[Cite as State v. Burton, 2019-Ohio-2431.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 107054 v. :
JERMAEL BURTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 20, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-620576-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brad Meyer, Assistant Prosecuting Attorney, for appellee.
Karin Coble, for appellant.
MICHELLE J. SHEEHAN, J.:
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.
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.
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.
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
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.
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
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.
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.
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. 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
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.”
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.
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.
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.
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.
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
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.
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.
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
Burton’s address as listed on these items was not the Noble Road address.
Detective Harvey’s affidavit, which was attached to the search
warrant, described the purpose of Kemp’s visit to the house differently. While Kemp
testified he was there to visit some women, Harvey stated the gunshot victim was at
the house “attempting to purchase drugs” and that the victim stated “he was in the
upstairs hallway knocking on his dealer’s door when he opened the door and shot
him.” Upon cross-examination, when Harvey was questioned on the discrepancy,
he stated that he believed at the time the victim was at the house to buy drugs.
4. Testimony of Officer Demarkco Johnson
Officer Johnson, who arrived at the scene to assist Officer Kaleal,
testified that he searched the third floor attic. He described the layout of the second
floor as having “a door on the left and another door on the right, and it takes you to
another flight of stairs to go up to the third floor of the home.” In the attic the officers
found marijuana inside a book bag, cocaine wrapped up in a curtain, and a firearm
behind a TV. 5. Testimony of Officer Nevels
Officer Wilbert Nevels came upon Kemp and a man helping him at the
intersection of Euclid Avenue and Beersford Street. Officer Nevels directed them to
a hospital nearby. While at the hospital, Kemp gave a description of the shooter and
later identified Burton from the photos sent to Officer Nevels by Officer Kaleal.
Officer Nevels prepared a report regarding the incident, which he read
as part of his testimony. The report stated, in part,
Kemp stated he and his friend [were] going upstairs to the second floor when a female by the name of Rachel began banging on the third floor demanding that that male needs to bring his ass outside. Kemp stated that male came downstairs with a firearm in his hand and began shouting some profanities and then shooting blindly.
The report also stated that Burton told the police that he resided on
the third floor of the house. On cross-examination, Officer Nevels affirmed that
Kemp told him that “the shooter came from the third floor.”
The Defense
Burton claimed to have been framed by the East Cleveland police, who
fabricated the shooting incident. He claimed the police officers and Kemp all lied
on the witness stand. Burton testified in his own defense and also presented
testimony from two residents of the house. These residents testified Burton did not
live in the house. Rather, he did maintenance work for the house and there were
people they did not know “in and out of” the attic apartment. 1. Testimony of the Second-Floor Resident
Tansunia Hougabook, referred to at trial as “TT,” testified she lived in
the second-floor apartment with her 5-year-old daughter. She knew Burton as the
maintenance man for the house. She got off work that evening around 10:55 p.m.
and arrived home shortly after 11:00 p.m. She was taking a shower when the police
came. She told the police she had not heard any gunshots that night. She also
testified the “bullet hole” the police saw was actually a nail hole.
When asked who lived in the attic, she stated “[p]eople that I don’t
know. I never knew.” She also stated that Burton was not one of them. Earlier that
evening, she called her landlord Deanne (Burton’s girlfriend) to have her toilet fixed.
She testified on that night, she was supposed to pay the rent, but she did not give
Burton the rent because she “was supposed to give it to her [Burton’s girlfriend].”
Hougabook’s testimony was unclear as to whether she actually saw or talked to
Burton that night. On cross-examination, Hougabook revealed that her friend
“Leona” and a young male friend were in the apartment before she arrived home.
She was taking a shower when the police knocked on the door, and her friends did
not answer the door for three minutes.
