STATE OF OHIO v. NATHANIEL CARTER, JR.
C.A. No. 27717
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
December 6, 2017
[Cite as State v. Carter, 2017-Ohio-8847.]
SCHAFER, Presiding Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2014 06 1821
Dated: December 6, 2017
SCHAFER, Presiding Judge.
{¶1} Defendant-Appellant, Nathaniel Carter Jr., appeals from his convictions in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} On July 7, 2014, the Summit County Grand Jury indicted Carter on the following six counts: (I) aggravated murder in violation of
{¶3} At trial, 21 witnesses testified on behalf of the State. At the close of the State‘s case-in-chief, Carter made a
{¶4} On March 11, 2015, Carter filed a motion for delayed appeal, which this Court granted. See State v. Carter, 9th Dist. Summit No. 27717 (Mar. 31, 2015). Carter‘s appellate counsel thereafter filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that counsel had reviewed the trial record and concluded that there were no viable issues to pursue on appeal. Carter‘s appellate counsel also moved to withdraw as counsel of record. This Court then issued a magistrate‘s order affording Carter an opportunity to raise arguments after review of the Anders brief. Carter subsequently filed a motion seeking appointment of new appellate counsel, as well as a motion to dismiss his counsel‘s Anders brief, wherein he raised arguments that he wished to pursue on direct appeal. After reviewing the trial record, this Court determined that there was at least one arguable issue for appeal. See State v. Carter, 9th Dist. Summit No. 27717 (Sep. 7, 2016). Accordingly, this Court granted Carter‘s appellate counsel‘s motion to withdraw and appointed new appellate counsel to brief any discernable issues. Id.
II.
Assignment of Error IV
The verdict was against the manifest weight of evidence. The State of Ohio failed to establish beyond a reasonable doubt when viewed by the manifest weight of the evidence that Nathaniel Carter was involved in the murder of Donald Carter. The court erred, therefore, in failing to grant Mr. Carter‘s Rule 29 motion for acquittal.
{¶6} In his fourth assignment of error, Carter contends that his convictions are both unsupported by sufficient evidence and against the manifest weight of the evidence. We disagree.
{¶7} “We review a denial of a defendant‘s
{¶8} A sufficiency challenge is legally distinct from a manifest weight challenge. Thompkins at 387. When applying the manifest weight standard, we are required to consider the whole record, “weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily against the conviction,” Thompkins at 387.
{¶9} This matter implicates Carter‘s convictions for murder, felonious assault, having weapons while under disability, and tampering with evidence, along with the attendant firearm specifications thereto. On appeal, Carter does not dispute the underlying elements of these offenses. Rather, Carter contends that the State failed to meet its burden of production solely with respect to the issue of identity. As such, we will confine our analysis to this issue.
{¶10} “It is well settled that in order to support a conviction, the evidence must establish beyond a reasonable doubt the identity of the defendant as the person who actually committed the crime at issue.” State v. Missler, 3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 13, quoting State v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 27, citing State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19 and State v. Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 11. “[D]irect or circumstantial evidence is sufficient to establish the identity of the accused as the person who committed the crime.” Collins at ¶ 19, citing Lawwill at ¶ 11.
{¶11} At trial, four of the State‘s 21 witnesses positively identified Carter as the “drive-by” shooter on the night in question. First, Tracy W., the mother of the victim‘s best friend, Dana W., testified that she was hosting a birthday party for her adult nephew on the night in question. Tracy W. testified that while she was in the backyard of a neighboring building preparing to cut the birthday cake, her son, Dana W., daughter, Taresa W., niece, Dominique W., and the victim were all hanging out on the stoop area of her apartment building on the corner of Marcy Street and Cole Avenue. Tracy W. testified that as she was about to cut the cake, she heard several gunshots. She stated that upon hearing the gunshots, she “looked and [she] seen a red truck go by and [she] seen the shots coming from the truck.” She then testified that she immediately called 9-1-1 after observing that the victim had been shot. Tracy W. stated that when the police arrived at the scene, she informed them that Nathaniel Carter, Jr. was the shooter. Tracy W. proceeded to identify Carter in court as the person who shot and killed the victim on the night in question.
