IN THE SUPREME COURT OF OHIO

CITY OF EAST CLEVELAND, ) CASE NO.: 2019-1636

)

Petitioner, ) Eighth District Court of

) Appeals Case No. 19-108873

v. )

) East Cleveland Municipal

RANDOLPH DAILEY, ) Court Case No. 15 crb 00623

)

Respondent. )

MERIT BRIEF OF APPELLANTS

WILLA HEMMONS

Director of Law

14340 Euclid Ave.,

City of East Cleveland

East Cleveland, Ohio 44112

216- 681-2393 phone

216-681-2199 fax

whemmons@eastcleveland.org

Counsel for Petitioner-Appellant

The City of East Cleveland

HENRY HILOW

The Rockefeller Building

614 W. Superior Avenue

Suite 1300

Cleveland, Ohio 44113

216-344-9220 phone

hhilow@mghslaw.com

Counsel for Respondent-Appellee

Randolph Dailey

Supreme Court of Ohio Clerk of Court - Filed January 21, 2020 - Case No. 2019-1636

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

I. STATEMENT OF FACTS .................................................................................. 1

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW .... …………………..6

PROPOSITION OF LAW NO. I: ........................................................................... 6

THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER

THE ENTIRE EAST CLEVELAND CODE SECTION 525.12 IN

DETERMINING GUILTY RATHER THAN JUST THE CHARGED

SUBSECTION (E). ................................................................................................. 6

PROPOSITION OF LAW NO. II .....................................................................1212

THE APPELLATE COURT ERRED IN DISMISSING THE DECLARATORY

JUDGMENT ACTION AND NOT RECOGNIZING JURISDICTION

SUBSECTION (F) WHICH PERMITS JURISDICTION, “IN ANY CAUSE ON

REVIEW AS MAY BE NECESSARY TO ITS COMPLETE

DETERMINATION.” ...........................................................................................12

CONCLUSION ........................................................................................................16

PROOF OF SERVICE .............................................................................................17

APPENDIX……………………………………………………………………….18

iii

TABLE OF AUTHORITIES

Cases

Anderson, 134 Ohio St.3d 380…………………………………………………….13

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983)…...…15

Bordenkircher v. Hayes, 434 U.S. 357, 368 n. 2, 98 S.Ct. 663……..………….8, 10

Brooks v. United States, 450 U.S. 927……………………………………………..8

Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St. 2d 93……………….12

Corbett v. Ohio Bldg Auth., 86 Ohio App. 3d 44……………………………...….12

Disciplinary Counsel v. O’Neill, 2004 Ohio 4704……………………………......11

Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20…………….8

Pointe at Gateway Condo. v. Schmelzer, 2013 Ohio 3615……………………..…13

Rigby v. Lake Cty., 58 Ohio St.3d 269…………………………………...……….15

State v. Green, 184 Ohio App.3d 406, 412, 921 N.E.2d 276…………...…...……15

State v. Gumins, 2008 Ohio 4238………………………………………….……….8

State v. Jeffers, 4th Dist. No. 08CA7, 2009-Ohio-1672,……………………….…15

State v. Jenks, et al. 61 Ohio St. 259…...………………………………….……….6

State v. Kersbergen, 2015-Ohio-3103…………………………………………….15

State v. Norris, 147 Ohio App.3d 224, 229…………………………...……………8

State v. Ruppen, 4th Dist. No. 11CA22, 2012-Ohio-4234………………………..15

United States v. Andrews, 612 F.2d 235……………………………………………8

United States v. Armstrong (1996), 517 U.S. 456………………………………….8

United States v. Robertson, 15 F.3d 862 (9th Cir. 1994)…………………………10

Van Stone, 95 Ohio App 406. ………………………………………………...….13

Statutes

E.C.M.C. 525.12 (a) - (e)………………………………………4, 5, 6, 7, 10, 11, 13

R.C. 2721………………………………………………………………………12,15

Rules

403………………………………………………………………………………...14

Other Authorities

Gershman, The New Prosecutors, 53 U.Pitt.L.Rev. 393, 408 (1992)…………….,,9

Goldstein, The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea

(1981).

I. STATEMENT OF FACTS

Underlying this declaratory judgment action is a police misconduct case

which arose from a November 29, 2012 police chase which ended in the deaths of

two unarmed motorists Timothy Russell and his passenger Malissa Williams.

