Opposition Brief — John E. Drummond, Petitioner v. Ohio

No. 18-8516

In the Supreme Court of the United States

________________________________

JOHN DRUMMOND,

Petitioner,

v.

STATE OF OHIO,

Respondent.

__________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF OHIO

___________________________________

BRIEF IN OPPOSITION TO THE PETITION

FOR WRIT OF CERTIORARI

___________________________________

DAVID L. DOUGHTEN

(Ohio Reg. No. 0002847)

Counsel of Record

PAUL J. GAINS

(Ohio Reg. No. 0020323)

Mahoning County Prosecutor

4403 ST. CLAIR AVENUE

CLEVELAND, OH 44103

PH: (330) 361-1112

ddoughten@yahoo.com

RALPH M. RIVERA

(Ohio Reg. No. 0082063)

Assistant Prosecutor

Counsel of Record

COUNSEL FOR PETITIONER

MAHONING COUNTY

PROSECUTOR’S OFFICE

21 W. BOARDMAN ST., 6TH FL.

YOUNGSTOWN, OH 44503

PH: (330) 740-2330

FX: (330) 740-2008

pgains@mahoningcountyoh.gov

rrivera@mahoningcountyoh.gov

COUNSEL FOR RESPONDENT

TABLE OF CONTENTS

TABLE OF CONTENTS………………………………………………………………ii

TABLE OF AUTHORITIES…………………………………………………………iii

STATEMENT OF THE CASE AND FACTS……………………….………………1

REASONS FOR DENYING THE WRIT…..………………………………………12

I.

The Supreme Court of Ohio’s Decision in State v. Thomas,

Rendered After Drummond’s Direct Appeal, Does Not

Mandate a New Trial ……………………………………….……….12

II.

Ohio’s Post-Conviction Procedures Provide Petitioner and

Similarly-Situated Capital Defendants an Adequate

Forum to Litigate Constitutional Claims Beyond Their

Direct Appeal………………………………………………………….19

CONCLUSION………………………………………………………………………..22

ii

TABLE OF AUTHORITIES

CASES:

City of Columbus v. Taylor, 39 Ohio St.3d 162, 529 N.E.2d 1382 (1988)…….13

Corley v. United States, 556 U.S. 303, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009)

………….………………………………………………………………………………..14

Drummond v. Houk, 761 F.Supp.2d 638 (N.D. Ohio 2007)…………………...8, 9

Drummond v. Houk, 728 F.3d 520 (6th Cir., 2013)………………………………..9

Drummond v. Houk, 797 F.3d 400 (6th Cir., 2015)……………………………....10

Drummond v. Robinson, ___ S.Ct. ___, 2016 WL 542380 (Mem) (2016)……..10

Robinson v. Drummond, 134 S.Ct. 1934 (Mem), 188 L.Ed.2d 957 (2014)……..9

State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980)…………………….13

State v. Ahmed, 7th Dist. No. 05 BE 15, 2006 Ohio 7069……………………….20

State v. Bies, 1st Dist. No. C-020306, 2003 Ohio 442……………………………20

State v. Calhoun, 86 Ohio St.3d 279, 1999 Ohio 102, 714 N.E.2d 905……….19

State v. Cassano, 5th Dist. No. 12 CA 55, 2013 Ohio 1783……………………...20

State v. Crowder, 60 Ohio St.3d 151 (1991)………………………………………19

State v. Curry, 11th Dist. No. 92 A 1738, 1993 WL 256967 (June 30, 1993).15

State v. Drummond, 111 Ohio St.3d 14, 2006 Ohio 5084, 854 N.E.2d 1038

…………………………………………………….1, 2, 3, 4, 5, 6, 7, 11, 12, 16, 17, 18

State v. Drummond, 113 Ohio St.3d 1463, 864 N.E.2d 651 (2007)……………..7

State v. Drummond, 7th Dist. No. 05 MA 197, 2006 Ohio 7078………………7, 8

State v. Finnerty, 45 Ohio St.3d 104, 543 N.E.2d 1233 (1989)…………….......13

State v. Jackson, 7th Dist. No. 99 BA 9, 2001 Ohio 3222……………………….13

iii

State v. Jackson, 64 Ohio St. 2d 107, 413 N.E.2d 819 (1980)…………..……..21

State v. LaMar, 4th Dist. No. 98 CA 23, 2000 WL 297413 (Mar. 17, 2000)…..20

State v. Lawson, 12th Dist. No. CA2013-12-093, 2014 Ohio 3554……………..20

State v. Lumpkin, 2nd Dist. No. 90 CA 82, 1991 WL 216919 (Oct. 25, 1991)..15

State v. Moore, 40 Ohio St.3d 63, 531 N.E.2d 691 (1988)…………………..14, 18

State v. Murphy, 10th Dist. No. 00AP-233, 2000 WL 1877526

(Dec. 26, 2000)……………………………………………………………………..….20

State v. Oddi, 5th Dist. No. 02CAA01005, 2002 Ohio 5926…………………..…15

State v. Steffen, 70 Ohio St.3d 399 (1994)………………………………………...19

State v. Tapscott, 2012 Ohio 4213, 978 N.E.2d 210 (7th Dist.)…………………15

State v. Thomas, 152 Ohio St.3d 15, 2017 Ohio 8011, 92 N.E.3d 821

…………………………………………………………………………11, 12, 15, 17, 18

State v. Wilks, 2018 Ohio 1562, 114 N.E.3d 1092……………….……….....17, 18

State v. Zich, 6th Dist. No. L-15-1263, 2017 Ohio 414………………..…………20

United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)…...15

Young v. Ragen, 337 U.S. 235 (1949)………………………………………………19

STATUTES:

