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State v. Carter

Court of Appeals of Ohio, Seventh District, Mahoning

August 30, 2017


         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 14 CR 960

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Anthony J. Farris

          Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite


          ROBB, P.J.

         {¶1} Defendant-Appellant Kalontae Carter appeals from his conviction of aggravated murder after a jury trial in the Mahoning County Common Pleas Court. Appellant argues his co-defendant's statement to another inmate should not have been admitted. Appellant asks us to review the removal of three African-American prospective jurors and a statement by the prosecutor in the rebuttal portion of closing argument. Appellant raises various claims of ineffective assistance of counsel. He also states there was not sufficient evidence for the purpose element of aggravated murder and asks for a manifest weight of the evidence review focusing on whether he knew a robbery was going to be committed. Appellant argues the mandatory transfer of juveniles to the general division is unconstitutional and asks this court to apply the Ohio Supreme Court's decision in Aalim. As Aalim was vacated on reconsideration, this argument fails. For the following reasons, the trial court's judgment is upheld.


         {¶2} On April 29, 2013, Kristopher Stuart was shot to death in his house on Elm Street in Youngstown. Upon arriving at the scene, police learned Appellant and his uncle, DeJuan Thomas, arrived at separate hospitals with gunshot wounds. On November 14, 2013, a murder complaint was filed against Appellant in juvenile court. As Appellant was 17 at the time of the act charged and the juvenile court found probable cause to believe he committed murder, Appellant was subject to mandatory transfer to the general division of the common pleas court. See R.C. 2151.12 (A)(1)(a)(i).

         {¶3} After bindover, Appellant was indicted for aggravated murder and aggravated robbery; he was alternatively indicted for murder and felonious assault. Each of the four counts was accompanied by a firearm specification. DeJuan Thomas was indicted as a co-defendant on these counts (and on a separate count of having a weapon while under disability). In the same indictment, Laquawn Hopkins, the victim's roommate, was charged with tampering with evidence.

         {¶4} Appellant's case was tried to a jury. The victim's brother testified the victim sold drugs, including marijuana and heroin. (Tr. 409, 411, 417). He was 26 years old when he died. The victim previously lived with Lorraine McKinnon, who was like a "mother figure" to the victim, but the brother blamed her for the victim's involvement in drug trafficking. (Tr. 413-414, 418). The victim's neighbor confirmed the victim was a drug dealer. (Tr. 421-422).

         {¶5} On the evening of April 29, 2013, this neighbor heard arguing at the victim's house and then heard a barrage of gunshots. (Tr. 424-426). She soon heard running on the walkway between their houses, but she remained on the floor for a time. When she eventually looked out her window, she saw Appellant's roommate "Q" approach his car, go back to the house, return to his car, and drive away. (Tr. 422, 427). She called 911 to report gunfire. A police car drove past but did not stop. (Tr. 428). The neighbor noticed the victim's door was open. (Tr. 428). At this point, Q returned to look for his phone which he found near the driveway. (Tr. 429, 439). The neighbor spoke to other neighbors about the situation, and they called 911 to report the gunfire and the open door. She then approached the open door with them and saw the victim's body in the house, at which point they called 911 again. (Tr. 430-431).

         {¶6} An officer testified he responded to a call of gunfire on Elm Street around 9:30 p.m. He drove around the area but did not notice anything unusual. (Tr. 459). He was soon dispatched to the hospital as DeJuan Thomas had arrived in critical condition after being shot. (Tr. 460). Bullet fragments were recovered during surgery and a bag of pills was found on his person. (Tr. 484, 540). While the officer was at the hospital, Appellant was transferred there from another hospital. (Tr. 461, 492). Appellant had a gunshot wound to the left bicep area. From his experience, the officer ascertained this was a "contact shot" or a close range gunshot wound describing it as: "massive. It was opened up almost like an explosion. It was much larger than a bullet hole. It was, you know, you can put your hand in it. And there were burn marks, you know, around the edges." (Tr. 461-462, 476-477). Appellant told the officer he was walking on Norwood Street near his home when shots were fired at him from a passing vehicle. (Tr. 462-462). He soon repeated this story to a detective as well. (Tr. 492). The area near Appellant's residence was investigated; no blood or casing was found, and residents did not hear gunfire. (Tr. 494).

