The Akron Legal News

Man who was convicted of murder 25 years ago loses yet another appeal

ANNIE YAMSON
Special to the Legal News
Published: May 6, 2014

A petition for postconviction relief from a 25-year old murder conviction was deemed untimely by the 8th District Court of Appeals last week.

The Cuyahoga County Court of Common Pleas judgment was affirmed by a three-judge appellate panel which ruled that DeVaughn Jackson did not attach any new evidence to his petition in order to prove his innocence.

Jackson was convicted, along with three others, in 1989 of aggravated murder and aggravated robbery for the shooting death of Kevin Fielding.

Case summary states that Fielding, 25, died form a single contact gunshot wound through his left ear in the early morning hours of Dec. 31, 1988.

He was found in the driver’s seat of his car which was parked in the lot of a convenience store in east Cleveland.

The police had no leads in the investigation until Tremel Smith came forward with information about the murder.

He told the police and the trial court that, on the day of the shooting, he was with his girlfriend, Rita Peak, Andre “Dre” King, Charles Van Johnson and Jackson, who was also known as “Capone.”

The group decided to have Peak perform an act of prostitution so that they could get money for drugs.

Smith, Peak and Johnson walked to a local convenience store where they found Fielding sitting in his car.

Johnson approached the car and talked to Fielding before Peak got into the passenger side and began touching and talking to him.

Smith said he then saw King and Jackson walk up the street and directly to Fielding’s car.

King opened the passenger side door, pulled Peak from the car and wrestled with Fielding.

Jackson opened the driver’s side door, put a gun to Fielding’s head and fired one shot into his left ear.

Initially, Jackson denied having any involvement in the killing despite the fact that both Smith and Peak named him as the shooter.

Eventually, he broke down and confessed to police saying, “You got me.”

Jackson took the stand in his own defense at trial, claiming that he was with King the entire night and that Smith and Peak lied in their statements to police.

A jury found him guilty as charged and he was sentenced to consecutive prison terms of three years each for two firearm specifications, 30 years without the possibility of parole for the aggravated murder and 10 to 25 years for the aggravated robbery.

Jackson then began a long journey of appeals. His direct appeal was overruled in 1992 when the Eighth District found there was sufficient evidence to support the convictions.

Jackson filed his first petition for postconviction relief in 1996, arguing that he received ineffective assistance of counsel because his attorney failed to subpoena King as a witness for the defense.

In the petition, Jackson claimed that King’s “testimony could have been used as an alibi being that (Jackson) and Andre King were together the whole time when the state’s principal witness, Tremel Smith, accused the both of them of being together at the crime scene as perpetrators.”

In support of this argument, Jackson attached an affidavit from King which stated that he had pleaded guilty to a lesser charge of manslaughter because “three other people also had been indicted and they all have been found guilty of murder.”

In the affidavit, King claimed, “DeVaughn Jackson was at my house with me,” and that neither of them was involved in the crime. The affidavit was dated March 9, 1993.

The trial court proceeded to deny the petition and Jackson’s appeal of that ruling was dismissed for being untimely.

On March 29, 2012, 22 years after his original conviction, Jackson filed another petition for postconviction relief, the denial of which became the subject of his most recent appeal.

In the petition, he claimed that he was “now in possession of newly discovered evidence proving his actual innocence.”

The evidence Jackson referred to was another affidavit from King, dated 2003.

Jackson claimed that he had only recently learned that the document existed, as it was in the possession of an “elderly relative” who had “misplaced” it, therefore he was prevented from discovering the new evidence.

“Jackson asserted that King would provide testimony that would exonerate him,” wrote Judge Kenneth Rocco for the court of appeals. “Jackson argued that he was ‘excusably ignorant of King’s false statements against him because King provided false statements to law enforcement in exchange for a favorable plea deal.”

In direct opposition to his own argument, “and in disregard of the fact that King did not testify at Jackson’s trial,” Jackson also argued that King’s affidavit showed a strong probability that the result would be different if a new trial was granted.

The court of appeals found that King’s 2003 affidavit was essentially identical to the one presented in 1993. Additionally, Jackson did not file his own affidavit in support of his assertions.

“At any event, as this court’s detailed decision of the facts of this case demonstrates, Jackson presented a nearly identical 1993 affidavit from King attached to the first untimely petition for postconviction relief,” wrote Judge Rocco. “Under these circumstances, he could not establish either that he was ‘unavoidably prevented’ from discovering ‘new’ evidence or that any constitutional error occurred at his trial.”

The appellate panel concluded that the trial court properly denied the petition because it was untimely and the lower court lacked jurisdiction to consider it.

Judges Mary Boyle and Sean Gallagher concurred.

The case is cited State v. Jackson, 2014-Ohio-1514.

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