Ohio Rev. Code 2953.21(A)(1)(a)…………………………………………………...20

Ohio Rev. Code 2953.21(D)………………………………………………………....20

RULES:

Ohio Evid.R. 401…………………………………………….……………..…………14

Ohio Evid.R. 402…………………………………………….……………………13, 14

Fed.R.Evid. 402…………………………………………………………………..13, 14

iv

STATEMENT OF THE CASE

Trial Phase

On April 3, 2003, the Mahoning County Grand Jury indicted

Defendant-Appellant John E. Drummond was indicted as follows:

Count

One, Aggravated Murder, in violation of R.C. 2903.01(A), with two

accompanying Capital Specifications, in violation of R.C. 2929.04(A)(5) and

R.C. 2929.04(A)(9); Count Two, Aggravated Murder, in violation of R.C.

2903.01(C), with two accompanying Capital Specifications, in violation of

R.C. 2929.04(A)(5) and R.C. 2929.04(A)(9); Counts Three and Four,

Attempted Murder, in violation of R.C. 2923.02(A) and R.C. 2903.02(A),

felonies of the first degree; Counts Five and Six, Felonious Assault, in

violation of R.C. 2903.11(A), felonies of the second degree; Count Seven,

Improperly Discharging a Firearm at or into a Habitation, in violation of R.C.

2923.161(A)(1), a felony of the second degree; and Count Eight, Having a

Weapon While Under Disability, in violation of R.C. 2923.13(A), a felony of

the third degree. Each count had an accompanying Firearm Specification, in

violation of R.C. 2941.145(A). The case was assigned number 2003 CR 358 in

the Mahoning County Common Pleas Court. See State v. Drummond, 111

Ohio St.3d 14, 2006 Ohio 5084, 854 N.E.2d 1038.

The Supreme Court of Ohio previously summarized the facts that were

presented at Defendant’s trial:

The state presented several witnesses who testified at

Drummond's trial that Drummond and Brett Schroeder

1

were members of the Lincoln Knolls Crips gang and

considered themselves “original gangsters,” or “OGs.”

Schroeder died from gunshot wounds in May 1998 in a

death ruled a homicide. The perpetrator was convicted

and is serving time in prison.

The Dent family, Jiyen Dent Sr., Latoya Butler, his

girlfriend, and their son, Jiyen Dent Jr., had moved into a

home at 74 Rutledge Drive in Youngstown around March

20, 1998. Dent did not know Drummond, Gilliam, or

Schroeder.

In the early evening of the shooting, a few days after

Dent moved in, ten to 20 people gathered for a party

outside the home of Gail Miller on Duncan Avenue in

Youngstown to drink and listen to music. Sometime that

evening, Drummond and Gilliam arrived.

During the party, James “Cricket” Rozenblad

overheard Drummond, Gilliam, and Andre Bryant talking

about a “guy moving in in [their] neighborhood [who]

could have had something to do with the death of Brett

Schroeder.” Yaraldean Thomas also saw Drummond and

Gilliam whispering to one another and heard Drummond

say “It's on” after they finished talking.

Drummond left the party and returned a short time

later with an assault rifle. He and Gilliam then got into

Gilliam's burgundy Chevrolet Monte Carlo and drove

down

Duncan

Lane

toward

Rutledge

Drive.

Approximately five to 15 minutes later, 11 shots were

fired from an assault rifle into the Dent home. Within a

few seconds, a 9 mm round was fired into the Dent home,

and five 9 mm rounds were fired into the home of Diane

Patrick, the Dents' next-door neighbor, who lived at 76

Rutledge Drive.

At around 11:25 p.m. that evening, Dent was in the

living room watching a movie, Butler was in the kitchen,

and Jiyen was in a baby swing in the living room. While

watching TV, Dent heard gunshots and saw “bullets start

coming through the windows and the walls.” He then

picked up the baby and ran down the hallway towards the

bathroom. Dent fell in the hallway and noticed that Jiyen

2

had been shot in the head. After making sure that his

girlfriend was safe, Dent called 911.

