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CASE NO. CR-95-324431


Now comes Timothy J. McGinty Prosecuting Attorney of Cuyahoga County, on behalf of

the State of Ohio, by and through his undersigned assistant, and respectfully requests a bond
hearing for the reasons state in the attached Brief, incorporated as if fully re-stated herein.

Respectfully submitted,
Cuyahoga County Prosecuting Attorney
/s/ Anthony T. Miranda
DANIEL T. VAN (0084614)
Assistant Prosecuting Attorney
The Justice Center, 8th floor
1200 Ontario Street
Cleveland, Ohio 44113
Phone: (216) 443-7416
Fax: (216) 443-7602

Today, this Court granted a new trial in this case. At the hearing announcing its decision,
the Court announced that Defendants Eugene Johnson, Derrick Wheatt, and Laurese Glover
would be able to post a $50,000 bond, cash surety, even though two of the defendants had
received convictions while incarcerated and one defendant had previously violated the conditions
of bond in 2004, the last time the Court granted a motion for new trial in this case. The Court
adjourned without allowing the State to be heard on the issue of bond. In fact, the Courts
written opinion actually contained its decision regarding Bond and was distributed during the
hearing announcing the Courts decision. Bond was set and has now been posted without the
State being heard.
In determining the conditions of bail under Crim.R. 46(B), the Court is required to
consider all relevant information. The State was not afforded the opportunity to provide the
Court with relevant information relating to the bail of Defendants.

Therefore, the State

respectfully asks this Court to set the matter for hearing regarding the amount of bond.

Background of the Case

a. Trial Facts

In determining the type, amount, and conditions of bail, the Court shall consider [t]he
nature and circumstances of the crime charged as well as the weight of the evidence against
the defendants. Crim.R. 46(C)(1-2).
After a jury trial, Defendant Eugene Johnson was convicted of murder with a three-year
firearm specification, Defendant Laurese Glover was convicted of murder, and Defendant
Derrick Wheatt was convicted of murder with a three-year firearm specification. Defendants
were all sentenced to fifteen years to life in prison consecutive to any respective gun

On February 10, 1995, Clifton Hudson, Jr., was murdered while walking on Strathmore
Avenue, East Cleveland, Ohio. His death was the result of multiple gunshot wounds. Trial Tr. at
443. Defendants admitted to police that they were at the scene of the shooting, were driving in a
black Chevy Blazer, and that they witnessed the murder. Trial Tr. at 757-59.
The State called Ms. Tamika Harris to testify, a fourteen-year-old at the time of the
murder. Trial Tr. at 815. Ms. Harris witnessed the shooting. Trial Tr. at 820 (This boy
shooting another boy.). Ms. Harris indicated that the shooter was in the street and the victim
was on the sidewalk. Trial Tr. at 820. Ms. Harris also identified the vehicle that she saw near
the shooting as a black four-by-four which she observed on the street, by the post office
driveway. Trial Tr. at 822, States Hearing Ex. 4. Ms. Harris observed two black individuals in
the vehicle. Trial Tr. at 833-34. After the shooting, the four-by-four turned down a side street.
Trial Tr. at 829.
Ms. Harris identified the shooter that she saw in the street as Defendant Eugene Johnson.
Trial Tr. at 826. Her identification was based on the clothing that Defendant Johnson was
wearing. Trial Tr. at 833. Ms. Harris identified Defendant Johnson as the shooter because he
was arrested wearing the same coat the shooter had on. Trial Tr. at 842.

She also made a

facial identification at trial. Trial Tr. at 833. However, defense counsel repeatedly crossexamined Ms. Harris with her statement to police in which she said that she could not clearly see
the shooters face.

Trial Tr. at 856-57, 863-64, 909.

Moreover, Ms. Harris testimony

consistently places the vehicle in which the defendants were admittedly in by the stop sign close
to or blocking the post office driveway. Trial Tr. 825-826.
The State also presented physical evidence that tied Defendants to the crime. Detective

Johnstone of the East Cleveland Police Department testified that an Atomic Absorption kit was
performed on Defendants Wheatt and Johnson in the morning of February 11, 1995. Trial Tr. at
474. Dr. Sharon Rosenberg of the Cuyahoga County Coroners Office examined the kits and
testified that the sample taken from both hands of Defendant Wheatt was consistent with
gunshot residue. Trial Tr. at 560 (presence of antimony and barium). Defendant Johnsons
glove was also consistent with gunshot residue. Trial Tr. at 576.
Richard Turbok, a firearms examiner with the Ohio Bureau of Criminal Investigation,
testified regarding the gunshot residue found on the vehicle that Defendants admitted to driving
at the time of the murder. Mr. Turbok testified that the vehicle did not contain any nitrites, Trial
Tr. at 738, but that the vehicle did contain lead residue on the front passengers seat bottom,
passengers side door armrest, and the exterior of the vehicles passengers side door, below the
window, Trial Tr. at 735-736. The jury was provided with alternative causes (non-firearm
causes) of the antimony and barium. Trial Tr. 595-97, 627; Defendant Wheatts Trial Ex. B.
In post-conviction proceedings, Defendants argued that the mere presence of lead,
barium, and antimony no longer indicates a positive gunshot residue test result in light of the
scientific advancements. State v. Glover, 8th Dist. Cuyahoga No. 93623, 2010-Ohio-4112,
14; see State v. Wheat, 8th Dist. Cuyahoga No. 93671, 2010-Ohio-4120, 16. However, as the
Eighth District held, [s]cience is an ever-evolving field . . . . In this case, the presence of GSR
on Johnsons glove cannot be discredited. State v. Johnson, 8th Dist. Cuyahoga No. 93635,
2010-Ohio-4117, 26.

