MAY 2 0 HC:39 CLERK OF COURT SUPREME COURT OF OHIO MAY CLERK OF COURT SUPREME COURT OF OHIO CASE NO.: STATE OF OHIO

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IN THE SUPREME COURT OF OHIO

STATE OF OHIO

Plaintiff-Appellee, -vs-NATHANIEL ALEXANDER Defendant-Appellant,

CASE NO.: 09-0852

APPELLEE'S MEMORANDUM CONTRA APPELLANT'S BRIEF IN SUPPORT OF JURISDICTION

Attorney for Appellant:

Thomas Tyack, #0006476

Tyack, Blackmore & Liston Co., L.P.A 536 S. High Street

Columbus, Ohio 43215

614-221-1341 (Telephone)

614-228-0253 (Fax)

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MAY 2 0 HC:39

CLERK OF COURT

SUPREME COURT OF OHIO

Attorney for Appellee: Mark E. Kuhn, #0063392 Prosecuting Attorney Scioto County Courthouse 602 7t' Street, Rm. 310 Portsmouth, Ohio 45662 740-355-8215 (Telephone) 740-354-5546 (Fax)

MAY 2 0 2000

CLERK OF COURT

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TABLE OF CONTENTS

Table of Contents .. . . .. . . .... . . .. . . .. . . .. . . .... . ..2

Table of Authorities . ... ... ... ... .. ... .. .... ... . . .. ... .. ... ... ... ... .. ...3

Substantial Constitutional Question/Leave to Appeal ...4

Appellant's Propositions of Law ...5

Argument in Opposition to Jurisdiction ...6

Conclusion . .. . . . .. . .. . . .. . . . .. . . .. . . .. . . .. . . . .. . . ...12

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TABLE OF AUTHORITIES

Cases

Barker v. Wingo (1972), 407 U.S. 514 ...10

Doggett v. United States (1992), 505 U.S. 647 ...10

Hurtado v. Califomia, 110 US 516 ...9

State of Ohio v. Nathaniel Alexander, Case No. 03-CR-653, Scioto County Court of Common Pleas ...6, 10 State of Ohio v. Nathaniel Alexander, Case No. 05-CR-1247, Scioto County Court of Common Pleas ...6

State ex rel. Shoop v. Mitrovich, 4 Ohio St3d 220 (1983) ...9

State v. Asher, 112 Ohio App.3d 646 (1996 Hamilton) ...9

State v. Selvage (1997), 80 Ohio St.3d 465 ...10

Statutes Ohio Revised Code Section 2903.01 ...6

Ohio Revised Code Section 2903.02(A) ...6

Ohio Revised Code Section 2939.01 ...8

Ohio Revised Code Section 2945.71(A)/(C)(2) ...8

Rules Ohio Criminal Rule 6 ...8,9 Ohio Criminal Rule 46 ...9

Ohio Criminal Rule 48(A) ...9

Constitutional Statutes Ohio Constitution, Section 10, Article I ...9

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SUBSTANTIAL CONSTITUTIONAL OUESTION/LEAVE TO APPEAL

The memorandum of Appellant raises no new constitutional issue for interpretation or decision by the Court or issue of public or great general concetn. Further, there is no certification of conflict from the Court of Appeals. The issues cited by Appellant and decided by the Court of Appeals are settled matters addressed by previous cases and by the Rules of Evidence.

This case involves the shooting death of 18 year old Jordan Payton on July 6, 2003. The victim in this matter had attended a post Fourth of July party in the City of Portsmouth. Several individuals at the party began to shoot dice at the party, where after an argument ensued. After a friend of defendant-appellant separated Alexander and Jordan Payton, by pushing Jordan Payton face down onto a love seat, Nathan Alexander pulled a hand gun and shot Jordan Payton in the back. Alexander fled the scene. Jordan Payton died of this injures shortly after the shooting. The amount of money in dispute was approximately 20-30 dollars.

