Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-560898
ATTORNEY FOR APPELLANT Joseph Vincent Pagano
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Kevin R. Filiatraut Daniel A. Cleary Assistant County Prosecutors
BEFORE: McCormack, J., Stewart, A.J., and Keough, J.
JOURNAL ENTRY AND OPINION
TIM McCORMACK, J.
(¶ l} Defendant-appellant, Tyshawn Kimmie ("Kimmie"), appeals his convictions for reckless homicide, murder, two counts of felonious assault, and firearm specifications. For the reasons that follow, we affirm Kimmie's convictions, but we reverse the trial court's sentence and remand for resentencing consistent with this opinion.
(¶ 2} On April 10, 2012, Kimmie and codefendants, Jontez Robinson and Kenneth White, were charged with aggravated murder in Count 1, murder in Count 2, and felonious assault in Counts 3 and 4, along with firearm specifications. The felonious assault charges also carried a criminal gang specification.
(¶ 3} On October 10, 2012, Kimmie filed a motion to suppress his post-arrest oral statement to the police. The trial court heard Kimmie's motion on October 15, 2012, and, thereafter, denied the motion on October 17, 2012. Following Kimmie's rejection of any plea discussions, a jury trial began on October 17, 2012. The jury found Kimmie guilty of a lesser included offense of Count 1 — reckless homicide, murder of Danica Nelson in Count 2, two counts of felonious assault, and the firearm specifications. Upon Kimmie's Crim.R. 29 motion for acquittal, the court dismissed the criminal gang specifications of Counts 3 and 4.
(¶ 4} The trial court sentenced Kimmie on November 2, 2012, to 15 years to life on Count 2 (merging Count 1 into Count 2 for sentencing purposes), three years on Count 3, and three years on Count 4. The court ordered all counts to run consecutively and consecutive to the three-year firearm specification (merged), for a total of 24 years to life. Kimmie objected to the court's imposition of consecutive sentences. Thereafter, Kimmie filed this timely appeal.
(¶ 5} Kimmie's convictions arose out of events that occurred following a back-to-school party held in the area of Longwood Ave. and East 36th Street in Cleveland, on August 26, 2011.
(¶ 6} In support of the charges, the state presented at trial the following evidence against Kimmie: security officer James Morgan's ("Morgan") testimony that the shooter, who was shooting toward E. 39th St. and Longwood Ave., was wearing a red jacket; state's exhibits Nos. 193 and 194, which contain front and back view photos of a distinctive hooded red, black, and white jacket, identified by Morgan as the jacket worn by the shooter; Morgan's testimony that the shooter with the red jacket threw the gun at Morgan; state's exhibit No. 232, referred to in trial as "the Kimmie weapon, " which was identified by Morgan as the gun the shooter in the red jacket threw at him; security officers Drummond's and Tate's testimony confirming shooting from the van in the area of E. 38th St. and Longwood Ave.; expert testimony that both the red jacket and the gun tested positive for Kimmie's DNA; the 16-year-old victim, K.J.'s, out-of-court and in-court identification of Kimmie as the shooter; expert testimony that the "Kimmie weapon" had fired six shots; Lizaria Moore's testimony identifying the red jacket as belonging to one of the boys in the area from where she heard gunshots; Raynell Williams's testimony placing Kimmie at the scene prior to hearing gunfire; and Kimmie's own statement in which he admitted shooting at the "Valley Boys."
(¶ 7} The area of Longwood Ave. and E. 36th St., where the party was held, was patrolled by TD Security. James Morgan, a security officer with TD Security, testified that he and other security officers were patrolling the area on the evening of August 26, and they broke up the party about 11:00 p.m.
