State v. Carter, 15 MA 0225

CourtUnited States Court of Appeals (Ohio)
Citation96 N.E.3d 1046,2017 Ohio 7501
Docket NumberNO. 15 MA 0225,15 MA 0225
Parties STATE of Ohio, Plaintiff–Appellee, v. Kalontae CARTER, Defendant–Appellant.
Decision Date30 August 2017

96 N.E.3d 1046
2017 Ohio 7501

STATE of Ohio, Plaintiff–Appellee,
Kalontae CARTER, Defendant–Appellant.

NO. 15 MA 0225

Court of Appeals of Ohio, Seventh District, Mahoning County.

Dated: August 30, 2017

Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman St., 6th Floor, Youngstown, Ohio 44503, for Plaintiff–Appellee.

Atty. Anthony J. Farris, 860 Boardman–Canfield Rd. Ste. 204, Youngstown, Ohio 44512, for Defendant–Appellant.

JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite



{¶ 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.

96 N.E.3d 1055

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

96 N.E.3d 1056

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....

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