2. Testimony of the First-Floor Resident
Darius Scott, his girlfriend, and their young daughter lived in the first-
floor apartment of the house. He knew Burton as someone who worked at the house
and, to his knowledge, he did not live there. He testified there was a third-floor
apartment in the house and there were usually a lot of people going in and out. He did not know what was going on up there except that they usually had a lot of music
playing. On the night of the incident, Scott arrived home around midnight to see
the police at the front of the house. Earlier that night, he had called Burton to come
over to get the rent money. He was surprised when the police informed him that
someone had been shot in the apartment because his girlfriend would have called
him to tell him about it. Regarding the silver Grand Prix parked in the driveway that
Kemp saw when he arrived at the house, Scott testified that it was his vehicle. Scott
also testified that after he got home, he handed Burton $600 rent money in front of
the police officers.
3. Defendant’s Testimony
Burton denied living or staying in the third-floor attic apartment. He
testified that in 2017, he lived in his house on Kildare Road and his girlfriend’s
house, going back and forth between the two. He would go the house on Noble to
do some maintenance work for his girlfriend, who owned the house, or to collect
rent for her. He testified he was only in the Noble house on two occasions in
August 2017, one of them being on the night of the incident.
Burton testified that evening, he received a call from TT around
10:30 p.m. regarding a toilet leaking. TT also indicated she had the rent money
ready. Burton was also supposed to pick up the rent money from Scott after Scott
got off work that night.
Burton testified he arrived at the house shortly after 11 p.m. He tried
to work on TT’s leaking toilet. TT gave him the rent money first but then took it back because he did not have a receipt for her. As a result, he left the house to obtain a
rent receipt from his girlfriend’s house. He returned to the Noble house shortly
afterward to get the rent money from both TT and the other resident Scott.
Notably, Burton’s testimony about his two visits to the house that
night was not fully corroborated by his own witnesses. Although Burton testified he
first went to the house after 11 p.m. to fix the toilet and interacted with TT regarding
the rent money, TT never clearly testified that she had seen or talked to Burton that
evening — she testified that she came home from work and was taking a shower
when the police knocked on the door.
Burton testified that, when he returned to the house on the second
occasion, he found three cars in the driveway. He parked his car at the parking lot
adjacent to the barbeque place and then went inside the house to knock on Scott’s
door. No one answered the door, and he went outside the house. He saw Scott
pulling into the driveway and being questioned by the police officers.
The police officers then approached Burton, requested his ID, and
told him someone had been shot in the house. He told the police no one had been
shot in the house.
Although Officer Kaleal testified the door leading to the attic was on
the left, Burton testified TT’s apartment was on the left instead. Officer Kaleal
knocked on TT’s door, while asking Burton who lived in the other apartment. When
confronted with his own words heard on the tape from Officer Kaleal’s body camera,
Burton admitted he told Officer Kaleal that he lived “upstairs,” but did so to keep the police from searching the place without a search warrant. He also claimed that at
the time he asserted he lived “upstairs,” he was standing between the first floor
landing and the second floor landing and, therefore, “upstairs” referred to “TT’s”
residence, not the attic.
Burton claimed Officer Kaleal lied when he testified Burton told him
he stayed “in the other door” (across from TT’s apartment) and that Burton took out
the keys and locked the door to the attic. He testified he never locked the door —
even though Detective Harvey testified that one of the officers had to crawl into the
attic through a window from the balcony in order to access to the attic.
Burton also claimed all the items bearing his name — a debit card, a
pill bottle, and mail — the police claimed they found in the attic area came from his
Chevy Cruze. He testified that “I know for a fact that the debit card wasn’t upstairs.”
He claimed Officers Kaleal and Nevels searched his vehicle that night, even though
Officer Nevels testified that after completing the police report, he had no further
involvement in this case.
Burton asserted that he had never seen Kemp and did not shoot him.
He claimed that the East Cleveland police fabricated the shooting incident. Burton
acknowledged he had been convicted 16 years ago of some felony offenses for which
he served a 5-year prison term.
While Burton was charged with attempted murder, felonious assault,
drug trafficking, drug possession, possessing criminal tools, and having a weapon
while under disability, the jury found Burton not guilty of attempted murder and felonious assault. Burton received an 11-year prison term for his convictions of the
drug offenses with the accompanying one-year firearm specifications, possessing
criminal tools, and having a weapon while under disability.
