A. RUD JENNIFER HUNT ASSISTANT PROSECUTING ATTORNEY APR 272W 3737 SOUTH HIGH STREET, 14TH FLOOR COLUMBUS, OHIO 43215 CLERK of COURT SUPREMECOURT of OHIO -AND

IN THE OHIO SUPREME COURT ORIGINAL RODNEY D. ZEUNE ROSS CORRECTIONAL INSTITUTION P.O. BOX 7010 CHILLICOTHE, OHIO 45601

Relator, vs.

JUDGE JOHN BENDER FRANKLIN COUNTY COMMON PLEAS COURT 12-074^ 345 SOUTH HIGH STREET COLUMBUS, OHIO 43215 -AND- A. RUD JENNIFER HUNT ASSISTANT PROSECUTING ATTORNEY APR 272w 3737 SOUTH HIGH STREET, 14TH FLOOR COLUMBUS, OHIO 43215 CLERK OF COURT SUPREMECOURT OF OHIO -AND-

RUSSELL MOORE DRUG ENFORCEMENT AGENCY VED 500 SOUTH FRONT STREET, SUITE 750 COLUMBUS, OHIO 43215 APR 2 7 20°Z

-AND- CLERK OF COURT SUPREME CUUR1 OF 0H10 JANEY CARROLL DRUG ENFORCEMENT AGENCY 500 SOUTH FRONT STREET, SUITE 750 MANDAMUS TO COMPEL COLUMBUS, OHIO 43215 RESPONDENT(S) TO COMPY -AND- WITH DISCOVERY RULES PURSUANT TO C.R. 16, MATT DAILY DISCLOSE WILLFULLY WITH- MOUNT VERNON POLICE DEPARTMENT HELD EVIDENCE AND CARRY 5 NORTH GAY STREET OUT THEIR CLEAR LEGAL MOUNT VERNON, OHIO 43050 DUTIES.

Respondant(s).

Here come Relator, Pro Se, bringing a Mandamus to this

Honorable Court. The above Respondent(s) failed to comply with discovery rules by willfully withholding evidence, thus, failing to carry out their clear legal duty.

Relator's claims of Respondent(s) Brady violations, tampering with evidence, discovery rule violations, using a sham legal process, perjury and obstruction of justice are outlined and supported in the following Memorandum and Affidavit.

Respectfully submitted,

--TodnV H Z ne Ross Correc ional Institution P.O. Box 7010 Chillicothe, Ohio 35601

2 MEMORANDUM IN SUPPORT

In this Memorandum and following Affidavit, Relator outlines

his request of this Honorable Court to grant a proceeding in

Mandamus against the named Respondent(s).

In the attached Affidavit, Relator gives statement of facts

showing cause for his Mandamus. Respondent(s) Brady violations,

tampering with evidence, discovery rule violations, the use

of a sham legal process, perjury and obstruction of justice

could not be more clear.

The State withheld exculpatory evidence, thus, violating

Relators due process rights protected under the Fifth and Four-

teenth Amendments to the United States Constitution, and Section

10 and 16, Article I of the Ohio Constitution. Under Brady v.

Maryland (19630, 373 U.S. 83, 87, "the suppression by the prosec-

ution of evidence favorable to an accused upon request violated

due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or the bad faith

of the prosecution." The Brady doctrine has subsequently been

extended by this Court, and "the individual prosecutor has a

duty to learn of any favorable evidence to the other acting

on the government's behalf in the case, including the police."

Kyles v. Whitley ( 1995), 514 U.S. 419, 437. In addition, this

doctrine applies whether there has been a specific request, a

>general request, or no request by the defendant for exculpatory

evidence. United States v. Bagley ( 1985), 473 U.S. 667, 683.

Trial testimony established that police and prosecution purposely

and willfully withheld a key photograph, several audio record-

ings, a video recording, confidential informant information,

and investigation material. The record reflects that witness and police statements were not made available. 4 Misconduct of a prosecution attorney is grounds for a new trial if it materially affects the substantial rights of the accused. C.R. 33(A)(2), R.C. §2945.79(B). A prosecuting attorney may;jly- the suppression of evidence, or similar acts, be guilty of such conduct as to afford grounds for a new trial. U.S. v.

