O I.. iNAL

IN THE SOPREME OOURT CF OMC

Antonio Martin,

kopellent,

V.

State of Ohio,

Appellee.

Supreme Ct. No. 12z- 0A12-

On Appeal from the Hamiltcaicomty Coist of Appeals,First App7 7 ate District

Cmirt of AppealsCasen No. C-1100204(Trial No. B0803273)

NIlR40RANDLAYI IN SUPPOIrP OF J[1RISDICTIQNOF APPFLLANe ANDDNIO NARTIN

Antonio Martin 647-784chillicothe Correctiona.l Inst.15802 S.R. 104 NorthP.O. Box 5500Chillicothe, Ohio 45601

APPELLANT, PRO SE

Joseph T. Deters (0012084P)Prosecuting Attorney

Rachel Lipman Curran (0078850P)Assistant Prosecuting Attorney230 East Ninth Street, Suite 4000Cincinnati, Ohio 45202(513) 946-3091Fax No. (513) 946-3021

OOUNSEL FOR APPELLEE

F OL 1EE" DAUG z 4 2012

CLERK OF COURTSUPREME COURT OF OHIO

AUG 2 42tJI2

CLERK OF COURTSUPREME CUURT OF OHIO

Page

EXPLANATION OF WHY THIS FSLANY CASE IS A CASE OF PUBLICAND GREAT GENERAL INTEREST AND PIVOLVES SUBSTANTIALCONSTI'I'[Ti'IONAL QUESTIONS . ............................................. 1

STATENIENTOF T[1E CASE AND FACTS ....................................... 9

Proposition of Law No. I: The jury's determination of guilt,based upon unreliable and inadmissable expert witnesstestimony, is against the manifest weight of the evidence ........ 11

Proposition of Law No. II: The State's failure to preserverelevant, physical evidence denied Appellant of a fair trial ..... 12

Proposition of Iaw No. III: Defense counsel was ineffectivefor failing to have unie]:iable and inadmissable evidenceexcluded........................................................ .. .14

CONCLUSION . ............................................................ 15

CELZTIFICATE OF SERVICE ................................................ 16

APPED7DIX Appx. Page

Judgment Entry of the Hamilton County Court of Appeals(March 9, 2012) ................................................. 1

EXPLANATION OF WHY THIS FELONY CASE IS A CASE OFPUBLIC AND GREAT GF`VF..RAL INTEREST AND INVOLVFS

SUBSTANTIAL CONSTITUTIODTAL QUE3TIONS

This case presents several issues critical to preserving the confrontat-

ion, compulsory process, due process, and equal protection of the laws rights

of an individual charged with a criminal ofFense, imperative to ensuring a

fair trial, that:,is, one resulting in a confidant, non-prejudicial outcome.

Under the Due Process Clause of the Fburteenth Amendment, criminal prose-

cutions must comport with prevailing notions of fundamental fairness. The

Court has long interpreted this standard of fairness to require that criminal

defendants be afforded a meaningful opportunity to present a complete defense.

(aliforaia v. Traobetta, 467 U.S. 479, 485, 104 S.Ct. 2588, 81 L.Ed.2d 413

(1984).

The adversary process could not function effectively without adherence to

rules of procedure that govern the orderly presentation of facts and arguments

to provide each party with a fair opportunity to asseroble and sulxnit evidence

to contradict or explain the opponent's case. Taylor v. Illinois, 484 U.S.

400, 411, 108 S.Ct. 646, 98 L.Ed.2d 798(1988).

The defendant's right to compulsory process is itself designed to vindi-

cate the principle that the "ends of criminal justice would be defeated if

judgments were to be founded on a partial or speculative presentation of the

facts." United States v. Nixcn, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41

L.Ed.2d 1039. Rules that provide for pretrial discovery, like cross-examinat-

ion, minimizes the risk that a judgment will be predicated on incomplete, mis-

leading, or even deliberately fabricated testimony. Taylcr, 484 U.S., at 412.

As was explained in United States v. Presser, 844 F.2d 1275(6th Cir.

