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State v. Walker

Court of Appeals of Ohio, Second District, Montgomery

August 2, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JARMARKO E. WALKER, JR. Defendant-Appellant

          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 Plaintiff-Appellee

          CHARLES W. SLICER, III, Atty. Reg. No. 0059927, Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 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 McShann.

         {¶ 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 the case.

         {¶ 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 choose.

         {¶ 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. [1] 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 driver's side.

         {¶ 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 88-90).

         {¶ 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 Exhibits 21-61.

         {¶ 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 business.

         {¶ 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 Middletown."

         {¶ 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 weapon.

         {¶ 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 case."

         {¶ 51} On cross-examination, the following exchange occurred:

[DEFENSE COUNSEL]. As part of your investigation, did you speak to Curtis McShann?
[DAUGHERTY]. Yes.
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 investigation, correct?
A. Yes.
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 occurred:

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; didn't you?
[DAUGHERTY]. He * * * made statements that he was at his brother's apartment.
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 exchange occurred:

[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 State has.
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 ...

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