IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ) CASE NO. __________________________

)

Appellee ) On Appeal from the

) Mahoning County Court of Appeals

vs. ) Seventh Appellate District

)

MELVIN SHAW, ) Case No. 13 MA 137

)

Appellant )

)

MEMORANDUM IN SUPPORT OF CLAIMED JURISDICTION OF

APPELLANT MELVIN SHAW

J. GERALD INGRAM (#0007887)

7330 Market Street

Youngstown, Ohio 44512

(330) 758-2308

Fax No. (330) 758-8290

jgerald_ingram@yahoo.com

COUNSEL FOR DEFENDANT/APPELLANT, MELVIN SHAW

ASSISTANT PROSECUTING ATTORNEY RALPH M. RIVERA

MAHONING COUNTY PROSECUTOR’S OFFICE

21 W. Boardman Street

Youngstown, Ohio 44503

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF OHIO

Supreme Court of Ohio Clerk of Court - Filed January 29, 2015 - Case No. 2015-0160

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION……1

STATEMENT OF THE CASE…………….………………………………………………..2

STATEMENT OF FACTS…………………………………………………………………..4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW……………………………...6

Proposition of Law No. 1: Appellant’s Sixth Amendment right to the effective

assistance of counsel was violated; the trial court failed to follow Ohio Revised Code

§2953.21 and utilized the wrong legal standard when it denied Appellant’s Petition for

Postconviction Relief based on ineffective assistance of counsel without a hearing…6

CONCLUSION…………………………………………………………………………….12

CERTIFICATE OF SERVICE…………………………………………………………..…12

APPENDIX Appendix Page:

Opinion of the Mahoning County Court of Appeals, (December 19, 2014)……………….……..1

Judgment Entry of the Mahoning County Court of Appeals, (December 19, 2014)…...………..15

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EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION.

This cause presents substantial constitutional issues and is a case of public or great

general interest. Appellant was convicted of Aggravated Murder after a trial during which he did

not receive the effective assistance of counsel. He filed a Petition for Postconviction Relief

based on ineffective assistance of counsel which was denied by the trial court without a hearing.

In its Judgment Entry dated August 1, 2013, the trial court indicated that it in making its

determination to dismiss Appellant’s Petition it reviewed: his original pro se Petition, the

Amended Petition, the State’s Combined Answer and Motion for Summary Judgment,

Petitioner’s Memorandum in Opposition to Summary Judgment, and five (5) various motions for

extensions of time filed by the parties. Ohio Rev. Code. Ann. §2953.21 clearly states that to

determine whether there are substantive grounds for relief, the trial court shall consider, in

addition to the petition, the supporting affidavits, and the documentary evidence, all the files and

records pertaining to the proceedings against the Petitioner, including, but not limited to, the

indictment, the Court’s journal entries, the journalized records of the Clerk of the Court, and the

Court reporter’s transcript. The trial court herein failed to consider that which the statute

requires when making a determination of whether substantive grounds for relief exist.

Further, the trial court utilized multiple inappropriate legal standards when making its

determination. In its Judgment Entry dismissing Appellant’s Petition without a hearing, the

court stated that “Petitioner/Defendant has failed to show by clear and convincing evidence that

constitutional error(s) by defense counsel were the precipitating cause(s) of a guilty verdict of

Defendant for the charged offenses” and “no prima facie evidence of actual innocence has been

shown by Defendant.” The application of these legal standards by the trial court was in error.

To prevail on a claim for post-conviction relief, the petitioner must demonstrate a denial or

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infringement of his rights in the proceedings resulting in his conviction that rendered the

conviction void or voidable under the Ohio or United States Constitutions. State v. Jackson

(1980), 64 Ohio St.2d 107, 111. A post-conviction petitioner bears the initial burden of

demonstrating, via the petition, any supporting affidavits, and the trial record, that there are

“substantive grounds for relief”. Id. A post-conviction claim is subject to dismissal without a

hearing only if the petition fails to support the claim with evidential material setting forth

sufficient operative facts to demonstrate substantive grounds for relief. Id. Appellant’s Petition

and Amended Petition set forth sufficient material to meet Appellant’s initial burden of

demonstrating substantive grounds for relief.

Upon acceptance of jurisdiction, this court will have the opportunity to prevent the

injustice inherent in a conviction which resulted from the violation of Appellant’s constitutional

right the effective assistance of counsel.

