Supreme Court of Ohio Clerk of Court - Filed July 16, Case No IN THE SUPREME COURT OF OHIO

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1 Supreme Court of Ohio Clerk of Court - Filed July 16, Case No IN THE SUPREME COURT OF OHIO STATE OF OHIO : Appellee : -vs- : : JAMAL MALONE Appellant : On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals CA: MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT JAMAL MALONE ROBERT L. TOBIK Cuyahoga County Public Defender BY: CULLEN SWEENEY (COUNSEL OF RECORD) # Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, OH (216) (216) FAX csweeney@cuyahogacounty.us COUNSEL FOR APPELLANT JAMAL MALONE TIMOTHY J. MCGINTY Cuyahoga County Prosecutor The Justice Center 9 th Floor 1200 Ontario Street Cleveland, OH (216) COUNSEL FOR APPELLEE, THE STATE OF OHIO

2 i TABLE OF CONTENTS PAGES Contents WHY THIS IS A FELONY CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 STATEMENT OF THE CASE AND FACTS... 3 LAW AND ARGUMENT... 7 Proposition of Law I:... 7 When a witness testifies in exchange for a benefit provided by the State, a trial court must provide the following cautionary instruction: You must consider some witnesses testimony with more caution than others. For example, paid informants, witnesses who have been promised immunity from prosecution, or witnesses who have received, or hope to gain, more favorable treatment in their own cases, may have a reason to make a false statement in order to strike a good bargain with the Government. The testimony of such witnesses does not become inadmissible because of their moral turpitude or self-interest, but the benefits obtained by the witnesses may affect their credibility and makes their testimony subject to grave suspicion, and requires that it be weighed with great caution. Proposition of Law II:... 9 A trial court errs in failing to grant the defendant a separate trial from his codefendant when a joint trial will result in otherwise inadmissible evidence being presented to the jury. Proposition of Law III: The state fails to present legally sufficient evidence of identity when there is no physical evidence and no eyewitnesses tying the defendant to the crime and when the circumstantial evidence implicates other suspects as well as the defendant. CONCLUSION SERVICE...13

3 1 WHY THIS IS A FELONY CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION Jamal Malone is serving the rest of his life in prison for a murder conviction based substantially on the testimony of three witnesses, including two jailhouse informants, who testified in exchange for help with their criminal cases. On appeal, Malone argued that the trial court erred in refusing to give the jury an adequate cautionary instruction on the reliability of informant testimony. In a stunning opinion, the Eighth District Court of Appeals held that a defendant is not entitled to a cautionary instruction for informants testifying under the grant of reduced criminal liability. See State v. Malone, Eighth Dist. No , 2015-Ohio-2150, According to the Eighth District, informant testimony is treated differently than accomplice testimony even when the informant receives exactly the same benefits as an accomplice in exchange for his or her testimony against the defendant. The Eighth District s decision is out of step with reality and contrary to the prevailing approach taken by most courts, including the United States Supreme Court. This Court should accept jurisdiction over this appeal to resolve the appropriate instruction for informant testimony. Criminals who received awards from the State in exchange for testimony represent a great threat to the mission of the criminal justice system. 1 In cases in which DNA has exonerated an innocent defendant, approximately twenty-one percent of the wrongful convictions relied on the testimony of informants. 2 For a desperate prisoner, incentives such as a beneficial plea or a drastically shortened sentenced can be very enticing. 1 See N. Mariana Islands v. Bowie, 243 F.3d 1109, 1124 (9th Cir. 2001) ( Thus, although the truthful testimony of accomplice witnesses will continue to be of great value to the law, rewarded criminals also represent a great threat to the mission of the criminal justice system. ). 2 Id. at 1124 n. 6, citing Barry Scheck, Peter Neufeld, & Jim Dwyer, Actual Innocence (2000).