1988), the Supreme Court has consistently held that "there is no general con-

stitutional right to discovery in a crimi.nal case." Id. at 1281, quoting

1

Fleatherford v. Bursey, 429 U.S. 545, 559, 92 S.Ct. 837, 51 L.Ed.2d 30(1977).

When discussing the rule of discovery, the Ohio Supreme Court determ.i.ned

that "[t]he 'spirit of the law' was not fulfilled by anything less than strict

adherence to the rule ... Rather, we specifically drafted the rules to ensure

the fairness of criminal proceedings." State v. Bidirnst, 71 Ohio St.3d 449,

1994 Ohio 465, 644 N.E.2d 318.

"The pretrial period consitutes a "critical period" in criminal proceed-

ings because it encompasses counsel's constitutionally imposed duty to invest-

igate case." Mitchell v. Mason, 325 F.3d 732.

"More specifically, the right to the assistance of counsel has been un-

derstood to mean that there can be no restrictions upon the function of coun-

sel in defending a criminal prosecution in accord with the traditions of the

adversary fact-finding process that has been constitutionalized in the Sixth

and Fourteenth Amendments." Herring v. New York, 422 U.S., at 857, 95 S.Ct, at

2553, 45 L.Ed.2d 593(1975).

The Court in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989(1987)

states: "The Sixth Amendment of the United States Constitution protects both

the right to confrontation and the right to ccmpulsory process: "In all crim-

inal prosecutions, the accused shall enjoy the right ... to be confronted wi;th

the witnesses against him; (and] to have coropulory process for obtaining wit-

nesses in his favor."

Both Clauses are made obligatory on the States by the Fourteenth Amend-

ment. Pointer v. TPxas, 380 U.S. 400, 403-406(1965)(Confrontation Clause);

Washington v. Texas, 388 U.S. 12, 17-19(1967)(Compulsory Process Clause).

It has been established by the record in this case, that the outcome of

this criminal matter was solely dependent upon, and determined by, expert wit-

ness testimony, whose reliability is to be scrutinized by the scientific evi-

2

dence and methodologies used to achieve their conclusions.

Specific to this case, is the requirement of determining that the scien-

tific evidence supports the finding of guilt to every element of the offense

of aggravated arson as defined by R.C. 2909.02(A)(1),(2). Therefore, it is a

necessity to establish the origin and cause of the fire to support that Martin

knowingly caomitted these offenses.

Expert testimony in Ohio is admissable if it will assist the trier of

fact in search of;.'the truth. State v. Xoss(1990), 49 Ohio St.3d 213, 216, 551

N.E.2d 970.

As held by the Court in Tourlakis v. Morris, 738 F.Supp. 1129, 1139-1140

(S.D. Ohio 1990), [t]he following observations have been made concerning the

use of expert testimony in criminal cases: "Scientific evidence impresses lay

jurors. They tend to assume it is more accurate and objective than lay testi-

mony. A juror who thinks of scientific evidence visualizes instuments capable

of amazingly precise measurement, of findings arrived at by dispassionate sci-

entific tests. In short, in the mind of the typical lay juror, a scientific

witness has a special aura of credibility." Imwinkelried, Evi.denoe Law And

Tactics For The Pnoponents Of Scientific EVidetm in Scie ►tific And Hcpert

Evidenoe 33, 37(E. Imwinkelried ed. 1981). Barefoot v. Estp»p, 463 U.S. 880,

928 n. 8, 103 S.Ct. 3383, 3412 n. 8, 77 L.Ed.2d 1090(1983)(dissenting opinion

by Blackmun, J.). "'The major danger of scientific evidence is its potential

to mislead the jury; an aura of scientific infallibility may shroud the evi-

dence and thus lead the jury to accept it without critical scrutiny." Id. at

926, 103 S.Ct. at 3412(quoting Ginnelli, The Admissibility of Novel Scientific

E^ridenae: Frye v. United States, A FPa7.f-Century Later, 80 Column.L.Rev. 1197,

1237(1980)). See also United States v. a*de*sm, 851 F.2d 384, 393(D.C. Cir.

