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X`i7^ j ^^1_LL3_^ I -.. ___ ^r•..^2^ r^-,±J^^S^1^r^^'^.^f,LL^ ^ ^i^ o^1-Yhi^ ^^,t^Ll^,^^_I ._.__^.^. ^..^------_____.- --^------^--_.-_------I ._.------_------____ ----.___....-----_.^...... _------..-^-_ _ • /^ ___.__.__.__.._._.. ------I ^11.. ^ nrr, ¢A IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO Plaintiff Appellee C.A. CASE NO. 21499 and 21573 V. T.C. NO. 01 CR 1371 TYRONE REID (Criminal Appeal from Common Pleas Court) Defendant-Appellant OPINION Rendered on the 18t" day of May , 2007. CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd., Springboro, Ohio 45066 Attorney for Defendant-Appellant DONOVAN, J. Defendant-appellant Tyrone E. Reid appeals a decision of the Montgomery County Court of Common Pleas which overruled his motion for leave to file a delayed petition to THE COURT OF APPEALS OF OHIO evnn^.^r^ ^nnn+...... -...... set aside or vacate judgment and denied his request for an evidentiary hearing on said motion. The trial court overruled Reid's motions in written decision and entry filed on February 7, 2006. Reid filed a notice of appeal with this Court on March 1, 2006. We set forth the history of the case in State v. Reid (November 14, 2003), Montgomery App. No. 19729, 2003-Ohio-6079 (hereinafter "Reid P'), and repeat herein in pertinent part: "On March 25, 2001 Billy Thomas and Cedron Brown were shot to death at 523 Delaware Avenue in the City of Dayton. Dayton police were dispatched around 11:40 p.m. to 524 Delaware Avenue, where residents there directed the officers across the street to 523 Delaware. The residents of 524 Delaware advised officers that someone left the 523 residence and headed northbound on Linda Vista. Officer Dan Mamula observed footprints in the snow heading northbound on Linda Vista that led to the alley behind 523 where Billy lay bleeding from gunshot wounds. Billy told Mamula that he was shot four times, but he did not know who had shot him. Cedron was found dead on a couch in the living room of the Delaware residence. . "The residents of 524 Delaware said a possible suspect left the scene in a red Grand Am automobile. Officer David Matthews participated in the apprehension of this vehicle. Matthews removed the passenger from the vehicle, Jabree Yates, who stated to him 'a guy had just shot his friend and that he had taken the gun and, in turn, shot him.' A gun was recovered from the front passenger side floorboard, and a baggie of crack cocaine was taken from Jabree's pocket. "The apartment at 523 Delaware was the residence of Deatra Ragland and Damien THE COURT OF APPEALS OF OHIO SECOND APPFI.I.ATF TITRTRiCT 3 Adams. Jabree and Cedron were friends of Damien and spent a good deal of time at Damien's residence. Deatra admitted that thes.e friends, of Damien were in the drug trade, and sold drugs out of 523 Delaware. "Damien testified that some guys in a house across the street on Linda Vista sold drugs, with which Jabree and Cedron had a problem with a couple days prior to this incident. He also testified that he told the dispatcher in the 911 call that the guys across the street may be the ones who broke into his house. "Damien and Deatra leftJabree, Cedron, Billy Thomas and Tyrone in the living room when they retired to their bedroom earlier in the evening. Damien and Deatra claimed to be in bed when they suddenly heard a gunshot. The two of them jumped out the bedroom window and ran to a neighbor's house to call 911. "Damien estimates that his brother, Robert Essex, had left his apartment approximately fifteen minutes prior to hearing the gunshot. Essex recalled that he was at the house between 10:30 and 10:45 p.m. that evening, and stayed approximately 15 minutes. Essextestified that he sawfouryoung men with the person he knewwas Cedron. Essex claimed to know everyone in the house, except the person he came to know as Billy. The police report indicated Mr. Essex could give,litHe description of anyone in the house, most notably Tyrone whom he did not name. "The key witness for the State was Jabree Yates. Yates testified he was watching television with Cedron, Billy, and Reid in the living room when he fell asleep. He testified he awoke when he heard a gunshot. He testified Reid was pointing a gun away from Cedron and him and then Reid and Billy Thomas rushed him. "Yates testified that the three scuffled and Reid ordered him to 'give me that shit' THE COURT OF APPEALS OF OHIO and he removed what money he had from his pockets and threw the money at Reid. Yates testified that Reid then gave his gun to Billy, said he'd return, and then left the house through the front door. Yates testified he then tried to talk Billy out of the gun he was holding on him. Yates said he struggled with Billy and got it away from him. Yates said Billy told him he had not shot Cedron. Yates said Tyrone started climbing back into the apartment through a bedroom window armed with a shotgun. Yates testified he shot at Reid who disappeared out the window. Yates said he shot at Billy Thomas as he tried to exit the bedroom window. Thomas collapsed in a nearby yard and died from gunshot wounds. "Police recovered a wad of cash on the living room floor where Yates said he threw it and they also recovered Reid's red and black sweater which- was hanging on the bedroom window frame and a shotgun just below the window. "Tyrone Reid and Billy Thomas were first cousins, and Reid called Billy's mother to tell her that Billy had been shot. Reid met the family at the hospital. Sgt. Gary White of the Dayton Police Department had arrived, and he testified that Tyrone and his mother agreed to come downtown for an interview. After having been advised of his rights, Tyrone told Det. Doyle Burke that he had dropped Billy Thomas off at 523 Delaware and then had gone on to his girlfriend's house, where he stayed for awhile. Eventually he said he went back to 523 Delaware, walked past the front door to the open window, where he saw Jabree Yates holding a gun. He said Yates fired at him but missed, and he left. He refused to give his girlfriend's,name. He: said he didn't know her address but he thought he could probably find the house for them, although, he said, that would be futile, since she was not at home." THE COURT OF APPEALS OF OHIO OII!`/\Ain A DDC T 1 ATD nTQTDT^T 5 After a jury trial, Reid was ultimately convicted of one count of murder with a firearm specification and. having a weapon under disability. On January 6, 2003, Reid was sentenced to prison terms of fifteen (15) years to life on the murder count, and three (3) years on the firearm specification to be served consecutively to the first count. Reid received six (6) months for the weapons under disability count to be served concurrently with the murder count. We subsequently affirmed Reid's conviction and sentence in Reid /. On August 9, 2005, Reid filed a motion for leave to file a delayed petition to vacate the judgment of the trial court and an accompanying request for an evidentiary hearing. As previously stated, the trial court overruled Reid's motions in a written decision and entry filed on February 7,. 2006. The trial court held that Reid's motion forJeave was untimely and that he could not, satisfy any exception that would justify a late filing. Moreover, the trial court found that the doctrine of res judicata barred Reid's motion because his "new" claims were ones which could have been raised on direct appeal. The trial court denied Reid's request for an evidentiary hearing because the court found that his petition was untimely and the claims raised were barredby res judicata. The court additionally held that a hearing was not required because there were "no material issues to be litigated and no factual basis upon which the petition would be entitled to a hearing." It is from this judgment that Reid now appeals. II Reid's first assignment of error is as follows; "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR THE COURT OF APPEALS OF OHIO CA/"l11.In A DDR T T ATD iITCTDT/`T LEAVE TO FILE DELAYED PETITION TO SETASIDE OR VACATE JUDGMENT ON THE BASIS THAT THE MOTION WAS NOT TIMELY FILED." In his first assignment, Reid argues that the trial court erred when it overruled his motion for leave to file a delayed petition to vacate the judgment against him on the grounds that said motion was untimely. Reid does not dispute that his motion is was not filed in a timely manner pursuant to R.C. § 2953.21(A)(2) which provides in pertinent part: "Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty [180] days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. ***" As noted by the State, the transcript in Reid's direct appeal was filed on February 25, 2003. Thus, Reid had until August 25, 2003, in which to file his petition for post- conviction relief. Reid filed his petition on August 8, 2005, almost two years outside the date mandated by statute. R.C. §,2953.23 prohibits a trial courtfrom entertaining a late petition unless both of the following provisions apply: "a. either the petitioner shows that he was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief; or subsequent to the period prescribed in [R.C. § 2953.21 (A)(2)] or to the filing of an earlier petition, the United States Supreme recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right;" and THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT 7 "b. the petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact finder would have found the petitioner guilty of the offense of which the petitioner was convicted ***." In support of his motion for leave to file a delayed petition, Reid argues that he was unavoidably prevented from discovering the facts that he needed to present his motion because his appellate attorney refused to turn over his file until February 17, 2005. As the trial court noted, "the evidence in question includes letters, legal memoranda, checks, bills, dockets and maps" which defense counsel possessed at trial, as well as portions of the public record. The trial court held that if Reid had exercised