Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court No. 2016-CR-3361/2
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Attorney for
CHARLES W. SLICER, III, Atty. Reg. No. 0059927, Attorney for
1} Jamarko E. Walker, Jr. appeals from a July 31,
2017 judgment entry of conviction in the Montgomery County
Court of Common Pleas. He was found guilty by a jury on
multiple charges, including murder; the trial court also
found Walker guilty of having weapons while under disability.
Walker was sentenced to an aggregate term of 24 years to
life. We affirm the judgment of the trial court.
2} Walker was indicted on December 20, 2016, as
follows: Count 1 - murder (proximate result of aggravated
burglary), in violation of R.C. 2903.02(B); Count 2 -murder
(proximate result of aggravated robbery), in violation of
R.C. 2903.02(B); Count 3 -murder (proximate result of
felonious assault), in violation of R.C. 2903.02(B); Count 4
- murder (proximate result of improper discharge of a firearm
at or into a habitation), in violation of R.C. 2903.02(B).
These four counts were unclassified felonies, and each
included a firearm specification.
3} Additionally, Walker was indicted on: Count 5 -
aggravated burglary (deadly weapon), in violation of R.C.
2911.11(A)(2), a felony of the first degree; Counts 6-10
-aggravated robbery (deadly weapon), in violation of R.C.
2911.01(A)(1), felonies of the first degree; Counts 11-14 -
felonious assault (deadly weapon), in violation of R.C.
2903.11(A)(2), felonies of the second degree; Counts 15-18 -
felonious assault (serious physical harm), in violation of
R.C. 2903.11(A)(1), felonies of the second degree; Count 19 -
improper discharge of a firearm at or into a habitation, in
violation of R.C. 2923.161(A)(1), a felony of the second
degree; Count 20 - discharge of a firearm on or near
prohibited premises, in violation of R.C.
2923.162(A)(3)/(C)(4), a felony of the first degree. All of
these offenses included firearm specifications. Walker was
also charged with Count 21 - having weapons while under
disability (prior drug conviction), in violation of R.C.
2923.13(A)(3), a felony of the third degree.
4} Walker pled not guilty on December 22, 2016. On
January 5, 2017, he filed a motion to suppress identification
evidence. On February 17, 2017, the court held a hearing on
Walker's motion to suppress in conjunction with the
motion to suppress filed by Walker's co-defendant, Curtis
5} The evidence presented at the suppression hearing
was as follows:
6} Michael Debord testified that he was a detective
with the Dayton Police Department homicide unit, and he
assisted in the presentation of a photo lineup for a witness
in this case. Debord stated that he was not involved in the
investigation and "knew nothing about this case" at
the time. He testified that he was never shown photos of any
potential suspects. Debord stated that he and Detective
Nathan Via proceeded to the home of a witness with the
photospread provided to them. Debord testified that a female
answered the door; Debord showed the photospread to a male
witness, James Mitchell, in the dining room while Via and the
female were in another room. Debord identified the original
photospread of six photos that he showed to Mitchell (Exhibit
3). He stated that he read verbatim the instruction sheet
that was provided to him and initialed the sheet thereafter.
Debord stated that he wrote the date, October 27, 2016, the
time, 10:55 a.m., and the address of the home on the sheet,
and he signed the photospread "and then marked blind
because I was a blind administrator. I had no idea who the
individual was I was showing."
7} Debord testified that Mitchell "fairly
quickly selected a photograph" and said,
"That's Jamarko." Debord further testified that
Mitchell wrote on the document that he recognized the person
in "photo number 3" as the person who had robbed
him and held him down with AK-47 or machine gun. Mitchell
signed the packet and circled photo number 3; Debord and
Mitchell also signed the bottom of the "six pack
page." Debord he did not have the "key" to the
photospread, which identified the subjects in the photos, in
his possession at the time. Debord testified that he did
nothing to influence Mitchell's selection.
