State v. Sanders

2020 Ohio 5081

STATE OF OHIO, Plaintiff-Appellee, v. GARY L. SANDERS, Defendant-Appellant.

No. 108953

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

October 29, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-18-632701-A

Appearances:

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jeffrey Maver and Nora Bryan, Assistant Prosecuting Attorneys, for appellee.

Edward M. Heindel, for appellant.

RAYMOND C. HEADEN, J.:

{¶ 1} Defendant-appellant Gary L. Sanders ("Sanders") appeals from his convictions for involuntary manslaughter, felonious assault, and having weapons while under disability. For the reasons that follow, we affirm.

Procedural and Substantive History

{¶ 2} On October 30, 2018, the Cuyahoga County Grand Jury indicted Sanders on one count of murder in violation of R.C. 2903.02(A), one count of murder in violation of R.C. 2903.02(B), one count of involuntary manslaughter in violation of R.C. 2903.04(A), one count of felonious assault in violation of R.C. 2903.11(A)(1), one count of carrying a concealed weapon in violation of R.C. 2923.12(A)(2) with a furthermore specification, one count of having weapons while under disability in violation of R.C. 2923.13(A)(3), and one count of having weapons while under disability in violation of R.C. 2923.13(A)(2). The first four counts carried three-year firearm specification.

{¶ 3} Sanders initially entered a plea of not guilty to all charges. On June 24, 2019, Sanders waived his right to a jury trial on the having weapons while under disability charges, and a jury trial on all other counts and specifications began.

{¶ 4} These charges arose from a shooting that took place at approximately 5:25 p.m. on February 23, 2018. Earlier that afternoon, Charles Calhoun ("Calhoun") was smoking crack cocaine in his apartment with Jennifer McMillan ("McMillan"). Calhoun testified at trial that around the time of the incident in this case, Sanders would sometimes stay at his apartment and regularly kept some of his belongings there. Calhoun also testified that he used to sell crack out of his apartment, and several months before the shooting in this case, his apartment was raided.

{¶ 5} McMillan testified at trial that at the time of the incident, she was addicted to crack and regularly prostituted herself. Earlier in the afternoon on February 23, McMillan testified that she had gotten into an altercation with a man with whom she had a prostitution arrangement, and then arrived at Calhoun's apartment at around 4:40 p.m. The victim, Phylicia Mitchell ("Mitchell"), was present at the apartment when McMillan arrived. Shortly before 5 p.m., Sanders arrived at the apartment.

{¶ 6} Sanders, who had been arguing with Mitchell over the phone for several minutes before he arrived at the apartment, started arguing with Mitchell upon arriving. Sanders accused Mitchell of taking a gift card from him, and Mitchell denied this. While Sanders and Mitchell were arguing, Robert Flores ("Flores"), and James Watkins ("Watkins") arrived separately at the apartment. McMillan testified that Sanders ultimately started to choke Mitchell. McMillan went on to testify that Sanders went to a closet where he had previously kept some of his belongings and then appeared to have a small silver gun. At this point, according to McMillan, Flores and Watkins ran out the back door of the apartment.

{¶ 7} A physical struggle between Sanders and Mitchell ensued, causing McMillan to run into the dining room. When McMillan and Calhoun were in the dining room, and Calhoun yelled at Sanders and Mitchell to stop fighting, McMillan testified that she heard a gunshot, and the struggle between Sanders and Mitchell continued for a short time after she heard the shot. McMillan also testified that when she was hiding in the dining room, she heard Mitchell say, "I've been shot, I'm dying." According to McMillan, Sanders came into the dining room, said, "I wasn't here," and then left through the front door. McMillan testified that she called 911 while Calhoun went to Mitchell and tried to hold her up.

{¶ 8} Calhoun's testimony largely corroborated McMillan's testimony summarized above. Calhoun testified that he and McMillan were in his bedroom near the back of the apartment when they heard gunshots. Several minutes later, he went into the front room and saw that Mitchell had been shot. He told McMillan to call 911 and attempted to hold Mitchell and calm her down. Calhoun also testified that at some point, McMillan's 911 call ended and dispatch called back and spoke with him. Calhoun testified that he did not tell the police about Sanders's argument with Mitchell because he was shocked, he was afraid that Sanders would come and shoot him, and he did not want anyone to say that he was a snitch. Calhoun also testified that he heard Sanders repeatedly say, "oh shi*" in the living room, and he confirmed that he saw Sanders leave the apartment. Calhoun could not confirm which door Sanders went through, and he testified that he had not seen him with a gun at any point that day.