On appeal, Burton raises two assignments of error. They state:
I. Trial counsel rendered ineffective assistance of counsel for failing to move to suppress the fruits of the search warrant.
II. The verdicts were not supported by sufficient evidence and fell against the manifest weight of the evidence.
For ease of discussion, we address the second assignment first.
Sufficiency of Evidence and Manifest Weight
Under the second assignment of error, Burton argues his convictions
of drug trafficking, drug possession, possession of criminal tools, having a weapon
while under disability, and the firearm specifications are not supported by sufficient
evidence and are also against the manifest weight of the evidence. His argument is
premised on his claim that he did not possess the drugs and weapons found in the
attic because he did not live or stay there.
When reviewing a challenge to the sufficiency of the evidence, we
review the evidence admitted at trial and determine whether such evidence, if
believed, would convince the average mind of the defendant's guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
“The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. A reviewing
court is not to assess “whether the state’s evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a conviction.” State v.
Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
While the test for sufficiency requires a determination of whether the
state has met its burden of production at trial, a manifest weight challenge questions
whether the state has met its burden of persuasion. Id. Unlike a claim that the
evidence is insufficient to support a conviction, which raises a question of law,
manifest-weight challenges raise factual issues. When a defendant argues his or her
conviction is against the manifest weight of the evidence, the court,
“reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
1. Sufficiency of Evidence
Possession is defined in R.C. 2925.01(K) as “having control over a
thing or substance, but may not be inferred solely from mere access to the thing or
substance through ownership or occupation of the premises upon which the thing
or substance is found.” Possession of a controlled substance may be actual or constructive. State v. Mann, 93 Ohio App.3d 301, 308, 638 N.E.2d 585 (8th
Dist.1993). “Actual possession requires ownership and, or, physical control.” State
v. Messer, 107 Ohio App.3d 51, 56, 667 N.E.2d 1022 (9th Dist.1995). Constructive
possession, on the other hand, exists when a person “knowingly exercises dominion
and control over an object, even though that object may not be within his immediate
physical possession.” State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982),
syllabus. “[T]he mere fact that property is located within premises under one’s
control does not, of itself, constitute constructive possession. It must also be shown
that the person was conscious of the presence of the object.” Hankerson at 91.
Here, the state did not present evidence of actual possession. To prove
the drug and weapon charges against Burton, the state relied on evidence showing
Burton constructively possessed the drugs and weapons. Therefore, the state must
present sufficient evidence to show Burton was aware of their existence and able to
exercise dominion and control over them. There is no doubt the state’s evidence
showing Burton’s constructive possession of the illicit items are circumstantial only.
However, constructive possession may be proved by circumstantial evidence alone.
State v. Trembly, 137 Ohio App.3d 134, 141, 738 N.E.2d 93 (8th Dist.2000).
The state presented Officer Kaleal’s testimony that shows that, as he
attempted to enter the attic through the second-floor door, Burton closed the door
and locked the door with his keys, preventing the officer from going to the attic area.
Burton can also be heard in the officer’s body camera tape that “I live upstairs.” Regarding drug trafficking, plastic bags and scales, as they are often
used in drug trafficking, constitute circumstantial evidence for drug trafficking if
found with a large quantity of drugs. State v. Kutsar, 8th Dist. Cuyahoga No. 89310,
2007-Ohio-6990, ¶ 19-20, citing State v. Fain, 5th Dist. Delaware
No. 06CAAl20094, 2007-Ohio-4854 (plastic sandwich bags and digital scales are
circumstantial evidence for drug trafficking), State v. Smith, 3d Dist. Union
No. 14-01-28, 2002-Ohio-5051 (jury could consider possession of drugs, scale,
baggies, and gun in conviction of trafficking), and State v. Fry, 9th Dist. Summit
No. 23211, 2007-Ohio-3240 (presence of drugs and drug paraphernalia permit a
reasonable inference that a person was preparing drugs for shipment). In this case,
in addition to a large quantity of drugs, plastic bags, and digital scales, the police
also found the presence of “cut mixes,” which are often used to prepare drugs for
sales, as Detective Harvey testified.
