^CASE NO. 2013-0720

IN THE SUPREME COURT OF OHIOCOLUMBUS, OHIO

STATE OF OHIO9

Plaintiff-Appellee,

vs.

LAMONT MAURICE BUCHANAN,

Defendant-Appellant.

ON MOTION FOR LEAVE TO APPEAL FROMTHE OHIO COURT OF APPEALS FOR STARK COUNTY,

FIFTH APPELLATE DISTRICT,CASE NO. 2012-CA-00114

MEMORANDUM IN RESPONSEOF PLAINTIFF-APPELLEE,

STATE OF OHIO

JOHN D. FERRERO,PROSECUTING ATTORNEY,STARK COUNTY, OHIO

By:

FAX:

RONALD MARK CALDWELL

Ohio Sup. Ct. Reg. No. 0030663Assistant Prosecuting Attorney

110 Central Plaza, SouthSuite 510Canton, Ohio 44702-1413

(330) 451-7897(330) 451-7965

Counsel of Record for Plaintiff-Appellee

RIECIEUVUE UMAY 2 a 2013

CLERK OF COURT

LAMONT M. BUCHANAN, pro se

Inmate No. 624-259Marion Correctional InstitutionPO.Box57940 Marion-Williamsport RoadMarion, Ohio 43302

Defendant-Appellant pro se

^^Y 2- 4 1013

GLRRK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

Paae

WHY THE CASE SHOULD NOT BE ACCEPTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . 1

ARGUMENT

PROPOSITION OF LAW NO. IA JURY INSTRUCTION ON FLIGHT THAT IS NOT SUPPORTEDBY THE EVIDENCE IS HARMLESS IF THERE IS OVERWHELMINGEVIDENCE OF GUILT AND THE INSTRUCTION DID NOT AFFECT

THE JURY'S VERDICT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . 7

PROPOSITION OF LAW NO. IICOMMENTS BY THE PROSECUTOR WHICH ARE PROPER DO NOTCONSTITUTE MISCONDUCT THAT DENIES A CRIMINAL DEFENDANTA FAIR TRIAL .........................................................9

PROPOSITION OF LAW NO. IIITHE EVIDENCE IN A CRIMINAL TRIAL IS SUFFICIENT ANDNOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCEWHERE EVIDENCE AS TO ALL OF THE MATERIAL ELEMENTSOF THE OFFENSES AND THE DEFENDANT HAS NOT SHOWNTHAT THE JURY LOST ITS WAY IN ACCEPTING THIS EVIDENCE. ...... 13

PROOF OF SERVICE ......................................................... 15

WHY THIS CASE SHOULD NOT BE ACCEPTED FOR REVIEW

The Supreme Court of Ohio should not accept this case for review because it does not

involve a substantial constitutional question, and is not of public or great general interest. Buchanan

attempts to meet this standard with his two basic claims - that the evidence did not support the jury's

verdict because it was not credible, and that the prosecutor committed misconduct with her

statements in closing arguments. The court of appeals, however, found the evidence not only

sufficient, but overwhelming in terms of Buchanan's guilt. In addition, the appellate court found that

none of the prosecutor's comments in closing argument were improper, much less that they deprived

him of a fair trial.

Buchanan's appeal does not involve any novel legal issues or even the erroneous application

of existing law. The appeal should therefore be dismissed.

STATEMENT OF THE CASE AND FACTS

In 2012, the Stark County Grand Jury returned an indictment that charged Lamont Maurice

Buchanan, defendant-appellant, with three criminal charges: aggravated burglary, aggravated

robbery, and having weapons while under disability. The first two and more serious charges

included attendant firearm specifications. These charges arose from a late night armed intrusion into

a residence in an apartment complex which resulted in one of the victims getting the better of

Buchanan and stabbing him multiple times while the victim's pregnant girlfriend managed to flee

the residence. Buchanan pleaded not guilty to these charges and specifications, and the case

proceeded to trial by jury in the Stark County Court of Common Pleas.

Buchanan waived his right to a jury trial on the charge of having weapons while under

1

disability, and proceeded to trial by jury on the two remaining charges and specifications. The jury

found Buchanan guilty of these two charges and specifications, and the trial court deferred

sentencing for two days. At the later sentencing hearing, the trial court imposed an aggregate prison

term of 12 years at the later sentencing hearing. These convictions and sentences were upheld on

appeal. State v. Buchanan, Stark App. No. 2012-CA-00114, 2013-Ohio-1132, 2013 WL 1200355.

