Criminal appeal from Common Pleas Court T.C. NO. 10CR1126
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.
DENNIS D. JACKSON, #645-759, Lebanon Correctional Institute, Defendant-Appellant.
(¶ 1} Dennis D. Jackson appeals from a judgment of the Montgomery County Court of Common Pleas, which denied his motion for the preparation, at the State's expense, of a transcript of the pre-trial video deposition of Christopher Monturo, one of the State's witnesses.
I. Factual and Procedural History
(¶ 2} On the night of March 19, 2010, Antoine West was robbed and fatally shot in an apartment. Thomas Horn and Kimberly Carl, who were also in the apartment, were unharmed. An investigation by the police led the detectives to believe that Jackson had been the assailant, that Jackson shot West with a gun Jackson had borrowed from an acquaintance (Dion Sims), and that Jackson had taken a large sum of money from West. Jackson was subsequently indicted on three counts of murder, two counts of aggravated burglary, two counts of aggravated robbery, and two counts of felonious assault. All of the charges included a firearm specification.
(¶ 3} The case was set for trial on August 30, 2010. On that date, however, the State informed the court that it had been unable to locate Horn, who was a key witness. The State requested a continuance and asked the court to issue a material witness warrant for Horn. The trial court granted the State's requests and reset the trial for September 20, 2010.
(¶ 4} On September 2, 2010, the State moved for permission to take a video deposition of Christopher Monturo, firearm examiner for the Miami Valley Regional Crime Laboratory, who conducted tests, examinations, and comparisons of the bullets, firearms, and shell casings involved in Jackson's case. The prosecutor indicated that Monturo would be unavailable to testify during the week of September 20, because he would be an instructor at a training seminar offered by the Bureau of Alcohol, Tobacco, and Firearms in Maryland. The trial court granted the motion.
(¶ 5} Later the same day (September 2), the State filed a notice that Monturo's deposition was scheduled for 10:00 a.m. on September 7 in Courtroom 1 of the Montgomery County Court of Common Pleas. A copy of the notice of deposition was sent to defense counsel by facsimile and first-class mail, and the deposition proceeded as scheduled.
(¶ 6} Jackson's trial began on September 20, 2010. However, the trial ended in a mistrial after one of the State's witnesses, Dion Sims, revealed during his testimony that he had taken a lie detector test. Monturo's video deposition was never played at the trial.
(¶ 7} In December 2010, a second jury trial was held, during which the State presented 23 witnesses, including Monturo. The State did not play Monturo's prior video deposition because Monturo appeared and testified in person at the December 2010 trial.
(¶ 8} At the conclusion of the trial, the jury found Jackson guilty of all charges and specifications. Jackson filed a motion for a new trial and/or acquittal, which the trial court denied. At sentencing, several of the counts and all of the firearm specifications were merged, and Jackson received an aggregate prison term of 28 years to life. Jackson subsequently filed a timely appeal from his conviction, raising numerous assignments of error. In May 2012, we overruled each of the assignments of error and affirmed Jackson's conviction. State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335.
(¶ 9} On October 11, 2012, Jackson filed a motion for the preparation, at the State's expense, of a complete transcript of the video deposition of Christopher Monturo. Jackson asserted that the deposition was necessary to demonstrate a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and his actual innocence. Relying on State v. Lofton, 2d Dist. ...