State v. Dorsey

• Decision Date: 09 November 2015
• Docket Number: Case No. 2014CA00217
• Citation: 2015 Ohio 4659
• Parties: STATE OF OHIO Plaintiff-Appellee v. LADERRIUS DUSHON DORSEY Defendant-Appellant
• Court: Ohio Court of Appeals

2015 Ohio 4659

STATE OF OHIO Plaintiff-Appellee v. LADERRIUS DUSHON DORSEY Defendant-Appellant

Case No. 2014CA00217

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

November 9, 2015

JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2014CR1613

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

JOHN FERRERO

STARK COUNTY PROSECUTOR

BY: RENEE WATSON

110 Central Plaza S.

Canton, OH 44702

For Defendant-Appellant

EARLE E. WISE, JR.

122 Central Plaza North

Canton, OH 44702

Gwin, P.J.

{¶1} Appellant, Laderrius Dushon Dorsey ["Dorsey"] appeals from his convictions and sentences after a jury trial in the Stark County Court of Common Pleas for felonious assault, with an attendant firearm specification, having weapons while under disability, and a repeat violent offender specification.

Facts and Procedural History

{¶2} Dorsey was originally indicted in Stark County Common Pleas Court case number 2014CR0972 on June 22, 2014. Dorsey was charged with one count of aggravated robbery pursuant to R.C. 2911.01(A)(1) and/or R.0 2911.01(A)(3) and one count of felonious assault pursuant to R.C. 2903.11(A)(1) and/or R.C. 2903.11(A)(2). A later superseding indictment added a repeat violent offender specification pursuant to R. C. 2941.149, gun specifications pursuant to R.C. 2941.141 and one count of having weapons under disability pursuant to R.C. 2941.149. On August 15, 2014, Dorsey was charged with robbery in an unrelated case. State v. Dorsey, Stark County Court of Common Pleas No. 2014CR1298A.

{¶3} On September 2, 2014, a key witness for the state unexpectedly went into labor. When the trial court was unwilling to grant a continuance and Dorsey was unwilling to sign a time waiver, the state dismissed the charges with the understanding that it would be re-filed as soon as the witness was available. This case was later dismissed by the state. Identical charges were re-filed in Case Number 2014CR1613 on October 9, 2014 and trial began on October 14, 2014. Dorsey waived his right to a jury trial as to the charge of having weapons under disability and the repeat violent offender specification, electing to have the court decide those matters. The case proceeded to trial under the later case number.

{¶4} On April 1, 2014, around 2:00 p.m. Thomas Whatley was walking toward downtown Canton. On Jones Court, he happened upon Dorsey. Whatley has known Dorsey since 2009, but Dorsey was known to Whatley only as "Bird." Davon Wallace and Stephanie Dailey were also present.

{¶5} As Whatley approached, the group was gathered around a black car that Whatley did not recognize. Whatley stopped to talk, but then Dorsey told Whatley he needed Whatley's money. Dorsey tried to get his hands in Whatley's pants pocket. When Whatley struggled, Dorsey pulled out a gun and shot Whatley in the leg. Dorsey dropped the gun and Whatley fled. Dorsey recovered the weapon and ran after Whatley. Whatley testified that he was convicted of Felonious Assault and Robbery in 2009 and went to prison. He is currently on post-release control. Whatley admitted that because he was on PRC he could not own or have a firearm.

{¶6} Kimberly Poole was on her front porch when she heard a loud pop. She looked in the direction of the sound to see a man running up the alley followed by another man wielding a gun. The first man kicked his way into an abandoned house to escape the man with the gun. The man with the gun noticed Poole, looked at her, smiled, "tucked the gun back in," and then ran back down the alley. Moments later a black car came out of the alley. The car's windows were tinted so Poole could not see if the gunman was in the car. The man who had hid in the house reemerged and began screaming he had been shot. Poole's uncle called police.

{¶7} Canton Police Officer Terry Monter responded to the scene along with Sergeant Prince. They spoke briefly with Whatley while the medics were working on him, and then spoke with Poole. She described the gunman as a black male in a white t-shirt with a "low haircut". She also described the car and was able to recall a few numbers off the license plate. When shown a photograph of the suspect vehicle to identify she said it was not the vehicle that she saw. 1T. at 100. When shown a second photograph of the same vehicle she does identify it as the car, "now that I see the taillight." Id.

