Judge rules against motion to suppress evidence in murder case

MANSFIELD - A judge has ruled against a motion to suppress evidence in the case of a man who was beaten to death in February.

Richland County Common Pleas Judge Phil Naumoff ruled Friday in the case involving Guy Mitchell, who has been charged with aiding and abetting murder and involuntary manslaughter. 

The charges stem from the February death of Brandon Ewers, 42.

A motion was filed Monday by Mitchell's attorney, Justin Weatherly, to exclude evidence relating to a witness who reportedly was present when Ewers was assaulted. 

An evidentiary hearing was held Thursday.

The News Journal is not naming the witness to protect his identity.

The assault happened Feb. 4 in the 100 block of Oxford Avenue. Ewers was pronounced brain dead two days later, but was not taken off life support until Feb. 8 because he was an organ donor, Prosecutor Gary Bishop previously said.

Ewers suffered multiple brain bleeds, and an autopsy said the cause of death was blunt force trauma to the head.

"It starts with a woman exhibiting signs of injury," Bishop said in March. "Members of her family thought she had been assaulted. They felt that Brandon Ewers had assaulted her."

Mitchell, 28, Robert Cole, 30, and Henry Gassaway, 24, were arrested Feb. 13.

Gassaway was not included in the March indictments and was not listed as an inmate at the time in the county jail.

Cole had been charged with aiding and abetting murder and involuntary manslaughter but the charges were dismissed in May.

More:Three arrests made in connection with Brandon Ewers death

More:2 men indicted in connection with February beating death

More:Charges dismissed against co-defendant in beating death case

Weatherly on Thursday questioned the tactics used by Mansfield police to narrow their pool of suspects down to Mitchell.

"They are picking and choosing information from a witness that is providing a lot of bad information and frankly, possibly no good information whatsoever," Weatherly said. "Rather than proceed with the investigation as if it could be any one of the three suspects, they narrow those suspects down for the witness without giving the witness the opportunity to narrow them himself."

Weatherly chiefly criticized police for what he views as a failure to conduct three photo lineups for all three suspects. Detectives conducted one photo lineup that contained a photo of Mitchell.

Bill Bushong, who has since retired as a police detective, testified Thursday that he prepared the photo lineup at the request of Detective Terry Butler, who conducted the photo lineup.

But Bishop argued that it was unnecessary to prepare two other photo lineups, because the witness told detectives that the man he saw on the night of the incident was white, in his mid-30s, with dark hair and a "stubbly" beard.

Bishop described Gassaway as a "portly" man with a "full red beard," and said Cole is bald, which Weatherly characterized as a stretch, noting that Cole has hair on the sides of his head.

"The fact that they didn't show him the pictures in the photo array containing the other two, they might as well have shown him a photo array containing everybody in town," Bishop said. "He (the witness) says it was a guy with scruffy beard, dark hair, mid-30s. He doesn't say big, portly heavy-set guy, bald, or with a red beard."

Bishop said detectives prepare photo lineups of people that share similar characteristics and facial features.

"Had he described somebody as bald, we wouldn't have put Guy Mitchell in the photo array," he added.

Weatherly then characterized the witness' description that was given to police as vague and questioned the credibility of his memory, saying he had admitted to police that he had consumed alcohol and smoked marijuana prior to witnessing the assault.

The witness, according to Weatherly and Bishop, did not pick out Mitchell's picture in the lineup.

But he called police when he saw a photo of Mitchell in an online article the News Journal published on Feb. 13 and named Mitchell as the man he saw on Feb 4.

Weatherly argued that detectives, by omitting Gassaway and Cole from photo lineups, had suggested to the witness that they wanted him to choose Mitchell.

"(The witness) calls the police and says that's the guy, 95% sure that's the guy I saw that night, he's not remembering who he saw beating Brandon Ewers, he's remembering who he saw in the photo lineup seven days prior," Weatherly said.

Bishop denied any suggestible action was taken by detectives and said the photo lineup was conducted according to guidelines set by the Ohio Supreme Court.

In a video of the photo lineup session, Butler can be seen giving the witness six separate folders that each contained a photo. 

He says at one point to the witness: "He may not be in here."

When the witness chose someone other than Mitchell during the photo lineup, Bishop said detectives did nothing to dissuade his choice.

Weatherly said the witness was put under "undue pressure" during the case.

In a Feb. 6 taped interview that was shown in court, Butler can be heard saying to the witness, "Look, Brandon (Ewers) is not going to make it. They're probably going to declare him deceased tomorrow. It's like Detective (Rich) Miller said, you're the only hope we've got to close this case right now."

The witness can be seen crying during a portion of the video.

"The officers respond to that vulnerable, emotional, broken human being by saying, 'Well, Brandon Ewers is going to die and you're our only hope to make sure the guy who did it gets punished," Weatherly said.

Bishop said the case was done "by the book."

Mitchell's trial is scheduled to start Tuesday.

mtrombly@gannett.com

419-521-7205

Twitter: @monroetromby