Prosecutor applauds appeal ruling in shootout case

Athens County assistant prosecutor Keller Blackburn said Tuesday he feels vindicated by a recent ruling from Ohio’s 4th District Court of Appeals that upheld the conviction of a New Marshfield man for murder and aggravated robbery in connection with a February 2009 shootout.

 

 

Philip Dionte Boler, 28, is serving 28 years to life in prison for his part in the gunfight in which a Meigs County man was killed.

Boler was one of a group of people who went, armed with guns, to the home of a New Marshfield man, apparently to try to collect on an illegal drug debt. Shooting broke out, and a non-combatant, Donnie Putnam, was killed in the crossfire.

Boler’s attorney argued in an appeal that prosecutors in the case committed multiple acts of misconduct, including the use of inflammatory language and the improper “bolstering” of the state’s case by allusions to evidence the jury never got to hear directly.

In rejecting Boler’s appeal in a ruling issued Monday, the appellate court found no merit in any of his claims of prosecutorial misconduct. Blackburn said he’s gratified to see the court found no fault with how he and fellow assistant prosecutor Robert Driscoll pursued a conviction.

“There were a lot of accusations made against Rob and myself, about the way the case was handled,” Blackburn said. “Sometimes it’s easy to accuse prosecutors. But I believe we’re a profession of honor for the most part.”

Boler’s appeal cited multiple instances in which Blackburn and/or Driscoll allegedly overstepped the boundaries of what prosecutors are allowed to do and say before a jury.

These included:

• telling the jury outright during closing arguments that Boler was guilty;

• talking during closing arguments about alleged facts that had never been presented to the jury during testimony;

• using prejudicial language, including repeated references to Boler’s accomplices as “thugs” and “goons,” mentioning that they were black, and calling their plot a scheme “hatched in hell”;

• introducing statements from witnesses that were made outside the courtroom, including a description by one prosecution witness of part of the shootout, which was made to a police officer, and introduced into evidence through a transcript.

In each instance, the appeals court found that not only was there no “plain error” on the part of the trial court, but no error, period.

Writing for a unanimous three-judge panel, Judge Roger L. Kline concluded that the prosecutor did nothing wrong when he stated that “the defendant is guilty,” and later, “it’s the defendant’s fault.”

Regarding the first statement, the court found the prosecutor was “merely arguing that the jury should more reasonably believe the state’s case (than the defense’s case), and that because the facts established by the state’s case meet the elements (of the offenses charged), the jury should return a verdict of guilty.”

Regarding the second statement, Kline noted that the phrase, “it’s the defendant’s fault,” was made in reference to an earlier defense argument. Boler’s attorney had argued that, because another man involved in the shootout had actually shot Donnie Putnam, any robbery Boler may have committed was not the cause of Putnam’s death. (Boler was convicted of so-called “felony murder,” meaning that he did not have to actually have fired the fatal shot, as long as he took part in a felony that was the “proximate cause” of a slaying.)

The appeals court found that the remark about the death being Boler’s fault was made to counter this claim by the defense.

“The prosecutor is not arguing or inviting the jury to conclude that Boler is guilty because the prosecutor believed that Boler is guilty,” Kline wrote. “Rather, the prosecutor is specifically addressing a legal argument that defense counsel raised during his closing argument.”

Regarding the allegedly inflammatory language used by the prosecutors, the appellate court found that in mentioning the race of Boler’s accomplices, “the prosecutor merely used black as a description, and in context did not invite the jury to base its decision on prejudice or bigotry.”

As for the “thugs and goons” language, the court noted in a statement to police, Boler himself described his two accomplices, Abdifatah Abdi and Mahat Osman, as thugs. The court also noted that these labels weren’t used by the prosecution just for their defamation value; they were relevant to showing that Boler had deliberately recruited other people to help him commit a robbery.

“Certainly, evidence that Boler considered (Osman and Abdi) to be ‘thugs’ is relevant evidence to Boler’s intentions on the night in question,” the ruling states.

The reference to “schemes hatched in hell,” the appeals court found, was made in the context of explaining to the jury that it should not expect “angels” as state’s witnesses in such a case – in other words, that few witnesses who testified would be “untainted by criminality.”

The appeals court also found that the trial court did not abuse its discretion when it allowed the state to introduce as evidence the prior statements made by witnesses during police interviews.