1

IN THE COURT OF APPEALS

EIGHTH JUDICIAL DISTRICT
CUYAHOGA COUNTY, OHIO
CA 101868
STATE OF OHIO

Plaintiff-Appellant,

v.

ANTHONY LEMONS

Defendant-Appellee.


MOTION FOR LEAVE TO APPEAL
PURSUANT TO APP.R. 5(C) AND R.C.
2945.67(A).



Trial Court Case No. CR-323266



Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, by and through his
undersigned assistant, respectfully moves this Honorable Court for leave to appeal,
pursuant to App.R. 5(C) and R.C. 2945.67(A), the trial courts order denying the States
motion to dismiss. The reasons supporting the States leave to appeal are further explained
in the attached brief.
Respectfully Submitted,

TIMOTHY J. MCGINTY
CUYAHOGA COUNTY PROSECUTOR

/S/CHRISTOPHER SCHROEDER
CHRISTOPHER SCHROEDER (0089855)
BLAISE THOMAS (0029520)
Assistant Prosecuting Attorney
The Justice Center, 8
th
Floor
1200 Ontario Street
Cleveland, Ohio 44113
(216) 443-7733
2

MEMORANDUM IN SUPPORT
1. Introduction and Statement in Support of Appeal.
This appeal raises significant legal issues regarding a trial courts ability to sanction
the State multiple times for the same discovery violation. The trial court in this case
granted Anthony Lemons a new trial and prohibited the State from introducing key
evidence against Lemons at that retrial. The trial court has thus forced the State to try a
murder case without sufficient time to prepare and without evidence that is essential to
presenting an accurate picture of the facts to the jury. In light of this, the State believed
that its only recourse was to dismiss the case to allow the investigation to continue. But the
trial court denied the States motion to dismiss as well. That decision was an abuse of its
discretion.
The State therefore respectfully requests that this Honorable Court (1) hear the
States appeal on its merits, and (2) reverse the trial courts judgment decision to deny the
States motion to dismiss.
2. Statement of the Case and Relevant Facts.

