State v. DickersonState v. Dickerson
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.
Russel S. Bensing, for appellant.
EMANUELLA D. GROVES, J.:
{¶ 1} Defendant-appellant Oscar Dickerson (“Dickerson“) appeals from the trial court‘s decision to grant plaintiff-appellee the state of Ohio‘s (“the state“) motion to reinstate his conviction, following the court‘s denial of his motion to
Factual and Procedural History
{¶ 2} This case is the latest in a series of appeals from Dickerson‘s 2014 convictions for rape and kidnapping that stemmed from a 1994 incident. On May 15, 2014, Dickerson and his codefendant Michael Jenkins (“Jenkins“) were each indicted on two counts of rape, one count of kidnapping, and two counts of complicity.
{¶ 3} The facts in this case have been completely and comprehensively set out in State v. Dickerson, 2016-Ohio-807, 60 N.E.3d 699 (“Dickerson I“) and State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216 (8th Dist.) (“Jenkins II“). We summarize below:2
The following facts were elicited at trial * * *. The victim, J.R., testified that on July 2, 1994 * * * she was 16 years old. She had spent the day and evening with her boyfriend at his house, drinking and smoking marijuana. She left her boyfriend‘s house some time after midnight to walk home. Her boyfriend walked with her approximately halfway home. She proceeded to walk the remainder of the approximately 40-minute walk home alone.
When she was approximately ten minutes from her house, three males in a car approached her and called out to her as the car drove past. The car “circled back” a few times, and J.R. testified that she “waved them off.” J.R. started to cut across an open area to avoid the car, but the car pulled over near a library. J.R. testified that the car was driven by an older white male. Two younger black males were also in the car.
One of the younger men got out of the car and approached J.R., offering her a ride home. She initially declined, but the young man persisted. At approximately 1:30 a.m., J.R. ultimately got into the car and told the men where she lived. J.R. testified that she was “not thinking” when she got in the car; she also testified that she accepted the ride because she was scared. The car proceeded to drive past her street. J.R. testified that she again told the driver where she lived as they passed her street, but she was ignored. The car eventually pulled into a hotel parking lot. The driver of the car, later identified as Jerry Polivka, got out of the car and proceeded to rent a hotel room. A receipt indicated that the room was rented at approximately 4:42 a.m. J.R. remained in the car with the other two men, the then-18-year-old defendant-appellant Michael Jenkins and his then-19-year-old codefendant Oscar Dickerson. J.R. testified that she did not know the men, but they identified themselves as “Mike” and “Oscar” or “O,” respectively.
When Polivka returned to the car, he drove to a back entrance of the hotel, where Dickerson and Jenkins walked J.R. into a hotel room. Polivka drove off, leaving J.R., Dickerson, and Jenkins at the hotel.
J.R. testified that she tried to think of a way to get out of the situation. At one point, she asked to go outside to smoke a cigarette, hoping to escape, but one of the young men accompanied her. J.R. accepted crack cocaine from him to put on the end of her cigarette, which she testified that she smoked in an attempt to “numb” herself for what she believed “was going to happen.” Dickerson and Jenkins proceeded to have vaginal intercourse with J.R. in the bathroom and bedroom of the hotel room.
After both men had intercourse with J.R., she took a shower in the hotel bathroom. When she returned to the living area of the hotel room, Jenkins and Dickerson were asleep. J.R. took that opportunity to escape from the hotel room and go home.
J.R. testified that when she got home, she tried to run upstairs to the bathroom, but her mother confronted her and demanded to know where she had been. J.R. then told her mother what had happened at the hotel room.
J.R.‘s mother testified that she was on the porch when J.R. returned home that morning and that J.R., who usually avoided her, sat down on the porch and looked like she wanted to talk. According to J.R.‘s
mother, J.R. then voluntarily told her what had happened. J.R.‘s mother then called the police, who responded to the call at J.R.‘s home. Subsequently, J.R. went to the hospital and was treated for sexual assault. The responding officers went to the hotel, where they found Dickerson and Jenkins asleep in the hotel room. Both men were arrested. The police obtained the receipt for the hotel room from a hotel clerk. The receipt identified Jerry Polivka as the individual who rented the room. Polivka was named as a suspect in the initial report, but was never contacted by the police in connection with this case.
