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IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Plaintiff-Appellee,
vs.
JAMES D. BASS,
Defendant-Appellant.
Case No.
On Appeal from the FranklinCounty Court of AppealsTenth Appellate DistrictCase No. 13AP-1052
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT, JAMES D. BASS
Ron O'Brien (0017245)Franklin County Prosecuting Attorney
Laura Swisher (0071197)Barbara A. Farnbacher (0036862)Assistant Prosecuting AttorneysFranklin County Prosecutor's Office373 South High Street, 13t1' FloorColumbus, Ohio 43215Telephone: (614) 525-3555Facsimile: (614) 525-6103
COUNSEL FOR PLAINTIFF-APPELLEE
Kort Gatterdam (0040434)Carpenter Lipps & Leland LLP280 Plaza, Suite 1300280 North High StreetColumbus, Ohio 43215Telephone: (614) 365-4100Facsimile: (614) [email protected]
Jill E. Stone (0023823)P.O. Box 139Blacklick, Ohio 43004Telephone (614) [email protected]
COUNSEL FOR DEFENDANT-APPELLANT
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TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................................... i
STATEMENT OF SUBSTANTIAL CONSTITUTIONAL QUESTION AND MATTEROF GREAT PUBLIC OR GENERAL INTEREST ............................................................... 1
STATEMENT OF THE CASE AND FACTS ...................................................................... 2
PROPOSITION OF LAW ..................................................................................................... 6
WHEN THE STATE'S FAILURE TO DISCLOSE EXCULPATORYEVIDENCE IS THE REASON THE DEFENDANT WAS UNABLE TOTIMELY FILE A MOTION FOR NEW TRIAL, A DUE PROCESS ANALYSISMUST BE APPLIED ON WHETHER THE DEFENDANT WASUNAVOIDABLY PREVENTED FROM DISCOVERING THE NEWEVIDENCE; THE STATE MUST NOT BENEFIT FROM ITS FAILURE TODISCLOSE. STATE V. JOHNSTON, 39 OHIO ST.3D 48, 66, 529 N,E.2D 898(1988). IF THE STANDARD APPLIED TO THE USUALMOTION FOR ANEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE WERE THESAME WHEN THE EVIDENCE WAS IN THE STATE'S POSSESSION ASWHEN IT WAS FOUND BY A NEUTRAL SOURCE, THERE WOULD BE NOSPECIAL SIGNIFICANCE TO THE PROSECUTOR'S OBLIGATION TOSERVE THE CAUSE OF JUSTICE. UNITED STATES V. AGURS, 427 U.S. 97,111 (1977); BRADY V HARYLAND, 373 U.S. 83 (1963).
CONCLUSION ...................................................................................................................... 14
CERTIFICATE OF SERVICE .............................................................................................. 15
APPENDIX
State v. Bass, 10th App. Dist. Case No. 13AP-1052, Opinion filed June 30, 2014... Exhibit A
State v. Bass, 10th App. Dist. Case No. 13AP-1052, Judgment Entry filed July 1,2014 ............................................................................................................................ Exhibit B
State v. Bass, Franklin County Court of Common Pleas, Case No. O l CR-6524,Entry filed November 26, 2013 ................................................................................. Exhibit C
i
STATEMENT OF SUBSTANTIAL CONSTITUTIONAL QUESTION ANDMATTER OF GREAT PUBLIC OR GENERAL INTEREST
James Bass did not shoot and kill anyone. He helped the State of Ohio prosecute
members of a gang, so everyone turned on him. At trial, he had no witnesses to back his story,
Years later, the truth came out and Bass presented that truth in his motion for a new trial, The
court of appeals acknowledged the strength of the new evidence, but bought into the flawed
reasoning of the trial court that defense counsel had the information at the time of trial. What
trial attorney purposely fails to present evidence that would exonerate his client? As a result, an
innocent man sits in prison serving a life sentence for a crime many know he did not commit.
"The greatest crime of all in a civilized society is an unjust conviction. It is truly a
scandal which reflects on all participants in the criminal justice system." People v. Ramos, 614
N.Y.S.2d 977, 984 (1994). Crim.R. 33 builds upon Ohio's historical goal to prevent the
continued punishment of the unjustly convicted. See State v. Petro, 148 Ohio St. 505 (1947). If
"[o]ur [criminal justice system] has been always haunted by the ghost of the innocent man
convicted," United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923) (Learned Hand, J.),
before this Court is the ghost of James Bass.
Even though James Bass presented the trial court evidence that met all the requirements
of Crim. R. 33, the Tenth District Court of Appeals affirmed the mistaken and incorrect ruling of
the trial court. On the one hand, both courts ignored trial counsel's diligence in trying to locate
witnesses who corroborated Bass's version of events. On the other hand and without question,
the identities of those sought by counsel were those very undisclosed, exculpatory witnesses
known to the police shortly after the shooting. Ironically, the appellate court had no need to
speculate about why Bass did not know about these witnesses; Bass did not know about these
witnesses who said Bass was not the shooter because the State withheld the evidence.
1
Nonetheless, the appellate court speculated why Bass could not know the "names of
[Eddie Cartharn] and many of the potential witnesses ... since Bass admittedly was at the scene
of the killing before and during the shooting." State v. Bass, 10th Dist. No. 13AP-1052, 2014-
Ohio-2915, ¶ 39 ("Bass II"). This Court rejected a similar argurnent in State v. Johnston, 39 Ohio
St.3d 48, 61 n.22, 529 N.E.2d 898 (1988), by noting that this "argument only has validity when
the substance of the testimony or statements by these witnesses is provided along with their
names and addresses, or when their testimony is a matter of public record." The flawed
reasoning also ignored that the best proof trial counsel did not have the evidence was that he
failed to use it in trial. See State v. Larkins, 8th Dist. No. 82325, 2003-Ohio-5928, at'[ 28 (citing
United States v. Stifel, 594 F. Supp. 1525, 1540 (N.D. Ohio 1984)).
The Court's necessity to review this case is made manifest by the nature of the violation.
The "scandal" of an unjust conviction continues because the State ignored its constitutional
obligation under Brady. "[W]hile [the State] may strike hard blows, [it] is not at liberty to strike
foul ones. It is as much [the State's] duty to refrain from improper methods calculated to produce
a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v.
United States, 295 U.S. 78, 88 (1935). The Due Process Clause obligated the State to disclose to
Bass any favorable evidence material to guilt. Failure to accept jurisdiction creates an untenable
precedent, one that condones the prosecutor hiding evidence. Banks v. Dretke, 540 U.S. 668, 696
(2004). Such a dangerous precedent should not go unnoticed by this Court.
STATEMENT OF THE CASE AND FACTS
Procedacral statement: In the late fall of 2001, the Franklin County Grand Jury indicted
Appellant James D. Bass on one count of nnirder with a firearm specification, pursuant to R.C.
2903.02 and 2941.145, for the 1999 death of Miles Davis III (Davis). After a jury trial, Bass was
2
found guilty as charged in April 2002. He was sentenced to serve fifteen years to life, plus three
years for the gun specification. Bass timely appealed and, on March 31, 2003, the conviction was
affirmed. State v. Bass, 10th Dist. No. 02AP-547, 2003-Ohio-1642 ("Bass 1"). On October 29,
2003, Bass filed a motion for a delayed appeal in this Court, which was denied on November 26,
2003. State v. Bass, 100 Ohio St.3d 1506, 2003-Ohio-6161, 799 N.E.2d 185. At present, Bass
continues to serve his sentence with the Ohio Department of Rehabilitation and Correction.
