State v. Tate

• Decision Date: 01 September 2016
• Docket Number: No. 103446.,103446.
• Parties: STATE of Ohio, Plaintiff–Appellee v. Keith TATE, Defendant–Appellant.
• Court: Ohio Court of Appeals

70 N.E.3d 1056

2016 Ohio 5622

STATE of Ohio, Plaintiff–Appellee

v.Keith TATE, Defendant–Appellant.

No. 103446.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Sept. 1, 2016.

Paul A. Mancino, Mancino Mancino & Mancino, Cleveland, OH, for Appellant.

Timothy J. McGinty, Cuyahoga County Prosecutor, Carl Mazzone, Hannah Smith, Assistant County Prosecutors, Cleveland, OH, for Appellee.

Before: KILBANE, P.J., E.T. GALLAGHER, J., and STEWART, J.

MARY EILEEN KILBANE, P.J.

{¶ 1} Defendant-appellant, Keith Tate ("Tate"), appeals from his conviction for attempted murder, felonious assault, and having a weapon while under disability. Having reviewed the record and the controlling case law, we affirm.

{¶ 2} On February 27, 2015, Tate was charged in the Cuyahoga County Common Pleas Court with a four-count indictment in connection with the September 2013 shooting of Marcos DeJesus ("DeJesus"). Count 1 charged Tate with attempted murder, with one- and three-year firearm specifications. Counts 2 and 3 charged him with felonious assault, with one- and three-year firearm specifications. Count 4 charged him with having a weapon while under disability.

{¶ 3} On April 3, 2015, Tate moved to dismiss this case, contending that he was subjected to impermissible preindictment delay and was denied his right to a speedy trial because a complaint was filed against him in Cleveland Municipal Court on October 9, 2013, but there was no effort by the state to notify him or arrest him until February 2015. He also argued that the state failed to use due diligence to locate and charge him, even though his address was available in connection with a Lake County prosecution and a 2014 conviction in the Cuyahoga County Common Pleas Court for drug possession. The trial court denied the motion on April 30, 2015.

{¶ 4} Then on May 11, 2015, Tate filed a motion to suppress the identification procedure. The trial court held a hearing on this motion on July 8, 2015. The following evidence was adduced at the hearing.

{¶ 5} Cleveland Police Detective Robbie Durbin ("Detective Durbin") testified that he met with DeJesus at the hospital on October 9, 2013, after DeJesus was taken off of a ventilator and able to speak. DeJesus told Detective Durbin that his assailant was Tate. Detective Durbin used the Cleveland Police booking website to prepare a six-photo array containing Tate's photo. Detective Durbin had his supervisor fax him the forms required for blind administration of the array. This form was attached to the array and instructs the witness that the suspect may or may not be in the array, that administrator does not know if the suspect is in the array, and that there could be differences between the photo and the suspect's actual appearance. The form also instructs that the witness should take his or her time and look through the photos for the person that he or she recognizes. Detective Durbin testified that he is not in the room when the administrator presents the array. The administrator notes the victim's selection and the victim's degree of certainty, and verifies that the instructions on the form were followed.

{¶ 6} Detective Durbin further testified that the blind administrator who presented the photo array to DeJesus was MetroHealth Police Sergeant William Peck ("Sergeant Peck"). After speaking with Sergeant Peck, Detective Durbin learned that DeJesus selected photo 3, depicting Tate as his assailant. DeJesus indicated that he was 100 percent certain of his choice. DeJesus put a small line near this photo and was not able to initial or circle anything on the array because the shooting has rendered him a quadriplegic.

{¶ 7} Detective Durbin acknowledged on cross-examination that his report erroneously names the suspect as "Eric Tate." He explained that at the time of his investigation, he was involved with two separate felonious assault shootings and made a simple clerical error. The report he prepared for this matter indicates that this suspect lives on Nathaniel Road in Cleveland, which is the address for Keith Tate, not Eric Tate.

{¶ 8} Sergeant Peck testified that he presented the array to DeJesus at his hospital bedside. Because of his injuries, DeJesus was "doing poorly," but was able to make a "chicken scratch" mark next to photo 3, depicting Keith Tate. Sergeant Peck admitted that the identification did not use the "folder system," of R.C. 2933.83, and that he did not tell DeJesus that the assailant "may or may not be" on the photo array.

{¶ 9} The trial court concluded that the identification procedure complied with R.C. 2933.83 and denied Tate's motion to suppress. Tate waived his right to a jury trial on the offense of having a weapon while under disability, and the matter proceeded to trial before the jury on the other offenses on July 8, 2015.

