STATE OF OHIO v. DAVID W. ALLEN
No. 103492
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 29, 2016
[Cite as State v. Allen, 2016-Ohio-7045.]
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-91-264901-ZA
BEFORE: E.A. Gallagher, P.J., Kilbane, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: September 29, 2016
John J. Ricotta
John J. Ricotta, Co. L.P.A.
The IMG Center
1360 E. 9th Street, Suite 910
Cleveland, Ohio 44114
Henry J. Hilow
McGinty, Hilow & Spellacy Co., L.P.A.
614 W. Superior Avenue, Suite 1300
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Christopher D. Schroeder
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant David Allen appeals the denial of his motion for new trial and petition for postconviction relief that were filed in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm.
Facts and Procedural Background
{2} In 1991, Allen was convicted of two counts of aggravated murder and one count of aggravated robbery and a death sentence was imposed.1 The victim in this case was Chloie English. This court affirmed Allen‘s convictions and sentence in State v. Allen, 8th Dist. Cuyahoga No. 62275, 1993 Ohio App. LEXIS 4392 (Sept. 9, 1993). The Ohio Supreme Court affirmed this court‘s judgment in State v. Allen, 73 Ohio St.3d 626, 1995-Ohio-283, 653 N.E.2d 675, and set forth the relevant facts as follows:
English knew Allen through her participation in a prison ministry program. English ministered to five convicted felons, including Allen. She visited and corresponded with Allen while he was in prison and they stayed in touch after his release in 1989. On January 9, 1991, English received a phone call from someone named “David.” According to English‘s daughter, the conversation left English shaking.
English was last seen alive at 5:45 p.m. on January 24, 1991, by her friend Judy Sperry (“Sperry“) who had visited English in her home. At 6:45 p.m. the next day, English‘s friend Cathy Curry found English lying dead in her living room. The doors to English‘s house were unlocked, which was
unusual because English always locked her doors and never opened them to strangers. After English‘s body was found, Bedford police officers secured, photographed, and searched the house. Detective Gerry Artl found English‘s eyeglasses on the floor and noted a large thumbprint on the inside of the left lens. That thumbprint turned out to belong to David Allen. Police recovered ten cigаrette butts from English‘s kitchen garbage. Saliva tests showed that five of the butts had been smoked by a Type O secretor. (The rest lacked sufficient saliva for testing.) Two of the butts still had the “Doral” brand name on them. Allen is a Type O secretor, and there was evidence that he smoked Dorals. English disapproved of smoking and was a Type O non-secretor.
Although English‘s last known visitor was a woman, someone had left the toilet seat up in English‘s bathroom. Moreover, the coffee pot in the kitchen, empty when Sperry left, was hаlf full when English‘s body was discovered. Police found several items burnt in the fireplace, including the remains of English‘s purse and wallet, a broken ashtray, a broken coffee cup, a broken drinking glass, a wine bottle, and a knife with its handle burnt off.
Police found no money in the house, even though English always kept about $50 in her wallet for emergencies. English‘s credit cards and checkbook were also missing.
Detective Timothy Oleksiak (“Oleksiak“) obtained the names of prisoners with whom English had corresponded. All but Allen were still in prison. Oleksiak аnd Artl had the print on the eyeglasses compared with Allen‘s; when the print was identified as Allen‘s, Oleksiak got an arrest warrant.
On January 29, Allen was arrested. He was wearing a denim jacket with a stain on one of the sleeves. That stain turned out to be Type O blood, the same type Allen and English shared. Allen was carrying a bus transfer
issued between 6:04 and 7:00 a.m., January 25, on the No. 41 Warrensville bus route. The driver identified Allen as a passenger he had picked up on January 25 at 6:04 a.m., at a stop 1.3 miles from English‘s house. Allen also had a refund receipt for a Greyhound bus ticket. There was no record of when the ticket was sold, but Allen got the refund on January 25, at 11:28 p.m. Moreover, when Detective Artl searched Allen‘s bedroom, he found two packed suitcases under Allen‘s bed.
{3} After Allen‘s convictions were affirmed, he filed an application for reopening pursuant to
{4} On September 20, 1996 Allen filed a petition for postconviction relief. The trial court denied Allen‘s petition without a hearing. This court affirmed the trial court‘s decision in State v. Allen, 8th Dist. Cuyahoga No. 72427, 1998 Ohio App. LEXIS 2414 (June 4, 1998).