          {¶7} When police responded to the more specific 911 call around 10:30 p.m., they found the deceased victim on the floor in his Elm Street residence with a silver Smith & Wesson .357 Magnum revolver at his fingertips. (Tr. 445, 447, 536-537, 660). The victim suffered eleven bullet wounds, with the following entry points: three in the chest, two in the back, one in the abdomen, one in the hip, two in the left thigh, one in the right hand, and one grazing the left hand. (Tr. 673-678). The coroner found the victim's wallet containing $445 on his person. (Tr. 710). The victim had opiates in his system. (Tr. 712). The police found a scale, pills, and baggies containing suspected heroin and cocaine at the scene. (Tr. 513, 743).

         {¶8} The cylinder of the six-shot revolver contained one live round and five spent cartridges, all of them .357 Magnum caliber. (Tr. 536, 538, 652, 660-661). The victim's DNA was found on the trigger, and a mixture of the victim's DNA and DNA consistent with Appellant was found on the handle of the revolver. (Tr. 638). This was believed to be Appellant's touch DNA, but due to the amount of blood at the scene, it was possible the DNA on the revolver's handle was from blood. (Tr. 645-646). In the 12-foot by 12-foot room where the victim was lying, there was blood on a mattress; in this vicinity, there was blood spatter on the window blinds and blood and body matter on the ceiling. (Tr. 532). This blood matched Appellant (as did blood on the driveway and front step). Blood on the sidewalk matched DeJuan Thomas. (Tr. 639).

         {¶9} A bullet jacket recovered from Thomas during surgery had characteristics consistent with the victim's .357 revolver. (Tr. 661-662). Ten fired .40 caliber cartridge cases were collected, mostly from one corner of the room. (Tr. 531). These were not fired from the revolver and were all fired from the same firearm. (Tr. 661). A bullet extracted from the victim's right wrist and three fired bullets recovered from the scene were inconsistent with the revolver and were all .40 S&W caliber or 10 mm auto caliber with the same class of characteristics (but there remained insufficient features to say they were fired from the same firearm). (Tr. 661, 665). A distinct fired bullet core was found lying on the floor near the victim. (Tr. 774). This bullet core had a different direction of twist (six lands and grooves with a left twist) than the revolver (five lands and grooves with a right twist) and the four other fired bullets (a rare six-sided polygonal rifling-style with a right twist). (Tr. 662-663, 665-666). From this, the forensic scientist, testifying as a ballistics expert for the Bureau of Criminal Investigation ("BCI"), concluded at least three different firearms were used. (Tr. 664).

         {¶10} The lead detective visited Appellant in the emergency room. Appellant said the story he told to the other detective and the first-responding officer was false and he wanted to tell the truth. He said his uncle called him, asked him to pick him up, and said they were going to Elm Street for a "bop." (Tr. 727). In the detective's experience, this was slang for a robbery. (Tr. 727, 733). The detective thus stopped the interview and went to his car to retrieve a Miranda rights waiver form, which he read to Appellant and his mother. (Tr. 727).

         {¶11} Appellant told the detective they knocked on the victim's door and were invited in; he said he sat on the bed while Thomas and the victim argued in the hallway. (Tr. 729). Appellant told the detective "bop" meant drug deal. (Tr. 733). The detective believed Appellant changed the meaning after realizing he made a mistake by admitting they had intent to commit a robbery. (Tr. 761). Appellant told the detective the victim robbed Thomas by demanding Thomas give him what he had. At this point, Appellant said: he was shot; he ran outside; he heard more shots; he got in the car; his uncle stumbled out; and he dragged his uncle to the car. Appellant dropped his uncle off at a hospital guard shack. Appellant went home, and his sister drove him to a different hospital. (Tr. 730). He told the detective the victim had a "cowboy" gun (not an "automatic" weapon like the detective carried). (Tr. 732). Appellant's hands were swabbed for gunshot residue just before 1:30 a.m. Weeks later, the test result came back negative. (Tr. 815).

