[Cite as State v. Mammone, 2012-Ohio-3546.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. Patricia A. Delaney, P. J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. Sheila G. Farmer, J. 

-vs- : 

 : 

JAMES MAMMONE, III : Case No. 2012CA00012 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 2009CR0859 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: August 6, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellee 

JOHN D. FERRERO ROBERT K. LOWE 

Stark County Prosecutor SHAWN P. WELCH 

By: RENEE M. WATSON 250 East Broad Street 

KATHLEEN O. TATARSKY Suite 1400 

110 Central Plaza South Columbus, OH 43215 

Suite 510 

Canton, OH 44702 
Stark County, Case No. 2012CA00012 2 

Farmer, J. 

{¶1} On June 17, 2009, the Stark County Grand Jury indicted appellant, James 

Mammone, III, on three counts of aggravated murder in violation of R.C. 2903.01 with 

death penalty specifications in violation of R.C. 2929.04(A)(5), (7), and (9). One of the 

aggravated murder counts carried a firearm specification in violation of R.C. 2941.145. 

Appellant was also indicted on two counts of aggravated burglary in violation of R.C. 

2911.11, each with a firearm specification, violating a civil protection order in violation of 

R.C. 2919.27, and attempted arson in violation of R.C. 2923.02 and 2909.03. Said 

charges arose from the deaths of appellant's former mother-in-law, Margaret Eakin, and 

his two children, Macy, age five, and James, age three. 

{¶2} A jury trial commenced on January 11, 2010. The jury found appellant 

guilty as charged. After the mitigation phase, the jury recommended the death penalty. 

By judgment entry filed January 22, 2010, the trial court sentenced appellant to three 

consecutive death sentences. 

{¶3} Appellant filed an appeal with the Supreme Court of Ohio, Case No. 10-

0576. The appeal remains pending. 

{¶4} On May 27, 2011, appellant filed with the trial court a petition for 

postconviction relief. An amended petition was filed on September 2, 2011. By 

judgment entry filed December 14, 2011, the trial court denied appellant's petition, 

finding he did not present sufficient evidence to warrant a hearing. 

{¶5} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 
Stark County, Case No. 2012CA00012 3 

I 

{¶6} "THE TRIAL COURT ERRED IN DISMISSING MAMMONE'S POSTCONVICTION PETITION WHEN HE PRESENTED SUFFICIENT OPERATIVE FACTS 

TO MERIT RELIEF OR, AT MINIMUM, AN EVIDENTIARY HEARING." 

II 

{¶7} "THE TRIAL COURT ERRED WHEN IT DENIED THE POSTCONVICTION PETITION WITHOUT FIRST ALLOWING MAMMONE TO CONDUCT 

DISCOVERY." 

III 

{¶8} "THE TRIAL COURT ERRED WHEN IT DENIED MAMMONE'S MOTION 

FOR FUNDS TO EMPLOY EXPERTS." 

I 

{¶9} Appellant claims the trial court erred in denying his petition for 

postconviction relief as he had raised violations of his constitutional rights and 

presented sufficient evidentiary items to warrant a hearing. We disagree. 

{¶10} R.C. 2953.21 governs petition for postconviction relief. Subsection (C) 

states the following: 

{¶11} "The court shall consider a petition that is timely filed under division (A)(2) 

of this section even if a direct appeal of the judgment is pending. Before granting a 

hearing on a petition filed under division (A) of this section, the court shall determine 

whether there are substantive grounds for relief. In making such a determination, the 

court shall consider, in addition to the petition, the supporting affidavits, and the 

documentary evidence, all the files and records pertaining to the proceedings against 
Stark County, Case No. 2012CA00012 4 

the petitioner, including, but not limited to, the indictment, the court's journal entries, the 

journalized records of the clerk of the court, and the court reporter's transcript. The 

court reporter's transcript, if ordered and certified by the court, shall be taxed as court 

costs. If the court dismisses the petition, it shall make and file findings of fact and 

conclusions of law with respect to such dismissal." 