{¶8} Poole was not asked by the police to identify Dorsey as the man she had seen wielding a gun. The state did not ask Poole during trial if she could identify Dorsey as the man with the gun that she had seen chasing Whatley.

{¶9} Officers were aware of the vehicle and that Wallace owned it. It had been photographed in the past. Officers showed a photo of the vehicle to Poole and she confirmed that was the car she saw coming out of the alley.

{¶10} Officer Monter learned the suspect was known as Bird. He was aware of an individual associated with the Shorb Block gang who went by the name "Bird." He obtained a photo of the person he knew as Bird to show Whatley and Whatley identified Bird, aka Dorsey as the shooter. Officer Monter testified that the U.S. Marshals and FBI Task Force who the police use to locate fugitives later arrested Appellant in Atlanta, Georgia. 1T. at 164. When he was arrested in Georgia the Form 8 list Dorsey's residence as Marietta, Georgia.

{¶11} Davon Wallace testified for the state at trial. Although he was a mostly uncooperative witness — claiming he was "on pills" and remembered nothing from the day in question — he nonetheless placed himself, his car, and Dorsey at the scene.

{¶12} The jury found Dorsey guilty of felonious assault and the accompanying firearm specification, but acquitted him of robbery and the firearm specification. The trial court found Dorsey guilty of the repeat violent offender specification and having weapons under disability.

{¶13} Dorsey was later sentenced to 8 years for felonious assault, 3 years for the gun specification, 3 years for having weapons under disability, 10 years for the repeat violent offender specification and the balance of his post release control time - 765 days. Dorsey was ordered to serve the sentences consecutively for an aggregate total of 24 years plus 765 days.

Assignments of Error

{¶14} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY VIOLATING HIS RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTIONS AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AS WELL AS OHIO REVISED CODE SECTIONS 2945.71 TO 2945.73.

{¶15} "II. APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF PROSECUTORIAL MISCONDUCT WHEN THE PROSECUTOR IMPROPERLY COMMENTED ON:

{¶16} 1) APPELLANT'S PRIOR PRISON SENTENCE IN OPENING STATEMENT;

{¶17} 2) UNSUBSTANTIATED EVIDENCE OF FLIGHT BY APPELLANT; AND

{¶18} 3) APPELLANT'S RIGHT TO REMAIN SILENT.

{¶19} "III. THE TRIAL COURT ERRED TO THE PRDJUDICE(SIC) OF THE APPELLANT WHEN IT FAILED TO PROPERLY INSTRUCT THE JURY: 1) AS TO A FLIGHT INSTRUCTION WHERE THERE WAS A STATEMENT ABOUT APPELLANT'S ALLEGED FLIGHT; AND 2) AS TO AN INSTRUCTION AS TO DISREGARD A STATEMENT ABOUT APPELLANT SERVING TIME IN PRISON.

{¶20} "IV. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUSTAIN TILE CONVICTIONS AND THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIENCE (SIC).

{¶21} "V. THE APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER THE SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10, ARTICLE I, OF THE OHIO CONSTITUTION.

{¶22} "VI. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT BY FAILING TO PREVENT CUMMULATIVE ERROR, WHICH PREVENTED APPELLANT FROM RECEIVING A FAIR TRIAL."

I.

{¶23} In his first assignment of error, Dorsey contends the trial court erred and violated his statutory and constitutional rights by denying him a speedy trial.

{¶24} The right to a speedy public trial is established in the Ohio Constitution, Article I, Section 10. "In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *." (Emphasis added.) See, State v. MacDonald, 48 Ohio St. 2d 66, 68, 357 N.E.2d 40, 42(1976).

{¶25} R.C. 2945.71 codifies a defendant's right to a speedy trial and provides the time within which a hearing or trial must be held for specific offenses.

{¶26} A person charged with a felony shall be brought to trial within 270 days after the person's arrest or the service of summons. R.C. 2945.71(C)(2). A person against whom one or more charges of different degrees, whether felonies, misdemeanors, or combinations of felonies and misdemeanors, all of which arose out of the same act or transaction, are pending shall be brought to trial on all of the charges within the time period required for the highest degree of offense charged. R.C. 2945.71(D). Each day an accused is held in jail shall be counted as 3 days. R.C. 2945.71(E).

{¶27} "Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code." R.C. 2945.73(B). "[S]uch discharge is a bar to any further criminal proceedings against him based on the same conduct." R.C. 2945.73(D).

{¶28} R.C. 2945.72 provides for a tolling of the time limitations under certain circumstances,

The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may

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