After J.R. left the hospital, she went with her mother to meet with a detective to discuss the incident. J.R. testified that the detective was “very rude” and shared her opinion of the incident, leaving J.R. feeling humiliated and prompting her to tell the detective to “forget it if she wasn‘t going to help.” J.R.‘s mother, however, testified that the detective was respectful.
Following this meeting, the detective noted in the case file that no further investigation would take place.
Several days later, J.R. was walking to her boyfriend‘s house when someone she recognized as “Mike” pulled up alongside her in a car. J.R. testified that Mike seemed angry and “forced” her to sign a note recanting her statements about the incident. J.R. signed the note and immediately reported this incident to the police. The police made an intimidation report but never followed up on the incident.
J.R. testified that shortly after the July 2 events, she found out that she was pregnant and did not follow up with the police because she wanted to “get on with her life.”
On August 24, 2012, J.R.‘s rape kit was submitted to BCI for DNA testing as part of the Sexual Assault Kit Testing Initiative. DNA analysis showed Dickerson‘s DNA on vaginal and rectal swabs and Jenkins‘s DNA on the victim‘s bathing suit bottoms. The detective assigned to the case discovered that Polivka was deceased.
On May 15, 2014, Dickerson and Jenkins were each indicted on one count of rape for vaginal intercourse, one count of rape for fellatio, two corresponding counts of complicity to commit rape, and one count of kidnaping. Both defendants pleaded not guilty to all charges.
The docket in Dickerson‘s case does not indicate a ruling on Dickerson‘s motion to dismiss. In his appeal to this court, Dickerson characterized the motion as having been denied as untimely, and this court adopted that characterization. Dickerson II at ¶ 2. A review of the transcript shows that the trial court declined to consider the motion because it was untimely.
A jury trial took place from November 12 to November 18, 2014. The jury found both defendants guilty of one count of rape for vaginal intercourse, one count of complicity for each other‘s rape conviction, and one count of kidnaping. The jury found both defendants not guilty of the rape and complicity charges as they related to fellatio.
{¶ 4} On December 29, 2014, the court sentenced Dickerson to five years in prison on each count, to be served concurrently. This sentence was imposed under Am.Sub.H.B. No. 86, the sentencing regime that became effective on September 30, 2011, and was in effect at the time of sentencing in 2014.
{¶ 5} The state appealed, arguing that the trial court erred by ordering a definite term of incarceration because Dickerson would have been subject to an indefinite sentence under the sentencing regime as it existed at the time of the 1994 offense. Dickerson cross-appealed, arguing that the trial court erred in denying his motion to dismiss for preindictment delay and that his trial counsel was ineffective for not timely filing the motion. This court vacated Dickerson‘s conviction, finding that his counsel was deficient for not timely filing the motion to dismiss and that there was a reasonable probability that it would have been granted had it been timely filed, given that Dickerson “had a strong, viable claim of actual prejudice.” Dickerson I at ¶ 43. The state appealed this decision to the Ohio Supreme Court,
{¶ 6} On remand and after applying Jones, this court reached the same conclusion, finding that Dickerson‘s counsel was ineffective and stating, in relevant part:
After consideration of this case, we find that Dickerson had a reasonable probability of success in demonstrating actual and substantial prejudice. The circumstances of this case are similar to the circumstances in [State v.] Luck, 15 Ohio St.3d 150, 427 N.E.2d 1097 (1984) in that the defendants and the deceased [witness] were together here for, at least part of, the alleged crimes. Polivka was a key witness he was with the victim for a number of hours during the course of alleged crimes and the victim herself was unable to account for that time. Thus, under the particular circumstances of this case, we find that Dickerson had a reasonable probability of success in demonstrating actual and substantial prejudice, the first prong of a claim of preindictment delay.