Anthony Lemons was found guilty at trial of killing Eric Sims and attempting to kill
Jude Adamcik on or about April 11, 1994. Adamcik testified at Lemons 1995 trial and
identified Lemons as the person who shot and killed Sims. The State presented seven
witnesses at trial. Their trial testimony is outlined below:
Wilbur Sims, the brother of the victim, stated that he became alarmed as to his
brother's whereabouts when he had not heard from him in ten days to two
weeks. He went over to 1875 Cliffview Manor, Apt. # 203, to check on him. After
receiving no response at the door, Wilbur contacted the custodian to open the
door. Once in the apartment, Wilbur saw his brother slumped over the table
next to the couch, apparently shot to death. Wilbur also testified that although
he had never seen his brother use drugs, he suspected him to be a user.
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Michael Rodgers, a Cleveland police officer, stated that he responded to a call
for a dead body at Eric Sims' apartment. Upon arrival, he met with fire and EMS
personnel and was informed that the matter might involve a homicide. Rodgers
then secured the crime scene and notified the Homicide Unit of the Cleveland
Police Department. Rodgers went on to identify the photographs taken of the
crime scene, which were admitted into evidence. He also authenticated a crime
scene sketch, as well as two spent .25 caliber shell casings, as being those found
by him in the victim's apartment.
Dr. Robert Challener testified that the victim sustained two gunshot wounds;
one was in the left chest, while the other was found in the back of the victim's
head at the junction of the head and neck. This second wound caused extensive
destruction to the victim's brain stem and was immediately fatal. During
autopsy, Dr. Challener recovered two .25 caliber pellets from the victim which
were admitted into evidence. He further noted that the victim had trace
amounts of alcohol in his blood and cocaine in his urine. The significance,
according to Challener, is that Eric Sims had ingested cocaine within eight
hours of his death. He was able to ascertain this because the cocaine had been
metabolized by his body, and was ready to be eliminated. After weighing all
variables used to determine the approximate time of death, it was Challener's
opinion that Eric Sims had been dead approximately 24 to 72 hours upon
discovery. On cross-examination, Challener specified that since the body had
been discovered on April 14, 1994, the date of death would be between the 11
th and 13 th of April.
Detective Samuel Reese identified a photocopy of a crime scene drawing he
made in connection with the murder of Sims. He further authenticated and
identified the crime scene photos, and the two .25 caliber spent casings seized
at the murder scene.
Detective Kovach testified that from April, 1994, to October, 1994, the
investigation of the murder of Eric Sims yielded no meaningful information.
However, in October, and again in November of 1994, Kovach received
anonymous tips which led to and included a license plate number. Running the
plate number resulted in Kovach learning that the car belonged to John
Thompson of Euclid. On January 5, 1995, after several failed attempts to reach
Thompson by phone, Kovach reached a potential witness, Jude Adamcik. That
same day, Kovach drove to Euclid, picked up Adamcik and returned to the
Homicide Unit where he recorded her written statement. This was labeled as an
exhibit, but not admitted into evidence. In that statement Adamcik identified
the shooter as a male by the name of Tone. The detective diligently perused
the police files and put together a photo lineup of six individuals known to use
the nickname Tone. On January 9, 1995, this photo lineup was shown to
Adamcik, and Adamcik was able to identify the appellant, Anthony Lemons, as
the person who shot and killed Eric Sims. After many attempts to arrest
appellant, including a failed surrender on Mr. Lemons' part, appellant was
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arrested on April 26, 1995. Ms. Adamcik was asked to view a lineup, and
unequivocally identified the appellant as the perpetrator.
Detective Robert Minor, of the Cleveland Police Department Scientific
Investigation Unit, testified that on January 8, 1995, during the investigation,
and prior to the arrest, he was dispatched back to the original crime scene to
verify another part of Ms. Adamcik's story. Adamcik had claimed that appellant
had shot at her just after killing Sims, and that a bullet should be lodged in the
wall of the apartment. Upon arriving at the scene, Minor took three photos of a
hole located on the rear wall near a closet. These pictures were entered into
evidence. Significantly, Minor also stated that he was able to locate the same
suspected bullet hole in an original crime scene photo. However, no bullet was
ever recovered.
Jude Adamcik testified that she was an eyewitness to the murder of Eric Sims.
She related that on April 4, 1994, she went out with her boyfriend, John
Thompson, to the Ground Round Restaurant. After dinner, at approximately
10:00 p.m., she was dropped off at the corner of Mayfield and Green, so that her
boyfriend would not know where she was now living. In the past he had been
abusive. In order to get to her home, she proceeded to hitchhike. Harold Salters,
a friend of Ms. Adamcik, stopped and offered her a ride. Also in Harold's car was
a man she did not know. On the way home, Salters indicated to Adamcik that
