis or Smith were shown to any witnesses in an effort to identify them. No statements of Harris or Smith were introduced. No voic s from Morales to Harris were introduced. No text messages were introduced from Morales to anyone. Instead the prosecution insisted that Morales talked to Harris at 2:16 a.m. when it was clear that did not happen. Inference was heaped upon inference. The First District Court of Appeals Court has held that "inferences to be drawn from circumstantial evidence are unreasonable or speculative if they are not supported by the surrounding facts in evidence," State v. Thomas 2002-Ohio-7333, 15` Dist. C The majority below did not follow the law in the Thomas case. The Court's attention is directed to the case of State v. Rohr-George 2007-Ohio-1264, 2007 Ohio App. LEXIS 1170 (March 21, 2007, 9`h Dist.), where the Court found that the evidence was insufficient as a matter of law in a Complicity to Murder case. The evidence in this case is even more lacking than the evidence in Rohr-GeorQe where at least the killer was identified. Morales submits her conviction is based upon insufficient evidence just as it was in the Rohr-George case. 13

17 Conclusion Appellant respectfully requests that this Court accept jurisdiction of this matter for the following reasons: 1. That the Appellant's right to due process under the 5"' and 14ih Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution where (1) there was insufficient evidence on the essential elements of Appellant soliciting or procuring anyone to shoot Brantley, (2) the prosecutor's closing argument constituted misconduct which denied her a fair trial. 2. That the Appellant's right to confrontation under the 6d' and 14`h Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution were denied by the admission of Brantley's statement to the 911 operator and the statements of Clark to the police officers and Grant. 14

18 Respectfully submitted, Robert R. Hastings, Jr. (00260 Law Office of the Hamilton Public Defender 230 East Ninth Street, Suite 2000 Cincinnati, Ohio (513) Telephone (513) Fax Counsel for Appellant, Maureen Moss CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was hand delivered to the Office of Hamilton County Prosecutor, 230 East Ninth Street, Suite 4000, Cincinnati, Ohio on this 29th day of May, obert R. Hastings, Jr. Counsel for Appellant < 15

19 H PCF-fi oi x IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO,. APPEAL NOS. C C Plaintiff-Appellee, TRIAL NO. B vs. DECISION. AURIA MORALES, Defendant-Appellant. Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affitmed in Part, Reversed in Part, and Appellant Discharged in Part Date of Judgment Entry on Appeal: April 17, 2009 PRESENTED TO THE CLERK OF COURTS FOR FILING APR COURT OF APPEALS Joseph T. Deters, Ilamilton County Prosecuting Attorney, and Plailip R. Cummings, Assistant Prosecuting Attorney, for Appellee, Robert R. Hastings, Jr., for Appellant. ENT^R^D APR Please note: This case has been removed from the accelerated calendar. P. l

20 OHIO FIRST DISTRICT COURT OF APPEALS SYI,vIA S. H16IJDoN, Judge. {11} Defendant-appellant Auria Morales was convicted of complicity in the murder of her boyfriend, Michael Brantley, and of conspiracy to commit Brantley's murder. Morales now appeals. We affirm her conviction for complicity to murder, but reverse her conspiracy conviction and discharge her from further prosecution on that count. Morales and Her Boyfriend Fight {%2} During the late evening and early morning hours before Brantley was murdered, Morales and Brantley had had a heated argument at Morales's apartment over sexually explicit text messages that Brantley had received from another woman. Morales's friend Deshawn Grant testified that he and Morales had talked on the phone around 2:44 a.m, that Morales had sounded extremely angry and frustrated, and that she had asked him for a gun. Phone records admitted into evidence corroborated Grant's story. Grant did not have a gun, nor did he see Morales that morning. Around 3:00 a.m., Morales's mother, Michelle Clark, who also lived at the apartment, called for emergency assistance because Morales and Brantley's fighting had escalated. (13} Some time after 3:00 a.m., Morales left her apartment and drove to a Shell gas station just up the street. At trial, the state used phone records to establish that, less thain an hour before leaving for the gas station, Morales had called a man named Dante Harris. The state argued that she had called Harris to meet her. Shell worker Christopher Sisk testified that a group of young men had been "hang at the Shell station for approximately 3o, minutes when Morales arrived. Sis testified that Morales had appeared extremely distraught. According to appeared that Morales knew one of the men because she bad hugged and leaned up 2

