In re Muldrow

[Cite as In re Muldrow, 2011-Ohio-4310.]
Court of Claims of Ohio
Victims of Crime Division
The Ohio Judicial Center
65 South Front Street, Fourth Floor
Columbus, OH 43215
614.387.9860 or 1.800.824.8263
www.cco.state.oh.us
IN RE: YVAN L. MULDROW
YVAN L. MULDROW
Applicant
Case No. V2010-50302
Commissioners:
Karl C. Kerschner
Elizabeth Luper Schuster
ORDER OF A TWO-
COMMISSIONER PANEL
{1}On February 27, 2009, the applicant filed a reparations application as the
result of an assault which occurred on September 27, 2008. On October 19, 2009, the
Attorney General issued a finding of fact and decision denying the applicant’s claim
based upon his failure to fully cooperate with police as is required by R.C. 2743.60(C).
The Attorney General’s investigation revealed that the applicant agreed to meet with the
detective concerning the assault but failed to appear at the meeting. Furthermore, the
applicant did not return the detective’s phone messages. On November 12, 2009, the
applicant submitted a request for reconsideration. On March 10, 2010, the Attorney
General rendered a Final Decision finding no reason to modify the initial decision. On
April 2, 2010, the applicant filed a notice of appeal from the March 10, 2010 Final
Decision of the Attorney General. Hence, a hearing was held before commissioners
Ostry, Kerschner, and Schuster on November 17, 2010 at 11:10 A.M.
{2}The applicant and his attorney, Michael Falleur, appeared while Assistant
Attorney General Heidi James represented the state of Ohio.
{3}The sole issue in this case is whether the applicant fully cooperated with law
enforcement as required by R.C. 2743.60(C). The applicant characterized his failure
Case No. V2010-50302 - 2 - ORDER
as a miscommunication rather than a failure to cooperate. The Attorney General
believes the evidence will show that law enforcement made a substantial and diligent
effort to investigate the criminal incident but their efforts were thwarted by the
applicant’s failure to fully cooperate.
{4}Yvan Muldrow testified that after he was shot he went to The Ohio State
University Hospital East (OSU). He stated that he spoke to a detective while at the
hospital, and described what happened. After spending approximately six hours at the
hospital he was released and returned home. However, he continued to experience
discomfort and he returned to the hospital. It was discovered that bones in his wrist
were broken and he was transported from OSU East to OSU North and admitted. The
applicant stated he had one telephone conversation with the police during which an
officer arranged to meet him at his residence. The applicant testified he did not
receive any additional calls from the police. And that he has had no communication with
the police since the date of the telephone call.
{5}Upon cross-examination, the Attorney General had the witness read from the
police report. The applicant read the following: “#1 stated that he was inside the
location and he stated that he was talking to some guys that he did not know and they
started to argue. Victim #1 stated that he went outside of the location. Victim #1
stated that the same guys he was arguing with started to shoot at him as he ran inside
the bar.” The applicant related that he is listed as Victim #1 in the police report but he
averred that he never told the detective that he ran back into the bar. The Attorney
General marked the police report as State’s Exhibit A.
{6}The applicant related that he was at home when the detective contacted him
about setting up an interview to review a photo lineup. According to the applicant, the
interview was to take place at his residence, between the hours of 5 to 8 P.M. the day
after the shooting. The applicant asserts the detective never showed up at the
assigned time, and he never contacted the detective because he had no telephone
number to reach him.
Case No. V2010-50302 - 3 - ORDER
{7}The applicant stated he gave his cell phone number to the detective.
However, he has never attempted to contact the detective to reopen the case.
Whereupon, the applicant’s testimony was concluded.
{8}The Attorney General called Columbus Police Detective Paul Boldin to
testify. Detective Boldin stated he met with Mr. Muldrow at the hospital on the night of
the incident. Detective Boldin was accompanied by Detective Chapman who also
interviewed witnesses in the waiting room. Detective Boldin testified that upon meeting
with victims he typically provides them with his business card which contains contact
numbers. Detective Boldin testified he set up a follow-up interview with Mr. Muldrow
while in the examining room at the hospital. The followup interview was set for 11:00
P.M. the following day, September 28, 2008, at Mr. Muldrow’s residence. Detective
Boldin stated he arrived at the Muldrow residence at 11:00 P.M., the residence was
dark and no one answered the door. Upon receiving no response, he went back to the
police department. Subsequently, he placed two phone calls to the residence and
received no response. Detective Boldin related a followup interview was necessary
since the word “Atchison” was mentioned. Detective Boldin explained that in the city of
Columbus there is a street gang that refers to itself as Atchison and further investigation
could have revealed whether the street gang was involved in this incident.