they had to make a stop at Cliffview Manor. Once at Cliffview, Adamcik waited
in the car as Harold and the unidentified man went into the building. However,
Adamcik developed a need to go to the bathroom, so she entered the apartment
building and proceeded to the apartment from which she heard her friend
Harold's voice. Ms. Adamcik entered the apartment, a one room apartment with
a kitchen and a bath, and saw four men: Harold Salters, the man with Harold,
Mr. Sims, and Lemons. She was introduced to Lemons by Harold who identified
the appellant as Tone. As Adamcik entered the apartment she indicated that
the appellant and the three other men were engaged in a drug transaction. She
identified Lemons as the person who was dealing the drugs. She then entered
the bathroom to use the facilities. While in the bathroom, appellant opened the
door and told Adamcik that her friends had left, and that he had given them
drugs in return for sexual favors to be performed by her. Specifically, appellant
told Ms. Adamcik to perform oral sex. Feeling she had no choice, she began to
do as requested. While she and appellant were so engaged, Sims began
forcefully knocking on the bathroom door stating that he wanted some drugs,
and his rent payment for the use of his apartment to perform the drug
transaction. Appellant quickly became irritated, pulled up his pants and exited
the bathroom. Lemons began yelling at the victim and bitch slapping him.
Lemons then pulled out a gun and shot Sims once. Approximately, ten seconds
later, appellant shot Sims again. Lemons then turned his attention to Adamcik.
He fired one shot as Adamcik dove to the floor. Adamcik laid on the floor, to
play dead, and did not move for a short period of time. Upon getting up, she
noticed Sims slumped across the arm of the couch and proceeded to check for a
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pulse. Realizing he was dead, and fearing for her safety, Adamcik wiped the
apartment clean of her fingerprints and left. She told her boyfriend what had
happened, afraid to notify the authorities, and subsequently decided it would
be safer not to get involved. Upon being contacted by the police, she related the
events of the evening and participated in both the photo lineup, and an in
person lineup. On each occasion, she identified appellant as the shooter.
See State v. Lemons, 8th Dist. No. 71644, 1998 WL 12380, at *1-3.
In 2009, Lemons filed a supplementary motion for a new trial. The trial court
deliberated on that motion for more than four years, held an evidentiary hearing, and
accepted numerous briefs from the parties. Finally, on December 23, 2013, the trial court
granted Lemons motion for a new trial based on its finding of several Brady violations.
The trial court found that the 1995 prosecution team failed to disclose the following
evidence to Lemons: (1) that on January 8, 1995, Cleveland Police presented Adamcik with
a series of photos and that she did not identify Lemons, and (2) that Adamcik claimed that
Lemons was wearing the same shoes during the lineup that he was wearing the night of the
homicide, but that those shoes were not manufactured until after the homicide. The trial
court found that the undisclosed evidence was materially exculpatory and granted Lemons
motion for a new trial.
The State subsequently moved to dismiss the indictment pursuant to Crim.R. 48(A).
On March 13, 2014, the trial court denied the States motion to dismiss without prejudice
and likewise denied Lemons motion to dismiss with prejudice. The court scheduled the
matter for trial on September 2, 2014. On August 25, 2014, the trial court issued another
ruling prohibiting the State from introducing Adamciks prior testimony against Lemons
because Adamcik had since passed away and therefore could not be fully cross-examined
as to the issues surrounding her identification of Lemons. That evidentiary ruling is the
subject of a simultaneous appeal by the State brought pursuant to Crim.R. 12(K). In light of
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the trial courts ruling gutting its case, the State renewed its motion to dismiss on August
29, which the trial court again denied.
It should be noted that the trial court took more than four years to decide the issues
Lemons raised in his motion for new trial, and deliberated after a full hearing and briefing
for over a year. This case thus presented issues that were not easily decided, with neither
side presenting overwhelming evidence and argument in support of its position. The fact
that the issues were narrowly decided weighs heavily toward granting the States motion
for dismissal. Since the decision denying the initial motion for dismissal on March 4, 2014,
the State has not been fully able to further find or explore other potential evidence or
witnesses in this matter, including locating witnesses with whom Lemons had the
opportunity to discuss the facts of his conviction.
Moreover, the trial courts decision to sanction the State by granting Lemons
motion for a new trial as a result of the finding of a discovery violation was sufficient. Now,
the trial court has denied the State the use of the eyewitness and attempted murder victim,
Jude Adamcik, as additional sanctions. To deny the States motion to dismiss and to force
the State to proceed to trial without its most important evidence would amount to
unreasonable sanctions for the violation, and would preclude the use of later-discovered
evidence or disclosures by Lemons that could be used in this prosecution.