STATEMENT OF THE CASE

On July 22, 2010 Appellant was charged with one count of Aggravated Murder in

violation of O.R.C. §2903.01(A)(F), a life felony, one count of Attempted Murder in violation of

O.R.C §2903.02(A)(D) and §2923.02(A), a felony of the first degree, one count of Felonious

Assault, in violation of O.R.C §2903.11(A)(1)(D), a felony of the second degree, one count of

Felonious Assault in violation of O.R.C §2903.11(A)(2)(D), a felony of the second degree, and

one count of Improperly Discharging a Firearm at or into a Habitation, in violation of O.R.C.

§2923.161(A)(1)(C), a felony of the second degree. All of the aforementioned counts contained

firearm specifications in violation of O.R.C. §2941.145(A).

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On February 17, 2012, a Motion to Suppress/Motion in Limine was filed in the trial

court, seeking to exclude as evidence the photo lineup identification of Appellant prior to trial.

An evidentiary hearing was held on May 7, 2012 on Appellant’s Motion to Suppress/Motion in

Limine with respect to the photo lineup identification. By entry dated May 8, 2012, the trial

court overruled Appellant’s Motion to Suppress/Motion in Limine.

The jury trial of this case began on May 8, 2012 and concluded on May 15, 2012 when

the jury returned verdicts of guilty to Aggravated Murder with a Firearm Specification,

Attempted Murder with a Firearm Specification, Felonious Assault in violation of O.R.C.

§2903.11(A)(1)(D) with a Firearm Specification, Felonious Assault in violation of O.R.C.

§2903.11(A)(2)(D) with a Firearm Specification, and Improperly Discharging a Firearm at or

into a Habitation with a Firearm Specification.

On May 21, 2012, the trial court sentenced Appellant on Count One to life with parole

after thirty (30) years with three (3) years on the Firearm Specification to be served prior to and

consecutive to Count One. On Count Two, ten (10) years to be served consecutive to Count One

and on the Firearm Specification, three (3) years to be served consecutive to the Firearm

Specification in Count One. On Count Three, eight (8) years to be served consecutive to the

sentences in Counts One and Two and on the Firearm Specification to Count Three, three (3)

years merged with the Firearm Specifications in Counts One and Two. On Count Four, eight (8)

years to be served concurrently with Count Three, and the Firearm Specification merged with the

Firearm Specification in Count Three. On Count Five, eight (8) years to be served consecutive

to Counts One, Two, Three, and Four and on the Firearm Specification three (3) years, which it

merged with the Firearm Specifications in Counts One, Two, Three, and Four.

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Appellant filed a direct appeal of the aforementioned convictions to the Seventh District

Court of Appeals. On October 31, 2013, the court of appeals affirmed the convictions, reversed

the trial court’s ruling as to merger of offenses for sentencing, and the matter was remanded for

resentencing. On December 16, 2013, Appellant filed a Notice of Appeal and Memorandum in

Support of Jurisdiction to this court with respect to the affirmed convictions. On March 12,

2014, this Court declined to accept jurisdiction with respect to the affirmed convictions.

On February 12, 2013, Appellant filed a Pro Se Petition for Postconviction Relief.

Counsel was appointed thereafter and on March 4, 2013, an Amended Petition to Vacate or Set

Aside Judgment of Conviction and Sentence was filed on Appellant’s behalf. On April 11, 2013

the State of Ohio filed a Combined Answer and Motion for Summary Judgment. A

Memorandum in Opposition to Summary Judgment was filed on Appellant’s behalf on July 19,

2013. On August 1, 2013, the trial court dismissed Appellant’s Petition without a hearing.

Appellant appealed the denial of his Petition for Postconviction Relief without a hearing to the

Seventh District Court of Appeals. On December 19, 2014, the Seventh District affirmed the

denial of the Petition for Postconviction Relief without a hearing. The instant Memorandum in

Support of Jurisdiction followed.

STATEMENT OF FACTS

On June 19, 2010, Tracee Banks and Jamel Turner were the victims of a shooting on

Manchester Drive in Youngstown, Ohio. Tracee Banks, Appellant’s girlfriend, died as a result

of the gunshot wounds she sustained that night. (Tr. P. 308). Jamel Turner, Banks’s friend,

suffered two gunshot wounds but survived the incident. (Tr. P. 581).