8} On cross-examination, Debord testified that he
had been unaware that Mitchell had previously been shown
photospreads when Debord presented the photospread; Debord
also did not know at that time if any arrests had been made
in the case. Debord testified that he and Via never discussed
9} Officer Kevin Phillips, a police officer assigned
to the homicide/assault unit of the Dayton Police Department,
testified that Detective Brad Daugherty asked him to prepare
a photospread for Walker. He identified Exhibit 3 as the
photospread he prepared. To prepare the photospread, Phillips
"accessed the computer program Justice Web,"
entered Jamarko Walker's name to get a picture of him,
and used "a dropdown tab on the program itself,
which gives you an option to create a photo line-up. I did
activate that." Phillips testified that "numerous
photographs come up within the same parameters" that fit
the description of Walker in the height, weight, description,
eye color, et cetera, and the computer "allows you to
look at the photographs and to select those additional
photographs who are like and similar to your suspect."
10} Phillips testified that, in the process of
creating the photospread, rows of photos appeared on the
screen, and he selected photos with similar backgrounds,
hairstyles, skin tone, and distance from the camera to
Walker's photo. After selecting five photos, Phillips
testified that the program "automatically
generated" a photospread with the six photographs in a
random order. Phillips printed the photospread, put it in a
manila folder, and gave it to Det. Daugherty. He testified
that he removed the "key" identifying the photos,
which "is maintained separately from the
photospread" in the case file. On cross-examination,
Phillips stated that he had more than 50 photos from which to
11} Detective Brad Daugherty of the Montgomery
County Sheriffs Office testified that he was assigned to the
Dayton-Montgomery County homicide task force and,
specifically, that he was assigned to investigate the
homicide of Brandon Lanier, which occurred on October 25,
2016. Daugherty testified that Curtis McShann was identified
as a suspect, and that another potential suspect had a first
name of "Damarko or Jamarko." Daugherty knew
McShann had a brother named Jamarko; he requested that
Detective Chad Jones prepare a photospread including Curtis
McShann another photospread including Jamarko McShann.
12} Daugherty testified that the McShann
photospreads were shown to Mitchell by Detective Rod Roberts
on October 26, 2016.  Daugherty testified that Mitchell
identified Curtis McShann in his photospread; however,
"although pages 1 and 2 were complete" and the
third page showed "what photo he identified," Det.
Roberts forgot to have Mitchell "circle the photo on the
4th page." As a result, Daugherty located Mitchell on
October 27, 2016, as Mitchell arrived home, and they talked
outside; Daugherty showed Mitchell the photospread again, and
said, "the detective indicated that you had identified a
photo, * * * but he didn't have you circle it."
Daugherty testified that, although Mitchell had previously
indicated to Det. Roberts that photo number 2 "sort of
look[ed] like the other guy," when Daugherty presented
the photospread, Mitchell said, "no, that's
definitely him." Mitchell "mentioned about * * *
him not being as sleepy and it was, like, lighting [sic]
outside," whereas Mitchell was previously shown the
photospread "in his kitchen where it was * * * a little
bit darker * * *." Daugherty testified that he observed
Mitchell circle and initial the photo of Curtis McShann.
Daugherty testified that Curtis McShann and Walker had been
arrested together the previous day, on October 26, 2016.
13} On cross-examination, when asked about the
potential names "Damarko or Jamarko," Daugherty
testified that Mitchell had stated "Damarko" as a
possible name of one of the suspects on the night of the
shooting, and then the victim's sister came to the Safety
Building and mentioned that her brother had been "with
Jamarko Walker earlier in the night when she talked to him on
the phone around 8:30."
14} On March 15, 2017, the court overruled the
motions to suppress. It reasoned:
* * * Detectives Jones and Phillip[s's] method of
creating the photospreads * * * and Detectives Roberts,
DeBorde [sic] and Daugherty's method of displaying them
to the witness Mitchell complied with the express
requirements of R.C. 2933.83(B). The Court finds that neither
Detective suggested to the witness that the suspect was
arrayed in the photospreads much less suggest[ed] whom the
witnesses should select from the six photos. The Court
find[s] Detective Daugherty's "second" showing
of the photospread for purposes of circling the photo was not
suggestive since the exhibit clearly showed the witness had
ID'd the suspect the day before.
