State v. Lamb

[Cite as State v. Lamb, 2021-Ohio-87.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1177

Appellee Trial Court No. CR0201901111

v.

Marwan Lamar Lamb, Jr. DECISION AND JUDGMENT

Appellant Decided: January 15, 2021

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, Timothy B. Hackett and
Abigail J. Christopher, Assistant Public Defenders, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a July 17, 2019 judgment of the Lucas County Court

of Common Pleas, determining that credible evidence of probable cause had been

presented at a bindover hearing in support of transferring one count of murder, in
violation of R.C. 2903.02, with an accompanying firearm specification, pending against

appellant in the juvenile division, to the adult division of the Lucas County Court of

Common Pleas. For the reasons set forth below, this court affirms the judgment of the

trial court.

{¶ 2} Appellant, Marwan Lamb, Jr., sets forth the following five assignments of

error:

I. [Appellant] was deprived of his right to due process and a fair

hearing because the Lucas County juvenile court’s probable cause

determination was [unconstitutionally] based on tainted and unreliable

identifications.

II. [Appellant’s] due process and confrontation clause rights were

violated when the government introduced anonymous crime stopper

allegations through the surrogate testimony of an investigating detective [] .

III. The juvenile court erred when it [unconstitutionally] failed to

assess key identification evidence for accuracy and reliability.

IV. [Appellant] was deprived of his right to the effective assistance

of counsel in juvenile court [] .

V. The retroactive application of Ohio’s violent offender registry

[Sierah’s Law] [is unconstitutional].

{¶ 3} The following undisputed facts are relevant to this appeal. This case arises

from the March 17, 2018 shooting death of a man in an apartment complex parking lot

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located off of Door Street in Toledo during the course of a duplicitous marijuana

purchase.

{¶ 4} The drug purchase was a subterfuge. It was solicited on Facebook for

purposes of luring an unsuspecting drug seller to a designated location, at a designated

time, to meet with a decoy buyer. The true purpose was to lay a trap in which the victim

would be set upon by others during the meeting.

{¶ 5} On March 17, 2018, to set into motion the above-described plan, appellant

and Randal Mullins went to the residence of a woman, Phenom Munn, to enlist her

assistance. They directed Munn to make a posting on Facebook inquiring about anyone

interested and able to sell marijuana to her that night. The victim responded.

{¶ 6} The victim notified Munn via Facebook that he was available to sell her the

requested quantity of marijuana in the parking lot of an apartment complex located along

Door Street in Toledo. The victim relayed a designated location and time for the

proposed drug sale to Munn.

{¶ 7} Mullins instructed Munn to drive himself and appellant to the designated

location in Mullins’ vehicle. Shortly before driving into the apartment complex, Mullins

instructed Munn to stop the vehicle and let appellant out. Appellant, armed with a loaded

gun owned by Mullins, travelled the remaining distance on foot to the victim’s location.

{¶ 8} As recorded by the apartment complex video surveillance cameras, Munn

drove into the designated parking lot and parked. Munn exited the vehicle, approached

the victim, and inquired whether the victim had a scale in order to weigh the drugs. The

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victim replied that he did not have a scale. Munn then told the victim that she needed to

return to the vehicle to get additional cash to complete the purchase.

{¶ 9} After Munn returned to the vehicle, appellant ran up behind the victim

brandishing a loaded firearm. Although the victim told appellant to just take the drugs

and go, appellant shot the victim at point blank range, killing him.

{¶ 10} Following the shooting, Munn drove the vehicle a short distance from the

complex, picked up appellant who had left the scene on foot, and drove off. Appellant

had used a firearm owned and registered to Mullins. During the drive away from the

scene, Munn heard Mullins castigating appellant for using Mullins’ gun in the crime.

{¶ 11} In a failed attempt to obfuscate the police investigation into the crime,

Mullins instructed Munn to make an additional Facebook post after the murder, falsely

claiming that Munn had likewise been a victim in the incident.

{¶ 12} During the murder investigation, appellant’s name was repeatedly relayed

to the crime stopper tip line as a key figure in the crime. In addition, the police were

directed to Munn’s Facebook posts. Accordingly, the investigating detective interviewed

Munn.

{¶ 13} Although Munn initially adhered to the plan to portray herself as another

victim in the incident, she later revealed the truth about what had actually occurred to the

investigating detective. Munn disclosed that her subsequent Facebook post was not true.

{¶ 14} In an initial photo array presented to Munn to gauge her truthfulness, she

was shown photos of an ex-boyfriend and of the victim. She correctly identified both

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photos. In addition, a photo of an unknown man was shown to Munn. She correctly

denied knowing the identity of that man.