The police chase, which began around 10:00 p.m., near the Justice Center in

the City of Cleveland (at Ontario and Second Street, within the Third District)

crossed through several jurisdictions, lasted about 25 minutes and ended in the rear

parking lot of Heritage Middle School in East Cleveland; where police officers

mistaking the backfire from the vehicle driven by Timothy Russell would unleash

a hail of gunfire killing Timothy Russell and his passenger Malissa Williams.

This police chase began when Timothy Russell (Decedent 1) fled from a

traffic stop being conducted by Undercover-Vice Officer John Jordan.

Although Officer Jordan did not participate in the pursuit of the fleeing

vehicle, because, in his words, “he did not want to be bothered with the female”.

Cleveland Police Officer Nan after hearing a loud bang (which he interpreted to be

a gunshot) coming from Timothy Russell’s fleeing vehicle (an older model blue

Chevrolet) informed his supervisor, Defendant Sgt. Randolph Dailey that he was in

pursuit of a fleeing vehicle that, in his words, had “popped a round.”

Sgt. Dailey authorized Officer Nan and other members of his unit (Officers

Siefert and Hummell) to engage in the pursuit. [T. p. 430, lns. 4,5; T. p. 425. lns.

2

20-24; T.454, p.18-22]; and as he monitored the chase via radio broadcasts from

his Second District office, [T. pp.430-432], he countermanded any orders from the

Sector Supervisors (aka “Road bosses”) who should have been in control of the

pursuit. [T. p. 645, lns. 3-19].

Eventually, 62 police units would engage in the pursuit of Timothy Russell

and Malissa Williams. Also engaging in that pursuit was former-Defendant Sgt.

Patricia Coleman who was in charge of a drug unit; and, who having heard Officer

Nan’s communications then mobilized her on-duty reportees authorizing them to

participate in the chase.

Although, the facts show that even after Respondent Sgt. Dailey became

aware of the chase’s inherently dangerous features including the ramming of a

police car [T. pp. 442, lns3-15] broadcast over Police Radio Channel Two); and the

presence of numerous civilian cars and pedestrians in the pathway of the pursuit.

these supervisors Respondent Randolph Daily, and similarly former Defendant

Patricia Coleman failed to terminate the chase.

Furthermore, and despite the fact that the Sector Supervisors should have

been in control of the pursuit; and although the mandates of the City of

Cleveland’s Police Manual [T. p. 846, lns. 5-25] required police pursuits to

terminate when the “level of danger to life and property outweighs the need for

immediate apprehensuin.” [T. p.849, lns. 5,6], and despite the fact that the Third

3

District Supervisor had immediately called off the pursuit; more than 62 police

vehicles would engage in the pursuit of Timothy Russell and Malissa Williams.

As Cleveland Police Supervisors, Respondent Daily’s, and similarly former-

Defendant Coleman’s duties required them to control and supervise their

subordinates and limit the police cars engaged to two. [T p. 851, lns. 7-20]. Their

abject failure to discharge their duties and, in fact, ignore them, would lead to the

deadly encounter with Timothy Russell and Malissa Williams.

These supervisors’ omissions and failures to act would culminate with the

deaths of Timothy Russell and Malissa Williams as they were cornered in the back

parking lot of Heritage Middle School in East Cleveland where police mistaking

the back-fire from Timothy Russell’s vehicle as gunshots opened fire on the

unarmed motorists riddling their bodies with more than 137 shots.

Investigations by then-Chief McGrath’s office and the Department’s

Integrity Control Unit found that Respondent Daily and former-Defendant

Coleman appeared to have violated the Department’s Mission Statement,

Standards of Conduct, several rules on vehicle pursuits and generally failed to keep

the chase under control.

The internal review further showed that more than 30 percent of patrol

officers violated at least one policy during that November’s high-speed chase,

either by failing to follow a supervisor’s order to terminate the chase; or by driving

4

unsafely. More than a third of Cleveland police personnel on duty the night of

November 29, 2012 played a role in chasing Timothy Russell and his passenger,

Malissa Williams.

Based on the facts as set forth above, both Sgt. Dailey and Sgt. Coleman,

were charged with dereliction of duty, under East Cleveland Municipal Ordinance

Section 525.12(e), which provides as follows:

“No public servant shall recklessly fail to perform a duty expressly

imposed by law with respect to his office, or recklessly do any act

expressly forbidden by law with respect to his office.”

See ECMO § 525.12(e).

