State v. Ivery
2018 Ohio 2177
Ohio Ct. App.2018Background
- On November 15, 2014, an altercation at Papa Don’s Pub in Akron ended when Kenan Ivery fired multiple shots, killing off‑duty Akron police officer Justin and injuring several other patrons. Ivery fled and was later arrested.
- State witnesses described Ivery returning to the bar after being asked to leave, displaying a handgun, being confronted and shoved by several men, and then firing while the men and others were piled near the door.
- Ivery testified he returned only for his wings, revealed his .40 cal pistol because he felt threatened, and fired in fear for his life when men grabbed and shoved him.
- A jury convicted Ivery of aggravated murder, murder, attempted murder, felonious assault, weapon specifications, and weapons offenses; some counts were merged and the court imposed life without parole plus additional sentences.
- On appeal Ivery raised four main claims: failure to give voluntary manslaughter and reckless homicide instructions; insufficiency/manifest‑weight of the evidence; improper Batson application; and admission of lay witness expert testimony. The Ninth District affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ivery) | Held |
|---|---|---|---|
| Whether trial court erred by refusing jury instructions on voluntary manslaughter and reckless homicide | No; evidence did not support that Ivery acted from sudden passion provoked by the victim; his testimony described fear of being killed, not rage | Requested voluntary manslaughter and reckless homicide instructions because provocation or reckless conduct (bringing gun into crowded bar and firing) could support lesser offenses | Court: No error on voluntary manslaughter; reckless‑homicide plain‑error argument not developed so not addressed |
| Sufficiency and manifest‑weight challenges to murder/attempted murder convictions | State: evidence supports convictions (circumstances, witness testimony, multiple victims) | Ivery: acted in self‑defense or under provocation; evidence insufficient/against manifest weight | Court: Declined to address due to appellant’s failure to develop legal argument and cite authority/record as required by App.R.16(A)(7) |
| Batson challenge to juror removal | State: juror was removed for cause based on misconduct (improper communication and deceptive answers), a race‑neutral reason | Ivery: removal implicated Batson because juror was African American and State did not provide race‑neutral reason for peremptory strike | Court: Batson inapplicable because juror was removed for cause (not by peremptory challenge); removal based on deception/violation of court order |
| Admission of allegedly expert testimony from a lay witness (detective) | State: detective testimony about surveillance and timeline was permissible/contextual | Ivery: detective testified beyond lay perception, offering expert conclusions in violation of Evid.R.701 | Court: Even assuming abuse of discretion, Ivery failed to show material prejudice and did not develop argument on appeal; claim overruled |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (1986) (peremptory strikes may not be used for purposeful racial discrimination)
- Shane v. State, 63 Ohio St.3d 630 (1992) (standards for inferior‑degree/lesser‑included offense instructions and provocation analysis)
- State v. Trimble, 122 Ohio St.3d 297 (2009) (appellate test for when lesser‑included offense instructions are required)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard)
- State v. Martin, 19 Ohio St.3d 122 (1985) (appellant must show material prejudice from evidentiary ruling)
- State v. Adams, 144 Ohio St.3d 429 (2015) (Batson applies only to jurors removed by peremptory challenge)