The Defendants have not shown the photospreads were unduly
suggestive. * * *
15} The jury trial was held from May 22 through May
26, 2017. The evidence presented was as follows:
16} Officer Nathan Speelman of the Dayton Police
Department testified that, on October 25, 2016 at 11:43 p.m.,
he was dispatched to the area of Riverside Drive and Ryburn
Avenue on a reported shooting. As he proceeded down Ryburn,
Speelman observed a deceased male lying on the north side of
the curb in front of 425 Ryburn. The victim was subsequently
identified as Brandon Lanier. Speelman stated that he
observed "an abundance of shell casings" from
multiple weapons in the area and some broken auto glass.
Speelman testified that he observed bullet holes in the home
at 3325 Riverside Drive and proceeded there to look for more
victims. Upon entering the home, Speelman noted that some
rounds had entered the residence, and there was visible
damage from the bullets. Speelman identified photos of the
crime scene, the house on Riverside, and Lanier's body.
On cross-examination, Speelman indicated that it also
appeared that shooting occurred from inside 3325 Riverside.
17} Brittany Depp testified that she was
"[c]hilling with friends" at 3325 Riverside Drive
on the evening of October 25, 2016. At about 11:00 to 11:30
p.m., she left with two of her friends, "Tisa" and
"Mo"; as they approached their van, she felt a tap
on her shoulder. Depp testified that when she turned around,
she saw a gun and a "mask on the person's
face." Depp testified, "He told me, don't move,
don't reach for anything and then he asked me what I had
on me." Depp testified that she responded, "I got
my phone," and that she pointed to her pocket. She
stated that she was on the passenger side of the van with
Tisa, and it was very dark outside; she stated that the gun
was "big" and "long" and was not a
handgun. She stated that she had her hands up, and the
assailant retrieved her phone from her pocket. Depp stated
that "he just put his hand on my shoulder like don't
move. * * * And he walked off."
18} According to Depp, at that point, she saw two
other "dudes" coming around the front of the van;
these two individuals were dressed in black and she could not
see their faces. Depp heard "loud voices and then
gunshots." Depp testified that it sounded like the
gunshots "were coming from everywhere," and she
crawled under the van. From that vantage point, she "saw
car doors open" and "feet moving really quickly,
people jumping into cars, and * * * the car speed off, the
gunshots had stopped."
19} Depp testified that her hand was bleeding; at
the hospital a short time later, she learned that she also
had bullet fragments in her chest. Depp testified that she
still has bullet fragments in her body, and her hand had been
cut on broken glass. At trial, Depp stated that she still
"can't really use [her] shoulder as much as I used
to as far as lifting," and that she still had pain with
"too much movement," including from her job as a
home health aide.
20} On cross-examination, Depp stated that the two
people who came around the front of the van were dressed in
all black, and she could not see if they were wearing masks
or if they had guns. Depp testified that the car that drove
away from the shooting "went up Ryburn, away from
Riverside" and had been parked on the other side of the
street and facing the opposite direction from the van.
21} Keyanday Cunningham was at the home of Germel
Hughes on October 25, 2016, for "a little family
gathering." Some people were leaving the house, and
James Mitchell (known as "Mo") had left the house
with a couple of other people. Cunningham testified that he
walked toward the door to lock the storm door; the
"solid door was open; the storm door was closed."
As he did so, before he got to the door, "a person came
through the door pointing a gun." Cunningham stated that
the man had a black handgun. Cunningham heard the man
"say a certain person's name twice and after that he
backed out the screen door, the storm door and started
shooting through the door." Cunningham testified,
"I heard him yelling Dame's name, which was a person
that was in the room." Cunningham could not really see
the man's his face, because he wore a mask "on from
the top of his nose to the bottom." Cunningham testified
that there were four or five people in the room with him when
bullets came through "the front door, the walls and
everywhere." Cunningham "basically just took
cover"; he stated that he heard shots coming from more
than one gun. Cunningham testified that he "got up and
ran behind the bar" and that a bullet struck his lower
back. A neighbor took Cunningham to the hospital, where the
bullet was removed.