{¶12} In his September 2, 2011 amended petition for postconviction relief at 9-

30, appellant argued ten grounds for relief.1

{¶13} First, appellant argued his trial counsel was ineffective for failing to obtain 

all necessary experts specifically, a neuropsychologist to evaluate him, and failed to 

request neuroimaging. Appellant argues the trial court did not properly consider these 

claims. 

{¶14} The record establishes on August 17, 2009, the trial court appointed the 

testifying forensic psychologist, Jeffrey Smalldon, Ph.D., as specifically requested by 

appellant on June 23, 2009. 

{¶15} In his petition, appellant attached as Exhibit A the affidavit of a board 

certified forensic psychologist, Bob Stinson, Psy.D., J.D., ABPP, who opined at ¶17, "I 

strongly recommend that James Mammone be evaluated by specialists in the field of 

neurology, neurophysiology, and neuropsychology to determine the existence of brain 

dysfunction, neurological insults, and/or neuropsychological deficits." Dr. Stinson at ¶15 

noted Dr. Smalldon was not a neuropsychologist. In fact, Dr. Smalldon is a forensic 

psychologist as is Dr. Stinson. 

 

1

As noted by the trial court in its December 14, 2011 judgment entry denying appellant's 

petition for postconviction relief at fn. 21, "[w]ith the exception of one paragraph that 

appears to be in error, Mammone's sixth and seventh grounds for relief are identical." 
Stark County, Case No. 2012CA00012 5 

{¶16} Dr. Smalldon testified he has conducted neuropsychological assessments 

requested by neurologists, neurosurgeons, and other specialists to determine "whether 

some of their patients may have deficits that haven't maybe turned up on MRIs and cat 

scans, but that may show up in neuropsychological testing." Sentencing Phase Vol. II 

T. at 367-368. 

{¶17} Dr. Smalldon testified he met with appellant seven times with twenty hours 

of face-to-face time. Id. at 376. His evaluation included numerous tests given to 

appellant as well as a "review of a very extensive collection of case relevant background 

records" and third-party interviews. Id. at 377, 400-401. Dr. Smalldon found no 

indication of any brain disorder, despite appellant's medical history of a bicycle accident 

wherein he may have lost consciousness. Id. at 401. He also opined appellant was not 

actively psychotic, but his profile did include characteristics of those who are psychotic. 

Id. at 405, 406. Dr. Smalldon found appellant to have a severe personality disorder not 

otherwise specified with schizotypl, borderline, and narcissistic features. Id. at 408, 

416-419. Appellant also exhibited the "presence of both passive aggressive and 

obsessive compulsive personality traits" and "generalized anxiety disorder" by history. 

Id. at 408, 420-421. None of the testing indicated any brain damage. Id. at 426. 

{¶18} In his affidavit, Dr. Stinson, who possesses the same credentials as Dr. 

Smalldon, advanced the opposite opinion. We fail to see that the presence of a 

contradicting opinion by one who never interviewed appellant would result in any 

affirmative help to appellant's case. The affidavit is only an offer of a contradicting 

opinion and not definitive evidence on the issue. 
Stark County, Case No. 2012CA00012 6 

{¶19} We find the trial court did not err in rejecting Dr. Stinson's affidavit and 

denying appellant's first ground for relief. 

{¶20} Secondly, appellant argued his trial counsel was ineffective for failing to 

properly question Juror No. 430 and failing to remove this juror from the panel. This 

issue is ripe for appellant's direct appeal and is therefore barred under State v. Perry

(1967), 10 Ohio St.2d 175. 

{¶21} We find the trial court did not err in denying appellant's second ground for 

relief. 

{¶22} Appellant's third and fourth grounds for relief challenged activity that 

occurred during jury deliberations regarding Juror No. 438 and the fact that the jury 

prayed before beginning deliberations on the penalty phase. In support of his 

arguments, appellant submitted as Exhibit B the hearsay affidavit of a criminal 

investigator for the State Public Defender's Office, Felicia Crawford. 

