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State v. Flemming9/5/1996
victim. Oliver described Batista as laying on his back with a gunshot wound over his left eye. He broadcast over his portable radio that a man was shot and needed emergency medical service. Another Cleveland police officer, David Reuse, arrived at the scene within a minute. Both Oliver and Reuse, believing Batista to be close to death, took him to Metro General Hospital in a zone car rather than wait for EMS with an estimated arrival time of five to six minutes. Batista died several hours later without regaining consciousness.
A spent casing from a .25 caliber handgun, a hat, a lighter, a card from San Juan Batista Church, two packs of "Bugler" rolling papers and a comb were found near the location of Batista's body. There was testimony that Fulton Road bridge otherwise did not have much debris on it. Batista's wife, Evelyn, identified a majority of the personal belongings at trial as those of her husband. Reuse testified that Batista appeared to be a victim of a robbery. He noted that nothing fell from Batista's pockets as they placed him in the zone car. Oliver testified that as he assisted the victim, he did not remove any of his clothing, or anything from his pockets. He acknowledged lifting Batista's shirt to check for a pulse, but he testified that any items surrounding the victim had to be there prior to his and Reuse's arrival.
Bailey described appellant as arrogant at the time of his arrest. When asked if appellant stated anything to him, Bailey testified that appellant "said I was lucky," and if he knew how many rounds he had left in his gun, he would have "popped" me too. Brantley added that appellant acted as if nothing had happened, and as if he did not feel anything as a result of the incident.
Several items were recovered in the searches of appellant and his vehicle. Officer Brantley removed a .25 caliber semi-automatic handgun from appellant's front right coat pocket. A baseball bat was found on the running board between the driver's seat and door. A skullcap, a blue bandanna and a pair of ski goggles were uncovered in the front of the right front passenger seat. It was surmised that appellant carried one or more of these items in his hand as he ran from the bridge to his car. An unopened bottle of an alcoholic beverage was also observed on the front seat.
Appellant testified that as Gant drove over the Fulton Road bridge, they observed two girls on the sidewalk. Appellant, seeing the police officer's overhead lights activated ahead, advised Gant to pull into a parking lot rather than call attention to themselves by stopping on the bridge to speak with the girls. Appellant and Gant left the car, and approached the girls; the girls ran away. Appellant and Gant encountered an intoxicated Batista on their way back to the car. Appellant testified that Batista intentionally bumped into him, an act that angered him. The two men exchanged words, and then participated in a little tussling. Appellant admitted that he removed the handgun from his pocket, but could not recall how Batista was shot in the head because of his intoxicated state. Appellant conceded that the act of pulling out the gun was not done to protect himself, and denied that either he or Gant possessed a baseball bat when they encountered Batista.
Detective Gregory Kunz, an investigator in the Homicide Unit, first spoke with appellant while he was seated in a police cruiser at Fulton and Vega. Kunz testified that he immediately advised appellant of his rights, and asked him whether he understood the individual rights as they were provided to him. Appellant was also asked to supply personal information, including his social security number. Kunz testified that appellant, even though a
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