State v. Green

231 N.E.3d 1

2023-Ohio-4360

STATE of Ohio, Plaintiff-Appellee,

v.Ziair GREEN, Defendant-Appellant.

CASE NO. 9-22-13

Court of Appeals of Ohio, Third District, Marion County.

Date of Decision: December 4, 2023

Appeal from Marion County Common Pleas Court, Trial Court No. 21-CR-070.

Timothy B. Hackett and Victoria A. Ferr, for Appellant.

Raymond A. Grogan, Jr., for Appellee.

OPINION

MILLER, P.J.

{¶1} Defendant-appellant, Ziair E. Green ("Green"), appeals the February 28, 2022 judgment entry of sentence of the Marion County Court of Common Pleas. For the reasons that follow, we affirm.

{¶2} On January 18, 2021, law enforcement officers responded to numerous reports of gunfire shot at 126 South Seffner Avenue ("126 S. Seffner Ave."), Marion, Ohio. When officers arrived at the scene, they found Ricco McGhee ("McGhee") lying on the sidewalk with a gunshot wound to his chest. McGhee was transported to the hospital where he was subsequently pronounced dead. An autopsy confirmed that his death was the result of a single gunshot wound to the chest.

{¶3} McGhee had been married to Green’s mother, Kimberly Floyd ("Floyd"), for many years and was the only father figure in the household. However, McGhee and Floyd were separated by October 2020. Nonetheless, McGhee and Floyd continued to communicate off-and-on despite their separation and McGhee’s recent engagement to Lashawn Mosley ("Mosley").

{¶4} On January 18, 2021, McGhee spent the day in Columbus with Mosley. Eventually the pair returned to Marion where they visited friends to watch a sporting game, drink alcohol, and relax. Throughout the day and into the night, McGhee and Floyd were in communication via text message. Later that night, McGhee drove his vehicle, with Mosley as a passenger, to Floyd’s house at 126 S. Seffner Ave. When they arrived at the house at approximately 10:35 p.m., McGhee exited the driver’s-side door and entered the unlocked house while Mosley waited in the vehicle. Inside the house, McGhee and Floyd engaged in a confrontation.

{¶5} During the confrontation between McGhee and Floyd, Green exited through the side door of the house with a firearm. Several minutes later, McGhee emerged from the house and walked down the front porch steps onto the sidewalk. There, he spotted Green, who was in possession of the firearm.

{¶6} Green subsequently fired two "warning shots" at McGhee and then pointed the gun at McGhee and fired additional shots. McGhee was struck in the chest by a bullet and fell to the ground. Green ran from the scene and went into hiding for several days. Mosley and Floyd rushed to McGhee and attempted to render aid.

{¶7} On January 19, 2021, a complaint was filed in the Marion County Court of Common Pleas, Family Division ("juvenile court") charging 17-year-old Green with one count of murder in violation of R.C. 2903.02(A) and one count of aggravated murder in violation of R.C. 2903.01(A). That same day, the State filed a motion to bind the case over to the Marion County Court of Common Pleas, General Division, pursuant to Juv. R. 30. Green appeared for an initial appearance on January 28, 2021, wherein he denied the allegations in the complaint.

{¶8} A probable cause hearing was held in the juvenile court on February 11, 2021. At the conclusion of the hearing, the judge found probable cause to believe that Green committed the offenses alleged in the complaint. Accordingly, the juvenile court relinquished its jurisdiction over the matter and transferred the case to the General Division of the Marion County Court of Common Pleas for prosecution.

{¶9} On February 24, 2021, the Marion County Grand Jury indicted Green on three counts: Count One of murder in violation of R.C. 2903.02(A), an unclassified felony; Count Two of murder in violation of R.C. 2903.02(B), an unclassified felony; and Count Three of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony. Each of the counts also included a three-year firearm specification pursuant to R.C. 2941.145 and R.C. 2929.14(D). Green appeared for arraignment on March 1, 2021 and entered pleas of not guilty to the counts and specifications in the indictment. On March 17, 2021, Green retained new counsel who entered notices of appearance. On March 23, 2021, Green filed a notice of his intent to use self-defense or defense of others as a defense at trial.

