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. Lennon

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 11, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DOMINIQUE LENNON DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-600096-A

          ATTORNEY FOR APPELLANT Myriam A. Miranda.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Christine M. Vacha Assistant County Prosecutor.

          BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, P.J.

         {¶1} Defendant-appellant, Dominique Lennon ("Lennon"), appeals his convictions for attempted murder, felonious assault, discharging a firearm on or near a prohibited premise, carrying a concealed weapon, improperly handling a firearm in a vehicle, and vandalism. He raises six assignments of error for our review.

I. The trial court erred by denying Lennon's motion to exclude pretrial identification testimony in violation of his rights.
II. The trial court erred where the jury was not instructed on the failure to comply with photo lineup procedures in accordance with R.C. 2933.83.
III. The trial court erred by denying Lennon's Crim.R. 29 motions because the convictions were not supported by sufficient evidence.
IV. Lennon's convictions were against the manifest weight of the evidence.
V. Lennon's sentence is contrary to law and the record does not support the imposition of consecutive sentences.
VI. The trial court erred by admitting state's exhibit 90 over Lennon's objection and in violation of Evid.R. 401, 402 and 403.

         {¶2} After reviewing the record and pertinent law, we affirm.

         I. Procedural History and Facts

         {¶3} In October 2015, a Cuyahoga County Grand Jury indicted Lennon on ten counts: attempted murder of the first victim, D.D., in violation of R.C. 2923.02 and 2903.02(A), a first-degree felony, with one- and three-year firearm specifications; two counts of felonious assault against D.D. in violation of R.C. 2903.11(A)(1) and 2903.11(A)(2), second-degree felonies, with one- and three-year firearm specifications; attempted murder of the second victim, Quantez Lawson ("Lawson"), in violation of R.C. 2923.02 and 2903.02(A), a first-degree felony, with one- and three-year firearm specifications; two counts of felonious assault against Lawson in violation of R.C. 2903.11(A)(1) and 2903.11(A)(2), second-degree felonies, with one- and three-year firearm specifications; discharge of a firearm on or near a prohibited premise in violation of R.C. 2923.162(A)(3), a first-degree felony, with one- and three-year firearm specifications; carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a fourth-degree felony; improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), a fourth-degree felony; and vandalism in violation of R.C. 2909.05(B)(1)(b), a fifth-degree felony.

         {¶4} The charges giving rise to the indictment alleged that on August 21, 2015, in the area of East 116th Street and Buckeye Avenue, in Cleveland, Ohio, Lennon brandished a handgun and fired numerous rounds toward a group of people known as the "Buckeye Boys." The first victim, D.D., was a 13-year-old boy who was shot in the right hand. The second victim, Lawson, was struck in the leg and buttocks. Huntington Bank, a business nearby, also sustained damage as a result of the gunshots. Lennon pleaded not guilty to all charges.

         {¶5} Before trial, Lennon moved to suppress D.D.'s pretrial identification testimony. At a hearing before trial, Lennon's counsel withdrew the motion. At this hearing, plaintiff-appellee, state of Ohio, informed the trial court and Lennon's counsel that an eyewitness had recently come forward. The eyewitness, T.H., was the 16-year-old sister of D.D. Lennon's counsel orally moved to suppress T.H.'s identification.

         A. The Suppression Hearing

         {¶6} The trial court held a hearing on Lennon's motion to suppress where the following testimony was presented.

         {¶7} T.H. testified that in March 2015, she first heard of a person named "Boom" because two of her friends were in a car accident with him.[1] At this time, she also learned that Boone's first name was Dominique. In June or July 2015, T.H. saw the Buckeye Boys "beat[ing] up" Boone at the liquor store located at East 116th Street and Buckeye Avenue - the same area where the shootings in this case occurred. This was the first time T.H. saw Boone and "put a face with the name." T.H. never actually met Boone.

         {¶8} On August 21, 2015, the day D.D. and Lawson were shot, T.H. was walking behind D.D. as he walked to the liquor store to buy food. She saw two cars, a "silver four door van and a white car, " drive into a parking lot. She saw someone exit the silver van, go by a tree, and shoot towards Joe-Joe - Lawson's "street name." T.H. testified that the shooter wore a black jogging suit.

         {¶9} Once the shooting began, T.H. ran to her house. From there, she saw the shooter return to the vehicle and "saw his face when he got back into the car." She testified the shooter was Boone - the same person she saw the Buckeye Boys previously fighting with at the liquor store.

         {¶10} T.H. testified that the day after the shootings Boone "came back shooting at the Buckeye Boys." T.H. testified that Boone was alone and driving a brown truck. At that time, Boone looked T.H. in the eyes and she knew he was the "guy from the day before."

         {¶11} T.H. testified, however, that she did not see how D.D. was shot. She was not sure if there was anyone other than Boone shooting a gun, although she heard two guns. She testified that "there was some other boy with a gun, " but she did not know his name.

         {¶12} T.H. failed to tell police what she witnessed until the week of Lennon's trial. She testified that she did not tell police because "at first I didn't want to speak. Because my mom said don't speak if I'm not spoken to."

         {¶13} When she came forward, she gave a statement to Detective Daugenti. She told him that she was familiar with Boone. T.H. testified that the detective showed her a single photograph and stated: "I am going to show you a photo of Dominique Lennon, is that who you know as Boo[ne]?" T.H. answered, "Yes." T.H. also testified that the detective showed her a sheet with six photographs of young African American men and asked her to choose the person who shot D.D. T.H. said that the detective did not tell her who to pick and did not tell her that the shooter may or may not be in the photographs. T.H. testified she picked Boone's photograph immediately because of his dreadlocks.