1988), cert. denied, 488 U.S. 1012, 109 S.Ct. 801, 102 L.Ed.2d 792(1989).

3

Uniquely, the scientific evidence presented in this case had previously

resulted in a hung jury on April 20, 2009. The scientific evidence derived

from a canine alert, laboratory testing, and wntradicting and conflicting

expert witness conclusions. Placed under scrutiny is the admissibility and

reliability of the scientific evidence based on the methodologies applied in

reaching the conclusions of flashover and post flashover analysis.

[E]videntiary questions do not rise to the constitutional level unless

the eror was so prejudicial as to deprive the defendant of a fundamentally

fair trial. Tourlakis, supra, at 1132 citing Qooper v. Sowders, 837 F.2d 284,

286(6th Cir. 1988). State courts have approached the issue of admissibility

as a state evidentiary law question rather than a constitutional issue. Id.

at 1133.

Evidence Rule 702's overarching subject is the scientific validity - and

thus the evidentiary relevance and reliability - of the principles that under-

lie a proposed submission. The focus, of course, must be solely on principles

and methodology, not on the eonclusions that they generate.

Under Daubert v. Pietrell I)ow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786,

125 L.Ed.2d 469(1993), a court's function as gatekeeper is " 'to determine

whether the principles and methodology underlying the testimony itself are

valid' - not to second guess the validity of conclusions genereated by other-

wise valid methods, principles, and reasoning." Pride v. BIC Oarp., 218 F.3d

566, 577(6th Cir. 2000) quoting IInit®d States v, Bonds, 12 F.3d 540, 556(6th

Cir. 1993). A *** court should consider whether the expert's hypotheses can

be or have been subjected to peer review, the rate of error associated with

the methodology, and whether the methodology is generally accepted within the

scientific conununity. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786.

The States' expert witnesses testified to conflicting origins of the

4

fire. Ronald Smith, a fire fighter from Green Hills, believed the origin of

the fire was under the decking in the back of the house. First Captain, Amos

S. Johnson found no human factors contributing to the fire and ruled cause of

ignition as "undetermined." He indicated a flashover phenomena occurred caus-

ing the fire to burn at the floor. Tr. 303, 310.

Respective to the burning on the bedroom floor, a canine alert (a sit)

indicated the presence of an accellerant. The canine's attention was directed

to this area based upon the presumptions of the handler. Test samples were

taken and tested by Laura Kimble, forensic chemist, to see if ignitable liq-

uids were present. All samples fran the bedroom tested negative for ignitable

liquids. General consensus of expert's for the State is that the fire was ig-

nited by use of gasoline.

The Natioaial. Fise Protectien Associaticn (NFPA) 921 GLide for Fire and

Explosion Investigatieos establishes the role of canines and their handlers in

fire and explosive investigations as "assisting with the location and collect-

ion of samples." NFPA 921 §16.5.4.7. The guide goes on to provide that "[i]n

order for the presence or absence of an ignitable liquid to be scientifically

confirmed in a sample that sample should be analyzed by a laboratory..." Id.

at §16.5.4.7.1. Also that, "[a]ny canine alert not confirmed by laboratory

analysis should not be considered validated." id. at §16.5.3.

The scope of this guidance docwnent is defined in §1.1, stating: "This

document is designed to assist individuals who are charged with the responsi-

bility of investigating and analyzing fire and explosion incidents and render-

ing opinions as to the origin, cause, responsibility, or prevention of such

incidents."

Martin was prejudiced by the admission of the canine alert into evidence,

due to its misleading nature. There are two (2) substantial problems deriving

5

from the "false positive" canine alert in this case. The first, is that the

alert was at the pol.nt believed by investigators to be the origin of the fire,

and essentially squashed the required elimination of other causations, i.e.,

accidental and electrical. The presumption that Martin was motivated by

financial gain was rejected by the jury in this case, effectively removing

support from the State's expert's opinions, or hypotheses, directing their

concentration to the floor at the foot of the bed, and disregarding the sci-

entific communities flashover and post-flashover fire pattern determinations.