During the early morning hours of December 23, 2011, Willie Powell and Stephanie

Christmas were relaxing in their Canton home watching a movie. Christmas was eight months

pregnant, and her two young children had been given their baths and put to bed. At close to one

o'clock in the morning, someone knocked on their front door. Powell looked through the window

and saw O'Shea Walker, the 16 year old nephew of Lamont Maurice Buchanan. Powell could not

hear what Walker was saying, so he opened the front door. As soon as he opened the door, Powell

was greeted by Buchanan, who came from around the corner and put a gun to Powell's head, saying,

"You know what this is."'

Hearing the knock on the door and the subsequent commotion, Christmas left the couch and

approached the hallway, seeing Buchanan standing in the hallway with a gun pointing at Powell's

temple. When she saw the gun trained on Powell, Christmas started screaming. Powell again

pleaded with Buchanan, asking him if he was really going to do this with his girlfriend being

pregnant. Buchanan warned, "I don't give a fuck. Fuck this shit and blow your brains out if you

don't give me everything you got." As Powell continued not believing this was happening,

Buchanan added, "I ain't want no mother fucker talking to me. Turn your head around. Give me

everything you got." When Powell told Buchanan that he didn't have anything, Buchanan told him

'T.(I) 130-133, 202-204, 218, 233-234.

2

that he knew "he got something."2

Buchanan told his nephew to go through Powell's pockets, and to take whatever money he

may find. Walker took six dollars and a pack of cigarettes from Powell. Christmas kept moving

herself towards the back door, and Buchanan kept ordering her "to sit your ass down." He also

threatened to blow Powell's brains out if she did not stop moving.3 Christmas sat down, crying and

shaking, so Powell begged Buchanan to let her go since she was pregnant. Buchanan replied, "I'm

going to blow her fucking brains out, I'm going to blow your fucking brains out!" Powell offered

that Buchanan could do what he wanted with him, but to let Christmas go. Christmas renewed her

efforts to move towards the back door, however, despite Buchanan's repeated threats and pointing

his gun at her and at Powell. Finally, reading Powell's body language and facial gestures, Christmas

made a break for the door and got out, wearing only shorts and a t-shirt and no shoes, despite the

winter weather. Buchanan pointed the gun at Christmas but did not shoot at the fleeing woman.

Instead, he turned the gun back on Powell, ordering him yet again to give him everything that he had.

Powell then saw that Buchanan had removed his finger from the trigger, so he took advantage of the

lapse and hit Buchanan.4

When Powell hit Buchanan, the gun dropped out of Buchanan's hand. Walker immediately

picked up the gun and ran out of the front door. Powell and Buchanan then began fighting with each

other in the hallway. When this struggle reached the kitchen, Powell grabbed a knife from the top

2T.(I) 133-134, 204-208, 219-220.

3Buchanan specifically warned Powell, "Bitch, you better tell your girl to sit down or I'm

going to blow your brains out!" T.(I) 205, 208.

4T.(I) 134-137, 205, 208-210, 235-237.

3

of the refrigerator. Buchanan nonetheless went towards Powell, who then started to stab the intruder

in self-defense. Powell kept stabbing Buchanan until the much bigger man finally stopped fighting

and dropped to the floor. Powell thought that Buchanan was dead, so he removed his six dollars and

pack of cigarettes from Buchanan's pockets, dropped the knife, and ran out of the back door in

search of Christmas.5

Christmas, meanwhile, had run to a neighbor's home with her cordless telephone. When she

entered this home, she immediately called 911. While at the neighbor's home, Christmas looked out

of a window and saw the younger male (Walker) run from her home and get into a car. A description

of that car was provided the 911 operator as well. While Christmas was on the phone with this call,

Powell heard her and went into this home. Once they determined that the police were coming, the

two went back to their residence in order to check on her children. They both assumed that

Buchanan was dead, and needed to take care of Christmas' children, as well as meet the police.

Canton Police Officer Frank Ranalli pulled up to the residence and was met by a hysterical

Christmas. Ranalli got Christmas inside the residence, and then noticed a large amount of blood on

the floor of the hallway and kitchen. The officer also noticed that Powell was sitting on a couch, his

face in his hands, and visibly shaking. Powell kept repeating to the officer that he thought the

intruder was going to kill him and his girl. Powell was coope-rat'ive with Ranalli, who saw no signs

of a clean-up inside the residence. Ranalli eventually took Powell to the police station in order to

give a statement.6

Canton Police Officer James Nixon also responded to the 911 call, and saw a car that

5T.(I) 137-138.