reasonable diligence, he could have learned of the "new" matters contained in the appellate file. Thus, the court concluded that Reid was not unavoidably prevented from discovery of the material. A trial court lacks jurisdiction to.hear an untimely filed petition for post-conviction, relief if the two conditions of R.C. § 2953.23(A)(1) are not satisfied. State v. Melhado (February 14, 2006), Franklin App. No. 05AP-272, 2006-Ohio-641: It should be noted that Reid has made no assertion that the United States Supreme Court has announced any new state or federal right that would apply retroactively to him. Thus, we need only address whether Reid affirmatively demonstrated that he was unavoidably prevented from discovery of the facts upon which he must rely to present a meritorious claim for relief. R.C. § 2953.23(A)(1)(a). Reid contends that he was unavoidably prevented from discovering facts upon which he must rely in his petition because he was incarcerated, and therefore, unable to obtain the record and transcript from his appellate counsel in Reid !. Specifically, Reid argues that once he received the file from his appellate counsel, he became aware of THE COURT OF APPEALS OF OHIO CRC'l1NTl APPFT T ATP Il7CTPIfT 8 prosecutorial misconduct whereby agents of the State allegedly destroyed a tape of a 911 call he made from Geraldine Jones' residence after the shooting. Other than his assertion that he made a 911 call after the shooting and that a taped recording of that call exists, Reid offers no evidence in support of his claim. Additionally, Reid fails to demonstrate how such a recording (if one exists at all) would aid him in his defense. It is worthy of note that the only evidence of a 911 call presented at trial was the call made by Geraldine Jones on the night of the shootings. If such a recording existed, Reid had the ability to discover said recording and the alleged prosecutorial misconduct at the time of trial. Reid also sets forth a number of arguments that his counsel was ineffective at the trial level. First, Reid argues that the record demonstrates that his counsel failed to represent him at a probable cause hearing in juvenile court. Reid also claims that his counsel was not present during all parts of the trial. Reid argues that his counsel was ineffective for failing to call certain eyewitnesses to the shootings that could have provided exculpatory testimony. Reid asserts that his trial counsel did not serve his best interests because counsel did not believe in his innocence. Lastly, Reid argues that counsel was ineffective for failing to consult with him before his counsel made "improper comments to third parties in an attempt to locate a witness." Since he did not receive the file until well after his direct appeal, Reid contends that he was unavoidably prevented from discovering this "new" evidence which supports a claim of ineffective assistance of counsel. All of the claims regarding ineffective assistance of counsel in his petition are based on facts and circumstances that occurred, and were known to Reid, before, during, and immediately after trial. If trial counsel's representation was inadequate, then Reid would have been aware of the deficiency of counsel's performance at the time of trial with or THE COURT OF APPEALS OF OHIO QR/`/TTIII ADDDT T ATD 1lTCTDT!`T 9 without access to the materials contained in the file.' Moreover, counsel's decisions with respect to whether to call certain witnesses amounts to trial strategy. Reid was present during all phases of his trial, and had knowledge of all of these facts and circumstances surrounding his claims as they happened during the course of the trial. Thus, Reid could have raised all of these arguments on direct appeal or in a timely motion for post-conviction relief. Reid's argument that he was unavoidably prevented from discovering these facts lacks merit. Additionally, Reid fails to demonstrate by clear and convincing evidence that, but forthe asserted constitutional violations at trial, no reasonable factfinder would have found him guilty of the offenses for which he was convicted. R.C. § 2953.23(A)(1)(b). In his petition, Reid claims that but for his counsel's ineffective assistance at the trial level, he would have been acquitted of all charges. However, the evidence Reid submits in support . ., of this argument fails to demonstrate that counsel's performance fell below an objective standard of reasonableness. Reid simply cannot satisfy R.C. § 2953.23(A)(1)(a) as discussed above. Thus, we conclude that Reid has failed to demonstrate that he was unavoidably prevented from the discovery of facts upon which he must rely to present a claim for relief. R.C. § 2953.23(A)(1). Because Reid cannot satisfy the exceptions in R.C. § 2953.23(A), we overrule his first assignment of errorto the extent he challenges the trial court's finding that the petition was untimely. III In point of fact, Reid did argue on direct appeal that certain of counsel's actions concerning cross-examination of witnesses amounted to ineffective assistance. THE COURT OF APPEALS OF OH1O ecrnnrn n noc r r A Tr nrrrn TrT 10 Reid's second and third assignments of error are as follows: "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR LEAVE TO FILE DELAYED PETITION TO SETASIDE OR VACATE JUDGMENTON THE BASIS THAT THE CLAIMS RAISED WERE BARRED BY RES JUDICATA." "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST FOR A HEARING ON HIS MOTION FOR LEAVE TO FILE DELAYED PETITION TO SET ASIDE OR VACATE JUDGMENT ON THE BASIS THAT THERE WERE NO FACTUAL ISSUES TO BE LITIGATED AND NO FACTUAL BASIS ON WHICH DEFENDANT WOULD BE ENTITLED TO A HEARING." In light of our ruling with respect to Reid's first assignment of error, it is unnecessary for us to reach the merits of assignments of error two and three. Said assignments are, therefore, rendered moot. IV Although he is represented by counsel in the instant appeal, Reid filed a pro se brief in which he mistakenly argues that his appellate counsel's brief only.addressed one of the two cases implicated in this appeal. A thorough review of the'Fecord in this matter reveals that Reid's appellate counsel properly addressed both case numbers CA-21499 aswell as CA-21573 in the brief filed on Reid's behalf. Contrary to Reid's assertions, he is not entitled to depose witnesses at the appellate level. V All of Reid's assignments of error having been overruled or rendered moot, the judgment of the trial court is affirmed. THE COURT OF APPEALS OF OHIO SA(Y1NTl APPATTATP TIiQTAV`T oav...gv...... ^ v...... ^, v..+.. 'jr Fli-t ii CuUAT cF COMMON PLl IN THE COMMON PLEAS COURT OF MONTGOMERY COiJNT"Y, OH1 Criminal Division STATE OF OHIO, : Cage No. 01-CR-4939- Plaintiff, (Judge David A. Godown) V. DECISION, ORDER AND ENTRI OVERRULING I)EFENDANT'S TYRONE REID, : MOTION FOR LEAVE TO FILE DELAYED MOTION FOR NEW Defendant. TRIAL AND DENYING DEFENDANT'S REQUEST FOR. EVIDENTIARY HEARING T6is matter is before the t~oun on Defendant's Motion for Leave to File Delaye 1lvtoti"onfor New Trial fsled on July 14, 2005. The State fited a Memorandum C);pposin, De_,r"endant :s Motionfor Leave to Seek a New Tr1al on August 5, 2005. Defendant filem ItepJ!v'Briefto Strate's Motion (?pposing Leuve for New Trial on September 8, 2005. 1. FACTS On December 2, 2002, Tyrone E. Reid, was convicted by ajury of one count ot I http://www.clerk.co.montgomery.oh.us/pro/image_onbase.cfrn?docket=8610596 . 3/27/2006 murder and a firearm specification. The Court then convicted the Defendant of havinF weapon under a disabiliry on Qeccmbcr 23, 2002. Defcndant was sentenced to a tenn fifteen years to life, consecutive to a three year term, concurrcnt to a term of six montt January 6, 2001 Defendant appealed and the convictions were afl'trmed. &ate v. Reic (November 14, 2003), Montgomery App. No. 19729. II. LAW AND ANALYSIS Under Crim. lt, 33 an: [aJpplication for a new trial shall be made by motion which, except for the cause of newly discovered evidence shall be ftied within fourGeen days after the verdict was rendered, ...unless it is made to appear by clear and -convincing proof that ehe defendant was unavoidably prevented from filing his motion for a new trial, in which case the motion shall be tiled within seven days from the order of the court finding that the defendant was unavoidably prevented from filing such motion within the titne provided herein. Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days atber the day upon which thc verdict was rendered...tf it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court lindtng that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period: ' There is no dispute that the Defendant failed to file his Motion for a New'frial 1 either the fourteen day or one hundred twenty day time period required under the statui Motion for Leave to file a New Trial was filed approximately thirty months after Defei trial and convictions. Given the untimely nature of the Motion, it is necessary that Defendant establish by clear and convincing evidence that he was unavoidably prevent 2 http://www.clerk.co.montgomery.oh.us/pro/image_onbase.cfm?docket=8610596 3/27/2006 .....a..^va.a^a y ..v.uaay, vaaav - vvuaaaavu aivvuasavau. . a.6.. .+ .. .. i :j from filing his motion or from discovering new evidence. Defcndant's Motion for a N Trial may not be considered until the Court decides the Defendant's motion for teave t• motion for new trial, and makes a finding of unavoidable delay'. A pemon ist "'unavoidably prevented' from ftling a motion for a new trial ifthe party had no knowledge of the existence of the evidence or grounds supporting the motion for a new triai, and could not have learned of the matters concerned within the time provided. by Crim,R. 33(B), in the exercise of reasonable diligenee.` The Defendant argues that he was unavoidably prevented from discovering the evidence that he needed for a new trial because his appellate counsel failed to return hi until February 17, 2005. The evidence that the Defendant cites as supporting his elaiir. (police rveports, the transcript and notes) is nol "ktewly discovered". 