Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, PRESIDING JUDGE.
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
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.
Having reviewed the record and the pertinent law, we affirm
the decision of the trial court.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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
of the Evidence Supporting a Conviction
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.
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 ...