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State v. Burton

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

STATE OF OHIO, Plaintiff-Appellee,
JERMAEL BURTON, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County No. CR-17-620576-A Court of Common Pleas

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brad Meyer, Assistant Prosecuting Attorney, for appellee.

          Karin Coble, for appellant



         {¶ 1} Jermael Burton was indicted for attempted murder and multiple counts of drug trafficking and drug possession. The police had been led to a house owned by Burton's girlfriend after a gunshot victim reported to the police that he was shot in the house. In the attic of the house, the police found a large quantity of methamphetamine, as well as crack cocaine and marijuana, tools for drug trafficking, and firearms and magazines. At the jury trial, Burton claimed he was framed by the East Cleveland police officers, who he claimed fabricated the shooting incident and conducted an illegal search of the house's attic. The jury acquitted Burton of attempted murder and felonious assault but found him guilty of the drug and firearm charges.

         {¶ 2} On appeal, Burton claims his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. He also claims his trial counsel provided ineffective assistance of counsel in failing to file a motion to suppress. After a careful review of the record and applicable law, we affirm Burton's convictions.

         {¶ 3} The subject house is a three-story residential home located on Noble Road in East Cleveland. The house was owned by Deanna Thomas, Burton's girlfriend, with whom he had a child. There was an apartment on the first floor and one on the second floor. On the second floor, there was also a door that led to a staircase going up to an attic area, where the police found the drugs and firearms. The state alleged Burton lived or stayed in the attic, while Burton denied he lived or stayed there.

         {¶4} The state had the gunshot victim and four East Cleveland police officers testify; the defense provided testimony of two tenants from the house and Burton himself. These witnesses gave varying accounts of the events surrounding the alleged shooting and the police investigation of the shooting. The witnesses' testimony is often confusing and sometimes incoherent. We summarize the testimony as follows to the best of our ability.

         Testimony Presented by the State

         {¶5} According to the state's witnesses, the gunshot victim, Dontaurus Kemp, went to the house on Noble Road owned by Burton's girlfriend. While knocking at a door on the second floor of the house, a man, whom Kemp later identified as Burton, "kicked the door open" and fired multiple shots at him. He ran to the street and, with a stranger's help, flagged down Officer Wilbert Nevels for assistance. While Kemp was being treated at the hospital, Officer Steven Kaleal received a dispatch call regarding the shooting. Based on the description of the house given by Kemp, Officer Kaleal went there to investigate. Burton came out of the house, and together they went to the second floor of the house, which consisted of an apartment on one side and a door leading to an attic apartment on the other side. Burton refused to allow the officer to go to the attic apartment, claiming he lived there and, with the keys from his pocket, locked the door. In the meantime, Officer Kaleal took pictures of several individuals present in the house and sent them over his phone to Officer Nevels at the hospital. Kemp identified Burton as the shooter.

         {¶ 6} Detective Keven Harvey then prepared a warrant for the search of the house although, as discussed below, he included incorrect facts in the request for the warrant regarding Kemp's purpose to visit the house. In the attic, the police found firearms and ammunitions, as well as drugs and tools for drug sales.

         1. Testimony of the Gunshot Victim

         {¶ 7} The gunshot victim, Dontaurus Kemp, testified that on August 12, 2017, his friend "Unc" took him to a house next to a barbecue place on Noble Road. His friend had told him they were meeting "some girls that [they] were going to chill with." After they parked their vehicle, a light-skinned woman came to the front door and took Kemp and his friend to the second floor. Kemp's testimony was confusing as to what transpired when they were on the second floor. He testified as follows:

So we went upstairs. We knocking on the [females'] door. So this light-skinned girl knocking on the dude's door or whatever. So she banging hard. I know you in there. I know you in there. So the two girls had music up so she tried to - like then he say, who the fuck is it, and that's when my friend said, yeah, it's us, and he kicked down the door and just shot me.

         It was unclear which door Burton came out of. The prosecutor attempted to clarify Kemp's testimony, but without success.

         {¶ 8} Kemp testified that, after being shot, he ran downstairs to the street. A good Samaritan put him in his vehicle's back seat and flagged down a police officer, later identified as Officer Wilbert Nevels, for assistance. The officer led them to a hospital nearby to treat Kemp's gunshot wounds.

         {¶ 9} While at the hospital, Officer Nevels showed Kemp some photos on the officer's cell phone and Kemp identified Burton as the shooter. He later identified Burton again from a photo lineup at the police station. Kemp also identified Burton as the shooter in the courtroom.