{5} On February 16, 2006 the trial court granted a motion for DNA testing filed by Allen relating to the blood sample found on his jacket and a blood sample from a pair of gloves recovered from the scene. The trial court ordered further DNA testing on the gloves to be performed by Orchid Cellmark Laboratories in May 2011.
{6} Based on the results of the DNA testing, Allen filed a supplemental motion for new trial and petition to set aside the death penalty determination and verdict on November 28, 2011. The trial court denied Allen‘s motion and petition without a hearing on August 14, 2015.
{7} In his first assignment of error, Allen argues that the trial court abused its discretion when it denied his motion for a new trial.2
{8} A
{9} To warrant the granting of a motion for a new triаl in a criminal case, based on the grounds of newly discovered evidence:
it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.
State v. Barnes, 8th Dist. Cuyahoga No. 95557, 2011-Ohio-2917, ¶ 23, quoting State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.
{10} Allen further argues that the state violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Pursuant to Brady, the prosecutor is
{11} The defendant carries the burden to prove a Brady violation rising to the level of a denial of due process. See State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶ 42, citing State v. Iacona, 93 Ohio St.3d 83, 92, 2001-Ohio-1292, 752 N.E.2d 937. We review a Brady materiality question on appeal as a matter оf law and, therefore, apply a de novo standard of review. See State v. Fox, 4th Dist. Ross No. 11CA3302, 2012-Ohio-4805, ¶ 25, citing State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 12-13. See also United States v. Bullock, 130 Fed.Appx. 706, 722 (6th Cir.2005), citing United States v. Phillip, 948 F.2d 241, 250 (6th Cir.1991) (“The standard of review for the materiality of a purported Brady violation is de novo because it presents a mixed question of law and fact.“).
{12} There are three essential components of a Brady violation: (1) evidence at issue must be favorable to the accused because it is exculpatory or impeaching; (2) evidence must have been willfully or inadvertently suppressed by the State; and (3) prejudice ensued. Skinner v. Switzer, 562 U.S. 521, 536, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011), citing Strickler v. Greene, 527 U.S. 263, 281, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).
{13} Allen argues that the state committed two Brady violations in this instance by (1) failing to disclose a pair of blood-stained gloves found at the scene of the murder and (2) failing to disсlose a police report wherein a neighbor of the victim, Julie Walker, reported observing a black male approach the home of the victim on Wednesday, January 23 or Thursday, January 24, 1991. Allen previously challenged the state‘s failure to disclose Julie Walker‘s report in his 1996 petition for postconviction relief. In State v. Allen, 8th Dist. Cuyahoga No. 72427, 1998 Ohio App. LEXIS 2414 (June 4, 1998), this court rejected Allen‘s Brady challenge to this report concluding that it “[could] not be considered exculpatory nor material.” Therefore, Allen‘s present chаllenge to this material is barred by res judicata. State v. Lott, 8th Dist. Cuyahoga Nos. 79790, 79791, 79792, 2002-Ohio-275, ¶ 36-39; State v. Flora, 8th Dist. Cuyahoga No. 87544, 2006-Ohio-5732, ¶ 43.
{15} Y-STR DNA testing was performed on the gloves by Orchid Cellmark Laboratories. The results were as follows: (1) due to a low amount of male DNA and a possible mixture, no determination could bе made regarding the DNA profile obtained from the exterior of the right glove; (2) a DNA mixture of at least two males was detected in the interior of the right glove, but due to the low amount and possible mixture, no determination could be made as to whether Allen was a contributor; (3) male DNA was not detected on the exterior of the left glove; and (4) the interior of the left glove produced a DNA mixture of at least two males. Allen was excluded as a contributor to the DNA recovered from the interior of the lеft glove.
{16} Allen‘s motion for a new trial asserted his claim that the state had withheld this evidence with an affidavit from his trial attorney who averred:
During the discovery process it was never disclosed by the prosecuting attorneys that a pair of bloody gloves were found at the feet of the victim‘s body.
I did a review of a video of the crime scene but was unable to view the gloves, nor the alleged victim‘s eyeglasses by the body.