Youngstown Police officers recovered a cell phone at the crime scene near the body of

Tracee Banks. (Tr. P. 473). Youngstown Police Department Detective Sergeant John Patton

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reviewed the phone calls and text messages that he saw on the phone and questioned Appellant

about them in the early morning hours after the shooting. (See State’s Ex. 80). Text messages on

the decedent’s phone alleged to have been sent to her by Appellant were accidentally erased by

Detective Patton. (Tr.P. 490). Detective Patton acquired phone records from Sprint Mobile for

Banks’s phone, but he never acquired Appellant’s cell phone records. (Tr.P. 482). Detective

Patton testified at trial regarding the times and content of text messages received on the

decedent’s phone. (Tr. P. 473). The jury was permitted to hear the prejudicial content of the text

messages, attributed to Appellant, despite the fact that the texts were never authenticated and

were inadmissible hearsay. Defense counsel refused to stipulate to the admission of the Sprint

cell phone records for Banks’s phone. (Tr.P. 624). Further, defense counsel never cross-

examined Detective Patton regarding the fact that his testimony about the text messages and the

times thereof did not match the cell phone records. (See State’s Exhibit 106). During their

deliberations, the jury asked to see Banks’s cell phone records. (Tr. P. 724).

On July 9, 2010 Jamel Turner was called to the Youngstown Police Station and shown a

photo lineup by Detective Patton. Mr. Turner was shown photographs of six (6) different

individuals, including Appellant, but made no identification after reviewing all of the photos in

the array. (See State’s Exhibit 16). Mr. Turner was then asked if he wanted to view the array

again, and he responded affirmatively. (Motion to Suppress, State’s Ex. 1). Mr. Turner made no

identification after viewing the array a second time. (State’s Exhibit 16).

Four days later, on July 13, 2010, Mr. Turner was asked by Detective Patton to return to

the Youngstown Police Department for another viewing of the same individuals from the first

photo lineup. After viewing all of the photos again, on July 13, 2010, Mr. Turner did not

identify any of the individuals as the suspect from the shooting. (Tr. 518). Because still no

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identification had been made, Captain Rod Foley asked Mr. Turner if he wanted to look at the

photo array again. (May 7, 2012 Hearing on Motion to Suppress page 22). On the fourth

viewing of the same individuals, Mr. Turner indicated with respect to Appellant’s photograph,

“This could be him but I don’t know. He doesn’t have long hair anymore.” (May 7, 2012

Hearing on Motion to Suppress page 24).

Defense counsel filed a Motion to Suppress/ Motion in Limine on February 17, 2012 with

regard to the aforementioned identification. As the sole basis for the motion, trial counsel

asserted that the witness Jamel Turner was given Appellant’s name prior to the identification

process. That motion was overruled because no evidence was adduced indicating that the

witness had been given Appellant’s name. The substantive deviations from the eyewitness

identification procedures set forth in Ohio Rev. Code Ann. §2933.83 were not addressed by

counsel’s motion. As a result, the jury was permitted to hear impactful testimony regarding the

alleged identification of Appellant.

Appellant was convicted based upon an unduly suggestive photo array identification, and

unauthenticated and inadmissible text messages, neither of which were appropriately challenged

by defense counsel.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: Appellant’s Sixth Amendment right to the effective

assistance of counsel was violated; the trial court failed to follow Ohio Revised

Code §2953.21 and utilized the wrong legal standard when it denied Appellant’s

Petition for Postconviction Relief based on ineffective assistance of counsel

without a hearing.

O.R.C. Ann. §2953.21 governs petitions for post-conviction relief. It states, in pertinent part:

(C) Before granting a hearing on a petition filed under division (a) of this section

the Court shall determine whether there are substantive grounds for relief. In

making such a determination, the Court shall consider, in addition to the petition,

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the supporting affidavits, and the documentary evidence, all the files and records

pertaining to the proceedings against the Appellant, including, but not limited to,

the indictment, the Court’s journal entries, the journalized records of the Clerk of

the Court, and the Court reporter’s transcript.

(E) Unless the petition and the files and records of the case show the Appellant is

not entitled to relief, the Court shall proceed to a prompt hearing on the issues

even if a direct appeal of the case is pending.

The pivotal concern is whether there are substantive grounds for relief which would warrant a

hearing based upon the petition, the supporting affidavit and the files and records of the case.

State v. Jackson (1980), 64 Ohio St. 2d 107, 110.