{¶23} Evid.R. 606 governs competency of juror as witness. Subsection (B) 

states the following: 

{¶24} "(B) Inquiry into validity of verdict or indictment. Upon an inquiry into 

the validity of a verdict or indictment, a juror may not testify as to any matter or 

statement occurring during the course of the jury's deliberations or to the effect of 

anything upon that or any other juror's mind or emotions as influencing the juror to 

assent to or dissent from the verdict or indictment or concerning the juror's mental 

processes in connection therewith. A juror may testify on the question whether 

extraneous prejudicial information was improperly brought to the jury's attention or 

whether any outside influence was improperly brought to bear on any juror, only after 
Stark County, Case No. 2012CA00012 7 

some outside evidence of that act or event has been presented. However a juror may 

testify without the presentation of any outside evidence concerning any threat, any 

bribe, any attempted threat or bribe, or any improprieties of any officer of the court. A 

juror's affidavit or evidence of any statement by the juror concerning a matter about 

which the juror would be precluded from testifying will not be received for these 

purposes." 

{¶25} The affidavit of Ms. Crawford is a flagrant attempt to bypass the aliunde 

rule adopted by the Ohio legislature in Evid.R. 606(B). State v. Jones (December 29, 

2000), Hamilton App. No. C-990813. The trial court was correct in disregarding the 

affidavit. 

{¶26} We find the trial court did not err in denying appellant's third and fourth 

grounds for relief. 

{¶27} Appellant's fifth and sixth grounds for relief argued his trial counsel was 

ineffective for failing to attack the Stark County Prosecutor's Office for its arbitrary, 

capricious, and discriminating practice in indicting the death penalty. Appellant argued 

this issue violates his rights to equal protection under the United States Constitution. 

{¶28} Appellant argues he has supported this claim with items dehors the record 

and is entitled to a hearing. The submitted items dehors the record are Exhibits F, G, H, 

and I attached to appellant's petition. However, these exhibits are not of evidentiary 

quality. Also, having served ten years on the Common Pleas bench, this writer is aware 

that Exhibit F, titled "Stark County Death Penalty Indictments," is an incomplete list. 

{¶29} The trial court found the arguments on this issue to be barred by the 

doctrine of res judicata, citing Perry, supra, and the Supreme Court of Ohio's decision in 
Stark County, Case No. 2012CA00012 8 

State v. Jenkins (1984), 15 Ohio St.3d 164. The Jenkins court at paragraph one of the 

syllabus held, "Ohio's statutory framework for imposition of capital punishment, as 

adopted by the General Assembly effective October 19, 1981, and in the context of the 

arguments raised herein, does not violate the Eighth and Fourteenth Amendments to 

the United States Constitution or any provision of the Ohio Constitution." The Jenkins 

court at 169 specifically addressed the discretionary role of the state's elected 

prosecuting attorney, citing Justice Stewart's opinion in Gregg v. Georgia (1976), 428 

U.S. 153, 199: 

{¶30} " 'First, the petitioner focuses on the opportunities for discretionary action 

that are inherent in the processing of any murder case under Georgia law. He notes 

that the state prosecutor has unfettered authority to select those persons whom he 

wishes to prosecute for a capital offense and to plea bargain with them. Further, at the 

trial the jury may choose to convict a defendant of a lesser included offense rather than 

find him guilty of a crime punishable by death, even if the evidence would support a 

capital verdict. And finally, a defendant who is convicted and sentenced to die may 

have his sentence commuted by the Governor of the State and the Georgia Board of 

Pardons and Paroles. 

{¶31} " 'The existence of these discretionary stages is not determinative of the 

issues before us. At each of these stages an actor in the criminal justice system makes 

a decision which may remove a defendant from consideration as a candidate for the 

death penalty. Furman [v. Georgia (1972), 408 U.S. 238], in contrast, dealt with the 

decision to impose the death sentence on a specific individual who had been convicted 
Stark County, Case No. 2012CA00012 9 

of a capital offense. Nothing in any of our cases suggests that the decision to afford an 

individual defendant mercy violates the Constitution. * * *' " 

{¶32} We find the trial court did not err in denying appellant's fifth and sixth 

grounds for relief. 

{¶33} As for the seventh ground for relief, see footnote 1. 