Bass then filed a Petition for Writ of Habeas Corpus in the United States District Court,
Southern District of Ohio. Bass v. Jackson, Case No. 2:04 CV 507. The petition was dismissed
due to the doctrine of procedural default for Bass's failure to timely file a discretionary appeal
with this Court. On June 27, 2006, the United States Court of Appeals for the Sixth Circuit
declined to review en bane or to rehear the denial of the certificate of appealability. A petition for
certiorari was timely filed in the United States Supreme Court and was denied in January 2007.
Bass v. lVillianas, 549 U.S. 1134 (2007).
On October 6, 2011, Bass filed a Motion for Leave to File a Motion for New Trial and a
Motion for New Trial. A Supplement to each Motion was filed that included the affidavit of
Bass's trial counsel, William Owen.
The trial court denied Bass's Motion for Leave to File a Motion for New Trial and
Motion for New Trial on November 26, 2013. Bass timely appealed. The court of appeals
affirmed the trial court's decision on June 30, 2014. Bass II, 2014-Ohio-2915. This notice of
appeal and accompanied memorandum timely follows.
Fact statement: The appellate court's decision summarized pertinent facts in this case.
Bass II, 2014-Ohio-2915, ¶ 2-6, 16-36. Davis was shot in the early morning hours at the Shell
gas station located on Lockbourne Road. Thirty to fifty people were at the Shell station when the
3
shooting occurred; the scene quickly became chaotic when people tried to escape bullets fired
from multiple guns.
According to Bass, he shot once in the air wlien an argument was escalating between
Jermaine Dickerson and another man. Bass I, 2003-Ohio-1642, ¶ 32. He then fled when Jermaine
Dickerson began to shoot, and Bass was shot in the back of the leg while fleeing. He managed to
hide behind some bushes near a house at 1483 Lockbourne Road, which was next to the Shell
station. Todd Schiff, the first officer on the scene, found Bass shot and lying on the ground. An
ambulance transported Bass from Lockbourne Road to the hospital. Bass testified he did not
point bis gun at Dickerson and did not attempt to shoot anyone.
Bass was charged two years after the shooting. Much had happened to Bass during the
intervening years, including most importantly, his cooperation with law enforcement which
culminated in the well-publicized arrest of approximately 50 individuals in September 2001. Id.
at ¶ 26. When his cooperation became well-lu-iown in the community, no one would. provide
evidence to support his innocence; and no witnesses would make themselves available to Bass's
investigator.
The State relied heavily on two witnesses discovered after the 2001 gang sweep (but
shortly before trial) who testified that they saw Bass shoot Davis. Id. at^ 20-21. Each witness
received favorable treatment from the State in exchange for their testimony. The first, Darrell
Farr, admitted to Bass's investigator he lied at trial and agreed to provide Bass an affidavit
recanting his trial testimony; however, before an affidavit could be obtained, Farr was murdered.
Farr also admitted to others, including Eddie Cartharn, that he was not even present at the gas
station on the night in question. The testimony from the second witness, Carlotta Butler, differed
from the information disclosed later by public records requests.
4
Further, the State's ballistics expert, Mark Hardy, compared the bullets and shell casings
found at the scene and from Davis's body to an Intratec-9 firearm found in January 2000, which
allegedly was the murder weapon. While the Intratec-9 could not be excluded as the weapon that
fired the fatal shot, Hardy never testified or reported the bullet recovered from Davis's body
came from that specific Intratec-9. Id. at ¶ 24,
Bass supported his Motions for New Trial and Leave to File with newly uncovered police
reports that contained exculpatory information never presented at trial, which supported Bass's
trial testimony that he did not shoot Davis. Bass's investigator obtained these reports through a
public records request and, upon review, Bass realized he had not seen these reports before his
trial. For example, Ron Hale told police, "After shooting Dynamite (aka Bass), Jermaine
continued shooting at people and when he turned around, he had shot Miles Davis, the victim of
this homicide." Ricky Marshall told the police that he was present and Bass did not shoot Davis.
Police had evidence that an Intratec-9 was placed in a black Maxima right after the shooting,
Dartangnan Hill was aware that Davis was killed by one of his own, either Jermaine Dickerson
or DR who cuts hair in Southfield. Dartagnan Hill's information was confirmed by another
police memorandum, which referred to a confidential informant who identified the shooter as
being heavy set, chubby build, 5'9" to 5' 10", characteristics which did not match Bass.
In addition, affidavits were also obtained and attached to Bass's motions from people
identified in the previously undisclosed police documents. These affidavits, including from
Eddie Cartharn and from James Thomas, the person who was fighting with Dickerson, affirmed
their prior police statements that Bass did not shoot Davis. In addition, trial counsel William
Owen submitted an affidavit attesting that he did not believe that he had seen the exculpatory
information and if he had, he definitely would have made use of it.
5
PROPOSITION OF LAW
WHEN THE STATE'S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE IS THEREASON THE DEFENI)ANT WAS UNABLE TO TIMELY FILE A MOTION FORNEW TIZIAL, A DUE PROCESS ANALYSIS MUST BE APPLIED ON WHETHER THEDEFENDANT WAS UNAVOIDABLY PREVENTED FROM DISCOVERING THE NEWEVIDENCE; THE STATE MUST NOT BENEFIT FROM ITS FAILURE TO DISCLOSE.STATE V JOHNSTON, 39 OHIO ST.3D 48, 66, 529 N.E.2D 898 (1988). IF THESTANDARD APPLIED TO THE USUAL MOTION FOR A NEW TRIAL BASED ONNEWLY DISCOVERED EVIDENCE WERE THE SAME WHEN THE EVIDENCE WASIN THE STATE'S POSSESSION AS WHEN IT WAS FOUND BY A NEUTRALSOURCE, THERE WOULD BE NO SPECIAL SIGNIFICANCE TO THEPROSECUTOR'S OBLIGATION TO SERVE THE CAUSE OF JUSTICE. UNITEDSTATES V. AGURS, 427 U.S. 97, 111 (1977); BRADY V MARYLAND, 373 U.S. 83 (1963).
1. Bass Established by Clear and Convincing Evidence That He Was UnavoidablyPrevented from Discovering New Material Evidence Prior to Trial.
Because the State failed in its obligations under the Ohio discovery rules, Brady v.
Maryland, 373 U.S. 83 (1963), and the Due Process Clause under the United States and Ohio
Constitutions, Bass was unavoidably prevented from discovering the new evidence upon which
his motions relied. In a situation such as this, due process must inform the trial court's discretion
on whether to grant a new trial. See Johnston, 39 Ohio St.3d at 60. Bass did not file the new trial
motion within 120 days after trial because the State withheld exculpatory Brady material. The
exculpatory nature of the suppressed material is an integral part of the "unavoidably prevented"
procedural burden set forth in Crim. R. 33.
Brady imposed an affirmative duty on the State to evaluate evidence and provide
exculpatory evidence, See Jamison v. Collins, 291 F.3d 380, 387 (6th Cir. 2002) (citing Kyles v.
Whitley, 514 U.S. 419, 437 (1995) and Strickler v. Greene, 527 U.S. 263 (1999)). Here when the
State suppressed exculpatory evidence, Bass was unavoidably prevented from discovering the
suppressed evidence. No court needed to speculate why Bass could not discover the exculpatory
evidence. Indeed, the appellate court recognized that "[s]ome witnesses no doubt were tempted
to stretch the truth or even perjure themselves in payback for hurting them, or their friends and
6
family members." Bass II 22014-Ohio2915, ¶ 36. Bass's presence at the scene does not translate
to knowledge about who spoke to police shortly after the shooting, who told the police that Bass
was not the shooter, and who identified Jermaine Dickerson or someone else as the shooter. And
certainly, Bass's presence at the scene does not translate to witness cooperation and availability.