The second is the inability to cure the misleading and prejudicial im-

pact on the jury's determination of guilt beyond a reasonable doubt. Had the

canine evidence been excluded, by subjecting it to a Daubert hearing, there is

a reasonable probability that the outcome of the trial would have been differ-

ent.

Dr. Gerald Hurst, expert witness for the defense, was restricted to ana-

lyzing the evidence collected and preserved by photographs prior to the first

trial. The prejudicial significance of the non-preservation of physical evi-

dence for independent analysis in this case is a two-fold one.

"'Spoliation is the destruction or significant alteration of evidence,

or failure to preserve property for another's use as evidence in pending or

reasonably foreseeable litigation.' " Blangsted v. Snowmass-Wildcat Fire Prot.

Dist., 642 F.Supp.2d 1250, 1259-60(D.Colo. 2009), quoting Allstate Ins. Co. v.

Hamilton Beach/Procter Silex, Inc., 473 F.3d 450, 457(2d Cir. 1999).

With regard to spoliation, §11.3.5 of NFPA 921 states that spoliation may

occur when "the alteration of the'scene impairs the ppportunity of other in-

terested parties t.o obtain the same evidentiary value from the evidence as did

any prior investigator."

"Even if the court finds the evidence was not deliberately destroyed,

6

'negligent or inadvertent destruction of evidence is sufficient to trigger

sanctions where the opposing party is disadvantaged by the loss'. American

States Ins. Co. v. 7bkai-Seiki(1997), 94 Ohio Misc.2d 172, 176, 704 N.E.2d

1280, citing Farley Metals, Inc. v. Barber Colman Co.(1994), 269 Ill. App.3d

104, 645 N.E.2d 964, 206 Ill. Dec. 712. *** Therefore, the spoliator is un-

der a duty to preserve evidence which it knows or reasonably should know is

relevant to the action. Simeone v. Girard City Bd. of Edn., 171 Ohio App.3d

633, 2007 Ohio 1775, 872 N.E.2d 344, P70-74.

Prejudice is demonstrated from the defense expert's inability to perform

scientific analysis due to the un-notified destruction of Martin's home, with

full knowledge of further litigation being pursued by the,:prosecution. This

directly interfered with the defenses ability to prepare and present a can-

plete defense, implicating deprivations to the Compulsory Process and Con-

frontation Clauses.

In expertly contradicting the prosecution's expert witnesses scientific

evidence, in Dr. Hurst's August 20, 2010 Report, he provides that: "Even a

short period of post-flashover burning can create widespread burn patterns

which eradicate any evidence of the origin of the fire and generate severe and

irregular destruction which mimic the irregular patterns caused by acceler-

ants."

Dr. Hurst further provides that Fire Marshall Trace Lawless demonstrated

"a surprising ignorance of the basic driving forces of the post-flashover phe-

nomenon." Additionally, espounding on the methodology and reliability of the

prosecution's experts' conclusions therefrom, Dr. Hurst found it "obvious that

Mr. Lawless has<aao viable concept of the mechanism of post-flashover burning

or its well-known effects."

Dr. Hurst also presented that prosecution expert Fire Marshall M. Smith

7

"was not qulified to make determination of the origin at the subject fire

scene because he cannot recognize the characteristic evidence of post-flash-

over events - floor level burn patterns." Smith did dispell and refute the

prosecution's standing, as dependent upon the canine alert, that an ignitable

fluid and residue of gasoline was present in the bedroom.

Reaching these determinations, based upon peer review and advances in

flashover and post-flashover scientific methodology, Dr. Hurst concluded that:

"The origin of the fire remains unknown because the methods used to determi.ne

alleged origin have been shown to be without merit in post-flashover fires."

Under Ohio law it is also clear that reliability is properly determined

only by reference to the principles and methods employed by the expert wit-

ness, without regard to whether the court regards the witness's conclusions

themselves as persuasive or correct. See State v. Pierce(1992), 64 Ohio St.3d

490, 498(ecciphasizing that unreliability could not be shown by differences in

conclusions of experts, without evidence that the procedures employed were

"somehow deficient.").