6T.(I) 240-246, 248, 250.

4

matched the description of the fleeing vehicle. As Nixon pulled into the parking lot of the apartment

complex that included the Christmas-Powell residence, the car stopped and a young black male

(Walker) fled from the rear passenger compartment of the car. Nixon observed that Walker was

running awkwardly - instead of swinging his arms in a normal fashion, Walker ran with his arms

in the front of his body, without swinging or moving them. Nixon approached the car as he observed

Walker, and found Buchanan in the front passenger seat, bleeding profusely from several stab

wounds. Nixon told Buchanan to lie still, but Buchanan responded by grabbing an open beer bottle

and drinking from it. When Nixon opened the car door to tend to Buchanan, the stabbed intruder

greeted the officer by throwing the beer bottle at him. Buchanan then started cursing at the officer,

refusing to give any information about his condition or what had happened, and didn't ask for any

help or for an ambulance. Buchanan told Nixon that he didn't like him, and just wanted him to

leave. Paramedics, however, arrived shortly and took Buchanan to the hospital for treatment.'

Autum Welsh also testified on behalf of the State. Admitting that she was not only a friend

of Buchanan, but also admitted that she once thought that they had shared a child together. During

the afternoon of December 22, 2011, Welsh had been with Buchanan. They parted, and Welsh went

about her business. Shortly after midnight, however, Welsh received phone calls requesting that she

come and pick Buchanan up at his mother's. She then drove to the location, which was in the same

apartment complex as the Christmas-Powell residence, and waited for Buchanan in the parking lot.

Walker came out instead, and told Welsh to drive around the parking lot to a different location.

Welsh noticed that Buchanan, who came out with Walker, walked to a different building and waited

at the front door of one of the residences. As she parked, Walker got out of her car and joined

7 T.(I) 293-299, 311, 312.

Buchanan at this front door. Welsh then saw Walker knock on the door, a black male answer the

door, and all three go inside. Because it was dark, Welsh could not see if anyone had a gun. While

watching the residence, Welsh soon saw a woman not dressed for the cold December weather -

dressed only in shorts and a t-shirt - run from the back of the residence and go to a neighbor's.

Walker soon ran out to the car, and told Welsh to move the car to a nearby dumpster. Welsh could

tell that Walker was scared, and did as he asked. Buchanan eventually came out and got into the car,

saying that he had been stabbed and needed help, directing her to his mother's apartment. As Welsh

started to drive away and back to Buchanan's mother's apartment, the police cut her off as she drove

through the parking lots and stopped her vehicle. Welsh told Walker'not to run, but the youth bolted

from the car and took off. Welsh was then pulled out of the car by police and placed in the back of

one of the police cruisers. From this location, Welsh saw the officers tend to Buchanan, who

apparently responded by throwing a beer bottle out of the car, which then precipitated a lot of

yelling.8

Buchanan's defense at trial, as reflected in his opening statement, was that he went to the

Christmas-Powell residence to purchase some marijuana, and an argument ensued that got out of

hand, resulting in him getting stabbed. Buchanan then left the residence, apparently without his

marijuana, while Christmas and Powell remained behind to clean up the bloody mess.9

8T.(I) 267-279, 281, 286, 288.

9T.(I) 127-128.

6

ARGUMENT

PROPOSITION OF LAW NO. I

A JURY INSTRUCTION ON FLIGHT THAT IS NOTSUPPORTED BY THE EVIDENCE IS HARMLESS IF THEREIS OVERWHELMING EVIDENCE OF GUILT AND THEINSTRUCTION DID NOT AFFECT THE JURY'S VERDICT.

Buchanan argues in his first proposition of law that the trial court erred in providing the jury

a flight instruction in this case. The court of appeals, however, agreed with Buchanan's argument

on appeal, finding that the evidence at trial showed that Buchanan fled the scene in order to get

medical aid and not for purposes per se of escaping and fleeing from justice. The court of appeals,

though, found the error harmless given the overwhelming evidence of Buchanan's guilt. Thus,

Buchanan's argument that goes to the claim that the instruction was error is pointless.

