State v. Lindsey
| Decision Date | 07 March 2019 |
| Docket Number | No. 106111,106111 |
| Citation | 2019 Ohio 782 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. DONNELL D. LINDSEY DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
ATTORNEY FOR APPELLANT
P.O. Box 40222
Bay Village, Ohio 44140
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Anna M. Faraglia
Christopher D. Schroeder
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Donnell Lindsey ("Lindsey"), appeals his convictions. Finding no merit to the appeal, we affirm.
{¶2} In June 2016, Lindsey was charged with the shooting death of three-year old Major Howard. The 24-count indictment charged him with aggravated murder (Counts 1 and 2), murder (Count 3), felonious assault (Counts 4, 5, 7, 8, 10, 11, 13, 14, and 16), attempted murder (Counts 6, 9, 12, and 15), discharge of a firearm on or near prohibited premises (Count 17), improperly discharging a firearm at or into a habitation or school (Counts 18, 19, 20), improperly handling a firearm in a motor vehicle (Count 21), having weapons while under disability (Count 22), tampering with evidence (Count 23), and arson (Count 24). Most of the counts contained one-, three-, and five-year firearm specifications. Lindsey pleaded not guilty and ultimately was tried before a jury, except the weapons under disability charge, which was tried to the bench.
{¶3} The following evidence was presented to the jury. In the mid-evening on September 15, 2015, Rob'Dasha Smith ("Smith") drove Brittany Anderson ("Anderson") to East 113th Street in Cleveland to meet friends. Anderson's three-year-old son, Major Howard, accompanied them. Once they arrived on East 113th, Smith parked her car on the east side of the street facing north. Anderson got out of the car and met up with her boyfriend, Dexter Mangham ("Mangham"), and they started walking up the street. Smith ultimately stayed in the car with Major. Smith said she was sitting in the front seat, and Major was standing on her lap facing her.
{¶4} Anderson testified that she was walking on the sidewalk when she saw a white four-door Toyota traveling north on East 113th Street from Union Avenue toward Regalia Avenue at a high rate of speed. As the vehicle approached, she saw a dark-skinned man wearing a gray hoodie with the hood on his head, shooting from the passenger's side of the vehicle. Mangham ran away, and Anderson ran up a driveway.
{¶5} At the time of the shooting, Mary Mell, a resident of East 113th Street, was washing her car outside with her son, Robert Mell. She testified that she heard gunfire and ran into the garage. Robert also ran into the garage and watched a four-door vehicle drive by with sparks erupting from the window. Robert testified that although he partially closed the garage door, he saw his neighbor from across the street, Nate Wiggins, shooting from the street in the direction of Regalia Avenue.
{¶6} Shots were fired from multiple locations as the car advanced through the block and bullets struck the homes of both Mary Mell and her next-door neighbor, Myrtle Mell. Cleve Johnson, another resident of East 113th, testified that he was home with his elderly mother when bullets entered his home and struck the refrigerator.
{¶7} Once the gunfire ceased, Smith opened the car door and stated that both she and Major had been shot. Kevin Nance ("Nance"), a resident of East 113th, drove Anderson, Major, and Smith to the Cleveland Clinic. Robert Scott ("Scott"), another East 113th resident, rode along and administered aid to the wounded child. Major subsequently passed away from a gunshot wound to the right side of his chest.
{¶8} The following day, on September 16, 2015, the police received a call to investigate a car fire in the area of East 102nd Street. The car was a white Toyota Yaris that was rented by James Konopinski ("Konopinski") on September 11, four days before the East 113th shooting. He was subsequently interviewed, and told police that he was a drug addict and that his drug supplier, Lindsey, asked him to rent the vehicle and loan it to him for the week in exchange for drugs. Cell phone records showed that Lindsey called Konopinski several times following the shooting. Konopinski told police that on the night of the shooting, Lindsey told him that he needed to report that the vehicle was stolen.
{¶9} Cell phone records showed that Lindsey called Konopinski the following morning, minutes before a passerby found the vehicle burning in an abandoned garage. Konopinski testified that Lindsey told him that morning that "it was all taken care of." It was determined that the cause of the car fire was arson and the fire likely started in the front passenger area of vehicle, where Lindsey was seen seated and shooting from the vehicle.
