 From left; Ohio Innocence Project fellows Morgan Dineen, Miranda Loesche, Correna Kuhl, Marcus Sapp, and Ohio Innocence Project fellows Damon Davis, Melani Cora Faria and Natalie Gratzer.
That gunman then took Cunningham into a bedroom where Irvine was growing marijuana.
The second gunman ordered Irvine into Irvine's bedroom. Irvine later told police he could overhear the first gunman ordering Cunningham to "bag it up" in the marijuana grow room. At one point, the gunman took Cunningham downstairs to retrieve more trash bags. Irvine later said that when the second gunman turned his back to look in a closet, Irvine bolted down the stairs and ran across the street to a neighbor's house. Irvine then heard several gunshots coming from his house across the street. Police arrived shortly after, and found Cunningham shot to death.
Nearly two years later, on December 7, 2009, 23-year-old Marcus Sapp was charged with the murder of Cunningham and assault of Irvine, as well as burglary and robbery. Sapp also was charged with the murders of Todd Oliver and Robbie Lane, two drug dealers who were murdered on November 17, 2007, in Cincinnati’s Walnut Hills neighborhood. Police said Irvine had identified Sapp as the gunman who hit him in the face and took Cunningham to the marijuana grow room where Cunningham was killed.
Sapp had become a suspect in late 2008 when Quincy Jones, a street gang member and police informant, told police that Sapp was involved in both crimes.
Prior to his trial, Sapp’s defense lawyer filed a motion to suppress Irvine’s identification. Detective Douglas Lindle testified that Irvine had not identified anyone but Sapp as being involved in the shooting. The motion was denied, and Sapp went to trial in Hamilton County Court of Common Pleas on May 10, 2010.
Irvine testified and identified Sapp as the gunman who struck him in the face and who was with Cunningham when Cunningham was shot. He denied that he had ever identified anyone else as the gunman or being involved.
Jones testified that after Sapp was arrested, Sapp had admitted to both crimes while they were incarcerated together. However, Jones also admitted during cross-examination that he had a vendetta against Sapp. According to Jones, Sapp had robbed him at gunpoint, kicking off a feud between the two. The feud resulted in one of Jones's friends shooting Sapp in the leg. In reality, however, the feud started when Sapp and his friends were playing dice and Jones approached and robbed them at gunpoint. Shortly thereafter, Sapp spotted Jones in public and punched him in retaliation, knocking him to the ground. Then, not long after, Sapp was shot in the leg by one of Jones's friends.
The wound left Sapp with a medical condition known as “drop foot,” which required Sapp to wear a leg brace and forced him to walk with a noticeable limp.
The defense also impeached Jones with a letter Jones had written to another inmate encouraging that inmate to come forward and testify against Sapp. In the letter, Jones said he knew how to "work this system," that he could "save his own neck" by testifying against Sapp.
In addition to Jones, the prosecution called Gary Brown, who also claimed that Sapp had admitted to the crimes while in jail. Brown admitted that he knew Jones but insisted he had not come forward at Jones’s behest. Brown said that although he had pending criminal charges that included threatening a prosecutor, he had not asked for any leniency in return for his testimony. He said he was testifying because he wanted to do the right thing.
The defense presented medical evidence that Sapp was suffering from foot drop and “severe peroneal mononeuropathy,” which prevented him from walking normally, from climbing stairs at a normal pace, and from running without a “very noticeable” limp. Irvine had described the first gunman as running up and down the stairs and around the house without any such limp. Irvine had not mentioned a leg brace, which Sapp was wearing at the time of the crime.
During the closing arguments, the prosecution told the jury that Irvine’s identification was solid and that Jones could be believed because he knew information about the murders that was not public.
The prosecutor told the jury, “In using your common sense, what are the odds that in November of 2008, Quincy Jones would name [Sapp] as the person responsible for these crimes, and then a year later, a year later, in December of 2009, Tyler Irvine would separately, separately identify this man?”