         {¶ 10} To show that the house the police investigated for the shooting was indeed the house he visited, Kemp testified that when he arrived at the house, there was a silver Grand Prix in the driveway, a detail that was later confirmed by the first-floor resident of the house, Darius Scott, who testified the Grand Prix was one of the two vehicles he owned.

         2. Testimony of Officer Kaleal

         {¶ 11} Officer Steven Kaleal testified that, in the evening of August 12, 2017, he responded to a call regarding a man being treated at a hospital for gunshot wounds. The man reported he went to a house next to a barbeque place on Noble Road "to visit two females" but was shot at. Upon arrival at the house, Officer Kaleal saw a resident - later identified as Darius Scott - just arriving home. The officer asked him if he had heard any gunshots, and he answered no. A woman then came out of the house, identifying herself as the resident on the second floor. Officer Kaleal determined she was not involved in the incident. Burton then emerged from the house as well. He told the officer he "lived on the third floor."

         {¶ 12} Officer Kaleal then went inside the house with Burton, and they went up to the second floor. Regarding the second floor, Kaleal testified as follows:

Then I walked another flight of stairs to the second floor. And there's an apartment to the right and then there's another apartment to the left that has stairways that go up into the upstairs bedroom. * * * [A]s I walked into the hallway, I could see a bullet hole on the right side that led into the apartment adjacent to Mr. Burton's apartment. So I knocked on the door several times to make sure nobody was in there. Finally, the residents in there came to the door. * * * It was two females and a juvenile. * * *
[T]hen I went to go upstairs to Mr. Burton's residence, and he told me point blank, you are not going up there. I said, is there anybody else up there, and he stated no. That's when he secured his door and I wasn't able to get in his apartment. And that's when we went back outside.

         {¶ 13} In conjunction with Officer Kaleal's testimony, the state played several snippets from a tape recorded on the officer's body camera. The tape showed a background of what appeared to be a dark staircase and hallway. In the tape, Officer Kaleal repeatedly asked Burton who lived "upstairs." Burton can be heard saying "I stay upstairs," "nobody is up there except for me," "there is nothing upstairs," "I have keys to upstairs," and "I live upstairs." Burton appeared to be making these statements in reference to Officer Kaleal's question as to which of the two doors on the second floor was Burton's. As Kaleal testified:

His was the one on the left. I opened the door. I was able to open up there to yell to see if anybody was hurt. That's when he told me I can't go up there and he refused to cooperate. That's when I made contact with the one next door where the bullet hole was. After I was going to check that, I was going to go upstairs, but I wasn't able to after he locked the door.

         {¶ 14} Officer Kaleal testified that he took photographs of the individuals in the house and sent them over his phone to Officer Nevels, who was with Kemp at the hospital. When Kemp identified Burton as the shooter, Officer Kaleal arrested Burton.

         {¶ 15} Officer Kaleal testified that, because of the report of a shooting, it was necessary for the police to search the entire house for weapons and possibly additional victims. After Burton locked the door to the attic, Officer Kaleal contacted Detective Harvey for him to obtain a search warrant. The officers searched the attic after Detective Harvey obtained a search warrant.

         {¶ 16} On cross-examination, Officer Kaleal testified that he investigated the particular house based on the report that the shooting occurred in a house next to the barbecue place on Noble Road, and he was able to confirm he was in the right house because a vehicle parked in the house's driveway matched the victim's description of the vehicle that took him to the house.

         3. Testimony of Detective Harvey

         {¶ 17} Detective Harvey testified that some time past midnight on the night of the incident, he received a call regarding a gunshot victim, who was being treated at the hospital and reported he had been shot at a house on Noble Road. Burton was already in custody when Detective Harvey arrived at the house. Detective Harvey described that on the second floor of the house, there was an apartment and a door leading to a third-floor attic apartment. Detective Harvey also saw a bullet hole in the wall. After visiting the house, he prepared a search warrant and a judge signed the warrant. With the search warrant, the officers tried to gain access to the attic through the locked door but had no success. One of the officers then crawled out to a balcony and then crawled into the attic through a window.

         {¶ 18} The officers did not find any additional victims, but found an assault rifle and several magazines on the floor behind a TV. Inside a wall, which appeared to be under repair, there were additional magazines and a handgun. The officers also found methamphetamine (totaling 295 grams) and marijuana (totaling 483 grams) inside an open book bag, as well as crack cocaine (totaling 24 grams). "Cut mix," which Detective Harvey testified was commonly used by drug traffickers in preparing drugs for sale, plastic bags, and two digital scales were also found.

         {¶ 19} Detective Harvey also looked for documents and items identifying the occupant of the attic area. He found a debit card, a prescription bottle, and mail bearing Burton's name. Harvey acknowledged upon cross-examination that ...

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