 Dwayne Brooks (Photo: WEWS.com)
Witnesses said that the shooters drove up in a van with its windows broken out. The van turned out to have been stolen at gunpoint about an hour earlier from a man named Johnny Logan, who worked about a mile from the park.
Police soon found the van, abandoned on a dead-end street. They canvassed the neighborhood, looking for descriptions of the men in the van. They located a potential suspect named Michael Creel, who was arrested but later released.
While in custody, Creel gave a statement implicating Samuel Philpot, Kelly Wingo, and Dwayne Brooks in the shooting at the park.
Wingo, who was 21 years old, turned himself in on September 10, 1987, and gave the police a written statement. Philpot, who was 22 years old, turned himself in on January 16, 1988. Brooks, who was 21 years old at the time of the shooting, could not be located, and the FBI began an investigation in Hempstead, New York, where Brooks and his father lived. Brooks was taken into custody on May 27, 1988, in Douglasville, Georgia.
Wingo was charged with aggravated murder and attempted murder, but agreed to testify against his co-defendants. He pled guilty to voluntary manslaughter and attempted murder, with his sentencing deferred until after the resolution of the cases against Philpot and Brooks, who also had been charged with aggravated murder, attempted murder, and aggravated robbery.
On June 22, 1988, a jury in the Cuyahoga County Court of Common Pleas convicted Philpot of aggravated murder and attempted murder. He received a sentence of life in prison, with parole eligibility after 20 years.
Brooks went to trial in December 1988. According to witnesses, the shooting happened four days after a fight at the park between the co-defendants and associates of a man named Cardell Belfoure, known as “Rock,” who controlled drug dealing in the park. Belfoure’s crew accused Philpot of poaching on his territory. The men attacked Philpot, Wingo, and Brooks. They ran, with Brooks and Wingo eventually going to the home of Wingo’s grandmother.
Wingo testified that Brooks decided to take revenge after being pistol-whipped, knocked unconscious, and robbed of a gold chain during the fight. Wingo, Philpot, and Brooks met up on August 17, and they were joined by a fourth man, who was not identified at trial.
Brooks drove a two-tone Oldsmobile, and Wingo testified that they decided to steal a car so that Belfoure’s crew would not see them coming. Wingo said that Brooks let Philpot and the fourth man out of the Oldsmobile, and the two men returned a few minutes later with a maroon-and-white van. They parked Brooks’s car at Creel’s home, Wingo testified, and the fourth man took a shotgun out of the trunk and placed it in the van.
Wingo testified that they then drove to the park to look for Belfoure. Philpot and the fourth man were in the front; Wingo and Brooks were in the back. They spotted Belfoure, and Brooks started firing the shotgun. They then drove back to Creel’s house.
Belfoure testified about the fight and the shooting. He said that there were frequent disputes over who could sell drugs in the park. Just before the shooting, Belfoure saw the van drive by the park, with two or three guns sticking out the windows. He said the shooting lasted about a minute, and he heard two different gunshot sounds. Other witnesses who were part of Belfoure’s crew also testified about the van and the distinct gunshot sounds. They did not make any identification of Brooks.
Brooks’s attorney, Gordon Friedman, cross-examined Wingo and asked him about his criminal record, which included a conviction in Florida for possessing marijuana he had brought in from Jamaica. Wingo denied dealing drugs.
Creel testified that Philpot came to his house prior to the shooting and asked if they could park Brooks’s car in the driveway while they “[took] care of some business.”
The state called Philpot as a witness. He claimed a total loss of memory about the events, and prosecutors were allowed to read Philpot’s testimony from his own trial to the jury.
Brooks presented an alibi defense. He testified that he lived in New York but often traveled back to Cleveland, where his mother and other family still lived. He said that on the day of the fight, he had gone to the park with his cousin and had run into Wingo and Philpot, whom he knew from high school. The day after the fight, Brooks said, Wingo called to say that Brooks had left his keys at the grandmother’s house. Brooks testified he told Wingo not to worry; his mother, Geraldine Jackson, had another set.