{¶ 15} A separate detective subsequently presented Munn with a photo array of six

male individuals of similar age, build, complexion, and hairstyle. Munn correctly

identified appellant from the photo array.

{¶ 16} Munn revealed that she witnessed appellant shoot the victim. The shell

casings recovered at the scene were a match to the gun used by appellant in committing

the murder.

{¶ 17} Appellant, aged 17 at the time of the offense, was originally charged in the

Lucas County Court of Common Pleas, Juvenile Division.

{¶ 18} On January 8, 2019, a bindover hearing was conducted for purposes of

determining whether evidence of probable cause against appellant was presented, so as to

warrant transferring appellant’s case to the adult division for prosecution.

{¶ 19} The record reflects that during the bindover hearing, Munn provided

detailed and clear testimony, supportive of a probable cause finding.

{¶ 20} Munn confirmed that, at the behest of Mullins, she arranged for the drug

purchase meeting on Facebook, she drove appellant and Mullins to the scene, she

dropped off appellant a short distance from the destination, she observed appellant come

upon the victim from behind, and she saw appellant shoot the victim. Munn further

testified that when she picked up appellant a few minutes after the shooting, she heard

Mullins ask appellant, “Why would you shoot him with my gun?”

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 {¶ 21} The record reflects that the investigating detective testified at the bindover

hearing that he recovered shell casings at the scene which matched the gun used by

appellant.

{¶ 22} The record reflects that the detective further testified that he recovered

several cell phones from the victim which contained a series of text messages between

Munn and the victim collaborating Munn’s representation of the events. The detective

also testified that he obtained the video surveillance from the apartment complex, which

reflected the arrival of the vehicle at the scene of the crime just before it occurred,

showed an individual running from the complex on foot after the shooting, and showed

the departure of the vehicle from the scene shortly after the shooting.

{¶ 23} The record reflects that the timing of the events shown in the video footage

is consistent with Munn’s testimony.

{¶ 24} At the conclusion of the bindover hearing, the juvenile court determined

that credible evidence had been presented of probable cause against appellant so as to

warrant the transfer of the case to the adult division for prosecution.

{¶ 25} Subsequent to the transfer of the case, appellant entered a voluntary plea of

guilty to one count of murder, in violation of R.C. 2903.02, a felony of the first degree,

along with an accompanying mandatory firearm specification. Appellant was sentenced

to a total term of incarceration of 16 years to life. This appeal ensued.

{¶ 26} In the first assignment of error, appellant maintains that the bindover

hearing was unconstitutional, in violation of due process, based upon allegations of

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tainted and unreliable identifications. In response, appellee asserts that appellant’s guilty

plea waived all constitutional complaints about the bindover hearing.

{¶ 27} As a preliminary matter, we find that appellee’s sweeping position

regarding appellant’s alleged waiver of constitutional concerns upon a guilty plea is

misguided. As conveyed in response to an analogous contention in State v. Hughes, 10th

Dist. Franklin No. 18AP-837, 2019-Ohio-4590, ¶ 3, “We dispense at the outset with the

state’s position that by pleading guilty [appellant] has waived his probable cause-based

argument that he was denied due process * * * because a proper bindover procedure,

which includes the determination of the existence of probable cause, is necessary to

transfer jurisdiction, it cannot be waived.”

{¶ 28} We concur in the Hughes position that appellant’s subsequent guilty plea

did not waive due process claims arising from the underlying bindover hearing.

{¶ 29} In conjunction with the above, we note that bindover hearings are non-

adjudicative. Accordingly, such hearings are not determinative of one’s guilt or

innocence of the underlying offense.

{¶ 30} The threshold standard of evidence in support of a bindover request is that

evidence of probable cause of appellant’s actions constituting the elements of the offense

have been presented. However, such evidence does not constitute evidence of guilt

beyond a reasonable doubt, which must be demonstrated separately at a subsequent,

adjudicative trial. State v. Garner, 6th Dist. Lucas No. L-19-1269, 2020-Ohio-4939,

¶ 19.

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 {¶ 31} In consideration of the above, although we find that appellant is entitled to

present due process claims in support of the first assignment of error, our review of the

record reveals that appellant’s claims, while legitimately presented on appeal, are

nevertheless without substantive merit.

{¶ 32} In support of the first assignment, appellant maintains that the identification

process in this case was unconstitutionally tainted and unreliable. We do not concur.

{¶ 33} For example, appellant contends that Munn’s identification of appellant

from a photo array presented to her was improperly suggestive based upon an assertion

that the background ink on the photocopy of appellant’s mug shot had slightly darker

coloration in comparison to the other photocopied mugshots comprising the array.