22} On cross-examination, Cunningham testified that
"Dame" is Damien Franklin, and that Franklin was
standing somewhere behind Cunningham in the living room when
the shooter entered the home. Cunningham estimated that he
was five feet away from the shooter when the shooter entered
the home, and he stated that he did not hear gunshots coming
from inside the home.
23} Germel Hughes testified that in October 2016 he
resided on the corner of Ryburn Avenue and Riverside Drive;
his home faced Ryburn Avenue but had a Riverside Drive
address. Hughes testified that he was familiar with Curtis
McShann. He testified that people began arriving at his home
on the night of the shooting around 9:00 p.m. Later that
evening, Hughes went into his bedroom to the left of the
living room; while he was in the bedroom, "a dark
skinned guy with a mask over his face and a handgun"
entered the house; Hughes did not know him. Hughes stated
that the weapon was an automatic.
24} Hughes testified that when the masked man was
inside the home, the man pulled the trigger of his handgun,
and it clicked but did not fire. At that point, the intruder
"walked back outside the house and the next thing you
know, bullets got to flying in the air, rapid fire."
Hughes stated that he believed multiple guns were being fired
and that the shooting lasted ten minutes. After the shooting
stopped, he went outside to make sure everybody was all
right. A woman named Tyesha was on the ground and had been
hit by a bullet in the back of her neck. Hughes testified
that he observed a dead body across the street, and it was
the same person who had entered his home with the gun. Hughes
identified photos of his home depicting a "bunch"
of bullet holes that were not there before the shooting.
25} On cross-examination, Hughes testified that,
after the shooting, he initially followed his friends to the
hospital but then turned around and returned to his home. The
police were at his home when he returned, and when he got out
of the vehicle, he was placed in a cruiser. Hughes stated
that he was taken to the police station and interviewed by
Det. Daugherty and other officers.
26} Letisa Gomez testified that she went to the
Riverside address on the night of the shooting with James
Mitchell. She stated that she, Mitchell, Tyesha Auster,
Brittany Depp and Shakeyla Taylor walked outside the house to
a van, and a man walked up to them, pulled a gun out, asked
them to get on the ground, and questioned them about how many
people were in the house and who they were. He also asked
Gomez where her money was, and she gave him what she could.
She stated that she "ended up on the ground in the
street, on the other side of the van next to
[Mitchell]," having been ordered around to the
27} Gomez testified that Mitchell had a longer gun
pressed on him, with the assailant asking him for his
"money and stuff." Gomez testified that she could
not see the assailant's faces because it "was just
too dark," and "when somebody got a gun to your
face, you don't look at [the] face." Gomez testified
that she could not tell if the men were wearing masks. She
stated that they took Mitchell's money. According to
Gomez, "somebody started shooting by the house and it
like triggered every shooter." When the shooting began,
Gomez stated that she rolled underneath a silver truck across
the street. Gomez testified that, after the shooting stopped,
she saw men running toward a dark car. After the car left the
scene, she observed a body by the curb on the same side as
the departing vehicle.
28} On cross-examination, Gomez testified that, at
the time of the confrontation, she was on the sidewalk
getting into the passenger side of the van, Depp was about to
get in behind her, and Mitchell was getting into the
driver's side. She stated that a man walked up to them
and pointed the gun at close range. She stated that she was
facing Riverside Drive and the front of the van. She
testified that Mitchell had gone around the front of the van
to the driver's side before she was confronted with the
gun. She stated that while she was laying in street,
"the shooting started, the shooter raised his gun from
me and towards the house and I rolled under the car to hide.