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3. Proposed Assignment of Error I:

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE STATES
MOTION TO DISMISS.

a. Legal standard for a States motion to dismiss.

This Court has previously outlined the legal standard applicable to a motion by the
State to dismiss a case:
Crim.R. 48(A) provides that the state, by leave of court and in open court,
may file an entry of dismissal which will terminate the prosecution. R.C.
2941.33 provides that the prosecuting attorney may enter a nolle prosequi
with leave of court on good cause shown and in open court. These provisions
are essentially identical, except that R.C. 2941.33 provides that a nolle
prosequi entered contrary to these provisions is void.

Thus, where the city's motion for a nolle prosequi meets the good cause and
open court requirements of Crim.R. 48(A), it should be granted.

Lakewood v. Pfeifer, 83 Ohio App.3d 47, 50-51, 613 N.E.2d 1079 (8th Dist.1992) (citations
omitted). The trial courts denial of a motion by the State to dismiss is a final, appealable
order. Id.
b. The trial court refused to dismiss Lemons case based on an
erroneous, categorical rule that it will not dismiss criminal cases
without prejudice.

During a pretrial on the States renewed motion to dismiss without prejudice, the
trial court stated that it believed there was no distinction between dismissal with prejudice
and dismissal without prejudice in a criminal case. The trial court explained that it was
therefore denying the States motion to dismiss without prejudice because it believed the
State was asking it to do something it did not have the authority to do. The State then
responded that it would agree to an unqualified dismissal. The trial court denied that
request without explanation.
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As an initial matter, the trial courts refusal to recognize the legal distinction
between dismissals with or without prejudice was itself a legal error. Ohio courts have
repeatedly recognized such a distinction. See State v. Townsend, 8th Dist. No. 97544, 2012-
Ohio-3452, at 13 (As a general rule, the dismissal of an indictment is without prejudice *
* *. However, a trial court has the inherent power to dismiss with prejudice only where it is
apparent that the defendant has been denied a constitutional or statutory right * * *)
(citations and quotations omitted). Moreover, the State cured any error by agreeing to an
unqualified dismissal. The trial courts belief that it had no authority to dismiss the case
without prejudice not only disregarded this Courts prior precedents, but it should have
been irrelevant to what the State was requesting.
The only requirements the State had to satisfy to obtain a dismissal under Crim.R.
48(A) were good cause and that the motion was made in open court. The motion was
made in open court and the States belief that it could not try this case without Adamciks
testimony which the trial court excluded just a week before established good cause for
dismissal. But rather than explain why the State had or had not provided good cause, the
trial court appears to have adopted a categorical rule that it will not dismiss a case without
prejudice because it never has the legal authority to do so. This Court must step in to
correct the trial courts misapplication of Ohio law.
c. The trial courts refusal to dismiss the case cannot be justified as a
discovery sanction because a dismissal without prejudice is the
least-severe sanction consistent with the purposes of the rules of
discovery.

The Ohio Supreme Court has recently held that a trial court abuses its discretion by
dismissing a case with prejudice as a discovery sanction without determining and applying
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the least severe sanction consistent with the purpose of the rules of discovery. State v.
Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971. While Darmond does not
prevent a court from dismissing a case with prejudice, it does require a court to consider
the efficacy of less severe sanctions first.
In this case, dismissal without prejudice is a less severe sanction that would be
appropriate. The trial court has granted Lemons a new trial based on its finding of Brady
violations and further sanctioned the State by prohibiting it from introducing Adamciks
testimony. Without its best evidence of Lemons guilt, the State cannot go to trial without
conducting further investigation. This provides the State with good cause to dismiss
Lemons case to preserve its ability to seek justice for Erik Sims murder and to safeguard
Lemons due process rights.
d. Dismissal would adequately protect Lemons rights.

