State V. Johnson
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{¶85} The jury also heard both Gale and Coleman testify that once they got into the car, it was discussed that Johnson may have killed Coates. According to Gale, Johnson stated that he only fired one shot, he did not mean to do it, and then questioned whether Coates was dead. Coleman testified that she told the police that Johnson admitted to shooting Coates, however, at trial she was not entirely forthcoming with this information; rather, she stated that Gale told her that Johnson shot Coates. {¶86} Even discounting all of Gale and Coleman’s testimony, Howard’s testimony establishes that Johnson shot Coates. Howard saw Johnson approach Coates with a gun. Although Howard testified that he did not see who pulled the trigger, he heard a gunshot almost immediately after seeing Johnson re-emerge from the bushes with the gun in the air. It was reasonable for the jury to infer that Johnson pulled the trigger. Additionally, if the gun was being lowered when it was fired, it could create the “slight incline” that Dr. Pekarski testified regarding the trajectory of the bullet.
vehicle to pick up Coleman, her children, and Gale, who had been stabbed. Furthermore, two different times during her testimony, Novak stated that it was not until they received a phone call that they learned that Coates was dead. The jury could have inferred that the use of the word “dead” was significant, meaning that Johnson knew that Coates was shot. This would be consistent with Gale’s testimony that Johnson was in disbelief that the one shot would have killed Coates.
{¶88} What the jury could not ignore, however, was the uncontroverted testimony that Johnson drove from Akron to Cleveland at Coleman’s request. Coleman called Johnson and she could be heard yelling in an angry, hostile, and eager way, and stating that Coates “needed to learn a lesson.” The cell phone records put Johnson in the area around the time of the shooting. In fact, Coleman testified she saw Johnson’s car parked on East 169th Street when she and Gale arrived at Green’s house. Howard testified that Coates was watching a black car that pulled up, but no one exited.
motivations, and that the witnesses were all evasive or untruthful to the police at some point during the investigation. Furthermore, the jury’s verdict demonstrates that it considered all the evidence, weighed the testimony of all the witnesses, and discounted and accepted testimony where the jury determined it was appropriate. Accordingly, with the investigation and evidence presented to the jury, and based on the record before us, we cannot say that this is the exceptional case where the jury clearly lost its way in finding Johnson guilty of the murder. Johnson’s first assignment of error is overruled. II. Confrontation Clause — Hearsay
that Johnson was coming to Cleveland: A: I asked her why she called him. Q: All right. And what was her reaction to you inquiring about why?
A: She saying that he need to come [f * * *] him up. He need to learn a lesson. Q: And who is she referring to? A: Carlos. (Tr. 587-588.) Q: All right. Did you have conversation with — did Tamera make comments relative to this defendant coming to the Cleveland area or coming to where Carlos was?
A: Yes. Q: What was the nature of any comment?
A: She stated where was he, how long was he gonna’ be, and that she wanted him to [f * * *] him up. That was the exact words.
(Tr. 633.) {¶91} In his second assignment of error, Johnson contends that the trial court erred in the admission of this evidence, in violation of defendant’s right to confront witnesses, as protected by the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, he contends that Gale’s testimony regarding what Coleman told him about Johnson’s purpose for driving to Cleveland was inadmissible hearsay.
evidence, including the discretion to determine whether evidence constitutes hearsay and whether it is admissible hearsay. State v. Graves, 9th Dist. Lorain No. 08CA009397, 2009-Ohio-1133, ¶ 4. We review a trial court’s decision regarding admissibility of evidence under an abuse of discretion standard. State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). {¶93} However, where no objection is raised to the admission of alleged hearsay testimony, it may be considered by the trier of fact for whatever probative value it may have. Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 208, 389 N.E.2d 1113 (1979), citing State v. Petro, 148 Ohio St. 473, 76 N.E.2d 355 (1947), paragraph eight of the syllabus. Moreover, the failure to raise a timely objection at a time when the trial court can correct an error constitutes a waiver of any objection to the admissibility of evidence. Nevertheless, “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Crim.R. 52(B). Thus, we review the admission of the alleged hearsay statements under the plain error standard of Crim.R. 52(B). {¶94} Plain error consists of an obvious error or defect in the trial proceeding that affects a substantial right. Crim.R. 52(B). Therefore, plain error occurs only when, but for the error, the outcome of the trial clearly would have been different. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); State v. Hill, 92 Ohio St.3d 191, 203, 2001-Ohio-141, 749 N.E.2d 274.
asserted and is generally not admissible at trial. Evid.R. 801(C). However, pursuant to Evid.R. 801(D)(2)(e), “a statement is not hearsay if the statement is offered against a party and is * * * a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy.”
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