{¶ 34} Our review of the photo array reflects that all six males presented are of

similar age, height, build, complexion, and hairstyle. In the photocopying process, the

background of not only appellant’s photo printed off slightly darker, but several of the

other photos contained in the array likewise had variable, darker background coloration.

Appellant presents no evidence in support of the notion that the marginally inconsistent

photocopy background shading, seen in multiple photos in the array, improperly

impacted the identification process and/or prejudiced appellant.

{¶ 35} In addition, we note that Munn was acquainted with appellant. She drove

him to and from the scene of the crime. This was not a scenario in which someone

previously unknown to the witness was being selected from a photo array by that witness.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme

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Court enumerated five factors to consider in determining whether the identification was

reliable. Key factors are the witness’s opportunity to view (in the case of a voice

identification, to hear) the defendant during the crime, the witness’s degree of attention,

the accuracy of the witness’s prior description of the suspect, the witness’s certainty, and

the time elapsed between the crime and the identification. State v. Patton, 6th Dist.

Lucas No. L-12-1356, 2015-Ohio-1866, ¶ 21-22, citing Neil, 409 U.S. at 199-200.

Munn’s close and personal involvement with appellant immediately before and after the

homicide are factors that weigh heavily in favor of reliability.

{¶ 36} Appellant further argues that Munn’s identification was unconstitutionally

tainted based upon the innuendo that Munn may have been involved in a relationship

with Mullins. We are not persuaded.

{¶ 37} Regardless of any prior involvement between Munn and Mullins, the bulk

of the record of evidence supports the propriety of Munn’s identification of appellant and

her eyewitness testimony against appellant.

{¶ 38} Munn drove appellant to the scene of the crime, dropped appellant off a

short distance away from where the crime occurred, observed appellant shoot the victim,

picked up appellant, drove appellant away from the scene, and heard Mullins confront

appellant about his use of Mullins’ gun.

{¶ 39} We find that appellant has failed to demonstrate constitutional impropriety

in connection to the identification of appellant. We find appellant’s first assignment of

error not well-taken.

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 {¶ 40} In the second assignment of error, appellant similarly maintains that the

bindover hearing was unconstitutional due to the presentation of testimony regarding

anonymous crime stopper tips via the testimony of the investigating detective, rather than

the direct testimony of those providing information to the tip line.

{¶ 41} Appellant asserts that his inability during the bindover hearing to confront

and cross-examine those who furnished information about the crime to the tip line was

unconstitutional. We do not concur. It has been well-established that the constitutional

right to confrontation is a trial right and not a right that has been extended to preliminary

proceedings. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40

(1987). The Supreme Court of Ohio held that the right to confrontation relates to the

actual trial for the commission of the offense and not to the preliminary examination

where it is determined whether the accused is to be bound over to the grand jury.

Henderson v. Maxwell, 176 Ohio St. 187, 188, 198 N.E.2d 456, 458 (1964).

{¶ 42} Appellant’s position fails to recognize, as was discussed above, that

bindover hearings are not criminal trials. They do not make determinations of one’s guilt

or innocence beyond a reasonable doubt of the charged offense.

{¶ 43} Rather, they are non-adjudicative probable cause hearings, making a

preliminary determination as to which trial court, juvenile court or adult court, is the

proper one in which to conduct the subsequent criminal trial.

{¶ 44} As held in State v. Iacona, 93 Ohio St.3d 83, 752 N.E.2d 937 (2001),

“Determination of the merits of the competing prosecution and defense theories, both of

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which are credible, ultimately is a matter for a fact finder at trial.” Accordingly, had

appellant chosen, appellant could have proceeded to a criminal trial in the adult division,

at which time any constitutional claims regarding the sources of tip information about the

crime could have been made.

{¶ 45} In the instant case, appellant declined to proceed to trial. Appellant entered

a voluntary plea. As held under similar circumstances in State v. Garner, 6th Dist. Lucas

No. L-19-1269, 2020-Ohio-4939, at ¶ 25, “The fact that appellant is unable to confront

the authors of the reports at the bindover hearing does not frustrate in any way his ability

to confront and cross-examine them at the subsequent trial.”

{¶ 46} Given these facts and circumstances, we find that appellant has failed to

demonstrate that the testimony regarding the crime stopper tips at the bindover hearing

was unconstitutional. We find appellant’s second assignment of error not well-taken.

{¶ 47} In appellant’s third assignment of error, appellant similarly asserts that his

constitutional rights were breached at the bindover hearing due to the alleged failure of

the juvenile court to, “[M]eaningfully analyze the government’s evidence for accuracy or

reliability.”

