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Date: 01-20-2021
Case Style:
CITY OF CLEVELAND v. ROBERT M. UMSTEAD
Case Number: 109243
Judge: MARY EILEEN KILBANE
Court: COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
Plaintiff's Attorney: Barbara A. Langhenry, Cleveland Director of Law, Karrie
Howard, Chief Prosecuting Attorney, and Karyn J. Lynn,
Assistant Prosecuting Attorney
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Cleveland, Ohio - Criminal defense attorney represented Robert Umstead with a appeals his conviction after a bench trial for aggravated menacing, a misdemeanor under the Cleveland Codified Ordinances in Cleveland M.C. No. 2018 CRB 021900..
On December 10, 2018, Umstead was charged in M.C. No. 2018 CRB
021900 with aggravated menacing in violation of Cleveland Codified Ordinances
621.06. On July 29, 2019, he was arraigned on the charge. Umstead elected to
proceed with a bench trial, and on October 8, 2019, the trial court found him guilty.
On October 29, 2019, the trial court held a sentencing hearing. The
trial court imposed a $100 fine, 180 days in jail, with 177 days suspended and credit
for 3 days served, and placed Umstead on 2 years active probation. The court further
ordered Umstead to complete anger management classes and 60 hours of
community work service. The trial court extended the community control sanctions
that were in place as to Umstead’s pending traffic case.
This case resulted from a confrontation between Umstead and Willie
Palmer (“Palmer”). Palmer testified for the city of Cleveland (“the city”) that the
incident occurred at Shay’s parking lot (“Shay’s”) where Cassandra Samuel
(“Samuel”), Palmer’s girlfriend, worked. Palmer testified that he had dropped
Samuel off at Shay’s on Saturday morning, December 7, 2018. He left to get Samuel
something to eat, and when he returned in his truck, he noticed Umstead for the first
time. Palmer knew that Umstead was Samuel’s ex-boyfriend.
Palmer testified that Umstead was in his car and that when Palmer
got out of his truck, Umstead drove his car at him. According to Palmer, Umstead
revved the engine, stopping and starting several times, before eventually stopping
abruptly several feet from Palmer. Palmer admits that he was yelling at Umstead
throughout, and calling him names.
Umstead got out of his car and went to the trunk to grab a gun. He
pointed the gun at Palmer who continued yelling; Palmer testified that he believed
Umstead was going to shoot him. Umstead instead approached Palmer and hit him
with the gun. The two began wrestling. The fight ended when a person yelled that
the police were coming.
On cross-examination, Umstead’s trial counsel questioned Palmer
about his memory of the incident, including a line of questioning about the actual
date of the incident. Trial counsel indicated that he had a police report dated
December 4, days before Palmer stated the incident occurred. Palmer stated that he
was certain the incident occurred on a Saturday so the report must be wrong.
Samuel then testified. She stated that she had dated Umstead for
about nine years until they broke up in late 2017. Umstead would sometimes visit
his brother, a fellow employee at Shay’s, but she had not seen him since
approximately three months prior to the incident.
The day of the incident, she stated that she and Palmer first noticed
Umstead when Palmer returned to bring her food. On direct examination, she
testified that Palmer got out of his vehicle and began yelling at Umstead, taunting
him. Umstead did not reply, but instead drove his car towards Palmer, stopped,
exited his car, opened his trunk, and retrieved a pistol. Umstead then approached
Palmer and hit him with the gun. Palmer knocked the gun to the ground, where
Samuel later retrieved it and gave it to Palmer.
On cross-examination, Samuel testified that Umstead did not get out
of his car until he was called names by Palmer. She also said that it’s not unusual
for Umstead to be at the lot and agreed with Umstead’s trial counsel that Palmer
initiated a verbal dispute.
The city briefly reexamined Samuel and asked two questions. Samuel
stated on redirect that Umstead was revving his engine at Palmer before exiting the
vehicle and grabbing his gun.
After the two questions, the court told the witness she could have a
seat and the following exchange occurred between Umstead’s trial counsel and the
court:
DEFENSE ATTORNEY: Can I have one —
THE COURT: No. No.
DEFENSE ATTORNEY: One question.
THE COURT: No. All right?
DEFENSE ATTORNEY: I can’t recross?
THE COURT: No. No means no, right?
DEFENSE ATTORNEY: I want to recross.
THE COURT: I said no.
DEFENSE ATTORNEY: Is there a reason I don’t — I can’t —
THE COURT: Because I don’t do that in 12-B and it’s my
courtroom and I said no.
The city rested its case. Umstead then testified in his own defense.
Umstead said he was at the parking lot that morning and saw Samuel
and Palmer. He said he just wanted to talk to Samuel. He stated that after Palmer
returned and spotted him, Palmer pulled his truck in front of his, jumped out of his
vehicle, and called him names. He said he did rev his engine but that he also felt
threatened by Palmer. He said that he got out of his vehicle to go talk to Samuel and
then Palmer moved his truck, blocking him in. Umstead was asked if he hit Palmer
because he felt threatened. He said yes and said he never tried to shoot Palmer.