4 2 Numerous exonerations reveal how often juries are deceived by lying criminal informants, even when the jurors knew that the informant is being compensated and has an incentive to lie. A report by the Center on Wrongful Convictions at Northwestern School of Law describes fifty-one wrongful convictions, each one involving perjured informant testimony jurors erroneously believed to be true. 3 DNA testing has forced the courts to recognize what has long been suspected by many: informant testimony is often nothing but a treacherous and insidious lie born out of self-interest. A career criminal charged with a serious crime knows that a fast and easy way out of prison is to cut a deal with the State at someone else s expense, and to sell his testimony in return for a reduced sentence. 4 And there are few institutional checks on such testimony because the informant is invariably telling the police and/or the prosecutor exactly what they want to hear. Although trial courts in Ohio are required by statute to instruct a jury on the dangers of accomplice testimony, see R.C (H)(2), the absence of a specific statute dealing with informant testimony does not means that courts should not provide jury instructions that adequately inform juries of the dangers associated with informant testimony. Informant testimony is fraught with the same dangers if not more as accomplice testimony. Recognizing that reality, the United States Supreme Court has held that a jury needs to be instructed to scrutinize informant testimony more carefully than other witnesses, even biased witnesses, because of the potential for perjury born out of self-interest. On Lee v. United States, 343 U.S. 747, , 72 S.Ct. 967, 96 L.Ed.2d 1270 (1952). Many other federal courts have recognized the dangers that informant testimony poses to truth-seeking process of a trial, and the 3 See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice (2009), 77.

5 3 necessity of instructing a jury on these dangers. See, e.g., United States v. Luck, 611 F.3d 183, 187 (4th Cir. 2010) (explaining that an informant instruction is necessary because a general witness credibility instruction is not sufficiently cautionary for informants because of special concerns about the incentive that they have to fabricate for their own benefit. ); see also United States v. Bosch, 914 F.2d 1239, 1247 (9th Cir. 1990); United States v. Hill, 627 F.2d 1052, (10th Cir. 1980); United States v. Garcia, 528 F.2d 580, (5th Cir. 1976); United States v. Griffin, 382 F.2d 823, 828 (6th Cir. 1967). Every federal circuit that has adopted pattern jury instructions for criminal cases includes a specific instruction addressing the credibility problems associated with informant testimony. See e.g. 1st Cir. Pattern Criminal Jury Instructions 2.07 (1998 Ed.); 3rd Cir. Criminal Jury Instructions 4.19 (2009 Ed.); 5th Cir. Pattern Jury Instructions (Criminal Cases) 1.14 (2012 Ed.); 6th Cir. Pattern Criminal Jury Instructions 7.07 (2014 Ed.); 7th Cir. Pattern Criminal Jury Instructions 3.05 (2012 Ed.); 8th Cir. Pattern Criminal Jury Instructions 4.05(B) and 4.06 (2013 Ed.); 9th Cir. Pattern Criminal Jury Instructions 4.9 (2010 Ed.); 10th Cir. Pattern Criminal Jury Instructions 1.14 (2011 Ed.); 11th Cir. Pattern Criminal Jury Instructions 1.1 (2010 Ed.) Because it is well-established that an informant s testimony poses a danger to the truthseeking process due to the potential for perjury born out of the informant s self-interest, this Court should accept jurisdiction over this appeal and adopt a specific cautionary instruction that must be given with respect to informant testimony. STATEMENT OF THE CASE AND FACTS On September 11, 2013, a Cuyahoga County grand jury indicted Defendant-Appellant Jamal Malone and co-defendant Darnell Holloway on the following charges: (1) Aggravated 4 See Bowie, 243 F.3d at 1123.

