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Judge suppresses gun as evidence in assault case



Published: Sat, May 24, 2008 @ 12:00 a.m.

By Tim Yovich

The ruling is based on a city prosecutor’s providing advice to a criminal defendant.

WARREN — A Trumbull County Common Pleas Court judge has suppressed a gun used in a shooting and a portion of the defendant’s statement to police, partially because of a conflict in interest by a city prosecutor.

Nonetheless, jury selection will begin Tuesday for 31-year-old Airiz Coleman, of Orchard Avenue, Warren, on charges of felonious assault with a firearms specification, tampering with evidence, improper use of a firearm in a habitation and improper handling of a firearm in a motor vehicle.

Chris Becker, an assistant county prosecutor, said he believes there is still enough evidence in the case that will be tried in the courtroom of Judge W. Wyatt McKay.

Coleman is charged with the Nov. 14, 2006, wounding of Anthony Dukes, 19, at Dukes’ Brier Street home.

In his opinion, Judge McKay wrote that Coleman went to Warren police headquarters the day of the shooting on the advice of Nick Graham, an assistant city law director and a city prosecutor, to “file a report.”

Warren police Detective Jeff Hoolihan videotaped the interview in which the detective told Coleman that he was not under arrest “right now.” When Hoolihan began to question Coleman about the gun, Coleman asked to call his attorney, Graham.

Judge McKay wrote that Coleman talked with Graham on Hoolihan’s cell phone. Graham said he was talking to Coleman as a prosecutor, not as a defense attorney. Coleman then told Hoolihan where the gun was located and police retrieved it.

The judge said in his opinion that Coleman asked to speak to a “lawyer” and Coleman’s lawyer during the interview was Graham, who prosecutes criminal cases.

Graham was not available Friday for comment.

“To defend criminal defendants or otherwise advise would create a clear impermissible conflict of interest for any Warren city prosecutor,” Judge McKay wrote, noting Graham knew or should have known that Coleman was in custody and shouldn’t have given him any advice.

Thus, because there was no evidence that the gun would otherwise have been found by police, it can’t be used as evidence against Coleman.

The judge also ruled that Coleman did not know his phone conversation with Graham was being recorded on the video. Since Coleman believed he was talking with his attorney, the tape is suppressed beginning at the point where Coleman asks for his attorney.

The tape was also suppressed because Coleman was not read his constitutional right against self incrimination when it was apparent he was in custody because he was not permitted to leave police headquarters.

yovich@vindy.com


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