1he "evidence" in notes from counsel's file, discovery that defense counsel possessed at trial and portion: public record. The Defendant clearly could have teamed of the matten contained in tt "evideuce" if he had exerciscd the rea.sonable diligence that is required. The fact that i Defendant did not have possession of the documents does not make them newly discoN nor does it mean that he was unavoidably prevented from discovering the evidence. T Defendant had the ability to discover the alleged prosecutorial misconduct which supp t. State v. Kiraly (1977), 56 Ohio App.2d 37, 55-56. See also Slate v. York (Feb. 18, : Greene App. No. 99CA54. 2. State v. Warwick (]uly 19, 2002), Champaign App. No. 01CA33, aiting State v. Ma (1999), 134 Ohio App.3d 77, 79. 3 http://www.clerk.co.montgomery.oh.us/pro/image_onbase.cfin?docket=8610596 3/27/2006 T took place at trial, as well as the conflicting witness testirllony that he complains ot^. 'Fherefore, the Defendant was not unavoidably prevented fram filing his motion for a r trial. Defendant requests that he be granted a hearing on his motion. Although a heai can be granted when a defendant fi(es a motion for leave to file a motion for a new tria hearing is not automatically required. The defemdant must submit documents, which c face, support his claim that he was unavoidably prevented from timely discovery of thi evidence°. The Defendant submitted an affidavit which states that he was unavoidabi) prevented from filing a motion for new trial because his appellate counsel did not turn his file until February l 7, 2005, but as has already been demonstrated, ahe fact that the Uefendant did. not obtain informatiDn that was in the possession of his legal counsel is reason to find that he was unavoidably delayed from filing his motion for a new trial, the circumstances, the Defendant is not entitled to a hearing on his motion. III. CONCLUSION Defendant has not established by clear and eonvincing evidence that he was unavoidably prevented from discovering the evidence presented in his Motion for a Ni Trial. Therefore, Defendant's Motion far Leave to 1'ile Delayed Motion for New trial 3. See Stote v. Murr (.December 9, 1988), Ottawa App. No. T-88-34 (holding that a de#endant who does not have knowlcdge of what transpircd during portions of the tria: not unavoidably prevented from discovering the evidence until he had a transcript) 4. S'tat¢ v. Wright (1990), 67 Ohio App.3d 827, 828. See also Ohio v. York (February 2080), Greene App. No. 99-CA-54. 4 http://www.clerk.co.montgomery.oh.us/pro/image_onbase.cfm?docket=8610596 3/27/2006 1V1V11L^. V111V1.y V.VLLLIL^', V111V Ulr0.1ll1GV LVVULLIGLIL Sab'O.l Vl! DENIED. The Defendant's request for a hearing is also DENIED. Copies of this Decision, Order and Entry were furwarded to all parties listed be ordinary mail this filing date. CARLEY J.INGRAM ASSISTANT PROSECUTING ATTORNEX 301 WEST THIRD STREET, FIFTH FLOOR P.O. BOX 972 DAYTON, OH 45422 (937)225-5757 At€orney far Plaintiff TYRONE REID, #438-902 c/u WARREN CORRECTIONAL INSTITUTION P.O BOX 120 LEB/t.NON, OH 45036 Defendant, Pro Se CASEFLOW SERVICES AMES RUSSELL, Railiff(937) 225-4416 5 http://www.clerk.co.montgomery.oh.us/pro/image onbase.cfin?docket=8610596 3/27/2006 araa^aa^bvaaa^.ay ^.vua,^y, vaaav - ^^.uaui^na a.rvi.wai^.ia^ a ugv c. va ac. c^`J"7 tP10tlRLEAS 2:'J FE(3 -7 FI1 I= C8 t!'`'.' FGt.;r"3 CESy IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OIiI Criminel Division STATE OF OFIIO, Case No. 91-CR-2839 Plaintiff, (Judge David A. Godown) v. ; DECISION, ORDER AND EN`I'RY OVERRULING DEFENDANT'S TYRONE RETll, MO'1'IOP+T FOR LEAVE TO I?tLE DELAYED FE'TITION TO SET Ak Defendant. OR VACA`I'E JUDGMENT AND DENYING DEFENDANT'S REQL FOR AN EVIDE1V'I'IARY IIEARIP "I'his matter is before the Court on Dcfendant's Motfon far Leave to File Delaye Petition to Set Aside or Vacate J'udgment filed on August 4, 2tf0S. The State filed a M ta Dismiss on Septersn ber 12, 2005. Defendant. filed a Response to Stnte's Motion to D on September 23, 2005. I. FACTS A summary of the evidence that fed to Defendant's conviction for the murder o: I http://www.clerk.co.montQomerv.oh.us/pro/image onbase.cfm?docket=8663104 3/8/2006 +•+v +..g..,++..+^ v.....+.^, v+++v - vvuau+vu ...v..u++av.+. . .. fj.. ., .. .. Cedron Brown is outiined tn State v. Retc! (Novcmber 14, 2003), Mnntgomery App. Nc 19729; it will not be repeated here. On Dee+ember 2, 2002, Tyrone U. lteid, was convicted by a jury of one count of murder and a firearm spccification. 'fhe Court then convicted the Defendant ttff having weapon under a disability on December 23, 2002. Defendant was sentenced to a terna ^ f•iftee.n years to life, consecutive to a three year term, concurrent with a term of six mor on January 6, 2003. Defendant appealed and tlte convictions were affiimed. State v. R (Nove3talber 14,2003), Montgomery App. A1o. 19729. 11. LAW AND ANALYSIS The post-conviction relief pracess provides a collateral civil action on a crimina judgment; it is not an appeal of the judgrnetit'. "It is a means to reach constitutional is=. which would otherwise be impossible to reach because the evidence supporting those i is not contained in the trial court record.x" Post-conviction review is not a constitution right, but rather, is a narrow remedy that affords a petitioner no rights beyond those gr by statute. The post-eonvictinn relief requested in this case is controlled by R.C. 2953.21(1 which provides that any person convicted of a criminal offense claiming denial or 1 S1ate v. Steffen (1994), 70 Ohio 3t.3d 399, 410. State v. Murphy (Dec. 26, 2000), Franklin App. No. OOAP-233. &ate v. Calhoun (1999),86 Ohio St.3d 279, 281. 2 http://www.clerk.co.montgomery.oh.us/pro/image_onbase.cfm?docket=8663104 3/8/2006 vlvi I.r,Val c y I.VUllLy, vlllv - Ul.awlcu 11V1iU111c11L rasc vui ic. infringernent of his or her rights rendering that judgment either void or voidable under Ohio Constitution or the United States Constitution may file a petition in the sentencity which states the grounds for relief and which asks the court to vacato or set aside the judgment. and sentence. A. A nfotiQn founast conviotion relie! mttst be filed within one hundred $nd Wl+rv daf+m thg date when the trial transcrint is filed with the Court Anneals unless certain excentions arcproven by clear and convin^ R.G. 2953.2 1 (A)(2) provides that a petition for post-conviction relief shall be fil no later tlwn oue hundred eighty days after the date on which the trial transhript is filed court of appcals in the direct appeal of the conviction..." Defendant filed a notice of aF conviction and sentenee and the transcript was filed on. February 25; 2003. Mr. I should have filed his request for post-conviction relief no later than August 25, 2003. In limited circumstances, however, a court may entertain a motion which was n+ in a timely manner. R.C. 2353.23(A) states that: "[wJhether a hearing is or is not held petition filed pursuant to section 2953.21 of the Revised Code, a court may not enterta: petition filed after the expiration of the period described in division (A) of that section second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies: (1) Both of the following apply: (a) ...the petitioner shows that the petitioner was unavoidably prevented from discove upon whicb the petitioner must rely to present the claim for n lief....(b) The petitioner = by clear and convincing evidence that, but for the constitutional error at trial, no reasoi http://www.clerk.co.montQomery.oh.us/pro/imaQe onbase.cfin?docket=8663104 3/8/2006 iviorugomery klounry, vnro - acannea iiocument rage :) oi i/ ct fmder would have found the petitioner guilty of the oft'cnse of which the petitioner cdnvicted.. " bly prevented from disco whirh he must relv in order to ppmsenU clail[I foc relieft Mr.lteid argucs that he was unavoidably prevented from discovering the faots tl needed to present his motion because his appellate xttomey refused to turn over his file ruary 17, 241f15. The evidence in question includes lettcrs, legal memorancU, check: bills, dockets and maps wbich were parts of counsel's file, discovery that defense coun possessed at trial and portions of the public record. The Defendant could have learned tters contained in this "evidence" if he had exercised reasonable diligence. The facl did not have possession of the documents does not mean that he was unavoidably prevented iton discovering them. '1'he Defendant had the ability to discover the atlegc prosecutorial misconduct, as well as the misconduct of his own attorney. Therefore, th L?efendant was not unavoidably prevented from discoverittg facts upon wl►ich he must order to present a claim for relief. 2. ('an Mr. Reid estahlish by etear, atui covincinp evidence that, but the constitutional error at trial no Wasonable fact :finder would^ found im guilt^t a trial? h4r. Reid also argues that, but for the constitutional error at trial, no reasonable finder would have found him guilty at trial of the offense he was convicted. Mr. Reid' arguments do not support this conclusion. 4 httn://www.clerk.co.montgomerv.nh.us/nrn/imaue hnhase_cfm?Ancket=Rhfi31(14 't/ROotlA lvivul.SViiicly l.vuul.y, vlull - i]\iallllcu L1V1:u111c111. ragc v Ui ic a. Dpstruction of 911 tane Mr. Reid first complains that tlre state destrayed a 911 tape that he made from Geraldine Jones' house after the shooting. Mr. Reid offers no evidenoe to support the existeuce ofthe tape. Further, he does not explain how the contents of the telephone ct would demonstrate his innocence if the existence of such a tape were proven. Generalt; defendant bears the burden to prove that the evidence was materially exculpatory^. Therefore, Mr. Reid has failed in three regards: he has failed to establish the existence tape, he has failed to demonstrate that the tape was destroyed, and he has failed to shov the evidence would exculpate him if such evidence exi.sted. b. Iueffectiue assistan e of couttsel. Mr. Reid then argues (1) that his trial counsel failed to represent him at the prot cause hearing and during othcr portions of the trial; (2) that his trial counsel failed to c certain witnesses to testify at trial•, (3) that his trial counsel failed consult with him lea a poor understanding of the case; and (4) that his trial counsel used improper methods order to attempt to get in contact with a witness.. These arguments essentially involve ineffective assistance of counsel. In order prevail on a claim ofineffective a.ssistance of counsel, the defendant must satisfy a tw ' State v. Jackson (1991), 57 Ohio St.3d 29, 33. 