REPORT AND RECOMMENDATIONS Petitioner Larry DeLawder brought this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 to obtain relief from his convictions for aggravated murder and tampering with evidence in the Scioto County Court of Common Pleas.
DeLawder pleads the following grounds for relief:
Ground One: Delawder's Trial Counsel rendered Grealtly Ineffective when he failed to call a key witness to Prove Delawder's injurys and self-defence claim.
Supporting Facts: Delawder had 19 witnesses on his witness list, yet his lawyer only called 8 leaving out multiple witnesses that could have benefited [sic] Delawder's claimes. THE most important Being ONE Terry Johnson, Scioto County, Doctor at the Jail. Mr. Johnson was 14th on the witness list field on 1-27-2010 and is the same doctor that examined Delawder and Put Him on 3 Different types of pain medication, while under HIS Care. The medications are as followed: Ibuprophen 800 MG, Tylenol 500 MG and last being Flexeril 10 MG. Flexeril being a mild narcodict that can only be prescribed. Delawder took this medication twice a day. Mr. Delawder employer one Judge John Kehoe testified that Delawder had worked for him the whole day and he never seen Delawder in any pain or seen that he was injured. Terry Johnson's
testimony was cridical to this case and the injury he found on Delawder was the "key" to Delawder's self-defence claim sence the State claimed Delawder lied about being attacked, and his witnesses never touched Delawder. Terry Johnson's could have severly undercut these claims, Because doctors don't put a patient on several medications without due cause, that would be malpractice. By Delawder's Counsel not calling this witness he left out a substantial part of Delawder's self-defence Defence, "The Proven injury" to justify "His" Delawder's actions.
Ground Two: Trial court committed plain error when it improperly instructed the jury regarding the Purpose and Causation elements of the Aggravated Murder charges.
Supporting Facts: The trial court used this jury instruction in regards to Aggravated Murder trial, and its language has been deemed to violate Constitutional rights because it Introduces a Civil law concept of Liability that effectively eliminates the State's Burden to prove the men rea element of the underly offence. The trial court used 2- CROJI 417.01 and 2CROJI 417.23. However 2-CROJI 503.01 indicates that in a aggravated murder case the jury should Not be instructed that when the "Central Idea" or "Gist" of the offence is a Prohibitation of a certain nature. Also used was the Defendant is responsible for the "Natural and Foreseeable Consequences" or results that follow in the ordinary course of events from the Act or failure to Act "Regardless of what he may have "Intended" to Accomplish by his Conduct"!
Intention was key in this case and separated it from involuntary manslaughter to Aggravated Murder, these instruction has been known to confuse jurys in murder case's and also put forth a civil law concept of liability in a criminal case, Which has been deem a violation of rights.
Ground Three: Trial court violated Delawder's rights of Due Process and a fair trial when it entered judgments of convictions for robbery, aggravated robbery and Both Counts of Aggravated Murder, when those judgments were against the manifest weight of evidence.
Supporting Facts: Delawder was accused of Attempted theft of property out of a truck, yet there was never any fingerprints or touch DNA found inside the truck, even though a trial witness said Delawder was in the truck "rummaging" threw it. The was no property to be found missing, no forced intry found. All witnesses initial statements, including Parkers wrote that when they exited
the Bar that Delawder was "Beside or around" the truck not one witness said "In or Rummaging threw" These statements change for in or exiting at Preliminary's by one witness, but he didn't know which side of truck Delawder was in. At trial this same witness now claimed he seen Delawder was in the left side of the truck bent down rummaging threw things. There was no physical evidence that put Delawder attempting or stealing any thing, yet the witnesses changed there story's to fit the robbery charges. These statements were introduces into evidence, Delawder admitted going to the wrong truck and opening the door, But not to steal. With the lack of any physical evidence that Delawder had touched a single piece of Paper in Parker's truck and the Initial witness'es statement the robbery convictions were against the manifested weight of evidence and both counts sould be void.
Ground Four: Delawder's Trial Counsel rendered ineffective multiple time's through out Delawder's trial and Greatly effected the outcome through his unprofessional ineffectiveness.
