State v. Moore, 110155

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtEMANUELLA D. GROVES, J.
Citation185 N.E.3d 216
Parties STATE of Ohio, Plaintiff-Appellee, v. Jermell MOORE, Defendant-Appellant.
Docket Number110155
Decision Date24 February 2022

185 N.E.3d 216

STATE of Ohio, Plaintiff-Appellee,
v.
Jermell MOORE, Defendant-Appellant.

No. 110155

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: February 24, 2022


Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kerry A. Sowul, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant.

JOURNAL ENTRY AND OPINION

EMANUELLA D. GROVES, J.:

{¶ 1} Defendant-appellant, Jermell Moore, appeals his convictions after guilty pleas to involuntary manslaughter and sexual battery. For the reasons set forth below, we reverse and remand for further proceedings.

185 N.E.3d 218

Factual and Procedural History

{¶ 2} On May 20, 2015, the state filed a John Doe indictment for an incident that occurred on May 28, 1995. The indictment alleged that John Doe had committed the crimes of rape and kidnapping, both felonies of the first degree.

{¶ 3} The events leading up to this indictment were as follows: In 1995, the alleged victim, L.K., filed a police report alleging she was raped by her boyfriend. L.K. submitted to a sexual assault examination and evidence was collected and stored in a rape kit. According to the police report, L.K. refused to divulge her boyfriend's identity at that time.

{¶ 4} On October 25, 2012, the rape kit was submitted to the Ohio Bureau of Criminal Investigation ("BCI") for examination. On August 13, 2013, BCI reported that an unknown male DNA profile was obtained from the vaginal swabs in L.K.’s rape kit.

{¶ 5} On August 7, 2014, BCI generated a CODIS Match Memorandum indicating that the male DNA profile from the vaginal swab in L.K.’s rape kit had been linked to DNA from a gun magazine in a homicide case. At that time, the DNA in the homicide case had not been associated with a suspect standard or a database sample from a known individual.

{¶ 6} Investigators contacted L.K. on April 22, 2015, to obtain more information about the case and the alleged perpetrator. L.K. confirmed the sexual assault, but was only able to provide the suspect's nickname, "Larue," to the investigators. At that time, investigators showed L.K. a photo array. Moore's picture was included in the array as a suspect in the homicide investigation. L.K. did not identify anyone in the photo array as the suspect in her sexual assault.

{¶ 7} On April 5, 2016, Moore was indicted for involuntary manslaughter, a felony of the third degree, and two misdemeanor alcohol violations for incidents that occurred on March 30, 2014. One- and three-year firearm specifications were attached to the felony. Moore's codefendant, Brian Spencer ("Spencer"), was charged with the same charges as well as a charge of aggravated assault, a felony of the fourth degree. On April 19, 2016, a warrant was issued for Moore's arrest.

{¶ 8} On February 21, 2018, Moore was brought before the court on the involuntary manslaughter indictment. As a result of his arrest, a sample of his DNA was collected. On March 7, 2018, BCI generated an updated CODIS Match Memorandum indicating that the male DNA profile from the vaginal swabs in L.K.’s rape kit and the DNA from the gun magazine in the homicide case were linked to a California database sample for Moore. The record does not reflect when or how the California database sample was collected. A confirmatory test was done with Moore's DNA, which confirmed Moore as the source of the male DNA profile in the vaginal swab in L.K.’s rape kit. On May 17, 2018, the state moved to amend the John Doe indictment to reflect that the defendant was Moore.

{¶ 9} From that point, the cases proceeded together. The cases were set for trial on August 29, 2018. On that date, the state made a plea offer as follows: In exchange for a guilty plea on the rape case the state offered to amend the charges from rape to sexual battery, a felony of the third degree, and to dismiss the kidnapping charge. In the involuntary manslaughter case, the state offered to dismiss the firearm specifications in exchange for a plea to the involuntary manslaughter charge. The state also offered to dismiss the associated misdemeanors.