Stifel, 594, F. Supp. 1525 (N.D. Ohio 1984).

The prosecution, as an agent of the State, has a consitut- ional duty to assure the defendant a fair trial, which entails the obligation: (1) to refrain from knowingly using perjured testimony, (2) to disclose certain evidence favorable to the accused, and (3) to correct testimony known to be false. OJ

3d § 343. As the Affidavit states, the State withheld evidence, allowed perjured testimony, and did not correct testimony known to be false.

Furthermore, a prosecutor may be guilty of misconduct warr- antinga new trial by engaging in "trial by ambush" tactics in misleading a defendant into believing that evidence in his or her possession that is, in fact, inculpatory is actually exculpatory, causing the defendant to elicit the evidence to his or her detriment. State v. Wilson, 30 Ohio St. 3d 99 , 507

N.E. 2d 1109 (1987). On the first day of trial, the State elected to apply the complicity theory. However, Relator was indicted as the principle offender. Relator agrees the States election to use the complicity theory was appropriate. Although, for the State to withhold evidence that would have aided in Relators defense, whether it be a.: defense against complicity or an affirmative defense, created a "trial by ambush".

As to why defense counsel, Robert Krapenc, atdXncrt-^ [- ",_;

5 these tactics is stated in the following Affidavit.

Relator has made several attempts to obtain the withheld

evidence. On July 5, 2011, Relator filed a Post Conviction Petit-

ion requesting the evidence. The trial court had an obligation

to demand prosecution to turn over the withheld evidence as

soon as he learned of the discovery violation. At the very least,

the trial court should have held the requested evidentiary hear-

ing or demanded the evidence to be turn over to Relator. Relator

has also made additional Motions demanding the evidence. Law

enforcement, the trial court and the prosecution are still refus-

ing to disclose the withheld evidence.

Wherefore, Relator request that this Honorable Court to

move for a Proceeding In Mandamus against Respondent(s).

Respectfully submitted,

ney Tx:''Zeunh, 625-137 Ross Correctional Institution P.O. Box 7010 Chillicothe, Ohio 45601

CERTIFICATE OF SERVICE

Relator hereby certifies that he sent a copy of this

Mandamus to Respondent(s), to the address listed in this com- plaint, on this day of March, 2012.

Respectfully submitted,

6 IN THE OHIO SUPREME COURT 2012

RODNEY D. ZEUNE

Relator,

vs.

JUDGE JOHN BENDER JENNIFER, HUNT RUSSELL MOORE JANEY CARROLL MATT DAILY

Respondent(s).

AFFIDAVIT OF RODNEY D. ZEUNE

ROSS COUNTY ) STATE OF OHIO)

I, Rodney D. Zeune, being first duly sworn according to law, state the following:

1. I was indicted for drug trafficking in August 2009. I retained Robert Krapence as my counsel.

2. On September 29, 2009, Mr. Krapenc filed a request for discovery pursuant to C.R. 16 of the Ohio Rules of Criminal Pro- cedures.

3. On August 3, 2010, I went to trial in Case No. 09CR4919. During trial, it was discovered that police and prosecution purposely and willfully withheld at least one photograph, several audio recordings, a video recording, witness statements, investigation reports and surveillanceland police reports.

4. Mr. Krapenc did not request the above evidence, a continuance to obtain discovery or a mistrial.

5. All along, an entrapment defense was present. The recorded conversations would establish that I was enticed by $4,500 that was owed to me by Mr. Musleh for an equipment purchase. Mr. Musleh showed up at the Westerville Police Department with this same $4,500, thus, demonstrating his attejtpt to use a form of entrapment by enticing me with money.