5 http://www.clerk.co.montgomery.oh.us/pro/image onbase.cfm?docket=8663104 3/8/2006 .a...aagvaaa..a) vv aaay, vaaav - u..uauaa.u aiv..uaaa^.aaa 1 ^. V/ V 1 S.C. test'. The defendant must present evidence that counsel's performance was "deficient'° fell below an objective standard of reasonable:nessb. The defendant tmtst also show tlr, deficiency prejudiced the defense so seriously that the defendant was deprived of a fait t?efendant bears "the initial burden to subtnit evidentiary doauments containing suffsci operative facts to dcmonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness A prCSperly licensed nttorney is presunred cotzgpetent'. Moreover, trial counsel r allowed wide latitude in making tactical decisionsPO. "Judicial scrutiny of counsel's perfomiance must be higbly deferential."" The standard for reviewing trial counsel's assistancc does not allow for "general concluscry allegations" of ineffective counsel b; petitioner witbout any further cvidence to support these allegatr'ons."" Mr. Reid offs;rs no evidence in support of his argument that his counsel was not State v. Cole, 2 Ohio St.3d at 112; SYrickfand v. Washington (1983), 466 U.S. 668, a Strickland v. li'ashington, 466 U.S. at 687. ' ld. " State v. Jackson (1980), 64Ohio St.2d 107. State v. Jackson, 64 Ohio St.2d at 111. Stricktand v. Washtngtan, 466 U.S. at 689. /d, at 687. " State v. Jnckson, 64 Ohio St.2d at 111. 6 http://www.clerk.co.montgomery.oh.us/pro/image onbase.efin?docket=8663104 3/8/2006 ..+...+•g...... ) ...... ^, vaaa^ vvwaua^.u aw,.uaaa^.,u t asl. 0 vl lf. present at the probable cause hcaring or at other hearings. The record from the Court Q does not include a transcript of the juvenile proceeding) fails to demonstrate whether lv Reid's counsel was present at the probable cause hearing, and the bill provided fram. M Reid's counsel suggests that his counsel was present at the probable cause hearing. Additioru►lly, if Mr. Reid's legal counsel was not present at the probable cause hearing other portions afthe trial, Mr. Reid would have known at the time and could ha raised that argument in a timely manner. Finally, there is no evidence to suggest that I lteid was harmed by his absence even if his allegations are true. Although Mr. Reid makes other contentions regarding his counsel's shortcomin none of those arguments qualify as ineffective assistance of counsel. For example, the decision regarding whether to call witnesses at trial is a mattor of trial strategy'3. Ther strong presumption that counsel's decision not to call certain witnesses is a matternf ti strategy and, therefore, is not ineffective`. The alleged failure of Mr. Reid's trial eour call certain witnesses to testify is nat a reason for this court to change the outcome of t case. Additionally, Mr. Reid did not file an affidavit of these witnesses in order to demonstrate that their testimony would have changed the outcome of the trial. With regard to trial counsel's alleged failure to consult with his client and his al improper comments to a third party in an attempt to find a witness, the Court finds tha 11 State v. 5eokttrnn (April 8, 1993), Cuyahoga App. No. 62298. N State v. Sailie ( 1998), 81 Ohio St.3d 673, 674-675. 7 http://www.clerk.co.montgomery.oh.us/pro/image onbase.cfrn?docket=8663104 3/8/2006 1 CLsV / V. 1L are information that Mr. Reid knew in time, and therefore could have use to make a tim rnotion for post-conviction relief, Furthermore, there is no evidence to establish that a change in the behavior of counsef would have ehanged the outcome of the trial. B. Res,judicata Even if a petitioner can satisfy the requirement for post-conviction relief set out R.C. 2953.21, the doctnine of res judicata may bar a petitioner's claims for relief. Undt doctrine of res judicata, a defendant who was represented by counsel is baned from rai, an issue in a petition for post conviction relief if the defendant raised or could have rai€ issue at trial or on direct appeal15. A trial court may dismiss a petition for post convict relief without holding an evidentiary hearing when the claims raised in the petition are by the doctrine of res judicata14. Ites judicata does not, however, bar claims for post conviction reliefwhen the petitioner presents evidence outside the rccord that was not in existence and was not available to the petitioner in time to suppott a direct appeal,'. The evidencc submitted outside the recard must be competent, relevant, and material to the issuc at hand's. "Gonerally, the introduction of evidenee dchors the record of ineffective assista, 11 SYate v. Szefeyk (1996), 77 Ohio St. 3d 93, syllabus. 16 State v. Szefcyk, 77 Ohio St.3d 93. State v. Cale (1982), 2.4hio St. 3d 112, 114. State v. Latvson (1995), 103 Ohio App.3d 307, 315. 8 http://www.clerk.co.montgomery.oh.us/pro/image_onbase.cfm?docket=8663104 3/8/2006 lar,G 1V V11G counsel is sufficient, if not to mandate a hearing, at least to avoid the dismimi on the t of res judicata.`"" An ineffective assistance of counsel claim, however, may be dismis, res j udicata where the petitioner was represented by new counsel on direct appeal, that eounset failed to raise the issue of trial counsel'x incotnpetence, and the issue could fai have been determined without evidence outside the reeord. Id. Mr. Reid was represented by new counsel on direct appeal. While the petitionei new counsel on appeal raised the issue of ineffective assistance of counsel with regard proper questioning of witncsses at trial, he did not raise the isaue of ineffective assistat counsel with regard to the alleged failure to produce certain witnesses or evidence orv rcgard to the failure of his aitorney to properly inform him about the nature of the case Those issues could have been determined without evidence outside the record, Additionally, this is not a case where Mr. Reid presented evidence outside the n that was not available at the time of trial or on appcal. In fact, a portion of Mr. Reid's is that all the evidence was available at the time of trial and that his trial counsel was ineffective for not.using it. This allegation "could fairly have been determined. [on din appeal] without evidence outside the reoord.z0" 7'he petitioner's claim is barred by the doetrinc of res judicata. 'g State v. Cole, 2 Ohio St.3d at 114. 20Cd. 9 http://www.clerk.co.montgomery:oh.us/pro/image onbase.cfm?docket=8663104 3/8/2006 L.1V1144^.'Vl VL^' ^V4411L^'^ V111V - VL.41L11MLL LL14UL11L.11L 16YU,L. 1L L111L C. Hrina Although R.C. 2953.21 allows a defendant to request an evidentiary hearing whe filing a petition for post-conviction relief, a hearing is not automatically required27. Th court must conduct an initial review of the record to determine whether to hold an evidentiary hearing. "Before granting a hearing, the court shall determine whether ther substantive grounds for relief. In making such a deterntinatioan, the oourt sltall consider addition to the petition and supplement>il affidavit, ali. the files and records pertaining tc proceedings against the petitioner, including but not limited to; the indictment, the cour joutn,al entries, the jourualired records of the clerk of court, and the court reparter's transcript." R.C. 2953.21(C). The trial court need not hold a hearing if the petition, fit records ofthe cm demonstrate that the petitioner is not entitled to reiliei: R.C. 2953.2's The petition can be dismissed without a hearing sinee it is untimeiy and the claii raised are barred by res judicata='. Even if that were not the case, no hearing is requir< since there are no rreaterlal issues to be litigated and no factual basis on which the petiti would be entitled to a heating. Itt. CONCLUSION Defendant's Motion for Leavc to p'ile Delayed Petition to Set Aside or Vacate Judgment is DENIED, The Stttle's Motion to Distniss is GRANTEi). The Defendant' 21 Srate v. Jackson, 64 Ohio St. at 110. '= State v. Sxefc3+k, 77 Ohio St.3d at 93. 10 http://www.clerk.co.montgomery.oh.us/pro/image__onbase.cfm?docket=8663104 3/8/2006 request for a hearing is also DENiED. DAVID A. (30pOWN, JUDGE Copies of this Decision, Order and Entry were forwarded to all parties listed belt ordinar,y mail this filing d,at:e. CARLEY 1. INGRAM ASSISTANT PROSECUTING A'TTORNEY 301 WEST THIRD STREET, FIFTH FLOOR P.4?. EQX 972 DAYTON, OH 45422 (937)225-5757 Attdrney for PiairttltY TYRONE REID, l1438-902 c!o WARREN CORRECTIONAL !I'dS'I'ITU'I'ION P.D BOX 120 LEBANON, OH 45036 R.efendant, Pro Se CASEFLOW SERVICES JAMES RUSSELL, Bailiff (937) 225-4416 11 http://www.clerk.co.montgomery.oh.us/pro/image_onbase.cfin?docket=8663104 3/8/2006 ^Xh^b,tlrl Pt^ 2091 FE8 2l .,. S^u;R^s C•^ F ^i^ERV CO., 0'`UO ^l0ta^ ° IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO, Appellate Case No. CA 21499 CA 21573 Plaintiff-Appellee, Trial Case No. 01-CR-1371 V. TYRONE REID, Defendant-Appellant. AMENDED DECISION AND ENTRY February ^2'7 , 2007 PER CURIAM: On February 8, 2007, Marshall Lachman, appointed counsel for Appellant, Tyrone Reid, filed a motion requesting to withdraw as counsel of record from the above-captioned cases. On February 12, 2007, Reid filed a pro se motion requesting to have his Lachman removed and to proceed in his appeal pro se. Review of both motions indicates that this conflict has arisen due to a difference of opinion in how to proceed with this appeal. However; it is this Court's policy to defer to the professional judgment.of appointed counsel in matters concerning how to proceed with an appeal. Furthermore, this matter has been fully briefed and is already set for oral argument on March 13, 2007, at 9:30 a.m. Accordingly, both motions requesting that attorney Marshall Lachman be removed as counsel of record are OVERRULED. THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT Kx'h;b; }A^i P9. 