         {¶12} When the detective arrived at work the next day, he had messages from Appellant saying he needed to speak with the detective immediately. The detective returned to the hospital and re-Mirandized Appellant. (Tr. 734). Appellant reported it was not the victim who robbed his uncle but was his uncle who robbed the victim. Appellant said he merely gave his uncle a ride and had no prior knowledge of the robbery. (Tr. 735). The detective asked Appellant to provide a video-statement at the police department after the hospital released him. (Tr. 735-736).

         {¶13} Appellant came to the station with his parents and provided a corresponding video-statement which was played to the jury. (Tr. 747). In the video, Appellant said he was accompanying his uncle "to hit a bop" which he said was a "drug transaction." He saw a man with a child in a room on the opposite side of the hall from the room he entered. Appellant sat on the bed while his uncle and the victim talked in the hallway. He heard his uncle order the victim to "give the shit up, " and the victim responded, "I ain't got nothin'." He said his uncle and the victim started wrestling and ended up in the room where Appellant was sitting on the bed. Appellant said the shot that hit him knocked him off the bed into the corner. He claimed he had no gun and they were still wrestling when he fled the room during which time he heard more shots.

         {¶14} At the time Appellant provided these statements, it was believed DeJuan Thomas was dying. (Tr. 749). After Thomas recovered, Appellant changed his story and said there was no robbery. (Tr. 750-751). (DeJuan Thomas subsequently died before trial in a separate shooting incident). As for the person Appellant saw in a room with a child, the detective testified Laquawn Hopkins pled guilty to tampering with evidence. (Tr. 740, 782). It was elicited that Hopkins hid with his child in the backyard during the shooting, but he thereafter entered his room to remove photographs so he could not be connected with the situation. (Tr. 741).

         {¶15} The detective believed the evidence suggested the collection of shell casings found in the corner were consistent with a gun being fired from Appellant's position in the room. He noted the evidence as to: the testimony about a third firearm producing a bullet core; the direction of cartridge ejection from a semiautomatic firearm; the blood evidence belonging to Appellant on the mattress, ceiling, and blinds; and Appellant's admitted position in the room (which we note included Appellant's statement he was knocked into a corner upon being shot). (Tr. 738, 774, 794-795). The detective said he filed the juvenile complaint against Appellant after speaking to an inmate.

         {¶16} Jonathan Queener testified he was in the county jail with long-time friend DeJuan Thomas when Thomas said: he and Appellant went to rob the victim; he told Appellant they were going to get money and try to get drugs; the victim pulled out a .357; they exchanged fire; and Appellant dropped him off at the hospital. (Tr. 564-565, 570). Queener acknowledged he benefited from a plea deal in return for his agreement to testify truthfully; his aggravated burglary charge was reduced to burglary, and the state recommended community control. (Tr. 561-562).

         {¶17} Loraine McKinnon testified the victim lived with her when he was in his teens and was like a son to her. (Tr. 593, 596, 604). She also knew Appellant because he would visit his female cousin who stayed at her house; she said she loved Appellant (as she loved the victim). (Tr. 591, 599). This witness testified: Appellant apologized to her after the shooting; he told her he did not know they were going to "Kris's" house; and he explained his uncle called him to accompany him on an "easy lick, " which she defined as a street term meaning to "rob someone." (Tr. 597-598). She explained she did not call the police upon learning this because Appellant was a child and his uncle was to blame; she voiced her story to a prosecutor who called her while preparing for trial. (Tr. 615). She noted the victim's guns had been stolen a couple weeks prior to his death. (Tr. 602).

         {¶18} The jury found Appellant guilty of the four counts with the accompanying firearm specifications. Appellant was sentenced to twenty years to life for aggravated murder plus three years for the firearm specification. The other charges merged. Appellant filed a timely notice of appeal from the December 22, 2015 sentencing entry.


         {¶19} Appellant sets forth five assignments of error, the first of which states:

         "The Trial Court erred in permitting a jailhouse snitch to testify to an alleged out-of-court statement made by a co-defendant in the trial of Defendant-Appellant as it both constituted inadmissible hearsay and violated his confrontation rights."