Further, under the second part of the preindictment delay test, we find that Dickerson would have had a reasonable probability of success on his motion given the state‘s reason for the delay.
State v. Dickerson, 8th Dist. Cuyahoga No. 102461, 2017-Ohio-177, ¶ 59-60 (“Dickerson II“).
{¶ 7} The court in Dickerson II reversed Dickerson‘s convictions. Id. at 64.3
{¶ 9} On remand, on October 24, 2017, Dickerson filed a motion to dismiss the indictment based on the law of the case, arguing that the mandate in Dickerson II rendered further proceedings unnecessary because this court reached a “legal conclusion that Dickerson had been prejudiced by the preindictment delay, and that the delay had been unjustifiable,” and therefore, a dismissal was required pursuant to the law of the case.
{¶ 10} The state opposed the motion to dismiss, arguing instead that the trial court was obligated to hold a hearing on Dickerson‘s motion to dismiss for preindictment delay. On November 28, 2017, the trial court denied Dickerson‘s motion to dismiss based on the law of the case, distinguishing between this court‘s conclusion in Dickerson II that there was a “reasonable probability” that a timely motion to dismiss for preindictment delay would have been granted and a conclusion that it should have been granted.
{¶ 12} On June 4, 2018, the trial court denied Dickerson‘s motion, finding that Dickerson did not suffer prejudice due to the delay. The state then filed a motion to reinstate Dickerson‘s conviction. On July 6, 2018, the trial court denied this motion. The state sought leave to appeal the denial of its motion, and this court granted leave. Dickerson also appealed the trial court‘s denial of his motion to dismiss for preindictment delay. This court dismissed Dickerson‘s appeal, finding that the trial court‘s denial of his motion to dismiss for preindictment delay was not a final appealable order. State v. Dickerson, 8th Dist. Cuyahoga No. 107419, 2019-Ohio-2736 (“Dickerson III“). Likewise, this court dismissed the state‘s appeal, finding that the trial court‘s denial of the state‘s motion to reinstate Dickerson‘s convictions was not a final appealable order. State v. Dickerson, 8th Dist. Cuyahoga No. 107520, 2019-Ohio-2738 (“Dickerson IV“). The state appealed this court‘s decision in Dickerson IV, and the Ohio Supreme Court declined jurisdiction. State v. Dickerson, 157 Ohio St.3d 1467, 2019-Ohio-4419, 133 N.E.3d 539.
{¶ 13} On November 22, 2019, the state filed a motion to reconsider the denial of its motion to reinstate Dickerson‘s convictions. On November 25, 2019 the trial court held a hearing on this motion. On December 31, 2019, the trial court
[U]pon correcting the pretrial error by a full presentation and consideration of the motions to dismiss, there were no proceedings consistent with the appellate decisions left to conduct. If the motions had been granted, the indictments against Jenkins and Dickerson would simply have been dismissed by a judgment entry without further proceedings. But the motions were denied and the error-free trial that ordinarily would have followed such a denial has already taken place. Therefore the only thing left is to reinstate the defendants’ convictions without further proceedings because it is consistent with the decisions by the court of appeals and with the jury‘s decisions beyond a reasonable doubt about the guilt of both defendants.
{¶ 14} Dickerson now appeals and assigns the following two errors for review:
Assignment of Error No. 1
The trial court erred in denying the Motion to Dismiss the Indictment for Preindictment Delay, in derogation of Defendant‘s right to Due Process of Law, as protected by the Fourteenth Amendment to the United States Constitution.
Assignment of Error No. 2
The trial court erred in reinstating Defendant‘s conviction after that conviction was reversed and remanded for error in denying Defendant‘s Motion to Dismiss the Indictment for Pre-Indictment Delay.