During cross-examination, a prosecutor asked Brooks whether he transported drugs between New York and Cleveland. Brooks denied any involvement, and no evidence was introduced to support this contention.
Jackson testified that she, Brooks, and another relative drove to New York in a rental car on August 15, and that her son often left his car in Cleveland for her to use. Jackson said that on August 17, she received a phone call from a family member in Cleveland who said that Wingo had come to the house that day and taken her son’s car out of the garage, returning it between 8 and 9 p.m. Jackson said she did not initially give investigators an alibi for her son because she wasn’t asked.
Brooks’s father and uncle both testified that he was in New York on August 17. His father testified that he lied to the FBI when he told them he didn’t know his son’s whereabouts. On rebuttal, an FBI agent testified that the uncle had initially told him that he hadn’t seen Brooks in a year. The uncle denied making this statement.
Separately, a woman named Delarion Nesbitt said she saw Wingo driving around in Brooks’s convertible on the afternoon of the shooting. She later asked Brooks’s girlfriend if Brooks was in town. The girlfriend said he was in New York.
During closing arguments, assistant county prosecutor John Ricotta said that drugs were the reason that Brooks had returned to the park and shot at Belfoure. He said Brooks was “transporting drugs between New York and Cleveland.”
On December 8, 1988, the jury convicted Brooks of aggravated murder, aggravated robbery, and two counts of attempted murder. It acquitted him of the firearm specifications associated with these convictions. Brooks, like Philpot, received a sentence of life in prison, with eligibility for parole after 20 years. Wingo was later sentenced to 13 to 25 years in prison.
Brooks appealed his conviction, initially arguing that the trial judge erred in allowing Philpot’s testimony from his own trial to be read to the jury. Ohio’s Eighth Circuit Court of Appeals affirmed the conviction on January 10, 1991.
On August 3, 1991, Brooks filed a motion for a new trial, based on an affidavit from Wingo that recanted his testimony.
“I would like to state,” Wingo said, “that during the time of Dwayne Brooks’s trial that I Kelly Wingo was under pressure and made false accusations against Dwayne Brooks due to the encouragement of Prosecutor ‘Ricotta.’ So I would like to make it clear that Dwayne Brooks was not even at the scene of the crime, and his name was used as a scapegoat from the beginning. Furthermore, Dwayne Brooks was not involved in any shooting that took place on August 1987.”
The Eighth District appellate court affirmed the trial court’s denial of the motion on March 10, 1994. It said Wingo’s affidavit offered no specifics on the pressure Ricotta was said to have applied and that other witnesses buttressed Wingo’s trial testimony, casting serious doubt on the credibility of his recantation.
Four years later, Brooks filed a second motion for a new trial. It included a new affidavit from Wingo, alibi statements from three relatives who did not testify at the trial, and a recantation from Creel, who said that he did not see Brooks on the day of the shooting and that the police threatened to charge him with the crimes if he did not testify against Brooks.
The Eighth District appellate court affirmed the conviction on August 5, 1999. It said that neither Wingo’s new affidavit nor the new alibi witnesses added anything of substance. With regards to Creel’s affidavit, the court said that Creel had testified that the police initially wanted to charge him and that Friedman had vigorously challenged Creel on his motives. The court noted that Creel had testified that the police didn’t mistreat him and that he was testifying truthfully.
In September 2020, an investigator working for Brooks’s family filed a public records request with the Cleveland Police Department for the police reports in his case. The documents were received in early 2021, and they formed the basis for a motion for a new trial filed on June 23, 2022 by Brooks’s attorneys with the Ohio Justice & Policy Center. The motion claimed prosecutors failed to disclose exculpatory evidence—known as Brady evidence after the U.S. Supreme Court ruling in Brady v. Maryland—that undermined the testimony given by Wingo and Creel.