The issue raised herein was raised at the trial level and the appellate level and have been decided by those Courts. The issue of Constitutional and Statutory right to speedy trial has been decided many times by this Court and consistently by this State's Appellate Courts. Since no new issue, issue of public or great general concern or substantial constitutional question is raised, the request for jurisdiction to appeal should be denied.

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APPELLANT'S PROPOSITIONS OF LAW Proposition of Law No. I

Where a defendant has been charged and posted bond on a criminal matter and that charge remains pending for a period in excess of tow years without any action by the defendant to delay or prevent the matter to proceed in accordance with the requirements of the Ohio Revised Code, that delay mandates that the

charge and any charges arising out of the same event against the defendant be dismissed as the delay deprives the defendant out of his speedy trial rights as defined under the Constitution of the State of Ohio under O.R.C. § 2945.71 et seq., and the Sixth and Fourteenth Amendments of the united States Constitution.

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ARGUMENT IN OPPOSITION TO JURSDICTION

This matter was originally received following bind-over from the Portsmouth Municipal Court, in case number 03-CR-653, on the charge of murder. Transcript and surety bond were received by Scioto County Clerk of Courts August 20, 2003, with an order that his bond be continued for purpose of his appearance before the Court of Common Pleas upon indictment. On November 19, 2003 the Scioto County Grand Jury returned a report to the Scioto County Court of Common Pleas finding no indictment or "no bill". Following the discovery of an additional witness the Defendant was indicted, under case number 05-CR-1247, on for Aggravated Murder, pursuant to Ohio Revised Code Section 2903.01, with a Firearm Specification, pursuant to Ohio Revised Code Section 2941.145. On March 2, 2007, Defendant-Appellant, was conveyed from Ohio Department of Rehabilitation and Corrections where he was serving a sentence from Franklin County, was arraigned on the charge as indicted and other unrelated charges, and entered a plea of not guilty. On the same date Defendant-appellant was appointed counsel by the Court. On June 1, 2007 current counsel for Defendant-Appellant filed Notice of Appearance and file Motion to Dismiss on July 26, 2007. On November 7, 2007, the Trial Court denied the Motion to Dismiss and set the matter for trial. On February 6, 7 and 8, 2007 this matter proceeded to trial; the conclusion of which, the jury duly impaneled in this matter found the defendant guilty of the lesser included charge of Murder with a firearm specification in violation of section 2903.02(A) of the Ohio Revised Code. On that day, the Trial Court sentenced the defendant to the required penalty of an indefinite term of prison of 15 years to life and an additional 3 year

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consecutive sentence on the Firearm specification and committed him to the Ohio Department of Rehabilitation and Corrections. The Court advised the defendant of his right to appeal, without costs, and advised the defendant he would be provided a free transcript of the proceedings and an attorney if he could not afford one. The defendant-appellant has filed his notice of appeal.

On July 26, 2007, Defendant-Appellant file a Motion to Dismiss the Indictment based on statutory and constitutional speedy trial grounds. The Trial Court denied that motion by Judgment Entry, following the briefing of the issues. During the trial of this matter Defendant-Appellant orally moved to reopen his motion to Dismiss. (Tr. Pg. 221-231). The Trial Court held a separate evidentiary hearing, on this issue, following the trial, on February 14, 2007. (Tr. of February, 14, 2007). The issue raised was primarily on whether the Grand Jury had voted to "no bill" the 2003 Murder charge on Defendant-Appellant. (Tr. Pg. 221, Ln. 13-17). During the evidentiary hearing 1 joint exhibit and one witness was offered for further Court consideration. Joint Exhibit I, being a certified copy of the Grand Jury Report stamp filed with the Scioto County Clerk of Court,

November 19, 2003, bearing the signature of the Foreman and reported to the Court that the accused Nathaniel J Alexander, Case # 03-CR-653, had not been indicted. (Joint Exhibit I). Called to testify was Detective James Charles, lead investigator of this case, who indicated that he had testified before the Grand Jury in 2003 concerning this matter. (Tr. 2/1/4/07, Pg. 7, Ln. 6-9). Detective Charles testified that in 2003 that there had been witnesses subpoenaed before the Grand Jury who failed to appear. (Tr. 2/14/07, Pg. 9, Ln.