Law and Analysis
{¶ 15} In his first assignment of error, Dickerson argues that the trial court erred in denying the motion to dismiss the indictment for preindictment delay. In his second assignment of error, Dickerson argues that the trial court erred in reinstating his conviction after that conviction was reversed and remanded.
{¶ 17} Dickerson‘s attempt to distinguish the court‘s opinion in Dickerson II with State v. Carter, 8th Dist. Cuyahoga No. 91019, 2008-Ohio-6955, must fail. In Carter, the court found that defense counsel was ineffective by failing to file a motion to suppress statements the defendant had made to the police. Carter, 8th Dist. Cuyahoga No. 91019, 2008-Ohio-6955, ¶ 23. The court further found that because a motion to suppress was not filed, and no evidentiary hearing was held in the trial court, the record did not reflect the circumstances under which the defendant made the incriminating statements. Id. at ¶ 25. With critical information absent from the record, the appellate court was unable to determine whether the statements should have been suppressed and remanded the case for further proceedings. Id. at ¶ 34. In Dickerson II, remand was necessary because our determination of ineffective assistance of counsel included an analysis of preindictment delay, but did not decide that issue.
{¶ 18} The state argues that the trial court was correct when it determined that this court‘s “finding a reasonable probability that the motion would have been granted is not the same as finding that it should have been granted.” We agree. As
{¶ 19} While we are mindful that the language in Dickerson II, and to an even greater degree the 2018 Jenkins opinion,4 strongly signaled that the court believed that had Dickerson‘s counsel timely filed a motion to dismiss, it would have been granted, this does not change the issue that the court decided in Dickerson II. The discrete issue was whether Dickerson received ineffective assistance of counsel; the court was not making an ultimate determination as to whether Dickerson had suffered actual prejudice as a result of preindictment delay. The opinion in Dickerson II, therefore, was constrained by the legal standard of whether there was a “reasonable probability” that a timely motion to dismiss would have been granted.
{¶ 20} The court in Dickerson II addressed the theoretical question of a motion that had been neither timely filed nor fully litigated in the trial court. The extent of the court‘s deliberation on Dickerson‘s untimely November 2014 motion was whether there had been a legitimate reason for filing the motion mere days before trial. At that time, the trial court did not take evidence or hear arguments from either side as to the substantive basis for the motion. In light of this, and despite this court‘s statement that Dickerson had a “strong, viable claim of actual
{¶ 21} We now address whether the trial court erred in denying Dickerson‘s motion to dismiss for preindictment delay. Because we find Dickerson met his burden in showing that he was prejudiced by the period of preindictment delay, we agree with Dickerson to the extent that the trial court erred in its failure to find actual prejudice by the preindictment delay. This court applies a de novo standard of review to a trial court‘s decision regarding legal issues in a motion to dismiss for preindictment delay. State v. Jabbar, 8th Dist. Cuyahoga No. 109642, 2021-Ohio-1191, ¶ 28, citing State v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664, 2016-Ohio-5519, ¶ 12. Therefore, we will independently review the trial court‘s decision without any deference to its determination. Id., quoting State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5. We do, however, afford deference to the trial court‘s findings of fact. Id., citing State v. Walker, 8th Dist. Cuyahoga No. 106414, 2018-Ohio-3669, ¶ 15. Therefore, we must accept the trial court‘s factual findings if they are supported by competent and credible evidence in the record. Id., citing State v. Burnside, 100 Ohio St.3d 152, 2002-Ohio-5372, 797 N.E.2d 71, ¶ 8.
{¶ 22} Although the
{¶ 23} Courts apply a two-part test to determine whether a delay in prosecution has violated the defendant‘s due process rights. The defendant bears the initial burden of showing that they were substantially and actually prejudiced by the delay. State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). If the
{¶ 24} A determination of actual prejudice involves a “delicate judgment” and a case-by-case consideration of the particular circumstances involved. State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 20, citing State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting Marion, 404 U.S. at 325. Further, “a court must ‘consider the evidence as it exists when the indictment is filed and the prejudice the defendant will suffer at trial due to the delay.‘” Id.