{¶34} Appellant's eighth and ninth grounds for relief argued the state failed to 

disclose exculpatory evidence. Appellant submitted blood and urine samples. The 

preliminary notes of criminalist Jay Spencer in analyzing the samples indicated a 

positive result for Benzodiazepines. The confirming analysis was negative as was Mr. 

Spencer's opinion at trial. Vol. VI T. at 63-64. Because of the lack of disclosure of the 

preliminary findings, appellant argued he was denied an effective argument at the 

suppression hearing: the taking of Valium prior to his arrest thereby affecting his 

confession. Appellant further argued this evidence could have countered the state's 

implication during final argument that he was not truthful about taking drugs. Vol. VIII T. 

at 53-54. Appellant argued this non-disclosure is a violation of Brady v. Maryland 

(1963), 373 U.S. 83, wherein the United States Supreme Court held at 87, "[w]e now 

hold that the suppression by the prosecution of evidence favorable to an accused upon 

request violates due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the prosecution." 

{¶35} The trial court concluded Mr. Spencer's testimony was not false because 

the confirmation test established the samples were negative for drugs. The trial court 

also concluded the presence or absence of drugs in appellant's system was not material 

to whether he committed the crimes, and the claimed ingestion of Valium was 
Stark County, Case No. 2012CA00012 10 

thoroughly vetted during the suppression hearing. November 24, 2009 T. at 42-43, 45-

46, 47-48, 59-60, 67. 

{¶36} Although the trial court's conclusions are correct, even without the 

confession, we find the overwhelming evidence presented at trial persuades us that any 

failure to disclose the complained of evidence did not prejudice appellant in the guilty 

phase of the trial. 

{¶37} Marcia Eakin testified during the trial. Ms. Eakin was appellant's ex-wife, 

and the mother of the children-victims, Macy and James, and the daughter of the adultvictim, Margaret Eakin. She testified throughout the evening preceding the deaths, 

appellant texted her and called her with veiled threats regarding the children's safety 

who were spending the evening with him. Vol. V T. at 56-63, 69-71; State's Exhibit 15. 

The children were with appellant all evening until they were found dead in the backseat 

of appellant's vehicle the next morning. Id. at 159. Appellant's vehicle was seen at the 

residence of Margaret Eakin at the time of her death by neighbors who ran outside after 

hearing gunshots. Id. at 125, 128-129. 

{¶38} In the morning, appellant called Ms. Eakin and admitted to her that he had 

killed her mother and the children. Id. at 78-79. After his arrest, as the blood on 

appellant's hands was being swabbed for evidence, appellant gratuitously stated to 

Canton Police Crime Scene Officer Randy Weirich that he used his left hand in stabbing 

the children and beating his former mother-in-law. Id. at 220-221. Appellant left a 

voicemail for his friend, Richard Hull, and admitted his plan to kill the children and his 

former mother-in-law as vengeance for the divorce. State's Exhibit 64. The time of the 
Stark County, Case No. 2012CA00012 11 

voicemail was prior to the time he claimed to have taken any pills. Vol. VII T. at 46; 

Sentencing Phase Vol. I T. at 285-286. 

{¶39} A bloody knife was found in the backseat of appellant's vehicle where the 

children were found stabbed and dead in their car seats. Vol. V T. at 204; State's 

Exhibit 2K and 28. Many of the blood samples taken from the evidence contained a 

mixture of DNA profiles and shared genetic types. Vol. VI T. at 164, 170, 172-173. The 

blood on the knife belonged to James and possibly Macy. Id. at 164-165. Appellant's 

hands contained the blood of Margaret Eakin and possibly James and Macy. Id. at 170-

172, 173-174; State's Exhibit 45. Appellant's blood was found on the firearm used to 

shoot Margaret Eakin. Id. at 184-185; State's Exhibit 23B. Appellant's fingernail 

clippings contained the blood of his son. Id. at 190-191; State's Exhibits 48A and B. 

{¶40} Even without the confession that appellant now argues might be tainted 

because of drug consumption, the evidence is overwhelming and conclusive of 

appellant's guilt. 

