[Cite as State v. Williamson, 2011-Ohio-4095.]



                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 95732



                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                             CORTEZ WILLIAMSON
                                                       DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-534287

                BEFORE:             Blackmon, J., Kilbane, A.J., and Cooney, J.

               RELEASED AND JOURNALIZED:                      August 18, 2011
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ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: John Hanley
Blaise D. Thomas
Asst. County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:

      {¶ 1} Appellant Cortez Williamson (“Williamson”) appeals his conviction

for murder and assigns the following four errors for our review:

      “I. The trial court erred in denying appellant’s motion for
      acquittal as to the charges when the state failed to present
      sufficient evidence against appellant.”

      “II. Appellant’s convictions are against the manifest
      weight of the evidence.”

      “III. The trial court erred when it overruled a motion to
      suppress statement where appellant exercised his right to
      counsel while being interrogated by homicide detectives
                                     3
      but was continued to be interrogated and the statements
      used against him in violation of Section 10, Article I, of the
      Ohio Constitution and Fifth, Sixth, and Fourteenth
      Amendments.”

      “IV. The trial court erred in forcing appellant to choose
      between the jury instruction of self-defense and the
      lesser-included offense of voluntary manslaughter in
      violation of Section 10, Article I, of the Ohio Constitution
      and the Sixth and Fourteenth Amendments.”

      {¶ 2} Having reviewed the record and pertinent law, we affirm

Williamson’s conviction. The apposite facts follow.

      {¶ 3} The Cuyahoga County Grand Jury indicted Williamson for one

count each of murder, discharge of a firearm on or near a prohibited premises,

tampering with evidence, and carrying a concealed weapon.         He was also

indicted for having a weapon while under disability to which he pled

separately.

      {¶ 4} Prior to trial, Williamson filed a motion to suppress his statement

to police, contending the police violated his right to an attorney by continuing

to question him after he requested an attorney. The trial court denied the

motion to suppress, and the matter proceeded to a jury trial.

      {¶ 5} At trial, Williamson did not dispute that he shot the victim.    He

contended that he either acted in self-defense or as a result of sudden passion

to support a voluntary manslaughter charge.

      {¶ 6} On January 27, 2009, at around 2:30 p.m., Dexter McWorther

(“Dexter”) was shot and killed outside of Joe D’s Third World Lounge located
                                    4
at East 135th Street and Miles Avenue. Prior to closing time, there was a

disturbance near the entrance of the bar.       Williamson had pulled off

Antoinette Jefferson’s (“Antoinette”) hair extension.   Enraged, Antoinette

punched Williamson several times in the face; Williamson responded by

punching her in the face. A crowd gathered to separate the two. Antoinette

was eventually carried away by a male friend.

     {¶ 7} Jerome Fuller (“Jerome”), Sheldon Starling (“Sheldon”), and

Dexter were leaving the bar at the time of the altercation. As Jerome walked

past Williamson, he began calling Jerome names.     Jerome had never met

Williamson. Williamson’s group then began yelling at both Jerome and

Sheldon.   Sheldon attempted to shake Williamson’s hand to diffuse the

situation, but Williamson slapped it away. Dexter then approached to inquire

what was going on.

     {¶ 8} Williamson swung at Sheldon, and he responded by         pushing

him back. Williamson stumbled back and again tried to swing at Sheldon, who

again pushed him back. Sheldon stated that because of the way Williamson

was stumbling, he appeared to be intoxicated.     The second time Sheldon

pushed him, Williamson smiled at him and pulled a pistol out of his

waistband. Everyone ran. At least four shots were fired. As Sheldon was

running, Dexter yelled to him that he was hit. Sheldon pulled Dexter behind

a car and waited with him for an ambulance.       Dexter later died at the
                                       5
hospital. According to Jerome and Sheldon, no one else but Williamson had a

gun. They testified that no one had threatened Williamson and that there

was no reason for him to start shooting.

      {¶ 9} Williamson testified at trial.    He admitted that he brought his

gun to the bar and that he fired the shots that killed Dexter. He admitted

being intoxicated that night and that his recollection of events was “fuzzy.”

He claimed he fired his gun because the crowd was “running up on me” and he

was “scared” and “snapped.” He also admitted he fled the scene and threw

his gun into Lake Erie. He was arrested a week later when police discovered

him hiding in a hotel.

      {¶ 10} The jury found Williamson guilty of murder, discharging a firearm

near a prohibited premises, tampering with evidence, and carrying a concealed

weapon, along with the accompanying firearm specifications. The trial court

sentenced him to a total of 15 years to life in prison.