Bass fully documented the reasons he was unavoidably prevented from discovering the
evidence within 120 days. First, the community's hatred for Bass was common knowledge and
prevented Bass from learning the information contained in the withheld police reports. Bass's
cooperation with law enforcement was suspected and then became widely known in the
Columbus community. Bass I, 2003-Ohio-1642, ^ 26. The prosecutor's office attempted to make
arrangements to have Bass leave Columbus following his cooperation. Because of the State's
concern that the community's hatred could lead to Bass's unavailability or death, on October 3,
2001, a videotape deposition was made to preserve his testimony for any upcoming trial against
Jerry Pierce and/or Kendle Mardis. According to the prosecutor, "availability" meant "something
might happen to James prior to him testifying." Unfortunately, the videotape deposition made its
way outside the prosecutor's office, was copied, and then made available in various record stores
and things around the city of Columbus. As prosecutor Gregory Peterson testified and Bass's
former girlfriend Lakeisha Fuller iterated, Bass and his family received death threats before the
videotape was made and after its distribution on the Columbus streets. Eventually, Bass's mother
and Lakeisha Fuller were offered protection from the Columbus Police Department. In short,
Bass and those who helped Bass were marked because Bass cooperated with authorities. It is no
surprise that the groups and friends of those groups about whom Bass provided information
offered key evidence resulting in Bass's indictment and conviction.
But it was also no surprise that witnesses to the shooting who corroborated Bass's claims
7
would not cooperate with Bass or make themselves available to the defense. After Bass was
charged with murder, he tried to locate witnesses to corroborate his statements and trial
testimony, Trial counsel hired Michael Pocock, a private investigator and former BCI & I agent,
to locate eyewitnesses. According to Pocock, because of Bass's reputation in the community as a
snitch, no one would come forward to help Bass.
Second, trial counsel William Owen said in his affidavit that had he seen the newly
discovered police reports prior to trial, he would have used them, supporting Bass's claims that
he had never been provided the evidence in discovery. When trial counsel was first shown those
documents by undersigned counsel, he said he believed that he had never seen those documents.
Although he wanted to confirm his belief with his trial file, which he could not locate, "`the most
persuasive indication that the defense did not posses this evidence is the fact that the defense
never, used this evidence at trial."' Larkins, 2003-Ohio-5928, ¶ 28 (quoting Stifel, 594 F. Supp. at
1540). No evidence was introduced to the contrary by the State. Given that competent counsel
attested that he would have used the suppressed evidence that significantly undermined the
State's prosecution, the failure to grant Bass leave to file the motion was inexplicable.
Third, BNady is violated where the defendant is not given the substance of the exculpatory
material. See Johnston, 39 Ohio St.3d at 61 n.22 (citing Hughes v. Hopper, 629 F.2d 1036, 1039
(5th Cir. 1980) and United States v. Jones, 712 F.2d 115, 122 (5th Cir. 1983)). Before the trial
court, the State argued that it fulfilled its discovery obligation by providing Eddie Cartharn's
name in supplemental discovery shortly before trial. However, the State never disclosed Mr.
Cartharn's statements. This established that Bass was unavoidably prevented from discovering
the new evidence. Over twenty-five years ago, the United States Supreme Court and this Court
put to rest the notion that providing a name in discovery is sufficient to comply with Brady.
8
Johnston, 39 Ohio St.3d at 61 n.22; United States v. Bagley, 473 U.S. 667 (1985).
In addition, the State claimed on appeal that it disclosed exculpatory evidence, but cited
its own demand for discovery. This simply did not support its position that it complied with
Brady. More telling is that the State never attached any document to any pleading to support its
assertion that it disclosed exculpatory evidence; only one supplementary discovery document,
filed two weeks before trial, named Eddie Cartharn without providing any indication that the
substance of his information was exculpatory. Johnston, 39 Ohio St.3d at 61 n.22. Why did the
State not stand up in court at the hearing just before trial and proclaim that they had given all this
evidence to Owen? After all, that is what they are arguing today, yet when they had an
opportunity to say so, they stood silent.
Moreover, if Bass had the evidence but counsel did not, are we to believe that Bass held
onto evidence of his innocence for eight years before telling someone to go try and find it? To
state the proposition is to recognize its absurdity, particularly given Bass's pro se futile repeated
attempts to secure his release. Why would Bass sit in prison while witnesses died, memories
faded, and his chance at freedom continued to diminish? But this is what one has to believe in
order to affirm the trial court and the appellate court. To even speculate that he would is absurd,
arbitrary, capricious, and without a reasonable basis. In short, such speculation is clearly wrong.
Owen did not have the evidence; and Bass did not have the evidence because the State failed to
disclose it. Because the State suppressed exculpatory information, Bass was unavoidably
prevented from discovering the exculpatory information.
II. The Newly Discovered Evidence Is Material. It Significantly Challenged the State'sTheory of the Case by Identifying Someone Other Than James Bass as Miles Davis'sKiller.
A Brady violation is established when evidence favorable to the defendant is suppressed
and the defendant is prejudiced by the suppression, which is the materiality element of Brady.
9
Strickler, 527 U.S. at 281-82. When the basis of a new trial motion is the state's suppression of
evidence, Crim.R. 33's materiality standard is a due process one; that is whether there is a
"`reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A`reasonable probability' is a probability sufficient to
undermine confidence in the outcome."' Johnston, 39 Ohio St.3d at 61 (quoting Bagley, 473 U.S.
at 682). "The question [is] not whether it [is] likely that [Bass's] conviction would be overturned
in light of newly discovered evidence. Instead, prejudice depend[s] on whether `in [the
suppressed evidence's] absence he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence."' Jamison v. Collins, 291 F.3d 280, 388-89 (6th Cir. 2002) (quoting
Strickler, 527 U.S. at 289-90). The differing materiality standards are important because:
If the standard applied to the usual motion for a new trial based on newlydiscovered evidence were the same when the evidence was in the State'spossession as when it was found by a neutral source, there would be no specialsignificance to the prosecutor's obligation to serve the cause of justice.
United States u Agurs, 427 U.S. 97, 111 (1977).
Likewise, the reasonable diligence standard must also be informed by the due process
clause, In determining what is reasonable diligence under Civ. R. 4.4(A), this Court has
instructed that reasonable diligence is measured by the facts of a particular case,
"Black's Law Disctionary (5 Ed. 1979), at 412, defines `reasonable diligence' as`[a] fair, proper and due degree of care and activity, measured with reference tothe particular circumstances; such diligence care or attention as might be expectedfrom a man of ordinary prudence and activity.' As indicated by the abovedefinition, what constitutes reasonable diligence will depend on the facts andcircumstances of each particular case." SizemoNe v. Smith, (1983), 6 Ohio St. 3d,330. 332.