1-12). Detective Charles had told a witness located after that date, following that based on this the prosecutor at that time did not allow the Grand Jury to vote on the matter. (Tr.

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2/14/07, Pg. 9, Ln. 6-15). Detective Charles went on to explain that locating witnesses on this matter for different grand jury dates in 2003 was difficult, but attempted by himself, other Portsmouth Police Officers and investigators in the Prosecutor's Office. (Tr. 2/14/07, Pg. 12, Ln. 2-19). Detective Charles testified that although he thought his statement to the witness was correct at the time, after reviewing Joint Exhibit I, he believed it to be incorrect. (Tr. 2/14/08, Pg. 13, Ln. 8-18). Detective Charles also indicated that he was involved in the attempted apprehension of Defendant-Appellant with a fugitive task force in Columbus, trying to serve his 2005 indictment and his outstanding probation violation. (Tr. 2/14/08, Pg. 15, Ln. 4-11).

Statutorv Speedy Trial:

In essence the Defendant-Appellant argues that the time between the

November 19, 2003 Grand Jury Report of no indictment or "no bill" in case number 03-CR-1806 and his present indictment on August 26, 2005 should count against the State in Ohio's statutory scheme for speedy trial calculation. Generally, a person against whom a felony charge is pending shall be brought to trial within 270 days after his arrest. R.C. 2945.71 (A)/(C)(2).

The funetion and authority of Grand Juries in Ohio are governed by both rule and statute. Crim. Rule 6; RC 2939.01 et seq. The Ohio Rules of Criminal Procedure provide for the method of selection, term and proceedings before the Grand Jury. Crim. Rule 6. This rule also directs the foreman of the Grand Jury as to his duties either upon and indictment or when no indictment is found. Crim. Rule 6. Specifically, "If the defendant is in custody or has been released pursuant to Rule 46 if seven jurors do not concur in finding an indictment, the foreman shall so report to the court forthwith". Crim. Rule 6;

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see also R.C. 2939.23. Further, where a person is held in jail, he is to be discharged unless one of several events has occurred. R.C. 2939.24. Here the clear legal effect of R.C 2939.23 and R.C. 2939.24 is to discharge or dismiss those who have been held to answer but not indicted. Black's Law Dictionary defines Discharge as: "To release; liberate; annul; unburden; disencumber; dismiss." Black's Law Dictionary, 1991,

(emphasis added). Black's goes on to define Dismiss, as "To send away, to discharQe; to

discontinue..." Black's Law Dictionary, 1991. (emphasis added)

Grand Juries serve two functions, to investigate and to charge, Baldwin's Ohio Practice, Katz Giannelli Criminal Law, Sec. 3.1, citing Hurtado v. California, 110 US 516. Both the Ohio and United States Constitutions require "no person shall be held to answer for capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury." Ohio Constitution, Section 10, Article I; United States Constitution, Fifth Amendment. The Grand Jury is an independent body not under the control of the State or its representative the prosecutor, but under the control and direction of the court of

common pleas. State ex rel. Shoop v. Mitrovich, 4 Ohio St3d 220 (1983); State v. Asher, 112 Ohio App.3d 646 (1996 Hamilton).

The State would also submit that RC 2941.33 and Criminal Rule 48 (A), both relied on by the defendant in his motion, are not directed toward a case which us pending a grand jury's consideration. RC 2941.33 is in the Revised Code Chapter relative to Indictments, and all of the statutes within Chapter 2941 pertain to cases where an indictment has been filed. No indictment was ever issued in Case Number 03-CR-653.