That same night, Rebecca Perez, who lived nearby on

Rutledge Drive, heard two series of shots when taking her

trash outside. She saw shots coming from the corner of

Duncan Lane and Rutledge Drive and noticed “a shadow

up the street.” Shortly thereafter, Perez saw a maroon car

pull out of the driveway next to 65 Rutledge Drive, where

Drummond lived. The car then drove without any

headlights on past the Perez home. Approximately half an

hour to 45 minutes later, Perez noticed that the maroon

car had returned to the driveway next to Drummond's

home. At trial, Perez identified Gilliam's Monte Carlo as

the car she had seen that night.

Leonard Schroeder, the brother of Brett Schroeder,

who had been killed nearly five years before, lived near

Rutledge Drive. On the evening of March 24, Leonard

heard a series of gunshots. Shortly afterwards,

Drummond and Gilliam arrived at Leonard's home in

Gilliam's car. Leonard asked Drummond about the shots,

and Drummond said that he “didn't know who it is. It was

probably Cricket and Wany.” Gilliam said only that “some

fools are shooting over there.”

Arriving police and paramedics found that Jiyen had

been killed. Investigators secured the scene and began

their investigation. Officer Kerry Wigley walked down

Rutledge Drive, looking for shell casings, and noticed two

men in the dark, leaning against a car parked in a

driveway. Wigley intercepted the two men, asked for their

identification, and identified them as Drummond and

Gilliam.

During the investigation, Patrolman David Wilson

found ten cartridge casings from assault-rifle ammunition

lying between two houses that were across the street and

several houses away from the Dent home on Rutledge

Drive. The police also found six 9 mm shell casings at the

corner of Rutledge Drive and Duncan Lane.

Investigators found that someone had fired 11 bullets

from an assault rifle into the Dent home. Three bullets

3

had hit the house near the front door, three others had hit

elsewhere on the front of the house, and five bullets had

hit the west side of the house where the bedrooms were

located. A 9 mm bullet hole was also found on the east

side of the Dent home.

Ed Carlini, an Ohio Bureau of Criminal Investigation

(“BCI”) agent, examined the trajectory of the bullets

entering the Dent home. Carlini determined that the

shots had originated from a location on Rutledge Drive

where ten shell casings were found. He also determined

that the 9 mm shot that hit the Dent home originated

from east of the house.

Carlini and Officer Anthony Marzullo, a crime lab

technician, examined bullet holes inside the Dent home.

There were five bullet holes inside the southwest bedroom

and three bullet holes inside the northwest bedroom. One

bullet entered the living room, fragmented, and was found

in the far living-room wall. A 9 mm slug was found in the

kitchen wall. Marzullo recovered other bullet fragments

and copper-jacketed slugs inside the house. He also

recovered bullet fragments and bits of blue plastic that

had been removed from the victim during the autopsy.

Andrew Chappell, a ballistics expert, compared the ten

7.62 x 39 mm assault-rifle cartridge casings and

concluded that they could have been fired from the same

firearm. He stated that an assault rifle such as an AK–47

semiautomatic rifle would have fired this ammunition.

Chappell examined the six 9 mm cartridge casings and

concluded that each of the casings had been fired from the

same firearm. Chappell also examined the slugs and

bullet fragments obtained from the Dent home and

identified one 9 mm Luger bullet, a 7.62 mm bullet, a 7.62

mm bullet jacket fragment, a piece of metal, and a couple

of lead fragments. He determined that the 7.62 bullet and

the 7.62 bullet jacket fragment were fired from the same

weapon, but he was unable to make any comparisons with

the lead fragment and the blue plastic recovered from the

victim at the autopsy.

As the murder investigation progressed, Drummond

and Gilliam were identified as suspects. On March 27,

4

2003, the police searched Drummond's Rutledge Drive

residence and arrested him. When he was arrested,

Drummond told police “that he had nothing to do with the

shooting of the baby. He was on Duncan Lane that night

and heard gunshots and he walked to Rutledge to see

what had happened.” During the search, the police seized

a drum containing 75 rounds of 7.62 x 39 mm

ammunition, three boxes containing 46 rounds of 7.62 x

39 mm ammunition, a single round of 7.62 x 39 mm

ammunition, an empty AK magazine, a Taurus 9 mm

handgun with no barrel, a bulletproof vest, and several

rounds of 9 mm, .45 caliber, and .357 caliber ammunition.

During the search of Drummond's residence, police

also seized an album of gang photographs of the Lincoln

Knolls Crips. Drummond appears in many photographs.

The album also contained a number of photographs and

tributes to Brett Schroeder and other members of the

gang who had been killed. One page of the album shows

two photographs of Drummond with a cake that says,

“RIP Brett.” Another photograph shows tattoos of guns,

tombstones, and other symbols on Drummond's back. The

tombstone tattoo contains Schroeder's name and names of

Drummond's other dead friends.

Dr. Dorothy Dean, Deputy Coroner for Franklin

County, conducted the autopsy of three-month-old Jiyen.

Dean testified that Jiyen died from a gunshot wound to

the head. The entry wound was on the back of Jiyen's

head, and the exit wound was just below the left eye.

