State v. Bell

2019 Ohio 340

STATE OF OHIO PLAINTIFF-APPELLEE v. JEROME JAMES BELL DEFENDANT-APPELLANT

No. 106842

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

January 31, 2019

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-16-605495-A

BEFORE: Laster Mays, J., S. Gallagher, P.J., and Celebrezze, J.

ATTORNEY FOR APPELLANT

Joseph V. Pagano

P.O. Box 16869

Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Michael C. O'Malley

Cuyahoga County Prosecutor

By: Jillian Eckart

Assistant County Prosecutor

Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

ANITA LASTER MAYS, J.:

{¶1} Defendant-appellant Jerome James Bell ("Bell") files this delayed appeal of his bench trial conviction and sentence for multiple counts arising from the April 16, 2016 shooting death of Dontez Hopper ("Hopper"). After a review of the record, we affirm Bell's convictions and sentence. This matter is remanded to the trial court for a nunc pro tunc entry to incorporate consecutive sentencing in the journal entry.

I. Background and Facts

{¶2} Bell was indicted for:

Count 1, aggravated murder in violation of R.C. 2903.01(A);

Count 2, aggravated murder in violation of R.C. 2903.01(B);

Count 3, murder in violation of R.C. 2903.02(A);

Count 4, murder in violation of R.C. 2903.02(B);Count 5, felonious assault in violation of R.C. 2903.11(A)(1);

Count 6, felonious assault in violation of R.C. 2903.11(A)(2);

Count 7, kidnapping in violation of R.C. 2905.01(A)(3);

Count 8, discharge of firearm over a public road or highway in violation of R.C. 2923.162(A)(3);

Count 9, having weapons while under disability in violation of R.C. 2923.13(A)(2);

Count 10, tampering with evidence in violation of R.C. 2921.12(A)(1); and Count 11, unauthorized use of a motor vehicle in violation of R.C. 2913.03(A).

Several of the counts carried repeat violent offender and firearm specifications.

A. Pretrial

{¶3} A motion to withdraw due to a conflict of interest filed by one of Bell's defense counsel was denied as well as Bell's motion to suppress his confession to the shooting. Bell rejected the state's plea offer and proceeded to a bench trial.

B. Bench Trial

{¶4} At approximately midnight on April 16, 2016, Bell and members of Bell's family and friends were socializing and drinking at the two-family residence on East 99th Street in Cleveland. Bell resided with his mother Yvette Dowell ("Dowell") and brother Michael Bell ("Michael") in the second-floor unit. Bell's sister Shalante Dowell ("Shalante") resided in the first-floor unit. The state charged that Bell was standing on the second-floor porch when he shot Hopper in the driveway of the residence that night.

{¶5} Bell's girlfriend Catherine Paige ("Paige") testified that Hopper and Bell were "like brothers" and the three would "hang out" together. (Tr. 173.) The evening of the shooting, about 10:00 or 11:00 p.m., Paige picked up Hopper on the way to Bell's house to pick up Bell.

{¶6} Hopper entered the house while Dowell sat in the SUV and talked with Paige. Hopper returned quickly saying, "'Sis, Rome [Bell] trippin'. * * * Just drop me off." (Tr. 180.) Dowell told Paige that she believed Bell needed counseling because "he just flipped out on my daughter's company." (Tr. 182.) Dowell told Hopper that she considered calling the police but Hopper told her not to and went back into the house.

{¶7} Paige and Dowell were standing in the driveway talking and the SUV was still running when they heard two or three quick gunshots. Paige dropped to the ground. She heard Dowell screaming that Hopper had been shot and both ran over to Hopper who was lying in the driveway. Paige looked up to see her SUV backing out of the driveway and Bell's brother Michael yelling at Bell to stop. Paige called police to report the theft and was later transported to speak with homicide detectives.

{¶8} Dowell testified that her brother Marvin Bell, and sons Michael and Bell were at the house the night of the shooting drinking and socializing with friends. Dowell was intoxicated that evening. Bell was in the house when Paige pulled into the driveway with Hopper. Dowell went outside to hug Hopper, who was like a son to her. Dowell talked briefly with Paige. She saw Bell walk onto the upstairs porch and say hello to Hopper, and she went back into the house to the restroom, when she heard three gunshots, a common occurrence in the area. She went outside to find that Paige was still there and Hopper was lying on the ground. Dowell began holding Hopper and screaming. Bell left in the vehicle, and Bell's brother Michael was sleeping upstairs at the time.