{¶ 25} The Ohio Supreme Court has repeatedly acknowledged the difficult burden placed on defendants particularly because proof of prejudice is “always speculative.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 100, citing United States v. Montgomery, 491 Fed.Appx. 683, 691 (6th Cir.2012), quoting United States v. Rogers, 118 F.3d 466, 475 (6th Cir.1997). While acknowledging the inherently speculative nature of actual prejudice arguments, the court has also clarified that a successful claim of actual prejudice cannot be purely speculative: “the mere possibility that ‘memories will fade, witnesses will become inaccessible, or evidence will be lost is not sufficient to establish actual prejudice.‘” State v. Crymes, 8th Dist. Cuyahoga No. 104705, 2017-Ohio-2655, ¶ 16, quoting Jones at ¶ 21. Nevertheless, a defendant is not required to establish precisely what
{¶ 26} In denying Dickerson‘s motion to dismiss for preindictment delay, the trial court held that there is little doubt that Polivka would have “relevant testimony” to offer. Despite this, though, the court found that it could not conclude that this testimony would minimize or eliminate the state‘s evidence or bolster the defense. The court supported this conclusion primarily with the following findings: 1) Polivka likely would have been indicted with Dickerson and Jenkins and thus unable to testify at trial; 2) nothing in the record supports the conclusion that Polivka would contradict J.R.‘s version of events; 3) even if Polivka contradicted J.R.‘s version of events, this is insufficient to establish actual prejudice because he would be unable to testify about what happened in the hotel room. After thorough review, we conclude that the evidence presented to the trial court contradicts this holding.
{¶ 27} We begin with the finding that Polivka likely would have been unable to testify as a result of his status as a codefendant. The conclusion that Polivka would have been unavailable as a witness is rejected. This conclusion is wholly unsupported by competent and credible evidence in the record, contradicts
{¶ 28} Next, we will address the trial court‘s second and third findings together. With respect to the trial court‘s finding that nothing in the record supports the conclusion that Polivka could have provided a version of events that contradicted J.R.‘s, we find this to be a misapplication of the standard articulated by the Ohio Supreme Court in Luck and Jones. In Luck, the Ohio Supreme Court found that the defendant was prejudiced by a 15-year preindictment delay for murder. The court
{¶ 29} As with the missing witness in the instant case, Luck did not show exactly what the missing witnesses would have testified to in support of her defense. Instead, Luck merely argued that one witness, a friend who was allegedly in the victim‘s apartment when she was killed, “was the one person who could have helped her in this matter but he is dead.” Id. Likewise, the other witness was a doctor who allegedly treated Luck for a hand injury on or around the date of the murder. Luck did not explain how exactly the doctor‘s testimony would be relevant, let alone how it would have bolstered her defense. Instead, the Ohio Supreme Court found that Luck was “obviously prejudiced by not being able to seek verification of her story from [her friend] and thereby establish mitigating factors or a defense to the charge against her.” Id. at 158. When the court reiterated the relevant standard in Jones, it looked to Luck, stating that Luck suffered actual prejudice “although there was no record establishing what the witness would have actually testified to.” Jones at ¶ 25.
{¶ 31} This is not a case where Dickerson‘s actual prejudice is based on unfounded or entirely speculative claims. Instead, this case closely resembles Luck. Dickerson does not assert what exactly Polivka would have testified to at trial. Like Luck, though, Dickerson has clearly shown that he was prejudiced because he was
{¶ 32} Further, we are cognizant of the unique nature of rape cases in the context of preindictment delay. This court has noted that, “unlike other crimes of violence, rape cases where consent is the only issue often turns on a credibility contest between the accused and the accuser.” State v. Crymes, 8th Dist. Cuyahoga No. 104705, 2017-Ohio-2655, ¶ 19. Recognizing the particular relevance of witness credibility in this context, the Crymes Court found that missing phone records from hours before the alleged rape in that case constituted actual prejudice because, although the records obviously could not have provided direct proof of consent, they “would help appellee verify his account of the event, thereby bolstering the defense.” Id. at ¶ 20, citing Luck at 157-158 and Jones at ¶ 28.