Between March and August 2003, Chauncey Walker

and Drummond were incarcerated in the same cellblock

at the Mahoning County jail. Drummond talked to Walker

about his case almost “[e]very single day.” Walker

testified, “[A]s soon as he'd come out of his cell, he'd come

directly to my cell * * * [and] he'd be talking to me about

that case.” As to what happened on March 24, Drummond

told Walker that he “was sitting in his sister['s] driveway

and Wayne pulled up, and * * * he asked Wayne to take

him to go get a gun somewhere. * * * So Wayne gave him

a ride to go get the gun. * * * [W]hen Wayne backed up in

the driveway after he * * * got the gun, the dude, Jiyen,

supposed to have stayed * * * a couple houses up from his

5

sister or right around the corner, * * * [and] he said he got

out the car and fired some shots at the house and then he

got back in the car and pulled off.” Drummond told

Walker that “he intended to hurt whoever the bullet hit,”

but “he didn't intend to kill no baby.”

Nathaniel Morris was another inmate in the same

cellblock with Drummond and Walker. During May 2003,

Morris overheard Drummond tell Walker that “he didn't

meant [sic] to kill the baby; he was trying to get at

somebody else * * *.” On more than one occasion, Morris

overheard Drummond asking Walker, “[Y]ou think I'm

going to get convicted on this, you think they have

anything on me, stuff like that.”

Drummond called five witnesses. William Harris, an

inmate at the Mahoning County jail, was incarcerated in

a cell adjacent to Walker's. He said that in March 2003,

Walker told Harris that “he knew how [Walker] could get

outta of jail. [Walker] would have to go over and talk to

the prosecutor and say that John [Drummond] admitted

to his part in the case.” Harris also said that Walker's cell

was some distance from Drummond's cell and that

Drummond and Walker “couldn't talk unless they yelled

across the range.” On another occasion, Harris saw

Walker enter Drummond's cell after he “told the deputy

he was gonna get a magazine, and he come out with

[Drummond's] discovery pack [i.e., court papers].”

Elisa Rodriguez, who lived next door to Drummond on

Rutledge Drive, testified that on the evening of March 24,

she was at home with her eight-year-old son. Rodriguez

observed Gilliam's car parked in front of her house. While

in her back bedroom, she heard voices, looked into the

back yard, and saw Gilliam and a “tall, skinny guy.” She

saw them walk towards the front of her home and then

heard shooting. Rodriguez and her son went to the living

room, looked out the front window, and saw Gilliam

standing in her neighbor's front yard shooting a “big gun”

at a house across the street. Rodriguez said that after the

shooting stopped, Gilliam got into his car alone and fled

the scene. Rodriguez then saw Jawany, who was a “tall,

skinny black man” from the neighborhood, running down

Rutledge Drive shooting a gun. She next said that she

6

heard Jawany firing his last gunshot in front of the Dent

home and saw him flee down an alleyway between two

houses. Rodriguez testified that she did not see

Drummond in the area when the gunshots were fired.

Rodriguez's son, Jimmy Figuera, testified that on that

evening, he heard gunshots while at home with his

mother. He looked out the front window and saw Wayne

shooting a “big” gun. He then saw “Wayne comin' down

the street shootin' from Duncan.” Jimmy did not see

Drummond, whom he referred to as “Uncle J,” when the

shootings took place.

Drummond, 111 Ohio St.3d at 15-19. Defendant was convicted as charged

(Count Eight was later dismissed) and sentenced to death. See id. at 19.

Direct Appeal

Defendant filed his direct appeal of right with the Supreme Court of

Ohio, and on October 18, 2006, the Court affirmed Defendant’s convictions

and death sentence. See id. at 52. On April 18, 2007, the Court denied

Defendant’s Application for Reopening. See State v. Drummond, 113 Ohio

St.3d 1463, 864 N.E.2d 651 (2007).

Postconviction Proceedings

On January 28, 2005, Defendant filed a petition for postconviction

relief pursuant to R.C. 2953.21 in the Mahoning County Common Pleas

Court. See State v. Drummond, 7th Dist. No. 05 MA 197, 2006 Ohio 7078, ¶

10. On September 29, 2005, the trial court granted the State’s motion for

summary judgment. See id. at ¶ 11.

The Seventh District Court of Appeals affirmed the trial court’s denial

of Defendant’s petition for postconviction relief on December 20, 2006. See id.

7

at ¶ 128. The Supreme Court of Ohio then declined jurisdiction on May 16,

2007. Defendant did not appeal the denial to this Court. This completed

Defendant’s state appeals.

Federal Habeas Corpus Proceedings

On June 15, 2007, Defendant filed a notice of intent to file a habeas

corpus petition, and on May 5, 2007, Defendant filed an Amended Petition for

a Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 in the United States

District Court for the Northern District of Ohio in which he raised thirteen

claims for relief. See Drummond v. Houk, 761 F.Supp.2d 638, 658 (N.D. Ohio

2007).