Supporting Facts: Trial counsel failed to request a jury instruction regarding Mr. Delawder's Defence of his family from the Danger of Bodily harm, as opposed to the Defence of his family from the Danger of Death or great Bodily harm. A "Defence of Family" Instruction was given But it was the "WRONG ONE" Delawder was convicted of two felonious assaults, regarding His swinging of a Black metal Bar at Mr. McCleese & Mr. McGlone after Delawder exited his home and seen these men, the same one's who had attacked him, surrounding his family. Delawder admitted to taking a pipe and swinging at the two closest men by his elderly Aunt & Auncle. But Did Not strike them. He merely chased them away from his family. Delawder felt they may be attacked and hurt, and he didn't want that to happen. The jury had to decide if Delawder's family was in Danger of "Death" or "Great Bodily harm". Well they were "Not" But in Danger of Mere bodily harm they could have been, if not for Delawder's actions.
2) Trial Counsel Failed to request a jury instruction regarding the lesser included offence of involuntary manslaughter. Trial Counsel mentioned to the court that the facts supported a instruction "Involuntary Homicide, Trial Court said" They would have to come back and decide on that at a later time. Delawder also let it be known that He wanted the Involuntary Manslaughter to be given on record. Trial Court did not give any lesser included charges to any of the offences, even though Delawder's Counsel filed Motion to have lesser's included charges. But none were given. Upon Hearing the jury instructions and the numerous errors
Counsel failed to object to a single one, even though he filed Motions for them, and Both Myself & Counsel had ask for the instructions. He unreasonably failed to follow through with his initial Plan of Defence Delawder had been chased 4 ½ block to his home, jumped and he stabbed Mr. Parker "one time" and One time only. And admitted to all at trial "stateing that He "Never" meant to kill Mr. Parker only stop the attack. Objections should have been made, and by Counsel not doing so He was Ineffective, Involuntary Manslaughter was needed, "Asked For" then not given.
3) Trial Counsel failed to object to trial Court's erroneous jury instructions regarding the purpose and Causation elements of the Aggravated Murder charges." Trial Counsel failed to object to multiple erroneous instructions and his Performance was professionally unreasonable. Specific Intention was the Critical Point in this case, and the "Gist & Natural or foreseeable Consequence confused the jury. Given the substantial misguidance that was put on the jury in making the Determination, and Given The substantial amount of evidence which Indicated that Delawder Did not Intentionally Intend to Kill Parker merely injury him enough to repeal the Attack. Counsel should have objected to the numerous errors that were through out the jury instructions.
4) Trial Counsel failed to bring fourth evidence that could have Proved Delawder Did not try to commit a theft, and Prosecutor witness'es changed there storys to help convict Delawder of Robbery. All states witness are the same one's that chased and Attacked Delawder, the same one's that wrote witness statements, that never put Delawder "In" the Truck, lawyer should have tried to impeach each witness, Because there statements from 12-4-09 where Completely Different from there testimonys at trial. These statements are in the Discovery and can be Brought fourth, even the Decendant wrote statements that did not put Delawder " In" the truck "only by it" when he exited the Bar. Therefor counsel was was ineffective by not putting forth evidence, that could have help his client.
Ground Five: Appellant Counsel rendered objectively Ineffective when he failed to raise on Direct Appeal that Mr. Delawders jury clearly lost its way in Determining that he acted in self defence when he delivered the one fatal blow to Parker while Being Attacked by Parker and his friends.
Supporting Facts: Delawder fled from the bar and was chased 4 ½ blocks, Attacked by All four of the State's witnesses, and upon being Attacked in Front of Delawder's house. HE stabbed one of
the four men "ONE" time. Delawder called out to his family. As He made it to his house to call 911, to call the Police its on record The Court of Appeal Agrees there was a struggle Between Delawder and the states witness. Delawder admitted He stabbed Parker in self defence. Delawder "RAN" "Excaped" "withdrew" From the initial Incident. Therefore not being at fault and not violating any duty to retreat. It solely rest in the mind of the Defendant if he felt in fear of Death or Great Bodily harm and Delawder admitted He Did, and He Didn't intend to Kill parker. And all state's witnesses claims Parker "Ducked" into the Blow showing that Delawder was not aiming for his head, as state claims,
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