{¶ 10} At trial, DeJesus testified that on September 29, 2013, he went to a gas station at 657 East 152nd Street in Cleveland, Ohio. He observed Tate, whom he knew as "Keith," and the two exchanged words as DeJesus stood up to leave. Tate followed DeJesus as he walked to his car. DeJesus asked, "What's up?" Tate replied, "What's sup with you?" Tate then pulled out a gun and fired approximately five shots at DeJesus, striking him. As a result of the shooting, DeJesus is now paralyzed from the neck down, and he requires constant care.

{¶ 11} DeJesus testified that he identified Tate from a photo array the police presented to him when he was in the hospital. DeJesus confirmed this same selection on the same photo array for the jury. He also identified Tate in court for the jury.

{¶ 12} Detective Durbin testified that approximately 11 days after the shooting, when DeJesus was taken off of a ventilator and could "slightly speak," he went to MetroHealth Hospital to meet with him. Detective Durbin learned the name of the suspect from DeJesus and compiled a six-photo array. Detective Durbin then contacted MetroHealth Police Sergeant William Peck to serve as the "blind administrator." After the administration of the array, in which DeJesus chose Tate's photo, Detective Durbin spoke with DeJesus and confirmed that DeJesus had selected Tate. Because of his paralysis, DeJesus could not write down his degree of certainty, but he told Detective Durbin that he was 100 percent certain.

{¶ 13} Dr. Nimitt Patel testified that he was the attending surgeon on call when DeJesus was brought into the MetroHealth Emergency Room for treatment of gunshot wounds

. During the course of treatment, DeJesus's blood pressure dropped and fluids had to be administered in order to keep DeJesus alive. After surgery, DeJesus required a ventilator in order to breathe. Dr. Patel further testified that because of the severity of the bullet wounds, DeJesus is now a quadriplegic.

{¶ 14} Following the presentation of the state's case, the defense moved for acquittal of the charges. The trial court denied the motion, and the defense rested. The jury convicted Tate of attempted murder, felonious assault, and all of the specifications. The trial court convicted him of having a weapon while under disability.

{¶ 15} On July 31, 2015, the trial court sentenced Tate to 11 years, plus 3 years for the firearm specification on the attempted murder charge (Count 1). The trial court determined that the felonious assault convictions (Counts 2 and 3) were allied with the attempted murder conviction. The court also imposed a three-year term for having weapons under disability (Count 4), and ordered that this term be served consecutively to the term imposed for attempted murder, for a total of 17 years of imprisonment.

{¶ 16} Tate now appeals, assigning the following 13 errors for our review, which shall be discussed together where appropriate.

Assignment of Error No. 1

[Tate] was denied due process of law when the court overruled [Tate's] motion to dismiss [the indictment,] without a hearing.

Assignment of Error No. 2

[Tate] was denied his right of confrontation and cross-examination when the court unduly restricted cross-examination.

Assignment of Error No. 3

[Tate] was denied due process of law when the court admitted Exhibit 1.

Assignment of Error No. 4

[Tate] was denied due process of law when the court overruled the motion to suppress the identification.

Assignment of Error No. 5

[Tate] was denied due process of [law] and his right to present a defense when the court failed to give an instruction concerning non-compliance with Section 2933.83 of the Ohio Revised Code.

Assignment of Error No. 6

[Tate] was denied due process of law when the court erroneously expanded the definition of "cause" in its instruction.

Assignment of Error No. 7

[Tate] was denied due process of law when the court instructed the jury on a non-element of delay in prosecution.

Assignment of Error No. 8

[Tate] was denied due process of law when the court overruled his motion for judgment of acquittal.

Assignment of Error No. 9

[Tate] is entitled to a new trial as [the verdicts are] clearly against the manifest weight of the evidence.

Assignment of Error No. 10

[Tate] was subjected to a cruel and unusual punishment when the court, by rote recitation, imposed consecutive sentences.

Assignment of Error No. 11

[Tate] was denied due process of law and subjected to multiple punishments when the court failed to merge the offenses of having a weapon [while] under disability with the firearm specification.

Assignment of Error No. 12

[Tate] was denied assistance of counsel when the court precluded [closing] arguments concerning the identification procedure.

Assignment of Error No. 13

[Tate] was denied a fair trial by reason of improper prosecutorial argument.

Motion to Dismiss Indictment

{¶ 17} In the first assignment of error, Tate argues that the trial court erred when it denied his motion to dismiss the indictment. He claims that he has been subjected to prejudicial preindictment delay and a violation of his right to a speedy trial because a complaint charging him with attempted felonious assault was filed in...