{¶10} On April 19, 2021, Green filed a motion for funds to retain an expert witness. The motion did not specify a dollar amount of the request. In a judgment entry filed on April 20, 2021, the trial court deemed the motion filed outside the time set by Crim.R. 12. Nonetheless, the trial court granted the defense $1,500 for the purpose of retaining an expert and directed that further funds be authorized in advance.

{¶11} On April 20, 2021, Green filed a motion for leave to file several pretrial motions instanter. Specifically, Green requested to file a motion to require the State to disclose the victim’s criminal history and a motion to allow counsel to review children’s services records. On April 22, 2021, the trial court denied the motions. In its attendant judgment entry, the trial court found the motions were untimely filed pursuant to Crim.R. 12. However, in the interest of justice, the trial court reviewed the merits of the motions and denied them on that basis.

{¶12} On May 20, 2021, Green filed an additional motion for allowance of monies to retain an expert witness. In his motion, Green requested an "initial approval" of $9,000 for the proposed expert to examine Green. (Doc. No. 52). On May 27, 2021, the trial court denied the motion. In its judgment entry, the trial court found the motion was untimely and filed outside the timelines of Crim.R. 12 without leave. Nevertheless, the trial court reviewed the merits of the motion and found that Green failed to show how the expert would provide value and that alternative would will provide Green with a defense in this case.

{¶13} On July 12, 2021, Green made a motion for the trial court to approve a general evaluation of Green by District V Forensic Diagnostic Center for the purposes of a referral to a specialist if necessary. The trial court granted Green’s motion on July 14, 2021. On September 23, 2021, Green filed a motion for leave to file a motion for allowance of monies to retain an expert witness for additional evaluation of the defendant. On October 22, 2021, the trial court denied Green’s request to file the motion out of time and denied Green’s request for additional defense experts at state expense.

{¶14} On January 21, 2022, the State filed a motion to exclude the testimony of four defense witnesses (Deante Smith, Deandre Gale, Timothy Nelson, and Dejaun Smith) listed in the defendant’s reciprocal discovery. Green filed a memorandum in opposition to the State’s motion on January 26, 2022. The following day, the trial court filed a judgment entry stating that it would give Green the opportunity to proffer the testimony of the four witnesses outside the presence of the jury for the trial court to determine whether their testimony would be admissible.

{¶15} A jury trial commenced on February 1, 2022. On February 10, 2022, the jury returned verdicts finding Green not guilty of Count One, but guilty of Counts Two and Three, and their attendant specifications.

{¶16} At the sentencing hearing held on February 25, 2022, the trial court found that Counts Two and Three merged for the purpose of sentencing. The State elected to proceed to sentencing the more serious offense of murder charged in Count Two and the trial court sentenced Green to a term of 15 years to life in prison to be served consecutively to a term of 3 years for the attendant firearm specification for an aggregate term of 18 years to life in prison.

{¶17} On March 25, 2022, Green filed his notice of appeal. He raises eight assignments of error for our review.

First Assignment of Error

The trial court violated Ziair Green’s constitutional right to present a complete defense. Fifth, Sixth, and Fourteenth Amendments, U.S. Constitution; Article I, Sections 1, 10, and 16, Ohio Constitution; Crim.R. 16(B); Evid.R. 404(B), 405, 608, 616(A), 702.

{¶18} In his first assignment of error, Green argues that the trial court violated his constitutional right to present a complete defense. Specifically, Green claims the trial court prohibited him from presenting evidence that would have undermined the credibility of the State’s witnesses and shown he acted in self-defense. He also asserts that the trial court denied him the opportunity to present a complete defense by denying his request for expert funds.

{¶19} The Supreme Court of Ohio has explained:

"[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ " Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). However, "[a] defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restriction." United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). And states have a legitimate interest in ensuring that triers of fact are presented with reliable evidence and have "broad latitude under the Constitution to establish rules excluding evidence from criminal trials" to further that goal. Scheffer at 308, 309, 118 S.Ct. 1261, 140 L.Ed.2d 413. Such "rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve’ " and if they do not "infringe[] upon a weighty interest of the accused." Id. at 308, 118 S.Ct. 1261, 140 L.Ed.2d 413, quoting Rock v. Arkansas, 483 U.S. 44,56, 58, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).

State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 59.

[1] {¶20} Generally, the admission or exclusion of evidence...