Further prejudice is demonstrated from the trial court permitting the

prosecution's expert witness's conclusions to be presented to the jury without

further,inquiry by way of a Datibert hearing being conducted, where clear evi-

dence of improper application of scientific methodology is provided as a con-

tradiction, as prescribed by Ohio law.

Due to the unreliability of the prosecution's scientific evidence shown

by the scientific comrnnzities' adjustments in accepting the methodologies of

flashover and post-flashover phenomenon, a direct violation of Evidence Rule

702(C)(1),(2) & (3) is evident. See State v. Bresson(1990), 51 Ohio St.3d

123, 128, 554 N.E.2d 1330. This is a direct affront to the purpose and pro-

tections of the Due Process Clause.

8

In this case, without the laboratory test(s) or the canine evidence, _

there was no other direct evidence of arson. Glhile the cause-and-origin test-

imony purports to identify where the fire began, the reliability of the tests

employed has been refutted.

The implications of the decisions of the trial and appeals courts in this

case affects future criminal defendants ability to be confidant in receiving a

fair trial. Similarly, the public interest is affected by the precedents be-

ing set from the rulings of the trial and appeals courts, which establishes

that it is acceptable for a jury to be provided with misleading and unreliable

scientific evidence when charged with determining innocence or guilt.

The Equal Protection Clause prevents states from treating people differ-

ently under its laws on an arbitrary basis. Harper v. Virginia State Bd. of

Elections(1966), 383 U.S. 663, 681, 86 S.Ct. 1079, 1089, 16 L.Ed.2d 169, 181

(Harlan, J., dissenting). It is in essence, "a direction that all persons

similarly situated', should be treated alike." Clebnme v. Clebuxne Living

Center, Inc.(1985), 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313.

This provision has been interpreted as the equivalent to that fomd in Section

2, Article 1 of the Ohio Constitution.

If allowed to stand, the decisions of the courts in this case would un-

dermine the Sixth arid Fourteenth Amendments protections that are responsible

for ensuring fairness in criminal prosecutions.

Therefore, in the intefest of preserving the right to a fair trial, this

Court must grant jurisdiction to hear this case and review the erroneous and

prejudicial evidentiary decisions that rise to constitutional level in this

case.

STATRI9ElVT OF THE CASE AND FACTS

Appellant was indicted ori May 2, 2008, charged with corc¢nitting the of-

9

fenses of: Aggravated Arson, R.C. 2909.02(A)(1); Aggravated Arson, R.C. 2909.

02(A)(2); and Arson, R.C. 2909.03(A)(2), by a Hamilton County Grand Jury.

Appellant entered a not guilty plea.

Appellant's request for appointment of expert assistance was granted on

May 12, 2008.

Appellant filed a Notice of Alibi on November 19, 2009, rebutting the

questionable identification of Appellant by Kelly Harris, presenting that he

entered a Kroger's at 8:29 pm the night of the fire, where Harris asserts to

passing Appellant in an automobile on their street around 8:30 pm.

The defense filed a Motion for Dismissal on February 4, 2010. The motion

denied on April 12, 2010.

A jury trial was commenced on April 12, 2010. Scientific evidence was

presented by competing expert witnesses. On April 20, 2010, a mistrial was

declared due to a deadlocked jury.

The State chose to pursue another trial, during the period of delay,

Appelant's home was destroyed although it was physical evidence relevant to

determining origin and causation of the fire. Crim.R. 16; Evid.R. 401.

on August 27, 2010, Appellant filed a Motion for Acquittal and/or Dis-

missal. The State opposed on September 10, 2010.

On January 5, 2011, a Defendant's Motion to Appoint Expert was filed.

A second jury trial corunenced on February 14, 2011. On February 24, 2011

the jury rendered guilty verdicts on both counts of aggravatel arson. The

jury was hung on the single count of arson and the prosecution requested the

charge be dismissed.

On March 21, 2011, Appellant was sentenced to a five (5) year prison term

by the Hamilton County Court of Cmnon Pleas.

