Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Tucker

Court of Appeals of Ohio, Eighth District

June 20, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CHRISTOPHER TUCKER DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-437731

ATTORNEYS FOR APPELLANT Robert L. Tobik Chief Public Defender Erika B. Cunliffe Assistant Public Defender

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, Katherine Mullin Assistant County Prosecutor 8th Floor Justice Center.

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

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, JUDGE.

{¶ 1} Appellant Christopher Tucker appeals the trial court's denial of his petition for postconviction relief and motion for new trial and assigns the following errors for our review:

I. The trial court violated Mr. Tucker's constitutional right to due process and violated this court's order on remand by significantly narrowing the scope of his evidentiary hearing.
II. The trial court violated Mr. Tucker's right to due process when it denied relief and a new trial notwithstanding the presentation of new evidence which provided credible support for his longstanding alibi.

{¶2} Having reviewed the record and pertinent law, we affirm the trial court's decision. The apposite facts follow.

Facts

{¶3} Tucker was convicted of aggravated murder for the shooting death of Timothy Austin on May 22, 2003, outside Whatley's Lounge in Cleveland, Ohio. At trial, Nikia Beal and Joseph Fussell were the only witnesses to identify Tucker as the shooter. Beal was with Austin at the bar. She testified that she noticed Tucker inside the bar because he had been staring at her. When she and Austin walked outside the bar she heard gunshots and saw Austin fall to the ground. She stated she was looking at Tucker while he shot Austin and that he did not stop shooting until he was out of bullets. According to Beal, the area of the shooting was well lit by street lights. On her way home, someone told her the shooter's name was Christopher Tucker. She searched his name on the internet and found a photograph that matched the man she saw shoot Austin. She did not immediately go to police out of fear of retaliation. About a month after the shooting the police came to her apartment to question her.

{¶ 4} Fussell testified at trial that he had attended high school with Tucker. He saw Tucker at the bar and gave him a hug. Fussell then left to buy a cigar from the gas station across the street. He heard gunshots and saw Tucker shooting Austin. Fussell waited to contact officers until the next day out of fear. Although he knew Tucker, he could not recall his name. He identified Tucker after looking at photographs in a mug shot book.

{¶ 5} At trial, Tucker maintained he was inside the bar during the shooting and presented witnesses, who were also his friends, in support of his alibi. One of his friends, Lahondra Hill, originally told police that Tucker was outside when the shootings occurred but later changed his testimony at trial. Tucker's other friend, Stefan King, did not provide police with a statement. However, he testified at trial that Tucker was inside the bar. Tucker admitted that he knew Austin and that Austin had carjacked him in 1996 and had never apologized.

{¶ 6} Austin was in prison from 1996 until a month prior to the shooting. Tucker had just been released from prison two days prior to the shooting. Therefore, Tucker had seen Austin for the first time since the carjacking at Whatley's bar.

{¶7} The jury found Tucker guilty of aggravated murder and a firearm specification. The trial court sentenced him to three years for the firearm specification to be served consecutive to life in prison for the aggravated murder.[1] Tucker filed an appeal, and we affirmed his conviction. State v. Tucker, 8th Dist. No. 83419, 2004-Ohio-5380 ¶Tucker I").

{¶ 8} Thereafter, Tucker filed a petition for postconviction relief on April 24, 2004, arguing, among other things, that he was told that Nikia Beal had stated after the trial that she did not see the shooter because she ran once she heard the gunshots. He contended he could provide affidavits of people attesting to Beal's recantation; however, he failed to attach any evidence regarding her recantation to the petition.

{¶ 9} Tucker also filed a motion for a new trial on August 2, 2004, in which he argued that a new trial was warranted because Joseph Fussell had recanted. Attached to his motion was an affidavit from Fussell simply stating, "what I said I saw last year in May at Whatley's Bar is not what I really saw. I was mistaken. It was not Christopher Tucker."[2]

{¶ 10} The trial court concluded that Tucker's petition for postconviction relief was untimely and that the recantation of one witness when two witnesses identified Tucker as the killer was insufficient to grant a new trial. Instead of immediately filing an appeal to this court, Tucker waited until June 2, 2006, to file a motion for a delayed appeal, which we denied. State v. Tucker, 8th Dist. No. 88254 (July 6, 2006) ("Tucker II").

{¶ 11} On August 2, 2007, Tucker filed a second petition for postconviction relief and a motion for a new trial. In support of these motions, he presented an affidavit from D.R., [3] who stated that Tucker was inside the bar at the time the shooting took place outside the bar. D.R. stated that she did not know Tucker or his family, but was a neutral observer. The trial court denied the motions without a hearing. Tucker appealed the trial court's denial of the motions. This court agreed that the trial court should have conducted a hearing regarding D.R.'s affidavit, but also held that Tucker's attempt to appeal the denial of his first petition for postconviction relief and motion for new trial were barred by res judicata because we had denied his delayed appeal in Tucker II. State v. Tucker, 8th Dist. No. 90799, 2008-Ohio-5748 ("Tucker III").

{¶ 12} Prior to the court conducting the hearing on remand, Tucker again attempted to appeal from the trial court's denial of his first petition for postconviction relief and motion for a new trial that he attempted to appeal in Tucker II. He argued his appeal was timely filed because he was never served with ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.