{¶ 33} Similarly, as in Dickerson II, we reach the same conclusion here. While Polivka‘s testimony almost certainly could not have provided an account of what took place in the hotel room, he likely would have testified about how exactly
{34} Succinctly, there is no doubt that the lengthy delay between the allegation and the indictment prejudiced Dickerson‘s defense. After considering the evidence as it existed when the indictment was filed, we find that Dickerson was prejudiced by the 20-year delay. Dickerson established that he was actually and substantially prejudiced by the death of Polivka whose testimony could have bolstered his defense as to all charges and undermined the state‘s case with respect to the rape by calling into question the issue of consent and the credibility of J.R. Having determined that Polivka‘s death created actual prejudice were Dickerson to stand trial today, we now turn our attention to the second prong of the analysis, the state‘s reason for the delay.
{35} In the instant case, the trial court elected not to rule on the second prong. Having found that Dickerson failed to prove prejudice, the trial court determined that it was unnecessary to address whether the state had a justifiable reason for the delay noting:
Because prejudice hasn‘t been proved it is not necessary to make a finding of whether the delay from the crime until the indictment was justified. Nevertheless, because of the possibility that prejudice would be found the parties made a full record of the evidence and their respective arguments in support of their competing claims that delay was or was not justified.
{36} Even though the trial court noted there was a full record made of the parties’ respective arguments, we are restricted in our review by two well-settled principles of appellate review:
First, under
(Emphasis added.) Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶ 21.
{37} Having determined there was no actual prejudice, it was unnecessary for the trial court to address the second prong of the preindictment delay test. Although the record is complete before us, the decision on the second prong remains the province of the trial court. Therefore, we cannot address it.
{38} Accordingly, we sustain the first assignment of error in part and overrule it in part. The trial court erred in finding that Dickerson was not prejudiced by the period of preindictment delay. However, we affirm the trial court‘s decision not to address the reason for the delay because that was the appropriate decision under preindictment-delay analysis when a court does not find prejudice. As we have found prejudice, we sustain the first assignment of error and remand the case for the trial court to conduct the second prong of the review.
{39} In the second assignment of error, Dickerson argues that the trial court erred in reinstating his convictions. Based on our resolution of the first assignment of error, where we found actual prejudice and remanded to the trial court to complete the second prong of the test for prejudicial preindictment delay, we decline to address the second assigned error because it is not yet ripe for review.
{41} It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were 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.
A certified copy of this entry shall constitute the mandate pursuant to
EMANUELLA D. GROVES, JUDGE
MARY EILEEN KILBANE, J., CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION ATTACHED); SEAN C. GALLAGHER, A.J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
MARY EILEEN KILBANE, J., CONCURRING IN PART AND DISSENTING IN PART:
{42} I respectfully concur in part and dissent in part from the majority opinion. I agree with the majority‘s conclusion that Dickerson established that he suffered actual and substantial prejudice as a result of the nearly 20-year preindictment delay in this case. I disagree with the majority‘s conclusion that we are precluded from addressing the second prong of the preindictment delay test concerning whether the state had a justifiable reason for the delay.