(¶ 8} Morgan testified that while helping a stranded motorist in the area at approximately 1:00 a.m. on August 27, he heard shots fired about 50 feet away from where he and the other security officers were situated on the north side of E. 38th St. Among those shots, three or four were fired close to the security officers. Morgan and the other security officers, Victor Drummond ("Drummond") and William Tate ("Tate"), ran toward the area of the gunfire. Morgan saw two to three shooters standing behind a black van in a parking space on the corner of E. 38th St. and Longwood Ave. The shooters were standing on the north side of the van, leaning around the van and shooting into a crowd, southeast, toward the area of E. 39th St. and Dillard Ave. Morgan could not identify the object at which they were shooting, but he stated the shooters "were trying to fire at something."
(¶ 9} Morgan identified one of the shooters as wearing a white cap, a red and white jogging coat, and dark colored jeans, "somewhat skinny * * * maybe roughly 160, 170 pounds." He had a gun cocked to the side, like a "gangster, " and he was shooting toward the sidewalk on Longwood Ave. Morgan saw another individual near the van who was "a little bit shorter, a little bit heavier, * * * probably 180, 190, " wearing a black t-shirt and "light colored jeans, possibly shorts."
(¶ 10} Morgan heard constant firing from Longwood Ave. at E. 38th St., where he and his partners were situated. He focused on the shooter wearing the red jacket and screamed for the shooter to drop his weapon. The shooter in the red jacket ran toward Morgan, threw his gun at him, and ran away, toward the Bivens courtyard. Morgan picked up the discarded gun and locked it in his patrol car.
(¶ 11} Drummond and Tate also testified that they saw an individual shooting from the area of the van, on the corner of E. 38th St. and Longwood Ave., near the security officers. Tate saw one person shooting and one person holding a weapon. The person shooting from behind the van was "blindly firing into a crowd." The first shots he heard were fired from E. 38th St. and Longwood Ave., toward Dillard Ave. and E. 39th St., and then there was return fire from Dillard Ave. Tate saw two shooters, one with dark clothing and the other with a "light colored hat on." The shooter "with the dark bottom * * * [and] lighter hat" threw his gun at Morgan. Drummond testified that he saw the male with the white hat run through the courtyard entrance. The other male who was running from the area, "down 38th [street], " was wearing a red top. Tate confirmed on the stand that he recognized the following images taken from TD Security's surveillance video (state's exhibit No. 247) on the night of the shooting: the van from where the shooting had come, one of the shooters shooting his weapon, and the Bivens courtyard toward which four individuals had run.
(¶ 12} After the shooters ran off, Morgan, Drummond, and Tate proceeded to the area of Longwood Ave., where they heard there were shooting victims. The security officers observed gunshot wounds to James Willingham's foot, K.J.'s wrist, and Danica Nelson's head. Morgan himself saw shell casings "everywhere, " including a few to the east and west of Danica Nelson's lifeless body, and "a lot [from] where the black van and * * * the shooters" were shooting.[]
(¶ 13} Morgan saw Nelson lying in the area toward which the shooter in the red jacket had been shooting. He identified state's exhibit No. 232 — a Star .9mm caliber pistol — as the handgun that the shooter in the red jacket had thrown at him before running away and the same one that he had locked in his patrol car. Morgan also identified state's exhibits Nos. 193 and 194 as photographs of a red jacket like the one he saw the shooter wearing. While Morgan testified that he saw the face of the shooter wearing the red jacket, he could not identify the shooter from the police photo arrays with "100 percent certainty." Morgan did not know who fired the first shot.
The Red Jacket
(¶ 14} Police officer Frederick Beverly was dispatched to perform crowd control duties during a vigil held for Danica Nelson a day or two following the shooting. Beverly testified that during the vigil, a young lady handed him a plastic bag with a red jacket inside. Beverly identified state's exhibits Nos. 193 and 194 — photographs of the red jacket James Morgan testified the shooter who threw the gun at him was wearing — as that same jacket.
(¶ 15} Curtiss Jones, supervisor of the trace evidence department at the medical examiner's office, tested the jacket identified above as state's exhibits Nos. 193 and 194 for gunshot residue. He found three particles characteristic of gunshot primer residue on the right sleeve of the jacket. He removed samples from the hood and sleeve cuffs of the jacket in order to submit them for DNA testing.
