2016 Ohio 2631
Ohio Ct. App.2016Background
- In 1988 skeletal remains of Merle Lee Johnston (missing since Aug. 1985) were found in Pennsylvania; manner ruled homicide. Phelps was indicted in 1992 for aggravated murder, aggravated robbery, and kidnapping; convicted and sentenced to life.
- At trial the state's key witness was Laura Phelps (defendant’s then-wife), who testified in exchange for immunity that she observed Phelps assault, restrain, place a bag over, and transport the victim; many details matched forensic findings and pretrial police reports.
- Before trial Laura gave a detailed interview to Detective Hayes in Feb. 1988 describing the killing and disposal (ten months before the body’s discovery); she later was hypnotized by Officer Kahl in May 1988, a fact not disclosed to defense prior to trial.
- In 2009 Phelps moved for a new trial based on undisclosed hypnosis; the court denied the motion after an evidentiary hearing and this court affirmed, concluding pre-hypnosis statements made hypnosis non-prejudicial.
- In 2014 Phelps sought leave to file a second Crim.R. 33(A)(6) new-trial motion asserting (1) Laura now says her testimony derived from hypnosis and she has no independent memory, (2) Kahl was an experienced hypnotist, and (3) an affidavit from Leonard Aiken implicating Gregory Lockett as the killer. The trial court granted leave to file but denied the motion without a hearing; Phelps appealed.
- The trial court found the hypnosis issue was not newly discovered (already litigated) and found Aiken’s affidavit incredible and inconsistent with police reports (timing showed the murders described could not be Johnston). This appeal followed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Phelps) | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying an evidentiary hearing on the second new-trial motion | Denial proper; court may deny without hearing if motion fails Crim.R. 33 factors | Court should have held a hearing to evaluate hypnosis and Aiken affidavit | No abuse of discretion; denial without hearing affirmed |
| Whether Laura’s hypnosis constitutes newly discovered evidence under Crim.R. 33(A)(6) | Not new: hypnosis issue already litigated and her pre-hypnosis Feb. 1988 interview contained the same details | Hypnosis tainted Laura’s memory; later counseling shows she lacks independent memory, so it is newly discovered evidence | Not new: pre-hypnosis statements existed with substantially similar details, so no basis for new trial on that ground |
| Whether Aiken’s affidavit (blaming Lockett) is newly discovered material evidence warranting a new trial | Affidavit is incredible and contradicts contemporaneous police reports (timing inconsistency with Johnston’s disappearance) | Affidavit points to an alternate perpetrator (Lockett) and supports reasonable doubt | Affidavit insufficient: timeline and police reports show the described victim could not be Johnston; not a basis for new trial |
| Whether the Crim.R. 33(A)(6) Petro factors are satisfied (probability of changed result, diligence, materiality, etc.) | Factors not met for either hypnosis or Aiken affidavit; no strong probability of a different outcome | Argued factors are met given new testimonial recantation and alternate-suspect affidavit | Factors not satisfied; court properly exercised discretion in denying relief |
Key Cases Cited
- State v. Phelps, 192 Ohio App.3d 484 (2011) (affirming denial of first new-trial motion addressing pretrial hypnosis and admissibility of hypnotically refreshed testimony)
- State v. Johnston, 39 Ohio St.3d 48 (1988) (testimony following hypnosis admissible if consistent with pre-hypnosis memory)
- State v. Petro, 148 Ohio St. 505 (1947) (setting six-factor test for newly discovered evidence under Crim.R. 33)