{¶41} Appellant further argued the prosecutor's remarks during closing argument 

implied that he had lied about taking drugs: 

{¶42} "[MR. BARR:] The pills. Why did he take the pills? Let's talk about these 

alleged pills that don't show up in anybody's blood, although he took dozens. Again, 

reason and common sense, folks, just use it. He didn't take the pills to calm him down 

or to dull the pain. Listen to what he says in his statement. 

{¶43} "Detective George said what kind of pills? Like Valium and some kind of 

pain killer. I don't even know. I took a pill last night. He took one pill at 9:00. That's the 

pill that he took in case he got shot when he finished his plan at 5:45, 5:50 the next 
Stark County, Case No. 2012CA00012 12 

morning. The next dozen he took after the killings and he thought if it calms me down 

or helps me or helps me or just whatever. That's why he took the pills. Because maybe 

he was a little shook up after he'd just taken three lives. He took those pills to calm him 

down. Because he'd just finished his plan because remember, he didn't want to commit 

suicide. He didn't want to die. He wanted Macy and James and Margaret to die. But 

not James Mammone. He didn't want to die. He didn't want to walk up those steps in 

Marcia's house. He didn't want to make himself a sitting duck because he wanted to 

live. Because his goal was to inflict pain on Marcia." Vol. VIII T. at 53-54. 

{¶44} We find the argument to fall short of any question about false testimony 

from Mr. Spencer. The statements were made during closing argument and the 

prosecutor invited the jury to judge appellant's claim vis-à-vis appellant's actual 

statement to the police. State's Exhibit 13. 

{¶45} We find the trial court did not err in denying appellant's seventh and eighth 

grounds for relief. 

{¶46} As for the ninth ground for relief, we find no cumulative error. With the 

record, transcript, and docket, the trial court could sufficiently address the errors 

claimed in appellant's petition for postconviction relief. 

{¶47} Upon review, we find no error in not conducting an evidentiary hearing or 

in denying the petition. 

{¶48} Assignment of Error I is denied. 

II, III 

{¶49} Appellant claims the trial court erred in not granting his request for 

discovery or expert witnesses. We disagree. 
Stark County, Case No. 2012CA00012 13 

{¶50} A petition for post-conviction relief is a civil proceeding. State v. 

Milanovich (1975), 42 Ohio St.2d 46. As the Supreme Court of Ohio stated in State ex 

rel. Love v. Cuyahoga County Prosecutor's Office, 87 Ohio St.3d 158, 159, 1999-Ohio314, "there is no requirement of civil discovery in postconviction proceedings." This 

court has issued numerous opinions consistent with this holding. State v. Sherman 

(October 30, 2000), Licking App. No. 00CA39; State v. Elmore, Licking App. No. 2005-

CA-32, 2005-Ohio-5940; State v. Muff, Perry App. No. 06-CA-13, 2006-Ohio-6215; 

State v. Lang, Stark App. No. 2009 CA 00187, 2010-Ohio-3975 ("the procedure to be 

followed in ruling on such a petition is established by R.C. 2953.21, and the power to 

conduct and compel discovery under the Civil Rules is not included within the trial 

court's statutorily defined authority" and "R.C. 2953.21 itself does not specifically 

provide for a right to funding or the appointment of an expert witness in post-conviction 

petition proceedings"). 

{¶51} Given the ability of the trial court to address the issues via the use of the 

entire case file and docket, we find appellant was not entitled to the extraordinary relief 

requested. 

{¶52} Assignments of Error II and III are denied. 
Stark County, Case No. 2012CA00012 14 

{¶53} The judgment of the Court of Common Pleas of Stark County, Ohio is 

hereby affirmed. 

By Farmer, J. 

Delaney, P.J. and 

Hoffman, J. concur. 

 

 

 s / Sheila G. Farmer________________ 

 

 s / Patricia A. Delaney______________ 

 s / William B. Hoffman______________ 

 JUDGES 

SGF/sg 0710 
[Cite as State v. Mammone, 2012-Ohio-3546.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JAMES MAMMONE, III : 

 : 

 Defendant-Appellant : CASE NO. 2012CA00012 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to 

appellant. 

 s / Sheila G. Farmer________________ 

 

 s / Patricia A. Delaney______________ 

 s / William B. Hoffman______________ 

 JUDGES