On cross-examination, Umstead reiterated that Palmer blocked him
in. He admitted that he hit Palmer first and that Palmer didn’t make overt threats,
stating that Palmer just came out of the vehicle yelling insults, and he interpreted
those as threats.
The trial court reviewed the aggravated menacing statute on the
record and found Umstead guilty of aggravated menacing. The trial court explained
its verdict, stating:
I think if I’m going to sit and wait and go in the back of my car and get
a gun and point it at somebody and then attempt to hit them. That
would cause me to believe that I was going to be harmed seriously. He
had no duty, no right to be on that property at that time. He certainly
had a duty to retreat, if he thought that he felt threatened. You feel
threatened but you’re going to sit and wait; that doesn’t even make
sense.
This appeal follows. Umstead presents five assignments of error.
Assignments of Error
I. The Evidence Was Insufficient To Prove That The Alleged Victim
Believed Appellant Would Cause Him Serious Physical Harm.
II. The Trial Court Abused Its Discretion By Adopting A Blanket Policy
Preventing Recross-Examination Resulting In A Denial Of A Fair Trial
And Due Process.
III. The Trial Court Denied Appellant A Fair Trial By Prohibiting
Impeachment By Prior Inconsistent Statement.
IV. Appellant Was Denied The Effective Assistance Of Counsel.
V. The Trial Court’s Verdict Was against the Manifest Weight of the
Evidence.
As we stated previously, we will be limiting our review to Umstead’s
second assignment of error. We find that his argument has merit and that the trial
court did abuse its discretion by imposing a blanket ban on recross-examination. As
a result, we reverse and remand consistent with this opinion and find that Umstead’s
other four assignments of error are moot.
The Second Assignment of Error: Recross-Examination
Ohio takes a broad approach to cross-examination. “Evid.R. 611(B)
requires trial courts to permit ‘[c]ross-examination * * * on all relevant matters and
matters affecting credibility.’” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio5735, 70 N.E.3d 508, ¶ 171. Unlike the analogous Federal Rules of Evidence, Ohio
does not limit the scope of cross-examination to the subject matter of direct
examination. State v. Treesh, 90 Ohio St.3d 460, 481, 739 N.E.2d 749 (2001).
Although “‘trial courts have wide latitude in imposing reasonable
limits on the scope of cross-examination,” courts should impose such limits “based
upon concerns about harassment, prejudice, confusion of the issues, the witness’s
safety, or repetitive, marginally relevant interrogation.’” State v. Henderson, 8th
Dist. Cuyahoga No. 106627, 2018-Ohio-3797, ¶ 18, quoting State v. Bolton, 8th Dist.
Cuyahoga No. 96385, 2012-Ohio-169, ¶ 41. Under no circumstances is a blanket
policy prohibiting all recross-examination appropriate.
The second assignment of error relates to the testimony of the state’s
second eyewitness, Samuel, who was then Palmer’s girlfriend and Umstead’s former
girlfriend. After her testimony and cross-examination, the state asked her two
questions on redirect. The first question on redirect was inaudible and could not be
fully transcribed for the record. The second question asked when Umstead revved
the car engine.
After the state’s redirect examination of Samuel, Umstead’s counsel
indicated that he had one more question for Samuel and asked the trial court for
permission to recross-examine the witness. After the trial court denied trial
counsel’s repeated requests to recross-examine Samuel, trial counsel asked the trial
court why the request was denied. The trial court responded: “Because I don’t do
that in 12-B and it’s my courtroom and I said no.”
Eyewitness testimony like Samuel’s can carry great weight
considering that a single credible eyewitness can sustain a conviction. State v.
Robertson, 8th Dist. Cuyahoga No. 106279, 2018-Ohio-2934, ¶ 30 (“A factfinder
may believe and convict a defendant based upon the testimony of a single
eyewitness, including the victim.”). The state was given the opportunity to
reexamine Samuel. Umstead’s counsel stated he had only one further question he
wished to ask Samuel on recross-examination, which mitigates any concerns that
might merit a reasonable limit on recross-examination. Nevertheless, his request to
briefly recross Samuel was denied with no reason other than “I don’t do that in 12-
B and it’s my courtroom and I said no.”
This statement demonstrates that the trial court had a blanket
prohibition on recross-examination. The trial court abused its discretion in
imposing this blanket prohibition, and Umstead was denied a fair trial as a result.
We reverse Umstead’s conviction as to Cleveland M.C. No. 2018 CRB
021900 and remand for a new trial. Umstead’s other four assignments of error are
disregarded as moot.
It is ordered that appellant recover from appellee costs herein taxed.
Outcome: The court finds there were reasonable grounds for this appeal.
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Defendant's Experts:
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