{¶ 48} Appellant takes issue with the juvenile court declining at the bindover

hearing to make a determination regarding whether the evidence presented at the

bindover hearing reflected appellant’s guilt of the offense.

{¶ 49} We again note that appellant’s position incorrectly imputes trial court level

evidentiary obligations upon a non-adjudicatory proceeding. As stated in Garner at ¶ 19,

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“The juvenile probable cause hearing is not a trial as it does not find as a fact that the

accused minor is guilty of the offense charged.”

{¶ 50} It is not proper for a juvenile court to operate as a de facto ultimate trier of

fact in the course of the bindover proceeding, as implied by appellant’s position. We find

appellant’s third assignment of error not well-taken.

{¶ 51} In the fourth assignment of error, appellant maintains that he was denied

the effective assistance of counsel during the juvenile court proceedings. We do not

concur.

{¶ 52} It is well-established the demonstration of ineffective assistance of counsel

requires showing that counsel erred in specific ways, and that, but for those demonstrated

errors, the outcome of the matter would have been different. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 53} The propriety of appellant’s position in the fourth assignment of error is

contingent upon this court finding in favor of appellant in response to appellant’s

allegations set forth in the first three assignments of error.

{¶ 54} Given that this court has found no impropriety by the juvenile court in the

bindover proceedings, appellant cannot show that the outcome would have been different

but for meritless objections being made to acceptable actions of the juvenile court.

{¶ 55} We find appellant’s fourth assignment of error not well-taken.

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 {¶ 56} In appellant’s fifth assignment of error, appellant asserts that the

application of the R.C. 2943.01 violent offender registry (VOD) to appellant following

his conviction was unconstitutional.

{¶ 57} Currently pending before the Ohio Supreme Court is a certified conflict

between the Courts of Appeals for the Twelfth and Fifth Districts on the issue whether

the VOD statutes, when applied to an offense that occurred before the statutes’ March 20,

2019 effective date, violate the prohibition against retroactive statutes contained in

Article II, Section 28, of the Ohio Constitution. See State v. Hubbard, 159 Ohio St.3d

1427, 2020-Ohio-3473, 148 N.E.3d 568 (Table); State v. Jarvis, 159 Ohio St.3d 1427,

2020-Ohio-3473, 148 N.E.3d 568 (Table). See also State v. Rike, 1st Dist. Hamilton No.

C-190401, 2020-Ohio-4690 (finding no retroactivity-clause violation); State v. Jackson,

10th Dist. Franklin No. 19AP-393, 2020-Ohio-4115 (declining to decide retroactivity-

clause challenge upon determining that the case was not ripe for decision); State v.

Morgan, 2020-Ohio-3955, 156 N.E.3d 989 (9th Dist.) (finding no retroactivity-clause

violation). State v. Klein, 1st Dist. No. C-190619, 2020-Ohio-6948, ¶ 16.

{¶ 58} Until the Supreme Court resolves this conflict, we are inclined to follow the

position of a majority of our fellow appellate districts and find that the VOD statute

before us as applied is remedial in nature and therefore find it to be constitutional,

utilizing the same logic employed by the court in Hubbard:

Given the many differences between the sex-offender registration

statutes and the violent-offender enrollment statutes, we find that the

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 violent-offender enrollment requirements are not so punitive that

they impose a new burden in the constitutional sense, as

contemplated in Williams. Rather, we find that the violent-offender

enrollment requirements are more akin to the arson-offender

registration requirements set forth in R.C. 2909.13, 2909.14,

and 2909.15, which the First District found were remedial in

nature. See Caldwell, 2014-Ohio-3566, 18 N.E.3d 467 at ¶ 33-35.

Accordingly, as appellant had no expectation of finality with regard

to any duties that may or may not have attached following his

conviction for murder, he does not have a substantive right in this

regard. See id. at ¶ 35; Cook, 83 Ohio St.3d at 414, 700 N.E.2d 570.

The violent-offender enrollment statutes are remedial in nature, and

the General Assembly could retroactively impose Sierah’s Law

without running afoul of Article II, Section 28 of the Ohio

Constitution. State v. Hubbard, 2020-Ohio-856, ¶ 37, 146 N.E.3d

593, 604, motion to certify allowed, 2020-Ohio-3473, ¶ 37, 159

Ohio St. 3d 1427, 148 N.E.3d 568, and appeal allowed, 2020-Ohio-

3473, ¶ 37, 159 Ohio St. 3d 1427, 148 N.E.3d 569. Hubbard, at

Paragraph 37.

{¶ 59} Therefore, we find Lamb’s fifth assignment of error not well-taken and it is

denied.

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 {¶ 60} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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