185 N.E.3d 219

{¶ 10} Moore's counsel indicated he had discussed the plea offer in detail with Moore and his wife that morning. The trial court explained the repercussions of the plea deal on the record. Moore was not ready to agree to a plea deal at that time. The court took a recess, after which, the trial court asked if the parties were ready to proceed. At that time, Moore indicated he needed more time to talk to his counsel. The court recessed again to allow that to happen. When the trial judge returned, defense counsel indicated he had recommended Moore take the plea but Moore had not decided. The trial court summarized what had occurred, reminded the parties that they were set for trial, and they could proceed with trial if they chose. After further discussion with Moore, defense counsel indicated Moore would take the plea deal. This back-and-forth deliberation between Moore and defense counsel lasted between four and five hours.

{¶ 11} The trial court conducted a comprehensive plea colloquy to which Moore indicated he understood all of his rights, was satisfied with his attorney's representation, and did not have any questions. Moore pled guilty to the charges as amended. Moore's sentencing was scheduled for September 26, 2018.

{¶ 12} On September 12, 2018, defense counsel filed a short motion to withdraw Moore's plea in both cases. The motion indicated that Moore, against the advice of counsel, wished to withdraw his pleas because "he has a valid defense to both charges and that he is not guilty of same."

{¶ 13} On September 26, 2018, the court convened and addressed the motion to withdraw guilty plea prior to sentencing. Defense counsel spoke briefly on his motion to withdraw the plea and explained to the court why he advised Moore against it. Defense counsel stated that he based his advice on the quality of the evidence and the fairness of the offer. Specifically, defense counsel referred to the dismissal of the gun specifications and the reduction of the rape to sexual battery as significantly reducing potential jail time. Defense counsel also noted that DNA evidence identified Moore in the rape case and that the only issue was consent. Defense counsel also reminded the court that the plea took place on the date of trial and that the trial court permitted Moore to think about whether to plead for four to five hours while it conducted other business. After asking to hear from the state, which referred the court to its motion, the trial court denied the motion and proceeded with sentencing.

{¶ 14} The trial court heard from both sides prior to issuing its sentence. In the involuntary manslaughter case, the state alleged that Moore was running an after-hours club. Spencer, the codefendant, was handling security and Moore was alleged to have provided Spencer with a gun. The state alleged that a fight broke out and while Spencer was trying to break it up, he pulled the gun and fired one shot, shooting and killing Akeem Tidmore ("Tidmore"). In the sexual battery case, the state alleged that Moore and the victim, L.K., were on a date. The state alleged Moore and L.K. had met through L.K.’s cousin and had talked on the phone previously. May 28, 1995, the date of the alleged rape, was the first time Moore and L.K. met in person. Moore and L.K. ended up parking in an out-of-the-way area. The state alleged that Moore attempted to have sex with L.K.; however, she refused. Moore then forced L.K. to have sex.

{¶ 15} Defense counsel then addressed the court alleging that Moore was tending bar when the homicide occurred and was not involved in the incident. Defense counsel stated that the shooting was accidental. He submitted that Spencer was punched

185 N.E.3d 220

by a member of Tidmore's group. Spencer then pulled out the gun. When Spencer was punched again, the gun went off, killing Tidmore. With respect to the sexual assault case, defense counsel relayed that the police report indicated the victim wanted to engage in sex but changed her mind when she realized Moore did not have protection. Defense counsel alleged that the only issue was consent.

{¶ 16} The trial court then asked Moore if he had anything to add. Moore attempted to reopen his motion to withdraw guilty plea, alleging that there was taped evidence from the rape investigation that he did not hear until after he pled. Moore denied "forcing himself" on the victim and alleged that in the tape, the victim "kind of said that I didn't force myself on her." He indicated that after reviewing that evidence along with unspecified "other factors," he asked his counsel to withdraw the plea. The trial court then inquired of defense counsel whether he reviewed the discovery with Moore. Defense counsel told the court that he had not received the audiotaped statement until after the plea. Once he did, he arranged for Moore to review the tape with him. Defense counsel alleged that the taped statement agreed with the prosecution's recitation of facts and, therefore, he stood by his advice to his client not to withdraw his plea.

{¶ 17} The state...

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