21 OHIO FIRST DISTRiCT COURT OF APPEALS against him. After talking with Morales for a few minutes, Sisk saw the men get into a purplish-colored car and follow Morales out of the Shell station, turning in the direction of Morales's apartment. Brantley was at the apartment and was apparently outside waiting for a taxi cab to arrive. Brantley is Shot and Calls for Help {914} Brantley was shot in both legs while outside of Morales's apartment. At trial, the state played a recording of an emergency call Brantley had made at 3:28 a.m. On it, he said that he had been shot, asked several times for immediate help, faded in and out of conscionsness, and was unable to follow even simple instructions from the emergency operator. He died shortly thereafter from excessive blood loss. During the call, Brantley stated that his girlfriend had had him shot. Morales and her Mother Give Conflicting Accounts I {15} Following Brantley's murder, police questioned Clark and Moral,i, as well as several neighbors. Investigating officers LeRay and Butler interviewed Ciark at the scene. Clark initially denied that she or Morales had been home I w hen Brantley was shot. She told police that she had been driving Morales to a' "safe II house" to get her away from Brantley, and that she had just returned. Clark later told police that she had been at home when the shooting had occurred. Clark also gave police other details from that evening, telling them that Morales and Brantle i had fought. At trial, the defense unsuccessfully claimed that Clark's statements, which were testified to by several police officers, constituted inadmissible hearsay. {y[6} Morales told police two different stories, and these stozies were (IND different from her mother's. She first stated that she and Brantley had be fighting when a stranger had walked up and had asked if she needed 1pAPPrhtE stranger then, according to Morales, said, "Baby, you ain't gotta go th 3

22 OHIO FIRST DISTRICT COURT OF APPEALS and shot Brantley. Morales later changed her story, telling police that she had been at the Shell station when this conversation had occurred, and that the shooter-a stranger-must have followed her home. The Neighbors' Testimony 117} Two of Morales's neighbors testified at trial. One, Connie Sisk, had witnessed Morales and Brantley fighting and had seen Morales drive off in the direction of the Shell station. She testified that, within five to ten minutes of Morales driving away, she had heard gunshots. Another neighbor, Carla Goines, testified that the sound of gunshots had awakened her, that she had seen a number of men running up the street, and that she had seen a man jump into the driver's seat of a dark colored car that was parked in a driveway a few doors down from Morales's apartment. Goines stated that she had heard one of the men say "come on, come on." {y[8} A jury found Morales guilty of complicity to murder and of conspiracy to commit murder. Over defense counsel's objection, the trial court sentenced her on both counts, making the sentences concurrent, for a total of 15 years to life in prison. Morales's Appeal t919} Out of Morales's seven assignments of error, we find that only her sixth assignment of error has merit. We address it first. {110} In her sixth assignment of error, Morales first argues that she was improperly convicted of both complicity to commit murder and of conspiracy to commit murder. She is correct. Under R.C (G), "[w]hen a person is convicted of committing or aitempting to commit a specific offense or of complicity in the commission of or attempt to commit the specific offense, the person shall not be convicted of conspiracy involving the same offense." We thereforf-svstain-hhis ENTERED APR

23 OIiIO FIRST DISTRICT COURT OF APPEALS assignment of error in part, and we reverse Morales's conspiracy conviction. Morales is discharged from further prosecution on that count. 1111} Also in her sixth assignment of error, Morales contends that the trial court erred when it ordered her to pay court costs because she was indigent. We find no error. It is within the trial court's discretion to determine whether to remit costs for an indigent defendant., Here, the court conducted a hearing on this issue, considered the arguments of counsel, and then indicated that it was going to assess costs despite Morales's lack of money, reasoning that Morales was the reason for the costs and should therefore be responsfble for them. This argument has no merit. We overrule the balance of this assignment of error. Morales's Remaining Assignments of Error (112} Morales's remaining assigntnents of error are either moot or meritless. 1113} In her first assignment of error, Morales contends that her indictment did not properly charge conspiracy. Since we have reversed Morales's conspiracy conviction, this assignment of error is moota Sufficient Evidence 1114} Morales's second assignment of error challenges the sufficiency of the evidence. Viewing the evidence in a light most favorable to the state, we hold that a rational trier of fact could have found beyond a reasonable doubt that Morales had encouraged, solicited, or aided Brantley's unknown assailant in committing murder.3 The state's evidence showed that Morales and Brantley had argued, that Morales had sought a gun, and that, after making some phone calls, Morales ha 1R C ; State u. T9rreatt, io8 Ohio St.3d 277, 2oo6-Ohio-9o5, 843 N.E.2 64, 23; Blakemore u Blakemore ( Ohio St.3d ,45o N.E.2d App.R.12(A)(1)(c). 9 See R.C and (B); State u. Jenks (iggi), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. e fi ^ D^ n D APR L1 7R2009 5

