State v. Kennedy

• Decision Date: 27 September 2013
• Docket Number: No. C–120337.,C–120337.
• Citation: 998 N.E.2d 1189
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Kenneth KENNEDY, Defendant–Appellant.
• Court: Ohio Court of Appeals

998 N.E.2d 1189

STATE of Ohio, Plaintiff–Appellee,

v.Kenneth KENNEDY, Defendant–Appellant.

No. C–120337.

Court of Appeals of Ohio, First District, Hamilton County.

Sept. 27, 2013.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff–Appellee.

Michaela M. Stagnaro, Cincinnati, for Defendant–Appellant.

OPINION

CUNNINGHAM, Judge.

{¶ 1} Defendant-appellant Kenneth Kennedy appeals from the judgment of the Hamilton County Court of Common Pleas convicting him of multiple offenses in relation to two separate incidents that occurred between March and June 2006 in Cincinnati. He now appeals, claiming errors in (1) the failure to sever the offenses, (2) the admission of hearsay evidence, (3) the admission of other-acts evidence, (4) the sufficiency and the manifest weight of the evidence, and (5) the imposition of sentence, including the court's failure to merge offenses, to make the statutorily-required findings before imposing consecutive sentences, and to notify of postrelease control.

{¶ 2} Because the trial court imposed consecutive sentences for all offenses without making the statutorily-required findings and failed to notify Kennedy of his postrelease-control requirements with respect to some of the offenses, we must vacate the sentences and remand the case for resentencing, at which time the court can provide Kennedy with the necessary postrelease-control notifications. We affirm the trial court's judgment in all other respects.

I. Background Facts

A. Gambling–Apartment Shootings

{¶ 3} In the early morning of March 27, 2006, Janie Matthews, known as “Bedrock,”Rodney Turnbow, Derrick Dumas, and others were playing cards for money in Matthews's second-floor apartment in the Walnut Hills area of Cincinnati. According to Dumas, Jaydee Thompson had participated in the game earlier in the night.

{¶ 4} About 30 minutes after Thompson left, at least two armed and masked male assailants entered Matthews's apartment building. One of the assailants knocked on Matthews's door. After Matthews had partially opened the door, he shot her with a 9–mm semiautomatic weapon and forced his way in. He then fired at Turnbow with the same gun, striking him in the head, and robbed everyone inside the apartment, including Dumas.

{¶ 5} Later, as the assailants fled down the stairs of the apartment building, they encountered Deandre Thomas. Thomas recognized Thompson as one of the assailants, and Thompson shot Thomas in the face.

{¶ 6} When the police arrived, they found Matthews just inside the apartment, near the door, and Turnbow nearby. Both died as a result of their gunshot wounds. The police found Thomas on stairs of the apartment building. He survived and identified Thompson as the man who had shot him. Ballistic-test results on the cartridges that the police found at the crime scene demonstrated that two firearms had been used. The cartridges found inside Matthews's apartment and just outside of her door had been fired from one firearm, but the cartridges found in the stairwell on the ground floor and on the steps had been fired from another.

{¶ 7} Several weeks after the shootings, Kennedy told Derrell Anderson about “Bedrock's” shooting, when they were both passengers in the car of man named Jaleel. Anderson and Jaleel had picked up Kennedy from a parking lot in Walnut Hills and were taking him to Burnet Avenue in Avondale because Kennedy said he needed to escape from “guys” in the Walnut Hills neighborhood who were after him because he had killed Matthews. Kennedy explained to Anderson the details of the crime, including that he had shot Matthews as she tried to shut the door on him, that he had taken the gambling money, that he had shot another man inside the apartment, and that “JayDee” had shot someone in the face on the stairs.

{¶ 8} While in the Hamilton County Justice Center, Kennedy told two inmates, Tobias Johnson, who knew Matthews, and Jermaine Beard, about his role in the gambling-apartment shootings and provided the details of the crime. Johnson testified that Kennedy had told him that Thompson had been gambling at Matthews's apartment, and that Thompson had set up the robbery, because he owed Kennedy a favor for previously turning him onto a “lick.” Kennedy said that Matthews had come to the door after he knocked on it, and that he had shot her when she tried to shut it. He also admitted that he had shot Turnbow because he tried to run, and that he had “robbed everybody.” Kennedy credited his accomplice Thompson with shooting a man in the face on the stairs as they were leaving.

{¶ 9} Beard testified that Kennedy had told him that he had pretended to be “JayDee” to enter a gambling apartment, that he had shot the lady who opened the door when she tried to close it on him, and that he had shot a man named “Rodney” and had taken about $1500 from him.