9,°YL -Z- Additionally, on May 31, 2006, Tyrone Reid filed a pro se brief, despite already being represented by counsel. It is also this Court's policy not to accept pro se filings when an Appellant is represented by counsel. Accordingly, Reid's pro se brief filed on May 31, 2006, is hereby STRICKEN from the reco[d', . SO ORDERED. ^4z^J -74 WILLIAM H. WOLFF, JR., Judge MIKE FAIN, Judge Copies mailed to: Carley Ingram Marshall G. Lachman Johnna M. Shia 75 N. Pioneer Blvd. 301 W. Third Street Springboro, Ohio 45066 5`" Fl. Dayton, Ohio 45422 Tyrone Reid #A438-902 Lebanon Correctional Institution P.O. Box 56 Lebanon, Ohio 45036 CJ37G THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT r._x r i it11T~K'e" portions of the public record. The trial court held that if Reid had exercised reasonable diligence, he could have learned of the "new" matters contained in the appellate file. Thus, the court concluded that Reid was not unavoidably prevented from discovery of the material. {¶ 25) A trial court lacks jurisdiction to hear an untimely filed petition for post-conviction relief if the two conditions of R.C. 6 2953 23(A)(11 are not satisfied. State v. Melhado ( February 14. 2006). Franklin App No . 05AP-272, 2006-Ohio-641. It should be noted that Reid has made no assertion that the United States Supreme Court has announced any new state or federal right that would apply retroactively to him. Thus, we need only address whether Reid affirmatively demonstrated that he was unavoidably prevented from discovery of the facts upon which he must rely to present a meritorious claim for relief. R,C. 6 2953.23(A)(1)(a). (¶ 26) Reid contends that he was unavoidably prevented from discovering facts upon which he must rely in his petition because he was incarcerated, and therefore, unable to obtain the record and transcript from his appellate counsel In Reid I. Specifically, Reid argues that once he received the file from his appellate counsel, he became aware of prosecutorial misconduct whereby agents of the State allegedly destroyed a tape of a 911 call he made from Geraldine Jones' residence after the shooting. Other than his assertion that he made a 911 call after the shooting and that a taped recording of that call exists, Reid offers no evidence in support of his ciaim. Additionally, Reid falls to demonstrate how such a recording (if one exists at all) would aid him in his defense. It is worthy of note that the only evidence of a 911 call presented at trial was the call made by Geraldine Jones on the night of the shootings. If such a recording existed, Reid had the ability to discover said recording and the alleged prosecutorial misconduct at the time of trial. {¶ 27} Reid also sets forth a number of arguments that his counsel was ineffective at the trial level. First, Reid argues that the record demonstrates that his counsel falied to represent him at a probable cause hearing in juveniie court. Reid also claims that his counsel was not present during all parts of the trial. Reid argues that his counsel was ineffective for failing to call certain eyewitnesses to the shootings that could have provided ekculpatory testlmony. Reid asserts that his trial counsel did not serve his best Interests because counsel did not belleve In his innocence. Lastly, Reid argues that counsel was ineffective for failing to consult with him before his counsel made "Improper comments to third parties in an attempt to locate a witness." Since he did no.t receive the flle until well after his direct appeal, Reid contends that he was unavoidably prevented.from discovering this "new" evidence whlch supports a cialm of ineffective assistance of counsel. *5 {¶ 28} All of the claims regarding ineffective assistance of counsel in his petition are.based on facts and circumstances that occurred, and were known to Reid, before, during, and immediately after trial. If trial counsel's representation was inadequate, then Reid would have been aware of the deficiency of counsel's performance at the time of trial with or without access to the materials contained in the file. FN1 Moreover, counsel's decisions with respect to whether to call certain witnesses amounts to trial strategy. Reid was present during all phases of his trial, and had knowledge of all of these facts and circumstances surrounding his claims as they happened during the course of the trial. Thus, Reid could have raised all of these arguments on direct appeal or in a timely motlon for post-conviction relief. Reid's argument that he was unavoidably prevented from discovering these facts lacks merit. FN1. In point of fact, Reid did argue on direct appeal that certain of counsel's actions concerning cross- examination of witnesses amounted to ineffective assistance. {¶ 291 Addltionally, Reid fails to demonstrate by clear and convincing evidence that, but for the asserted constltutional violations at trlal, no reasonable factfinder would have found him guilty of the offenses for which he was convicted. R.C. 6 2953.23(A)(1)(b). In his petition, Reid claims that but for his counsel's ineffective assistance at the trial level, he would have been acquitted of all charges. However, the evidence Reid submits in support of this argument fails to demonstrate that counsel's performance fell below an objective standard of reasonableness. Reid simply cannot satisfy R.C. 6 2953.23(A)(1)(a) as discussed above. {¶ 30) Thus, we conclude that Reid has failed to demonstrate that he was unavoidably prevented from the discovery of facts upon which he must rely to present a claim for relief, R.C. 6 2953.23(A (11. Because Reid cannot satisfy the exceptions in R.C. 6 2953.23(A), we overrule his first assignment of error to the extent he challenges the trlal court's finding that the petition was untimely. III {¶ 311 Reid's second and third assignments of error are as follows; {¶ 32) "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR LEAVE TO FILE DELAYED PETTRON TO SET ASIDE OR VACATE JUDGMENT ON THE BASIS THAT THE CLAIMS RAISED WERE BARRED BY RES JUDICATA." {¶ 331 "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST FOR A HEARING ON HIS MOTION FOR LEAVE TO FILE DELAYED PETI'RON TO SET ASIDE OR VACATE JUDGMENT ON THE BASIS THAT THERE WERE NO FACTUAL ISSUES TO BE LITIGATED AND NO FACTUAL BASIS ON WHICH DEFENDANT WOULD BE ENTITLED TO A HEARING." _'}G1U(: qCJ i_l.Y ur,/r I NOTE: @ 11:39 PM- officers were dispatched to 523 Delaware on report of a Breaking and Entering from an identified caller "Damia Adams 279-9433" This isDcrnzion Atlanis telephone number "Complainant state that someone broke into her house, started shooting. She has two friends staying there. She heard them arguing with two males. Possible injuries someone was crying, several shots fired. ItICKY RAKESTRAW (b/m/17) - was at 524 Delaware - was watching TV @ 11:30 PM, heard five or six gunshots - cousin, Jaron Russel, told him he saw a dude run out of the house with a gun - there was a dude at the corner by the fire hydrant with his hands in the air with a gun in his right hand- at the same time, a guy in the black came out of the house and dude with the gun looked at him and walked towards Salem - the dude who came out of the house fell down- the man with the gun talked to a man in a red Grand Am and got into the red Grand Am and drove toward N. Main St. - the red Grand Am caine back about 1 minute later, it was the same car because of damage to the driver side front. Mycousin said therewas someone on the couch shot LASONi)RA SPIDEL and NETTIE SPIDEL - Nettie Spidel had no information - Lasondra heard about five shots, her son came and got her and she saw someone sluniped over inside of the apartment ROBERT ESSEX (b/m/28) =@ 7:00 PM, he got into Dayton from Cincinnati the went out to eat. He went to his brother's place at 523 Delaware @ 10-10:30 PM and knocked at the door - A dark skinned b/m with braids with a white T-shirt, medium build @ 5'6" answered the door - asked for his brother Damion, the dark skinned man said "He's in the bedroom." -RYberhvirent to the bedroom where he saw his brother and his girlfriend in bed watching TV - he asked Damion, "What's going on about the car?" He said, "Tomorrow I will give you half." Robert told him he was going back to Cincinnati in the morning. - 45 minutes later, Robert received a page from his brother "91 l." - Robert called his brother, his brother said, "Someone done ran in my house." He said he heard someone in the other room say, "Why are you doing me like this?" Then he heard a shot - his brother said he pushed his girlfriend out the window and jumped out also - Robert said: @ 10:30 PM: 1) "Quadron" was sitting on the couch FfiCT i3'I'I'hTESSES-froni Police Report TYRONE REII2 (CLIENT)- first interview with the police - dropped William Thomas off at the Delaware apartment - went to a girlfriend's house - came back to the Delaware apartment - looked in through the side window, saw Jabree with a gun - Jabree fired a shot at Tyrone through the window -.Tyrone left to an undisclosed location JARON RUSSEL (b/m114) was at 524 Delaware @ 11:30 PM heard five or six gunshots, sounded the same as far as noise-they were in a couple of seconds, as if they were shooting at the same person. - they stopped and began shooting at another person - (man #1) saw a man walk out of the apartment building, walk west then back east to the stop sign - a car pulled up, aTed Grand Am, wrecked on the driver side - the person was talking to the driver for twenty seconds - he got into the car and the car pulled off - (man #2) saw a guy standing at the same front door who walked to the sidewalk and fell down for a minute by the pole, got back up, left something that looked like a pistol on the grouud-he wallced back around the apartment building