{¶9} The state played Dowell's videotaped police interview several times to refresh her recollection due to conflicts between the interview and current testimony. Dowell insisted that she was intoxicated when speaking with detectives, so the recording did not refresh her recollection. Dowell was sure that she did not see a gun that night and denied owning a gun. She did not recall telling police that Bell and Hopper were arguing or had exchanged words other than the brief greeting that occurred when Bell was on the porch. Dowell tested positive for gun shot residue, but forensics opined it was because of her close proximity to Hopper.

{¶10} Sister Shalante testified that Dowell, Bell, Michael, Uncle Marvin, and others were upstairs and she was in her first-floor unit with friends. Shalante returned from the store about midnight and she heard three gunshots. Shalante heard her mother screaming and looked outside to see her holding Hopper. Paige was also there, but Shalante did not see Bell.

{¶11} Michael testified that he returned home from work at about 11:00 p.m. and went to sleep quickly in spite of the social activities. He did not hear shots but ran to the driveway when he heard his mother screaming. Michael saw Bell at the residence before he went to sleep but did not see him afterwards. Michael did not recall seeing Paige in the driveway when he ran downstairs. To his knowledge, no guns were kept at the residence and he did not see a gun that evening.

{¶12} Cleveland Police Department ("CPD") Officers McNamara and Bohlen responded to the scene to find Hopper lying in the middle of the driveway suffering from a gunshot wound. A visibly upset young male and Dowell, who was crying hysterically, were kneeling beside Hopper. The officers performed CPR until EMS arrived. Dowell informed the officers that Bell had left the scene.

{¶13} Homicide Detectives Ford ("Det. Ford") and Fischbach ("Det. Fischbach") also responded. They interviewed Bell's uncle Marvin, brother Michael, mother Dowell, and sister Shalante and determined that Bell was a suspect. Dowell consented to a search of the residence, but no evidence was discovered.

{¶14} A single spent bullet casing was located in the grassy area adjacent to the first-floor front porch. A damaged bullet located on the grass on the opposite side of the driveway and another found lying in the street were marked but did not appear to be connected with the shooting.

{¶15} Det. Ford and Det. Fischbach secured an arrest warrant. Bell was picked up Sunday evening and interviewed by the detectives that Monday. Bell ultimately confessed that he and Hopper were arguing and he shot him.

{¶16} Cuyahoga County Forensic Scientist Daniel Mabel ("Mabel") concluded that Hopper was approximately four to five feet from the gun when fired. County medical examiner and forensic pathologist Joseph Felo ("Dr. Felo") testified that a single fatal gunshot wound entered the center of the chest, proceeded at a downward angle, and exited through the left side of the chest below the armpit, perforating the heart and left lung of Hopper.

{¶17} Cuyahoga County jail investigator Andrew Hudson ("Hudson") monitored inmate mail and telephone calls. Over defense objections, Hudson read excerpts of letters sent by Bell. Letters to Bell's mother and sister urged them to press defense counsel about the motion to suppress. A letter to Bell's brother advised that Dowell and Shalante could "plead the Fifth or don't talk at all," and a letter to a friend inquired whether "can they convict you off just your confession with no witnesses, no other evidence?" (Tr. 249-250.) The telephone calls includeddiscussions about the motion to suppress, questioning of the mother and sister by the prosecution and police, and that individuals who were at the scene had been subpoenaed to testify.

{¶18} The state rested pending admission of the exhibits. The state then requested to call a witness from the clerk of court's office to introduce a certified copy of the journal entry of Bell's prior convictions. The defense objected but stipulated to the exhibit after the trial court said it was going to allow the testimony.

{¶19} Defense counsel moved for judgment of acquittal pursuant to Crim.R. 29. Counsel argued that the elements had not been met for kidnapping, firing a firearm over a public road, tampering with evidence, aggravated murder, murder for purposely causing death, murder as a proximate result of a felonious assault, having a weapon while under disability, felonious assault, and unauthorized use of a motor vehicle. The state relied on the confession in rebuttal. The trial court denied the motion.

C. Verdict and Sentence

{¶20} On August 17, 2017, Bell was found not guilty of the aggravated murder offenses charged in Counts 1 and 2 and guilty of Counts 3 through 11 as well as the accompanying repeat violent offender and firearm specifications. Counts 3 through 8 merged for sentencing. Bell was sentenced to 15 years to life on Count 3, prior to and consecutive with 3 years for a firearm specification and a consecutive 10 years for the repeat violent offender specification.

{¶21} Bell was sentenced to 36 months on Count 9 in addition to a 3-year firearm specification to be served consecutively, 36 months on Count 10 and 6 months on Count...