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State v. Eubanks4/22/1999
DATE OF ANNOUNCEMENT OF DECISION: APRIL 22, 1999
JUDGMENT: AFFIRMED
Defendant-appellant Herman Eubanks ( appellant ) appeals from his conviction for aggravated murder with a gun specification.
Appellant assigns the following errors for review:
I. THE TRIAL COURT ERRED BY FAILING TO GIVE AN INSTRUCTION OF VOLUNTARY MANSLAUGHTER TO THE JURY.
II. THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION FOR MISTRIAL.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO REDACT CERTAIN PORTIONS OF APPELLANT'S TAPE RECORDED STATEMENT TO POLICE WHICH AMOUNTED TO EVIDENCE OF OTHER ACTS.
IV. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
V. THE CONVICTION SHOULD BE REVERSED BECAUSE THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
Appellant has raised the following supplemental assignments of error, pro se.
I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND PLAIN ERROR BY ALLOWING THE PROSECUTION OF THE DEFENDANT TO PROCEED WHILE KNOWING THE STATE HAD DESTROYED THE CRIME SCENE AND EXCULPATORY EVIDENCE.
II. DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
Finding the appeal to lack merit, the judgment of the trial court is affirmed.
I.
On September 20, 1996, Cleveland police went to 2650 East 93rd Street in response to a call regarding a shooting at that address. Officer McPike observed an unconscious woman in an ambulance outside the residence. Upon entering the home, Officer McPike noticed blood on the couch and floor in the living room. Two spent shell casings were on the floor and one live round of ammunition was located in a hallway leading to the living room. No one was there at first but the victim's children soon arrived on the scene.
At about 8:00 p.m., the daughters of victim Lanita Eubanks were upstairs in their home. Seventeen-year old Alisha Carpenter was in her mother's bedroom, braiding the hair of her friend, Kisa Williams. Alisha Carpenter's sixteen-year old sister, also named Lanita, stood in the upstairs hallway, ironing. Alisha Carpenter heard appellant's truck arrive at the home. None of the girls heard any conversation, fighting, or yelling between appellant and Lanita Eubanks, appellant's wife. Appellant walked up the stairs and past Lanita Carpenter in the hallway. Appellant entered the bedroom where Alisha Carpenter and Kisa Williams were. He took a gun case from under the dresser. Appellant placed the gun case on the bed and removed a rifle. Appellant left the bedroom carrying the rifle and went downstairs. Appellant never spoke to any of the girls. Three gunshots were heard by the girls. Alisha Carpenter heard appellant say Now that's what you get. Kisa Williams and Alisha Carpenter briefly hid in a closet in Alisha's bedroom. They heard appellant return back upstairs to Lanita Eubanks' bedroom, then go downstairs and outside to his truck.
The three young women went downstairs. Lanita Eubanks had fallen back on the couch where she had been seated. Lanita Carpenter saw blood on her mother's abdomen and tears in her eyes. Alisha Carpenter called 911 before the girls left the house to obtain assistance from their neighbors.
Thirty-two year old Lanita Eubanks died from two gunshot wounds which penetrated the left side of her trunk. She also was shot in her right knee. At the time of her death, Lanita Eubanks had a blood alcohol level of .21. The coroner also discovered marijuana in her system.
The rifle used in the shooting was brought to detectives in the Homicide Unit of the Cleveland Po
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