On April 8, 2011, appellate counsel was appointed. On April 11, 2011 a

10

Notice of Appeal to the First Appellate District of Ohio was filed.

On March 9, 2012, the Court of Appeals, First Appellate District, Hamil-

ton County, Ohio entered a Judgment overruling Appellant's three (3) assign-

ments of error and affirmed the trial court's judgment.

The court of appeals erred, to the prejudice of Appellant, when failing

to find the jury lost its way and created a manifest miscarriage of justice.

The appellate court erred to the prejudice of Appellant, when ruling that he

failed to move for preservation of the physical evidence, the house, contrary

to the record. And the court of appeals erred, to the prejudice of Appellant,

when failing to find ineffective assitance of counsel in the obvious perform-

ance deficiencies in defending this case.

In support of his position on these issues, the appellant presents the

following arguments.

Proposition of Law No. I: The jury's determination of guilt, based upon unre-liable and inadmissable expert witness testimony, is against the manifestweight of the evidence.

"In reviewing criminal cases, it is particularly important for appellate

courts to relive the whole trial imaginatively and not to extract from epi-

sodes in isolation abstract questions of evidence and procedure. To turn a

criminal trial into a quest for error no more promotes the ends of justice

than to acquiesce in low standards of criminal prosecution." Johnsan v. United

States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704(1943)(Frankfurter,

J., concurring).

It is simply not possible for an appellate court to assess the serious-

ness of the claimed error by any other means. As the Court stated in United

States v. Soooriy-Vaanm Oi3 Oo., 310 U.S., at 240, 60 S.Ct., at 852 "each case

necessarily turns on its own facts."

In a manifest weight analysis, an appellate court "review[s] the entire

11

record, weighs the evidence and all reasonable inferences, considers the cred-

ibility of witnesses and resolve[s] conflicts in the evidence." State v.

T'hcmpkins, 78 Ohio St.3d 380, 387-388, 1997 Ohio 52, 678 N.E.2d 541. The sec-

ond step "concerns the inclination of the greater amount of credible evidence,

offered in a trial, to support one side of the issue rather than the other."

(Internal quotations and emphasis omitted.) State v. Smith, 80 Ohio St.3d 89,

113, 1997 Ohio 355, 684 N.E.2d 668. "Weight is not a question of mathematics,

but depends on its effect in inducing belief." (Quotations and emphasis omit-

ted.) Th inG, at 387. And in completing this step, "[a] court reviewing

questions of weight is not required to view the evidence in a light most fav-

orable to the prosecution, but may consider and weigh all of the evidence pro-

duced at trial." Id., at 390(Cook, J., concurring).

In this case, the prosecution's expert witnesses were not credible due to

their outdated and unaccepted employment of , scietific methodology, plus lack

of qualifications to provide an expert opinion. From which, the jury was mis-

led and the rendering of the guilty verdicts in this case is a manifest mis-

carriage of justice. Exclusion of the prosecution's expertwitiness testimony

would have resulted in a different outcome.

Propositia► of Law No. II: The State's failure to preserve relevant, physical

evidence denied Appellant of a fair trial.

"A defendant has a constitutional guarantee to access to evidence. The

state's *** destruction of potentially useful evidence violates a defendant's

due-process rights under the Fourteenth Amendment to the United States Consti-

tution_" State v. Bensm(2003), 152 Ohio App.3d 495, 498, 788 N.E.2d 693, 695,

at 9[10. See Claifo**+ia v. Trombetta(1984), 467 U.S. 479, 488-489, 104 S.Ct.

2528, 81 L.Ed.2d 413.

In this case, it is uncontroverted that the state failed to preserrve the

12

evidence despite Appellant's specific request; thus the burden shifted to the

State to demonstrate that no prejudice to Appellant occurred. Essentially,

the State failed to preserve evidentiary material of which no more can be said

than that it could have been subjected to test, the results of which might

have exonerated the appellant. See Arizona v. Youngblood(1988), 488 U.S. 51,

57-58, 109 S.Ct. 333, 102 L.Ed.2d 281, 289.