Regarding the one-year firearm specification accompanying the drug
counts, R.C. 2941.141(A) provides that a one-year mandatory prison term is imposed
if the offender “had a firearm on or about his person or under his control while
committing the [underlying] offense.” For purposes of R.C. 2941.141(A), a weapon
need not be found on the defendant’s person; the weapon can be found in another
room, and all that is necessary is that the defendant had the firearm on or about his
person or under his control at some point during the commission of the underlying
crimes. State v. Walker, 10th Dist. Franklin No. 14AP-905, 2016-Ohio-3185, ¶ 64;
State v. Harry, 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 53. The evidence presented by the state showing Burton stayed in the premises where
firearms and magazines were found together with a large quantity of drugs and drug
trafficking tools was sufficient to establish that Burton had the firearms under his
control during the commission of drug trafficking and drug possession offenses.1
The state’s evidence in this case, albeit circumstantial, constituted
sufficient evidence of the drug and weapon offenses Burton was convicted of. The
evidence, when viewed in a light most favorable to the prosecution, would convince
the average mind of Burton’s guilt beyond a reasonable doubt. The evidence
presented by the state was legally sufficient to sustain Burton’s convictions.
2. Manifest Weight of the Evidence
Burton also claims his convictions are against the manifest weight of
the evidence. He argues the evidence presented at trial weighs against finding him
guilty of the drug and weapon charges because he produced persuasive evidence to
show that the items linking him to the premises where the drugs and weapons were
found were planted by the police.
1 Burton cites State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-4006, for
his claim that a firearm must be “conveniently accessible” or “within reach” for a conviction of a firearm specification under R.C. 2941.141(A). In Smith, the defendant was selling drugs in the street. He tripped and fell to the ground when chased by a police officer. While the officer stood over the defendant, he reached up and grabbed the officer’s gun. The two tussled over the gun, but the defendant never gained control of the gun. This court found that the state presented insufficient evidence for the gun specification charge because the gun was never under the defendant’s control such that it was “conveniently accessible” to him. Id. at ¶ 11, citing 2 Ohio Jury Instructions (2008). Smith is distinguishable. Here, the state’s evidence showing the presence of the weapons and drug-related items in the same room constituted sufficient circumstantial evidence that the weapons were “conveniently accessible.” Burton alleged that his vehicle, a Chevy Cruze, was towed and
inventoried on the night of the incident and the items bearing his name the police
claimed to have been found in the attic came from his vehicle.
The state maintained that Burton’s vehicle was neither towed nor
inventoried by the police on the night of the incident. Burton, however, alleged the
state’s exhibit No. 87 showed his vehicle had been inventoried by the police on the
night of the incident. Exhibit No. 87 was a tow slip from St. Clair Auto Body. The
slip showed a tow date of August 25, 2017. It also showed the vehicle was released
to the “owner” and there was a storage charge of $17 for eight days. A box for
“ECPD” — presumably East Cleveland Police Department — was checked off. In
addition, Burton pointed to the state’s exhibit No. 88, which appeared to be an
officer’s log showing certain police activities on August 12, 2017. The log contained
a short-hand statement “St. Clair Auto is on scene.” The state maintained that the
only vehicle towed that night was the Honda Accord driven by Kemp’s friend.
Even assuming that exhibits Nos. 87 and 88 did show that Burton’s
vehicle was inventoried by the police that night, as Burton alleged, it is not
conclusive evidence that the police officers planted the identifying items on the
premises where the drugs and weapons were found. While Burton presented
evidence showing he was framed by the police, it was squarely within the jury’s
purview to determine whether to believe Burton or the police officers. In addition
to the items linking Burton the attic apartment, the state also produced Officer Kaleal’s testimony and snippets from his body camera where Burton can be heard
saying “I live upstairs.”
Regarding witness credibility, we are mindful that “[t]he choice
between credible witnesses and their conflicting testimony rests solely with the
finder of fact and an appellate court may not substitute its own judgment for that of
the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).