According to the motion, prosecutors failed to disclose the following:
A police report based on an interview with a woman named Sharon Garrett on August 19, 1987, where she looked at photos of nine suspects in the shooting. She made tentative identifications of Wingo and Philpot, but not of Brooks.
A police report based on an interview with a teenager named Robert Felton. He had seen the August 13 fight at the park and told police that Wingo, not Brooks, had been pistol-whipped and robbed of his gold chain.
Logan had made a tentative identification of Wingo as one of the men who robbed him of the van at gunpoint and later identified him in a live lineup as the robber who drove off in the van, undermining Wingo's testimony that he wasn't involved in the car theft.
A woman named LaTonya Johnson told police that one of the men she had seen jump out of the van after the shooting was Darryl Creel, Michael Creel’s brother.
Finally, according to the undisclosed police reports, Wingo was under FBI surveillance at the time of the shooting for possible involvement in drug dealing. The FBI had received information that a kilogram of cocaine was coming to either Wingo’s house or two other addresses in the Cleveland area.
A police report said: “According to the FBI, Wingo is a MULE and is a carrier from Cleveland to Miami to Jamaica. Allegedly, Wingo was arrested in Jamaica for just this activity. According to AGENT RAY, extreme caution should be [used] in this male’s arrest or any associates of WINGO’s.”
The motion for new trial said: “None of the suppressed information was known to Brooks’ attorneys. Thus, they were unable to demonstrate that Wingo—the prosecution’s star witness—was wholly incredible and that a crucial eyewitness had failed to identify Brooks as one of the perpetrators.”
LaTonya Johnson’s statement could have been used to show that Michael Creel was testifying against Brooks to protect his brother.
Judge William McGinty held an evidentiary hearing in the Cuyahoga County Court of Common Pleas on November 4, 2022. Friedman testified that he had filed discovery requests for any exculpatory evidence, including impeachment evidence, and had not been provided with these reports.
Ricotta, now in private practice, said that although he believed he complied with Friedman’s requests for exculpatory evidence, the discovery practices of the prosecutor’s office were “somewhat archaic” in the late 1980s. The office “had a policy that the defendants were not permitted to receive the written discovery and that we were to go through the file and basically read reports to defense counsel,” he said.
On April 12, 2023, Judge McGinty granted Brooks’s motion for a new trial, ruling that prosecutors had failed to disclose this evidence to Friedman, which undermined his ability to mount a vigorous defense.
He said the importance of this evidence was underscored by the jury’s decision to acquit Brooks of the weapons specifications tied to each conviction. That showed the jury did not believe the entirety of the state’s case against Brooks, and that evidence undermining the testimony of Wingo and Creel could have led to a different verdict.
“In finding that the state suppressed this information, the Court does not find that the prosecution acted in bad faith,” he wrote. “As Brady makes clear, a court need not conclude that the prosecution acted in bad faith in order to find a Brady violation.”
Brooks was released from prison on April 24, 2023. The state sought to appeal Judge McGinty’s ruling, but the Eighth District Court of Appeals denied the request on June 22, 2023.
Brooks, now represented by Kimberly Corral and Gabrielle Poplis, filed a motion on August 2, 2023, asking the court to dismiss the indictment, noting that Garrett had died, and Johnson could not be located. “The defendant is being put on trial more than 30 years after the incident, a decades long delay caused by the State’s violation of his constitutional due process rights,” the motion said. “He no longer has access to exculpatory and favorable witnesses who have long since passed away or are otherwise unavailable. All of these factors weigh in favor of dismissal.”
The state filed its own motion to dismiss on September 19, 2023. Judge McGinty granted the motion on September 22, 2023.
In an interview with a Cleveland television station, Brooks said he was thankful for his freedom but bitter at being in prison for nearly 35 years. “You can’t give me back being 21 years old,” he said. “You can’t give me back all the people that have died, that I loved. You can’t give me back my youth and my health. My looks. My hair. All this gray in my beard. You can’t get all of that back. You can’t give me back being able to be there for my kids.”
– Ken Otterbourg
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