6 4 Murder in violation of R.C (A), (2) Murder in violation of (B), (3) Felonious Assault in violation of R.C (A)(1), (4) Kidnapping in violation of R.C (A)(3), (5) Discharge of a Firearm on or near Prohibited Premises in violation of R.C (A)(3), and (6) Having Weapons While Under Disability in violation of R.C (A)(3). The trial court denied Mr. Malone s motion for a separate trial. The case proceeded to a jury trial on all counts except the charge of having weapons under disability, which was tried to the bench. The trial court granted Defendants Crim. R. 29 motion on the kidnapping charge. On April 10, 2014, Defendants were found guilty on the remaining charges, and sentenced to 30 years to life on the aggravated murder charge, plus an additional three years on a firearm specification. The charges stemmed from the fatal shooting of Kishaun Stafford on July 2, The victim, Kishaun Stafford, was leaning into the driver s side of a light colored Chevrolet Impala. This activity was recorded on a video camera that was attached to a nearby building. The video shows an unidentified male approaching the car, and firing three shots with a handgun. Two of the shots hit the victim. The shooter entered the passenger-side door of the car, and the driver and passenger fled in the car. No witnesses were present at the scene. The victim s neighbor, Barbara Lydston, heard the shots and went to the victim s aid. When the police interviewed her on the night of the murder, she was cooperative. She made no mention of the victim making a dying declaration identifying his killer. Tr However, at trial, she changed her story, and testified that as the victim was dying, she asked him, Who did this? to which the victim replied, Mal. Tr. 618, 646. The police subsequently identified two men who went by the name Mal. Both of them owned light colored Chevy Impalas and had a revenge motive against the victim. Additionally,

7 5 David Cousin informed the police that only moments prior to the shooting he had been speaking to the victim on the telephone, and during that conversation the victim stated that Mal was in the vicinity and he was intending to converse with him. Approximately 10 months after the shooting, Asa Prude agreed to cooperate with police in exchange for consideration from the prosecutor s office in an unrelated case. Asa Prude watched the surveillance video with a detective. Mr. Prude identified the victim in the video as Kishaun Stratford. The shooter s face was not visible in the video, but Mr. Prude identified the shooter as Darnell Holloway based on the shooter s body weight. Mr. Prude also identified the Chevy Impala as Mr. Malone s car based on a crack in the bumper. At trial, the State also called two jailhouse snitches as witnesses who were held in custody at the same time as Holloway and Malone. The first jailhouse snitch, John Young, testified that he knew Darnell Holloway from being locked up in the jail pod together. Tr. 769 He further testified that Holloway was concerned about a murder where he was shooter. Tr Young testified that Holloway told him that he was the shooter, and had received compensation for his role in the crime. Tr. 778, 782. Young testified that Holloway had told him that another person was present at the shooting. Tr Young admitted that he was serving 15 months for assault on an officer. Tr He had pled guilty to a felony of the fourth degree that carried up to 18 months. Tr The charge resulted from a scuffle with an officer in which he broke the officer s ankle. Tr He had previously been to the penitentiary on eight occasions. Tr He had originally been indicted for felony of first degree, which carried 3 to 11 years. Tr He learned who the prosecutor was after Holloway showed him some paperwork, and then he wrote a letter to prosecutor. Tr He conceded that he wrote the prosecutor, having viewed it as an opportunity to get out of

