The Akron Legal News

'Rogue' assistant prosecutor not an excuse to dismiss murder case

ANNIE YAMSON
Special to the Legal News
Published: August 27, 2015

A recent opinion released by the 8th District Court of Appeals affirmed the murder, felonious assault and kidnapping convictions of a Cleveland man who carried out a shooting at a car wash.

The defendant, Damon Dunn, appealed from the judgment of the Cuyahoga County Court of Common Pleas arguing that his case should have been dismissed due to the unethical actions of an assistant prosecutor and that the trial court abused its discretion in admitting cellular phone tower testimony and instructing the jury on flight.

Dunn was indicted in 2012 for the murder of Kenneth Adams who was found with nine gunshot wounds at a Red Zone car wash. At Dunn’s trial, a medical examiner testified that the bullet holes in Adams’ clothing were consistent with someone shooting the victim while standing over him.

Toxicology reports revealed that Adams had a significant amount of PCP in his system at the time of his death.

Several car wash employees and customers were present at the time of the shooting, but only one person could identify Dunn as the perpetrator.

Reginald Longstreet testified that, on the day of the shooting, he met with Adams and smoked PCP.

According to Longstreet, at the car wash around 4 p.m., Dunn walked up and had a brief conversation with one of the workers. He then heard Adams walk inside of the car wash and say, “Let me holler at you about that bull----.”

Before Adams could finish his sentence, Longstreet said that gunshots rang out. He looked inside and saw Dunn standing over Adams and shooting multiple times.

Longstreet admitted that he was serving a a federal prison sentence at the time of his testimony and he further admitted that he did not give a statement about Adams’ murder until six months after the shooting because he fled the state of Ohio in order to avoid federal charges.

Longstreet’s initial description of the shooter as being dressed in all black was contrary to surveillance evidence showing that the shooter wore a white shirt.

Cell phone tower evidence admitted at trial placed Dunn near the scene of the shooting instead of at the beach, where he claimed he was during his alibi testimony.

According to Dunn, he was with Marquita Lewis and Sarah Mosser when the shooting took place.

Mosser corroborated Dunn’s claims but Lewis denied being at the beach with either Mosser or Dunn.

Dunn was eventually found guilty on several charges and sentenced to 25 years to life in prison consecutive to a three-year prison term for a firearm specification.

In his appeal to the 8th District court, Dunn argued that his indictment should have been dismissed due to the actions of assistant prosecutor Aaron Brockler.

Court documents state that, 10 days prior to trial, Dunn filed a notice of alibi stating that he was at the beach with Lewis and Mosser at the time of the murder. At the time, Dunn had not waived his speedy trial rights.

One week prior to trial, Brockler showed Dunn’s counsel a printout of a Facebook conversation dated Dec. 14, 2012. The printout was a purported conversation between “Taisha Little,” the mother of Dunn’s child, and Dunn’s alibi witnesses, Lewis and Mosser.

According to Brockler, the conversations, which were initiated by Little, attempted to establish that Mosser and Lewis were going to lie for Dunn at trial. Brockler told Dunn’s attorney that the new evidence would “blow up Dunn’s alibi.”

Dunn proceeded to waive his speedy trial rights pending an investigation into Little’s involvement. Then, a subpoena issued for Little’s Facebook records revealed that the profile was created on a Cuyahoga County government computer.

Eventually, Brockler admitted that he created the fictitious profile of Little and pretended to be her in order to coax Mosser and Lewis into admitting that they were going to lie on the stand.

According to Brockler, he wanted to make Mosser angry enough that she would not testify in accordance with the alibi.

As a result of Brockler’s actions, he was dismissed from his position, an internal investigation was launched, a special prosecutor was assigned to Dunn’s case and Dunn moved to dismiss the indictment due to the fact that the state’s conduct was “egregious.”

The trial court held an evidentiary hearing on Dunn’s motion and ultimately concluded that Brockler’s actions were condemned by the state and that dismissing the case would only serve to punish the entire prosecutor’s office. It denied the motion to dismiss.

The court of appeals made the same finding in its review of the case.

“While it is true that it is unknown what Lewis’ testimony would have been at trial but for Brockler’s involvement, speculation alone is insufficient grounds to impose the most severe sanction against the state for the actions of one rogue assistant prosecutor,” Judge Kathleen Ann Keough wrote for the court of appeals. “Based on Mosser’s testimony at the dismissal hearing, Dunn’s alibi was still a viable defense with the jury being the judge of credibility at trial if Lewis testified contrary to Mosser.”

The appellate panel held that the trial court’s decision not to punish the entire prosecutor’s office based on Brockler’s conduct was supported by Ohio’s case law. It pointed out that Brockler’s actions were taken only at his own direction.

“Accordingly, we cannot say that the trial court’s decision denying Dunn’s motion to dismiss was unreasonable, arbitrary or unconscionable,” Keough wrote. “This decision, however, is by no means an endorsement of Brockler’s conduct.”

The appellate panel overruled Dunn’s first assignment of error and went on to do the same for his two remaining claims that the trial court erred by admitting cell tower evidence and instructing the jury on flight.

Although the panel did find that the instruction should not have been given, it could “not say that the trial court’s instruction on flight was prejudicial such that a manifest miscarriage of justice occurred.”

The judgment of the Cuyahoga County court was ultimately affirmed, with Presiding Judge Larry Jones and Judge Patricia Ann Blackmon joining Keough to form the majority.

The case is cited State v. Dunn, 2015-Ohio-3138.

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