In re Muldrow

[Cite as In re Muldrow, 2011-Ohio-4310.]

Court of Claims of Ohio

Victims of Crime Division

The Ohio Judicial Center

65 South Front Street, Fourth Floor

Columbus, OH 43215

614.387.9860 or 1.800.824.8263

www.cco.state.oh.us

IN RE: YVAN L. MULDROW

YVAN L. MULDROW

Applicant

Case No. V2010-50302

Commissioners:

Karl C. Kerschner

Elizabeth Luper Schuster

ORDER OF A TWO-

COMMISSIONER PANEL

{1}On February 27, 2009, the applicant filed a reparations application as the

result of an assault which occurred on September 27, 2008. On October 19, 2009, the

Attorney General issued a finding of fact and decision denying the applicant’s claim

based upon his failure to fully cooperate with police as is required by R.C. 2743.60(C).

The Attorney General’s investigation revealed that the applicant agreed to meet with the

detective concerning the assault but failed to appear at the meeting. Furthermore, the

applicant did not return the detective’s phone messages. On November 12, 2009, the

applicant submitted a request for reconsideration. On March 10, 2010, the Attorney

General rendered a Final Decision finding no reason to modify the initial decision. On

April 2, 2010, the applicant filed a notice of appeal from the March 10, 2010 Final

Decision of the Attorney General. Hence, a hearing was held before commissioners

Ostry, Kerschner, and Schuster on November 17, 2010 at 11:10 A.M.

{2}The applicant and his attorney, Michael Falleur, appeared while Assistant

Attorney General Heidi James represented the state of Ohio.

{3}The sole issue in this case is whether the applicant fully cooperated with law

enforcement as required by R.C. 2743.60(C). The applicant characterized his failure

Case No. V2010-50302 - 2 - ORDER

as a miscommunication rather than a failure to cooperate. The Attorney General

believes the evidence will show that law enforcement made a substantial and diligent

effort to investigate the criminal incident but their efforts were thwarted by the

applicant’s failure to fully cooperate.

{4}Yvan Muldrow testified that after he was shot he went to The Ohio State

University Hospital East (OSU). He stated that he spoke to a detective while at the

hospital, and described what happened. After spending approximately six hours at the

hospital he was released and returned home. However, he continued to experience

discomfort and he returned to the hospital. It was discovered that bones in his wrist

were broken and he was transported from OSU East to OSU North and admitted. The

applicant stated he had one telephone conversation with the police during which an

officer arranged to meet him at his residence. The applicant testified he did not

receive any additional calls from the police. And that he has had no communication with

the police since the date of the telephone call.

{5}Upon cross-examination, the Attorney General had the witness read from the

police report. The applicant read the following: “#1 stated that he was inside the

location and he stated that he was talking to some guys that he did not know and they

started to argue. Victim #1 stated that he went outside of the location. Victim #1

stated that the same guys he was arguing with started to shoot at him as he ran inside

the bar.” The applicant related that he is listed as Victim #1 in the police report but he

averred that he never told the detective that he ran back into the bar. The Attorney

General marked the police report as State’s Exhibit A.

{6}The applicant related that he was at home when the detective contacted him

about setting up an interview to review a photo lineup. According to the applicant, the

interview was to take place at his residence, between the hours of 5 to 8 P.M. the day

after the shooting. The applicant asserts the detective never showed up at the

assigned time, and he never contacted the detective because he had no telephone

number to reach him.

Case No. V2010-50302 - 3 - ORDER

{7}The applicant stated he gave his cell phone number to the detective.

However, he has never attempted to contact the detective to reopen the case.

Whereupon, the applicant’s testimony was concluded.

{8}The Attorney General called Columbus Police Detective Paul Boldin to

testify. Detective Boldin stated he met with Mr. Muldrow at the hospital on the night of

the incident. Detective Boldin was accompanied by Detective Chapman who also

interviewed witnesses in the waiting room. Detective Boldin testified that upon meeting

with victims he typically provides them with his business card which contains contact

numbers. Detective Boldin testified he set up a follow-up interview with Mr. Muldrow

while in the examining room at the hospital. The followup interview was set for 11:00

P.M. the following day, September 28, 2008, at Mr. Muldrow’s residence. Detective

Boldin stated he arrived at the Muldrow residence at 11:00 P.M., the residence was

dark and no one answered the door. Upon receiving no response, he went back to the

police department. Subsequently, he placed two phone calls to the residence and

received no response. Detective Boldin related a followup interview was necessary

since the word “Atchison” was mentioned. Detective Boldin explained that in the city of

Columbus there is a street gang that refers to itself as Atchison and further investigation

could have revealed whether the street gang was involved in this incident.