There are three factors that should govern a trial Courts exercise of discretion in
imposing a sanction for a discovery violation committed by the prosecution. Darmond, at
35. Those factors are (1) whether the failure to disclose was a willful violation of Crim. R.
16, (2) whether foreknowledge of the undisclosed material would have benefitted the
accused in preparation of a defense, and (3) whether the accused was prejudiced. Id. citing
State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983). Application of these factors to
Lemons case clearly supports applying a sanction less than dismissal with prejudice.
As to the first factor, the record in this case does not support a finding of a willful
discovery violation. To the contrary, former assistant prosecutor Steven Dever testified
that he did in fact disclose to the defense Adamciks statement that she preferred to see an
in-person lineup, and stated that he would have shared the information about the creation
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date of the Air Jordan shoes. (Tr. 233; 240-241.) The fact that the prosecutors green card
does not contain a note of exculpatory evidence supports the fact that the trial prosecutor
was unaware of any exculpatory evidence at the time he responded to Lemons discovery
request. And while there is an ongoing duty to disclose exculpatory evidence, it is
reasonable to assume that the trial prosecutor believed that the prior prosecutor had
verbally disclosed this information, consistent with the testimony elicited during the
hearing on Lemons motion.
The second factor requires Lemons to demonstrate that foreknowledge of the
undisclosed material would have benefitted him in preparing his defense. By granting
Lemons motion for a new trial, the trial court found that the evidence would have been
useful to Lemons defense. The State does not intend to re-litigate the motion for a new trial
here. But the law is clear that in order to implicate Brady, the withheld material evidence
must be wholly within the control of the prosecution. Coe v. Bell, 161 F.3d 320, 344 (6th
Cir. 1998). In fact, the government is not obliged under Brady to furnish a defendant with
information which he already has or, with any reasonable diligence, he can obtain himself.
United States v. Starusko, 729 F.2d 256 (3d Cir., 1984).
Furthermore, there is no Brady violation where the defendant is aware of the
essential facts that would allow him to use the information at trial. Spirko v. Mitchell, 368
F.3d 603, 610 (6th Cir., 2004). While the State respects the trial courts decision to grant
Lemons a new trial, the State maintains that this evidence was either previously disclosed
to Lemons defense or fails to satisfy the Brady standard.
One of the trial courts most significant findings in its decision to grant Lemons a
new trial was the fact that Jude Adamcik claimed she recognized the shoes Lemons wore
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during the 1995 in-person lineup as the same shoes he wore during the murder. But the
particular pair of shoes Lemons was wearing during the lineup was not manufactured until
1995, after the murder occurred. From this, both Lemons and the trial court concluded
that Adamciks identification was faulty. The shoes Lemons wore during the lineup Air
Jordan Xs - were released in 1994. The particular pair of shoes Lemons was wearing
during the lineup were not manufactured until 1995 after the murder but Lemons could
simply have been wearing another identical pair of Air Jordans at the time he killed Sims.
Moreover, the State introduced evidence during Lemons post-conviction proceedings that
there were numerous kinds of white Air Jordan sneakers released between 1990 and 1995
that were similar in kind and appearance. Adamciks belief that she recognized Lemons
shoes was at best marginally relevant and did not rise to the level of reversible error under
Brady.
The third factor also supports dismissal without prejudice. Lemons was tried and
convicted of murder and attempted murder. Whether analyzed as a discovery violation or a
due process violation, both tests require a demonstration of prejudice. See Parson, supra,
and Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).
Lemons claims that he will be unable to examine the States primary witness, Jude Adamcik,
with the undisclosed evidence at his retrial. He exclusively relies on a recent opinion from
the Eighth District to support his claim. State v. Keenan, 8th Dist. No. 99025, 2013-Ohio-
4029, (Gallagher, J. dissenting.) Lemons argument is both legally and factually flawed. A
dismissal without prejudice would adequately sanction the State and protect Lemons
rights.
e. Lemons Reliance on State v. Keenan is Misplaced.

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Lemons asked the trial court to dismiss his case because he now feels that a new
trial is an insufficient sanction. However, to grant a motion to dismiss after retrial is
granted based on the same evidentiary violation creates a completely unworkable
standard. See State v. Keenan, 8th Dist. No. 99025, 2013-Ohio-4029, at 51 (Gallagher, J.
dissenting.) It is important to note that the Ohio Supreme Court has accepted the Keenan
case for review and a decision in that case remains pending.
In Keenan, a majority of this Court affirmed the trial courts order dismissing the
defendants case with prejudice despite the fact that the state was already sanctioned twice
for the same violation: a retrial was ordered from the federal court and the trial court
prohibited the use of prior testimony. This Court, and Keenan, relied primarily on this
Courts prior decision in State v. Larkins, 8th Dist. No. 85877, 2006-Ohio-90. As the dissent
in Keenan correctly noted, the:
Larkins court essentially shoe-horned a due process argument - that the new
trial awarded as a sanction for the Brady violation would violate a
defendants right to due process in light of the passage of time and
degradation of witness memories - into the framework for analyzing
sanctions used to remedy ongoing pretrial discovery violations pursuant to
Crim. R. 16.

