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State v. Lewis

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 7, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602693-A

          ATTORNEY FOR APPELLANT Russell S. Bensing

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Daniel A. Cleary Brian D. Kraft Andrew T. Gatti Assistant County Prosecutors

          BEFORE: Blackmon, P.J., Laster Mays, J., and Jones, J.



         {¶1} Appellant Jamall Lewis ("Lewis") appeals his convictions for aggravated murder, murder, felonious assault, attempted murder, with firearm, repeat violent offender and gang specifications, and having a weapon while under disability. Lewis assigns the following errors for our review:

I. The trial court erred in entering a conviction which was against the manifest weight of the evidence.
II. The trial court erred in the admission of prior statements of the state's key witness.
III. The trial court erred in determining that the state's rationale for using a peremptory challenge on an African-American member of the jury panel was race-neutral.

         {¶2} Having reviewed the record and the pertinent law, we affirm the decision of the trial court.

         {¶3} In January 2016, Lewis, Ramel Lee ("Lee"), and Ky'Tric Shropshire ("Shropshire") were indicted in a multicount indictment in connection with the April 15, 2013 shooting that resulted in the death of Regina Neal ("Neal") and injuries to Charles Elder ("Elder"). As is relevant herein, Lewis was charged with aggravated murder, murder, attempted murder, three counts of felonious assault, all containing various one-year and three-year firearm specifications, criminal gang activity specifications, repeat violent offender specifications and a notice of a prior conviction, as well as discharging a firearm near prohibited premises, and having a weapon while under disability. Lewis pled not guilty and the matter proceeded to a jury trial on June 1, 2016.[1]

         {¶4} Elder testified that a number of his friends are members of ATM Jack Boyz gang, but that he is not in a gang. During the evening of April 15, 2013, while Elder and Neal were walking from Neal's home on East 134th Street near Caine Avenue, to a store near Beachwood Avenue, all within an area considered ATM Jack Boyz territory, they were suddenly fired upon. Elder was struck in the leg. Neal was shot in the head and abdomen, and died from her injuries.

         {¶5} Elder determined that the shots came from behind them. It was "kind of dark, " but when he looked back, he saw a man four or five houses away, wearing a "red hoody that was tied tight, you could only see the nose and the mouth of the person." As Elder's friends, "Diaz" and Jermaine Cottrell, a.k.a. "Mane, " arrived in response to the gunfire, Elder observed the man in the red hooded sweatshirt driving by in a small white car. Elder told police that the assailant was short, stocky, with a "big nose and big lips."

         {¶6} Elder testified that he "felt like [he] did recognize him" and he believed the assailant was Lewis, a J-Park gang member, who had a prior altercation with Elder's brother. Elder conceded that he may have not immediately given Lewis's name to police, but he testified that in the days or weeks that followed, he provided police with the name of Jamall Lewis as the person he "thought" was a suspect in the shooting. Additionally, Elder listed Lewis's name as a possible suspect on a Victim of Crime Compensation application. Shortly before trial, Elder identified Lewis in a photo array, then again in court.

         {¶7} Cleveland police subsequently learned the name of the owner of the vehicle that Elder observed immediately after the shooting, but they excluded him from involvement in the shooting. However, Cleveland Police Detective Tim Entenok ("Det. Entenok") testified that early the next morning, Elder informed police that Jamall Lewis was a suspect. (Tr. 111.) The police also recovered 16 fired bullet shell casings from the area, including .40 caliber, .45 caliber and 9 mm caliber shells, linked to three specific handguns. Using the National Integrated Ballistic Information Network ("NIBIN"), the police linked the .40 shell casings to a Taurus pistol that was seized during an arrest in Bedford Heights. However, the caliber of the pellet recovered from Neal's body could not be determined.

         {¶8} By March 2015, S.L. was being detained in the juvenile detention center, pending mandatory bindover for aggravated robbery with a firearm specification, and he decided to cooperate with law enforcement. Cleveland police detectives interviewed him twice before obtaining a proffer statement on March 6, 2015. S.L. stated that at the time of the proffer, detectives did not know that he would address this matter, and that he, and not the police, initiated discussion of this shooting. Before the proffer, the state had not offered him any plea agreement.

         {¶9} S.L. admitted that prior to his proffer, he was facing mandatory bindover and indictment for aggravated robbery with firearm and gang activity specifications, as well as a charge of having a weapon while under disability. As a result of his proffer, the state agreed that S.L. would serve ten months in a juvenile facility for his offenses, so "long as he came in and testified truthfully" against Lee, Shropshire, and Lewis.

         {¶10} S.L. testified that he is a member of the J-Park gang, and that ATM Jack Boyz gang members are their enemies. On the afternoon of April 15, 2013, while S.L. was walking past the Lee Harvard Plaza, ATM Jack Boyz gang member "Mane" shot at him. S.L. met with other J-Park members Lewis, Shropshire, and Lee at Shropshire's house, and told them about the shooting so that they "would fight or shoot at them" in retaliation. After nightfall, the group assembled in a silver SUV owned by a friend of Shropshire, then Lee drove them to East 134th Street between Caine Avenue and Beachwood Avenue, looking for Mane. Lewis was armed with a .40 caliber semiautomatic weapon, Shropshire had a .45 caliber semiautomatic weapon, and Lee and S.L. were unarmed. S.L. also testified that Lee was wearing a red hooded sweatshirt, Lewis was wearing a gray hooded sweatshirt, and Shropshire was wearing a blue jacket.

         {¶11} According to S.L., as they circled the block, they noticed a group of people standing outside. They parked a few streets over so they "could get ready to do something to the ATM Jack Boys." Lee parked about a block away and the J-Park members quickly discussed that Lewis and Shropshire would "[do the] shooting" and Lee and S.L. would remain in the car. Lewis and Shropshire then left the vehicle, each with a weapon. A few minutes later, S.L. heard ten to twenty gunshots, then Lewis and Shropshire ran back to the car with their weapons in their hands. Lee drove the group back to Shropshire's house. The next day, S.L. learned from social media that a man and woman were hit during the shooting. After that, Lewis and Shropshire got rid of the weapons. S.L. admitted that he later obtained the .45 firearm that was "going around" the neighborhood.

         {¶12} Cleveland Police Det. Colin Ginley ("Det. Ginley") testified that he interviewed S.L. twice before the proffer. According to Det. Ginley, the police do not "guarantee anything but we're going to give this information to the detectives and * * * see if it's truthful and see if it can be corroborated [then prosecutors will] consider it but nothing is guaranteed." If truthful testimony is then provided, the information provided in the proffer cannot be used against the maker of the statement.

         {¶13} Det. Ginley testified regarding the substance of S.L.'s proffer, including the earlier shooting and the planned retaliatory shooting. Det. Ginley also testified that he confirmed that there was a report of gunshots earlier in the day in the area of Lee and Harvard, and that S.L. correctly identified the caliber of the weapons used during the shooting later that night.

         {¶14} After the presentation of the state's case, the trial court denied Lewis's motion for acquittal. Lewis was subsequently acquitted of the charge of discharging a firearm near prohibited premises, but was convicted of all remaining charges and specifications. He was sentenced to 44 years-to-life imprisonment, with parole eligibility after 30 years.

         Weight of the Evidence Supporting a Conviction

         {¶15} In the first assigned error, Lewis argues that his conviction is against the manifest weight of the evidence because Elder and S.L. are not credible and there were discrepancies in their accounts of the shooting.

         {¶16} In examining a challenge to the manifest weight of the evidence supporting a conviction, this court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Thompkins,78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The discretionary power to ...

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