{¶12} Second, Taresa Lynn W. testified that on the night in question, she was sitting in front of her mother‘s building on Cole Avenue with her brother, Dana W., her cousin, Dominique W., and the victim. Taresa W. also testified that she was aware that Dana W. and Carter had a contentious relationship, including a violent confrontation that occurred just two days prior to the day in question. She further testified that at some point while the four of them were conversing, Sheldon C., one of Carter‘s “really good friends,” drove down the street and looked at them. According to Taresa W.‘s trial testimony, Dana W. then stated, “I bet you any
{¶13} Third, Theresa T. testified that she was visiting with family at her daughter‘s house on Andrus Street on the night in question. Evidence presented at trial demonstrated that the crime scene is located just down the street and is visible from the front of Theresa T.‘s daughter‘s house. Theresa T. testified that at some point that evening, she saw Dana W., who was standing on Cole Avenue near Marcy Street, fall to the ground and begin crawling. Theresa T. also testified that she then saw bullets ricochet on the sidewalk near Dana W.‘s foot or ankle. Theresa T. testified that as she was in the process of moving her family members to safety, she saw a red SUV turn off of Cole Avenue onto Andrus Street and drive right past her location. Theresa T. testified that as the red SUV drove by, the driver “did a mean mug at us,” which she clarified was a mean and threatening expression. Theresa T. subsequently identified Carter in court as the man driving the red SUV who made the “mean expression” at her.
{¶14} Lastly, Cheryl D., Theresa T.‘s sister, testified that she was staying at her niece‘s house on the corner of Andrus Street and Cole Avenue on the night in question. Cheryl D. testified that she did not know Dana W. or the victim. Cheryl D. further testified that she was sitting on the front porch of her niece‘s house with her sister that evening while “[t]he kids were outside playing in the front yard.” She stated that from her vantage point, she could see the corner of Marcy Street and Cole Avenue “very well.” She testified that at some point that
{¶15} Viewing this evidence in a light most favorable to the State, we determine that any rational trier of fact could have found beyond a reasonable doubt that Carter was the individual who committed the charged offenses on the night in question. This evidence, if believed, demonstrates that while he was driving a red vehicle, Carter committed a “drive-by” shooting, which killed the victim on the night of June 11, 2014. Accordingly, we conclude that the State met its burden of production at trial.
{¶16} Turning to his manifest weight argument, Carter contends that his convictions are against the manifest weight of the evidence because Dana W. and members of Dana W.‘s family provided biased and unreliable testimony on the State‘s behalf. However, this Court has routinely held that “[c]redibility determinations are primarily within the province of the trier of fact.” State v. Just, 9th Dist. Wayne No. 12CA0002, 2012-Ohio-4094, ¶ 42, citing State v. Violett, 9th Dist. Medina No. 11CA0106-M, 2012-Ohio-2685, ¶ 11. “The fact-finder ‘is free to believe all, part, or none of the testimony of each witness.‘” Id., quoting State v. Cross, 9th Dist. Summit No. 25487, 2011-Ohio-3250, ¶ 35. Here, the jury reviewed all of the evidence and assessed the credibility of each witness. The jury apparently accepted the testimony of the State‘s witnesses which, if believed, supports the conclusion that Carter shot and killed the victim on the night in question. After reviewing the record, we cannot conclude that the jury lost its way and committed a manifest miscarriage of justice in convicting Carter of the charged offenses, especially considering the fact that two disinterested witnesses, Theresa T. and Cheryl D., buttressed the W. family‘s testimony that Carter was the individual responsible for the fatal “drive-by” shooting.
{¶17} Carter‘s fourth assignment of error is overruled.
Assignment of Error I
Nathaniel Carter, Jr.‘s constitutional and statutory right to a speedy trial was violated when the trial date was unreasonably continued outside the statutory timeframe. It is ineffective representation by defense counsel to fail to move the court to dismiss on speedy trial issues to further protect the issue on appeal. This Court can review as failure to raise this issue is plain error which Mr. Carter has not waived.