At trial, the trial court gave the standard flight instruction based upon the evidence that

Buchanan left the scene not so much for purposes of seeking medical aid as to leave the apartment,

despite his multiple stab wounds, in order to avoid the authorities, both medical and police, that were

sure to arrive on the scene. Instead of seeking medical attention at a hospital which would have

tipped authorities off as to his whereabouts, Buchanan ordered the driver of his getaway car to go

immediately back to his mother's apartment despite fourteen stab wounds and profuse bleeding.

A jury instruction on relevant legal issues should be given when the evidence supports the

instruction.10 And a flight instruction, supported by evidence presented at trial, is directed at the

10Cf. State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus,

cert denied, 493 U.S. 826, 110 S.Ct. 89, 107 L.Ed.2d 54 (1989) ("Even though an offense maybe statutorily defined as a lesser included offense of another, a charge on such lesser included

offense is required only where the evidence presented at trial would reasonably support both an

acquittal on the crime charged and a conviction upon the lesser included offense.") (emphasis

7

defendant's conduct after the crime which may show a consciousness of guilt. As the Ohio Supreme

Court noted more than forty years ago, "Flight from justice * * * may be indicative of a

consciousness of guilt.""

The court of appeals held that this evidence did not support the standard flight instruction,

and thus the trial court erred in giving it. The appellate court did not find that this error warranted

the reversal of Buchanan's conviction since the evidence of his guilt was overwhelming. As the

appellate court specifically ruled, ". .. given the weight of the evidence and our decision in

Assignment of Error III, we find the error to be harmless."t2 The court further held that, "There is

no indication that the jury charge affected the jury's decision given the testimony of Mr. Powell and

Ms. Christmas or that it unduly prejudiced the outcome of the trial."13

The crux in this case was what had transpired inside the Powell-Christmas residence, and

Buchanan's action within. The flight instruction did not significantly impact on this factual issue.

Given the other evidence of this case, which was overwhelming and credible, the instruction was

harmless error as found by the court of appeals.'4 Accordingly, the first proposition of law should

be rejected.

added).

"State v. Eaton, 19 Ohio St.2d 145, 48 0.O.2d 188, 249 N.E.2d 897, paragraph six of the

syllabus (1969), vacated in part on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750

(1972).

12Buchanan, Stark App. No. 2012-CA-00114, 2013-Ohio-1132, 2013 WL 1200355, at ¶

38.

13Buchanan, Stark App. No. 2012-CA-00114, 2013-Ohio-1132, 2013 WL 1200355, at ¶

39.

14Buchanan does not challenge the appellate court's harmless error analysis or finding.

8

PROPOSITION OF LAW NO. II

COMMENTS BY THE PROSECUTOR WHICH ARE PROPERDO NOT CONSTITUTE MISCONDUCT THAT DENIES A

CRIMINAL DEFENDANT A FAIR TRIAL.

Buchanan's second proposition of law raises a claim of prosecutorial misconduct that

deprived him of a fair trial. Buchanan does not specifically address the alleged misconduct in his

memorandum, but this reply will assume he intends to raise all of the prosecutorial misconduct

issues he raised before the court of appeals. According to Buchanan, he was denied a fair trial by

the prosecutor's comments during closing arguments. Buchanan asserts that the prosecutor misstated

the facts in closing argument (regarding Autum Welsh's testimony), improperly vouched for the

credibility of a witness (Stephanie Christmas), and implied that defense counsel mislead the jury.

The prosecutor's comments, however, were not improper statements about the evidence, about the

witnesses, or about defense counsel, and thus did not deprive Buchanan of a fair trial. The

comments, in other words, did not constitute misconduct that resulted in an unfair trial.

Furthermore, Buchanan concedes that he did not object or otherwise challenge the prosecutor's

comments in closing arguments. This failure to raise the issue before the trial court and thus

preserve the issue on appeal forfeits the claim but for plain error. As the Ohio Supreme Court has

held, a defense counsel who fails to object to claims of prosecutorial misconduct has "waived all but

plain error."15 Under the facts and circumstances of this case, including the context of the

prosecutor's comments, these comments did not deprive Buchanan of a fair trial.