This is because the trier of fact “is in the best position to observe the witnesses’
demeanor, voice inflection, and mannerisms in determining each witness’s
credibility.” State v. Hughes, 8th Dist. Cuyahoga No. 81768, 2003-Ohio-2307, ¶ 26.
Furthermore, “the jurors are free to believe some, all, or none of each witness’
testimony and they may separate the credible parts of the testimony from the
incredible parts.” State v. Malyshev, 7th Dist. Jefferson No. 17 JE 0029,
2019-Ohio-1087, ¶ 83. “When there are two fairly reasonable views of the evidence
or two conflicting versions of events, neither of which is unbelievable, [the reviewing
court] will not choose which one is more credible.” Id.
Having reviewed the entire record, we are not convinced that the jury
in this case clearly lost its way and created such a manifest miscarriage of justice in
resolving the conflict in the evidence in the state’s favor that Burton’s conviction of
drug and weapons charges must be reversed. We do not find this to be an exceptional
case where the evidence weighed heavily against the convictions and therefore we
decline to exercise our discretionary power to grant a new trial. The second
assignment of error is overruled. Ineffective Assistance of Counsel
Under the first assignment of error, Burton claims his trial counsel
provided ineffective assistance in failing to file a motion to suppress the evidence on
the ground that the search warrant was based on an affidavit that contained false
statements. Under the Fourth Amendment to the United States Constitution, a
warrant must be based on probable cause and supported by an “oath or affirmation.”
In Franks v. Delaware, 438 U.S. 154, 171-172, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),
the United States Supreme Court held that if a defendant makes a “substantial
preliminary showing” that an affidavit supporting a search warrant contains a false
statement made knowingly or with reckless disregard for the truth, the defendant is
entitled to a hearing if the allegedly false statement is necessary to establish probable
cause.
Burton argues if his trial counsel had filed a motion to suppress and
requested a hearing pursuant to Franks, he would have been able to demonstrate
that a Franks hearing would be warranted in this case. He claims the hearing would
have shown that the search warrant affidavit was based on false information and the
trial court would have granted his motion to suppress the evidence relating to the
drug and gun charges against him.
The issue on appeal, however, is not whether a Franks hearing was
warranted in this case or whether the search warrant affidavit contained knowing or
reckless falsehood. Rather, because Burton’s trial counsel did not file a motion to suppress, Burton’s claim regarding the validity of the search warrant is couched in
terms of ineffective assistance of counsel.
In order to establish a claim of ineffective assistance of counsel,
Burton must prove (1) his counsel was deficient in some aspect of his representation,
and (2) there is a reasonable probability that, were it not for counsel’s errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In Ohio, every properly licensed attorney is presumed to be
competent and, therefore, a defendant claiming ineffective assistance of counsel
bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128
(1985). Counsel’s performance will not be deemed ineffective unless and until the
performance is proven to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance. State
v. Iacona, 93 Ohio St.3d 83, 105, 2001-Ohio-1292, 752 N.E.2d 937.
Burton argues his counsel provided ineffective assistance by failing to
file a motion to suppress and to request a hearing pursuant to Franks, 438 U.S. 154,
171-172, 98 S.Ct. 2674, 57 L.Ed.2d 667. As part of his assignment of error regarding
the Franks hearing, he also argues his counsel provided ineffective assistance in
failing to fully investigate his claim that the search warrant was manufactured by
the police by scrutinizing (1) the discrepancy between what Detective Harvey stated
in the affidavit and what the other officers knew regarding the purpose of Kemp’s
visit to the house, and (2) the entire contents of the tape from Officer Kaleal’s body camera, which he alleged contained statements alluding to the shooting as having
occurred outside the house.
We note, however, in order for Burton to claim that the police
conducted an illegal search of the attic in violation of his Fourth Amendment rights,
he must first establish that he has a legitimate expectation of privacy with regard to
the attic. See, e.g., State v. Wilson, 2018-Ohio-396, 106 N.E.3d 806, ¶ 18 (5th Dist.)
