The Akron Legal News

Murder conviction upheld for man in drug deal gone bad

ANNIE YAMSON
Special to the Legal News
Published: August 14, 2015

The 2nd District Court of Appeals upheld murder convictions from a drug deal that soured but did reverse two convictions of attempt to commit felony murder.

A series of other convictions of Michael Harwell related to the drug deal were also upheld.

The original convictions were made in the Montgomery County Court of Common Pleas.

Appealing pro se in the 2nd District Court of Appeals, Harwell challenged the convictions and sentence he received after he was found guilty of multiple criminal offenses following a jury trial.

A 14-count indictment against Harwell charged him with two counts of felony murder, two counts of attempt to commit felony murder, six counts of kidnapping, three counts of felonious assault and one count of having a weapon under disability.

The charges stemmed from Harwell’s actions after a drug deal gone awry on the night of June 15, 2012.

Harwell was found guilty of kidnapping two men, Jonathon Lambes and Jason Miller, driving them to Guthrie Road in Dayton and firing several gunshots at them.

Lambes was able to escape and testify against Harwell at his trial. Miller, however, was killed.

Case summary states that, in June 2012, Miller introduced Harwell, whom he referred to as “B,” to Lambes. At trial, Lambes testified that Miller wanted to get cocaine for Harwell.

Following Miller’s request, Lambes called his cocaine supplier, Lori Peak, and arranged a drug sale.

Peak also testified at trial, saying she reluctantly agreed to meet Harwell and sell him two ounces of cocaine for $2,400.

She told the jury that she cut her cocaine with baking soda, resulting in a mixture that was only 70 percent cocaine.

The sale was conducted at Peak’s residence with several witnesses present, including Angela Stark, who would also testify at Harwell’s trial.

Shortly after the sale, Harwell called Peak at her home and demanded his money back because he was unable to cook the two ounces of cocaine into crack.

Harwell threatened to “shoot up (her) house” and kill Peak’s children if she did not return the cash.

But Peak had already delivered the money to her cocaine supplier and, when Lambes arrived at her house, she blamed him for bringing Harwell to her home.

Later that night, Harwell returned to Peak’s home and demanded his money back. Lambes testified that he told Harwell he could get the money and Harwell agreed to drive to a “place near Indian Lake” to retrieve it.

When Lambes got into Harwell’s truck, Harwell told him that he is “not going out there to get set up” and he drove Lambes to a Domino’s Pizza parking lot.

There, several other men joined Harwell, who made a call to Miller and informed him that he had Lambes held hostage. Miller was instructed to meet them at a location on John Street.

Miller’s fiancé testified that, at approximately 11:20 p.m., she received a text message from Miller saying, “Come to John. If I’m dead, they killed me.”

Once Miller arrived at the specified location, Harwell patted him down, made him sit in the back seat of the truck in which Lambes was already a passenger, and drove them to a location off the highway. They were followed by Harwell’s friend who was driving a purple car.

At the new location, Harwell’s friend told Miller to sit in the truck while Harwell pushed Lambes to the ground.

Lambes, however, got up and fled into the nearby woods. As he was running, he heard four to five gunshots, a pause, a car door opening and closing, two more gunshots, a scream and then two more gunshots.

After finding help, Lambes was taken to a local Kroger store by a stranger and then picked up by his mother.

A passer-by, Paula Hawkins, placed a 911 call soon after the shooting. She alerted the police to a body lying on Guthrie Road. Miller was subsequently pronounced dead at the scene.

Plastic baggies containing cocaine and heroin were also found at the scene, as were multiple shell casings.

Phone records eventually corroborated Lambes’ version of events and cellular tower service analysis placed Harwell’s phone in the area of the murder at the time that it was committed.

BMV records tied Harwell to the truck that he was seen driving at the time of the drug sale and Lambes testified that it was the same truck in which he was transported.

Lambes, Peak and Stark all identified Harwell as the man they knew as “B.”

Harwell attempted to establish an alibi but could not account for his whereabouts at the time of the shooting.

After a week-long jury trial, Harwell was found guilty on all charges and he was sentenced to 32 years to life in prison.

On appeal to the 2nd District court, Harwell raised nine assignments of error in an initial brief but then filed two supplemental merit briefs.

In the end, his appeal included 14 assignments of error and the district court’s three-judge appellate panel found merit to only one of them.

Of seven separate ineffective assistance of counsel claims, Harwell’s second assignment of error asserted that his trial counsel was ineffective for failing to file a motion to dismiss counts three and four of his indictment, which charged him with attempt to commit felony murder.

“The state concedes that the charges must be vacated for other reasons announced in State v. Nolan,” Judge Jeffrey Welbaum wrote on behalf of the court of appeals.

In the Nolan case, the Ohio Supreme Court held that “attempted felony murder is not a cognizable crime in Ohio.”

The high court explained that “one cannot commit an attempt offense unless he or she has acted purposely or knowingly.”

“For felony murder, though intent to commit the predicate felony is required, intent to kill is not,” Welbaum wrote. “Therefore, a person can be convicted of felony murder even though the death was unintended.”

“Because it is impossible to purposely or knowingly cause an unintended death,” the high court held that attempted felony murder cannot be a crime.

“Therefore, due to the fact that attempted felony murder is not a cognizable crime and cannot stand, Harwell’s attempted felony murder convictions under counts three and four must be vacated and the case remanded for purposes of resentencing the counts and firearm specifications that were merged with counts three and four,” Welbaum wrote.

Harwell’s remaining assignments of error further challenged the assistance of his counsel as well as the trial court’s jury instructions and the sufficiency and manifest weight of the evidence supporting his convictions.

The appellate panel found little to uphold Harwell’s other claims and it affirmed the judgment of the Montgomery County court with regard to the remaining convictions.

“Accordingly, the judgment of the trial court is affirmed in part, vacated in part, and remanded for the limited purpose of resentencing as set forth above,” Welbaum concluded.

Judges Mary Donovan and Michael Hall joined Welbaum to form the majority.

The case is cited State v. Harwell, 2015-Ohio-2966.

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