{¶18} In his first assignment of error, Carter argues that (1) his right to a speedy trial was violated when the trial date was unreasonably continued outside the statutory timeframe, and (2) his trial counsel provided ineffective assistance by failing to move for a dismissal of the indictment due to a purported speedy trial violation. We disagree on both points.
{¶19} At the outset, we note that the argument portion of Carter‘s appellate brief solely addresses his speedy trial rights under
{¶20} In this case, a review of the record shows that Carter did not file a motion to discharge the case based on a speedy trial violation. Therefore, Carter has forfeited all but plain error. Plain error may only be invoked where the following three elements exist:
First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be “plain” within the meaning of
Crim.R. 52(B) , an error must be an “obvious” defect in the trial proceedings. * * * Third, the error must have affected “substantial rights” * * * [and] affected the outcome of the trial.
(Internal citations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Nonetheless, plain error “is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶21}
{¶22} However, in addition to the time limits set forth in
{¶23} Here, Carter was arrested on June 11, 2014. Thus, the speedy trial clock began running in this matter on June 12, 2014. See Friedhof at *8, citing Steiner at 250-251. Assuming the time within which Carter must have been brought to trial was not tolled by any of his own motions, that time would have expired on September 10, 2014. However, at the July 16, 2014 pretrial conference, defense counsel informed the trial court that he had filed a motion for discovery, thus tolling the speedy trial clock. See State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, ¶ 26, citing
{¶25} Although the trial court stated the trial was continued “due to the Court‘s unavailability,” Carter does not argue on appeal that such a continuance was unreasonable in this matter, see
{¶26} Therefore, we cannot say the trial court committed plain error by not discharging Carter‘s case based on a speedy trial violation.
B. Ineffective Assistance of Counsel
{¶27} “The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel.” State v. Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, ¶ 22, citing State v. Banks, 9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. “On the issue of counsel‘s ineffectiveness, [Carter, as the Appellant,] has the burden of proof because in Ohio, a properly licensed attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. To prove ineffective assistance of counsel, Carter must establish that (1) his trial counsel‘s performance was deficient, and (2) “the deficient performance prejudiced the
{¶28} However, we conclude that Carter has failed to meet his burden of demonstrating that he was prejudiced by his trial counsel‘s failure to file a motion to dismiss on the basis of a speedy trial violation. First, as discussed above, Carter does not argue that it was unreasonable for the trial court to continue his trial due to the trial court‘s unavailability. Nonetheless, a review of the record shows the trial court was scheduled to commence multiple trials which would conflict with Carter‘s September 15, 2014 trial date. Those cases included a four to six week capital case and a homicide case that had been pending longer than the present case. Second, while Carter asserts in his brief that “[n]o motions were filed, and no motion for discovery was filed tolling the speedy trial time[,]” such a claim is belied by the pretrial transcripts. Although a review of the record does not show when or if a motion for discovery was ever filed with the clerk of the Summit County Court of Common Pleas, a review of the transcript from the July 16, 2014 pretrial conference reflects that Carter‘s trial counsel represented to the trial court that he had made a motion for discovery. Indeed, the prosecutor subsequently referenced the defense‘s discovery motion at the August 20, 2014 status conference wherein the speedy trial issue was discussed at length. Nonetheless, the record is devoid of any information as to what date the motion was made or when the State complied with the discovery request. Absent these dates, this Court is unable to fully analyze whether Carter was brought to
{¶29} Therefore, we determine that Carter has failed to meet his burden of demonstrating actual prejudice from his trial counsel‘s failure to file a motion to dismiss on the basis of a speedy trial violation.
{¶30} Carter‘s first assignment of error is overruled.
Assignment of Error II
It was improper to allow the testimony of Lt. Jerry Hughes who testified without objection that Nathaniel in his interview was “acting like he did it” even though he “[wasn‘t] admitting that he did it.” It is ineffective assistance to fail to object to this testimony giving subjective opinion as to what Nathaniel actually meant by his behavior.
Assignment of Error III
Nathaniel Carter was rendered ineffective assistance of counsel through trial defense by counsel‘s failure to meet the standard of professional conduct required in various parts of the trial.