Allen‘s attorney had access to physical evidence obtained at the crime scene and a videotape of the crime scene during pretrial discovery. During the trial, video of the crime scene was paused and the prosecution specifically referred to the gloves in questioning Bedford police detective Gerry Artl. The video includes specific discussion referencing the gloves in relation to English‘s body. Additionally, Allen‘s counsel dеclined to cross-examine Sperry after she testified to giving English a pair of gloves. Furthermore, in 1996, Allen filed a motion containing a Bedford police report documenting the recovery of gloves from the crime scene. Thus, even assuming Allen requested disclosure of the gloves, Allen was provided access to the gloves and had knowledge of the gloves.
{18} We agree with the trial court‘s assessment and find that the averments of Allen‘s trial counsel are refuted by the record. In a response to a rеquest for notice of evidence, filed April 25, 1991, the state documented its compliance with Allen‘s requests for discovery:
A meeting was held with defense counsel in the Cuyahoga County Prosecutor‘s Office on Tuesday, April 16, 1991 at 2:00 p.m. At that time, defense counsel was able to view the seven (7) boxes of evidence taken from both the victim‘s and the defendant‘s place of residence. In addition, counsel for the defendant view [sic] the photographs from the County Coroner‘s Office, Trace Evidence Unit, and thе Bedford Police Department.
***
Additionally, a crime scene video tape is being duplicated and supplied to the defense.
{20} Under thеse facts we cannot say that Allen has demonstrated a Brady violation.3 In light of this, we consider Allen‘s DNA evidence from the Orchid Cellmark testing under the abuse of discretion standard for newly discovered evidence rather than the elevated standard for a Brady violation.
{22} To begin, there is nо evidence in the record to suggest that the blood stains on the gloves came from anyone other than English. Orchid Cellmark‘s testing was limited to Y-STR testing that reveals only male DNA and ignores all the female DNA present in a sample. State v. Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 7; State v. Prade, 126 Ohio St.3d 27, 2010-Ohio-1842, 930 N.E.2d 287, ¶ 21. That blood was found on gloves recovered from underneath the body of a victim who suffered sixteen stab wounds and had both her wrists slashed is not a revelation that alters the court‘s view of the evidence.
{23} While the Orchid Cellmark report reveals that the DNA of two males was, at some point, deposited in the interior of the left glove, this tells us nothing about the time frame, the circumstances of that contact or the form of the DNA recovered from the glove.
{24} Even excluding the significant evidence against Allen, it is hard to conceive how the DNA evidence from the gloves would be exculpatory. The record establishes that the gloves originated from Judy Sperry and not from the theorized perpetrators. The gloves were found in the same location that Sperry last saw thеm before English‘s death—next to English‘s rocking chair. Allen would have to convince the jury that two
{25} Finally, Allen аrgues that the evidentiary significance of the gloves is bolstered by (1) a 1996 affidavit from a forensic pathologist who opined that English‘s time of death was between 11:30 a.m. and 5:30 p.m. on January 24, 1991 (roughly twelve and a half hours earlier than the time of death provided at trial by the Coroner‘s office) and (2) a 2007 Cuyahoga County Coroner‘s Office report that concluded that the blood found on Allen‘s jacket, referenced above in the Ohio Supreme Court‘s recitation of facts, did not match the DNA profile of eithеr Allen or English. Viewed as context for evaluation of the DNA evidence pertaining to the gloves, neither of these offerings alters our conclusion that the glove evidence does not disclose a strong probability that it will change the result if a new trial is granted. The pathologist‘s report merely contests the conclusions of the coroner‘s office based on diverging interpretations of the timing of English‘s body undergoing rigor mortis. Furthermore, Allen‘s pathologist‘s report directly contradicts the testimony of Judy Sрerry and places English‘s death prior to the last time Sperry testified to seeing English alive. This evidence would appear to implicate Sperry as being involved in English‘s death and is completely inconsistent with Allen‘s theory
{26} In light of the above facts and within the context of what the Ohio Supreme Court described as “ample evidence” of Allen‘s guilt we find no abuse of discretion on the part of the trial court in denying Allen‘s motion for a new trial.
II. Petition for Postconviction Relief
{27} In his second assignment of error, Allen argues that the trial court erred in denying his petition for postconviction relief seeking to set aside his death penalty determination and verdict and that the trial court further erred in denying the petition without holding a hearing. A postconviction relief proceeding is a collateral civil attack on a judgment, therefore, the judgment of the trial court is reviewed under the abuse of discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77.