         {¶20} This assignment of error deals with the testimony of Mr. Queener as to what DeJuan Thomas told him while they were both incarcerated in the county jail. Specifically, Appellant contests the admission of testimony that Thomas said he and Appellant went to the victim's house with intent to rob the victim of money and drugs. Appellant raises a hearsay argument and then a confrontation clause argument.

         {¶21} Evid.R. 804(B) provides hearsay exceptions where the declarant is unavailable as a witness. A declarant is unavailable if he is deceased. Evid.R. 804(A)(4). One of the hearsay exceptions applicable to an unavailable declarant is the statement against interest exception contained in Evid.R. 804(B)(3), which provides:

Statement Against Interest. A statement that was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement.

         {¶22} Appellant does not contest the statement was against the interest of the declarant, DeJuan Thomas. Rather, he argues this rule does not apply to a co-defendant, citing ¶ 66 of the First District's Webster case and a concurring opinion in the Ninth District's Wilson case. In Webster, the court held this exception in Evid.R. 804(B)(3) does not apply to the defendant's attempt to introduce his own statement. State v. Webster, 1st Dist. No. C-120452, 2013-Ohio-4142, ¶ 66 (and holding Evid.R. 801(D)(2)(a) cannot be used by a party to introduce his own statement but is for introduction of an admission by a party-opponent). The concurring judge in Wilson cited Webster for the proposition that Evid.R. 804(B)(3) does not apply to statements of a party to the action. State v. Wilson, 9th Dist. No. 26683, 2014-Ohio-376, ¶ 63. Neither the Wilson case nor the Webster concurrence stand for the proposition that Evid.R. 804(B)(3) cannot be used to admit the statement of someone other than the defendant on trial merely because the declarant was alleged to be a participant in the offense and/or was indicted as a co-defendant. DeJuan Thomas was not a party to the trial of this case.

         {¶23} Regardless, the Ohio Supreme Court permits the admission of hearsay statements against interest made by co-defendants who are unavailable. In Yarborough, a woman testified her husband (the mastermind of a plan who died before trial) told her he paid the defendant to have the victim killed. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 41. In addition, a man testified this mastermind told him they should pay the defendant to kill the victim. Id. at ¶ 55. The Supreme Court found both statements were admissible under the statement against interest hearsay exception. Id. at ¶ 41-57. See also State v. Issa, 93 Ohio St.3d 49, 58-59, 752 N.E.2d 904 (2001) (where a subpoenaed co-defendant who refused to testify after pleading his rights under the Fifth Amendment was considered unavailable, his confession was admissible as a statement against interest). Appellant's initial argument is thus without merit.

         {¶24} Appellant's next argument concerns the second part of Evid.R. 804(B)(3): "A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement." Appellant criticizes the credibility of Mr. Queener, emphasizing he testified in exchange for a generous resolution of his criminal case. However, the credibility of the witness providing the declaration of the unavailable declarant does not affect the statement's admissibility as the rule refers to "the truthworthiness of the statement, " not the truthworthiness of the testifying witness. State v. Landrum, 53 Ohio St.3d 107, 114, 559 N.E.2d 710, 720 (1990) ("As the fact finder, the jury was responsible for assessing [his] credibility as a witness"), quoting Former Evid.R. 804(B)(3) (which used trustworthiness instead of truthworthiness as is used in the current rule).

         {¶25} While the trial court was evaluating the admissibility of Mr. Queener's statement before trial, the state pointed to the anticipated testimony of Ms. McKinnon (that Appellant indicated to her he knew about the robbery before they arrived) and the testimony of the lead detective. As Appellant points out, the state's projection of the detective's anticipated testimony did not end up being accurate. In arguing corroboration, the state said Appellant told the detective they went to the victim's house to "hit a lick." (Tr. 26). Yet, it was Ms. McKinnon who said Appellant told her he thought it would be an easy "lick" (which she understood to mean robbery). (Tr. 598). The detective testified Appellant told him they went for "a bop." (Tr. 727).