"The test for prosecutorial misconduct is whether remarks are improper and, if so, whether

'sState v. Lang,129 Ohio St.3d 512, 201 1-Ohio-4215, 954 N.E.2d 596, ¶ 154 (citing State

v. Childs,14 Ohio St.3d 56, 43 0.O.2d 119, 236 N.E.2d 545 (1968), paragraph three of the

syllabus).

9

they prejudicially affected substantial rights of the accused."16 Thus, "[t]he conduct of a prosecuting

attorney during trial cannot be made a ground of error unless the conduct deprives defendant of a fair

trial."" Claims of prosecutorial misconduct therefore turn on "whether the prosecutors' comments

99^ts`so infected the trial with unfairness as to make the resulting conviction a denial of due process.

The focus of the inquiry, therefore, is what impact the prosecutor's comments had on the fairness

of the trial and whether the defendant's substantial rights were prejudicially affected by them. The

»t9touchstone of the analysis "is the fairness of the trial, not the culpability of the prosecutor.

Comment on Testimony ofAutum Welsh about Buchanan's Place at the Door

Buchanan's first challenge to the prosecutor's comments goes to her comments on Autum

Welsh's testimony regarding Buchanan's position before entering the Christmas-Powell residence.

The prosecutor's comment, however, was supported by the evidence presented at trial. Welsh

testified that Buchanan was standing to the side of Walker, which corroborated Powell's testimony

that he only saw Walker when he looked out to see who was knocking on his front door. This claim

of prosecutorial misconduct was therefore properly rejected on appeal.

Comment on Requiring Evidence to Support Defense Comments

Buchanan also challenges the prosecutor's comments in the opening portion of her closing

argument that asked the jurors to consider defense counsel's closing comments and whether the

16State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293, 300 (1990), cert. denied, 498

U.S. 1017 (1990). See also State v. Smith (1984), 14 Ohio St.3d 13, 14-15, 470 N.E.2d 885-886.

"State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394, 400 (1987).

18Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).

19Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982).

10

evidence at trial supported his comments. In wrapping up the opening portion of her closing

argument, the prosecutor told the jury, without objection, "When [defense counsel] gets up to talk

to you, I want you to think about was there any testimony of that? Was there any evidence of that?

Does that make sense? And think about those things." These comments, taken as a whole, did not

create an implication that defense counsel was about to lie to or attempt to mislead the jury in his

closing argument. Instead, the prosecutor was simply reminding the jury that arguments by both

counsel were not evidence, and that the jury should be assessing the anticipated argument of defense

counsel on the evidentiary support for that argument - a standard of assessment applicable to the

prosecution's argument as well as to the defense argument.

Under these facts and circumstances, therefore, Buchanan was not deprived a fair trial as a result of

these comments of the prosecutor, and the was properly rejected on appeal.

Comment on Children Sleeping Through the Intrusion

Buchanan also argues that the prosecutor committed misconduct by telling the jury in the

rebuttal portion of her closing argument that Christmas's children could have slept through the

armed intrusion and stabbing. Buchanan argued in his closing argument that Powell's and

Christmas's version of events was not credible. In making this argument, defense counsel pointed

out that the children would not have slept through all the commotion that occurred if Christmas's

and Powell's version was'correct, and their testimony that the children had slept through the

intrusion was not credible. Buchanan also attacked Christmas for abandoning her children during

this alleged intrusion by armed robbers who were threatening to shoot and kill her and Powell if they

did not do what they ordered.

The prosecutor addressed this line of attack on the credibility of Christmas and Powell in the

11

rebuttal portion of her closing argument.

The kids were sleeping. The kids - - the kids slept through all of this. I don't knowabout you. I have a five-year old and an eight-year old, and they can pretty muchsleep through anything, and they absolutely could have slept through that.

T.(II) 423.

Defense counsel nonetheless asserted in his closing argument that Christmas and Powell were

lying about this fact since the children could not have slept through the violence that had occurred

in the home. Defense counsel made this assertion without any evidentiary support, but instead relied

implicitly upon common sense and experience. The prosecutor was simply responding in kind,

asking the jury to use its common sense and logic. While she personalized it with reference to her

own children, the prosecutor's comments did not rise to the level of depriving Buchanan a fair trial

in this case. Even to the extent that her comments amounted to error, they were invited error. Under

these facts and circumstances, therefore, the prosecutor's comments, which could have been restated

to avoid reference to her own children, did not deprive Buchanan of a fair trial. The comment was

not directed to the emotions of the jury, but instead a plea to its common sense. Young children

sleep through an awful lot of noise. This prosecutorial misconduct claim, therefore, was properly

rejected on appeal.

