C,( Tr`St of Collr-I SUPREME COURT of OHIO
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IN THE SUPREME COURT OF OHIO STATE OF OHIO, Case No. 2011-0618 Plaintiff-Appellee, vs. Fifth District Court of Appeals Case No. 2010-CA-0044 MAURICE KING, III, Defendant-Appellant. STATE OF OHIO'S MEMORANDUM IN OPPOSITION TO JURISDICTION JAMES J. MAYER, JR. PROSECUTING ATTORNEY RICHLAND COUNTY, OHIO BY: DANIEL J. BENOIT ERIC J. ALLEN Supreme Court No. 0086833 Supreme Court No. 0073384 Assistant Richland County Prosecutor 713 South Front 38 South Park Street Columbus, OH 43206 Mansfield, Ohio 44902 (614) 443-4840 (419) 774-5676 (614) 445-7873 (FAX) (419) 774-5589 (FAX) Attorney for Plaintiff-Appellee Attorney for Defendant-Appellant 99 C,(_tR`st OF COllR-i SUPREME COURT OF OHIO EXPLANATION OF WHY THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION This is not a case of public or great general interest. This case does not involve any substantial constitutional questions. Furthermore, it absolutely does not involve any unique facts, rulings or issues. This case represents an attempt by the Appellant, Maurice King, III, to rehash the facts presented within the post-conviction relief setting and reverse his rightful conviction based upon overwhelming evidence. In November, 2007, Tommy Thompson (hereinafter "Thompson") provided information to Det. Eric Bosko of the Mansfield Police Department that he could sell stolen property to the Appellant, a Bellville police officer. As a result, Thompson, at the direction of Det. Bosko, attempted to sell the Appellant stolen compound bows that he assured the Appellant were not from the Bellville area. The Appellant agreed to view the stolen items for purchase but the meeting was cancelled as the compound bows could not be acquired to complete the transaction. On January 8, 2008, Thompson called the Appellant with an offer to sell him stolen firearms. He arranged to meet the Appellant at his home on January 10, 2008 so the Appellant could view the weapons. On January 10, 2008, Thompson and James Soles (hereinafter "Soles") traveled to the Appellant's residence where the Appellant greeted them in the driveway and viewed four (4) allegedly stolen firearms that were in Thompson's vehicle. The Appellant was informed that the firearms were taken from a burglary in Cleveland, Ohio that Soles had committed and a purchase price of $700.00 for all of the firearms was negotiated. During the meeting, the Appellant made several phone calls on his cell phone and finally stated that the person he was talking to would buy half of the firearms, but would not be available with the money to complete the transaction until 2:00 a.m.; a subsequent meeting was set up for 2:00 a.m. at the Appellant's residence. At 4:31 p.m., the Appellant called his friend, Det. Keith Porch with the Metrich Drug Enforcement Taskforce. He advised Det. Porch that Thompson and Soles were attempting to sell him stolen weapons and had left to sell them in Mansfield. He provided Det. Porch with a vehicle description, but no license plate number; he also did not advise of the 2:00 a.m. meeting. Shortly thereafter, the Appellant called Thompson and tried to negotiate the purchase of only the handgun. Thompson stated that he would sell all the guns for $500. Following that call, the Appellant again called Det. Porch to advise that Thompson had reduced the asking price but told Det. Porch that he didn't know Thompson's whereabouts, even though the Appellant had been advised by Thompson that he was at home. Furthermore, the Appellant failed to provide Det. Porch with Thompson's cell phone number, as well as failing to advise him of his attempt to purchase the handgun. At 6:09 p.m., the Appellant called Thompson to advise that his buyer would not be back in town until January 31, 2008 and that he would call when he was available to complete the transaction. The Appellant failed to call Det. Porch with this information. At 6:18 p.m., the Appellant again called Thompson. In this call, he sounded irate, questioning whether Thompson had told Soles his name or that he is a cop. The Appellant stated that he would check Soles record on public access, but not on official access. In the following days, Thompson did not hear back from the Appellant, nor would the Appellant return any of Thompson's phone calls. The Appellant did not report any of these calls to Det. Porch. 