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Man who shot, killed infant boy loses appeal
JESSICA SHAMBAUGH
Special to the Legal News
Published: April 9, 2014
A convicted murderer recently lost his appeal when the 10th District Court of Appeals rejected his motion to vacate his sentence and convictions for lack of subject-matter jurisdiction.
Toby Wilcox was indicted on six counts of aggravated murder with death penalty specifications and counts of attempted aggravated murder, kidnapping, aggravated burglary and aggravated robbery in March 2004.
The charges stemmed from the shooting deaths of Habu Westbrook and Alamar Wright in May 2003.
Wilcox pleaded not guilty to the charges and the matter proceeded to a jury trial in the Franklin County Court of Common Pleas.
At trial, the state provided evidence that Westbrook was living with his fiancé and her infant son at the time of his death.
He supported his family by selling marijuana, according to his fiancé.
She testified she was at home with Westbrook and her child when Westbrook stepped outside to talk to another man.
When she stepped outside to join him, the woman said a man confronted her and forced her back into the apartment at gunpoint while another man did the same to Westbrook.
She said she heard Westbrook and the man, later identified as Wilcox, fighting in the kitchen.
She heard a gunshot and saw Westbrook laying in the kitchen floor before the men started to search her for money and drugs.
The woman testified that she lost consciousness when one of the men pointed a gun in her face.
When she regained consciousness her child, Wright, had a gunshot wound to the head.
Police found Westbrook and Wright dead with injuries to their heads. Wright was only 33 days at the time of his death.
The jury found Wilcox guilty of all charges and the trial court sentenced him to life without parole.
Wilcox’s sentences and convictions were affirmed on direct appeal.
On Feb. 27, 2013, Wilcox filed a motion to vacate his sentence and conviction for lack of subject-matter jurisdiction.
He argued that the grand jury in his case was not permitted to serve more than nine months but issued his indictment after having served for more than 10 months.
The trial court denied that motion and Wilcox appealed to the 10th District.
Upon review, the three-judge appellate panel found that the grand jury in Wilcox’ case issued his indictment on March 22, 2004.
The indictment indicated that the grand jury’s term began on May 9, 2003, more than nine month’s prior to the indictment’s issuance.
“However, the state presented compelling evidence to the trial court which demonstrates that the stated grand jury term in appellant’s indictment was an error. The grand jury that indicted appellant did not begin its term on May 9, 2003 but, instead, began its term on Jan. 9, 2004. This date is within nine months of the filing of appellant’s indictment,” Judge William Klatt wrote for the court.
Finding that the issue was merely a clerical error, the judges concluded that the indictment was properly issued and overruled Wilcox’ argument.
He next claimed that the indictment did not clearly set forth the offense of kidnapping for one of the counts of aggravated murder.
The judges, however, found that the offense was properly set forth.
“Thus, this argument is not well-taken,” Judge Klatt stated.
“Having found no error in the trial court’s decision to deny appellant’s motion, we affirm the judgment of the Franklin County Court of Common Pleas.”
Judges Gary Tyack and Susan Brown concurred.
The case is cited State v. Wilcox, 2014-Ohio-1068.
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