{¶ 9} Calhoun also testified that he had been asleep for most of the day prior to the shooting, and he started smoking crack when he woke up, so he was not sure how long Sanders had been in the apartment prior to the shooting. Calhoun testified that later that day, Sanders called him and asked what was going on. Calhoun responded that someone had shot Mitchell and then ended the call. Subsequently, Calhoun spoke with Shane Mitchell ("Shane"), Mitchell's boyfriend. Calhoun testified that Shane told him that Sanders had reached out to Shane and said that Mitchell tried to take his gun from him during their argument when it went off. At trial, Shane testified that he and Mitchell had known each other since 1988, and he was one of the first people Mitchell met in Cleveland. Shane testified that Mitchell had legally changed her last name because they had plans to marry eventually.

{¶ 10} During a second interview with police when he was in prison, Calhoun reviewed photographs and surveillance footage and identified Sanders and Watkins.

{¶ 11} Watkins testified that earlier in the day on February 23, 2018, he had gone to Calhoun's house to buy drugs. According to Watkins, when he left the apartment, Calhoun, McMillan, Sanders, and Mitchell remained at the apartment. Shortly before 5:30 p.m., Watkins testified that he received a call from Sanders, and then ran into him leaving the apartment and said that Sanders said he needed to go home so that he could "call his people." Surveillance footage from a camera near Calhoun's apartment showed Sanders and Watkins walking toward Watkins's apartment at 5:26 p.m., very shortly after the shooting. Watkins testified that when they got to his apartment, he left to go get drugs and Sanders was left to talk to Watkins's girlfriend, Louise Mays ("Mays"). Watkins testified that while he had previously seen Sanders with a small gun, he did not see Sanders with a gun that day.

{¶ 12} At trial, Mays testified that she and Watkins regularly use crack cocaine, and she had been addicted for decades. She testified that she was not at Calhoun's when Mitchell was killed because she was with Watkins in the apartment they shared, but she heard about the incident. Mays testified that at some point on the afternoon of February 23, 2018, Watkins left to go to the corner store and then returned with Sanders. According to Mays, she knew Sanders and had often seen him at Calhoun's apartment, but this was the first time she had seen him in her apartment. She testified that Sanders appeared nervous. Mays offered Sanders a coat, and he left the apartment. Several hours later, Mays heard that someone had shot Mitchell.

{¶ 13} During the state's direct examination of Mays, the following exchange took place:

PROSECUTOR: Do you remember talking to Cleveland Police about this case?

MAYS: Yeah.

PROSECUTOR: Do you remember telling them that you heard [Sanders] say, I f***ed up. I f***ed up?

MAYS: No. I didn't hear him say that. I don't remember me saying — me saying that he f***ed up. I don't remember me saying that.

PROSECUTOR: If I can play the video, would that refresh your recollection?

MAYS: Can you? You can go ahead. But if I said that, then I said that he f***ed up. He probably did say that though. It was — how many months ago was this, of me saying that he said he f***ed up?

The state then requested to play the footage of Mays's March 2019 interview with the police in an attempt to refresh her recollection. Defense counsel objected, and the trial court overruled the objection. The video was played outside of the presence of the jury, and then the state resumed direct examination in the presence of the jury.

{¶ 14} Mays confirmed that upon reviewing the video, her recollection was refreshed. She went on to testify that when Sanders was at her apartment, he was pacing back and forth and saying that he messed up and needed to "call his people." During defense counsel's cross-examination of Mays, she testified that she has schizophrenia and at the time of her interview in this case, she was not taking her medication.

{¶ 15} EMS arrived at the apartment and tested McMillan and Calhoun for gun residue. Detectives arrived at the scene and collected a spent .22 caliber shell casing. No weapon was recovered from a search of the apartment.

{¶ 16} Responding Police Officer Darin Gessino ("Officer Gessino") testified at trial. The state also introduced footage from his body camera into evidence. Officer Gessino arrived at the scene at 5:37 p.m. and observed Mitchell slumped over in the living room and Calhoun and McMillan sitting on the couch. While Officer Gessino secured the scene, EMS were attempting to assist Mitchell and his partner took Calhoun and McMillan into another room. Officer Gessino testified that when EMS removed Mitchell's sweatshirt, he observed...