On January 26, 2010, the District Court “issued an Order to Show

Cause (ECF No. 61) wherein the Court required Respondent to show cause

why the Court should not hold an evidentiary hearing on Drummond’s claim

of ineffective assistance of counsel during the mitigation, or penalty, phase of

the trial.” Id. at 659-660.

In Defendant’s first ground for relief, he argued that “his Sixth

Amendment right to a public trial was violated when the trial court closed

the courtroom for portions of his trial on February 4 and February 5.” Id. at

665. In short, the District Court found that “the trial court’s partial closure of

the courtroom on February 4 resulted in structural error and, therefore,

Drummond’s Sixth Amendment right to a public trial was violated.

8

Accordingly, Drummond’s first ground for relief is granted in part.” Id. at

680.

The District Court then issued a Certificate of Appealability pursuant

to 28 U.S.C. 2253(c), 28 U.S.C. 1915(a)(3), and Fed. R.App. P. 22(b)

for

Defendant’s second ground for relief—Defendant’s limited cross-examination

of James Rozenblad. See id. at 716-717.

In conclusion, the District Court granted Defendant’s petition for writ

of habeas corpus in-part and ordered a new trial after it found “meritorious

that portion of Ground One that asserts a denial of Drummond’s Sixth

Amendment right to a public trial because of the partial closure of his trial on

February 4, 2004[.]” Id. at 718.

Following the District Court’s granting of Defendant’s petition for writ

of habeas corpus in-part, both parties appealed. See Drummond v. Houk, 728

F.3d 520 (6th Cir., 2013). The Sixth Circuit affirmed the District Court’s

granting of Defendant’s petition for writ of habeas corpus in-part and order

for a new trial. See id. at 534.

On April 28, 2014, this Court granted the warden’s petition for writ of

certiorari to the United States Court of Appeals for the Sixth Circuit, and

remanded the case to the United States Court of Appeals for the Sixth Circuit

for further consideration in light of White v. Woodall, 572 U.S. ___, 134 S.Ct.

1697, 188 L.Ed.2d 698 (2014). See Robinson v. Drummond, 134 S.Ct. 1934

(Mem), 188 L.Ed.2d 957, 82 USLW 3262 (2014).

9

Upon remand, the Sixth Circuit reversed the District Court’s granting

of Defendant’s petition for writ of habeas corpus in-part and order for a new

trial after it concluded, in light of White v. Woodall, 572 U.S. ___, 134 S.Ct.

1697, 188 L.Ed.2d 698 (2014), that the partial closure of courtroom during

the testimony of prosecution witnesses did not violate Defendant’s Sixth

Amendment right to a public trial. See Drummond v. Houk, 797 F.3d 400 (6th

Cir., 2015). The Sixth Circuit then denied Defendant’s motion for an en banc

hearing on September 14, 2015.

This Court denied certiorari on May 16, 2016. See Drummond v.

Robinson, ___ S.Ct. ___, 2016 WL 542380 (Mem) (2016).

Delayed Postconviction Petition in State Court

On January 12, 2017, Petitioner filed a Successive Postconviction

Petition Pursuant to R.C. 2953.23 in state court.

Petitioner contended that he was entitled to a successive petition

pursuant to R.C. 2953.23(A)(1) based upon this Court’s decision in Hurst v.

Florida, 577 U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), in which this

Court found that Florida’s capital-sentencing scheme violated a defendant’s

Sixth Amendment right to a jury trial, because Florida law required the

judge, rather than the jury, to make the factual determinations necessary to

support a death sentence.

On June 20, 2018, the trial court denied Petitioner’s successive

postconviction petition. No appeal was taken in state court.

10

Motion for Relief Before the Supreme Court of Ohio

On September 28, 2018, Petitioner filed a Motion for Relief pursuant to

Supreme Court of Ohio Rule 4.01.

In his motion for relief, Petitioner requested the Court to re-visit an

issue that was previously decided on direct appeal—the admission of

ammunition. See Drummond, 111 Ohio St.3d at 27-28, 854 N.E.2d at 10581059. The Supreme Court of Ohio properly concluded that “[t]he trial court

did not abuse its discretion in admitting the ammunition and the 9 mm

handgun seized from Drummond’s residence.” Id. Petitioner, however,

contended that the Court’s recent decision in State v. Thomas, 152 Ohio St.3d

15, 2017 Ohio 8011, 92 N.E.3d 821, undermined his direct appeal.

On December 19, 2018, the Supreme Court of Ohio denied Petitioner’s

Motion for Relief.

On March 18, 2019, Defendant filed a Petition for a Writ of Certiorari

and a Motion for Leave to proceed In Forma Pauperis in this Honorable

Court.

The State of Ohio-Respondent now responds with its Brief in

Opposition, and prays this Honorable Court Deny Defendant-Petitioner John

Drummond’s Petition for a Writ of Certiorari.

11

REASONS FOR DENYING THE WRIT

I.

The Supreme Court of Ohio’s Decision in State v.

Thomas, Rendered After Drummond’s Direct

Appeal, Does Not Mandate a New Trial.