In his Amended Petition to Vacate or Set Aside Judgment of Conviction and Sentence

filed March 4, 2013, Appellant set forth three causes of action based upon allegations of

ineffective assistance of trial counsel. Attached thereto Appellant provided documentary

evidence dehors the record which, in addition to the pleadings, files and records in this case

establish substantive grounds for relief.

FIRST CAUSE OF ACTION

In his first cause of action, Appellant alleged ineffective assistance of trial counsel based

upon counsel’s failure to investigate Appellant’s whereabouts at the time of the crime, his failure

to file a Notice of Alibi, and his failure to call Appellant to testify on his own behalf. That claim

is supported by the affidavit of Appellant, Melvin Shaw, attached to his Pro Se Petition filed on

February 12, 2013. Therein, Appellant stated that he told trial counsel numerous times that he

was elsewhere at the time of the murder but that defense counsel failed to investigate his

whereabouts. As early as the initial police interview at 3:00 a.m. on June 19, 2010, it was clear

that Appellant claimed to have been at home at the time of the occurrences set forth in the

indictment. (See State’s Ex. 80). Notwithstanding Appellant’s claim that he was elsewhere,

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defense counsel failed to file a Notice of Alibi. Appellant further averred that he requested to

testify on his own behalf several times, but that defense counsel would not allow him to do so.

(Affidavit of Melvin Shaw, paragraph 7).

In addition, as part of his first cause of action, Appellant alleged that trial counsel failed

to interview and call as a witness Krishawn Shaw who could have offered testimony as to the

Appellant’s whereabouts at the time in question. (See Affidavit of Krishawn Shaw, attached to

Amended Petition as Exhibit “A”). Defense counsel also failed to call Appellant’s mother who

could have testified he was at home at the time of these occurrences. (See Affidavit of Lisa

Robinson, attached to Amended Petition as Exhibit “B”).

Defense counsel failed to investigate Appellant’s whereabouts at the time of the crime

and refused to allow him to testify accordingly. Further, counsel failed to investigate the alibi

witness Krishawn Shaw and did not offer the testimony of Lisa Robinson. These failures amount

to ineffective assistance of counsel. Had defense counsel rendered effective representation,

Appellant would have testified to his whereabouts at the time of the crime. The alibi witnesses,

Krishawn Shaw and Lisa Robinson would have corroborated the testimony of Appellant.

Appellant herein met his initial burden to submit evidentiary documents containing

sufficient operative facts to demonstrate a lack of effective representation. Appellant’s affidavit,

along with the affidavits of Krishawn Shaw and Lisa Robinson evidenced facts sufficient to

warrant an evidentiary hearing in this case.

SECOND CAUSE OF ACTION

For his second cause of action, Appellant alleged ineffective assistance of counsel based

on counsel’s failure to stipulate to the admissibility of the Sprint cell phone records of Tracee

Banks as well as his failure to cross-examine Detective Patton thereon. During the trial of this

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case, Detective John Patton testified regarding text messages alleged to have been sent by

Appellant to the decedent, Tracee Banks before her death. (T.p. 473). Patton testified that these

inculpatory texts, which he claimed were accidently erased, were received by Banks at 12:33 and

12:44 a.m. on June 19, 2010. (T.p. 473). In his videotaped interview with Detective Patton,

which was played for the jury, Appellant admitted sending the text, “Are we still going

together?”, but denied that the text was sent at the time alleged by Patton. (See State’s Trial Ex.

80). He further indicated that the text was with regard to a planned trip to Cedar Point. Id.

Appellant vehemently denied sending the text alleged by Detective Patton to have been sent at

12:33 a.m. stating, “I hate you”. Detective Patton obtained Sprint cell phone records for Tracee

Banks. (Tr.P. 482). The records were identified by Detective Patton during his direct testimony.

(Tr. P. 490). Defense counsel refused to stipulate to the admission of the cell phone records, and

as a result, they were withdrawn as evidence by the State. Those phone records show no text

messages sent by Appellant to Banks at 12:33 or 12:44 a.m. on the night of the crime. (See

Amended Petition, Sprint cell phone records, Exhibit “C”). Consistent with Appellant’s

statement that he only sent one text, the phone records show a single text message from

Appellant to Banks in the hours preceding the shooting. Id.