Although the defendants were charged with a single violation of ECMO §

525.12(e), during the trial of the first defendant (Patricia Coleman, not appealed

here), and upon defense counsels’ motion, the trial court ruled that the Jury could

consider the entire East Cleveland Municipal Code Section 525.12, Dereliction of

Duty subsections (a) through (e) in determining whether the Former-Defendant

Sgt. Patricia Coleman was guilty of dereliction of duty.

Furthermore, during the trial of Sgt. Patricia Coleman, testimony was

elicited regarding General Police Order Cleveland Division of Police of August 5,

2010 entitled Vehicle Pursuits (City of East Cleveland’s Exhibit A).1 2 Although

1 This testimony was elicited from from Cleveland Police Officers Valise Nan and Alan Almeida as well as Monroe

Goins of the City of Cleveland Public Safety Department. 2 Although, the City of Cleveland’s Police Chase Policy was updated in 2014 it is tragically apparent that Cleveland

police supervisors have continued to disobey its tenets with deadly consequences. On December 20, 2019, in a

5

this evidence was critical in demonstrating the essential element under ECMO

525.12(e) of “recklessness” (see discussion infra), the trial court nevertheless ruled

such evidence inadmissible.

Tragically, this omission by the trial court has resulted in a defeat of the

criminal purpose of deterrence. Such that “hot pursuits” chases continue by

Cleveland Police into East Cleveland apparently unabated. 3

The prosecution posits that the reason Patricia Coleman was found not guilty

was that the government was: 1) prohibited from entering the critical evidence of

the City of Cleveland’s Vehicle Pursuit policy, [T. pp.950-955]; and, 2) the

defense was successful in submitting to the jury, East Cleveland Municipal

Ordinance Section No. 523.12, in its entirety--the latter of which only served to

confuse the Jury and obfuscate the true question [Id., T. pp. 950-955].

Defendant Randolph Dailey in East Cleveland Municipal Court Case No. 15

CR00623 has not been tried. His case shares many of the same facts and

circumstances as that of former Defendant Patricia Coleman in East Cleveland

Municipal Court Case No. 15 CR00625 in which Ms. Coleman was found not

guilty. This declaratory judgment action thus seeks a determination of whether a

high-speed chase, Cleveland Police pursued a stolen vehicle into East Cleveland leading to a deadly crash where an innocent thirteen year old girl Tamia Chappman was struck and killed. These high-speed chases have deadly results. A stolen vehicle and a backfiring automobile have led to the deaths of three innocent people. Accountability is what the prosecutor seeks in this matter. 3 Evan McDonald, 13 year old girl killed during Cleveland Police Car Chase in East Cleveland, police Say.

Cleveland.com 12/21/2019. 3563068

6

defendant may waive his constitutional rights so as to provide for the

“overcharging” of offenses. Further this action seeks a declaration as to whether a

trial court may rule inadmissible the entire testimony regarding a key evidentiary

aspect of a criminal prosecution.

As more fully set forth hereinafter, this Court must find that under the

doctrine of invited error, a defendant may not waive his constitutional rights in the

manner as employed in the underlying case. Furthermore, this Court is urged to

enter a declaratory judgment finding that the complete exclusion of evidence on a

key evidentiary aspect of a criminal prosecution is a constitutional

_____________________

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

PROPOSITION OF LAW NO. I:

THE TRIAL COURT ERRED IN ALLOWING THE JURY TO

CONSIDER THE ENTIRE EAST CLEVELAND CODE

SECTION 525.12 IN DETERMINING GUILTY RATHER

THAN JUST THE CHARGED SUBSECTION (E).

In State v. Jenks, et al, 61 Ohio St. 3d 259 (1991), the Ohio Supreme Court

made clear that it is unacceptable when an attorney intentionally uses a strategy

that directs the jury’s attention to an additional, yet unnecessary level of analysis.

Although in Jenks it was the prosecutor who offered evidence solely to inflame the

passion and emotion of the jury, here, it was the defense counsel with the support

7

of the trial court that diverted the jury’s attention away from the appropriate level

of analysis.

The effect of these excessive charges was a blatant diversionary tactic

distracting the jury to lose its way. Unable to immediately appeal to the Eighth

District Court of Appeals in order to avoid this happenstance recurring.

In an extremely unusual move by the defense, the trial judge charged the

jury with an instruction that it could convict former Defendant Coleman under any

of the offenses listed under ECMO 525.12. In this declaratory judgment action,

the question presented for review is whether a jury may be required to examine

offenses other than those that a Defendant has been charged with.