In re Thompins, 11.5 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, T125. Here the
suppressed police reports contained Brady material, which was the very information that counsel
and his investigator were trying to find. Since the basis of the Bass's failure to discover the
10
information was the State's suppression of exculpatory evidence, the focus of the diligence
inquiry must be on the State's failure, not on what Bass might or might not have known. But trial
counsel satisfied his burden to discover favorable evidence. He requested discovery, and sought
and received funds for an investigator who attempted to locate witnesses who supported Bass's
theory of the case; this is an example of the diligence required by rule. T'hus, failure to locate or
know who saw the shooting and supported Bass's claims of innocence was not due to any lack of
diligence on the part of Bass; it was solely due to the State's failure to provide the crux of any
exculpatory witness statement that significantly challenged the State's case. "A rule thus
declaring `prosecutor may hide, defendant must seek,' is not tenable in a system constitutionally
bound to accord defendants due process." Banks v. Dretke, 540 U.S. 668, 696 (2004).
As previously noted, the suppressed police reports contained critical information that
support Bass's claims of innocence. Ron Hale told police, "After shooting Dynamite (aka Bass),
Jermaine continued shooting at people and when he turned around, he had. shot Miles Davis, the
victim of this homicide." Ricky Marshall told the police that he was present and Bass did not
shoot Davis. Police had evidence that an Intiatec-9 was placed in a black Maxima right after the
shooting. Dartangnan Hill was aware that Davis was killed by one of his own, either Jermaine
Dickerson or DR who cuts hair in Southfield. Dartagnan Hill's information was confirmed by
another confidential informant. Another confidential memo identified the shooter as being heavy
set, chubby build, 5'9" to 5' 10", characteristics which did not match Bass. Reports also show
contradictions in statements and testimony of the State's witnesses which could have been used
for impeachment at trial.
In attempting to refute Bass's claim that the State withheld exculpatory evidence by
citing to Brady and progeny, the State demonstrated its misunderstanding of what the Due
11
Process Clause requires of it by rehashing discredited arguments. Here as in Johnston, the State
argued that it complied with its Brady obligations by providing a list of names and potential
witnesses regarding the possibility that another person may have been responsible. Johnston, 39
Ohio St.3d at 61 & n.22. This Court disagreed with this argument in Johnston, stating:
This argument only has validity when the substance of the testimony orstatements by these witnesses is provided along with their names and addresses,see .Hughes v. HopBei° (C.A.5, 1980), 629 F.2d 1036, 1039; United States v. Jones(C.A.5, 1983), 712 F.2d 115, 122, or when their testimony is a matter of publicrecord, see United States v. O'Dell (C.A.6, 1986), 805 F.2d 637, 641. Neithersituation is involved here.
Furthermore, wefmd no merit in appellant's argument that its constitutionalargument to disclose exculpatory evidence was extinguished by the trial court'sruling, under Crim.R. 16(B)(1)(g), that the statements of testifying witnesseswould be offered for inspection follovsring direct exaniination. None of thewitnesses who supplied information allegedly suppressed by the prosecutiontestified at trial. Accordingly, the defense had no opportunity to review theirstatements.
Johnston, 39 Ohio St.3d at 61 n.22; see also State v. Sowell, 73 Ohio App.3d 672, 678, 598
N.E.2d 136 (l st Dist. 1991) ("The issuance of a subpoena or the disclosure of [an individual] as a
prospective witness at a pretrial discovery conference would constitute sufficient disclosure only
if the substance of [the individual's] statement or testimony was provided along with her name
and address or if her testimony was a matter of public record.").
The suppressed police reports reflected what the State knew, not what Bass knew. While
Bass knew that a great many people were present at the scene and might have witnessed the
shooting, he had no idea who saw what during the shooting. Defense counsel requested an
investigator so that favorable witnesses could be located. Due to the community's well-known
hatred towards Bass, no witnesses would cooperate with the defense, as discussed supra. ln this
context, the State's suppression was even more egregious. The disclosure of one name, Eddie
Cartharn, did not equal Brady disclosure of exculpatory evidence. Nowhere do the documents
12
attached. in the new trial motion appear in the trial record. The State's repeated attempts to
obfuscate the record do not make it so.
The reports withheld in the instant case are remarkably similar to the reports withheld in
State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858. As in Brown, "the
undisclosed reports are material and offer independent evidence that suggests that [Bass] did not
pull the trigger and that a different party was responsible for the death of [Miles Davis 1II]. The
significance and materiality of the reports are inherent in their content, and do not rest upon how
they may have been used by the defense or how the defense might have altered its trial strategy."
Id. at ¶ 50. The suppressed reports are also remarkably similar to the reports withheld in Jamzson
v. Collins, 291 F.3d 380 (6th Cir. 2002), which undermined the prosecutor's theory of the case
and pointed to a chief prosecution witness as a potential suspect.
Here, the suppressed exculpatory reports supported Bass's testimony that someone else
shot Miles Davis III and pointed to others as potential suspects, including the chief prosecution
witness, Jermaine Dickerson. At trial, no evidence was presented that witnesses described the
perpetrator as light-complected, which Bass is not. At trial, rio witnesses testified Davis was
killed by friendly fire; Bass was not friendly or allied with Davis or Davis's friends and
associates. At trial, no evidence identified the perpetrator as "Dickerson" or "DR". None of the
withheld documents (or the disclosed documents, for that matter) supported Darrell Farr's
testilnony that Bass and Davis were arguing and that Davis had a gun, or that Bass ducked
behind a car and star`ted firing. Even the appellate court noted that "Farr's trial testimony strains
credibility[.]" Bass II, 2014-Ohio-2915, ¶ 17. The suppressed documents described Davis as a
bystander in an altercation between Dickerson and someone named James Thomas or JT.
Further, the suppressed documents supported Bass's testiniony that he shot once in the air to
13
calm the situation, then fled when his gun jainmed. Bass I, 2003-Ohio-1642, ¶ 32.
State v. Brown is instructive here. Brown also involved a situation where two material
police reports were not disclosed and that failure to disclose resulted in reversal by this Court.
Brown, 2007-Ohio-4837, at ¶ 43.
[T]he rule set forth in Brady is violated when the evidence that was not disclosed`could reasonably be taken to put the whole case in such a different light as toundermine confidence in the verdict.' [Kyles v. Whitley, 514 U.S. 419, 435(1995)]. In the end, this standard not only protects defendants; by ensuring a fairtrial, it also protects the system of justice as a whole.
Id. at ¶ 40.
Bass met his burden. He urges this Court to accept jurisdiction. Only then can he receive
the fair trial that was denied to him; a trial in which the State would adhere to the constitutional
requirements of due process and which an innocent man would have a chance at freedom.
CONCLUSION
Bass's inability to file the Motion for New Trial within 120 days of the verdict was
through no fault of his own. His inability was due to the State's suppression of exculpatory
evidence. Trial counsel's affidavit plus the trial record support Bass's contention that the
documents were withheld. Indeed, "`the most persuasive indication that the defense did not
posses this evidence is the fact that the defense never used this evidence at trial."' Larkins, 2003-
Ohio-5928, ¶ 28 (quoting Stifel, 594 F. Supp. at 1540).
"[W]hile [the State] may strike hard blows, [it] is not at liberty to strike foul ones."
Berger, 295 U.S. at 88. The State violated its duty to "to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate means to bring about
a just one." Id. The suppressed police reports contain critical information that significantly
challenged the State's case and support Bass's claims that he did not shoot Davis. In short, they
14
are material. By accepting jurisdiction, this Court will provide Bass the measure of justice that he
desperately seeks.
In addition to this case involving a felony, for the foregoing reasons, this matter also
presents a substantial constitutional question and is matter of great public or general interest.
Accordingly, Defendant-Appellant James D. bass respectfully asks this Coui-f to accept
jurisdiction for this appeal, and. ultimately for this Court to reverse the Tenth District.
