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State v. Flemming9/5/1996
JUDGMENT Affirmed.
Defendant-appellant, Derrick Flemming, appeals from his convictions for aggravated murder and aggravated robbery, following a jury trial in the Court of Common Pleas of Cuyahoga County. Appellant submits a variety of claimed errors for this court's review involving the weight of the evidence, admissibility of evidence, jury instructions, prosecutorial misconduct and the effectiveness of counsel. A careful review of the record compels affirmance.
I.
On October 22, 1993, appellant arrived at an apartment building on Eddy Road, East Cleveland, at approximately 5:00 p.m. A party was going to take place later that evening, and appellant arranged to meet one of his friends, Marcellus Gant. Gant telephoned appellant earlier and requested that he bring a .25 caliber handgun with him to the party; Gant, the owner of the handgun, placed it in the glove compartment of appellant's automobile the night before.
According to appellant, he started drinking at about 11:00 a.m. that day, specifically, a couple of 22 ounce bottles of malt liquor. He then smoked some marijuana before arriving at the Eddy Road location. Appellant drank two 40 ounce bottles of malt liquor, and anywhere between a half a shot to one or two shots of corn liquor before the party. He drank "quite a few" glasses of liquor and beer while at the party. Appellant presented three witnesses who testified that he was either high or intoxicated that evening.
Appellant, Gant and David Jolly left the party at approximately 12:00 midnight. Gant persuaded them to go to a party on the west side. Appellant started to drive to the west side in his car and, en route, the men smoked marijuana laced with cocaine. According to appellant, his intoxication hampered his ability to drive, so Gant and Jolly made him pull over to switch seats with Gant.
Several hours after leaving the party, at approximately 3:00 a.m., and after consuming more beer, the men found themselves driving south over the Fulton Road bridge. Appellant directed Gant to drive over the bridge and pull into a parking lot at Fulton Road and Vega Avenue. Appellant and Gant exited the vehicle and retreated back to the bridge.
At the same time, Virgil Williams and Nathaniel Oliver, officers from the city of Cleveland Police Department, and David Bailey and Earl Brantley, Jr., officers from the Cuyahoga Metropolitan Housing Authority, were involved with a D.U.I. stop south of the bridge. A woman drove up in a Cadillac just as Bailey and Brantley were about to leave the scene. Upset and excited, the woman motioned with her hands as she informed the officers that two men were beating another man with a bat on the bridge.
Oliver and Bailey immediately saw two men running from what appeared to be a body laying on the sidewalk of the bridge to their car in the parking lot at Fulton and Vega. One male was observed holding what appeared to be a baseball bat, and the other held an unidentifiable object(s) in his right hand. Appellant was identified at trial as the man holding the unidentifiable object(s) in his hand.
Bailey and Brantley pursued the two men in their vehicle. They were able to pull in front of appellant's vehicle, and, with some urging, removed him and Gant from the car. Gant was seated in the driver's seat and appellant in the front passenger seat. Bailey and Brantley only now noticed Jolly in the back seat since he was either hiding or asleep, and then removed him with the assistance of Cleveland police officers who arrived at the location.
Officer Oliver broadcast the ensuing events, and returned to the bridge. He approached Oreste Batista, the
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