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In the instant case Defendant - Appellant argues that a dismissal is required to toll the speedy-trial time between "no bill" and eventual indictment, however, the statute is clear that time is counted only while a charge is pending, and does not require a court or prosecutor's dismissal with leave of court to toll the time.

Further, other chapters of the Code specifically acknowledge and distinguish between a "no bill" and a dismissal. R.C. 2953.52. I this instance the code allows for the sealing of a record of arrest, based solely on the return of a "no bill" by a grand jury, without the necessity for a separate dismissal, R.C. 2953.52; R.C. 2953.51.

It is clear from the record of this case that the September 2003 term of the Scioto County Grand Jury considered this matter. It is also clear that at that time the grand jury voted to return no indictment at that time, filing a report of such with the Court, signed by the Foreman of the Grand Jury. During the lapse of time between the "no bill" report and eventual indictment, no charge was pending before the trial court nor was defendant-appellant held, and no time accrued pursuant to R.C.2945.71.

Constitutional Speedy Trial:

In regards to constitutional safeguards to a speedy trial the Ohio Supreme Court has relied on the U.S Supreme Court for guidance. State v. Sedvaze (1997), 80 Ohio St.3d

465,citing Doggett v. United States (1992), 505 U.S. 647, also citing Barker v. WinQo (1972), 407 U.S. 514.

First, length of delay, in the present case is, approximately 24 months between Defendant-Appellant's original arrest and his eventual indictment in this matter. Also the time accruing between indictment and apprehension was approximately, 15 months when

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Defendant-Appellant was apprehended on this indictment, other charges and a probation holder in Franklin County.

Second, the reason for delay was detailed be Detective James Charles in is trial and motion hearing testimony. Specifically, Detective Charles Testified about the difficulty in finding the original witnesses in 2003 and when found compelling their appearance before the Grand Jury. He also testified at trial the huge break the case got when Montgomery County Children's Services called and he arranged to interview Moniqua Davis-Taylor, then still a minor, who was one of the few witnesses not having a felony record of convictions. Detective Charles also testified about the efforts of the fugitive task force created to try and apprehend defendant-appellant during his 15 months at large following his indictment in this matter.

The Defendant-Appellant, nor his counsel, nor his bondsman at anytime

questioned the Grand Jury's "no bill" and lack of other disposition on his original charge. Defendant-Appellant did raise the speedy trial issue in July 2007, thought counsel.

Lastly, Defendant-Appellant has raised no issue of prejudice cause by delay in this matter.

It is clear form the record that there are no new issues raised by memorandum of Defendant-Appellant. The principals of speedy trial, whether statutory or constitutional, are well developed in the state of Ohio. The claim by defendant-appellant that there was no grand jury finding of no indictment is 2003 is contrary to the record of this case. Without which defendant-appellant raises no new issue for this Court.

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CONCLUSION

WHEREFORE, based upon the foregoing, the State of Ohio respectfully requests this Court to deny jurisdiction in this matter and thus affirm the conviction of the Appellant by jury and the decisions of the trial court.

Respectfully submitted, MARK E. KUHN Prosecuting Attorney Scioto County, Ohio

By:

MA^'E. KYAIIT, Sup. Ct. # 0063392 Prosecuting Attorney

602 7'" Street, Room 310

Portsmouth, Ohio 45662

Telephone: 740.3 5 5.8215

CERTIFICATE OF SERVICE

A copy of the foregoing was served upon:

Thomas Tyack, 536 S. High Street Columbus, Ohio 43215

G

by US mail this ! day of May 2009

By:

Respectfully submitted,

4^^

MA { E. KUHN, Sup. Ct. # 0063392 Prosecuting Attorney

602 7°i Street, Room 310 Portsmouth, Ohio 45662 Telephone: 740.355.8215

MARK E. KUHN Prosecuting Attorney Scioto County, Ohio