Respectfully bmitted ,
4"/o: ^^M1 sk'^^^"fIll E. Stone (0023823) Kort Gatterdam (0040434)P.O. Box 139 CARPENTER LIPPS & LELAND LLPBlacklick, Ohio 43004 280 Plaza, Suite 1300Telephone (614) 581-1558 280 North High StreetE-mail: [email protected] Columbus, Ohio 43215
Telephone: (614) 365-4100Facsimile: (614) 365-9145E-mail: [email protected]
Counsel for Defendant-Appellant
CERTIFICATE OF SERVICE
I hereby certify that an exact copy of the foregoing Memorandum in Support of
Jurisdiction was sent this August 11, 2014, via regular U.S. mail to Laura Swisher and Barbara
A. Farnbacher, Assistant Franklin County Prosecutors, Franklin County Prosecutor's Office, 373
South High Street, 13th Floor, Columbus, Ohio 43 5. l^
^ vV
Kort Gat erdam050-284-403342
15
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Plaintiff-Appellee,
vs.
JAMES 1). BASS,
Defendant-Appellant.
Case No.
On Appeal from the FranklinCounty Court of AppealsTenth Appellate DistrictCase No. 13AP-1052
APPENDIX TO MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT, JAMES D. BASS
State v. Bass, 10th App. Dist. Case No. 13AP-1052, Opinion filed June 30, 2014
State v. Bass, 10th App. Dist. Case No. 13AP-1052, Judgment Entry filed July 1,2014 ............................................................................................................................
State v. Bass, PranlJin County Court of Common Pleas, Case No. 01 CR-6524,Entry filed November 26, 2013 ................................................... ..............................
Exhibit A
Exhibit B
Exhibit C
IN THE COURT OF APPEALS OF OHIO
TENTH APi'FLI..ATE DISTRICT
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Stato Of Oh.io,
1'laintil'f APPelleoF
V.
James D. Bass,
Defendant-Appellant,
I.^E C ISIQN
Rendered on June 30, 2014
(REGULAR CALENDAR)
Ron O'.I3'rien, Prosecuting Attorney, Laarra Swisher andBarbara A. Farnbacher, for appellce.
Carpenter Lipps & .Lelarid LLP, and Kort Clatterdarrt, forappellant.
APPEAL from the Franklin County Court of Common Pleas
`IYACK., J,
{T 1} Defendant-apPellant, James D. Bass, is appealing from the trial court's
ruiin,g on his motion for leave to file a motion for new trial. His assigilment of error reads:
THE TRIAL COURT ERRED IN DENYINC'.^ BASS'S MOTIONFOR LEAVE 'T'C? FILF. A MOTION FOR NEW TRIAL.
{j[ 2} Miles Da,,is was shot and killed in the early morning hours of September 11,
1999 at the Shell gas station located on Lockbourne Road on the south side of Columbus.
There were dozens of people in and around the gas station when the shooting occurred.
(T 3} There is no doubt that Bass was presorit at the scene of the homicide. He
was found 13ing in some bushes near•by with a gunshot wound to his leg. He now
acknowledges having fired a gun that night, but claims he shot into the air, not at the
No.13A.P-I052(C.P.C. No. oiCR-6524)
^
No, 13.A4P'-1052 2
victirn. Initially, however, Bass denied to police that he had a gun that night. Bass
clainied that he heard 1.o to -ii. gunshots, but none were from a gun he had fired.
{14) Later, after police had received a report Bass was the shooter, Bass
acknowledged that the gun he had was a TEC-9. The bullet which killed DaN-is was
consistent with a TEC-9, but ballistics testing could not establish that the TEC-g Bass had
was the murder weapon. Similarly, the type of ammunition in Bass's TEC-9 was
consistent with the projectile wliich killed the victim, bu.t Bass's ammunition could not be
identified as matching the projectile.
{If 5} In 2t`oo and 2001, shortly after the shooting, Bass worked as an informant
for Columbus police giving information and helping to gather eNidence about drug
traf Zcking and gang activity in the Columbus area. He even went to the point of wearing a
body wire in controlled drug buys. Due to fears for Bass's safety, the prosecutor's office
made a tape of a deposition of Bass that would be used. as eNidence should Bass become
unavailable to testify. The tape of Bass unfortunately made it out of 'the prosecutor's
office, was copied, and was made available for sale in various record stores and other
places around Columbus. This heightened concerns for the safet}• of Bass and. even for his
family, As a result, the State took steps to protect him as he was now widely known as
sorneone who was workirig with the police. (Tr. Vol, t, 74.)
{If 61 Bass was indicted on November 2, 2t^ol and charged with the murder of
17a-vTis, Between the time of the shooting and the indictment, Bass's information had led to
many gang members beitig arrested, especially members of the Deuce-Deuce Bloods, a
gang with which Bass had been affiliated. Bass noiv argues that his cooperation with the
State had a chilling effect on his ability to mount an effective defense to the murder
ch.arge. No one from the neighborhood would prmide evidence to support his claims of
in.nocence, and no witnesses would niake themselves available to Bass's investigator to be
interviewed,
{lf 7} Bass argues that key witnesses at his trial lied in retaliation for his being an
informant. Bass asserts that some witnesses, including Antlaony Forrest, initially would
have testified more favorably on behalf of Bass but then testified against him after it
became publicly known that Bass was an inforxr7.ant. (Tr. Vol, T, 70.)
No. 13AP-w52 3
(118} Bass went to trial and was convicted by a jury. On fkpril 24, 2002, he was
sentenced to a total of 1.8 years to life for murder ivith a firearm specification. He p-ursued
an initial appeal before this court and we affirmed his conviction.
{l^ 9} Bass did not pursue an. alapeal to the Supreme Court of Ohio in the time
a.llowed. His later effort to pursue an appeal to that court was disallowed.
fl 101 Bass noiv is attempting to pursue a motion for a new trial, claiming he was
wrongly condcted and that one or more of the State's witnesses perjured themselves
ivhen they testified against him,
{$ I lI Crizn. R. 33 sets forth the requirements the defendant must follow for a new
trial:
(A) Grounds. A new trial may be granted on rnotion of thedefendant for any of the following causes affecting materiallyhis substantial rights:
(6) 'Arhera new er;idezrce material to the defense is discoveredwhich the defendant could not with reasonable diligencehave discovered and produced at the trial. * * *
(B) Motion for new trial; form, times Application for anew trial shall be made by motion which, except for thecause of newly discovered evidence, shall be filed withinfonrteen days after the verdict was rendered, or the decisionof the court where a trial by ju.ry has been waived, unless it ismade to appear by clear and convincing proof that thedefendant was unavoidably prevented from filing his motionfor a neiv trial, in which case the mratior,. shall be filed withinseven days from the order of the court finding that thedefendant was unavoidably prevented from filing suchmotion vv-ithin the time prc^Nided herein.
Motions for new trial on account of newly discoveredevidence shall be filed within one hundred twenty days afterthe day upon which the verdict vvas rendered, or the decisionof the court where trial by jury has been waived. If it is madeto appear by clear and comTin.cing proof that the defendantwas unavoidably prevented from the discovery of theevidence upon which he must rely, such motion shall be filedwithin seven days from an order of the court finding that he
No. 13AP®1052 4
was unavoidably prevented from discovering the evidencewithin the one hundred twenty day period.
