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ECEB V F'.^S^..^I r^ f ^ .. ..''/..:.. ,..,. ...^'6.'^,r.r: IN THE SUPREME COURT OF OHIO STATE OF OHIO 0 'Al J^1 Plaintiff-Appellee ^ CASE NO "A' ^ V. } On Appeal from the Summit ^ County Court of Appeals, LARRENCE CLAY ^ Ninth Appellate District Defendant-Appellant ^ } C.A. NO. 27015 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, LARRENCE cLAY JEREMY A. VEILLETTE SHERRI BEVAN WALSH REGISTRATION NO. 0070130 REGISTRATION NO. 0030038 209 SOUTH MAIN STREET EIGHTH FLOOR RICHARD KASAY AKRON, OHIO 44308 REGISTRATION NO. 0013952 (330) 790-1265 [email protected] SUMMIT COUNTY PROSECElTOF2°S OFFICE 53 UNIVERSITY AVENUE SEVENTH FLOOR AKRON, OHIO 44308 (330) 643-2800 Attomey for Defendant-Appellant Attomeys for Piaintiff-Appeilee .. .....: ....:.. ; ;.;;; ;;,% ; , ; ,. ,- ..,, ;,,..; :,;,.. , .;^f -: :, , ,; ,^;;-.^^ ., ., , ,.,`,,. _ ECEB V F'.^s^..^i. ^........s.r . u..u.....^F sii^ i^. ^urrf OCT2A2014 GLERK OF COURT TABLE OF CONTENTS PAGE EXPLANATION OF WHY THIS CASE IS OF GREAT Ptl!BLIC OR GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ........:............................................................................. STATEMENT OF THE CASE AND FACTS ...................................................................3 PROPOSITION OF LAW 1: A Defendant in a criminal trial has a fundamental Due Process and Sixth Amendment right to investigate potential exculpatory evidence, and a trial court abuses its discretion and violates these rights when the trial court actively prevents defendant from investigating the evidence necessary to show the prejudice and harm which would support a mistrial or new trial :.............................5 CONCLUSION ................................ .......7 CERTIFICATE OF SERlPICE .............................................................................................8 APPENDIX Jtadgment EntrylOpinion affirming Appellant, Larrence Clay's, convictions for Murder with Gun Specification and Having Weapon While Under Disability, Summit County Court of Appeals Case No. 27015, rendered September 3, 3014, 2014-Ohio-3806. EXPLANATION OF WHY THIS CASE IS OF GREAT P^BLi<^ OR GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION A central tenet of the criminal justice system is the guarantee of due process, of being able to effectively present a defense. These concepts are at the heart of the Fifth and Sixth Amendments to the United States Constitution and Section 10 of the Ohio Bill of Rights. We expect the courts to weigh the interests of the State, judicial economy, and the rights of defendants in making rational decisions. We do not expect them to actively prevent a defendant from investigating exculpatory information. Doing so goes against all concepts of fairness, impartiality, and competent defense. Larrence Clay was denied this fairness and his constitutional rights when the trial court, knowing that the State had already interviewed a person with potentially exculpatory information, denied his counsel the opportunity to do the same. At a time when cases of wrongful convictions and fundamental procedural defects are at the forefront of the public conscience, Larrence was denied the most basic tenet of due process, the right to investigate and present his defense. This unusual case of first-impression calls for a oiear mandate that when potentially exculpatory evidence is disclosed, especially where such disclosure is delayed and not timely, the trial court must allow the defendant the opportunity to investigate the merits of such information. To do otherwise calls into question the very foundation of reasonable certainty that underlies convictions rendered beyond a reasonable doubt. Larrence was tried by jury and convicted of the murder of Derek Edwards, along with related specifications and weapons charges. Prior to reading of the verdict, he requested a 1 mistraai. On appeal, the Ninth District Court ofAppeais affirmed his convictions, finding that he did not show in the record the need for a mistrial, even though the trial court had prevented the investigatior, which would have created that record. (Opinion "Op." , at ¶74), Just prior to verdict announcement, the State disclosed a potentially exculpatory witness, Dennis Cook. The State provided a one year-old statement to the police and a copy of its own recent interview. The trial court denied Larrence's request to interview Cook to determine if he did, in fact, possess exculpatory information. (Op. at 172). Cook was in custody and in the courthouse at the time. The trial court then denied a motion for mistrial and new trial, in part because counsel did not demonstrate Cook's exculpatory benefit. The Court of Appeals affirmed the convictions, finding that while the trial court's actions were "troublesome," Larrence did not show prejudice or Cook's exculpatory benefit, leaving the matter for post-conviction relief. (Op. at 174). This Court should accept review of this case and determine that the rights to Due Process and Counsel mandate that the courts not actively prevent a criminal defendant from exercising his guarantees