It is respectfully urged that resolution of the question requires an analysis of

the unethical prosecutorial practice of “overcharging” where in the absence of

probable cause a prosecutor charges multiple counts against a defendant as a

harassing and/or coercive device.

As more fully set forth hereinafter, in that “overcharging” violates a

Defendant’s right to protection against double jeopardy, this Court under the

doctrine of invited error, is urged to enter a declaratory judgment finding that such

proceedings by a Defendant in having the jury charged with analysis of non-

charged offenses is an unconstitutional action.

8

"Under the doctrine of invited error, a litigant may not 'take advantage of an

error which he himself invited or induced.'" State v. Gumins, 8th Dist. Cuyahoga

No. 90447, 2008-Ohio-4238, ¶ 19, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford

Motor Co., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the

syllabus.

A. In That Overcharging Violates a Defendants’ Right to Protection

from Double Jeopardy under the Doctrine of Invited Error this

Court must find that such a Defensive Manuever to be

Unconstitutional.

{¶ 67} The decision whether to prosecute a criminal offense is generally

within the prosecutor's discretion. United States v. Armstrong (1996), 517 U.S.

456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687. "There is * * * a 'strong presumption

of regularity' in prosecutorial discretion." State v. Norris, 147 Ohio App.3d 224,

229, 2002-Ohio-1033, 769 N.E.2d 896.

However, the practice of overcharging involves an abuse of the prosecutor's

generally unreviewable discretion. Of necessity, courts are reduced to expressing

concern over the practice and their inability to do anything about it. See, e.g.,

Bordenkircher, 434 U.S. at 368 n. 2, 98 S.Ct. at 670 n. 2 (Blackmun, J.,

dissenting); United States v. Andrews, 612 F.2d 235, 241-42 n. 7 (6th Cir.1979),

reh'g en banc, 633 F.2d 449 (1980), cert. denied sub nom. Brooks v. United States,

450 U.S. 927, 101 S.Ct. 1382, 67 L.Ed.2d 358 (1981); Andrews, 612 F.2d at 256 n.

23 (Keith, J., dissenting). [4]

The result is that "overcharging ... continue[s] to occur

9

Page 877 regularly, without meaningful judicial review or correction." Gershman,

The New Prosecutors, 53 U.Pitt.L.Rev. 393, 408 (1992); see generally A.

Goldstein, The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea

(1981). Though a novel application to this instance, it is still appropriate, here.

And, while it is impossible to gauge precisely how often overcharging

occurs, it is easy to understand some of the reasons why it occurs. Plea bargaining

is now the mainstay of our criminal law system, and excessive charges give the

prosecutor added leverage in the plea bargaining process. Because of the threat of

prosecution on such charges, defendants may be induced to plead guilty on more

unfavorable terms than might otherwise be fair or reasonable. The risk of going to

trial may simply become too great, even in cases in which the defendant may

arguably be innocent of some of the charges. Moreover, beyond the plea

bargaining stage, overcharging may facilitate a compromise verdict in which the

jury channels its doubt as to the defendant's guilt into acquitting him on some

charges but not others. Thus, while a defendant who chooses not to proffer a guilty

plea may successfully resist prosecutorial overcharging by winning a judgment of

acquittal, or, as in this case, having his conviction overturned on appeal, these

possibilities hardly amount to adequate protection against the practice. Primarily,

defendants must rely for fair treatment on the prosecution's responsible use of its

discretion. United States v. Robertson, 15 F.3d 862 (9th Cir. 1994).

10

Justice Blackmun has described prosecutorial overcharging as when

prosecutors bring "charges more serious than they think appropriate for the

ultimate disposition of a case." Op cit., Bordenkircher v. Hayes, 434 U.S. 357, 368

n. 2, 98 S.Ct. 663, 670 n. 2, 54 L.Ed.2d 604 (1978) (Blackmun, J., dissenting).

Similarly, the commentary to the ABA Standards Relating to the Function of the

Prosecutor notes that:

[a]lthough it is difficult to give a definition of "overcharging," the heart of the

criticism is the belief that prosecutors bring charges not in the good faith belief that

they are appropriate under the circumstances and with an intention of prosecuting

them to a conclusion, but merely as a harassing and coercive device in the

expectation that they will induce the defendant to plead guilty.

Id. Sec. 3-3.10 commentary at 3.59. As such, prosecutorial overcharging includes

but is not limited to bringing charges unsupported by probable cause.