29} James Mitchell testified that he and Walker had
dated the same woman; at the time of the incident, Mitchell
knew Walker but did not know his full name and "was
actually calling him Damarko." Mitchell identified
Walker as that person. Mitchell testified that he went to
Hughes's house on the night of the shooting with Depp and
Gomez in his sister's van. They left the house later in
the evening, intending to go to night clubs. Mitchell
testified that, when he reached the driver's side door of
the van, "Jamarko and Curt pulled up with their machine
guns." When Mitchell first observed the men, they were
"[k]neeled down about my driver's door on the side
of the van where you couldn't see them." According
to Mitchell, "Jamarko told me to get down on the ground
and he then put his machine gun in my back and asked me who
all was in the house. How many people was in the house and if
[Hughes] was in there?" Mitchell testified that
"Curt" took money out of Mitchell's pockets.
30} Mitchell testified that the men's faces were
not covered and they "just had hoodies tied around their
head." He testified that he observed a third person go
into Hughes's home with his back toward Mitchell and with
what looked like a handgun. That person went inside "for
a second," came out, was "playing with the
gun," and then started shooting into the house. Mitchell
testified that Walker and Curt also began shooting, and
shells from their weapons fell around him. According to
Mitchell, Walker took the barrel of his gun out of
Mitchell's shoulder, raised the gun up, and started
shooting; "the van was just rocking" from being hit
by bullets. Mitchell testified that there was shooting from
behind him and in front of him, and "somebody had to be
shooting from the house." Mitchell then observed Walker
and Curt get into their vehicle on the opposite side of the
street and flee. He stated that he never saw the driver of
the vehicle. Mitchell testified that he "got everybody
in the van and took them to the hospital." When he was
subsequently interviewed, he told the police what happened
and gave them the names "Damarko and Curt."
31} Mitchell testified that he was shown two
photospreads early in the morning of October 26, 2016. On the
first one, he circled photo number 5 (State's Exhibit 92,
the photospread of Jamarko McShann), and on the second one,
he selected photo number 2 (State's Exhibit 93, the
photospread of Curtis McShann). Mitchell testified that he
was shown Exhibit 93 a second time when a detective returned
to his home with it, and that he circled photo number 2 at
that time. Mitchell testified that he was shown another
photospread on October 27 (Exhibit 94, Walker's
photospread), and that he selected photo 3, Walker's
photo, as "soon as they flipped the page." He
testified that he wrote on the photospread file that he
recognized Walker "as the person who robbed me and held
me down with an AK-47 or machine gun."
32} Mitchell identified a photo of a bruise on his
shoulder where Walker had pressed the barrel of the gun. He
described the wallet that was taken from him as a
"zombies wallet" that was "black with green
and red writing on it," and he identified photos of the
wallet, as well as his identification (State's Exhibits
33} On cross-examination, Mitchell stated that the
gun pressed into his shoulder "never left till the
shooting started," and he did not see anyone in the home
with a gun before he left. He stated that he did not observe
the driver's side door of the shooters' vehicle open.
He stated that Walker got into the front passenger side of
the vehicle and Curt got into the back passenger door.
34} Tyesha Auster testified that her boyfriend drove
her to Hughes's home on October 25, 2016, and that she
was only in the home for five minutes. She left the home at
the same time as Mitchell, Gomez, Depp, and Taylor. She
testified that while she was in front of the home, "some
people came out of nowhere, ran up on us, told us to get
down." She stated that the "person that came to me
told me to * * * just put my hands up on the van," and
the person who approached her had a handgun. She put her
hands on the passenger-side of the van and she was patted
down, but she did not have anything for the man to take.
Auster heard shooting and "got down for cover," but
was shot in the back of the neck and in the stomach. Auster
did not know how many people were on the other side of the
van, but she heard men giving similar commands to the people
on that side.
35} Regarding her injury, Auster testified that she
was hospitalized for two weeks and "had to get surgery
and get staples in my stomach." She still had a bullet
in her stomach, still had pain in her neck and stomach, and
was unable to work. Auster stated that she did not get a good
look at the person who approached her.
36} On cross-examination, Auster testified that the
handgun that she observed was black; she did not remember if
the person approaching her was wearing mask, and she
"just didn't see the face" due to darkness.
When asked if she later told detectives that the individual
was wearing a mask, she acknowledged that she had.