Between May 20, 2008 and July 9, 2008, through counsel of record at the

time, the appellant and Mr. Stan Beeler, City of Forest Park Building Official

reached an agreement to preserve Appellant's home. On or about Januziry 30,

2010, the appellant informed then counsel that his home had been demolished by

the City of Forest Park without notification.

Relevance and prejudice is demonstrated by the failure of the States'

fire investigators, along with O.C.A. Investigator Russell Scott Bennett re-

tained by State Farm Insurance, to exclude all possible electrical causes of

the fire at Appellant's home, which was determined arson by the experts above.

The theory of arson is refuted, first, by the investigators' failure to

consider that all circuit breakers on one side of the panel were tripped off.

"[T]roubling is [the expert's] failure to investigate or consider the signifi-

cance of the *** tripped or off circuit breakers in the panel, and whether

their condition provided any evidence of the source of the fire." Pekarek v.

Sunbeam Prods., Inc., 672 F.Supp.2d 1161, 1176(D.Kan. 2008).

Secondly, there was a fourth outlet located in the room where the fire is

to have originated that was not collected and tested for causation. Although

Mr. Bennett testified to the existence of only three (3) outlets in the first

trial of this matter, vehemently supported by Fire [y7arshall Lawless, it di-

rectly conflicted with lead investigator Fire tv7arshall Smith's testimony that

there were four (4) outlets and a light switch.

13

Subsequently, Mr. Bennett admitted to there being a fourth outlet,r6inksthe

second trial, that was not tested based upon a visual deterioination that its

lack of damage ruled out contribution to cause of fire, and was destroyed with

the home.

Ultimately, the appellant's expert witness was unable to test the fourth

outlet, nor the significance of the tripped circuit breakers and their possi.,

ble contributions to cause of the fire. With the building demolished shortly

after the fire, there was no way for investigators to test other hypotheses

about how the fire started. United States v. Hebshie, 754 F.Supp.2d 89, at *32.

"The elimination of all possible accidental causes of fire is one of the

investigator's most difficult duties. Unless all relevant capses can be elim-

inated, the fire must be declared accidental, the presence of direct evidence

to the contrary notwithstanding." Principles of Fire investigation, p. 121.

See, also, NFPA 921 §2-3.6(1999 ed.).

Propostion of Law No. III: Defense counsel was ineffective for failing tohave unreliable and inadmissable evidence excluded.

In determining whether prejudice has resulted from counsel's errors, a

court "must onsider the totality of the evidence before the jury ... [A] ver-

dict or conclusion only weakly supported by the record is more likely to have

been affected by errors than one with overwhelming record support." Striclsland

v. Washington, 466 U.S. at 695. In making this determination as to prejudice,

a court examines the combined effect of all acts of counsel found to be con-

stitutionally deficient, in light of the totality of the evidence in the case.

Lundgren v. Mitchell, 440 F.3d 754, 770. See, e.g., Blackburn v. Foltz, 828

F.2d 1177, 1186(6th Cir. 1987).

It was impossible for defense counsel to have properly prepared a com-

plete defense based upon the prosecution's interference with the adversary

14

fact finding period, a critical period in the criminal proceedings.

The Sixth Amendment mandates that the State bear the risk of constitut-

ionally deficient assistance of counsel. See Murray v. Carrier, 477 U.S. 478,

488, 106 S.Ct. 2639, 91 L.Ed.2d 397(1986).

In this case, the State is solely responsible for the compulsory process,

confrontation, due process, equal protection of the laws deprivations encom-

passed in the ineffective assistance of defense counsel error. Counsel was

unable to fully pursue the evidence that would have exonerated Appellant.

Conclusion

It has been demonstratel that Appellant was prejudiced by the admission

of unreliable scientific evidence presented to the jury, which rendered a

guilty verdict without establishing guilt beyond a reasonable doubt to every

element of the offenses convicted, based on an origin and cause of the fire.