12) We have preNiously summazrzed the conditions an appellant must meet in
order to be entitled to leave to file a delayed n-iotion for new trial:
To obtain leave to file a motion for new trial based upoxtprosecutorial misconduct, appellant must demonstrate "byclear and convincing proof' that he was "un.avoidablyprevented" from filing the motion writhin the 14-day tiTneperiod. Crim.R. 33(B). To obtain leai-e to file a motion for anew trial based on newly discovered evidence, appellantmust demonstrate by "clear and convincing proof' that hewas "unavoidably prevented" from discovering the evidencerelied upon to support the motion wi-thin the 12o-day timeperiod. '[A] party is unavoidably prevented from filing aanotion for new trial if the party had no knowledge of theexistence of the ground supporting the motion for new trialand could not have learned of the existence of that groundwithin the time prescribed for filing the motion for new trialin the exercise of reasonable diligence.'
State v. ^.^olden, ioth Dist. No. ogAP-1oo4, 201o-Ohio-4438, 111 9, quoting State v.
Waldett, iy OhioApp,;3d 141, 145-46 (ioth I3ist.1984).
11131 IVe re-vierv a court's denial of a motion for leave to file a delayed motion for
new trial under an abuse of discretion standard. State u. 7'oivnserid, z.oth Dist. No. o$AP-
371, 2oo8-Ohio-6518. "The term 'abuse of di..scretion' connotes more than an error of law
or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionahle." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An abuse of
discretion connotes more than an error of judgment; it implies a decision that is arbitrary
or capricious, one that is witllout a reasonable basis or clearly wrong. Pembaur v. Leis, i
Ohio St.3d 89 (1982); In re Ghalz, 83 Ohio App.3d 460 (loth I7ist.1992).
I¶ 14) Counsel centers their argurnerzts around the following issue: "'When the
State's failure to disclose exculpatory evidence is the reason the defendant was unable to
timely file a motion for new trial, a due process analysis must be applied on whether the
defendant was unavoidably prevented from discovering the new evidence; the state must
not'benefit form its failure to ciisclose." (Appellant brief, at IV.)
No. 13AP91052 5
J9 I-5) Bass argues in his brief what exculpatory evidence he was unavoidably
prevented from discovering, which would be fil.ed Nvith his motion for new trial if the court
grants him leave to do so.
1116) Darrell Farr was a witness for the State testifying that he saw Bass shoot
Davis. (Tr. Vol III, 213.) Farr was arrested as part of the September 2001 gang sweep
that netted most of the Deuce-Deuce Bloods. (Tr. Vol. III, 223.) Bass asserts that Farr
agreed to provide an affidaNat recanting his trial testimony frir the nevv trial motion.
Martin Yant, a private investigator for Bass, claims that Farr stated he (Farr) was not
present at the Davis shooting. Farr claimed he perjured himself to get a better deal in his
own criminal case. Farr stated he was willing to sign an affidavit that he did not witness
the shooting. (R. 253, exhibit F.) Farr was shot and killed in August 201o before he
signed any affidavit. Farr Iikewise would not be available to testify from this point
onward, either at a hearing on a motion for new trial or at a new trial.
{¶ 17} A reading of Tarr's trial testimony strains credibility; including claims that
he did not know what a.3t3o caxiber• revolver is or that he did not know that Bass was an
informant until Farr was on the witness stand at Bass's ti-ial. Also Farr claimed he did not
knowthat M11es Davis was a member of the, 5outhfield Crips, a street gang and rival of the
Deuce-Deuce Blonds. (Tr. Vol. III, 233-34.) Eddie Cartharn, who did not testify at trial
but witnessed the shooting, claimed in a 2011 affidavit that Farr admitted that he was not
at the gas station when the shooting occurred and testified against Bass to cut a better
deal for himself. (R. 253, exhibit P.) If true, Farr's testimony as to all the key points was
pedury. Farr's statements to Yant and to Cartharn might well not be admissible as
evidence in subsequent proceedings.
J$ 1$} Kendle Mardis was identified with the Deuce-Deuce Blood gang of which
Bass was affi.liated> (Tr. Vol. 1, at 58.) After the September 2001 gang sweep, Mardis
gave infar.-tnation that led Columbus Police to ask Bass about his TEC-9 which was
suspected as the murder weapon.. (R. 253, exhibit B.) Mardis told police that Bass was
responsible for the murder, that after Bass was shot in the leg, Bass and two other people
arrii°ed by car at Mardis's after hours place, (R. 253, exhibit B.) Mardis told the police
that Bass gave him his TEC-9 to clean and told Mardis to keep the gun for him before
going to the hospital. Id. This stai-^r by Mardis was faetuall^^° unlikely as Bass was found by
No. 13AP-1052 6
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Police Officer Todd Schiff slzot in the leg in the yard of 1483 Lockbourne Rd. near the
Shell gas station where the killing occurred right after the shooting of 1:3avis. Bass was
taken from there to the hospital. Bass v. State, i.oth I7ist. No. 02AP-547, 20o3-Ohio-
1642, 117.
{T 19) This conversation ^8rith Mardis led golice to question Bass about the TEC-9
Bass owried and could still locate. Bass argues that police suspicion of Bass as the shooter
of Davis was renewed despite the parts of Mardis's report which was fabrication.
{¶ 20} Carlotta Biitler testified against Bass at trial stating that she saw Bass fire six
or seven shots total. (R. 138, Tr. Vol. IV, at 11.) Bass argues that, initially, he identified
Butler as a witness for the defense but after her brother was arrested in the September
2001 gang sweep, she came to the police in October 2ooi to give a statement against Bass.
(R. 135, Vol. T, at 59). Butler also admitted on the stand that the prosecutor was going to
talk to a judge about having her released early on her 3o-day sentence for a traffic
violation. (R. 138,17r. Vol. IV, at 4.)
{¶ 21) At trial, ballistics expert, Mark Hardy, tested the TEC-9 that was recovered
in danuaiy 200o after Bass helped them locate it. The gun jammed when Hardy test fired
it. (R.. i38, Vol. 5V, at ,5.) This was consistent with Bass's story that he fired into the air
once but then the gun jammed. (R. 253, exhibit C.) Hardy also testified that the bullet
recovered from Davis's body could have been fired from the TEC-9 but there were not
enough individual characteristics to say that Bass's gun was the gun that fired the fatal
bullet. (R. 138, Vol. IV, at 78.)
{1221 Hardy also testified that the bullet that killed Davis could not have come
from another gun that discharged gmm she11 casings found at the scene of the homicide
based on rifling characteristics. (R. 138, Vol. IV, at 85-86). 'I`he fatal bullet could have
come from the gun that shot the .330 caliber ammunition casings that were found at the
scene but the bullet from the body was inconsistent with the .33o ammunition. (R. 138,
Vol. IV, at 85-86.) Bass now claims that the bullet that struck his leg and remains there
today cox-dd be safely removed and compared to the bullet that killed Davis. At present,
the projectile is still in Bass.
11231 Anthony Forrest is Dmis's cousin. Our court summarized his testimony in
the earlier appeal:
No. s_,:^,AP-i()52
The decedent's cousin, Anthony Forrest, testified that he sawJermaine Dickerson and another person arguing. He heardone gunshot and ducked. Forrest did not remember seeingappellant at the gas station. He did not see who Dickersonwas arguing with nor did he see anyone firing a gun, but heheard approximately 1.o shots. Dickerson told Forrest thatappellant shot Davis.
7
^State v. Bass, loth Dist. No. o2fi.p-547, 2003-Ohio-A642, 1[ 2g.