8 6 jail, and save [his own] behind. Tr. 780, 786, 787. As a result of his cooperation he struck a deal with the State to significantly reduce his potential sentence, and the charge was reduced from a felony of the first degree to a felony of the fourth degree. Tr The second jailhouse snitch was Rodell Smith. He testified that he was currently incarcerated in the Cuyahoga County Jail on a probation violation for having carried a concealed weapon. Tr He met Darnell Holloway in the jail. Tr. 824 Smith had discussions in jail with Holloway regarding Holloway s concerns about a murder case. Tr According to Smith, Holloway had indicated that he was physically present at a murder, and a car was involved. Tr Smith claimed that Holloway told him he was in a car, when another man got out of the car and shot someone. Tr Smith also testified that he saw Malone and Holloway speaking to each other in the jail. Tr Smith testified that he wrote a letter to the prosecutor s office to try to help himself in a case he had. Tr Smith testified that he learned of the prosecutor s name when he saw a search warrant that was issued for Holloway s bunk area in the jail. Tr Malone s attorney requested that the court instruct the jury that an informant s testimony, like accomplice testimony, must be viewed with grave suspicion. Tr The trial court did not give the instruction sought by Malone s attorney but did provide some instruction with respect to informants Young and Smith: Now, you have heard testimony from John Young and Rodell Smith, both of whom met defendant Darnell Holloway while in county jail. In each case, you heard the testimony relevant to this case. You are also privy to any consideration given to the witnesses in conjunction with their cooperation. Testimony of this nature must carefully be examined and evaluated by you. It must be viewed with greater caution than with ordinary witnesses. It is for you as jurors to evaluate such testimony and to determine its worth and quality or lack of worth and quality. In doing so, consider all the facts and circumstances surrounding the testimony including any self-interest.

9 7 Tr The trial court did not, however, provide an instruction regarding Asa Prude s testimony which was obtained in exchange for State s assistance in Prude s unrelated criminal case. On appeal, Mr. Malone argued that the trial court erred in not instructing the jury that an informant s testimony should be viewed with great suspicion, and weighed with great caution. See Appellant s Opening Brief at 15. In affirming Malone s conviction, the Court of Appeals held that his proposed jury instruction was not a proper statement of law, and the trial court did not err by failing to give the requested instruction. See Malone, 2015-Ohio-2150, 47. Proposition of Law I: LAW AND ARGUMENT When a witness testifies in exchange for a benefit provided by the State, a trial court must provide the following cautionary instruction: You must consider some witnesses testimony with more caution than others. For example, paid informants, witnesses who have been promised immunity from prosecution, or witnesses who have received, or hope to gain, more favorable treatment in their own cases, may have a reason to make a false statement in order to strike a good bargain with the Government. The testimony of such witnesses does not become inadmissible because of their moral turpitude or self-interest, but the benefits obtained by the witnesses may affect their credibility and makes their testimony subject to grave suspicion, and requires that it be weighed with great caution. When a witness testifies in exchange for a benefit provided by the State, a trial court must give a cautionary instruction to the jury that is consistent with the jury instruction statutorilymandated for accomplice testimony. Such an instruction is required by the United States Supreme Court s holding in On Lee: a jury needs to be instructed to scrutinize informant testimony more carefully than other

10 8 witnesses, even biased witnesses, because of the potential for perjury born out of self-interest. Many other federal courts have recognized the dangers that informant testimony poses to truthseeking process of a trial, and the necessity of instructing a jury on these dangers. See, e.g., United States v. Luck, 611 F.3d 183, 187 (4th Cir. 2010) (explaining that an informant instruction is necessary because a general witness credibility instruction is not sufficiently cautionary for informants because of special concerns about the incentive that they have to fabricate for their own benefit. ); see also United States v. Bosch, 914 F.2d 1239, 1247 (9th Cir. 1990); United States v. Hill, 627 F.2d 1052, (10th Cir. 1980); United States v. Garcia, 528 F.2d 580, (5th Cir. 1976); United States v. Griffin, 382 F.2d 823, 828 (6th Cir. 1967). And every federal circuit that has adopted pattern jury instructions for criminal cases includes a specific instruction addressing the credibility problems associated with informant testimony. See e.g. 1st Cir. Pattern Criminal Jury Instructions 2.07 (1998 Ed.); 3rd Cir. Criminal Jury Instructions 4.19 (2009 Ed.); 5th Cir. Pattern Jury Instructions (Criminal Cases) 1.14 (2012 Ed.); 6th Cir. Pattern Criminal Jury Instructions 7.07 (2014 Ed.); 7th Cir. Pattern Criminal Jury Instructions 3.05 (2012 Ed.); 8th Cir. Pattern Criminal Jury Instructions 4.05(B) and 4.06 (2013 Ed.); 9th Cir. Pattern Criminal Jury Instructions 4.9 (2010 Ed.); 10th Cir. Pattern Criminal Jury Instructions 1.14 (2011 Ed.); 11th Cir. Pattern Criminal Jury Instructions 1.1 (2010 Ed.) While there may be some honest disagreement over the precise language required for an informant instruction, there is little doubt that some cautionary instruction should be given and that it should be consistent with the type of cautionary instruction mandated for accomplice testimony in R.C (D). Anything less fails to ensure a fair trial as required by state and federal due process and fails to recognize the similar credibility problems associated with accomplice and informant testimony. Using the framework of the pattern jury instruction