                                Insufficient Evidence

      {¶ 11} In his first assigned error, Williamson argues there was

insufficient evidence to support his conviction for murder.

      {¶ 12} Crim.R. 29 mandates that the trial court issue a judgment of

acquittal where the state’s evidence is insufficient to sustain a conviction for

the offense. Crim.R. 29(A) and sufficiency of evidence review require the same
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analysis. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d

386.

       {¶ 13} In analyzing the sufficiency issue, the reviewing court must view

the evidence “in the light most favorable to the prosecution” and ask whether

“any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307,

319, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus; State v. Carter, 72 Ohio St.3d

545, 1995-Ohio-104, 651 N.E.2d 965.

       {¶ 14} Pursuant to R.C.   2903.02(A), a conviction for murder requires

the state prove that Williamson “purposely caused the death of another.”

Williamson argues that he did not purposely kill Dexter but acted out in

self-defense. The affirmative defense of self-defense has three elements: (1)

the defendant was not at fault in creating the violent situation, (2) the

defendant had a bona fide belief that he or she was in imminent danger of

death or great bodily harm and that his or her only means of escape was the

use of force, and (3) that the defendant did not violate any duty to retreat or

avoid the danger.    State v. Williford (1990), 49 Ohio St.3d 247, 249, 551

N.E.2d 1279.

       {¶ 15} Williamson claims the evidence shows that he was surrounded by

numerous males who were threatening him; therefore, he acted in
                                     7
self-defense.   Although Williamson and his brother testified that the men

were threatening him, the state’s witnesses testified that no one was

threatening Williamson.      In order to assert the defense of self-defense,

Williamson had to prove that he was not the aggressor. The state’s evidence

showed that the group was attempting to calm Williamson who was upset due

to the altercation he had with Antoinette. In fact, both Sheldon and Jerome

testified that Williamson was acting aggressively toward them when they

attempted to calm him.       According to Sheldon, Williamson attempted to

punch him several times.       Therefore, the evidence supported the state’s

contention that Williamson was the aggressor. Additionally, no one else had a

weapon besides Williamson; therefore, there was no evidence he was in danger

of imminent death or great bodily harm that would justify the use of the gun.

      {¶ 16} The evidence also does not support his claim that his actions

constituted     voluntary   manslaughter.      The   elements    of   voluntary

manslaughter are: “No person, while under the influence of sudden passion or

in a sudden fit of rage, either of which is brought on by serious provocation

occasioned by the victim that is reasonably sufficient to incite the person into

using deadly force, shall knowingly cause the death of another * * *.” R.C.

2903.03(A).

      {¶ 17} Williamson argues that he reacted because he was angry due to

being pushed and hit.       The only person who had struck Williamson was
                                    8
Antoinette who punched Williamson several times because he pulled off her

hair extension.   The evidence showed Antoinette was 5'2" and 115 pounds

and that Williamson was 6'6" and 250 pounds. Thus, although Antoinette

punched him several times, the size difference between them does not support

his contention that he was provoked to the extent that the use of deadly force

was reasonable.

      {¶ 18} There was evidence that Sheldon pushed Williamson several times

but it was due to Williamson’s attempting to punch him.                 These

circumstances would not be enough for a reasonable person to become enraged

to the point of using deadly force. There was no evidence that anyone besides

Williamson had a weapon. Although Williamson contends that the murder

weapon was not recovered, he admitted at trial that he threw the gun into

Lake Erie.

      {¶ 19} Although Williamson may not have intended to kill Dexter, courts

have previously held that evidence that the defendant shot a gun into a crowd

of people was sufficient to establish the purposefulness element of R.C.

2903.02(A). State v. Carter (1996), 115 Ohio App.3d 770, 686 N.E.2d 329;

State v. Smith (1993), 89 Ohio App.3d 497, 624 N.E.2d 1114; State v. Cottrell,

Cuyahoga App. No. 81356, 2003-Ohio-5806.       Accordingly, Williamson’s first

assigned error is overruled.

                     Manifest Weight of the Evidence
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      {¶ 20} In his second assigned error, Williamson argues his conviction for

murder was against the manifest weight of the evidence.