24 OHIO FIRST DISTRICT COURT OF APPEALS apartment and bad met someone she seemed to know at a nearby Shell station. Several men who were at the Shell station followed Morales out of the Shell parking lot and, a short later, a neighbor had heard gunshots. Another neighbor, Goines, had heard the gunshots and then had witnessed men running and getting into a car similar to the one seen following Morales out of the SheB station. Also, Brantley had told the emergency operator that his girlfriend hadhad him shot. Finally, Morales had given police inconsistent accounts of what had occurred that night. This was sufficient evidence to convict Morales of complicity to commit murder. We therefore overrule this assignment of error. Brantley's Emergency Cell {115} In her third assignment of error, Morales claims that the tape of Brantley's 9-1-I emergency call should not have been admitted into evidence. We hold otherwise. {116} Brantley's statement that his girlfriend had had him shot was admitted as a dying declaration. A dying declaration is "a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death."4 Morales contends that the state had failed to establish that Brantley had believed that his death was "imminent." We note that it is often difficult to determine if a declarant sensed his or her death rapidly approaching. But we hold that the facts of this case were sufficient to provide a proper foundation for the admission of a Brantley's statement.5 Brantley had been shot twice. On the tape of the emergency call, he had asked over and over for immediate medical help, and he had faded in and 4 Evid.R. 8o4(B)(2). 6 Cf. State V. Craft 4th Dist. No. 04CA589, 2oo5-Ohio-3944, 9z6-a8. 6 ENT FN9 IL ED APR

25 OHIO FIRST DISTRICT COURT OF APPEALS out of consciousness several times. He had been unable to follow a simple instruction to remove his shirt and press on his wound. He was bleeding profusely. He died shortly thereafter. We therefore hold that the trial court did not abuse its discretion in admitting this statement as a dying declaration.6 f9117} The dissent makes the point that the requirement that a declarant sensed that his or her death was "imminent" is a stringent one. We believe that this requirement was met here but, even if it was not, the statement could have been properly admitted as an "excited utterance." Any error in the admission of the statement as a dying declaration, therefore, was harmiess. Under Evid.R. 803(2), "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is admissible as a hearsay exception. The statement, however, must pertain to an occurrence that the declarant had an opportunity to personally observe.7 In this case, it can not be disputed that Branttey was under the stress of a startling condition-he had just been ' shot twice. And Morales admitted that she had been at the scene of the shooting. Under these circumstances, we do not find it to be a leap of logic, as the dissent does, that Brantley had personally observed that Morales had had someone shoot him. (1181 The trial court did not err in admitting the tape of Brantley's emergency call. Morales's third assignment of error is overruled. Admissibility of Clark's Statements {119} In her fourth assignment of error, Morales claims that the trial court erred by admitting testimony from witnesses other than Clark concerning Clark's statements to them. Clark was available as a witness, but tour police otth 6 State v. Sage (1987),31 Ohio St.3d 173, 5io N.E.2d 343, paragraph two of the sylla 7 State V. Huertas (1990), gi Ohio St.3d 22, N.E.2d io58; Potter v, Baker (I St. 488,124 N.E.2d 140, paragraph two of the syllabus. APR

26 OHIO FIRST DISTRICT COURT OF APPEALS Butler, Dudley, and Luke and state's witness DeShawn Grant each testified to her statements. Morales asserts that this testimony was inadmissible hearsay. We hold that some of the testimony should not have been admitted, but that the error was harmless. Testimony of the investigating Police Officers {120} T'here are situations where an officer may testify to the substance of what seems to be a hearsay statement in order to explain his or her conduct while investigating a crime."8 Such statements are generaay not hearsay because they are not being used to prove the truth of the matter asserted 9 But such testimony is not automatically admissible simply because it is not hearsay. To be admissible, the testifyiltg officer must explain what he or she did as a result of the statemenvo "The potential for abuse in admitting such evidence is great, thus, the [officer's] conduct to be explained must be relevant, unequivocal, and contemporaneous with the statement"il 1121} With these standards in mind, we conclude that the trial court properly admitted testimony by police officers LeRay and Butler. These officers had responded to the scene of the shooting. There, Clark had told them that Morales and Brantley had been fighting, and that she had been taking Morales to a "safe house" when the shooting had occurred. LeRay and Butler each testified that, based on Clark's statements, they had had Clark take them to see Morales. We find no error in the admission of their testimony. 1122} But the trial court did err in admitting the testimony of officers Dudley and Luke. Dudley was not a part of the criminal investigation, per se. Instead, she was assigned to sit with Clark at the police station to make sure that Clark did not talk to 8 State v. Davenport (July 30,1g99), ist Dist. No. C-98o See Evid.R. 8oi(C). 10 Davenport, supra. 11 Id., citing State v. Blevins (1987), 36 Ohio App.3d 147,149, 521 N.E.2d iio5. 8