B. Vine–Street Shootings

{¶ 10} On June 23, 2006, Dwayne Stuckey was shot on Vine Street in the Over–the–Rhine area of Cincinnati. The shooting began in the street, but ended inside a Cricket Store, which was located next to a Kroger store. Stuckey was shot six times and eventually died from his wounds. Phillip Simmons, a bystander on the street, was injured by a stray bullet.

{¶ 11} Officer Schultz, on bike patrol nearby, heard the gunfire and rushed to the scene. He approached Stuckey and asked him who had shot him. After initially declining to answer, Stuckey identified his shooter as “Midnight” and “Midnight from Burnet.”

{¶ 12} Limited video surveillance from the Cricket Store captured the image of the shooter, who appeared to be very dark complected. When questioned by the police about the crime, Kennedy, who was described as very dark complected, acknowledged that his nickname was “Midnight.” He also admitted that Stuckey had previously robbed him. Kennedy was arrested in October 2006 on Burnet Avenue. While in the justice center, he told Major Paige that he had chased down and shot Stuckey on Vine Street. Paige also learned from Kennedy that a stray bullet had struck a bystander.

{¶ 13} Kennedy also admitted to shooting Stuckey to another inmate, Dante Robb. According to Robb, Kennedy explained that because Stuckey had robbed him a few days earlier, when he saw Stuckey leaving a Kroger store, he started after him and shot at him, striking both Stuckey and a bystander. Both Robb and Paige testified at trial that they knew Kennedy as “Midnight.”

II. Procedure

{¶ 14} The state originally indicted Kennedy for the Vine–Street shootings in 2007, but the prosecutor dismissed that indictment, apparently upon discovering a defect. In July 2011, the prosecutor then joined the allegations from both shootings, resulting in a single, 15–count indictment for both incidents.

{¶ 15} The gambling-apartment charges, Counts 1 through 9, included aggravated-felony-murder and murder counts with firearm specifications for the death of Janie Matthews, aggravated-felony-murder and murder counts with firearm specifications for the death of Rodney Turnbow, felonious-assault counts with firearm specifications for Deandre Thomas's injuries, an aggravated robbery count with firearm specifications for the theft of money from Matthews, Turnbow, and the other card players, including Dumas, and two counts of having weapons under a disability.

{¶ 16} The Vine–Street–related charges, Counts 10 through 15, included purposeful-murder and felony-murder counts with firearm specifications for the death of Dwayne Stuckey, two felonious-assault counts with firearm specifications for Phillip Simmons's injuries, and two counts of having weapons under a disability.

{¶ 17} Prior to trial, Kennedy moved to sever the Vine–Street offenses from the gambling-apartment offenses. The state opposed the motion, and the trial court overruled it.

{¶ 18} At that time, Kennedy also orally moved to exclude Officer Schultz from testifying to Stuckey's statement identifying his assailant as “Midnight” and “Midnight from Burnet.” The trial court overruled the motion.

{¶ 19} During trial, Kennedy sought to discredit the state's evidence by arguing that Anderson, Johnson, Beard, Robb, and Paige were only seeking to receive favorable consideration from the state with respect to their own criminal cases. And in his defense, Kennedy presented testimony from several inmates who had been locked up in the justice center with him, and who denied that Kennedy had talked about his cases to anyone, including the state's witnesses.

{¶ 20} At the conclusion of the evidence, the jury found Kennedy guilty of all charges.

III. Assignments of Error

A. Misjoinder and Prejudicial Joiner

{¶ 21} In his first assignment of error, Kennedy argues that the trial court erred by overruling his motion to sever.

{¶ 22} Kennedy moved to sever the offenses related to the Vine–Street shootings from the offenses related to the gambling-apartment shootings. He claimed that Crim.R. 8(A) did not allow the joiner of those offenses in the same indictment, and that, if proper, the joinder would be prejudicial as contemplated by Crim.R. 14. He argued that the failure to sever would be prejudicial because the jury was likely to rely on evidence related to the offenses in one incident to infer Kennedy's guilt for the offenses related to the other incident. The state argued that joiner of the “homicides” was appropriate, and that severance was not appropriate, because Kennedy had failed to show prejudice from the joinder. The trial court overruled the motion.

{¶ 23} Crim.R. 8(A) pertains to the joinder of offenses in a single indictment. This rule provides that “two or more offenses may be charged in the same indictment” if the offenses are (1) “of the same or similar character;” (2) “based on the same act or transaction;” (3) “based on two or more acts or transactions connected together or constituting parts of a common scheme or plan,” or (4) “part of a course of criminal...