As for Petitioner’s first question presented, he contends that a

subsequent case from the Supreme Court of Ohio, rendered after his direct

appeal, would have mandated a new trial. To the contrary, the Supreme

Court of Ohio’s decision in State v. Thomas, 152 Ohio St.3d 15, 2017 Ohio

8011, 92 N.E.3d 821, would not have mandated a new trial had Thomas been

decided before Petitioner’s direct appeal.

I.

THE SUPREME COURT OF OHIO’S

PRIOR DECISION THAT FOUND THE

ADMISSION OF AMMUNITION SEIZED

FROM DRUMMOND’S RESIDENCE WAS

RELEVANT IS UNAFFECTED BY THOMAS.

In his Motion for Relief before the Supreme Court of Ohio, DefendantPetitioner John Drummond contended that his conviction should be vacated

because the trial court’s admission of evidence concerning the amount and

type of ammunition found inside his residence resulted in prejudicial error.

To the contrary, the substantial amount and type of ammunition found inside

Petitioner’s residence was relevant to establish his opportunity and ability to

commit the offenses. See Drummond, 111 Ohio St.3d at 28. Therefore, the

trial court properly admitted the substantial amount of ammunition found

inside Defendant’s residence by Youngstown police, because the Supreme

12

Court of Ohio’s conclusion in Drummond remains unaffected by its

subsequent decision in Thomas, supra.

A.

THE ADMISSION OR EXCLUSION OF

RELEVANT EVIDENCE LIES WITHIN

THE DISCRETION OF THE TRIAL COURT.

It is well-established law that “[a]ll relevant evidence is admissible,

except as otherwise provided by the Constitution of the United States, by the

Constitution of the State of Ohio, by statute enacted by the General Assembly

not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by

other rules prescribed by the Supreme Court of Ohio. Evidence which is

not relevant is not admissible.” City of Columbus v. Taylor, 39 Ohio St.3d

162, 164, 529 N.E.2d 1382 (1988), quoting Ohio Evid.R. 402; accord

Fed.R.Evid. 402.

Accordingly, the admission or exclusion of relevant evidence at trial is

within the sound discretion of the court to determine, and the reviewing court

will not reverse that decision absent an abuse of discretion. See State v.

Jackson, 7th Dist. No. 99 BA 9, 2001 Ohio 3222, at *1, citing State v. Finnerty,

45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989). “‘[A]buse of discretion’

connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable.” State v. Adams, 62

Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).

13

1.

The Admission of Evidence

Concerning the Ammunition

Seized by Youngstown Police was

Relevant to Establish Petitioner’s

Opportunity to Commit the Offenses.

In Petitioner’s Motion for Relief, he contended that his conviction

should be vacated because the trial court’s admission of evidence concerning

the amount and type of ammunition found inside his residence resulted in

prejudicial error.

To begin, absent certain exceptions, “[a]ll relevant evidence is

admissible[.]” Ohio Evid.R. 402; accord Fed.R.Evid. 402; Corley v. United

States, 556 U.S. 303, 321, 129 S.Ct. 1558, 1570, 173 L.Ed.2d 443 (2009).

“‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Ohio

Evid.R. 401.

The Supreme Court of Ohio recognized that “relevant evidence is not

limited to merely direct evidence proving a claim or defense. Rather,

circumstantial evidence bearing upon the probative value of other evidence in

the case can also be of consequence to the action.” State v. Moore, 40 Ohio

St.3d 63, 65, 531 N.E.2d 691, 693-694 (1988). “For example, the evidence

establishing or impeaching the credibility of witnesses is of consequence to

the action because it might determine whether the jury believes a particular

witness.” Id.

14

“The jury is entitled to all information that might bear on the accuracy

and truth of a witness’s testimony.” State v. Tapscott, 2012 Ohio 4213, 978

N.E.2d 210, 216 (7th Dist.), citing United States v. Abel, 469 U.S. 45, 52, 105

S.Ct. 465, 83 L.Ed.2d 450 (1984). “The credibility of a witness is always a

relevant issue.” Tapscott, 978 N.E.2d at 216, citing State v. Curry, 11th Dist.

No. 92 A 1738, 1993 WL 256967 (June 30, 1993), State v. Lumpkin, 2nd Dist.

No. 90 CA 82, 1991 WL 216919 (Oct. 25, 1991), and State v. Oddi, 5th Dist.

No. 02CAA01005, 2002 Ohio 5926, 2002 WL 31417665, ¶ 32.

Simply stated, the Supreme Court of Ohio’s decision in Thomas is

distinguishable from the facts present here, because Thomas addressed

“other weapons evidence,” which the Court defined as “irrelevant evidence of

weapons unrelated to the charges.” Thomas, 152 Ohio St.3d at 22, 92 N.E.3d

at 828-829.

At issue in Thomas were five knives that the defendant owned, but

were unrelated to the offenses for which he was charged. See id. The Supreme

Court of Ohio concluded that plain error resulted from their admission,

because the knives had nothing to do with being able to handle knives, the

knives were unrelated to the murder, and the evidence merely painted the

defendant as acting in conformity with a bad character (in violation of

Evidence Rule 404(B)). See id., 152 Ohio St.3d at 25-26, 92 N.E.3d at 831.