Comment on Faking Fear

Buchanan's fourth claim of prosecutorial misconduct also occurred during the rebuttal

portion of the prosecutor's closing argument, and goes to the sound of fear in Stephanie Christmas'

voice during her 911 call. The prosecutor remarked to the jury that this fear was genuine and not

faked, or else Christmas should go to Hollywood. Buchanan did not object or otherwise challenge

12

this comment. Buchanan argued the prosecutor was vouching for Christmas's credibility with this

Hollywood comment. The prosecutor's comments, however, went to the fear that was evident on

the recording of the 911 call, and that this fear was not faked unless Christmas was an actress who

should pursue an acting career in Hollywood. The comments went less to the credibility of

Christmas's testimony and more to her state of mind, i.e., the fear she expressed in her 911 call.

They were not a personal vouching for the credibility of Christmas that invaded the province of the

jury to determine credibility of the witness. The prosecutor was simply commenting on the evidence

presented at trial, and pointing out the genuine fear in Christmas' voice during the 911 call. The

claim was properly rejected on appeal.

PROPOSITION OF LAW NO. III

THE EVIDENCE IN A CRIMINAL TRIAL IS SUFFICIENTAND NOT AGAINST THE MANIFEST WEIGHT OF THEEVIDENCE WHERE EVIDENCE AS TO ALL OF THEMATERIAL ELEMENTS OF THE OFFENSES AND THEDEFENDANT HAS NOT SHOWN THAT THE JURY LOSTITS WAY IN ACCEPTING THIS EVIDENCE.

Buchanan lastly challenges the evidentiary support for this convictions, arguing that the State

did not present sufficient evidence of his guilt, and that the jury's verdict is against the manifest

weight of the evidence. In this assignment of error, Buchanan essentially argues that both Powell

and Christmas are not credible witnesses, and that the jury lost its way in rejecting his defense that

he simply went to Powell's residence to purchase some marijuana, and an argument and fight ensued,

resulting in him getting stabbed (for no apparent reason) multiple times by Powell. Despite no

evidence of Buchanan's "real" purpose for visiting the Christmas-Powell residence late at night and

13

the resulting argument and stabbing, Buchanan asserts that his convictions are constitutionally

invalid because of a lack of evidence (since Christmas and Powell are not credible witnesses). The

evidence of Buchanan's guilt, however, was substantial, if not overwhelming, and the jury did not

lose its way in believing Christmas and Powell and in rejecting Buchanan's unsupported defense.

The third assignment of error accordingly be overruled.

Buchanan has not demonstrated how the jury lost its way in believing Christmas and Powell.

He has not pointed to any improper motivation, such as prejudice, bias, or inflamed passions that

could have caused the jurors to believe incredible witnesses. The totality of the evidence, however,

showed that the two were credible witnesses, and Buchanan's attempt to impeach them - on the basis

that Powell allegedly sold marijuana, that the two attempted to clean up the bloody mess in their

residence before the police arrived, that the children could not have slept through such a loud

intrusion - was not supported by any evidence and was expressly rejected by the witnesses.

The court of appeals properly rejected Buchanan's evidentiary challenge to his convictions.

JOHN D. FERRERO,PROSECUTING ATTORNEY,STARK COUNTY, OHIO

By:R NALD MARK CALDWELLOhio Sup. Ct. Reg. No. 0030663Assistant Prosecuting Attorney110 Central Plaza, South - Suite 510Canton, Ohio 44702-1413(330) 451-7897

FAX: (330) 451-7965

Counsel for Plaintiff-Appellee

14

PROOF OF SERVICE

A copy of the foregoing MEMORANDUM IN RESPONSE was sent by ordinary U.S. mail

this 21 st day of May, 2013, to LAMONT MAURICE BUCHANAN, defendant-appellant pro se, at

Inmate No. 624-259, Marion Correctional Institution, P.O. Box 57,940 Marion-Williamsport Road,

Marion, Ohio 43302.

R NALD MARK CALDWELL

Ohio Sup. Ct. Reg. No. 0030663

Assistant Prosecuting Attorney

110 Central Plaza, SouthSuite 510Canton, Ohio 44702-1413(330) 451-7897

FAX: (330) 451-7965

Counsel for Plaintiff-Appellee

15