Consequently, Detective Boldin produced a computer generated document which

contained pictures of gang members associated with this group and he wanted Mr.

Muldrow to view this page so a possible identification of the shooter could be made.

{9}The case remained open for seven weeks, but due to the failure of the

applicant to contact him the case was closed. Detective Boldin stated that Mr.

Muldrow’s unresponsiveness led to the closing of the case.

{10}Upon cross-examination, the officer testified based on his experience with

Franklin County Common Pleas Court, that unless there is a cooperative victim a case

could not be successfully prosecuted. He also testified that although there were other

Case No. V2010-50302 - 4 - ORDER

witnesses no followup was done. Whereupon, Detective Boldin’s testimony was

concluded.

{11}The applicant called rebuttal witness Andrew Muldrow, the applicant’s

father. Mr. Muldrow testified he was called to the hospital on the night of the shooting

and that he was at the hospital for approximately five hours until the applicant was

released. He stated that later the applicant returned to the OSU Hospital Campus

location.

{12}Andrew stated due to his disability he is at the residence everyday.

However, the only telephone at the home is a cell phone owned by the applicant. He

testified no police officer ever came to the door, made a telephone call, or left a

business card at the residence. Whereupon, Andrew Muldrow’s testimony was

concluded.

{13}Yvonne Muldrow, the applicant’s mother, was then called to testify. Ms.

Muldrow testified concerning the events which occurred on the night of the shooting.

She related that a detective called the home requesting to speak with Yvan, but he was

at OSU Hospital at the time. She was unaware of any police officer coming to the door

or any phone calls other than the initial call.

{14}On cross-examination, Ms. Muldrow stated an appointment was made to

meet her son on the day he was initially released from the hospital, but her son returned

to the hospital prior to the meeting time and furthermore, the officer never showed up at

the residence. Whereupon, the testimony of Yvonne Muldrow was concluded.

{15}In closing, the applicant characterized this case as a failure to

communicate, not a failure to cooperate. The applicant stated witnesses testified the

officer never came to the door, there was only one phone call, and there was no

followup by the Columbus Police Department. Furthermore, there was no followup with

other witnesses to this incident who were initially interviewed by Detective Chapman at

the hospital. The applicant asserts a lack of effort by the police caused the criminal

investigation to fail, not any action or inaction by the applicant.

Case No. V2010-50302 - 5 - ORDER

{16}The Attorney General urges this panel to follow the holdings in In re Colbert

III, V92-54501jud (6-29-95); In re Dray (1989), 61 Ohio Misc. 2d 417; and In re

Deardorff, V79-3236jud (9-4-81). These cases stand for the proposition that an action

or inaction on the part of the applicant which impedes or impairs a criminal investigation

is a failure to fully cooperate. Also, a crime is not only committed against the individual

but against society at large and, accordingly, a victim has an obligation to assist law

enforcement to get criminals off the streets.

{17}The Attorney General argued that although the applicant characterized this

situation as a failure to communicate, it questions, why the applicant did not contact

police after the first scheduled meeting did not occur. In addition, the Attorney General

questions why the applicant not return the detective’s phone call. The applicant’s

mother testified that the detective did call, but the applicant never attempted to return

the call. Accordingly, the applicant’s claim should be denied based on the applicant’s

failure to fully cooperate with police. Whereupon, the hearing was concluded.

{18}On April 6, 2011, the court issued a notice informing the parties that

pursuant to Rule 1.12(b) of the Rules of Professional Conduct, Commissioner Randi M.

Ostry recused herself from the case at bar and requested the parties file written

notification by May 6, 2011 as to whether they want the motion decided by the two

remaining panel commissioners who sat at the hearing; or they wanted a randomly

selected third commissioner to review the case file and hearing and reach a decision

together with the two sitting commissioners; or they want a rehearing of the matter.

{19}On April 18, 2011, the parties filed a joint notice wishing to proceed with

this matter based upon the decision of the two remaining panel of commissioners.

