June 27--MIDDLETOWN -- The appeal for the Middletown man who killed a Warren County sheriff's deputy claims Marcus Isreal has "few redeeming qualities" but he deserved and was denied a fair trial.
The appeal was filed last week with the 12th District Court of Appeals in Middletown. Isreal's appellate attorney, Jeffery Richards, says the jury was confused by erroneous jury instructions and wrongfully convicted his client on the most severe charges.
Isreal, 24, was found guilty of murder, felonious assault and numerous other charges last October. Judge James Flannery sentenced him to 25 1/2 years in prison. Isreal stole a car and led police on a high-speed chase from Franklin to Turtlecreek Twp. on May 10 of last year. Dulle was laying stop sticks when Isreal went off the road and hit Dulle, killing him instantly.
Richards said the prosecution had to prove Isreal knew he might hurt someone by driving recklessly. Flannery failed to instruct the jury that the fact Isreal drove recklessly was "insufficient to meet the elements for felonious assault," which confused the jury, Richards wrote.
The jury found Isreal not guilty on one felonious assault charge for running two deputies off the road. Therefore he said Isreal couldn't be guilty of felonious assault or murder for Dulle.
Prosecutor David Fornshell said once he ran those deputies off the road, everything changed.
"At that point he knows law enforcement is coming from every single direction and if he continues to drive that way, he is going to cause somebody to get hurt, and that's what ultimately happened," he said.
Richards also claims Fornshell was not allowed to present evidence about Dulle and his family unless the defense "opened the door." However, the very first witness on the stand was Sheriff Larry Sims, who told the jury what an "exemplary officer and family man" Dulle was.
Fornshell said background information establishing Dulle as a police officer was not character evidence.
Isreal already had a felony record and a gun was found in the car after the crash, so Flannery added one-year gun specifications to three of the charges. Richards complained Flannery should have only sentenced Isreal to one one-year gun specification.
"Appellant did not stop along the way to rob a bank; he did not break off his escape to burglarize a house. Appellant drove his car in a continuing act of trying to get away," he wrote. "There was only one criminal adventure and only one criminal transaction."
Richards also claims the jury was inflamed by gruesome pictures, swayed by characterizations of Dulle and his family and confused by erroneous jury instructions.
Richards is not asking for a new trial. He wants the appeals court to toss the convictions for murder and felonious assault because he says the jury was confused about the law due to the omitted jury instruction. He also wants the gun specification issue corrected.
Contact this reporter at (513) 696-4525 or [email protected].
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