to investigate potentially exculpatory information. The rule established by the Court of Appeals allows a trial court to interfere with defense counsel's effective investigation and argument. The redress of post-conviction relief is inadequate; the constitutional violation took place during trial, when the information was immediately investigable. The Court of Appeals ruling infringes upon the defendant's basic rights, as it hinders him/her from developing the testimony and record necessary to show the prejudice and harm that would warrant a mistrial or new trial. It is axiomatic that Due Process and the Right to Counsel include not only the 2 presentation of arguments, but the investigation of the facts and witnesses. Unlike circumstances in which potentially exculpatory evidence arises after trial or verdict, in this case the trial was still ongoing, a verdict had not been announced. Post-conviction relief for previously unknown evidence was inapplicable. The Court of Appeals would require a defendant to wait until after conviction to investigate pre-conviction evidence, all while being told by the court that he cannot develop the evidence. It is disingenuous for the courts to rule that a defendant has not presented a sufficient record to support his arguments when the sole reason for that deficiency is the courts' actions and rulings. The State was afforded opportunity to investigate and present its arguments. The trial court knowingly prevented Clay from doing the same, and no understandable reason for this active infringement of rights was given. When a trial court all-but-forbids a defendant from creating an appropriate record to show the prejudice necessary for a mistrial or new trial, the courts cannot thereafter use that lack of a record to support the convictions, except by calling into question the basic fairness and efficacy of the criminal process. STATE^EN1` QF CASE AN® FACTS Larrence Clay was arrested for the July 19, 2013 murder of Derek Edwards, and charged with Aggravated Murder, R.C. 2903.01(A), a special felony, and indicted in the Summit County Court of Common Pleas. A supplemental indictment was filed: Firearm Specification, R.C. 2941.145, to Count 1, Aggravated Murder; Count 2, Murder, R.C. 2903.02(A), a special felony, with a Firearm Specification, R.C. 2941.145; and Count 3, Having Weapons While Under Disability ("HWWUD"), R.C. 2923.13(A)(3), a third degree felony. A Motion to Suppress was denied. After Trial 1, the verdict was Not Guilty of 3 Aggrevated Murder, Guilty of HWWUD, but hung as to Murder. The trial court declared a mistrial on Count 2, Murder. Trial 2 began on May 13, 2013. Only one witness, Jeremiah Walker, definitively identified Clay as the killer. (Trial 2°F'ranscript (72°'), at 402m403, 463-464). An emergency medic testified to seeing an unknown person over Edwards' body when he arrived on scene, but that this person immediately ran away. J2, at 257). Other witnesses had testified about seeing someone running away, and one State's witness identified someone other than Larrence as the runner. (T2, at 708-709, 759, 780, 1029-1031 l`2 1035, 1044, 1126, 1132). Edvvards' phone was used, after Larrence's arrest, to text and threaten people. (12 319-321, 332, 725, 728) On May 20, 2013 the jury verdict was ready, but not yet announced. Before the jury announced the verdict, it was revealed that the preceding night the State discovered a statement by eDennis Cook, made to an Akron police officer when arrested one month after the killing, or about a year before disclosure. Gook claimed to have information implicating Jeremiah. (1"2, at 1288-1289). Cook also stated that he had found gloves and a hat belonging to Derek that he gave to the family. J2, at 1292). Counsel asked to question Cook, and/or for the Court to sua sponte declare a mistrial due to discovery violations. J2, at 1296-1297, 1304, 1308). Counsel presented to the trial court that they would have a different set of questions and concerns than the State's investigator. (7"2, at 1296-1297). The court took the metter under advisement. When the parties returned, counsel asked for a mistrial. (T2, at 1318-1319). The Court found the information was speculative, not competent, and inadmissible, and that the information would not likely affect the outcome of 4 the trial. (T2, at 1327-1329). The trial court denied counsel the ability to question Cook, over objeotion. (T2, at 1329). The verdict was Guilty of Count 2, Murder, and the Firearm Specification. Clay was sentenced to 15 years to life imprisonment for Murder, and 3 years imprisonment on the Firearm Specification. He was ordered to 3 years imprisonment for Count 3, H U®, concurrent with Count 2, Murder. Clay filed a written Motion for New Trial, which was denied. On June 12, 2013, the Journa! Entry of conviction was entered. On July 11, 2013, Notice of Appeal was filed to the Ninth District Court of Appeals. Upon review, that court affirmed the convictions. As relevant to this matter, the Court of Appeals expressed concern over the trial court's denial of Clay's request.
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