      {¶ 21} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, the Ohio Supreme Court addressed the standard of review for a

criminal manifest weight challenge, as follows:

      “The criminal manifest-weight-of-the-evidence standard

      was explained in State v. Thompkins, 78 Ohio St.3d 380,

      1997-Ohio-52, 678 N.E.2d 541. In Thompkins, the court

      distinguished between sufficiency of the evidence and

      manifest weight of the evidence, finding that these

      concepts differ both qualitatively and quantitatively. Id. at

      386, 678 N.E.2d 541. The court held that sufficiency of the

      evidence is a test of adequacy as to whether the evidence is

      legally sufficient to support a verdict as a matter of law,

      but weight of the evidence addresses the evidence’s effect

      of inducing belief. Id. at 386-387, 678 N.E.2d 541. In other

      words, a reviewing court asks whose evidence is more

      persuasive — the state’s or the defendant’s? We went on to

      hold that although there may be sufficient evidence to

      support a judgment, it could nevertheless be against the

      manifest weight of the evidence. Id. at 387, 678 N.E.2d 541.
                                      10
      ‘When a court of appeals reverses a judgment of a trial

      court on the basis that the verdict is against the weight of

      the evidence, the appellate court sits as a “thirteenth

      juror” and disagrees with the factfinder’s resolution of the

      conflicting testimony.’      Id. at 387, 678 N.E.2d 541, citing

      Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72

      L.Ed.2d 652.”

      {¶ 22} Williamson contends that the jury simply felt compelled to find

him guilty because he shot the gun and no other defendants were on trial. As

we stated above, evidence was presented showing that Williamson possessed

the requisite intent to commit murder by firing the gun several times into the

crowd of people.       Accordingly, Williamson’s second assigned error is

overruled.

                             Motion to Suppress

      {¶ 23} In his third assigned error, Williamson argues that the statements

he made to police should have been suppressed because detectives continued

to question him in spite of his request for an attorney.

      {¶ 24} At a hearing on a motion to suppress, the trial court functions as

the trier of fact. Accordingly, the trial court is in the best position to weigh

the evidence by resolving factual questions and evaluating the credibility of

witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. On
                                      11
review, an appellate court must accept the trial court’s findings of fact if those

findings are supported by competent, credible evidence. State v. Retherford

(1994), 93 Ohio App.3d 586, 592, 639 N.E.2d 498.            After accepting such

factual findings as true, the reviewing court must then independently

determine, as a matter of law, whether the applicable legal standard has been

met. Id.

      {¶ 25} The detectives’ questioning of Williamson was videotaped; the

video was played for the trial court at the suppression hearing. Our review of

the video indicates that the detectives recited Williamson’s Miranda rights

prior to questioning him. Williamson stated that he understood the rights as

explained to him.     The detectives then prompted him to tell them what

happened.     For approximately eight minutes, Williamson does not say

anything. The following colloquy then occurred:

      {¶ 26} Williamson:   “I’m going to need a lawyer ain’t I?”

      {¶ 27} Detective:     “Pardon?”

      {¶ 28} Williamson:    “I’m going to need a lawyer.”

      {¶ 29} Detective:      “You’re going to need a lawyer?”

      {¶ 30} Williamson:       “Am I?”

      {¶ 31} The detectives then told Williamson that he had a right to an

attorney to be with him, but that the detectives could not give him legal

advice. Williamson then inquired if he would be able to talk with a lawyer
                                     12
that day. The detective explained that because it was the weekend, he could

not get a lawyer until Monday and would have to spend the weekend in jail

unless he privately retained a lawyer.      The detective resumed questioning

and Williamson, after several more minutes, admitted firing the gun.

      {¶ 32} The trial court concluded that Williamson’s inquiry regarding his

right to an attorney did not amount to an unequivocal request for an attorney.

 We agree. “A request for counsel must be clear and unequivocal.” Davis v.

United States (1994), 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362. “If

an accused makes a statement concerning the right to counsel ‘that is

ambiguous or equivocal’ or makes no statement, the police are not required to

end the interrogation or ask questions to clarify whether the accused wants to

invoke his or her Miranda rights.” Berghuis v. Thompkins (2010),           U.S.

     , 130 S.Ct. 2250, 2259-60, 176 L.Ed.2d 1098, citing         Davis at 459.

Whether a suspect invoked his or her right to counsel is a question that must

be examined “not in isolation but in context.” State v. Murphy, 91 Ohio St.3d

516, 520-21, 2001-Ohio-112, 747 N.E.2d 765.

      {¶ 33} Here, a review of the video shows that Williamson was equivocal

in discussing his need for an attorney. He never said he wanted an attorney.