27 OHIO FIRST DISTRICT COURT OF APPEALS anyone about Brantley's murder. Clark had told the same story to Dudley as she had to officers LeRay and Butler. But her statement had had no immediate effect on Dudley. {123} The same is true concerning Clark's statement to Luke. Luke testified that she had first interviewed Clark and then had interviewed Morales at the police station. After realizing that Morales and Clark had told different stories, Luke said that she had revisited Clark to ask why she had lied. Thus, Clark's statements to Dudley and to Luke did not have a "relevant, unequivocal, and contemporaneous" effect on the officers' conduct in investigating the crime.12 But because Clark's statements were properly admitted through the testimony of LeRay and Butler, we hold that this improper testimony was cumulative and therefore that the error was harniless.'3 Clark's Statement to Grant {9[24} Morales also correctly argues that Grant's testimony to statements Clark had made should not have been admitted. Grant testified that he had telephoned Clark around 3:15 a.m. looking for Morales, and that Clark had told Grant that Morales was not at the apartment. This statement was offered for its truth, and no hearsay exception applied. But since Morales had admitted that she had left the apartment and had gone to the Shell gas station around this time, the trial court's error was harmless.'4 Morales's fourth assignment of error is overruled. ProsecutorTal-Misconduct Claims {125} In her fifth assignment of error, Morales claims prosecutorial misconduct during closing arguments. Because there was no objection below, we ENTERED APR '= See id. ' 13 Crim.R. 52(A); State v. Gonzales, 154 Ohio App.3d g, 2oo3-Ohio-442i, 996 N.E,2d 12,1165. '4 See id. 9

28 OHIO FIRST DISTRICT COURT OF APPEALS apply a plain-error standard of review. Plain error does not exist unless "but for" the error, the outcome of the trial would clearly have been different.is {126} The state is given wide latitude during closing argument.16 A prosecutor may comment freely on what the evidence has shown and on what reasonable inferences may be drawn from the evidence.17 Counsel must, however, avoid insinuations and assertions that are calculated to mislead the jury and may not allude to matters that are not supported by admissible evidence.18 Further, a prosecutor should not make unfair personal references to opposing counsel.19 {127} Here, Morales lists 15 comments that she contends constituted prosecutorial misconduct. All but a few were supported by the evidence admitted at trial. The statements that were improper centered on the prosecution's characterization of Harris as the likely assailant. No one had identified Harris as the shooter, but during closing arguments, the prosecutor argued that Harris had had a motive for killing Brantley because Harris "knew about the relationship between Morales and Brantley," and because "Harris was mad" and was "ready to move in" on Brantley's "territory." While it was reasonable for the prosecution to imply that Harris may have been the shooter, references to what Harris knew or what his motive was were improper. We also take issue with the prosecutor's comment that Morales's attorney would have agreed that Morales had not initially told police the truth. A prosecutor should refrain from making oomments about opposing counsel. None of these statements, ho the level of plain error.20 This assignment of error is overruled. b mmm==m ENTERED APR State v. Wickline (1990), 50 Ohio St.3d 114, i2o, 552 N.E.2d 9t3; see, also, State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph two of the syllabus. 16 State v. BaRew, 76 Ohio St.3d 244, 1g96-Ohio-8t, 667 N.E.2d ^ State v. Lott (1990), 51 Ohio St.3d i6o, 05, 555 N.E.2d 293, citing State v. Stephens (1970), 24 Ohio St.2d 76,82, 263 N.E.2d 773. Is State v. Smith (1984), 14 Ohio St,3d 13, 14, 47o N.E.2d 88g. 19 Id. 20 See Wickline, supra; Long, supra. 10