6. When the prosecution let the photograph slip into testimony, she request a minute to regroup. Ms. Hunt then asked to approach the bench, and after a lengthy discussion, the proceedingswere moved to Judge Bendere's chambers. After a three hour interrup- tion, Mr. Krapenc returned enraged. Mr. Krapenc claimed: (1) the judge was mad at him for his defense, ( 2) the judge was going to tailor the jury instructions specifically for my case, of which he did not agree with the judges decision, however, Mr. Krapenc said he was not going to argue or disagree with 7 Judge Bender because he was the judge's campaign manager. Mr. Krapence stated, "he did not want to rock the boat", (3) told me to take a plea and Mr. Krapenc became enraged when I did not surrender to a plea, (4) forget about the evidence and just take the "damn plea", (5) stop asking questions, and (6) if I asked for a mistrial the judge would not grant it because Judge Bender, due to their relationship, would not make a decision that would reflect poorly on him. I informed Mr. Krapenc that I was going to request a mistrial and the calimed the judge would penalize me. Mr. Krapenc stated, "the judge will not seij; me down the river." I did inform the Judge I was misled to trial.

7. Trial transcripts also revealed that Mr. Krapenc and Ms. Hunt were long time friends and Mr. Krapenc was camping partners with Ms. Hunt's husband. So rather than Mr. Krapenc's friend being confronted with discovery rule violations, a mistrial or sanctions, there was no request for a mistrial. A "trial by ambush" was present.

8. The drug dealer, Rayshawn Alexander was not arrested. There is strong evidence that Mr. Alexander was an actual confidential informant; an informant that was not authorized to make the March 5, 2009 sale. In other words, Mr. Alexander was selling drugs behind police's back, thus, conducting an "illegal sale". Police cannot have one of their agents sell to another of their agents in order to entrap a third party in the middle. Not to mention, that street drugs were in the mist of a "controlled buy".

9. Mr. Musleh and police testified that neither of them knew the drug dealer, Mr. Alexander, prior to the March 5, 2009, drug transaction. However, according to testimony, the police had a a photograph of Mr. Alexander immediately after the drug transaction that was shown to Mr. Musleh. Police claimed that they never retrieved the "buy money" from Mr. Alexander. The only true explaination for that is that Mr. Alexander was a confidential source. There was no statement from Mr. Alexander in discovery even though he was on the State's witness list.

10. Strong evidence shows that Mr. Musleh was only "snitch" and not an authorized agent with jurisdiction to participate in a "controlled buy" that occurred in Franklin County. Mr. Musleh was not under the required contract with a single agency that had jurisdiction in Franklin County.

11. On July 5, 2011, through counsel, I filed a Post Conviction Petition. In my petition, I request an evidentiary hearing and the evidence. I have yet to receive either.

12. In January 2012, I made yet another demand for discovery with the trail court. To date, there has been no compliance by the trial court or prosecution.

13. My own counsel has informed me that I am entitled to the withheld evidence. Judge Bender assigned Sarah Schregardus to my appeal. When I first met her, Ms. Schregardus claimed she would demand the withheld evidence. However, on February 24,

8 just one day prior to my Merit Brief being due with the Appell- ate Court, Ms Schregardus, Judge Bender and Seth Gilbert held an illegal hearing. Seth Gilbert was assigned by the prosecution to file their brief. This hearing was not announced or recorded. The Notice of Appeal was already filed. There would be no reason whatsoever for this meeting with Judge Bender unless it was to discuss, alter and manipulate my appeal. Neither Mr. Schregardus nor Mr. Gilbert ever filed an appearance in Judge Bender's court or did they have pending motions or issues. In the attached letter, Ms. Schregardus first makes claim that she will not be asking for any evidence or handling any post conviction matters. Therefore, there was no reason for this meeting betw^en court and counsel. Mrs. Schregardus confirmed that she would not speak to Mr. Krapenc about my appeal since I fired him after his ineffective assistance at trial. However, she spoke to him in detail, and after that discussion, she removed issues from my appeal. Since other issues were also dropped after Ms. Schregardus' meeting with the court, evidence would lean to the fact that Mr. Krapenc was present at the February 24, 2011 meeting.