On May 24, 2010, the jury acquitted Sapp of the murders of Oliver and Lane, and convicted him of the murder of Cunningham and the assault of Irvine. After the trial, the defense filed a motion to vacate the convictions. The motion was based on affidavits from Gerald Wilson and Angelo Howard, two inmates who said Jones told them he was falsely accusing Sapp to game the system to get leniency, and because he wanted Sapp “off the streets.” Wilson also said that a detective had tried to convince him to implicate others by telling him what to say and feeding him facts about other cases, but that Wilson refused to cooperate.
The motion was denied after the prosecution argued that Jones had been impeached “extensively,” and that the testimony of Wilson and Howard would not have changed the verdict.
At sentencing, Sapp maintained his innocence. He was sentenced to life without parole.
In the summer of 2021, the Ohio Innocence Project, which was re-investigating Sapp’s case, received police files based on a public records request. The files contained evidence that Sapp’s trial defense attorney confirmed were not previously disclosed.
The files showed that in January 2008, not long after the shooting, a confidential informant told police that Fernando Roland and others had threatened people with an AK-47, the same type of weapon used to kill Cunningham. When Detective Lindle showed Irvine a photograph of Roland, Irvine had a visceral reaction. During a recorded conversation with another detective, Lindle said, “I show [Irvine] the picture of this Fernando, and he’s like, ‘Oh, shit, that’s the first guy in the door.’”
Lindle said he took the picture away, but Irvine asked to see it again, saying, “I’m telling you, man, that sent shivers down my spine.”
During the conversation, Lindle said that a week later, Irvine was shown a photographic lineup and again selected Roland as the gunman.
The previously undisclosed information contradicted Lindle’s testimony at the pretrial hearing and Irvine’s testimony at trial that he had not identified anyone but Sapp as the gunman.
The files also showed that about a month later, another confidential informant told Lindle that Roland and another man–not Sapp–had committed the home invasion and shooting that killed Cunningham. The informant said Roland later tried to sell an AK-47, but one of the informant’s friends warned against purchasing it because it “had a body on it.” The informant also said that Roland drove a white Chevrolet Impala, which matched the description of the car seen driving away after Cunningham was killed.
When the informant expressed hesitation at testifying for fear of being harmed, Lindle assured him that the informant would not be needed since Irvine had identified Roland as the gunman.
Also discovered were police notes showing that Brown, contrary to his trial testimony, had asked for considerations on his pending cases and other favorable treatment. Other police notes contradicted the prosecution’s assertion that Jones knew information about the case that was not public. The notes indicated that the details were being discussed on the street. Jones was murdered in 2012.
In May 2022, Mark Godsey, director of the Ohio Innocence Project, as well as attorneys from the law firm of Pinales Stachler Young and Burrell, filed a motion seeking a new trial. The motion cited the evidence that police had failed to disclose, as well as the prosecution’s arguments that would have been contradicted had that evidence been disclosed at the time of the trial.
The motion noted that the project had exonerated and freed many clients over the years based on the failure of the prosecution to turn over evidence favorable to the defense. “[T]he suppression of the information connecting Fernando Roland to this crime, and Irvine's prior identification of Roland, is one of the most egregious…violations the Ohio Innocence Project has seen to date,” the motion said. “It is clear, direct, and obvious.”
“An innocent man—Marcus Sapp—was sentenced to prison for murder after the state withheld critical evidence indicative of Sapp’s innocence,” the motion said.
The motion noted that the difference between the prosecution of Sapp for the murders of Lane and Oliver and the prosecution in this case was Irvine’s identification.
The motion also cited a review of the case by Dr. Charles Goodsell, a psychologist and expert on eyewitness identification. Dr. Goodsell said that the undisclosed evidence undermined Irvine’s identification of Sapp as the gunman and rendered the identification “unreliable.”
In January 2023, Judge Jody Luebbers, who had presided over Sapp’s trial in 2010, granted the motion and vacated Sapp's convictions. On January 25, 2023, Sapp was released pending a retrial.
In a statement after the ruling, interim Hamilton County Prosecutor Mark Piepmeier said, “We were not provided the evidence in question. If we had the evidence, we would have turned it over to the defense. We understand Judge Luebbers’[s] decision and will not be appealing. However, we will work to resolve this case or re-try Mr. Sapp, if necessary."
On May 23, 2024, the prosecution dismissed the case.
– Maurice Possley
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