(¶ 16} Dr. Nasir Butt, director of the DNA laboratory at the Cuyahoga County Regional Forensic Science Laboratory in the medical examiner's office, tested the swabs of DNA collected from the red jacket. He determined that Kimmie cannot be excluded as a possible contributor to that mixture.
The Kimmie Weapon
(¶ 17} Detective Michael Gibbs, a detective in the crime scene unit of the Cleveland Police Department, processed the crime scene in the early morning hours of August 27, 2011. He swabbed the collected items, which included the handgun retrieved by Morgan and identified in trial as "the Kimmie weapon, " for DNA evidence.
(¶ 18} Dr. Butt tested the swabs of DNA collected from the weapon. He found Kimmie's DNA on the trigger and the back strap of the gun. He testified that the probability of finding an unrelated individual at random from the public "as a possible source of the major DNA component obtained" from the back strap of the gun is one in 94 million in African-Americans. Dr. Butt referred to Kimmie as "the major contributor" of the DNA. With respect to the trigger of the same gun, Dr. Butt found the DNA to be a mixture of two individuals, of which Kimmie is a "possible contributor."
K.J.'s Testimony and Identifications
(¶ 19} K.J., who was shot in the wrist, testified that she attended the back-to-school party in the area of E. 36th St. and Longwood Ave. with Danica Nelson, Lizaria Moore, and K.J.'s sister, Demetria Linder. After they left the party, K.J. and her friends went to Longwood Ave., where they were standing around and talking. Nelson sat on the curb with Moore and another girl. K.J. heard an initial shot coming from Dillard Ave. going toward E. 38th St. "and then a lot [of shooting] started coming from E. 38th" toward their location.
(¶ 20} When K.J. heard the shots, she ran and hid under a white car, while Nelson and Moore lay on the ground under a tree. K.J. said her head was pointed east toward Dillard Ave. and her feet were pointed west toward E. 39th St. While K.J. was under the car, she looked up and saw one of the shooters shooting toward Dillard Ave. She saw the shooter point his gun straight out and not in the air. When she realized Nelson had been shot in the head, she placed her purse near the wound in order to stop the bleeding.
(¶21} K.J. testified that the shooter was "about 19 or 20 years old, brown skin, short haircut, " about 5'3" or 5'4", wearing a black shirt and denim pants, and she had seen him earlier that evening at the party. While K.J. initially told police that she could not see the shooter's face, she stated in court that she meant that she could not see any facial hair or tattoos. K.J. identified Kimmie as the shooter in a police photo array and also in the courtroom.
Crime Scene Evidence
(¶ 22} Detective Lem Griffin, the lead investigator in this case, testified that, based upon statements he obtained, he arrested Kimmie, who goes by the name "T.Y., " in connection with the homicide.
(¶ 23} Griffin testified that there were two sets of people, or two locations, involved in a "shoot-out, " as evidenced by the shell casings discovered in both locations. These locations were E. 38th St. - Longwood Ave., where "numerous" casings were found, and Dillard Ave. - Longwood Ave., where "maybe a couple shell casings or a bullet" were discovered. Griffin testified that Nelson was shot at 3914 Longwood Ave. According to Griffin, the angle from which Nelson was shot is not consistent with a shot having come from Dillard Ave. - Longwood Ave.
(¶ 24} Detective Gibbs collected several items from the crime scene, including spent shell casings from both ends of Longwood Ave. Gibbs testified that the majority of the shell casings were located in front of 3805 and 3809 Longwood Ave., the location from which Morgan testified the shooter with the red jacket was shooting around the van. Detective James Raynard, a technician with the crime scene unit, collected additional evidence from the scene. He testified that the majority of the suspected copper jackets and lead-bullet fragments were discovered near Longwood Ave. and Dillard Ave., the area toward which witnesses say the shooters were aiming and where Danica Nelson was found shot.