Defense counsel failed to utilize the exculpatory phone records to cross-examine

Detective Patton and to make the jury aware of the aforementioned discrepancies. The jury

asked to see the phone records during their deliberations, but were unable to do so. (Tr. P. 724).

The cell phone records are entitled to great weight. At trial, the State of Ohio was willing to

stipulate to their authenticity. Their accuracy is unquestionable. Detective Patton’s testimony

was impactful. His testimony regarding the “I hate you” text was inflammatory and prejudicial.

The cell phone records confirmed only one text message at a completely different time than

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alleged by Detective Patton. Defense counsel should have introduced the phone records to

impeach that testimony but failed to do so.

Counsel’s oversight of the phone record discrepancies and their exclusion from his cross-

examination of Detective Patton were egregious. Defense counsel failed to ask any questions

whatsoever regarding the nature of the discrepancy, whether there was a solitary or multiple

discrepancies, or whether the discrepancies were only temporal in nature or failed to establish the

existence of the call or transmission. These omissions are underscored by the jury’s telling

request for production of the phone records.

Counsel’s representation herein fell below an objective standard of reasonableness.

Counsel failed to stipulate to the admissibility of cell phone records that were clearly

exculpatory. (Tr.P. 624). They were consequently not admitted as evidence and are dehors the

record. (See Amended Petition, Exhibit “C”). Counsel failed to cross-examine Detective Patton

and impeach his testimony about the text messages utilizing the cell phone records.

There is a reasonable probability that if defense counsel had impeached Detective

Patton’s testimony utilizing the cell phone records and allowed their admission as evidence, the

result of the proceeding would have been different. The utilization of the cell phone records by

defense counsel would also have undermined the testimony of Jamel Turner, a key state witness.

Turner testified regarding phone calls he allegedly overheard from Appellant to Tracee Banks

before the shooting. (Tr.P. 574). He also testified that Banks received a text message allegedly

from Appellant just prior to the shooting. (Tr.P. 578). The cell phone records refute those

allegations. (Amended Petition, Ex. “C”). The jury asked to see the cell phone records during

deliberations. (Tr. P. 724). There is a reasonable probability that but for counsel’s errors, the

result of the trial would have been different.

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With respect to the second cause of action, Appellant provided the trial court with

evidence dehors the record which established substantive grounds for relief.

THIRD CAUSE OF ACTION

Appellant’s third cause of action alleged that defense counsel was ineffective for failing

to challenge the substantial error committed by the Youngstown Police Department in the

administration of the photographic arrays to the witness Jamel Turner. A review of the February

17, 2012 Motion to Suppress/ Motion in Limine contained in the court file evidences the grounds

for Appellant’s claim. As the sole basis for the motion, trial counsel asserted that the witness

who viewed the photo arrays, Jamel Turner, was given Appellant’s name prior to the

identification process. Id. As a result, the trial court’s judgment entry dated May 8, 2012

indicates that Defendant’s Motion to Suppress/ Motion in Limine was overruled as to the witness

Jamel Turner because “Nothing was produced indicating that prior to the identification process

the witness had been given the name of ‘Melvin Shaw’ as the shooter.” Counsel’s failure to raise

errors with respect to the unduly suggestive and unreliable nature of the photo array

identification deprived Appellant of a fair trial. Appellant was prejudiced by counsel’s failure to

file an appropriate motion to suppress alleging statutory and constitutional violations in the

administration of the lineup.

Defense counsel’s failure to make the appropriate legal argument with respect to the

photo array identification procedures was ineffective assistance. As a result, the jury was able to

hear the unreliable identification testimony given by Jamel Turner. Appellant was prejudiced as

a result.

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CONCLUSION

This case is of great public interest because it involves a criminal defendant’s Sixth

Amendment right to the effective assistance of counsel. Appellant’s right to counsel was violated

and his Petition for Postconviction Relief asserting that violation was improperly denied. This

court should exercise jurisdiction to address the aforementioned issue and prevent the injustice

that it illustrates.

Respectfully submitted,

/s J. Gerald Ingram

J. GERALD INGRAM (#0007887)

ATTORNEY FOR APPELLANT

7330 MARKET STREET

YOUNGSTOWN, OHIO 44512

(330) 758-2308

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was sent by regular U.S. mail on the 28th

day of January, 2015 to Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 W. Boardman

Street, Youngstown, Ohio 44503.

/s J. Gerald Ingram

J. GERALD INGRAM (#0007887)

ATTORNEY FOR APPELLANT