14. To date, the trial court is not in compliance with R.C. 2952.21. Judge Bender has not made filings, findings or conclus- ions of law within the required one hundred and eighty days.

15. Had the evidence and complete discovery been turned over by the prosecution or had Mr. Krapenc demanded such evidence, I believe I would ahve had a successful defense,

ur e affi sayeth naught,

1^ Sw rn to d su yribed in my presence on this as day of ^^h 2012.

Notar Public J R BYRD NOTARY PUBLIC STATE OF OHIO MY COMMISSION EXPIRES NOVEMBER 16, 9015

a KuRA & WILFORD CO., L.PA:

492 CityPark Avenue ^-. Attorneys at Law: ofmunsel: ^.^.:Columbus, OH 43215..' Dennis Pusateri James P. Kura (1945-1997) 614-828-0103.fax Barry W. Wilford 614-628-0100 Sarah Schregardus

March 7, 2011

Rodney Zeune, #625-137 Ross Correctional Institution P.O. Box 7010 Chillicothe, Ohio.45601

DearMr. Zeune:

I received your recent letter. Just to clarify my meeting was with Judge Bender and Seth Gilbert. Mr. Gilbert is the prosecutor assigned to your appeal. He will be the prosecutor filing the State's response to the brief.

Also, you can file a supplemental brief. The Court of Appeals is not required to accept it or consider it, but sometimes they do and that is your decision whether you chose to file that. Let me be clear that I am advising you not to file and to cease all of your filings with the trial court, prosecutor's office and court of appeals. I advise you this because, in my opini.on, you will be back in front of Judge Bender again. Itdoes not look good that you continue to file motions after they appointed you an attorney and you told the court that you were sorry for what you did. It looks like you are trying to play games. Judge Bender will have the opportunity to lower your sentence. At this point, it looks like he Will. However, at your original sentencing hearing, he said he felt like you were playing games when he imposed the 4 years, so if it looks like you are continuing to play games, he does not have any incentive to lower your sentence.

As to why I did not raise the issue about the video tapes: the issue does not appear on the record and ther•efore it would have been inappropriate to raise it on anappeal. If the issue had merit, :° Coil:d be ra1SCra Iri a p(3stconv.CLii)n pee3iilii4: i a11Yti ;jtr.. ciac auutoo5 iGi"ti... CE-:3 I?ub..=' Defender's Office to contact about filing a postconviction petition for you.

Also, with the issue of entrapment; you and your attomey decided before you went to trial that you would not be raising an entrapment defense: You knew this before you went to trial and chose to proceed. I spoke with 1VIr. Krapenc aboutwhy this defense was raised, he said because there is a component of the entrapment defense that included "the defendant was not predisposed to commit the crime" that he felt would not fly with the jury. He said you guys discussed this prior to trial. Rodney - I listened to the tape too: I don't believe that this was your first time being involved in a drug sale. If you wanted an attorney that would raise entrapment with the jury, you should have told Mr. Krapenc this or found a^-iother attorney that would have: I told you that the only way to bririg entrapment into the appeal was to raise an Ineffective Assistance of Counsel claim for failing to present an entrapment defense. I then told you that this issue is raised all the time in appeals and almost always loses. Your trial counsel's strategy would be upheld because he was able to bring in a lot of the evidence that the jury could hear and then use their conunon sense to see that you were setup, but not subject you to a cross examination about your previous drug sale interactions. That is a reasonable trial strategy, which as you know, Strickland v. Washington, says that so long as a trial strategy is reasonable, there is no reversible error.

Rodney, I think you have a legitimate chance of getting out of prison before 6/29/2015. I honestly believe that you did not deserve a 4 year sentence for your participation, but I know that the judge was allowed to impose that and could have given you up to 5 years. I would like to see youreunited with Abby and your family: I am trying to do what is in your best interest:getting out of prison as soon as possible. I hope you can understand where I am coming from.

:c ely,

a cyareearaus