11 9 adopted by the 11th Circuit Court of Appeals and utilizing the statutory language of R.C (D), Mr. Malone submits that the following jury instruction should be given: You must consider some witnesses testimony with more caution than others. For example, paid informants, witnesses who have been promised immunity from prosecution, or witnesses who have received, or hope to gain, more favorable treatment in their own cases, may have a reason to make a false statement in order to strike a good bargain with the Government. The testimony of such witnesses does not become inadmissible because of their moral turpitude or self-interest, but the benefits obtained by the witnesses may affect their credibility and makes their testimony subject to grave suspicion, and requires that it be weighed with great caution. Here, the Eighth District incorrectly held that an informant instruction is not a proper statement of law. Malone, 2015-Ohio-2150, 47. The Eighth District s decision is wrong and denied Malone a fair trial in violation of state and federal due process. Because the State had no direct evidence (eyewitness testimony or physical evidence) connecting Malone to the murder, it relied heavily on three witnesses who received benefits in exchange for the testimony. The trial court s refusal to give an adequate instruction to the jury to scrutinize the testimony of Holloway, Young, and Prude constituted reversible, prejudicial error. Proposition of Law II: A trial court errs in failing to grant the defendant a separate trial from his co-defendant when a joint trial will result in otherwise inadmissible evidence being presented to the jury. Mr. Malone filed a motion to sever his trial from co-defendant Darnell Holloway s trial. Because Mr. Malone was unable to cross-examine his co-defendant, he was unable to challenge statements that Holloway allegedly made to two jailhouse informants (John Young and Rodell Smith). A defendant s right to cross-examination, secured by the confrontation clause of the Sixth Amendment, is violated in a joint trial with a codefendant who does not testify, by the

12 10 admission of the codefendant's statements inculpating the defendant, even where the jury is instructed that the codefendant's statement is to be disregarded in determining the defendant's guilt or innocence. Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. In State v. Moritz (1980), 63 Ohio St.2d 150, 407 N.E.2d 1268, the Ohio Supreme Court explained the rationale behind Bruton, stating: [T]he introduction of a potentially unreliable confession of one defendant which implicates another defendant without being subject to crossexamination deprives the latter defendant of his right to confrontation guaranteed by the Sixth Amendment. Here, John Young, a jailhouse informant, testified that Darnell Holloway had told him that someone had compensated him for committing a murder. This testimony would have been inadmissible in a separate trial of only Mr. Malone. Darnell Holloway was on trial for the murder of Kishaun Stafford, and sitting next to him at the defense table was his codefendant, Jamal Malone. Undoubtedly, every juror drew the conclusion that the person who compensated Holloway was Jamal Malone. The instruction to the jury directing them to consider this evidence against Darnell Holloway separately could not have eliminated the prejudice against Mr. Malone. The trial court recognized that Mr. Malone s right to a fair trial had been violated, and that Mr. Malone s motion for a separate trial should have been granted. Tr. 816 (court stating, [T]here should have been two trials. We should have bifurcated this, to avoid this exact problem. ). Further, because the evidence against Mr. Malone was so weak, while the evidence against Holloway was much stronger, had Mr. Malone been tried separately an acquittal would have been likely. The only evidence against Mr. Malone was Asa Prude s testimony identifying Mr. Malone s Chevy Impala in the video, David Cousin s testimony regarding his telephone