{Ii 24} Jermaine Dickerson, a suspected Southfield Crip and therefore gang rival of
the Deuce-Deuce Bloods, did not testify. However, Antony Forrest's excited utterance
that Dickerson told Forrest that Bass shot Davis was admitted as evidence. Two tapes of
Dickerson were played in court at the trial. (R. 140, Vol. VI, at 5.) Defense counsel
allowed the two tapes to be played, one from Septernber 1i, ig9g and the other from
October 7, igg9, to demonstrate prior inconsistent statements made by Dickerson. The
tapes were only being offered to evaluate Dickerson's credibility. Bass claims Dickerson
was the shooter and shot both Bass in the leg and accidentally shot Davis.
{I 25} Bass clairns the police reports that he became aware of after a public record
request was made in 2008 corroborate many elements of his version of events that he did
not shoot Davis. A confidential police inter^^-ievv on April 9, 2000 stated that Davis was
shot by one of his own gang, Jermaine [Dickerson] or D.R., accidently. (R. 253, exhibit I.)
A separate confidential police report relays informant information from two different
sources that Davis was not killed by Bass and that Davis was accidently killed. (R. 253,
exhibit M.) This source of the information in the interview and report is not known.
111261 A police interview with Willia Alexander, an elderly women who was
working at 1483 .Lockbourne Road, revealed that she stated in two different interviews
that she saw Bass running through the Shell gas station as shots were still being fired, and
she stated that she saw an "Uzi" being slid across the hood of the car that Dickerson and
Davis had been driving. (R. 253, exhibit Q.) Eddie Cartharn, mentioned earlier, stated in
a March 16, 2000 police interNiew that he saw Dickerson shooting at a black man with
braided hair, but accidently shoot his friend "Dirt" [Davis] in the back. (R. 253, exhibit J.)
Eddie Cartharn stated in a 2oii affidavit that he saw Bass rtinning in the other direction
of the shooting before Davis was shot. (R. 253, exhibit P.)
IVo. 13AP-aO52 8
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{¶ 27) There are many police intervieivs from the incident, and information from
informants, that state that Bass was not initially arguing vNith Dickerson.
"I( 28) Ron Hale gave an inteMew to the police on September 14, 1999, stating that
he heard the same version. of events from two different individuals. Hale stated he heard
that Dickerson was arguing with James Thomas, then someone fired a gunshot after
Nvhich Dickerson slaot Bass and then continued shooting, when Hale turned around
Dickerson had shot Davis. (R. 253, exhibit K.)
{$ 29} The sarne :EZon Hale, in a October 7, 1999 police interview, stated that he saw
Bass fire one gunshot into the air, and observed Bass running north through the parking
lot after getting shot in the leg, and that Dickerson fired numerous shots in the direction
of Bass. (R. 253, exhibit L.) Hale also provided a lot of detailed information about the gas
station, which cars people ivere driving, the positions of the two gangs, even that
Dickerson was in an argument with James Thomas. Hale had driven with Bass tc, the gas
station, so presumalaly was known to Bass as a potential witness long before Bass's trial.
f¶ 30} Bass`s trial attorney, Wil.liarn Owen, stated in an affidavit that after
reviewing the newly discovered police reports, he believes he had never seen that
information and that he definitely would liave inade use of it prior to trial. (R, 267,
Affidavit of William Owen, at if q.,) Owen was unable to locate his trial file to confirm that
he never had seen those reports. Id. Owen is unable to state Nvith certainty what
discovery he did or did not have before trial with the exception of two documents that
were submitted with Bass's motion for a new triai, (R. 267, Affidavit of William Owen, at
1 5.) We cannot determine which two documents Owen is referring to of the many
submitted with the motion seeking leave to file a motion for a new tr°ial, though they are
most likely the April 9, 2000 CPD confidential police interviews. (R. 253, exhibit 1, M.)
f¶ 31} Bass argues that he was entitled to the security camera footage from the
Shell gas station that the police obtained. The only information about the fate of this tape,
is that it was in the possession of an assistant prosecuting attorney on December 5, 2001,
but it was never entered into evidence at trial. (R. 253, exhibit G.) Its existence was
clearly kncsval before the trial.
{¶ 32} Knowing exactly what happened when rival gang inembers begin shooting
in a public place is a significant challenge for police and eventually for a trier of fact in a
No. 13Ap'-1052 9
courtroom. What is clear from. the record before us is that Bass ivas a member of the
Deuce-Deuce Bloods and Davis was a member of the rival Southfield Crips.
{133} Bass was found shot in the leg near where Davis was shot to death. Bass
claimed to police that he was unarmed ^vvhen Davis was shot.
{¶ 34} Later when police confronted Bass with reports that Bass was known to
carry a'TEC-g, Bass admitted that he had such a firearm at the scene of the killing and he
admitted he had shot his TEC-g, but only as one of the ten or eleven gunshots heard at the
tirne of killing. As noted earlier, another witness clairned she saw Bass shoot several
tinl.es.
I¶ 35) Bass denied shooting Davis and has pointed the finger at different people at
different tames. Bass, soon after the shooting, aligned himself with the police and began
working as an undercover informant.
^^^ 361 Bass apparently helped police arrest both members of his own gang and
members of the rival gang. As a result of the his police ac&,ity, few people in the
neighborhood trusted hixn. Certainly no one wor:rld. get on a witness stand and commit
perjury to help Bass defend himself at trial. Some vwitnesses no doubt were tempted to
stretch the trutli or even perjure themselves in payback for Bass hurting them, or their
friends and family members. This was especially so if the potential witness could help
themselves in their own cases, by pleasing the police or prosecution.
f¶ 37; The problems with the State"s case were developed at trial. The problems
with Bass's ovv-n credibility were also fully explored.
{T 38} Some of the police reports put forth at trial were problematic. Bass could
well have shot Davis and then fled Avhen shots were still being fired. Willia Alexander's
version of what happened did izot fully exonerate Bass and her claims of an Uzi being
involved were unlikely. We also cannot be sure Bass was not one of the "confidential
inforYnants" who told police other people shot DaNTis.
{l 39) We cannot fully evaluate the claims of Eddie Cartharn as to what happened
but we also cannot know why Bass's defense team could not have known the names of him
and many of the potential w7tnesses at the Shell Station since Bass admittedly was at the
scene of the killing before and during the shooting.
No. 13,AF'-1052 10
III 40^ Motions for new trial shall be filed within 12o days of the verdict of giiilty.
Crim,R. 33. For a motion for a new trial to be filed outside this time window, the trial
court judge must find that the defendant was unavoidably prevented from the discovery of
the evidence upon which the defendant must rely. .tcl. The trial court judge here did not
so find. After a full review of the information before the trial judge, we cannot say the trial
court judge abused his discretion in coming to the decision to deny a belated motion for a
new trial.
g¶ 411 The sole assignment of error is overruled and the judgment of the Franklin
County Court of Common Pleas is affirmed.
Judgment affirmed.
BROW"^i and CONNOR, JJa, concur.
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT -
State of Ohio,
Plaintiff-Appellee,
V.
James D. Bass,
Defendant-Appellant.
No. 13AP-1052(C.P.C. No. oiCR-6524)
(REGULAR CALENDAR)
JUDGMENT ENTRY
For the reasons stated in the decision of this court rendered herein on
June 30, 2014, appellant's assignment of error is overruled. Therefore, it is the judgment
and order of this court that the judgment of the Franklin County Court of Common Pleas
is affirmed. Costs shall be assessed against appellant.