(¶ 25} Detective James Kooser, an expert in firearms examination, testified that he examined bullets, bullet fragments, and 30 spent cartridge cases that were collected from the crime scene. He also examined state's exhibit No. 232, the gun that the shooter with the red jacket threw at Morgan ("the Kimmie weapon"). He identified the gun as a Star .9mm, and he found it to be operable.
(¶ 26} Upon examining the 30 spent cartridge cases, Kooser determined that there were four firearms involved in the incident of August 27th, all of which were .9mm pistols. Of these cartridge cases, Kooser testified that 5 were from an unknown firearm, four were from a second unknown .9mm firearm, 15 were from a third unknown firearm, and 6 were fired from the Star .9mm pistol (state's exhibit No. 232) that the shooter in the red jacket threw at Morgan. Kooser testified, however, that he was not able to determine which weapon fired the shot that killed Nelson.
(¶ 27} Kooser examined the bullet fragment that came from the morgue where the medical examiner performed the autopsy of Danica Nelson. According to Kooser, this fragment, known as the morgue pellet, "is of no analytical value" because it is "[j]ust a teeny tiny fragment." He acknowledged, however, that it is possible that the fragment was fired from one of the four guns to which the 30 cartridge cases were attributed.
Additional Witness Testimony
(¶ 28} K.J.'s sister, Demetria Linder, testified that she was sitting on the curb with Nelson, Moore, and others when she first heard shots coming from E. 38th St. and Longwood Ave. She stated that shots were being fired back toward E. 38th St. from the corner where Linder and her friends had been standing. Linder testified that she knew there was more than one shooter from the different sounds the guns were making. She identified Kimmie's codefendant, Jontez Robinson, as a shooter. She stated that Robinson was with a group of boys who were not from the Longwood Ave. neighborhood. Prior to the shooting, she had witnessed two arguments. One of the arguments involved an older man she recognized from the Longwood Ave. neighborhood who was arguing with people she did not recognize. This group was on the southeast corner of Longwood Ave. and Bivens. She had also witnessed two girls fighting over a boy earlier in the evening.
(¶ 29} Lizaria Moore was at the party with K.J. and Nelson. She also testified that there was a fight during the party between two girls. After Moore and her friends left the party, they walked toward E. 39th St. and sat on the curb. She testified that she saw a group of boys she did not know, one of whom was wearing black, and one who was wearing a red and black hoodie. Some of the gunshots she heard came from the area where she saw the group of unknown boys. Moore identified state's exhibits Nos. 193 and 194 as the jacket one of the boys in that group was wearing.
(¶ 30} James Willingham was with Linder and the others after the party in the area of E. 39th St. - Longwood Ave. and Dillard Ave. - Longwood Ave. He testified that he was standing in front of 3914 Longwood Ave., facing the houses, when shots were fired from behind his right shoulder. After he heard the first shot from behind him, he then heard multiple shots firing. He pushed Linder to the ground and hid by the white car where K.J. was hiding. While hiding, he realized he had been shot in the foot. Once the shooting stopped, he hopped up and ran "around the corner" onto Dillard Ave. While running, he saw Nelson on the ground and realized that she had been shot.
(¶31} Raynell Williams, a resident of Longwood Ave., testified that he was home the night of the back-to-school party and was looking out his window after the party broke up. He heard arguing east of E. 39th St. on Longwood Ave. and he saw Kimmie standing outside with other people, "talking to his friends." Williams testified that he heard gunfire, "[m]ore than 10 maybe, " though he gave conflicting accounts as to the direction from which the gunfire came. Williams stated that he saw Kimmie before he heard the gunfire. He testified that upon hearing gunfire, he and his family got down on the floor and took cover.
(¶ 32} Prior to the trial, Williams gave a statement to the police and made a pretrial photo identification of Kimmie as the shooter, writing on the photo, "shooting, dropping the gun." His statement included a description of how Kimmie was shooting and a demonstration of how Kimmie fell. Williams also identified codefendant Robinson in a photo lineup. On the stand, however, Williams surprised the court when he stated that his statement was not his own; rather, he "was told this whole story, " and based on rumors, he "put the pieces together." After this statement, Williams admitted that he had previously expressed concern about testifying in open court.