to the north, fell down again, got up and disappeared behind the apartment building. - (man #3) then noticed a man at 523 Delaware through the front door, laying partially on the couch and the rest of his body on the floor - Jaron can identify the person who he saw outside with the gun in his hand on the sidewalk talking to the woman in the red car DAMON ADAMS - initially, he puts himself, Cedron Brown, Jabree Yates at 523 Delaware - next, Tyrone and Billy atopped by- all playing Playstation -1ZcsbertEssex stopped by and left - Damin went in his bedroom with Deidre Ra.gIind, dozed off and heard a gunshot - peaked out his bedroom door and saw a gun, a big blacl: and red puffy coat ran across the living room toward the kitchen - heard Jabree say, "What are you doing?" - heard fighting and wrestling and anof.her shot - Daniin and Deidre got out the window, started running toward Fountain, heard four or five nlore shots - saw tall dark skinned black male w/ long brown coat on corner of Fountain and Linda Vista - ran to a porch on Fountain. kT,^T:V :RPT N0: .0103250636 DAYT'D^P; - DETECTIVE INCIDENT A_,rORT DATE: 03./29/2001 ^ E•^en&4^j BY SGT WAYNE SCOTT IN DISPATCHED TO 523 DELAWARE ON A SHOOTING LJITH. MULTIPLE VICTIMS. I WAS TOLD THAT THERE WAS AT LEAST ONE INDIVIDUAL DEAD AT T:HE.SCENE, AND SECOND SUBJECT HAD BEEN REMOVED T'0 GOOD SAM HOS'PITAL.' FUR'THER POTENTIAL WITNESSES WERE AT THE SAFETY BUILDING. I WENT" 3;01'AT 0030' HOURS, AND I CONTACTED SGT GARYWHITE AND DET MARK SALYER WHO WERE =;CO'MPL.E'T.ING THE INTITIAL SCE•NE INVESTIGATION. I SPOKE BRIEFLY WI'1'H SGT WHITE`': ,.+AND::WAS•DIRECTED TO THE SAFETYSUILDING... UPO.N ARRIVAL AT THE SAFETY BUI'LDING, I CQORDINATED-..WITH DET A D BUAKE, AND I:INI:TIALLY SPOKE 10 A BLA.QK fE:M+A•LE, ; WHO ',IDENTIED HERSELF AS DE NI'S'E I ' BED WATCHING TV. ISAID "WHAT'S GOING ON ABOUT THE CAR'I. HE SAIL)'ITOMORROW I WILL GIVE YOU HALF.'I I TOLD HIM I WAS GOING TO CINCINNATI IN.'FNE MORNINO I SAID I WOULD CALL HIM WHEN I GET BACK. ABOUT' 45 MINUTES LATER MY.BROTHER PAGESME'911. I CALL Il' BACK, HE SAYS "SOMEONE DONE RAN IN MY H OUSE.'I HE SAID HE HEARD SOMEONE IN THE OTHER ROOM SAY "WHY ARE YOUDOING ME.LIKE THIS71i, THEN HE HEARD A SHOT. HE SAID HE PUSHED HIS GIRLFRI'END OUT "fHE BEDROOM WI'NDOW AND JUMPED OUT ALSO. AS HE WAS GOING DOWNTHE STREET HE HEARD A COUPLE MORE SHOTS GOING DFF..HE SAID HE CALLED THE POLICE, W'IS GIRLFRIENDCALLEDPOLICE. DOES NOT KNOWIF BROTHER OWNS GUN:. AT--10;50.-' . ;(AAD:RON) WASSITT.ING ON THE COUC'H:YATE,'WAS-ALSO:IN 7'HERE SITTING ON LEFT SI•.D.E''COUCH; ;WHICH WOULD BE THE WEST: WAL:LTHEftE WERE TWO,OTHER GUYS IN-. THER:E.. ONE.H:Ab A RED SWEATSHIRT ONWITH A 2 :1/2 INCH AFRO SITTI NG ON THE CD.UC-H:WATCHI'NG A MOVIE AND THE OTHERONEHA:D A BLACK HOODED SWEATSHIRT ON,. AAD '=;M.E;D x:iJ;MPrL'EXION; THAT WAS. THE B•E'ST .D.ES'CR.IPTZON HE CDUL.D GIVE ^IARft'ATTVE.. EN`fEitEU BY: 1.639E BURKE . ALVIN-iJ.. ,, __ON: 03/27/2001 L 1438 TYPE: SUP ------.DISP.ATCHEAfROM MY RESIDENCE TO'62S DEL;•A•WARE"ON REPORT OF A DOUEt.LE 5HOOT:SNG, fHAT ULTIMATELY RESULTED IN BE:ZNG`A DOUBLE HOMICIDE, UPON MY ^ ARRI4!AL, SD:TiSERVED THE SCENE BEING SEC:URE.D BY SGT...ZIMMERMAN, LT.. BARDUN, iAN.D..:SEVE'RA.LI DAYTON POLICE OFFICERS.. IT WAS-.DEEMED THAT DET. SALYER WOULD •HA'NDLE :THE. SCENE INVESTIGATION AND I PROCEEDEDr.T'.G GPS; WHERE I SPOKE WITH.DAMI'ON ADAMS OF 623 DELAWARE., PH 277631'0,; A postmortem examin.ation of the body of an 18-year-old black male, identified as William C. Thomas, Jr. is performed at the Montgomery County Coroner's Office on March 26, 2001. The. examination is conducted by Andrea N. Minyard, M.D., and is begun at 9:30 a.m. ATTENDANCE In the performance of their usual and customary duties Autopsy Assistant Clinton Smith and Photographer Patricia Goodman are present during the autopsy. CLOTHING: No clothing is received. IDENTIFICATION TAGS: There is a Montgomery County Coroner's Office morgue record band around the right ankle. EXTERNAL EXAMINATION: The body is that of a well-developed, well-nourished, black man, appearing near the offered age of 18 years. The body has a measured length of 69 inches and weighs 137 pounds. Rigor mortis is fully-developed. Livor mortis is present posteriorly, except' over pressure points, and blanches. The scalp hair is brown and arranged in 7 inch braids. The irides are brown. The pupils are round and equal. The sclerae and conjunctivae are unremarkable. The nose and mouth are clear. The teeth are natural and in adequate repair. The neck is unremarkable. The trachea is in the midline. The chest is symmetrical. The abdomen has no scars. The external genitalia are those of a normally-developed adult man. IDENTIFYING MARKS: The left shoulder has a 2 inch irregular scar. The left arm has two linear 1 to 2 inch scars. The lower back has a 2-1/2 inch dark brown patch-like skin discoloration. Page 3 ^^;b; ^^l c) P O L I C E - C L O S E D I N C I D E N T D I S P L A Y This was a 911 Call In# 000508 Dist.546 -600 Utilty 0000- City-Map - 03-25-01 23:39:45 523 DELAWARE AV DA :( > REDFERN AV Incident Type s BURGINP Priority ...... : ,2 Emergency Agcys : P Name, Address : DAMIR ADAMS, S/C " Phone Number ... : 9372799433 License Numbr : Zip Code : Entered By : CP027,PDA25103 Entr Request(S,P,F,E,R,U,AR) . :PR KDT,eq Dsptchd By : DP030,PDA25201 Dispo: 2;: CMD DISPOSITION Report No: 01/03/25-000638 Yrly: 01-062452 ------Units Dispatched ------584T W 23:42:14 23:52:22 00:00:00 00:00:00 06:13:00 >PDA25129,PDA25337,8,Prmy >RPT #( 010325-0638 >E9< Address = 360 FOUNTAIN AV POLICE IT BURGLARY IN PROGRESS >RPT #< 010325-0638 >E9< Address = 360 FOUNTAIN AV COMPL STATES THAT SOMEONE BROKE INTO HER HOUSE & STARTED SHOOTING. SHE HAS 2 FRIENDS STAYING THERE & SHE HEARD THEM ARGUING W/THE 2 MALES, UNKN WHITE OR BLK. ------More Remarks ------ P O L I C E - C L O S E D I N C I D E N T D I S P L A Y This was a 911 Call In# 000508 Dist 546 -600 Utilty 0000- City-Map - 03-25-01 23:39:45 523 DELAWARE AV DA :( ) REDFERN AV Incident Type : BURGINP Priority ...... ,2 Emergency Agcys : P Name, Address : DAMIA ADAMS, S/C Phone Number ... : 9372799433 License Numbr : Zip Code : Entered By : CP027,PDA25103 Entr Request(S,P,F,E,R,U,AR) .:PR KDT,eq Daptchd By : DP030,PDA25201 Dispo: 2;: CMD DISPOSITION Report No: 01/03/25-000638 Yrly: 01-062452 ------Units Dispatched ------584T W 23:42:14 23:52:22 00:00:00 00:00:00 06:13:00 >PDA25129,PDA25337,8,Prmy POSS INJURIES, SOMEONE WAS HEARD CRYING. SEVERAL SHOTS FIRED. >AI< ALERTED TO 5 ON 03/25/01 AT 2342 >AI< ALERTED TO 560 ON 03/25/01 AT 2342 >AI< ALERTED TO 580 ON 03/25/01 AT 2342 COMPL WILL BE WAITING AT NEIGH'S HOUSE @ 360 FOUNTAIN!!! MEDICS NEED TO CHECK WELFARE OF THIS SUBJ ALSO. E^,!^^^^^^. 2ONtR J CFA`/C. ►► JAMES' Ute-,QA-V1IS, M.D. CC):^T.,_ MONTGO^(.^ ^ COUNTY OH10 KENNETH M. BETZ KAREN M. POWELL, M.D. DIRECTOR DEPUTY CORONER LEE D. LEHMAN, Ph.D, M.D. RUSSELL L. UPTEGROVE, M.D CHIEF DEPUTY CORONER DEPUTY CORONER ANDREA MINYARD, M.D. POSTMORTEM EXAMINATION KENT E. HARSHBARGER, M.D., J.D. DEPUTY CORONER OF THE BODY OF DEPUTY CORONER Cedron Brown Case # - 01-0880 Montgomery County Gunshot wound of head: A. Entrar-ce: left parietal scalp: B. Path: skull and brai.-i. C. Recovery: jacketed lead projectile from right temporal scalp. D. Direction: left to right, back to front, downwards. OPINION It is my opinion that the cause of death of Cedron Brown is: Gunshot wound of head. Andrea N. Minyard, M.D., Forensic Pathologist Diplomate, American Board of Pathology Deputy Coroner, Montgomery County, Ohio 4R1MfCCTT41Gn CT'.OCCT.fIAVT(1NI ( 1uInnCeno./ao7\OOC_eI cc - E AVmao\encvn-lc-^...... n...... 1^^2lY^LSl^^^ "r"Un TC I L- DANIEL L. O'BRIEN CO., L.P.A. qf I-v TEL (937) 8980101 TEL (937) 2286001 TALBOTT TOWER . . . FAX (937) 228-7448 Daniel L. OBrien 131 NORTH LUDLOW STREET • SUITE 1210 • DAYTON, OHIO 45402 May 17, 2001 Daniel J. OBrien Co., L.P.A. 1410 Talbott Tower Dayton, Ohio 45402 For services rendered: 04/24/01 Review evidence in preparation of Probable Cause Hearing Re: Tyrone Reid 2.00 $ 220.00. f 04/24/01 AttendProbable Cause Hearing Re: Tyrone Reid 6.00 660.00 05/17/01 Attend Arraignment at Montgomery County Common Pleas Court Re: Tyrone Reid 1.00 110.00 TOTAL AMOUNT DUE $990.00 *Rate of $110.00 is per DJO for this case only Attachment not scanned UE^Pnckin^jl;xh^^F I`j DANIEL J. O'BRIEN CO., L.P.A. TF1- (937) 228-6001 FAX (937) 228-7448 TALEOTT"TOINE.R E-MAIL Djoblaw®msn.cortl Daniel J. OBrien Daniel L. OBrien 131 NORTH LUDLOW 8TREET . SUITE 1210 • DAYTON, OHIO 45402 March 5, 2002 Honorable John J: Donnelly Cuyahoga County Common Pleas Court Probate Division One Lakeside Avenue Cleveland, Ohio 44113 Re: State of Ohio vs. Tyrone Reid Charge: Aggravated Murder Dear Judge Donnelly: It is my belief that Judge Kuntz from our Juvenile Court has talked to you about this case. Mr. Reid has been bound over to adult court on Aggravated Murder charges, inter alia, and his jury trial is set for April 29, 2002 for five days before Judge Gowdown. You have previously authorized a $7,500 retainer fee. Our statement to date is enclosed. We would also appreciate an additional $5,000 retainer for the Trial. Thank you. Best Wishes. Corlly DJO/klf Enclosure Attachment not scanned ^vvi ^x visii ^^y}^^xhqti ^(piy^.J ►v rage i oY iU Disclaimer C Logged in as GUEST on Server 1 Advenced Search astomerFeedhack Lo in Montgomery County Clerk of Courts PRO System Last Name First Name Company Name Case Number _...... __..__._.._...__.._._...... I GO GO GO MAIN INDEX t` ase Suuuci ai.^ Sercire Siuuniary 2001 CR 01371 STATE OF OHIO VS. REID, TYRONE E. To view an image...... click on a, camera. THE DOCKET . Begin Date:'4/26/01 End.Date: 5/9/05 R Descending IMAGES DATE/DOCKET ENTRY 04/26/2001 TRANSCRIPT & ALL ORIGINAL PAPERS FROM LOWER COURT TRANSCRIPT & ALL ORIGINAL PAPERS FROM LOWER COURT BOND IS 200,000. 04/27/2001 JUVENILE COURT TRANSCRIPT FEE JUVENILE COURT TRANSCRIPT FEE 05/11/2001 INDICTMENT INDICTMENT FOR AGGRAVATED MURDER (WHILE COMMITTING.:.) (3 YR FIREARM SPEC.), MURDER (PROXIMATE RESULT) (3 YR FIREARM SPEC.), AGGRAVATED ROBBERY (DW)(3 YR FIREARM SPEC.) & HAVING WEAPONS WHILE UNDER DISABILITY (PRIOR OFFENSE OF VIOLENCE)(3 YR FIREARM SPEC.) FILED. 