Keenan at 49 (Gallagher, J. dissenting.)
Under Darmond, however, the trial court is required to analyze less-severe
discovery sanctions before considering dismissal. The court in Larkins failed to do so,
erroneously holding that such a requirement did not apply to discovery violations by the
State. See Larkins, at 36-40. Larkins is thus no longer good law following Darmond, and
this Courts reliance upon Larkins in Keenan was improper. This Court should not
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compound the error further by accepting Lemons invitation to rely on a line of precedent
the Ohio Supreme Court has overruled.
The Eighth District, in both Keenan and Larkins, granted relief because the court
found that the defendants could not be placed into the same positions they were in at the
time of the original trial. This has never been the standard. It is entirely unworkable and
would prohibit a retrial whenever a Brady violation is found years later. Keenan, at 53
(Gallagher, J. dissenting.) Instead, [m]ost courts have established that the typical remedy
for a Brady violation is the granting of a new trial. Id. citing State v. Mapp, 3d Dist. No. 14
1034, 2011-Ohio-4468, at 32; United States v. Presser, 844 F.2d 1275, 1286 (6th
Cir.1988). Lemons has not met his burden to establish why the remedy of a new trial
which he requested in now insufficient. Speculative claims of prejudice are insufficient to
demonstrate a due process violation. State v. Shilling, Wayne App. No. 08CA0002, 2008-
Ohio-4951, at 13, citing State v. Walls, 96 Ohio St.3d 437, 775 N.E.2d 829, 2002-Ohio-
5059, at 56. Lemons has presented nothing more than speculation.
f. The trial courts decision to deny the States motion to dismiss and
to prohibit it from introducing Adamciks testimony will prohibit the
State from ever retrying Anthony Lemons with any new evidence it
may uncover in its investigation.

While Jude Adamcik is now deceased, her death does not prohibit the State from
collecting and presenting additional evidence against Lemons. The State has not been fully
able to locate potential witnesses in this matter, including witnesses with whom Lemons
discussed his case, or to discover additional potential evidence. If the trial court imposes a
less-severe sanction of dismissal, the States investigation of this case will continue. But if
the trial court forces the State to go to trial without its best evidence, an acquittal based on
that erroneous evidentiary ruling will foreclose the State from ever presenting any new
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evidence against Lemons it may discover in the future to a jury. See Evans v. Michigan, ---
U.S. ---, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2013) (even an erroneous acquittal bars retrial on
double jeopardy grounds). The trial court has already sanctioned the State by granting
Lemons a new trial and excluding Adamciks testimony from that trial. The State asks that
this Court prohibit the trial court from imposing any further sanctions that would interfere
with the States ability to continue its investigation into the murder of Eric Sims.
The trial court found that the issues in Lemons motion for a new trial were
sufficiently complex to justify a delay of nearly four years from 2009 to 2013 to rule on his
motion. The State has to deal with those same issues in investigating and preparing this
case. To force the State to proceed to trial on this case, without its best evidence, would be
unreasonable and arbitrary.
CONCLUSION
This Court should grant the State leave to appeal in this case. The trial courts refusal
to allow the State to dismiss this case will effectively force the State into a trial it cannot
win because the trial court has prohibited it from using some of the most important
evidence in this case. A dismissal would protect Lemons rights, adequately sanction the
State, and preserve the States ability to retry Lemons for the murder of Eric Sims if the
investigation ever yields additional evidence. The State therefore respectfully asks this
Court to grant the State leave to appeal the trial courts decision and to hear this case on its
merits.
Respectfully Submitted,

TIMOTHY J. MCGINTY
CUYAHOGA COUNTY PROSECUTOR
15


/S/CHRISTOPHER SCHROEDER
CHRISTOPHER SCHROEDER (0089855)
BLAISE THOMAS (0029520)
Assistant Prosecuting Attorney
The Justice Center, 8
th
Floor
1200 Ontario Street
Cleveland, Ohio 44113
(216) 443-773
16


CERTIFICATE OF SERVICE
A copy of the foregoing Motion for Leave to Appeal has been sent this 2
ND
day of
September, 2014 to Kevin Spellacy (kspell@mghlaw.com), and David Malik
(dbm50@sbcglobal.net), counsel for Defendant-Appellee Anthony Lemons.


/S/CHRISTOPHER SCHROEDER
CHRISTOPHER SCHROEDER (0089855)
Assistant Prosecuting Attorney