Consequently, Detective Boldin produced a computer generated document which
contained pictures of gang members associated with this group and he wanted Mr.
Muldrow to view this page so a possible identification of the shooter could be made.
{9}The case remained open for seven weeks, but due to the failure of the
applicant to contact him the case was closed. Detective Boldin stated that Mr.
Muldrow’s unresponsiveness led to the closing of the case.
{10}Upon cross-examination, the officer testified based on his experience with
Franklin County Common Pleas Court, that unless there is a cooperative victim a case
could not be successfully prosecuted. He also testified that although there were other
Case No. V2010-50302 - 4 - ORDER
witnesses no followup was done. Whereupon, Detective Boldin’s testimony was
concluded.
{11}The applicant called rebuttal witness Andrew Muldrow, the applicant’s
father. Mr. Muldrow testified he was called to the hospital on the night of the shooting
and that he was at the hospital for approximately five hours until the applicant was
released. He stated that later the applicant returned to the OSU Hospital Campus
location.
{12}Andrew stated due to his disability he is at the residence everyday.
However, the only telephone at the home is a cell phone owned by the applicant. He
testified no police officer ever came to the door, made a telephone call, or left a
business card at the residence. Whereupon, Andrew Muldrow’s testimony was
concluded.
{13}Yvonne Muldrow, the applicant’s mother, was then called to testify. Ms.
Muldrow testified concerning the events which occurred on the night of the shooting.
She related that a detective called the home requesting to speak with Yvan, but he was
at OSU Hospital at the time. She was unaware of any police officer coming to the door
or any phone calls other than the initial call.
{14}On cross-examination, Ms. Muldrow stated an appointment was made to
meet her son on the day he was initially released from the hospital, but her son returned
to the hospital prior to the meeting time and furthermore, the officer never showed up at
the residence. Whereupon, the testimony of Yvonne Muldrow was concluded.
{15}In closing, the applicant characterized this case as a failure to
communicate, not a failure to cooperate. The applicant stated witnesses testified the
officer never came to the door, there was only one phone call, and there was no
followup by the Columbus Police Department. Furthermore, there was no followup with
other witnesses to this incident who were initially interviewed by Detective Chapman at
the hospital. The applicant asserts a lack of effort by the police caused the criminal
investigation to fail, not any action or inaction by the applicant.
Case No. V2010-50302 - 5 - ORDER
{16}The Attorney General urges this panel to follow the holdings in In re Colbert
III, V92-54501jud (6-29-95); In re Dray (1989), 61 Ohio Misc. 2d 417; and In re
Deardorff, V79-3236jud (9-4-81). These cases stand for the proposition that an action
or inaction on the part of the applicant which impedes or impairs a criminal investigation
is a failure to fully cooperate. Also, a crime is not only committed against the individual
but against society at large and, accordingly, a victim has an obligation to assist law
enforcement to get criminals off the streets.
{17}The Attorney General argued that although the applicant characterized this
situation as a failure to communicate, it questions, why the applicant did not contact
police after the first scheduled meeting did not occur. In addition, the Attorney General
questions why the applicant not return the detective’s phone call. The applicant’s
mother testified that the detective did call, but the applicant never attempted to return
the call. Accordingly, the applicant’s claim should be denied based on the applicant’s
failure to fully cooperate with police. Whereupon, the hearing was concluded.
{18}On April 6, 2011, the court issued a notice informing the parties that
pursuant to Rule 1.12(b) of the Rules of Professional Conduct, Commissioner Randi M.
Ostry recused herself from the case at bar and requested the parties file written
notification by May 6, 2011 as to whether they want the motion decided by the two
remaining panel commissioners who sat at the hearing; or they wanted a randomly
selected third commissioner to review the case file and hearing and reach a decision
together with the two sitting commissioners; or they want a rehearing of the matter.