15

In Petitioner’s direct appeal, the Supreme Court of Ohio properly found

that the ammunition and 9mm handgun were relevant to establish

Petitioner’s ability and opportunity to commit the offenses:

During a search of Drummond's residence, the police

seized a drum containing 75 rounds of 7.62 x 39 mm

ammunition, three boxes containing 46 rounds of 7.62 x

39 mm ammunition, a single round of 7.62 x 39 mm

ammunition, and an empty AK magazine. Police also

seized a Taurus 9 mm handgun with no barrel, a

bulletproof vest, and several rounds of 9 mm, .45 caliber,

and .357 caliber ammunition. Drummond argues that this

evidence was not relevant because the state failed to link

this ammunition to the shell casings found near the crime

scene.

The admission of Drummond's ammunition rested

upon a question of relevance. Evid.R. 401 provides:

"'Relevant evidence' means evidence having any tendency

to make the existence of any fact that is of consequence to

the determination of the action more probable or less

probable than it would be without the evidence." The

admission or exclusion of relevant evidence rests within

the sound discretion of the trial court. See Sage, 31 Ohio

St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of

the syllabus.

The trial court did not abuse its discretion in

admitting the ammunition and the 9 mm handgun seized

from Drummond's residence. Drummond's possession of

numerous rounds of ammunition shortly after the murder

tended to prove that he had timely access to the means to

commit the murder. In addition, Drummond's possession

of 7.62 x 39 mm rounds of ammunition tended to prove

that he had access to a weapon of the type used to kill

Jiyen. See State v. Hartman (2001), 93 Ohio St.3d 274,

281, 2001 Ohio 1580, 754 N.E.2d 1150 (defendant's set of

knives admissible as showing his easy access to a possible

murder weapon and his familiarity with using knives).

Further, Drummond's possession of a 9 mm handgun and

9 mm ammunition was relevant because a 9 mm weapon

was fired at the Dent home on the evening of March 24.

16

Drummond, 111 Ohio St.3d at 27, 28, 854 N.E.2d at 1059. Thus, the cases are

clearly distinguishable, because Thomas addressed “irrelevant evidence of

weapons unrelated to the charges,” Thomas, 152 Ohio St.3d at 22, 92 N.E.3d

at 828-829, whereas Drummond addressed relevant evidence to establish his

ability and opportunity to commit the offenses. See Drummond, 111 Ohio

St.3d at 27, 28, 854 N.E.2d at 1059.

In a more recent case, State v. Wilks, the state presented testimony

that the defendant pointed a 9mm Luger firearm at one of the victims in an

earlier confrontation, and a 9mm Luger was recovered in the defendant’s

minivan at the time the defendant was arrested. (Trial Tr., at 3613-3614;

3759-3765.) State v. Wilks, 2018 Ohio 1562, 114 N.E.3d 1092, ¶¶ 92-93. At

the crime scene, Youngstown police found a single 7.62 x 39 mm shell casing

on the front porch. See id. at ¶ 15.

In Wilks, two witnesses testified that the defendant threatened one

with a 9mm “black small handgun” when they went to the defendant’s house

to retrieve a bank card. (Trial Tr., at 3419-3421, 3503-3508.) Their testimony

corroborated the fact that the defendant threatened the witness following a

brief argument about an hour before the shooting. (Trial Tr., at 3424-3426.)

This testimony further established the defendant’s motive for the shooting.

Witnesses at the crime scene, however, stated that the defendant used an

AK-47 assault-type rifle. See Wilks, supra at ¶¶ 10-15, 22-24.

17

The Supreme Court of Ohio stated in Wilks that like Drummond, “[t]he

admission of the evidence regarding the 9 mm handgun rested upon its

relevance.” Wilks, supra at ¶ 95. The Court concluded that the 9mm Luger

handgun was relevant and admissible, because the defendant’s “use of the

handgun was part of the chain of events leading from the initial

confrontation outside [the defendant’s] home to the murder and attempted

murders at Mister’s house.” Id.; see also Moore, 40 Ohio St.3d at 65.

Here, the question is one of relevance. Cases like Thomas, supra, and

State v. Trimble, 122 Ohio St.3d 297, 2009 Ohio 2961, 911 N.E.2d 242

(admitting 19 unrelated firearms found in the defendant’s basement),

addressed “irrelevant evidence of weapons unrelated to the charges.”

Thomas, 152 Ohio St.3d at 22, 92 N.E.3d at 828-829.

Contrarily, Drummond and Wilks addressed relevant evidence to

establish the defendant’s motive and intent, and his ability and opportunity

to commit the offenses, respectively. See Drummond, 111 Ohio St.3d at 27,

28, 854 N.E.2d at 1059; Wilks, supra at ¶ 98.