37} City of Dayton Police Officer Brian Updyke
testified that he was employed in the forensic services unit
of the department and was dispatched to the area of 3325
Riverside Drive on October 25, 2016, after being contacted by
Officer Steven Cline, the first evidence technician sent to
the scene. Updyke stated that, when he arrived, the scene was
secured, and "it was determined that due to the size of
the scene, [he] would start photographing." Updyke
identified State's Exhibits 2-20 as photos he took at the
scene, including photos of multiple bullet strikes to
Hughes's home and of Lanier's body in the street.
Once the photos were completed, evidence was tagged and
placed in the property room. Defense counsel stipulated to
the admission of State's Exhibits 95-153, which were
photos of a cell phone and numerous spent shell casings
recovered from the scene. Updyke testified that State's
Exhibit 62 was a bullet projectile removed from Keyanday
Cunningham at Miami Valley Hospital.
38} City of Dayton Police Officer Steven Cline
testified that he was an evidence technician and was the
first to arrive at the scene; he entered the home and
observed casings on the floor and bullet holes in the walls.
He identified photos taken by him, namely State's
39} Dr. Russell Uptegrove, a forensic pathologist at
the Montgomery County Coroner's Office, testified that he
performed an autopsy on Lanier on October 26, 2016. He
identified a photograph of the upper half of Lanier's
body depicting an exit wound from a bullet on the
"lateral side of the left chest" (State's
Exhibit 160). He further identified a photo depicting an
entrance wound "located in the lower right axillary
region or a little bit [below] the armpit region on the right
side of the body" (State's Exhibit 162). Uptegrove
testified to a reasonable degree of medical certainty that
Lanier's death was caused by "a perforating gunshot
wound to the chest."
40} The court read the following stipulation:
Number one, keeper of records. If called to testify, a record
custodian from T-Mobile Wireless Communications would testify
that the phone records contained in State's Exhibit
Number 158 are a complete copy of the records for Curtis
McShann, * * * from October 24, 2016 through October 26,
2016, which are kept in their entirety without alterations,
modifications or deletions.
The keeper of the records would also testify the records are
a fair and accurate copy of the original records which are
maintained by T-Mobile Wireless Communications as a business
record and those records are kept as a routine course of
41} Kevin Horan testified that he was a Special
Agent with the FBI and "part of a specialized unit out
of the FBI Headquarters called the CAST Team or the Cellular
Analysis Survey Team." The court designated Horan as an
expert in "historical cell phone record analysis, radio
frequency theory, cell phone tracking and cellular drive
testing." Horan testified that Det. Daugherty asked him
to look "at the records and determine where [Curtis
McShann's] phone was at or around the time of this
crime." Horan identified the report he generated in
response to Daugherty's request, and he testified that
the cell phone was in the area of the crime scene at the time
of the crime and then "migrated from Dayton down to
42} David House, a homicide detective for the City
of Dayton Police Department, testified that he responded to
the scene of the shooting to assist and then, later,
travelled down to Middletown with Det. Daugherty in an
attempt to locate the suspects. House testified that they had
identified two named suspects in the homicide and we were
tracking a cell phone to one of those suspects, which led
them to an apartment building in Middletown. House testified
that they were looking for Curtis McShann and Walker. They
obtained the name of LaJoyce Morris from McShann's cell
phone records, and a Middletown detective verified that she
lived in an apartment in the building. House testified that
he, Daugherty, Detectives Via and Schloss, and two Middletown
detectives proceeded to the apartment; they located Curtis
McShann and Jamarko Walker in the bathroom of the residence.
House testified that he retrieved a "zombie" wallet
from Walker's right front pants pocket, and he identified
State's Exhibits 88-90 as photographs of the wallet taken
by him containing Mitchell's identification.
43} House testified that a search warrant was
subsequently obtained for the apartment. He identified a
photo of a couch in the living room of the apartment, which
depicted a black semi-automatic handgun in the back left
corner of the cushion (State's Exhibit 168). He testified
that the gun was a Springfield XD .9 millimeter handgun.
