2014 Ohio 4302
Ohio Ct. App.2014Background
- On April 18, 2010, William D. Butcher and three co-defendants forcibly entered an apartment; victim Clifford Cummings was fatally stabbed during the attack.
- Butcher was indicted on aggravated murder (with aggravating specifications), aggravated burglary, aggravated robbery, and multiple kidnapping counts; jury convicted on all counts after the trial court dismissed the murder specifications.
- Sentence: life with parole eligibility after 30 years for aggravated murder, plus consecutive and concurrent terms for kidnapping and merged burglary/robbery counts. Direct appeal upheld convictions.
- Butcher filed a post-conviction petition with affidavits (including one from a jailhouse witness, Underwood, and a co-defendant affidavit from Latimer) alleging ineffective assistance, that he was not an accomplice, improper use of police reports at trial, and that witness Burfitt suffered mental deficits leading to false testimony.
- Trial court denied the petition as barred by res judicata for most claims but found the Underwood affidavit raised a colorable question whether the State knew or should have known of potentially false testimony and remanded limited to that issue.
- This appeal: appellate court affirmed denial in part, reversed in part, and remanded for further proceedings limited to whether a pretrial written statement (referenced in Underwood’s affidavit) existed and whether it was disclosed to the defense.
Issues
| Issue | Plaintiff's Argument (State/Prosecution) | Defendant's Argument (Butcher) | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for persisting with an alibi defense | Trial record showed counsel’s strategy; issue could have been raised on direct appeal; res judicata bars post-conviction relief | Trial counsel should have abandoned alibi and pursued a viable alternative; affidavit evidence dehors the record supports ineffectiveness | Denied as barred by res judicata |
| Whether Butcher was an accomplice to the murder | Co-defendant testimony at trial and record supported accomplice finding; defense could have subpoenaed Latimer or raised it on direct appeal | Latimer affidavit states Butcher did not restrain the victim and was merely a bystander | Denied as barred by res judicata |
| Whether State used or misrepresented police reports as prior statements prejudicially | References to reports were in the trial record; could have been raised on direct appeal | Use of police reports as statements misled jury and prejudiced Butcher | Denied as barred by res judicata |
| Whether Burfitt’s testimony was false and whether the State knew or should have known (due process) | State argues affidavit evidence is insufficient to show State’s knowledge of perjury | Underwood affidavit says Burfitt made a written preliminary statement exonerating Butcher and later testified contrary; this raises question whether State failed to disclose impeachment material | Remanded for factfinding whether the purported written statement existed and whether it was disclosed; claim not barred by res judicata and merits further proceedings |
Key Cases Cited
- State v. Calhoun, 86 Ohio St.3d 279 (Ohio 1999) (post-conviction relief mechanism and scope)
- State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (res judicata bars claims that were or could have been raised earlier)
- State v. Cole, 2 Ohio St.3d 112 (Ohio 1982) (new-appellate-counsel context and when post-conviction relief is barred)
- Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014) (appellate counsel’s duty to advise on postconviction remedies can bear on ineffective-assistance-of-appellate-counsel claims)