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Drug trafficking case reversed due to prosecutorial misconduct
TRACEY BLAIR
Legal News Reporter
Published: February 20, 2018
A convicted drug trafficker will get a new trial in Mahoning County Common Pleas Court because Youngstown police improperly vouched for a confidential informant’s credibility.
The 7th District Court of Appeals recently vacated Lionel Moses’ three second-degree felony convictions for trafficking in drugs.
Moses appealed after being sentenced to 12 years in prison, claiming he was denied a fair jury trial.
The case hinged around the state’s use of confidential informant Anthony West. The informant, who was indicted on multiple drug charges, agreed to cooperate with the Mahoning Valley Law Enforcement Drug Task Force in exchange for a lesser sentence.
Moses was among a list of people West claimed he could buy drugs from. West agreed to arrange a series of buys with Moses and wear video and audio recording equipment during the drug buys.
The informant met with Moses three times in 2013 at a Youngstown home. After each meeting, West came out of the house with heroin.
However, the recording devices that were planted on West were not working during two of the three transactions. In addition, West was never seen possessing heroin or saying the word “heroin” in any of the recordings.
Moses was charged after the Ohio Bureau of Criminal Identification and Investigation confirmed that the substances were heroin.
At trial, Officer Patton testified on direct examination that West had helped the Task Force in other cases and was “credible.”
The appellant claimed the officer’s comment was inappropriate because only a jury can determine whether a witness is credible.
Moses did not testify and no other defense witnesses were called.
The defense objected to the credibility line of questioning but the court overruled the objection.
The state argued those questions and answers were permissible due to a ruling in State v. Smith, 4th Dist. No. 15CA3686, 2016-Ohio-5062.
In that case, the Fourth District found that testimony from a state’s witness on redirect was not improper because the prosecutor did not personally vouch for the witness’ credibility.
But the 7th District panel found that the line of questioning in the Moses case amounted to prosecutorial misconduct.
“In this case, the prosecuting attorney aligned himself with the police,” 7th District Judge Gene Donofrio stated in his 3-0 opinion. “Specifically, the prosecutor asked Officer Patton if he found West to be credible `during the time he worked with us?’ Additionally, the prosecutor asked Officer Patton, `Did we attempt to help him out in any way in any of that stuff that happened aside from our case?’ The words `us,’ `we,’ `and `our’ when spoken by the prosecuting attorney to Officer Patton during trial indicates that the prosecutor’s office and the police share the same viewpoints regarding the evidence, including the credibility of West. With the prosecution aligning itself with the police so openly and on the record and Officer Patton assessing West as a `credible’ witness, the prosecution was essentially vouching for the witness. There is no indication in the record of corroboration as to why West was a credible informant.”
Appellate judges Cheryl L. Waite and Mary DeGenaro concurred.
The case is cited State v. Moses, 2018-Ohio-356.