Instead, he questioned whether he needed an attorney. “[A] reference to an

attorney that is ambiguous or equivocal in that a reasonable officer in light of

the circumstances would have understood only that the suspect might be
                                     13
invoking the right to counsel * * * does not require the cessation of

questioning.” Davis at 459.     Williamson’s statement, “I’m going to need a

lawyer, ain’t I?” and inquiry regarding when a lawyer could be available, did

not constitute unambiguous requests for an attorney. He might have been

thinking about requesting an attorney, but he did not do so.

      {¶ 34} In fact, the U.S. Supreme Court in Davis found the similar

statement, “Maybe I should talk to a lawyer,” was not an unambiguous

request for counsel.    See, also, State v. Zuffino, 9th Dist. No. 21514,

2003-Ohio-7202 (statements, “I think I need a lawyer,” and “Maybe I should

talk to a lawyer,” and “I think that I would like an attorney” were deemed too

ambiguous to constitute requests for an attorney); State v. Knight, 2d Dist. No.

04-CA-35, 2008-Ohio-4926 (defendant’s inquiry “Well, can I talk to my lawyer

then if there is something wrong like that? Do I need one or something?”

held to be equivocal requests for counsel); State v. Simmon, Cuyahoga App.

No. 86499, 2006-Ohio-4751 (defendant was only hypothesizing when he said

he would speak to police “with a lawyer and all that stuff, too,” and repeated

upon further questioning, “I’m going to have to get a lawyer and all that stuff

there, I mean,” and failed to say yes when police asked “Oh, you * * * want to

get a lawyer?”); State v. Neal, 2d Dist. Nos. 2000-CA-16 and 2000-CA-18,

2002-Ohio-6786 (statement, “‘I probably ought to talk to an attorney’ is similar

to ‘I think I need a lawyer’ which Supreme Court in Davis, found ambiguous”);
                                      14

State v. Curtis, 10th Dist. No. 05AP-795, 2006-Ohio-4230 (defendant’s

question, “Can I have a public defender?” deemed ambiguous because he failed

to request an attorney after detective explained he could have a public

defender if he could not afford to retain an attorney.)             Accordingly,

Williamson’s third assigned error is overruled.

                                  Jury Instruction

      {¶ 35} In his fourth assigned error, Williamson argues the trial court

erred by refusing to instruct the jury on self-defense.

      {¶ 36} When reviewing a trial court’s jury instructions, the proper

standard of review for an appellate court is whether the trial court’s refusal to

give a requested instruction or giving an instruction constituted an abuse of

discretion under the facts and circumstances of the case. See State v. Wolons

(1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443. The trial court did not abuse its

discretion by ordering defense counsel to choose between an instruction on

voluntary manslaughter and self-defense. This court has previously held that

an instruction on voluntary manslaughter and self-defense is not possible

because the two legal theories are incompatible. State v. Loyed, Cuyahoga

App. No. 83075, 2004-Ohio-3961; State v. Brown, Cuyahoga App. No. 93007,

2010-Ohio-2460. As the court in State v. Harris (1998), 129 Ohio App.3d 527,

534-535, 718 N.E.2d 488, explained, voluntary manslaughter requires that the
                                      15
defendant be under the influence of sudden passion or a fit of rage, while

self-defense requires the defendant to be in fear for his own personal safety.

      {¶ 37} Although Williamson claims a self-defense instruction was

appropriate because he feared for his own personal safety, this fear does not

constitute sudden passion or fit of rage as contemplated by the voluntary

manslaughter statute.     State v. Mack (1998), 82 Ohio St.3d 198, 201, 694

N.E.2d 1328 (upholding refusal to grant an aggravated assault instruction

when defendant testified that he acted out of self-defense).        See State v.

Tantarelli (May 23, 1995), 10th Dist. No. 94APA11-1618 (testimony that

defendant was dazed, confused, and scared was insufficient to show sudden

passion or fit of rage); State v. Thompson (Feb. 23, 1993), 10th Dist. No.

92AP-1124 (“self defense on the one hand requires a showing of fear, whereas

voluntary manslaughter requires rage.”) Because counsel chose to request a

voluntary manslaughter instruction, which required a showing of rage, the

trial court properly denied his request to also give a self-defense instruction.

Accordingly, Williamson’s fourth assigned error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution. The defendant’s conviction having been affirmed,
                                    16
any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, A.J., and
COLLEEN CONWAY COONEY, J., CONCUR