Had the spoliation of evidence not occurred, Appellant's expert witness

would have been able to conduct the accepted methodologies for determining

origin and cause, exonerating Appellant of all charges. The failure by the

State to preserve the home for testing denied Appellant his constitutional

guarantee to evidence that was relevant to the determination of innocence.

And, the deficient performance of defense counsel failed to provide an

adequate and effective defense.

Therefore, this Court must accept jurisdiction of this case, and permit

a full briefing on the issues, in the interest of fairness and justice.

Respectfully submitted by,

Antonio Martin 647-784

APPFr7a,N'r, PRO SE

15

Certificate of Service

I certify that a copy of the foregoing Memorandum In Support of Juris-diction was sent by ordinary U.S. Mail Service to Counsel for Appellee, RachelLipman Curran (0078850P), Assistant Prosecuting Attorney, 230 East NinthStreet, Suite 4000, Cincinnati, Ohio 45202 this 21st day of August, 2012.1

Antonio Martin 647-784

APPEhLA[VT, PRO SE

16

APPENDIX

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, APPEAL NO. C-11o204

Plaintiff-Appellee,

vs.

ANTONIO MARTIN,

Defendant-Appellant.

TRIAL NO. B-o8o3273

JUDGMENTENTRY.

111111111D96714782

We consider this appeal on the accelerated calendar;.and this judgment entry

is not an opinion of the court. See S.Ct.R.Rep.Op. 3(A); App.R. ii.i(E); Loc.R. ii.i.i.

Antonio Martin appeals his conviction for aggravated arson. We conclude

that his assignments of error do not have merit, and we therefore affirm the

judgment of the trial court.

Martin was indicted for two counts of aggravated arson and one count of

arson. The case was tried to a jury. At the conclusion of the trial, the jury found

Martin guilty of both counts of aggravated arson. The jury was unable to reach a

verdict on the arson count. The trial court merged the aggravated-arson counts and

sentericed Martin to five years' incarceration. The arson count was dismissed by the

state.

In his first assignment of error, Martin asserts that his conviction was against

the manifest weight of the evidence. Having reviewed the record, we cannot say that

the trial court lost its way and created such a manifest miscarriage of justice that we

must reverse his conviction and order a new trial. See State v. Thompkins, 78 Ohio

St.3d 380, 387, 1997-Ohio-52, 678 N.E2d 541. The first assignment of error is

overruled.

OHIO FIRST DISTRICT COURT OF APPEALS

Martin's second assignment of error is that the trial court erred when it

denied his motion to dismiss the charges against him. Martin moved to dismiss the

charges because the house to which he had allegedly set fire was demolished without

notice to him or his counsel. Martin had not moved to preserve the evidence, so the

burden lay with him to show that the evidence was materially exculpatory. State v.

Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, 788 N.E.2d 693, ¶ io-u (ist Dist.).

We conclude that he did not do so. Nor did he show that the state acted in bad faith.

Id. The second assignment of error is overruled.

In his third assignment of error, Martin asserts that he was deprived of the

effective assistance of counsel. Martin contends that his counsel did not adequately

challenge testimony about a police canine's alerts to the presence of ignitable liquid

in the house. To prevail on this assignment of error, Martin must demonstrate that

his counsel's performance was deficient and that, absent his counsel's errors, the

result of the proceedings would have been different. See State v. Bradley (1989), 42

Ohio St.3d 136, 142, 538 N.E.2d 373; Strickland v. Washington (1984), 466 U.S.

668, 687, 104 S.Ct. 2052, 8o L.Ed.2d 674. We conclude that Martin has

demonstrated neither that his counsel was ineffective nor that the result of the trial

would have been different had the testimony about the canine been challenged more

by defense counsel. The third assignment is overruled.

Therefore, we affirm the trial court's judgment.

A certified copy of this judgment entry is the mandate; which shall be sent to

the trial court under App.R. 27. Costs shall be taxed under App.R. 24.

}IiLDEERANDT, P.J., SUNDERMANN and YfENDON, JJ.

To the clerk:

Ep^yuBpn the cyurt's journal on March 9, 2012 by order of the court

Presiding Judge

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