(¶ 33} Officer Ryan McMahon, a Cleveland police officer in the fourth district, assisted in Kimmie's arrest on September 14, 2011, after a warrant was issued for his arrest. McMahon testified that after calling Kimmie's mother, he searched the home and discovered Kimmie hiding under a blanket in the basement. McMahon arrested Kimmie and took him to the homicide unit.
(¶34} Following Kimmie's arrest, Detectives Griffin and Ansari interviewed Kimmie. In the course of the interview, Kimmie made a statement concerning the shooting. Detective Griffin read Kimmie's statement to the jury. In his written statement, Kimmie states, "the Valley Boys got to busting us, so we started shooting at them." He also states, "I was shooting. I turned around and TD Security was standing there. I ran from them. I threw the gun on the ground. * * * I had on a red jacket. I took my jacket off and threw it on the ground near the parking lot."
(¶ 35} Kimmie later states, however, that he will "tell the truth now." Thereafter, Kimmie states, "After they started shooting, I went to the ground and shot four times in the air. I did not aim toward where the shots were coming from. I just shot in the air." Kimmie also denies shooting Nelson in his statement, saying, "Shawn told me that as they drove by the girl on the ground Shawn said, 'that's what that ho' get." Kimmie provides in his statement that no one from the police department induced him into making the statement.
Assignments of Error
I. The trial court erred by denying appellant's motion to suppress in violation of appellant's constitutional rights.
II. The trial court erred by denying appellant's request for jury instructions on negligent assault, involuntary manslaughter, and self-defense.
III. Appellant's constitutional rights were violated when the trial court denied his request to admit the transcript of his police interview into evidence where the state had introduced only a portion of it through an officer's testimony about appellant's written statement.
IV. Appellant was denied a fair trial when the trial court allowed inadmissible evidence to be introduced at trial.
V. The trial court erred when it denied appellant's motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions for felonious assault and murder.
VI. Appellant's convictions for felonious assault and murder are against the manifest weight of the evidence.
VII. The trial court erred by imposing consecutive sentences.
I. Motion to Suppress
(¶ 36} Detectives Griffin and Ansari interviewed Kimmie after his arrest. Griffin testified that prior to interviewing Kimmie, he phoned Kimmie's mother and informed her that the detectives had her son and they were not going to speak to him until his parents arrived, "out of due respect to them." Griffin testified that he verbally advised Kimmie of his Miranda rights, and he produced a written advisement of his rights as well. With both his mother and father present, Kimmie made a three-page written statement to the police. The entire interview was videotaped and a transcript was made of the interview.
(¶ 37} Prior to trial, Kimmie filed a motion to suppress his post-arrest statement to police, claiming that his statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Kimmie also argued that his statement was involuntary because he was not advised of his rights under Doyle v. Ohio, 426 U.S. 610, 611, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The trial court denied the motion, finding that Kimmie received adequate warning of his Miranda rights, and he voluntarily waived those rights.
(¶ 38} In his first assignment of error, Kimmie contends that the trial court erred when it denied his motion to suppress his statement to the police.
(¶ 39} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In considering a motion to suppress, the trial court assumes the role of trier of fact and, therefore, is in the best position to resolve factual questions and evaluate the credibility of witnesses. Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Consequently, a reviewing court must accept the trial court's findings of fact as long as they are supported by competent, credible evidence. State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶22 (8th Dist), citing State v. Lloyd, 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist. 1998). Once we accept those facts as true, however, we must independently determine, "as a matter of law and without deference to the trial court's conclusion, whether the trial court met the applicable legal standard." Id.
The Miranda Rights
(¶ 40} In Miranda, the United States Supreme Court held that a defendant who is subjected to custodial interrogation must be advised of his or her constitutional rights and make a knowing and intelligent waiver of those rights before statements obtained during the interrogation will ...