{20}R.C. 2743.60(C) states:

“(C) The attorney general, a panel of commissioners, or a judge of the court of

claims, upon a finding that the claimant or victim has not fully cooperated with

appropriate law enforcement agencies, may deny a claim or reconsider and

reduce an award of reparations.”

Case No. V2010-50302 - 6 - ORDER

{21}The Attorney General has the burden with respect to proof of

non-cooperation with law enforcement authorities [exclusionary criteria R.C. 2743.60].

In re Williams, V77-0739jud (3-26-79); and In re Brown, V78-3638jud (12-13-79).

{22}“As a general rule any action, inaction, or inexcusable neglect by an

applicant which substantially impedes or impairs investigation or prosecution

proceedings which have been initiated by the law enforcement authorities or which

would have been initiated but for the action, inaction, or inexcusable neglect, constitutes

a failure to fully cooperate as required by R.C. 2743.60(C).” In re Dray (1989), 61 Ohio

Misc. 2d 417, 419.

{23}The intent of the legislature in enacting the full cooperation provision was to

encourage victims to affirmatively aid the authorities in identifying and prosecuting

criminal offenders. A crime is an offense not only against the victim, but also against

the citizens of this state. Therefore, the people of Ohio, in compensating a victim for

injuries, have the right to expect the victim to aid the people in protecting themselves

against further crime which may possibly be committed by the same offender. In re

Bolster (May 2, 1979), Ct. of Claims No. V77-0964jud, unreported.

{24}We have viewed the intent of the legislature in enacting the full cooperation

provision was to encourage victims to affirmatively aid the authorities in the prosecution

of criminal offenders. In re Deardoff, V79-3236jud (9-4-81).

{25}Black’s Law Dictionary Sixth Edition (1990) defines preponderance of the

evidence as: “evidence which is of greater weight or more convincing than the evidence

which is offered in opposition to it; that is, evidence which as a whole shows that the

fact sought to be proved is more probable than not.”

{26}Black’s Law Dictionary Sixth Edition (1990) defines burden of proof as: “the

necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised

between the parties in a cause. The obligation of a party to establish by evidence a

requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”

Case No. V2010-50302 - 7 - ORDER

{27}The credibility of witnesses and the weight attributable to their testimony

are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,

39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to

believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),

176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548.

{28}From review of the case file and upon full and careful consideration given to

all the testimony presented and the arguments of the parties at the hearing, we find the

applicant’s claim should be denied pursuant to R.C. 2743.60(C). R.C. 2743.60(C)

requires that the applicant shall fully cooperate with law enforcement. In the case at

bar, we found the testimony of Detective Boldin to be credible. We find he followed

police protocol by interviewing the applicant at the hospital, setting up a home visit so

photographs could be viewed, placing two telephone calls when the home visit did not

transpire, and keeping the crime case open for seven weeks to allow the applicant the

opportunity to cooperate.

{29}On the other hand, the applicant presented three different versions of the

events surrounding the shooting, provided the police with no helpful information, never

returned a call from a Columbus Police officer, and never attempted to find out about

the status of the police investigation when the general telephone number to the

Columbus Police Department is easily obtained.

{30}Accordingly, we find the applicant did not fully cooperate with law

enforcement as is required by R.C. 2743.60(C) and his claim is denied. The Attorney

General’s Final Decision of March 10, 2010 is affirmed.

IT IS THEREFORE ORDERED THAT

{31}1) State’s Exhibit A is admitted into evidence;

{32}2) The March 10, 2010 decision of the Attorney General is AFFIRMED;

{33}3) The claim is DENIED and judgment is rendered for the state of Ohio;

{34}4) Costs are assumed by the court of claims victims of crime fund.

Case No. V2010-50302 - 8 - ORDER

_______________________________________

KARL C. KERSCHNER

Commissioner

_______________________________________

ELIZABETH LUPER SCHUSTER

Commissioner

ID #I:\VICTIMS\2010\50302\V2010-50302 Muldrow.wpd\DRB-tad

A copy of the foregoing was personally served upon the Attorney General and

sent by regular mail to Franklin County Prosecuting Attorney and to:

Filed 5-16-11

Jr. Vol. 2278, Pgs. 145-152

Sent to S.C. Reporter 8-26-11