         {¶26} In any event, Ms. McKinnon's statement provided corroboration. And, the detective's testimony, although not accurately portrayed in advance, also provided some corroboration, notwithstanding Appellant's insistence he used the word "bop" to mean drug transaction. The recovery of a .357 Magnum near the victim's fingertips is corroborative of the statement of Appellant's uncle to Mr. Queener. The DNA evidence demonstrating Appellant was shot while in the victim's bedroom where his body was found can be considered in conjunction with Appellant's own statement to police. Appellant's statement that his uncle robbed the victim just before the shooting was corroborative of his uncle's statement to Mr. Queener. Finally, in determining whether a statement is trustworthy, the Supreme Court has characterized as a corroborating circumstance the fact that a declarant "was not speaking to police and therefore was not trying to curry favor." Yarbrough, 95 Ohio St.3d 227 at ¶ 64. The Court recognized "jailhouse confessions to cellmates" may be "trustworthy and admissible." Id. (and then held the same cannot be said about a statement shifting blame from the declarant to others).

         {¶27} The decision admitting the hearsay statement of the unavailable declarant pursuant to Evid.R. 804(B)(3) was within the discretion of the trial court. Landrum, 53 Ohio St.3d at 114. Under the totality of the circumstances in this case, the trial court did not abuse its discretion in finding Mr. Queener's testimony as to what DeJuan Thomas told him fell under the hearsay exception in Evid.R. 804(B)(3).

         {¶28} Appellant also states the testimony violated his confrontation clause rights. The confrontation clause in the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." In the past, an out-of-court declaration by an unavailable witness did not run afoul of the Confrontation Clause if it was accompanied by adequate "indicia of reliability." See, e.g., Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (if the declaration "falls within a firmly rooted hearsay exception" or exhibits "particularized guarantees of trustworthiness").

         {¶29} In 2004, the United States Supreme Court changed this test and held the confrontation clause prohibits the introduction of "testimonial" statements by a non-testifying witness (unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination). Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Non-testimonial hearsay was left to the hearsay law of the states. Id. at 68. The definition of "testimonial" pertains "at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id.

         {¶30} To determine if statements were testimonial the Court developed the "primary purpose" test. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (consolidated cases involving statements made to law enforcement officer and to 911 operator). "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Id. See also Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) (clarifying how reviewing courts should consider all relevant circumstances; an ongoing emergency is only one factor in determining whether a statement was procured with a primary purpose of creating an out-of-court substitute for trial testimony). Notably, the Supreme Court described certain "statements from one prisoner to another as "clearly nontestimonial" for the purposes of the confrontation clause analysis. Davis, 547 U.S. at 825.

         {¶31} The Ohio Supreme Court has stated that in order to resolve confrontation questions for out-of-court statements made to those who are not law enforcement, Ohio adopted the "objective-witness test." State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 160-161, citing State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph one of the syllabus. Under this test, a statement is testimonial if an objective witness would have reasonably believed her statement would be available for use at a later trial; the focus is on "the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations." Stahl, 111 Ohio St.3d 186 at ¶ 36, quoting Crawford, 541 U.S. at 52 ("under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.").

         {¶32} Recently, the United States Supreme Court reversed the Ohio Supreme Court's exclusion of evidence under the confrontation clause where a three-year-old told his preschool teacher his mother's boyfriend caused his injuries. The Ohio Supreme Court found the preschool teacher was acting as an agent of the state for law enforcement purposes because teachers have a statutory dual capacity as mandatory reporters and concluded the primary purpose of the statement was to collect evidence for trial. State v. Clark, 137 Ohio St.3d 346, 2013-Ohio-4731, 999 N.E.2d 592, ¶ 4.

         {¶33} The United States Supreme Court addressed the issue of whether statements to persons other than law enforcement officers are subject to the confrontation clause. Ohio v. Clark, U.S., 135 S.Ct. 2173, 2181, 192 L.Ed.2d 306 (2015). The Court declined to categorically exclude statements to non-law enforcement from the confrontation clause's protection and applied the same test as applied to law enforcement. Id. In accordance, a statement cannot fall within the confrontation clause unless its primary purpose was testimonial. ...

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