         {¶14} T.H. made an in-court identification of Boone as Lennon and said that Lennon was the shooter.

         {¶15} Detective Shay testified that he was the lead investigator for Lennon's case until January 2016, when he left for a position in basic patrol. He testified that Detective Daugenti took T.H.'s statement, but that he was present during the end of it. Detective Shay testified that he had compiled a six-photo lineup during the course of his investigation, but he disagreed with T.H. that she was shown the lineup. He made it clear that she was not shown the lineup because she knew Lennon. Therefore, Detective Daugenti only showed T.H. one photograph of Lennon, which was from the Ohio Law Enforcement Gateway system.

         {¶16} Detective Shay testified that it is the Cleveland Police Department's written procedure that when a victim or witness does not know the suspect, a photo lineup must be used. When a victim or witness knows the suspect, a photo lineup is not necessary.

         {¶17} After hearing T.H.'s and Detective Shay's testimony, the trial court denied Lennon's motion to suppress. The trial court noted that under R.C. 2933.83, which sets forth eyewitness identification procedures in lineups, it had to consider whether police failed to comply with the statute. The trial court stated, "I don't think this is a complete stranger scenario, which would at least, in my opinion, require a complete compliance or substantial compliance with 2933.83. But [T.H.] knew who he was." The trial court found:

[T.H.'s] testimony, and her in-court identification, as well, was certainly that of a level of certainty. And that goes along with her testimony of having met this guy previously or knew who he was prior. It's not to say I wouldn't entertain particular requests for jury instructions at a later point. But at this point in time she'll be able to testify on the identification[.] So I'm going to deny your motion.

         B. Jury Trial

         {¶18} The matter proceeded to a jury trial and the following evidence was presented.

         {¶19} D.D.'s mother, Tamika Palmer ("Palmer"), testified that D.D. is dyslexic and developmentally delayed. On the day of the shootings, she gave D.D. money to walk to the liquor store to buy food. D.D. was with another young boy. Palmer's house is not far from the area where the shootings occurred. Soon after D.D. left, Palmer heard gunshots. She went outside and saw her daughter, T.H., by the liquor store. She then learned that her son had been shot and ran to help him.

         {¶20} The day after the shootings, Palmer was with D.D. when Detective Shay came to her home. She witnessed D.D. identify a man named Boone as the shooter.

         {¶21} The next day she was again with D.D. when Detective Shay showed D.D. a photo lineup with six color photographs. She witnessed D.D. pick Lennon's photograph from the photo lineup. She made certain that her son was sure and told him that if he was not sure, then he should not pick anyone. She signed the photo lineup for D.D. because he could not write due to his hand being shot.

         {¶22} D.D. testified that on the day of the shootings, he and his friend walked to the liquor store after he received money from his mother. He heard a gunshot, looked back, saw someone with a black "hoodie, " and heard more gunshots. D.D. testified he saw a "little bit" of the shooter's face. He then started running, not realizing that he had been shot in the hand.

         {¶23} D.D. recalled giving Detective Shay the name Boone, looking at a group of photographs, and choosing the person who he believed shot him. He testified that no one told him he had to identify anyone. He chose Lennon because he saw part of the shooter's face at the time of the shooting and recognized his skin color and dreadlocks.

         {¶24} D.D. testified that when he chose Lennon from the photo lineup, he was about 30 percent certain, and on the witness stand he said that he was 40 percent certain of his identification. When asked at trial if he knew who shot him, D.D. testified, "yes, " and identified Lennon as the shooter. Then, D.D. stated that he was "not sure" who shot him. D.D. admitted that he was scared because Lennon knew where he lived.

         {¶25} T.H.'s trial testimony was similar to her testimony at the suppression hearing. She testified that the shooter wore a black jogging suit, which she explained meant sweat pants and a "hoodie." T.H. testified that she knew the shooter was Lennon "[b]ecause his dreads were sticking out, and I saw his face. He didn't have nothing on his face." She came forward at trial because D.D. was scared to testify. She made an in-court identification of Lennon as the shooter.

         {¶26} Lawson[2] testified that he has known Lennon for about two or two and one-half years. Lennon used to "chill" with the Buckeye Boys until he allegedly stole money from one of them. Lawson said that the Buckeye Boys physically fought with Lennon approximately two or three weeks before the shootings.

         {¶27} Days after the shootings, Lawson told police that the shooter was wearing all black with a "hoodie." At trial, however, Lawson claimed that he told this to police because he "had just got out of surgery and they was waking me up out of my sleep, " so he made up the description. Lawson then testified that he did not know who shot him, but stated that he had seen Lennon with a gun in the past. Lawson also testified that Lennon sent him a letter after the shootings, which he gave to police. In the letter, Lennon discussed his theory about the shootings, including who shot D.D. and Lawson; Lennon said it was "Joe" a cousin of Lawson's friend "Munchy."

         {¶28} An employee of Huntington Bank testified about the bullet holes and damage to the bank because of the shootings.

         {¶29} Officer Paul Benedictis ("Officer Benedictis") testified that on the day of the shootings, he went to the hospital to check on D.D. At that time, D.D. gave a description of the suspect and Officer Benedictis made a broadcast accordingly: the suspect was a black male, around 20 years old, ...


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.