(a defendant’s Fourth Amendment rights are violated only when the police officer’s
conduct invades his legitimate expectation of privacy rather than a third party); and
State v. Hill, 127 Ohio App.3d 441, 446-447, 713 N.E.2d 73 (2d Dist.1998) (Fourth
Amendment rights are personal and may not be vicariously asserted), citing Rakas
v. Illinois, 439 U.S. 128, 133-134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In order to
demonstrate an infringement of his own legitimate expectation of privacy, Burton
needs to show that “‘he owned the premises or that he occupied them and had
dominion and control over them by leave of the owner.’” State v. Walker, 8th Dist.
Cuyahoga No. 64048, 1993 Ohio App. LEXIS 1147, 16 (Feb. 25, 1993), quoting
United States v. Villegas, 899 F.2d 1324 (2d Cir.1990).
Yet, Burton’s defense at trial is that he did not live or stay in the attic
or utilize it for any residential purposes. Indeed, while he could be heard on Officer
Kaleal’s body camera tape stating that he lived “upstairs” and no one else lived there,
he took great pains on the witness stand explaining that he lied to the police about
living “upstairs” in order to prevent the East Cleveland police from their known
practice of illegal search and seizures. A claim of a violation of Fourth Amendment rights underlying a
motion to suppress evidence would be incompatible with Burton’s defense at trial,
which understandably created a “Catch-22” situation for Burton’s trial counsel.
If counsel had filed a motion to suppress, Burton would necessarily be
claiming that he had a legitimate expectation of privacy in the attic. This posture
would affect his ability to assert his defense against the drugs and firearms charges
— that he did not live or stay or in the attic — should the trial court deny the motion
and the case went to trial. In addition, being able to testify at trial that he only visited
the house occasionally to perform maintenance work also boosted his defense
against the state’s claim that he came from the attic, kicked a door open, and shot
Kemp. Because counsel did not file a motion to suppress, which would necessarily
be predicated on an expectation of privacy in the premises, Burton retained the
ability to deny on the witness stand that he did not stay or live in the attic, refuting
the state’s claim he came from the attic apartment and shot Kemp. This trial tactic
was apparently successful, because the jury acquitted Burton of attempted murder
and other charges relating to the shooting.
Although we are somewhat troubled by the search warrant affidavit in
this case, in evaluating Burton’s claim of ineffective assistance of counsel, we are
mindful that great deference should be afforded to counsel’s performance and that
trial tactics and strategies do not constitute a denial of effective assistance of counsel.
State v. Gooden, 8th Dist. Cuyahoga No. 88174, 2007-Ohio-2371, ¶ 38, citing State
v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). Decisions on strategy and trial tactics are matters of professional judgment and are granted wide latitude and
we will not second-guess counsel’s legal tactics and maneuvers. State v. Quinones,
8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544, ¶ 19. Accordingly, we decline to
question in hindsight the strategic decision made by Burton’s trial counsel regarding
the motion to suppress.
Furthermore, even if we were to conclude Burton’s trial counsel
should have filed a motion to suppress, we note that a trial counsel’s failure to file a
suppression motion does not automatically constitute ineffective assistance of
counsel. Wilson, 2018-Ohio-396, 106 N.E.3d 806, at ¶ 13, citing State v. Madrigal,
87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52. Counsel can only be found
ineffective for failing to file the motion if the record shows the motion would have
been granted and that there is a reasonable probability that the outcome of the trial
would have been different if the motion had been granted. Id.
Here, given the presumption of validity accorded to warrant affidavits
which Franks itself recognized, it remains speculative whether Burton could
successfully make a “substantial” preliminary showing that a false statement, made
knowingly or with reckless disregard for truth, was included in the affidavit, and that
the allegedly false statement was necessary to a finding of probable cause in this
case. Franks, 438 U.S. at 155, 98 S.Ct. 2674, 57 L.Ed.2d 667. It is also somewhat
speculative that if such a hearing were held, the trial court would find the affiant
Detective Harvey acted knowingly or with a reckless disregard for the truth — rather than negligently — and grant Burton’s motion to suppress. For all these reasons,
the first assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and RAYMOND C. HEADEN, J., CONCUR