{¶31} In his second and third assignments of error, Carter argues that he received ineffective assistance of trial counsel. Carter advances several arguments in support of this contention. Specifically, Carter asserts that his trial counsel was ineffective by not objecting to purportedly improper opinion testimony, by failing to impeach a State‘s witness, by failing to cross-examine some of the State‘s witnesses on the issue of the shooter‘s identity, and by failing to present evidence supporting an argument made during his opening statement. We will address each argument in turn.
{¶32} “The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel.” Liu, 2008-Ohio-6793, at ¶ 22, citing Banks, 2002-Ohio-4858, at ¶ 16. “On the issue of counsel‘s ineffectiveness, [Carter, as the Appellant,] has the burden of proof
{¶33} In his second assignment of error, Carter argues that his trial counsel was ineffective by not objecting to Lieutenant Jerry Hughes’ allegedly improper opinion testimony. Namely, Carter maintains that his trial counsel should have objected when Lt. Hughes testified that Carter acted like he was guilty during his police interrogation, despite the fact that Carter never confessed to the charged offenses. Additionally, Carter argues that his trial counsel should have objected when Lt. Hughes testified that Carter appeared to be “wrestling or coming to grips with” his actions, noting that Carter appeared to realize that his “life is over” “if [he] get[s] convicted of this murder[.]” Carter asserts that apart from being prejudicial, Lt. Hughes’ opinion testimony was speculative, improper for a lay witness, and the product of several lines of leading questions from the prosecutor.
{¶34} However, “this Court has consistently held that ‘trial counsel‘s failure to make objections is within the realm of trial tactics and does not establish ineffective assistance of counsel.‘” State v. Bradford, 9th Dist. Summit No. 22441, 2005-Ohio-5804, ¶ 27, quoting State v. Taylor, 9th Dist. Lorain No. 01CA007945, 2002-Ohio-6992, ¶ 76. Viewing Lt. Hughes’ purportedly improper testimony in the aggregate, we conclude that Carter has failed to meet his
{¶35} Turning to his third assignment of error, Carter contends that his trial counsel was ineffective by failing to cross-examine Dana W. on his prior criminal convictions and his plea deal2 with the State in exchange for his testimony in the present case. Moreover, Carter argues that his trial counsel was ineffective by not cross-examining Tracy W., Taresa Lynn W., and Dominique W., or otherwise objecting to or seeking a curative instruction in response to their purportedly improper testimony. Specifically, Carter argues that his trial counsel should have objected when Tracy W. and Taresa Lynn W. identified him as the shooter, since neither witness testified to seeing him driving the red truck or firing a gun on the night in question. Moreover, Carter argues that much of the W. family‘s respective testimony was either hearsay or the product of leading questions from the prosecutor.
{¶37} Additionally, as noted earlier, Carter has failed to demonstrate a reasonable probability that the result of his trial would have been different absent the alleged deficiencies by his trial counsel. While shedding light on Dana W.‘s prior criminal history and plea deal with the State may have caused the jury to doubt his credibility, there was testimony from four other witnesses positively identifying Carter as the “drive-by” shooter who killed the victim on the night in question. See State v. Griffin, 10th Dist. Franklin No. 10AP-902, 2011-Ohio-4250, ¶ 45 (holding that appellant failed to show he was prejudiced by trial counsel‘s failure to impeach the victim‘s credibility through evidence of a prior conviction since independent evidence existed tending to establish the appellant‘s guilt). Moreover, assuming without deciding that Tracy W.‘s and Taresa Lynn W.‘s testimony identifying Carter as the shooter was either improper or the product of improper questioning, we cannot ignore the fact that two disinterested witnesses, Theresa T. and Cheryl D., also identified Carter at trial as the “drive-by” shooter. Accordingly, based on the foregoing, we conclude that Carter has failed to establish that he was prejudiced by his trial counsel‘s performance.
{¶39} Carter‘s second and third assignments of error are overruled.
III.
{¶40} With all four of Carter‘s assignments of error having been overruled, the judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
CALLAHAN, J. CONCURS.
CARR, J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.