State v. Ivery
2020 Ohio 3349
Ohio Ct. App.2020Background:
- Incident at Papa Don’s Pub (Nov. 15, 2014): after a confrontation, Kenan Ivery left, retrieved a firearm, returned ~8 minutes later, revealed a gun, and—after being surrounded and shoved—fired multiple shots; Justin (an Akron police officer) was killed and others were wounded.
- Ivery testified he acted in self-defense, claiming he feared the men were reaching for his gun.
- A jury convicted Ivery of aggravated murder (with prior calculation and design), murder, attempted murder, felonious assault, firearm specifications, and related weapons offenses; trial court sentenced him to life without parole for aggravated murder plus additional terms.
- This Court affirmed on direct appeal (State v. Ivery, 9th Dist. No. 28551, 2018-Ohio-2177); Ivery sought reopening under App.R. 26(B) alleging ineffective assistance of prior appellate counsel; the Court granted reopening and reconsidered four assignments of error.
- The Court reviewed sufficiency and manifest-weight of the evidence, juror removal for cause, and the trial court’s refusal to instruct on reckless homicide, and ultimately confirmed its prior judgment.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated murder, murder, attempted murder, felonious assault | State: evidence (Ivery left, retrieved gun, returned, announced he was “not alone,” drew and fired; victims hit) supports mens rea (purposely/knowingly) for convictions | Ivery: State failed to prove required mens rea; prior appellate counsel ineffective for not raising this | Court: Evidence viewed in State’s favor sufficient to prove purposely/knowingly elements; assignment overruled |
| Manifest weight of evidence for aggravated murder, murder, attempted murder | State: jury credibility determinations supported; evidence of conduct (return with gun, firing into crowd) supports convictions | Ivery: acted recklessly or in self-defense; verdict against manifest weight; appellate counsel ineffective for not developing this | Court: After weighing record, jury did not lose its way; convictions not against manifest weight; assignment overruled |
| Removal of juror for cause | State: juror violated court’s no-contact admonition and lied when questioned; removal for cause proper | Ivery: trial court used wrong/legal standard and failed to determine juror’s impartiality; prior appellate counsel ineffective for not litigating this | Court: Removal for cause was not an abuse of discretion given violation and deception; assignment overruled |
| Refusal to instruct on reckless homicide | State: evidence did not reasonably permit jury to reject greater offenses and convict of reckless homicide; no plain error | Ivery: trial court erred (plain error) in refusing reckless-homicide instruction; appellate counsel ineffective for failing to raise it | Court: No plain error; evidence did not support lesser-included reckless homicide instruction; assignment overruled |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (benchmark for ineffective-assistance-of-counsel analysis)
- Jenks v. Ohio, 61 Ohio St.3d 259 (1991) (standard for sufficiency review in Ohio criminal cases)
- Thompkins v. Ohio, 78 Ohio St.3d 380 (1997) (manifest-weight standard and distinction from sufficiency)
- Coley v. Ohio, 93 Ohio St.3d 253 (2001) (prior calculation and design may be found from a short deliberation period)
- Monroe v. Ohio, 105 Ohio St.3d 384 (2005) (aggravated murder and murder relationship; murder as lesser-included)
- Fry v. Ohio, 125 Ohio St.3d 163 (2010) (mens rea for murder and felony-murder predicate mens rea analysis)