Id. at footnote 3.

East Cleveland Municipal Ordinance Section 525.12 reads in its entirety,

(a) No law enforcement officer shall negligently do any of the

following:

(1) Fail to serve a lawful warrant without delay;

(2) Fail to prevent or halt the commission of an offense or

to apprehend an offender, when it is in his power to

do so alone or with available assistance.

11

(b) No law enforcement, ministerial or judicial officer shall

negligently fail to perform a lawful duty in a criminal case or

proceeding.

(c) No officer, having charge of a detention facility, shall

negligently do any of the following:

(1) Allow the detention facility to become littered or

unsanitary;

(2) Fail to provide persons confined in the detention facility

with adequate food, clothing, bedding, shelter and

medical attention;

(3) Fail to control an unruly prisoner, or to prevent

intimidation of or physical harm to a prisoner by another;

(4) Allow a prisoner to escape;

(5) Fail to observe any lawful and reasonable regulation for

the management of the detention facility.

(d) No public official of the Municipality shall recklessly create a

deficiency, incur a liability or expend a greater sum than is

appropriated by the legislative authority of the Municipality for

the use in any one year of the department, agency or institution

with which the public official is connected.

(e) No public servant shall recklessly fail to perform a duty

expressly imposed by law with respect to his office, or

recklessly do any act expressly forbidden by law with

respect to his office.”[Bold added]te

See ECMO 525.12.

Although the authority is rife with the role of overcharging as to the

prosecutor, given the significant impact it has upon the jury, the trial court has

some responsibility in monitoring excessive conduct. Disciplinary Counsel v.

O’Neill, 2004 Ohio 4704. As a neutral, impartial arbiter of justice, it is incumbent

upon the judge to excise uncharged offenses to be considered by the jury. Actually,

12

there is no precedence on point that can be found in which a trial court allowed

such an aberration. That is why it should be proactively prohibited as to the

upcoming trial of the instant case.

PROPOSITION OF LAW NO. II

THE APPELLATE COURT ERRED IN DISMISSING THE

DECLARATORY JUDGMENT ACTION AND NOT RECOGNIZING

JURISDICTION SUBSECTION (F) WHICH PERMITS

JURISDICTION, “IN ANY CAUSE ON REVIEW AS MAY BE

NECESSARY TO ITS COMPLETE DETERMINATION.”

The erroneous rulings by the trial court in Co-Defendant Patricia Coleman’s

case led to the people’s defeat. Inasmuch as R.C. 2721, et seq.; pursuant to R.C.

2317.40 gives petitioners an equitable opportunity to rectify harms under which

they have no remedy at law, their request is squarely met. As required, there is a

high likelihood of success by the people in the second trial of Randolph Dailey if

the City’s motion to submit the General Police Order, Vehicle Pursuit of the

Cleveland Police Department into evidence is granted. Burger Brewing Co. v.

Liquor Control Comm., 34 Ohio St. 2d 93. And, in light of the harm that

unregulated police chases inflict upon the community, the public interest will be

served by a Declaratory Judgment from the appeals courts. Corbett v. Ohio Bldg

Auth., 86 Ohio App. 3d 44. Further, speedy relief is necessary here in order to

preserve the rights of the parties—specifically, the residents of the City of East

Cleveland from rampant intrusions’ upon their safety and security. Pointe at

13

Gateway Condo. v. Schmelzer, 2013 Ohio 3615 citing Van Stone v. Van Stone, 95

Ohio App 406.

An analysis is appropriate, at this point, of whether the Cleveland Police

Chase Policy may be construed as law under ECMO 525.12.

"Reckless conduct is characterized by the conscious disregard of or

indifference to a known or obvious risk of harm to another that is unreasonable

under the circumstances and is substantially greater than negligent conduct."

Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at paragraphs

two and three of the syllabus.

In an effort to establish the culpability prong of dereliction of duty, that the

Defendant acted in a reckless manner; the City attempted to place into evidence

testimony regarding the procedures of the Cleveland Police Department urging that

the supervisors by failing to control their subordinates allowed them to disregard

departmental rules which required them to travel at safe speeds, slow down when

entering an intersection, and have their lights and siren active when responding to a

call.

The urgency of the answer to these questions is found in the basic

Constitutional fact that in the United States, a prosecutor may not appeal a not

guilty verdict. To do so would violate the Eighth Amendment of the Constitution

prohibition of Double Jeopardy.