{28} Based on the Orchid Cellmark DNA test results of the gloves Allen sought relief pursuant
Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, and any person who has been convicted
of a criminal offense that is a felony and who is an offender for whom DNA testing that was performed under sections 2953.71 to 2953.81 of the Revised Code or under former section 2953.82 of the Revised Code and analyzed in the context of and upon consideration of all available admissible evidence related to the person‘s case as described in division (D) of section 2953.74 of the Revised Code provided results that establish, by clear and convincing evidence, actual innocence of that felony offense or, if the person was sentenced to death, establish, by clear and convincing evidence, actual innocence of the aggravating circumstance or circumstances the person was found guilty of committing and that is or are the basis of that sentence of death, may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
{29} Allen first argues that he has demonstrated a constitutional violation in the form of the alleged Brady violation addressed in the first assignment of error. Having found no Brady violation, Allen‘s reiteration of that argument under this assignment of error lacks merit.
{30} Allen also argues that the newly discovered Orchid Cellmark DNA test results were the result of DNA testing performed under
“[A]ctual innocence” means that, had the results of the DNA testing conducted under sections 2953.71 to 2953.81 of the Revised Code or under former section 2953.82 of the Revised Code been presented at trial, and had those results been anаlyzed in the context of and upon consideration of all available admissible evidence related to the person‘s case as described in division (D) of section 2953.74 of the Revised Code, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted, or, if the person was sentenced to death, no reasonable factfinder would have found the petitioner guilty of the aggravating circumstance or circumstances the petitioner was found guilty of committing and that is or are the basis of that sentence of death.
{31} “Clear and convincing evidence requires a degree of proof that produces a firm belief or conviction regarding the allegations sought to be proven.” State v. Gunner, 9th Dist. Medina No. 05CA0111-M, 2006-Ohio-5808, ¶ 8. “It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.” Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
{32} In this instance, Allen has failed to establish actual innocence by clear and convincing evidence for the same reasons we held in the first assignment of error that the glove-related DNA evidence did not disclose a strong probability that it would change the result if a new trial was granted. As detailed above, the DNA of two unknown males found inside the left glove recovered from the scene does not demonstrate that no reasonable factfinder would have found Allen guilty of the subject offenses when considered within the context of all admissible evidence related tо this case.
{34} Based on the above analysis of the evidentiary material within the full context of the evidence introduced at trial, we cannot say that the trial court abused its discretion in denying Allen‘s petition for postconviction relief without holding a hearing.
{35} Allen‘s second assignment of error is overruled.
{36} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there werе reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
EILEEN A. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS WITH SEPARATE OPINION
MARY EILEEN KILBANE, J., DISSENTING:
{37} I respectfully dissent. I would sustain Allen‘s second assignment of error and remand the matter to the trial court to conduct an evidentiary hearing on Allen‘s petition.
{38} While a hearing is not automatically required on every petition for postconviction rеlief, the trial court is required to consider whether the petitioner has set forth sufficient operative facts in the files and record of the case to establish substantive grounds for relief. State v. Stedman, 8th Dist. Cuyahoga No. 83531, 2004-Ohio-3298, ¶ 24, citing State ex rel. Jackson v. McMonagle, 67 Ohio St.3d 450, 1993-Ohio-143, 619 N.E.2d 1017; Calhoun, paragraph two of the syllabus. If the petition, the files, and the records of the case demonstrate that the petitioner is entitled to relief, the court must then proceed to a prompt hearing on the issues.
{39} This court has stated that “there are two conditions that must be satisfied prior to the court holding a hеaring: the petitioner must state substantive grounds for
{40} The petition at issue in this appeal was filed on November 28, 2011. In his petition, Allen argues the newly discovered DNA evidence establishes that the jury could not have found him guilty of aggravated murder and the aggravating circumstances, whiсh would warrant the vacation of the death penalty. After several continuances, the state opposed Allen‘s petition on April 30, 2012. On August 14, 2015, nearly four years later, the trial court denied Allen‘s petition. In its comprehensive opinion, the trial court found that Allen has not provided any evidence demonstrating substantive grounds for relief.
{41} However, when this newly discovered DNA evidence is considered with his trial attorney‘s affidavit, it is arguable that this evidence puts “the whole case in such a different light as to underminе confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), paragraph one of the syllabus. As a result, the petition and supporting materials raise a genuine issue whether the state violated Allen‘s due process rights under Brady. Moreover, given the length of time between when Allen filed his petition and when the court issued its ruling, I would find that the failure to conduct a hearing under these circumstances was unreasonable and arbitrary.
{43} Accordingly, I would sustain the second assignment of error.