{19}On April 18, 2011, the parties filed a joint notice wishing to proceed with
this matter based upon the decision of the two remaining panel of commissioners.
{20}R.C. 2743.60(C) states:
“(C) The attorney general, a panel of commissioners, or a judge of the court of
claims, upon a finding that the claimant or victim has not fully cooperated with
appropriate law enforcement agencies, may deny a claim or reconsider and
reduce an award of reparations.”
Case No. V2010-50302 - 6 - ORDER
{21}The Attorney General has the burden with respect to proof of
non-cooperation with law enforcement authorities [exclusionary criteria R.C. 2743.60].
In re Williams, V77-0739jud (3-26-79); and In re Brown, V78-3638jud (12-13-79).
{22}“As a general rule any action, inaction, or inexcusable neglect by an
applicant which substantially impedes or impairs investigation or prosecution
proceedings which have been initiated by the law enforcement authorities or which
would have been initiated but for the action, inaction, or inexcusable neglect, constitutes
a failure to fully cooperate as required by R.C. 2743.60(C).” In re Dray (1989), 61 Ohio
Misc. 2d 417, 419.
{23}The intent of the legislature in enacting the full cooperation provision was to
encourage victims to affirmatively aid the authorities in identifying and prosecuting
criminal offenders. A crime is an offense not only against the victim, but also against
the citizens of this state. Therefore, the people of Ohio, in compensating a victim for
injuries, have the right to expect the victim to aid the people in protecting themselves
against further crime which may possibly be committed by the same offender. In re
Bolster (May 2, 1979), Ct. of Claims No. V77-0964jud, unreported.
{24}We have viewed the intent of the legislature in enacting the full cooperation
provision was to encourage victims to affirmatively aid the authorities in the prosecution
of criminal offenders. In re Deardoff, V79-3236jud (9-4-81).
{25}Black’s Law Dictionary Sixth Edition (1990) defines preponderance of the
evidence as: “evidence which is of greater weight or more convincing than the evidence
which is offered in opposition to it; that is, evidence which as a whole shows that the
fact sought to be proved is more probable than not.”
{26}Black’s Law Dictionary Sixth Edition (1990) defines burden of proof as: “the
necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised
between the parties in a cause. The obligation of a party to establish by evidence a
requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”
Case No. V2010-50302 - 7 - ORDER
{27}The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548.
{28}From review of the case file and upon full and careful consideration given to
all the testimony presented and the arguments of the parties at the hearing, we find the
applicant’s claim should be denied pursuant to R.C. 2743.60(C). R.C. 2743.60(C)
requires that the applicant shall fully cooperate with law enforcement. In the case at
bar, we found the testimony of Detective Boldin to be credible. We find he followed
police protocol by interviewing the applicant at the hospital, setting up a home visit so
photographs could be viewed, placing two telephone calls when the home visit did not
transpire, and keeping the crime case open for seven weeks to allow the applicant the
opportunity to cooperate.
{29}On the other hand, the applicant presented three different versions of the
events surrounding the shooting, provided the police with no helpful information, never
returned a call from a Columbus Police officer, and never attempted to find out about
the status of the police investigation when the general telephone number to the
Columbus Police Department is easily obtained.
{30}Accordingly, we find the applicant did not fully cooperate with law
enforcement as is required by R.C. 2743.60(C) and his claim is denied. The Attorney
General’s Final Decision of March 10, 2010 is affirmed.
IT IS THEREFORE ORDERED THAT
{31}1) State’s Exhibit A is admitted into evidence;
{32}2) The March 10, 2010 decision of the Attorney General is AFFIRMED;
{33}3) The claim is DENIED and judgment is rendered for the state of Ohio;
{34}4) Costs are assumed by the court of claims victims of crime fund.
Case No. V2010-50302 - 8 - ORDER
_______________________________________
KARL C. KERSCHNER
Commissioner
_______________________________________
ELIZABETH LUPER SCHUSTER
Commissioner
ID #I:\VICTIMS\2010\50302\V2010-50302 Muldrow.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Franklin County Prosecuting Attorney and to:
Filed 5-16-11
Jr. Vol. 2278, Pgs. 145-152
Sent to S.C. Reporter 8-26-11