House testified that, when he found the weapon, the magazine
was inserted, but there were no bullets in the chamber. He
further identified a photo of a zippered hooded sweatshirt
"which was originally kind of laying on top of the couch
where the handgun was discovered"; House interviewed
Walker later that day, and Walker indicated that he slept on
the couch where the weapon and hooded sweatshirt were found.
On cross-examination, when asked if the handgun was
fingerprinted, House indicated that "Walker had stated
that it was his firearm."
44} Chris Monturo, a forensic firearm and toolmark
examiner with the Miami Valley Regional Crime Laboratory,
testified that he reviewed multiple cartridge cases from the
scene to determine if they were fired from the same gun or
multiple guns; a firearm was also submitted to him for
testing to determine if it was the source of any of the
cartridge cases. Monturo testified that "there were
multiple cartridge cases, multiple calibers, including 7.62
by 39, a .40 cal, a .9 millimeter - there may have been a
45." Monturo testified that "the 7.62 by 39 is the
caliber. The most common firearm is the AK-47 and the SKS.
There are multiple other guns that fire but those are the
most common that we see." Monturo testified that when he
did his initial inventory of the 7.62 shell casings, there
"were multiple brands of ammunition."
45} Monturo testified that he examined the casings
with his comparison microscope. He stated that he found
unique characteristics on the 7.62 shell casings from the
scene of the shooting. He stated that several of the 7.62
shell casings from the scene were fired from the same weapon,
and that there were also other 7.62 shell casings from the
scene that were fired by a different weapon. Monturo
identified State's Exhibit 175 as the .9 millimeter
handgun from the scene that he analyzed. He testified that he
confirmed the operability of the weapon and collected the
shell casings and bullets from his test fires. He testified
that he compared the test-fired rounds to the rounds from the
scene microscopically. Monturo testified to a reasonable
degree of scientific certainty that the handgun fired the
shell casings that he marked "1-double-D through
1-double-PP." On cross-examination, Monturo testified
that he only analyzed one firearm in this matter. On redirect
examination, based upon all the shell casings that he
analyzed, Monturo testified that there were at least five
guns that were fired at the crime scene.
46} Det. Daugherty testified that, when he observed
Lanier's body at the scene, there was a black tee shirt
that "was tied, like the sleeves of the shirt were tied
in the back like it had been worn like a mask or
something." He described apprehending McShann and Walker
at the apartment in Middletown. He testified that both men
were in the bathroom with no lights, and that he ordered them
out and cuffed them on the bedroom floor.
47} Daugherty further testified that he interviewed
Walker at the Safety Building on October 26, 2016, after
going over the standard pre-interview form with him and each
of his rights. Daugherty testified that he advised Walker why
he was there and showed him a photo of Lanier. Daugherty
testified that Walker stated that Lanier was his cousin, and
Walker had seen Lanier two or three days earlier. Daugherty
testified that, when he asked Walker about Mitchell's
wallet being found on his person, Walker stated that Mitchell
was his friend, Mitchell had left his wallet and
identification in Walker's car the day before, and Walker
was planning to return it to Mitchell. When Daugherty told
Walker that Mitchell indicated his wallet had been taken in a
robbery and that other people had been shot, Walker denied
robbing anyone, then said that he had gotten into a fight
with Mitchell the day before in an apartment complex; Walker
claimed to have inadvertently picked up Mitchell's wallet
after the fight. Daugherty testified that Walker denied being
at the scene of the shooting and stated that he had spent
some time with his girlfriend at the time of the shooting.
Daugherty testified that, after Walker repeatedly changed his
story, Walker then said, "Let's start over. I'm
going to be honest with you now."
48} When Daugherty asked Walker if any of the 9mm
shell casings found at the scene would match the 9mm weapon
retrieved from the apartment, Walker told him, "it's
my gun but my people had it"; Daugherty testified that
Walker stated that he had given the gun to Lanier
"because his cousin had the beef with Mel at the house
there on Riverside and Ryburn." Walker denied firing the
49} A DVD of Daugherty's interview with Walker
was played for the jury and is part of the record in this
case. In the course of the interview, Walker told detectives
that he gave his 9mm handgun to Lanier at the scene of the
shooting, before Lanier got out of the car, that Walker
stayed in the vehicle, and that he retrieved the gun from
Lanier after he was shot.