These advancement in testing methods were deemed not newly

discovered evidence. Glover, 2010-Ohio-4112, 25; Johnson, 2010-Ohio-4117, 32; Wheat,

2010-Ohio-4120, 27.
During the trial, Defendants were not without their own witnesses who could provide

exculpatory testimony.
Leroy Malone testified at trial that he lives on Ardenall Avenue which was the next
street over from the shooting. Trial Tr. at 1074, 1076. Mr. Malone testified that he saw
someone running behind a black truck, put something in his pants, and then run towards Shaw.
Trial Tr. 1080. Mr. Malone testified that he knew Defendants since elementary school and that
even though he only saw the side view of [the runners] face, the runner was not any of
Defendants. Trial Tr. at 1081. On cross-examination, Mr. Malone also admitted that he never
called the police after hearing the gun shots. Trial Tr. at 1089. Mr. Malone told police two days
after the shooting that he was unable to identify anyone in the truck. Trial Tr. at 1117.
Defendants Johnson and Glover rested after the testimony of Mr. Malone. Trial Tr. at
1122, 1124. Defendant Wheatt called Eric Reed to testify, who lived on Strathmore at the time
of the shooting. Trial Tr. at 1126. Specifically Reed lived at 1704 Strathmore, and the shooting
occurred in front of his home. Trial Tr. 1143. Mr. Reed testified that he heard gun shots. Trial
Tr. at 1128. Mr. Reed also indicated that he saw the shooter through his window and none of
Defendants were the shooter. Trial Tr. at 1135. However, Mr. Reed never told police that he
could identify the shooter. Trial Tr. at 1136. Eric Reed had described the shooter as medium
height, about 511, and was a light skinned black male. Trial Tr. At 1130. Reed indicated he
lived at 1704 Strathmore with Michael Wilson, his sister, and his sisters children. Trial Tr.
1126. Reed also testified that he observed the person going through the victims pockets. Trial
Tr. 1138.
b. The Courts 2004 grant of Defendant Johnsons Motion for New Trial
was previously reversed.
This Court previously granted Defendant Johnsons Motion for New Trial on September
17, 2004. The Courts decision was based upon Ms. Harriss post-conviction testimony that she

never could identify the shooter facially and that her identification was based upon the shooters
clothing. State v. Johnson, 8th Dist. Cuyahoga No. 85416, 2005-Ohio-3724, 57 (I picked the
photo of Eugene Johnson only because he was wearing a coat in the photo like the one the
shooter was wearing.).

However, the Eighth District unanimously reversed and held that

Harris later clarification of her identification would have had no material effect on the outcome
of the trial as Harris had acknowledged from her first meeting with police, and the defense
repeated throughout the trial and appeal of this matter, that she did not clearly see the attackers
face and that she identified defendant from the photo array based upon his clothing. Johnson,
2005-Ohio-3724, 76; see also State v. Johnson, 108 Ohio St.3d 1414, 2006-Ohio-179, 841
N.E.2d 318 (appeal not accepted for review).
c. The States intention to appeal and likelihood of success.
The Court granted Defendants motions for new trial primarily based upon a letter sent
by then First Assistant Prosecutor Carmen Marino to Sergeant Dunn of the East Cleveland Police
Department. Opinion at p. 2 (March 26, 2015). This letter states as follows:
It has come to our attention that the City of East Cleveland intends to release the
police file of the investigation of the above captioned case. It is our position that
said police file and its contents are not public record, thus any release could
constitute a willful violation of the law.
You are hereby directed to turn over to the Cuyahoga County Prosecutors Office
Investigator presenting this letter the entire department file concerning the above
captioned matter, including, but not limited to, all items of the file contained
within the Detective Bureau as well as any and all copies which exist elsewhere,
including, but not limited to, the Records Room of East Cleveland. Said file and
all contents are to be handed over to Cuyahoga County Prosecutors Office
Investigators forthwith.
Thank you for your anticipated cooperation in this matter
Defendants Motion for New Trial, Ex. F.
Clearly material to the Courts decision today was its belief that then First Assistant

County Prosecutor Carmen Marino did commit prosecutorial misconduct in a willful and
malicious suppression of the evidence. Opinion at p. 11 (March 26, 2015). In commenting on
its opinion from the bench, the Court referred to Mr. Marino as the architect of the destruction
of a fair trial. There was no evidence presented at the hearing on Defendants motions for new
trial to support this conclusion. Defendants never made the argument or implied that there was
anything malicious or even wrong with this. It was never presented.

