Youngstown Daily Legal News

Court rules admission of YouTube video was harmless error in murder trial

ANNIE YAMSON
Special to the Legal News
Published: June 3, 2015

In the 6th District Court of Appeals, a panel of three judges recently considered whether online media can be used during a murder trial in order to prove gang affiliation.

This was the second gang-related murder appeal out of the Toledo area this month for the 6th District court.

The appellate panel ultimately ruled that, although the Lucas County Court of Common Pleas admitted a YouTube video as evidence in error, defendant Daurin “38” Patton was not prejudiced in light of the overwhelming evidence proving that he killed two people on Nov. 25, 2011.

Case summary states that Patton gunned down 14-year-old Timothy Blair and his mother, Veronica Serrano, in front of their Toledo home.

At the time of the shooting, Timothy’s older brother, Gary Blair, was inside the house.

Gary Blair testified at trial that, early on the night of the killings, he was walking down the street with his friend, Lawrence Elliott, when a man dressed in all black struck him in the head with a sawed-off shotgun.

Elliott testified that the man pointed the shotgun at him and stole a bottle of Jim Beam liquor that he was holding.

When Serrano learned of Blair’s injuries, she confronted the man in black and threatened to call the police.

Multiple witnesses testified at trial that the man in black told Serrano that he would kill her if she reported the incident.

Serrano did not call the police, but others did. Eyewitness testimony at trial established that, as police pulled up to Serrano’s house, the man in black walked away.

Serrano spoke to the police and told them that everything was fine. When the police left, the man in black returned and shot Serrano and Timothy.

Though Patton presented three alibi witnesses in his defense, he was identified as the shooter by every eyewitness to the killing.

Blair testified that, while he was inside the house and shortly before Timothy’s death, he heard Timothy say, “No, no, no, no 38. It’s my brother, it’s all cool.”

The first officers on the scene also testified at trial. They told the jury that Serrano was alive when they arrived and she told them that 38 shot her.

Patton was ultimately found guilty of the aggravated murders of Timothy and Serrano and he was sentenced to consecutive terms of life in prison without parole along with consecutive prison terms for fire specifications and aggravated robbery.

He was tried separately for participation in a criminal gang.

On appeal to the 6th District court, Patton challenged the admissibility of a YouTube video that the state presented as evidence during his trial.

The video depicted two alleged members of the “Bagdad Boyz” gang rapping with a semi-automatic rifle.

The state used the video in an attempt to prove that Patton, as a member of the Bagdad Boyz, had access to assault weapons of the type used to kill Timothy and Serrano.

Patton claimed the admission of the video violated his Sixth Amendment right to confront witnesses and that the video was inadmissible hearsay.

The state, on the other hand, argued that the video was admitted without sound and, therefore, was not an admission of a testimonial statement.

Instead, the state questioned a detective who had listened to the audio and who testified about references to gang affiliation and weapons made in the video.

“The court’s ruling permitted introduction into evidence of the out-of-court statements of the young men, voiced by Officer Allen, that the Bagdad Boyz gang possessed a few SKS automatic rifles at the time of the video,” Judge Mark Pietrykowski wrote in the opinion he authored for the court of appeals.

“As neither of the young men testified at trial, admitting their out-of-court statements into evidence at trial denied appellant his Sixth Amendment right to confront witnesses against him and constituted an obvious defect in trial proceedings.”

The appellate panel upheld Patton’s claim that the video was irrelevant, especially because it was uploaded to YouTube in 2007, four years before the murders for which Patton was on trial.

It also pointed out that Patton did not even appear in the video.

“In our view, evidence that the gang had access to a few assault rifles in December 2007 is of little probative value in showing gang access to the weapons roughly four years later when the shootings occurred,” Pietrykowski wrote.

Despite that ruling, the court of appeals held that the admission of the video did not constitute prejudice.

“In our view, there was overwhelming evidence of appellant’s guilt, from eyewitness testimony at trial and statements from the two victims themselves — the dying declaration by Veronica Serrano and the excited utterance by Timothy Blair made shortly before his death,” Pietrykowski wrote. “Eyewitnesses included not only individuals directly confronted by appellant that night, but also neighbors up and down the (street) who testified as to what they saw or heard outside.”

Pietrykowski wrote that the reviewing court would reach the same guilty verdict even if it considered the evidence for the first time without the YouTube video.

“Accordingly, we conclude the admission of the YouTube video at trial did not affect the substantial rights of appellant and was harmless error,” he concluded.

The appellate panel proceeded to consider Patton’s multiple remaining arguments, addressing the sufficiency and manifest weight of the evidence and alleged prosecutorial misconduct before ultimately affirming his convictions.

Presiding Judge Stephen Yarbrough and Judge Arlene Singer joined Pietrykowski to form the majority.

The case is cited State v. Patton, 2015-Ohio-1866.

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