Therefore, the Supreme Court of Ohio’s decision in Thomas would not

have mandated a new trial had it been decided before Drummond, because

the ammunition and 9mm handgun was relevant to establish Petitioner’s

ability and opportunity to commit the offenses. See Drummond, 111 Ohio

St.3d at 27, 28, 854 N.E.2d at 1059.

18

II.

Ohio’s

Post-Conviction

Procedures

Provide

Petitioner

and

Similarly-Situated

Capital

Defendants an Adequate Forum to Litigate

Constitutional Claims Beyond Their Direct Appeal.

As for Petitioner’s second question presented, he contends that the

State of Ohio fails to provide capital defendants an adequate forum to litigate

constitutional claims that requires the combination of both the direct appeal

and the collateral proceedings. To the contrary, Ohio’s post-conviction

procedures provide him and other similarly-situated capital defendants an

adequate forum that combines both the direct appeal and the collateral

proceedings. Therefore, Ohio’s capital defendants have an adequate forum to

litigate their constitutional claims.

“Ohio’s Post-Conviction Remedy Act, was enacted in 1965 in response

to the United States Supreme Court order that states must provide their

prisoners with some ‘clearly defined method by which they may raise claims

of denial of federal rights.’” State v. Calhoun, 86 Ohio St.3d 279, 281, 1999

Ohio 102, 714 N.E.2d 905, quoting Young v. Ragen, 337 U.S. 235, 239 (1949).

The Supreme Court of Ohio has recognized that “a postconviction

proceeding is not an appeal of a criminal conviction but, rather, a collateral

civil attack on the judgment.” Calhoun, 86 Ohio St.3d at 281, citing State v.

Steffen, 70 Ohio St.3d 399, 410 (1994), citing State v. Crowder, 60 Ohio St.3d

151 (1991).

19

Ohio Revised Code 2953.21 established the procedure for defendants to

effectively litigate a constitutional claim by combining the records from both

the direct appeal and collateral proceedings:

Any person who has been convicted of a criminal

offense or adjudicated a delinquent child and who claims

that there was such a denial or infringement of the

person’s rights as to render the judgment void or voidable

under the Ohio Constitution or the Constitution of the

United States, * * * may file a petition in the court that

imposed sentence, stating the grounds for relief relied

upon, and asking the court to vacate or set aside the

judgment or sentence or to grant other appropriate relief.

The petitioner may file a supporting affidavit and other

documentary evidence in support of the claim for relief.

Ohio Rev. Code 2953.21(A)(1)(a). In determining whether a defendant’s

constitutional rights were violated, “the court shall consider, in addition to

the petition, the supporting affidavits, and the documentary evidence, all the

files and records pertaining to the proceedings against the petitioner,

including, but not limited to, the indictment, the court’s journal entries, the

journalized records of the clerk of the court, and the court reporter’s

transcript.” Ohio Rev. Code 2953.21(D).

Further, it is well-settled law that Ohio’s post-conviction procedures

have been consistently found to be constitutional. See State v. Zich, 6th Dist.

No. L-15-1263, 2017 Ohio 414, ¶ 29; State v. Lawson, 12th Dist. No. CA201312-093, 2014 Ohio 3554, ¶ 43; State v. Bies, 1st Dist. No. C-020306, 2003 Ohio

442, ¶ 13; State v. Cassano, 5th Dist. No. 12 CA 55, 2013 Ohio 1783, ¶ 32;

State v. La Mar, 4th Dist. No. 98 CA 23, 2000 WL 297413 (Mar. 17, 2000);

20

State v. Murphy, 10th Dist. No. 00AP-233, 2000 WL 1877526 (Dec. 26, 2000);

see also State v. Ahmed, 7th Dist. No. 05 BE 15, 2006 Ohio 7069, ¶ 37.

Thus,

Ohio’s

post-conviction

statutes

allow

defendants

to

demonstrate—through the petition, supporting affidavits, all the files and

records pertaining to the proceedings against the defendant, including,

journal entries and the transcripts—that he suffered a violation of his

constitutional rights. See State v. Jackson, 64 Ohio St. 2d 107, 112, 413

N.E.2d 819, 823, syllabus (1980).

Therefore, Ohio’s post-conviction procedures provide Petitioner and

other similarly-situated capital defendants an adequate forum to litigate

their constitutional claims that requires the combination of both the direct

appeal and the collateral proceedings.

21

Conclusion

This Court should deny the petition for writ of certiorari.

Respectfully submitted,

/s/ Paul J. Gains

PAUL J. GAINS

(Ohio Reg. No. 0020323)

Mahoning County Prosecutor

/s/ Ralph M. Rivera

RALPH M. RIVERA

(Ohio Reg. No. 0082063)

Assistant Prosecutor

* Counsel of Record

Mahoning County Prosecutor’s Office

21 W. Boardman Street, 6th Floor

Youngstown, OH 44503

(330) 740-2330

pgain@mahoningcountyoh.gov

rrivera@mahoningcountyoh.gov

COUNSEL FOR RESPONDENT

22