Defendants did not call

Mr. Marino to testify at the hearing on their motions for new trial. The State had no notice or
ability to correct the Courts misunderstanding of the law. This amounts to ambush which the
higher courts have frowned upon. See State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19
N.E.3d 888, 21.
Defendants have known about the letter since 1999.

It was attached as Ex. P of

Defendants 1999 Motion for Leave to File Motion for New Trial. Additionally, it was attached
to the Ohio Attorney Generals Motion to Dismiss Defendant Wheatts February 2, 2012 Petition
for Writ of Habeas in 1:12-cv-00266-CAB, filed on April 30, 2012. Joint Hearing Ex. E.
Additionally, the Court provides no legal support for its conclusion that the letter was
unethical and unlawful, Opinion at p. 12, an argument that Defendants did not pursue.

review of the relevant public records law at the time indicates that the police report was not a
public record. See Perry v. Onunwor, 8th Dist. Cuyahoga No. 78398, 2000 Ohio App. LEXIS
5893 (Dec. 7, 2000) (investigative reports, evidentiary reports and scientific reports . . . . These
are substantive work product . . . . [and] are exempt from disclosure.).
Further, no evidence was presented that Mr. Marino had any pretrial or trial interaction
with the East Cleveland Police Department regarding this case. There is no evidence Mr. Marino
had any involvement in this case until several years after their convictions were upheld on direct

appeal. In contrast, the evidence at hearing negated the inferences that Mr. Marino had any
involvement in the prosecution of the defendants:
THE COURT: Who would you have had to go to to discuss plea negotiations?
THE WITNESS: Frank Gasper.
THE COURT: Would Carmen Marino have final sign-off on plea negotiations in a
murder case?
THE COURT: Only Frank Gasper?
THE WITNESS: No. Would he have to sign off on what Frank marked?
THE COURT: Correct.
THE COURT: So Frank Gasper had free reign to mark any files for murders?
Hearing Tr. at 127-28.

Defendant Johnson has violated the conditions of his bond before.

At the hearing, the State will provide evidence of Defendant Johnsons violation of the
conditions of bond in the past. As the Court no doubt remembers, the last time Defendant
Johnsons motion for new trial was granted, this Court set the exact same bond. Journal Entry
(September 17, 2004). Before the Eighth District reversed the Courts decision, Defendant
Johnson had violated the conditions of his bond by testing positive for marijuana. Journal Entry
(June 9, 2005).

Defendants Johnson and Glover were convicted of crimes while incarcerated.

The State will also provide the Court with evidence of Defendant Glovers criminal
conduct while he has been incarcerated for the murder in this case. Defendant Glover was
convicted in the Richland County Court of Common Pleas of illegal conveyance, a third-degree
felony and a violation of R.C. 2921.36(A)(2). See CR-03-198-H. Defendant Johnson was also
convicted of theft, a fifth-degree felony in the Richland County Court of Common Pleas. See

Because the Court determined the type, amount, and conditions of bail without hearing
from the State and without considering the above-described information, the State asks that this
Court set a hearing to determine bond.
Once this Court is presented with a chance to hear the fact that Defendants had
committed crimes while in prison, remembers that one did not comply when let out the last time
this Court erred in granting a new trial, the State is confident that the Court will grant a bond that
protects the public safety and prevents flight. Once the Court reexamines and understands that
Defendants never raised the conspiracy orchestrated by Mr. Marino to suppress evidence upon
inference with no basis in the record, the State hopes that the Court will consider the fact that the
issue of malicious action on the part of Mr. Marino was sua sponte raised by the Court in its
decision to set bond for this case.

Respectfully submitted,
Cuyahoga County Prosecuting Attorney
/s/ Anthony T. Miranda
DANIEL T. VAN (0084614)
Assistant Prosecuting Attorney
The Justice Center, 8th floor
1200 Ontario Street
Cleveland, Ohio 44113
Phone: (216) 443-7416
Fax: (216) 443-7602

A true and accurate copy of the foregoing States Motion has been sent by electronic mail
on March 26, 2015, to:
Mr. Brian Howe, Esq.
The Ohio Innocence Project
Attorney for Defendants Derrick Wheatt and Laurese Glover
Mr. Carmen Naso, Esq.
Milton A. Kramer Law Clinic Center
Attorney for Defendants Derrick Wheatt and Laurese Glover
Mr. Brett Murner, Esq.
The Murner Law Firm
Attorney for Defendant Eugene Johnson
Mr. Jim Valentine, Esq.
Attorney for Defendant Eugene Johnson

/s/ Anthony T. Miranda

Assistant Prosecuting Attorney