{¶10} Devon Long testified for the defense that he borrowed a white vehicle from Lindsey. However, he could not recall the make or model of the vehicle.
{¶11} Based on the information received from Konopinski, Lindsey became a suspect for the shooting that occurred on East 113th and the murder of Major Howard. On September 20, 2015, an arrest warrant was issued. That night, the news media broadcasted a story that awarrant had been issued for Lindsey and displayed his photograph. Lindsey was not arrested until May 2016, when he was apprehended in Atlanta, Georgia.
{¶12} Detective Kathleen Carlin testified that based on the information received from Konopinski, a photo array was compiled for Anderson to view during her interview with police on September 21, 2015.
{¶13} Unbeknownst to the police, Anderson saw a news broadcast the day before her scheduled interview that identified Lindsey as a suspect in the shooting and showed a photograph of Lindsey. It was the same picture that the police used in the photo array presented to Anderson. She identified Lindsey as the person who murdered her son. Anderson told the jury that she saw Lindsey's picture on television, but that she recognized him from the street and not from seeing him on the television.
{¶14} Scott was also a witness to the shooting. He testified that he lived on East 113th Street and prior to the shooting, he saw Mangham with a Glock firearm. Immediately before the shooting, he was outside sitting on his porch, but when he heard gunshots, he laid on the porch floor. He stated that he heard Anderson's calls for help that her son had been shot. Scott testified that he and Nance rendered aid to and transported Major to the hospital. He was interviewed by police later that evening and the following day. He denied seeing any of the shooters but stated that he saw a white four-door vehicle.
{¶15} On January 7, 2016, Scott, wanting to act as a confidential informant, told detectives that he saw Lindsey, who he knew as "Nell," shooting from the white car. He also indicated that he saw "A.D.," later identified as Aaron Dunnings ("Dunnings"), in the car. He was shown a photo array and was asked if he recognized anyone. He identified Lindsey as someone he knew from East 93rd who was shooting from the car on September 15, andDunnings as a person who he knew from growing up and who may have been shooting from the car on September 15.
{¶16} Some time between January 7, 2016 and February 6, 2017, Scott's story changed, and he stated that he did not know who did the shooting. Between that time, Scott was convicted and sentenced to prison on an unrelated felonious assault charge. The state insinuated that Scott's story changed only after one of Lindsey's defense attorneys visited him in prison and offered to connect him with the witness protection program. Scott denied that he felt intimidated or pressured to change his story, but that that he was (tr. 1984) and that he got his information from people that "should have stood up, but they didn't." (Tr. 2001.) Scott admitted that he put his life in danger by rendering aid to Major, speaking to the media immediately following the shooting, and testifying at trial.
{¶17} Detective Brian Stockwell ("Detective Stockwell") of the Cleveland Division of Police Gang Impact Unit, testified about gang activity in the area of the shooting. According to Detective Stockwell, the Murdablock Gang and The Benham Boys were feuding in September 2015. Another gang, the East 93rd and Marah Gang, was an ally of Murdablock. He stated that Anderson's boyfriend, Mangham, was a member of The Benham Boys and was at odds with a member of Murdablock. According to Detective Stockwell, Lindsey was affiliated with the East 93rd and Marah Gang. On September 27, 2015, Mangham was murdered outside a bar on East 4th Street in Cleveland. According to Detective Stockwell, it was suspected that a member of Murdablock was responsible for Mangham's murder.
{¶18} Detective Al Johnson ("Detective Johnson") also testified about gang affiliations and street code. He stated that Mangham was responsible for shooting and severely injuring Lindsey's friend Darnell Hudson.
{¶19} Following the state's case, Lindsey moved for a Crim.R. 29 judgment of acquittal. The trial court granted the motion with respect to Counts 10 and 13, both charging felonious assault. Lindsey renewed his Crim.R. 29 motion following the presentment of his case; it was denied in its entirety.
{¶20} After ten days of trial, the jury found Lindsey not guilty of both counts of aggravated murder (Counts 1 and 2), but guilty of murder as charged in Count 3, and all the remaining counts, including any attendant specifications. The trial court also found Lindsey guilty of Count 22, having weapons while under disability. Lindsey was sentenced to a total prison term of 37 years to life.
{¶21}...
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