13 11 conversation with Kishaun Stafford (wherein Stafford states that he sees Mal and is going to go over and talk to him), and Barbara Lydston s incredible testimony about Kishaun Stafford s dying declaration identifying Mal as the shooter. 5 In contrast, the evidence against Darnell Holloway consisted of Asa Prude s testimony identifying Holloway on the video shooting Kishaun Stafford, the testimony of the jailhouse snitches that Holloway had admitted to being concerned about being charged for a murder, had admitted to being present at the scene of the crime, had admitted to being the shooter, and had admitted to being compensated for the shooting. Because of the joinder in this case, the jury heard testimony, in considering Malone s guilt or innocence, that was highly prejudicial and inadmissible as to Malone. Although the trial court told the jury only to consider that evidence against Holloway, such an instruction was inadequate to ensure that Malone received a fair trial untainted by the admission of this evidence or the jury s feelings about the guilt or innocence of Holloway. Proposition of Law III: The state fails to present legally sufficient evidence of identity when there is no physical evidence and no eyewitnesses tying the defendant to the crime and when the circumstantial evidence implicates other suspects as well as the defendant. The State failed to present legally sufficient evidence that Jamal Malone aided and abetted Darnell Holloway in the shooting death of Kishaun Stratford. Specifically, the State did not present legally sufficient evidence of identity or legally sufficient evidence that Malone did anything to aid or abet Holloway s shooting of Stratford. Thus, this Court should vacate his 5 Ms. Lydston s testimony about the dying declaration is incredible for many reasons. First, it is beyond dispute that Jamal Malone was not the shooter. Second, when initially interviewed, Ms.

14 12 convictions for aggravated murder, murder, felonious assault, discharge of a firearm on or near prohibited premises, and having a weapon while under disability. The Due Process Clause requires the State to prove every element of the crime charged beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). Evidence is legally sufficient to support a conviction consistent with due process if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The State s theory at trial was that Holloway shot Stratfrod and that he was paid to do so, or at a minimum, assisted in doing so by Malone. As discussed above, the only evidence against Mr. Malone consisted of Asa Prude s testimony identifying Mr. Malone s Chevy Impala in the video, David Cousin s testimony regarding his telephone conversation with Kishaun Stafford (wherein Stafford states that he sees Mal and is going to go over and talk to him), and Barbara Lydston s incredible testimony about Kishaun Stafford s dying declaration identifying Mal as the shooter. However, the evidence at trial established that two people who Kishaun Stafford knew went by the name Mal, both owned light colored Chevy Impalas, and both had a motive to exact revenge against Kishaun Stafford. More importantly, as to the dying declaration, even if the victim had answered with the name Mal in response to Ms. Lydston s question, Who did this?, it is undisputed that Mr. Malone did not shoot Kishaun Stafford. Because the State failed to present legally sufficient evidence, Malone s convictions violate state and federal due process and should be vacated. Lydston cooperated with the police, and made no mention of a dying declaration. Third, based on Kishaun Stafford s wounds it is highly unlikely that he was able to speak.

15 13 CONCLUSION Because the court of appeals holding is likely to result in depriving defendants of a fair trial, Petitioner-Appellant Malone asks this Court to accept jurisdiction over this matter. This matter presents a substantial question of constitutional magnitude and general public interest. CERTIFICATE OF SERVICE Respectfully submitted, /s/ Cullen Sweeney CULLEN SWEEENEY Assistant Public Defender A copy of the foregoing Memorandum was hand-delivered upon Timothy J. McGinty, Cuyahoga County Prosecutor and or a member of his staff, The Justice Center - 9th Floor, 1200 Ontario Street, Cleveland, Ohio this July 15, /s/ Cullen Sweeney CULLEN SWEEENEY Assistant Public Defender