50} At the conclusion of the recorded interview, the
prosecutor asked Det. Daugherty if the weapon was sent for
DNA analysis; Daugherty answered negatively. According to
Daugherty, detectives knew that Walker "didn't have
a handgun out at the scene," but instead had a rifle, so
DNA analysis "wouldn't have benefitted the
51} On cross-examination, the following exchange
[DEFENSE COUNSEL]. As part of your investigation, did you
speak to Curtis McShann?
Q. Were you made aware that Curtis McShann has a brother
named Jamarko McShann? A. Yes. * * *
Q. Detective, what, if any, investigation did you do in
reference to Jamarko McShann.
A. I interviewed him.
Q. * * * Was that interview audio and video recorded? A. It
was audio recorded.
Q. * * * That audio recording - - that was part of this
Q. Did you turn that audio recording over to the prosecutors?
A. I believe so.
[DEFENSE COUNSEL]: Your Honor, can I approach briefly?
THE COURT: Sure.
52} Defense counsel represented to the court at
sidebar that he was uncertain whether or not he received a
recording of the interview with Jamarko McShann, and he asked
for an opportunity to check his file. The following exchange
THE COURT: Well, here's the situation. I'll let you
finish the testimony of this witness. Let's assume that
you did receive it.
[DEFENSE COUNSEL]: Sure.
THE COURT: Then we'll make a record regarding that, as
well. And you will be able to recall this witness about
anything related to that matter. And if the court finds
there's anything particularly in there that would allow
or require you to subpoena someone else, we'll take the
time to get what we need done done. * * *
53} The following exchange occurred:
[DEFENSE COUNSEL]. At some point in your investigation, you
did come by information that * * * on the night of this
incident that Curtis was actually with his brother Jamarko;
[DAUGHERTY]. He * * * made statements that he was at his
Q. * * * Did you follow up on that?
A. Yeah, I talked to his brother about it.
54} Daugherty acknowledged that Auster told him in
the course of an interview at the hospital that four men
approached her with guns, and that the two on the passenger
side of the van had their faces covered.
55} At the conclusion of Daugherty's testimony,
outside the presence of the jury, it was determined that the
Jamarko McShann interview had not been included in discovery.
Daugherty represented that the recording of the 25-minute
interview was preserved on his phone. Daugherty indicated
that he would return to his office and "burn" a CD
of the interview for defense counsel. Defense counsel was to
be given time in the morning, after he reviewed the CD, to
speak to his client before the proceedings resumed.
56} The following day, outside of the presence of
the jury, the court indicated as follows regarding the
Jamarko McShann interview:
At the outset, as the Court, frankly, indicated to counsel,
this Court is very familiar with all the mechanics both from
the defense side and from the State of Ohio side that go into
a trial of this magnitude. And the Court notes that Det.
Daugherty was the one who brought this to our attention, so
therefore, obviously, him not turning over the audio
wasn't an intention[al] act of nondisclosure; however, it
happened. Stuff happens.
57} The court then asked defense counsel for
Walker's position on the issue, and the following
[DEFENSE COUNSEL]: * * * I think at the outset that Mr.
Walker has been prejudiced in several ways. One being that it
would've given myself an opportunity to do more
investigation. There's some references on this audio of
names that I've never heard before, not on the witness
list, not in any of our police reports, including what the
It would've given me an opportunity to at least go out
and look at those people. Again, people I had no idea until I
listened to the audio yesterday.
THE COURT: * * * Just so that I'm clear about that. There
were names given, but in what context were they given that it
could've been material to the case?
[DEFENSE COUNSEL]: Mr. Jamarko McShann stated that * * * on
the night of the incident, he went to so and so's house,
and he wasn't on the scene.
THE COURT: So names that would potentially establish an alibi
[DEFENSE COUNSEL]: For ...