05/11/2001 WARRANT ON INDICTMENT (FLAGGED) issued on: 05/11/2001 For: REID, TYRONE E. 05/15/2001 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 05/15/2001 WARRANT WITHDRAWN WARRANT WITHDRAWN BOND IS 200,000 C/S. KESSLER 05/16/2001 NOTICE SETTING APPEARANCE DATES FILED. NOTICE SETTING APPEARANCE DATES FILED. 05/16/2001 ORDER OF APPOINTMENT FILED ORDER OF APPOINTMENT FILED, J. ALLEN WILMES AS COUNSEL. FROELICH 05/18/2001 ENTRY FILED, DEFT STOOD MUTE ENTRY FILED, DEFT STOOD MUTE 5-17-01. FROELICH 05/18/2001 NOTICE SETTING APPEARANCE DATES FILED. NOTICE SETTING APPEARANCE DATES FILED. 05/22/2001 SHERIFF TRANSPORTATION FEE FILED. 7.601 CR^01371 Page 2 of 10 SHERIFF TRANSPORTATION FEE FILED. ,; 05/29/2001 - MOTION FOR CONTINUANCE AND ENTRY FILED MOTION FOR CONTINUANCE AND ENTRY FILED, RE-SET TO 6/4/01. GOWDOWN 06/05/2001 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 06/05/2001 WARRANT ON INDICTMENT WARRANT ON INDICTMENT (FLAGGED) served on: 05/14/2001 For: REID, TYRONE E. 06/07/2001 MOTION FOR CONTINUANCE AND ENTRY FILED MOTION FOR CONTINUANCE AND ENTRYFILED GRANTED TO 6-11-2001. , GOWDOWN 06/11/2001 MOTION OF DEFENDANT MOTION OF DEFENDANT FOR DISCLOSURE OF EXCULPATORY EVIDENCE FILED. Attomey: O'BRIEN, DANIEL J. (0031461) 06/14/2001 MOTION OF DEFENDANT MOTION OF DEFENDANT FOR DISCLOSURE OF INFORMATION REGARDING PRIOR AND SUBSEQUENT BAD ACTS FILED. Attorney: O'BRIEN, DANIEL J. (0031461) 06/11/2001 MOTION OF DEFENDANT MOTION OF DEFENDANT TO REQUIRE THE STATE TO REVEAL ANY AGREEMENT ENTERED INTO BETWEEN THE STATE AND ANY PROSECUTION WITNESS THAT COULD CONCEIVABLE INFLUENCE HIS TESTIMONY FILED. Attomey: OBRIEN, DANIEL J. (0031461) 06/11/2001 MOTION FOR CONTINUANCE AND ENTRY FILED MOTION FOR CONTINUANCE AND ENTRY FILED, GRANTED TO 6-25=01: GOWDOWN 06/11/2001 MOTION OF DEFENDANT. MOTION OF DEFENDANT FOR VOIR DIRE OF IDENTIFICATION WITNESSES AND FOR ORDER DISCLOSING OTHER EVIDENCE USED IN THE IDENTIFICATION PROCEDURE FILED. Attorney: O'BRIEN, DANIEL J. (0031461) 06/11/2001 MOTION OF DEFENDANT MOTION OF DEFENDANT DIRECTING THAT A COMPLETE COPY OF THE PROSECUTOR'S FILE BE MADE, TURNED OVER TO THE COURT FOR REVIEW AND SEALED FOR APPELLATE REVIEW FILED. Attorney: O'BRIEN, DANIEL J. (0031461) 06/11/2001 MOTION OF DEFENDANT MOTION OF DEFENDANT FOR ALL MOTIONS TO BE HEARD ON THE RECORD FILED. Attorney: O'BRIEN, DANIEL J. (0031461) 06/11/2001 MOTION OF DEFENDANT MOTION OF DEFENDANT FOR BILL OF PARTICULARS FILED. Attorney: O'BRIEN, DANIEL J. (0031461) 06/12/2001 MOTION TO SUPPRESS FILED , 2001 CR°01371 Page 3 of 10 MOTION TO SUPPRESS FILED. Attorney: O'BRIEN, DANIEL J. (0031461) 06/12/2001 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 06/18/2001 ENTRY.FILED, ENTRY FILED, SETTING SUBMISSION DATE OF JCJNE 25, 2001. GOWDOWN 06/21/2001 RESPONSE RESPONSE TO DEFT'S MOTIONS FILED. Attomey: SLAVENS, JOHN M(0002667) 06/25/2001 MOTION OF DEFENDANT MOTION OF DEFENDANT FOR RELIEF FROM PREJUDICIAL JOINDER FILED. Attorney: O'BRIEN, DANIEL J. (0031461) _w= L• i 06/26/2001 . ORDER OF APPEARANCE FILED, ORDER OF APPEARANCE FILED, MOTION TO SUPPRESS 7/20/01 AT 1:30. GOWDOWN 07/03/2001 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 07/13/2001 ENTRY FILED, ENTRY FILED, THAT $160.00 BE PAID TO J.ALLEN WILMES FOR ATTY FEES. GOWDOWN 07/16/2001 SUBPOENA FILED AND ISSUED SUBPOENA FILED AND ISSUED TO SGT. GARY WHITE; SGT. MARK SPIERS; DET. A. D. BURKE; DET. WILLLAM ELZHOLZ; DET. RAYMOND MARTIN BY THE DEFENSE. 07/18/2001 SUBPOENA SERVED SUBPOENA SERVED DEFENSE SGT GARY WHITE, SGT MARK SPIERS, DET A BURKE, DET WILLIAM ELZHOLZ, DET RAYMOND-MARTIN (R) 07/19/2001 MONTGOMERY COUNTY SHERIFF FEE MONTGOMERY COUNTY SHERIFF FEE 07/24/2001 ENTRY.FILED, E ENTRY FILED, GRANTING DEFT'S MOTION FOR ALL MOTIONS TO BE HEARD ON THE RECORD. GOWDOWN 07/24/2001 ENTRY FILED, ENTRY FILED, GRANTING DEFT'S MOTION TO REVEAL ANY AGREEMENT ENTERED INTO BETWEEN THE STATE AND ANY PROSECUTION WITNESS TIIAT COULD CONCEIVABLY INFLUENCE HIS TESTIMONY. GOWDOWN 07/24/2001 ENTRY FILED, ENTRY FILED, OVERRULING DEFT'S MOTION FOR VOIR DIRE OF IDENTIFICATION WITNESSES AND FOR AN ORDER DISCLOSING OTHER EVIDENCE USED IN THE IDENTIFICATION PROCEDURE. GOWDOWN 07/24/2001 ENTRY FILED, ENTRY FILED, GRANTING DEFT'S MOTION FOR BILL OF PARTICULARS. GOWDOWN 2001 CR-01371 Page 4 of 10 07/24/2001 ENTRY FILED, ENTRY FILED, OVERRULING DEFT'S MOTION FOR AN ORDER DIRECTING THAT A COMPLETE COPY OF THE PROSECUTOR'S FILE BE MADE, TURNED OVER TO THE COURT FOR REVIEW AND SEALED FOR APPELLATE REVIEW. GOWDOWN 07/24/2001 ENTRY FILED, ENTRY FILED, GRANTING DEFT'S MOTION FOR DISCLOSURE OF INFORMATION REGARDING PRIOR AND SUBSEQUENT BAD ACTS. GOWDOWN 07/24/2001 CRIIVIINAL STENOGRAPHER'S CERTIFICATE FILED CRIMINAL STENOGRAPHER'S CERTIFICATE FILED 07/24/2001 ORDER OF APPEARANCE FILED, ORDBR OF APPEARANCE FILED, SETTING MTS HEARING 8-17-2001. GOWDOWN 07/24/2001 MOTION FOR CONTINUANCE AND ENTRY FILED MOTION FOR CONTINUANCE AND ENTRY FILED, GRANTED TO 8-17-2001. GOWDOWN 07/31/2001 DAYTON POLICE DEPARTMENT WITNESS FEE DAYTON POLICE DEPARTMENT WITNESS FEE 08/02/2001 BILL OF PARTICULARS FILED BILL OF PARTICULARS FILED Attorney: SLAVENS, JOHN M (0002667) 08/14/2001 SUBPOENA FILED AND ISSUED SUBPOENA FILED AND ISSUED TO SGT. GARY A. WHITE, SGT. MARK SPIERS, DET. WILLIAM ELZHOLZ, DET. AD. BURKE, DET. RAYMOND MARTIN BY ATTY DANILE J O'BRIEN 08/15/2001 SUBPOENA SERVED SUBPOENA SERVED DEFENSE SGT GARY WIIITE, DET RAYMOND MARTIN, SGT MARK SPIERS, DET WILLIAM ELZHOLZ, DET A BURKE (R) 08/17/2001 ENTRY FILED, ENTRY FILED, SETTING BRIEFING SCHEDULE. GOWDOWN 08/17/2001 REQUEST REQUEST FOR TRANSCRIPT FILED. Attorney: IIvII'ERATO, RALPH E(0067136) 08/20/2001 CRIIvIINAL STENOGRAPHERS CERTIFICATE FILED CRIMINAL STENOGRAPHER'S CERTIFICATE FILED 08/22/2001 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 08/23/2001 MONTGOMERY COUNTY SHERIFF FEE MONTGOMERY COUNTY SHERIFF FEE 08/31/2001 DAYTON POLICE DEPARTMENT WITNESS FEE DAYTON POLICE DEPARTMENT WITNESS FEE 09/06/2001 MOTION OF DEFENDANT MOTION OF DEFENDANT FOR EXTENSION FILED. Attomey: O'BRIEN, DANIEL J. (0031461) 09/06/2001 DECISION AND ENTRY FILED, DECISION AND ENTRY FILED, GRANTING EXTENSION OF TIME UNTIL 9/14/01 2UU1 C;K•01371 , I Page 5 of 10 IN WHICH TO FILE A MEMORANDUM IN SUPPORT OF THE MOTION TO SUPPRESS. GOWDOWN 09/07/2001 ENTRY FILED, ENTRY FILED, GRANTING EXTENSION OF TIME TO FILE MEMORANDA. GOWDOWN 09/21/2001. ENTRY FILED; ENTRY FILED, GRANTING EXTENSION OF TIME TO FILE MEMORANDA. GOWDOWN i 09/28/2001 MEMORANDUM FILED DEFT'S MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS FILED. Attomey: OBRIEN, DANIEL L (0070531) 10/23/2001: ENTRY FILED, ENTRY FILED, GRANTING EXTENSION OF TIIvIE FOR STATE TO FILE MEMORANDUIvZ CONTRA DEFT'S MOTION TO. SUPPRESS BY 11-02-01 AND DEFTS REPI.YIN SUPPORT OF SAID MOTION BY 11-16-01. GOWDOWN 11/01/2001 MEMORANDUM FILED . . MEMORANDUM IN OPPOSITION TO DEFT'S MOTION TO SUPPRESS FILED. Attorney: SLAVENS, JOHN M (0002667) 12/19/2001 DECISION AND ENTRY FIL.ED, DECISION AND ENTRY FILED, OVERRULING DEFT'S MOTION TO SUPPRESS AND SETTING SCHEDULING CONFERENCE FOR 1/7/02 AT 1:30. GOWDOWN .^ 12/31/2001 DECISION AND ENTRY FILED, DECISION AND ENTRY FILED, GRANTING IN PART AND OVERRULING IN PART DEFT'S MOTION FOR DISCLOSURE OF EXCULPATORY EVIDENCE. GOWDOWN 01/07/2002' SHERIFF. TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 01/08/2002 ORDER OF APPEARANCE FILED, ORDER OF APPEARANCE FILED, FINAL PRE-TRIAL 4-5-2002 & TRIAL 4-22-2002. GOWDOWN - PfJI 01/08/2002 TIME WAIVER FILED TIME WAIVER FILED M. 01/11/2002 ORDER FILED PRE-TRIAL ORDER SETTING JURY TRIAL FOR 4/29/02 FILED. GOWDOWN < 01/11/2002 ORDER OF APPEARANCE FILED, ORDER OF APPEARANCE FILED, FINAL PRE-TRL4L 4/15/02 AT 3:00 & TRIAL 4/29/02 AT 8:30. GOWDOWN r= 01/29/2002 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 02/05/2002 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 02/05/2002 TIlVIE WAIVER FILED 2001 CR^01371 Page 6 of 1.0 LIMITED TIME WAIVER LINTIL 5/3/02.FILED. ^ 03/21/2002 STATE'S WITNESS LIST FILED STATE'S WITNESS LIST FILED. Attomey: SLAVENS, JOHN M (0002667) 03/26/2002 SUBPOENA FILED AND ISSUED SUBPOENA FILED BY ASST PROS ATTY AND ISSUED TO JABREE YATES, DAMIEN ADAMS, DEIDRA RAGLAND & NANETTE DEWS. 04/02/2002 SUBPOENA FILED AND ISSUED SUBPOENA FILED AND ISSUED TO GREGORY COLEMAN BY THE STATE. ^ 04/12/2002 MOTION OF PLAINTIFF MOTION OF PLAINTIFF FOR VIEW OF SCENE. Attorney: SLAVENS, JOHN M (0002667) .04/15/2002 MOTION TO CONTINUE FILED MOTION TO CONTINUE FILED Attomey: O'BRIEN, DANIEL J. (0031461) . 04/15/2002 ' SHERIFF TRANSPORTATION FEE FILED. Z'D SI-IERIFF TRANSPORTATION.FEE FILED. ^ 04/26/2002 ENTRY AND ORDER FOR CONTINUANCE FILED, ENTRY AND ORDER FOR CONTINUANCE FILED GRANTED TO 5-6-2002 • GOWDOWN 04/26/2002 MOTION TO CONTINUE FILED MOTION TO CONTINUE FILED BY ATTY DANIEL O'BRIEN. 04/30/2002 TIME WAIVER FILED TIME WAIVER FILED 04/30/2002 DAYTON POLICE DEPARTMENT WITNESS FEE DAYTON POLICE DEPARTMENT WITNSSS FEE ^ 05/01/2002 ORDER OF APPEARANCE FILED, ORDER OF APPEARANCE FILED, FINAL PRE-TRIAL 7-29-02 AND TRIAL WEEK OF 8-12-02. GOWDOWN kw 05/14/2002 ORDER OF APPEARANCE FILED, ORDER OF APPEARANCE FILED, FINAL PRE-TRIAL 8/19/02 AT 3:00 & TRIAL 8/26/02 AT 8:30. GOWDOWN 05/21/2002 ENTRY FILED, ENTRY FILED, GRANTING STATE'S ORAL MOTION FOR CONTINUANCE AND SETTING NEW TRIAL DATE OF 8-26-02. FINAL PRE-TRIAL 8-19-02. GOWDOWN ^ 05/21/2002 ORDER OF APPEARANCE FILED, ORDER OF APPEARANCE FILED, FINAL PRE-TRIAL 8-19-02 AND TRIAL 8-26-02. GOWDOWN 08/01/2002 SUBPOENA FILED AND ISSUED SUBPOENA FILED AND ISSUED TO DAMIEN ADAMS, DEIDRA ADAMS BY THE STATE 08/02/2002 SUBPOENA SERVED SUBPOENA SERVED, (P) ON 8-1-02 FOR GREGORY COLEMAN AND DR. ANDREA MINYARD. 