14

The fact that the jury, in Co-Defendant Patricia Coleman’s trial, was

confused by the omission of the General Police Order, Vehicle Pursuit Policy

manual is evidenced by its jury questions, after four days of testimony: 1) What

were Patricia Coleman’s duties? 2) Was she a Supervisor ? 3) Was she a sector

Supervisor? [The jury questions that were handwritten by the Foreperson were not

included in the municipal clerk of court’s record.]

However, given the aforementioned excess charges with which they were

provided, it is clear that the jury was wondering, for instance, whether or not the

Defendant had neglected to either serve a warrant or allowed a prisoner to escape.

These irrelevant questions were interjected into Co-Defendant Coleman’s case

with the overbroad language of the statute which were submitted as albeit,

inappropriate Defense exhibits for jury consideration. Also, forbearance by the

appellate court on whether or not the testimonial evidence on Cleveland’s Police

Chase Policy could be supported by the document itself undermines the integrity of

the judicial process. While it is true that

Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury. (B) Exclusion

discretionary. Although relevant, evidence may be excluded if its

probative value is substantially outweighed by considerations of

undue delay, or needless presentation of cumulative evidence.

RULE 403.

15

And, “It is well-settled that the admission or exclusion of evidence is within

the sound discretion of the trial court. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271,

569 N.E.2d 1056 (1991). An appellate court will not reverse the trial court's

decision to admit or exclude evidence absent "a clear showing of an abuse of

discretion with attendant material prejudice." State v. Ruppen, 4th Dist. No.

11CA22, 2012-Ohio-4234, ¶ 11, quoting State v. Green, 184 Ohio App.3d 406,

412, 921 N.E.2d 276, ¶ 14 (4th Dist.). An abuse of discretion connotes more than a

mere error of law or judgment, instead requiring a finding that the trial court's

decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). "When an appellate court applies

this standard, it must not substitute its judgment for that of the trial court." State v.

Ruppen, supra, at ¶ 12, citing State v. Jeffers, 4th Dist. No. 08CA7, 2009-Ohio-

1672, ¶ 12.

Based upon the jury questions, though, there is substantial evidence that, if

the Police Chase Policy had been admitted, [T. pp. 950-960.] the outcome of the

case would have been different. State v. Kersbergen, 2015-Ohio-3103, CA2014-

10-218 (OHCA12).

Guidance is needed, then, on the questions that 1) if such testimony is again

provided then, 2) the Police Chase Policy operative at that time should be admitted.

These are certainly justiciable questions as per R.C. 2721, et seq.

16

This is why the appellate court was asked for a declaratory ruling on these

issues. Such a ruling would provide clarity and eliminate jury confusion.

CONCLUSION

Based on the facts of this case and a study of the law as set forth above, this

Court is urged to issue an Order that as a real controversy exists between the

parties and that the controversy here is justiciable, speedy relief is necessary to

preserve the rights of the parties. Accordingly, this Honorable Court is s urged to

reverse the Appellate Court’s dismissal as to Respondent Randolph Dailey and

provide a declaratory judgment on 1) the legality of charges without probable

cause being submitted to the jury; and, 2) the admissibility of credible, reliable,

authenticated evidence upon which there has been substantial testimony by the

witnesses.

Respectfully submitted,

/s/ Willa M. Hemmons

Willa M. Hemmons (0041790)

Director of Law

City of East Cleveland

14340 Euclid Avenue

East Cleveland, Ohio 44112

whemmons@eastcleveland.org

Counsel for Appellant

City of East Cleveland

Phone: 216-681-2169

Fax: 216-681-2199

17

PROOF OF SERVICE

The undersigned, hereby certifies that a true and accurate copy of the Merit

Brief of Appellants was filed electronically with the Supreme Court of Ohio on this

19th day of January, 2020 and that a true and accurate copy thereof was sent by

ordinary U.S. mail, postage prepaid counsel of record for Randolph Dailey

at:

Henry Hilow, Esq.

The Rockefeller Building

Suite 1300

Cleveland, Ohio 44113

/s/ Willa Hemmons__________________

Willa Hemmons

Director of Law

18

APPENDIX: Appx. Page

Notice of Appeal to the Ohio Supreme Court Please see 8th

Dist.

Record

Opinion of the Eighth District Court of Appeals “

Judgment Entry of the Eighth District Court of Appeals “

Opinion and Journal Entry of the East Cleveland Municipal Court “