29 OHIO FIRST DISTRICT COURT OF APPEALS No Newly Discovered Evidence {128} In her seventh and final assignment of error, Morales claims that the trial court should have granted her motion for a new trial based on newly discovered evidence. Morales's "newly discovered" evidence pertained to her cellular phone records from the day that Brantley had been murdered. Since this evidence could have been discovered before trial, we hold that the trial court did not abuse its discretion when it overruled Morales's motion?1 This assignment of error is overruled. {y(29} For all the foregoing reasons, we affirm Morales's conviction for complicity to murder. But her conviction for conspiracy is reversed, and she is discharged from further prosecution for that offense. HILDEBRANDT, J., concurs. PAUMR, J., dissents. Judgment accordingly. PAINTER, J., dissenting. 1130) Brantley's statement during his emergency call was not properly admitted as a dying declaration or an excited utterance. No Showing that Brantley Believed his Death was lmpending {731} Dying declarations "are defined as statements of fact by the victim, concerning the cause and circumstances of a homicide. To make them admissible into evidence as dying declarations, an exception to the rule against hearsay evidence, it must appear that they are made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of_auaidanse;^ when he has despaired of life and looks to death as inevitable and at han^ 21 See Crim.R. g3(a)(6); State v. Petro (1947).148 Ohio St. 505, 76 N.E.2d 370, sylla 22 People v. 7tilley (1950), 4o6 I , N.E.2d ENTERED APR S PVL=;;^ a

30 UHIO FIRST DISTRICT COURT OF APPEALS {132} This is a stringent rule because "the statements of the deceased as to the cause of the injury from which death finally results, when dying declarations within the meaning of the law, are admitted in evidence on the ground of necessity, and the rule under which they are admitted, forms an exception in the law of etiddence. The accused, under the rule has not the benefit of meeting the witness against him face to face; a constitutional right in all criminal trials with this solitary exception. He is deprived of the security of an oath attended with consequences of temporal punishment for perjury. He is deprived of the great safeguard against misrepresentation and misapprehensionthe power of cross-examination. The evidence is hearsay in its character; the statements are liable to be misunderstood and to be misrepeated upon the trial, and the evidence goes to the jury with surroundings tending to produce upon the mind emotions of deep sympathy for the deceased, and of involuntary resentment against the accused."23 {133} In State v. Demars, the Eighth Appellate District adopted a four-prong test to determine the admissibility of dying declarations: "(1) the declarant is aware that death is impending; (2) the declarant has died since the dying declaration ivas made; (3) the dying declaration is offered in a criminal prosecution which involves a homicide; and (4) the dying declaration involves or relates to the cause of death "24 {134} It may be difficult to determine if a declarant sensed that he or she was near death. But the United States Supreme Court has stated that "[dying declarations] are only received when the court is satisfied that the witness was fufly aware of tlte fact that his recovery was impossible, and in this particular the requirement of the law is very stringent."25 Further, the Ohio Supreme Cottrt has stated that to admit dying declarations as evidence, "it should be made to appear to the court by preliminary evidence, not only that they were made in articulo mortis [at point of death], but also 23Starkey v. Peo le (1855), , (Mar.18, 1993j, 8th Dist. No Carver u. United States (1897), 164 U.S. 694, 697,17 S.Ct. 228 (emphasis added). ENT Ed4ED APR

31 OHIO FIRST DISTRICT COURT OF APPEALS made under a sense of impending death, which excluded from the mind of the dying person all hope or expectation of recovery."26 {y[35} Other courts have considered the extemal situation of the declarant at the time of the statement. The United States Supreme Court, in Carver v. United States, held that because the declarant had received the last rites, the declarant probably knew she was close to death.27 In an Ohio case, evidence that the declarant was mortally wounded, that the hospital staff was worldng furiously to save the declarant, and that a police officer had told the declarant that he did not have long to live was sufficient to admit a dying declacationz8 Another Ohio appeaate district held admissible a dying declaration because the declarant's last words, "Good-bye. I am dying," demonstrated that he thought his death was impending.29 {136} Ohio courts have held that serious injuries alone are not sufficient for a trial court to properly determine that a declarant thought that death was impending.30 In State v. Woods, a statement was not admitted even though the declarant had been shot in the abdomen and taken to a hospital?1 The court reasoned that the record did not show that the dedarant had sensed that his death was impending and had abandoned ali hope of recovery.32 Although his wound was mortal and his condition at the time was critic, l, the court stated that "CwJhile these circumstances are important, they do not, in and of themselves, form a sufficient predicate to admit the statements as dying declaratio II"33 {q37} In this case, the state did not show that Brantley had been fully awa e that his recovery was impossible or that there was no hope or expectation of recoverv.^ Llce., ^ ENTERED 26 Robbins v. State (i857), 8 Ohio St. 13i. APR 1 7 2^09 27 Carver u. US (1899), 164 U.S. 694, 695,17 S.Ct. 228, State v. Knight (1984), 20 Ohio App.3d 289, 292, 485 N.E.2d 1o Cotteti v. State (19i9), 12 Ohio App. 104, c State v. Woods (1972), 47 Ohio App.2d 144, 352 N.E.2d 598; State v. Tesfagiorgis (Aug. 12, iggg), ioth Dist. No. 9SAP Woods, supra, at s id. 33 Id. 13