2 The Appellant was indicted in May, 2008 and his first jury trial ended in a hung jury. The Appellant was tried a second time on December 11-18, 2008. At that trial, the State offered other acts testimony from Larry Davis, Jr. (hereinafter "Davis") to establish the Appellant's motive and intent and to rebut the defense's theory that the Appellant was conducting his own sting operation. Davis testified that he knew the Appellant through his dealings with the Appellant's father, Maurice King, II, and that he had previously sold stolen property, specifically electronics and power tools, to the Appellant. During his testimony, it was well-established that Davis was a convicted felon who had made a deal with the State of Ohio in exchange for his testimony. The details of that deal, in which Det. (now Capt.) Bosko would call the Millersburg Police Department where Davis had a pending case and report that he had cooperated with the State, were brought out by both the prosecution and the defense. At the conclusion of his second trial, the jury found the Appellant guilty of seven (7) counts within the indictment and the trial court sentenced the Appellant to 22 months in prison. Following his conviction, the Appellant filed a direct appeal with the Fifth District Court of Appeals. An opinion affirming both the conviction and sentence was issued on September 21, 2010. State v. King (2010), 2010 Ohio 4844, 2010 Ohio App. LEXIS 4092. In addition to his direct appeal, the Appellant filed a petition for post-conviction relief in the trial court on October 16, 2009. The only claims which the trial court found merited a hearing were that Davis committed perjury during the Appellant's trial and that he did so as a result of an undisclosed deal with the State to reduce his prison time on his Holmes County case. In support of those claims, the Appellant attached an affidavit from Zachariah Fretwell, who was incarcerated with Davis at the Belmont Correctional Institution, and a letter allegedly written by Davis to Zachariah Fretwell. 3 On March 8, 2010, the trial court issued a judgment entry overruling the Appellant's petition. In that entry, the trial court found that the Appellant failed to meet his burden of proof. The court noted that there was no credible evidence that Davis' testimony at trial was false or that the State of Ohio or any of its agents knowingly procured or offered false testimony. The court fiu-ther noted Davis' limited role in the Appellant's trial and the ample amount of evidence pointing to the Appellant's guilt. ARGUMENT OF THE PLAINTIFF-APPELLEE STATE OF OHIO RESPONSE TO ASSIGNMENT OF ERROR NO. I: THE TRIAL COURT'S DENIAL OF THE APPELLANT'S PETITION FOR POST-CONVICTION RELIEF WAS BASED ON COMPETENT, CREDIBLE EVIDENCE. Contrary to the Appellant's claim, the findings of fact which the trial court relied on in overruling his petition for post-conviction relief were based on competent, credible evidence. The trial court's judgment on the credibility of the witnesses was accurate and its ultimate denial of the Appellant's claims was proper based on the scant evidence that the defense offered at the hearing on the Appellant's petition. In his brief, the Appellant grossly mischaracterizes the strength of his case. In reality, a fair reading of the record of the hearing on his petition for post- conviction relief reveals that he offered uncorroborated testimony from unreliable witnesses, most of which was inadmissible under the rules of evidence. The fact is that the Appellant simply did not meet his burden of establishing a constitutional violation which would warrant a new trial under O.R.C. 2953.21. In this case, the trial court did not abuse its discretion in overruling the Appellant's petition for post-conviction relief. The Appellant failed to put forth credible, competent, material evidence that any conduct by Davis or the State of Ohio constituted "such a denial or 4 infringement of [his] rights as to render the judgment [in his case] void or voidable under the Ohio Constitution or the Constitution of the United States." O.R.C. § 2953.21(A)(1)(a); see, also, State v. Hand (5a' Dist), 2006 Ohio 2028, 2006 Ohio App. LEXIS 1855 at P22. In the Appellant's petition for post-conviction relief, the defense put forth a general assertion that Davis lied during the Appellant's trial. However, perjury alone does not establish a claim that is actionable under post-conviction relief, which requires a denial or infringement of a constitutional right. Perjury is only a constitutional due process violation when false testimony Cox (5`h Dist.), 2003 Ohio 5831, 2003 Ohio App. is offered knowingly by the State. State v. LEXIS 5184 at P95. Thus, the Appellant bootstrapped that claim onto an allegation that there was a secret deal between Capt. Bosko and Davis wherein Davis would receive a reduced prison sentence for his Holmes County case if he testified against the Appellant. The Appellant seemed to argue that because defense counsel was not notified of this deal, it was a violation of the (1963), 373 U.S.