08/15/2002 MOTION FOR CONTINUANCE AND ENTRY FILED ^001 CR 01371 Page 7 oF 10 MOTION FOR CONTINUANCE AND ENTRY FILED, RE-SET TO 11/18/02. GOWDOWN 08/15/2002 ORDER OF APPEARANCE FILED, ORDER OF APPEARANCE FILED, FINAL PRE-TRIAL 11/7/02 AT 3:30 & TRIAL 11/18/02 AT 8:30. GOWDOWN 09/05/2002 DAYTON POLICE DEPARTMENT WITNESS FEE DAYTON POLICE DEPARTMENT WITNESS FEE ^ 09/09/2002 MOTION OF DEFENDANT MOTION OF DEFENDANT TO REDUCE BOND FILED. Attomey: O'BRIEN, DANIEL J. (0031461) 09/23/2002 ENTRY FILED, ENTRY FILED, OVERRULING MOTION TO REDUCE BOND. GOWDOWN 10/15/2002 SUBPOENA FILED AND ISSUED SUBPOENA FILED AND ISSUED FOR DANETTE DEWS, ROBERT ESSEX, RICKY RAKESTRAW, GREG COLEMAN, JABREE YATES, DAMIAN ADAMS, & DEIDRE ADAMSBYPROSECUTOR 10/17/2002 ENTRY FILED, ENTRY FILED, CERTIFICATE OF MATERIALITY AND NECESSITY FOR OUT-OF- STATE WITNESS. GORMAN 10/29/2002 ENTRY FILED, ENTRY AND ORDER TO TAKE DEPOSITION FILED. GOWDOWN 10/29/2002 MOTION OF PLAINTIFF 0 MOTION OF PLAiNTTFF TO TAKE DEPOSITION FILED. Attomey: SLAVENS, JOHN M (0002667) 10/30/2002 MONTGOMERY COUNTY SHERIFF FEE MONTGOMERY COUNTY.SIiERIFF FEE 10/30/2002 SUBPOENA SERVED SUBPOENA SERVED DEFENSE LELICA WILIAMS(F) 10-28-02 SHAWN REUBER (R) 10-28-02 10/30/2002 . SUBPOENA SERVED SUBPOENA SERVED STATE DANETTE DEWS (R) 10-18-02 ROBERT ESSEX (R) 10- 23-02 RICKY RAKESTRAW (R) 10-24-02 T0/31/2002 NOTICE NOTICE OF DEPOSITION FILED. Attorney: SLAVENS, JOHN M (0002667) 10/31/2002 SUBPOENA FILED AND ISSUED SUBPOENA FILED BY ATTY JOHN SLAVENS AND ISSUED TO DET. MARK SALYER. 11/15/2002 DEFENDANT'S WITNESS LIST FILED DEFENDANT'S WITNESS LIST FILED BY ATTY DANIEL O'BRIEN. 11/18/2002 WAIVER OF JURY FILED WAIVER OF JURY FILED 11/19/2002 SUBPOENA FILED AND ISSUED 2001 CR=01371 Page 8 of 10 SUBPOENA FILED AND ISSUED FOR HARRY CALLOWAY, & MIKE KELLY BY ATTY. DANIEL OBRIEN ^ 11/20/2002 ENTRY FILED, JURY EMPANELED AND SWORN ENTRY FILED, JURY EMPANELED AND SWORN. GOWDOWN 11/20/2002 SUBPOENA SERVED DEFENSE SUBPOENA OF 11/19/02 SERVED ON MIKE KELLY 11/19/02 (P). 11/20/2002 SUBPOENA SERVED SUBPOENA SERVED ON HARRY CALLOWAY - (P) 11-20-02. 11/21/2002 SUBPOENA FILED AND ISSUED SUBPOENA FILED BY ATTY DANIEL O'BRIEN AND ISSUED.TO SGT: MARK BOWRON. 11/21/2002 SUBPOENA SERVED DEFENSE SUBPOENA OF 11/21/02 SERVED ON SGT. MARK BOWRON (R) 11/21102. 11/22/2002 SUBPOENA FILED AND ISSUED SUBPOENA FILED AND ISSUED TO OFF. MICHAEL S. SAYLORS BY ATTY DANIEL J. OBRIEN 11/22/2002 SUBPOENA SERVED. SUBPOENA SERVED ON 11-22-2002, TO BECKY JOHNSON C/O OFF. MICHAEL S. SAYLOR (R). 11/25/2002 CRIIvIINAL STENOGRAPHER'S CERTIFICATE FILED CRIIvIINAL STENOGRAPHER'S CERTIFICATE FILED 11/25/2002 EXHIBITS FILED IN THE COURT'S PROPERTY ROOM. EXEIIBITS FILED IN THE COURT'S PROPERTY ROOM. 11/25/2002 EXHIBITS FILED IN THE COURT'S PROPERTY ROOM. EXHIBITS FILED IN THE COURT'S PROPERTY ROOM. 11/30/2002 DAYTON POLICE DEPARTMENT WITNESS FEE DAYTON POLICE DEPARTMENT WITNESS FEE 12/02/2002 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 12/02/2002 VERDICT AND ENTRY FILED, VERDICT AND ENTRY FILED, JURY FINDS DEFT NOT GUILTY OF MURDER OF WILLIAM THOMAS AS CHARGED IN COUNT THREE. GOWDOWN 12/02/2002 VERDICT AND ENTRY FILED, VERDICT AND ENTRY FILED, JURY FINDS DEFT DID HAVE A FIREARM ON OR ABOUT HIS PERSON WHILE COMMITTING OFFENSE OF MURDER. GOWDOWN 12/02/2002 VERDICT AND ENTRY FILED, VERDICT AND ENTRY FILED, JURY FINDS DEFT NOT GUILTY OF AGG. ROBBERY AS CHARGED IN COUNT ONE. GOWDOWN 12/02/2002 VERDICT AND ENTRY FILED, VERDICT AND ENTRY FILED, JURY FINDS DEFT NOT GUILTY OF AGG. MURDER OF CEDRON BROWN AS CHARGED IN COUNT TWO. GOWDOWN 12/02/2002 VERDICT AND ENTRY FILED, VERDICT AND ENTRY FILED, JURY, HAVINF FOUND DEFT NOT GUILTY OF AGG: MURDER AS CHARGED IN COUNT TWO, DO FIND DEFT GUILTY OF MURDER OF CEDRON BROWN. GOWDOWN 12/03/2002 SUBPOENA FILED AND ISSUED SUBPOENA FILED AND ISSUED TO BERNARD GAMBIL BY THE STATE. ) 2001 CR-01371 Page 9 of 10 12/04/2002 ORDER OF APPEARANCE FILED, ORDER OF APPEARANCE FILED, BENCH TRIAL 12/20/02 AT 1:30. GOWDOWN 12/05/2002 EXHIBITS FILED IN THE COURT'S PROPERTY ROOM. E3GiIBITS FILED IN THE COURT'S PROPERTY ROOM. 12/06/2002 JURY LIST FILED 7URY LIST FILED 12/11/2002 - MONTGOMERY COUNTY SHERIFF FEE MONTGOMERY COUNTY SHERIFF FEE 12/11/2002 SUBPOENA SERVED SUBPOENA SERVED STATE BERNARD GAMBIL (R) 12-5-02 12/16/2002 MOTION OF DEFENDANT MOTION OF DEFENDANT FOR SUBSTITUTION ,OF COUNSEL FILED. Attorney: CICERO, ANTHONY R (0065408) 12/16/2002 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 12/19/2002 ENTRY FILED, ENTRY FILED, GRANTING MOTION FOR SUBSTITUTION OF COUNSEL. GOWDOWN 12/19/2002 ENTRY FILED, ENTRY FILED, SUBSTITUTING ANTHONY CICERO AS COUNSEL FOR DEFT. GOWDOWN 12/20/2002 CRINIINAL STENOGRAPHER'S CERTIFICATE FILED CRIMiNAL STENOGRAPHER'S CERTIFICATE FILED 12/23/2002 VERDICT AND ENTRY FILED, VERDICT AND ENTRY FILED, COURT FINDS DEFT GUILTY TO COUNT FOUR AND SPECIFICATION TO COUNT FOUR AND ORDERING SENTENCING FOR 1/6/03. GOWDOWN 12/23/2002 EXHIBITS FILED IN = COURT'S PROPERTY ROOM. EXHIBITS FILED IN THE COURT'S PROPERTY ROOM. 01/02/2003 EXHIBITS FILED IN THE COURT'S PROPERTY ROOM. EXHIBITS FILED IN THE COURT'S PROPERTY ROOM. 01/06/2003 MOTION TO SUSPEND FURTHER EXECUTION OF SENTENCE FILED MOTION TO SUSPEND FURTHER EXECUTION OF SENTENCE AND FOR BOND PENDING APPEAL FILED. Attorney: CICERO, ANTHONY R (0065408) 01/06/2003 SHERIFF TRANSPORTATION FEE FILED. SHERIFF TRANSPORTATION FEE FILED. 01/07/2003 CRIIv1IINAL STENOGRAPHER'S CERTIFICATE FILED CRIMINAL STENOGRAPHER'S CERTIFTCATE FILED 01/08/2003 TERMINATION ENTRY FILED TERMINATION ENTRY FILED, 1-6-2003, DEFT. SENTENCED 15 YRS. TO LIFE ON CT. 2 & 6 MONTHS ON CT. 4 TO BE SERVED CONCURRENTLY AND 3 YRS. ACTUAL INCARCERATION ON FIREARM SPEC. TO BE SERVED CONSECUTIVELY TO DEFINITE SENTENCED. GOWDOWN " 2001 CR 01371 Page 10 of 10 01/08/2003 WARRANT TO CONVEY ISSUED TO SHERIFF WARRANT TO CONVEY ISSUED TO SHERIFF 01/10/2003 COST BILL SENT COST BILL SENT REID, TYRONE E. was sent bill for $1,730.00. Printed on 01/10/2003 12:09:01. 01/13/2003 WARRANT TO CONVEY RETURNED ENDORSED WARRANT TO CONVEY RETURNED ENDORSED, VORE BY DEPUTY 01/15/2003 ENTRY FILED, ENTRY AND ORDER FILED, COURT DENIES A STAY OF EXECUTION AND A BOND PENDING APPEAL. GOWDOWN 01/17/2003 COURT OF APPEALS DOCKETING STATEMENT FILED COURT OF APPEALS DOCKETING STATEMENT FILED BY ATTY ANTHONY CICERO. 01/17/2003 NOTICE OF COMMITMENT AND CALCULATION OF SENTENCE FILED. NOTICE OF COMMITMENT AND CALCULATION OF SENTENCE FILED: 01/17/2003 NOTICE OF APPEAL FILED NOTICE OF APPEAL FILED BY ATTY ANTHONY CICERO. (CA 19729) 01/17/2003 PRAECIPE TO THE COURT REPORTER FILED PRAECIPE TO THE COURT REPORTER FILED BY ATTY ANTHONY CICERO. 02/18/2003 ENTRY FILED,. CERTIFICATE OF MATERIALITY AND NECESSITY FOR OUT-OF-STATE WITNESS FILED. 02/25/2003 TRANSCRIPT OF PROCEEDINGS FILED TRANSCRIPT OF PROCEEDINGS FILED COURT OF APPEALS ARGUMENT ON MOTIONS, MOTION TO SUPPRESS, JURY TRIAL, BENCH TRIAL, SENTENCING 05/07/2004 ALL ORIGINAL PAPERS RETURNED FROM COURT OF APPEALS. ALL ORIGINAL PAPERS RETURNED FROM COURT OF APPEALS. CA19729, S&D, 6 TRANS 04/05/2005 MOTION OF DEFENDANT MOTION OF DEFENDANT FOR CRIA^^IINNAL APPEARANCE.DOCKET AND COURT RECORDS WITHOUT COST FILED. Attorney: PRO SE Q 04/13/2005 ENTRY FILED, ENTRY FILED, DENYING MOTION FOR CRIMINAL APPEARANCE DOCKET AND COURT RECORD WITHOUT COST. GOWDOWN DANIEL L. O'BRIEN CO., L.P.A. TEL (937) 898-0101 CA'M^ av Q^w TEL (937) 228,8001 TALBOTT TOWER FAX (937) 228-7449 Dantel L. O'Eden 131 NORTH LUDLOW STREET • SUITE 1210 • DAYTON, OHIO 45402 ,March 26, 2001 r42"t'4-'^ 7 ^ 1, Tyrone Reid, choose to have Daniel L; O'Brien represent me in my ,. ,. . cases ofAgg[avated 1Vliirder; P7lurder; Aggravated Robtiery; Weapons Under Disability;.. with four Firearm Specifications.. Dated: March C?lv' , 200I vc-^`-' ^ 1 \ V 523 Delaware, DaminAdams ® 6S?llM$V2W aDT, Inc., R.I. 04/2000 1 Meting with defense investigator Detective Emmons (8 11/01) 4.0 View of Scene with Investigator (8/ 12/01) 1.0 Conference with ballistic expert (5/17/01) 2.0 ^ `"Focus" Review of entire file with Investigator and DLO to make final game plan for trial (5/ 15/01) 4.0 Indictment Witness Statements d Case History Incident Reports Search Documents Crime Lab Reports All Etiscovery 'Preparation of Subpoenas for trial (original trial date) (7/16/01) 1.0 Legal Research for initial Hearing, Defense and Indictment, Juvenile Law, inter alia (law library) (6/5/01) 6.0 Telephone conferences with numerous parties Over the past 12 months concerning case; correspondence with mother of Defendant and meetings with mother of Defendant .0 Preparation of numerous pretrial motions to date (8/2/01) 4.0 Review Evidence at Crime Lab (photos, sketch, etc.) (10/31/01) 2.0 'Meetings with Defendant (4/23/01, 5/17/01, 6/20/01, 7/ 18/01 8n 8/ 16/O1) 3.0 Meeting with Judge Nick Kuntz (Juvenile Court) (4/22/01) 1.0 Meetings with County Prosecutors Slavens & Imperato Pretrial (5/24/01, 9/7/01, 10/31/01, 12/14/01) - scheduling with J. Gowdown (1/ 17/02) 5.0 Total hours 58.0 @ $200/hr $11,600.00 Out of pocket expenses 371.10 TOTAL DUE AND OWING $,11,971.10 Case presently set for Jury Trial (5 days) commencing Apri129, 2002 with Judge Gowdown e 1, DANIEL J. O'BRIEN CO., L.P.A. TEL (937) 2285001 G&r^^^^ FAX (937) 228-744$ TALBOTT TOWER E-MAIL DJobtawemsn.corn Daniei J. O'BYien Daniel L. OSAen 131 NORTH LUDLOW STREET • SUITE 1210 • DAYTON. OHIO 45402 January 23, 2003 Ms. Lori Zocolo 1915 Superior Building 815 Superior Avenue Cleveland, Ohio 44114 In Ree:'.The Guardianship of Tyrone Reid Dear Ms. Zocolo, Enclosed please find our exceptions to the proposed final account in the above captioned cause with accompanying Affidavits. All of these bills are unpaid as you already know. . You and the guardian (who attended the trial everyday) attempted to defraud two fellow attorneys and investigators who worked their buns off for the ward who assassinated his best friend to rob him of his money. You will be hearing more from us on this matter be assured. Very trugy-yours, Daniel J. O'Brien, Sr. DJO/tnb t' F. 4/23/02 Jackie Davis - - came for her 11:00 appointment despite the fact that Yvonne Davis was going to tell her not to come. Jackie is extremely upset because you have asked them to find the boy who killed Yvonne's only son. Yvonne has been in titutionalized in the past for mental problems and Jackie Davis es not feel you should be asking Yvonne to fmd Jabree Yates. /