TYACK. BROWN & CONNOR, JJ.
/s/JUDGEJudge G. Gary Tyack
Tenth District Court of Appeals
Date: 07-01-2014
Case Title: STATE OF OHIO -VS-JAiYIES D BASS
Case Number: 13AP001052
Type: JEJ - JUDGMENT ENTRY
So Ordered
^
/si Judge G. Gary Tyack
Electronically signed on 2014-Jul-01 page 2 of 2
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 26 3:06 PM-01 CR006524
IN THE FRANKLIN COUNTY COURT OF COMMON PLEASCRIMINAL DIVISION
STATE OF OHIO,
Plaintiff, : Case No. 01 CR-6524
vs.
JAMES D. BASS,
Defendant.
JUDGE SCHNEIDER
ENTRY
Defendant, James Bass, was indicted on November 2, 2001, for the murder of
Miles Davis on September 11, 1999. A jury found the defendant guilty of murder. On
April 24, 2002, he was sentenced to a term of fifteen years in prison, plus three years
for the firearm specification.
The defendant filed an appeal raising six assignments of error. The Tenth
District Court of Appeals affirmed the trial court on March 31, 2003.
On March 5, 2004, the defendant filed a motion for compelled discovery and a
petition to vacate the judgment. In that motion, defendant raised several issues
including missing evidence and pre-trial irregularities. The trial court denied the motion.
Defendant appealed the decision, but later voluntarily dismissed the appeal.
On October 6, 2011, the defendant filed the present Motion for New Trial.
Attached to defendant's motion were numerous reports, documents, and the affidavits
of three witnesses who were not called at trial. Assuming that the witnesses would
testify consistent with their affidavits, their testimony may well be materially exculpatory.
The defendant failed, however, to provide proof that any of the evidence, or that
the testimony or identity of the potential witnesses, was not available at trial. The only
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 26 3:06 PM-01 CR006524
argument was to the effect that defendant's original attorney William J. Owen did not
recall seeing some of the evidence but would have used it had he known about it.
The court granted the defendant leave to supplement his motion to address the
issue of what information/discovery defendant's counsel had prior to trial.
On May 25, 2012, defendant filed an affidavit of William J. Owen, his trial
counsel, in an effort to address the court's concerns and his burden to prove that the
information was not available prior to trial.
Defendant's Motion for New Trial is based on a claim of newly discovered
evidence that is material, exculpatory, and not available at trial. Pursuant to Crim. R.
33(B), the defendant has the burden to show by clear and convincing proof that he was
unavoidably prevented from the discovery of the evidence.
Clear and convincing evidence is "that measure or degree of proof that is more
than a mere preponderance of the evidence, but not to the extent of such certainty as is
required beyond a reasonable doubt in criminal cases, and that will produce in the mind
of the trier of fact a firm belief or conviction as to the facts sought to be established."
State v. Townshend, 10th Dist. Franklin No. 08AP-371, 2008-Ohio-6518, ¶ 7, citing
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
The only evidence defendant has that the evidence was not available at trial is
his trial counsel's affidavit. The other arguments offered in his motion are purely
speculative,
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 26 3:06 PM-01CR006524
Further, the court granted both the defendant and the state an opportunity to
schedule a hearing before the court where Mr. Owen could be called as a witness.
Neither side elected to do so.
Given the fact that defendant has the burden of proof by clear and convincing
evidence, Mr. Owen's affidavit is very important. It is the only thing the court has been
presented that addresses defendant's burden to prove the evidence is new and was not
available prior to trial.
In paragraph four of his affidavit, Mr. Owen states that Mr. Bass's current counsel
showed him the reports and they corroborated his client's claim "that he only shot once
into the air and started to run when someone else started shooting wildly hitting Miles
Davis III and Bass in the process."
However, the best Mr. Owen can say is that "I do not believe I had ever seen that
information." This is made more difficult because Mr. Owen acknowledges that he
cannot find his file to verify this claim.
It is not surprising that Mr. Owen cannot recall with any degree of certainty that
he did or did not remember seeing the reports that defendant's counsel provided. The
trial was over eleven years ago. That is why time limits on motions for new trial are so
important and why the burden is on the defendant. Trials have to have some finality. It
is more likely than not, given the age of this case, that it would be impossible to retry it.
That is why, in addition to the evidence being discovered after trial and not available
prior to the trial, the defendant must also establish that the evidence is material, not
merely impeaching or cumulative, and that a new trial would probably produce a
different result. State v. West, 10th Dist. Franklin No. 04AP-977, 2005-Ohio-2300, ¶ 7,
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 26 3:06 PM-01 CR006524
citing State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), paragraph one of the
syllabus.
Mr. Owen further acknowledges in paragraph five of his affidavit that he has
recently reviewed the prosecutor's file and that, "Many documents were provided in
discovery, including narratives, police reports, witness statements and laboratory
reports." This lends credibility to the State's claim, although they have no burden, that
all discovery was provided.
Finally, and perhaps most damaging to the defendant's claim, is Mr. Owen's own
acknowledgement in paragraph six of his affidavit that, "Due to the passage of time, I
cannot say with certainty what discovery Defendant had and what discovery I did not
have prior to trial (with the exception of the aforementioned documents referenced
above in paragraph 5)." If Mr. Owen does not have any confidence regarding this issue,
the court is unable to find in favor of the defendant given his burden of proof by clear
and convincing evidence.
The parties do, however, agree that two documents were probably not provided.
These are the "exceptions" noted in the quote from paragraph 6 of Mr. Owen's affidavit.
These two documents were attached to defendant's original motion as Exhibits I and M.
Exhibit I is a Columbus Police Department confidential memo regarding a
conversation with Dartangnan Hill concerning the Miles Davis shooting. Hill was not a
witness to the shooting, did not identify the shooter and only offered his opinion based
on the fact that he "hears everything".
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 26 3:06 PM-01 CR006524
Exhibit M is also a Columbus Police Department confidential memo. The memo
does not really identify who is being interviewed, only "informants" - each a member of
a different gang. However, no real specifics were provided.
Assuming that trial counsel did not have either of these exhibits, the court is not
persuaded that the information is either material or exculpatory. Nor is the court
persuaded that the admission of this evidence at trial would reasonably lead to a
different outcome. Again, it is like the balance of the defendant's arguments, purely
speculative.
Further, there is nothing in either Exhibit I or M, that would support a conclusion
that the affidavits of Eddie Cartharn, James Thomas, or Kenneth Smith would constitute
newly discovered evidence.
Even if the court were to conclude that the affidavits of Cartharn, Thomas, or
Smith attached to defendant's motion are newly discovered evidence and material, they
at best impeach or contradict the former evidence which is not proof by clear and
convincing evidence sufficient to sustain defendant's burden. There is no reason to
believe that their testimony, if available at trial, would produce a different verdict. West,
10th Dist. Franklin No. 04AP-997, 2005-Ohio-2300, at ¶ 5. Based on the foregoing,
the defendant's motion is denied.
Copies to:
Laura SwisherAssistant Prosecuting Attorney
Kort Gatterdam, Esq.Counsel for Defendant
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 26 3:06 PM-01CR006524
Franklin County Court of Common Pleas
Date: 11-26-2013
Case Title: STATE OF OHIO -VS- JAMES D BASS
Case Nuniber: O1CR006524
Type: ENTRY/ORDER
It Is So Ordered.
/s/ Judge Charles A. Schneider
Electronicaily signed on 2013-Nov-26 page 6 of 6