{44} The majority in Dickerson II placed particular emphasis on the fact that Polivka would have been able to testify as to what occurred during the almost three-hour period that the victim was completely unable to remember, noting that this was concerning to at least one juror at trial. Dickerson II at ¶ 50. The victim was the state‘s key witness at trial. She testified that at the time of the alleged rape, she had been “living recklessly,” and that on the day of the incident, she had been drinking and smoking and was under the influence. Id. at ¶ 7. Although the timeline
{45} State v. Luck, 15 Ohio St.3d 150, 157, 472 N.E.2d 1097 (1984), remains binding precedent on Ohio courts in preindictment delay cases. In the instant case, Dickerson presents a significantly stronger claim of actual prejudice than the appellant in Luck. In Luck, the Ohio Supreme Court found that the defendant was prejudiced by a 15-year preindictment delay for murder. The court balanced the alleged sources of actual prejudice — the death of two witnesses, the fading of memories and changing of appearances, and the loss of all of the recorded interviews with potential witnesses compiled shortly after the murder — against the other admissible evidence in the case and found that Luck had suffered actual prejudice. State v. Luck, 15 Ohio St.3d 150, 157, 472 N.E.2d 1097 (1984). Specifically, the court found that even though the state had circumstantial evidence linking Luck to the victim‘s death, “it cannot be said that the missing evidence or the dead witness would not have minimized or eliminated the impact of the state‘s circumstantial evidence.” Id.
{47} As with the missing witness in the instant case, Luck did not show exactly what the missing witnesses in her case would have testified to in support of her defense, nor was she required to have done so. Instead, Luck merely argued that one witness, a friend who was allegedly in the victim‘s apartment when the victim was killed, “was the one person who could have helped her in this matter but he is dead.” Id. The other witness was a doctor who allegedly treated Luck for a hand injury on or around the date of the murder. Luck did not explain how exactly the doctor‘s testimony would be relevant, let alone how it would have bolstered her defense. Reviewing Luck‘s claim, the Ohio Supreme Court found that Luck was “obviously prejudiced by not being able to seek verification of her story from [her friend] and thereby establish mitigating factors or a defense to the charge against her.” Id. at 158. When the court reiterated the relevant standard in Jones, it looked to Luck, stating that Luck suffered actual prejudice “although there was no record
{48} Unlike Luck, Dickerson is able to point to specific evidence in the record requiring a conclusion that Polivka‘s testimony would not only be relevant, it would minimize or eliminate the impact of the state‘s evidence and bolster Dickerson‘s defense. Where Luck‘s claim of actual prejudice was based on her unsupported assertions that the missing witnesses’ testimony would have been helpful to her at trial, Dickerson‘s claim of actual prejudice is supported by evidence in the record, including the victim‘s own testimony. It is undisputed that Polivka was with the victim and defendants on the night of the incident. Evidence in the record, such as the victim‘s testimony and the hotel receipt, establishes that Polivka picked up the victim, drove the victim and defendants to a hotel, and rented a room for the victim and defendants.
{49} The Jones standard makes clear that a defendant‘s arguments in support of an actual prejudice claim cannot be based on “mere speculation” because the theoretical possibility of lost evidence is insufficient to establish actual prejudice. Id. at ¶ 27. In cases in which the defendant‘s claims regarding lost evidence or unavailable witnesses are entirely unsupported by the record, this court has correctly found that those claims are too remote and speculative to establish actual prejudice. State v. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-Ohio-1483, ¶ 25. We reiterate, however, that this is not a case where Dickerson‘s actual prejudice is based on unfounded or entirely speculative claims. Dickerson does not assert, and
{50} In the instant case, Dickerson has repeatedly emphasized that not only was Polivka present for at least part of the incident in question, Polivka could likely have presented an account of the several hours of which the victim has no memory. Polivka also could have testified as to how and why the victim got into his car in the first place, as well as why he drove the victim and defendants to a hotel
{51} I disagree, however, with the majority opinion‘s conclusion that we are precluded from determining whether the state has established a justifiable reason for the delay, and its subsequent conclusion that a remand is required for the trial court to conduct an additional review of this issue.
{53} Because I believe that our review in this case encompasses both prongs of the preindictment-delay analysis, I would find that with respect to the second prong, the state was unable to explain, let alone justify the delay in this case. The state asserts that the reasons for the nearly 20-year delay were “investigative.”
{54} Additionally, I am not persuaded by the state‘s assertion that the Cleveland Police Department “did not do DNA testing” in 1994. There is a significant difference between arguing that DNA testing did not exist or was unavailable and arguing that it was simply not done. Further, unlike cases in which the suspect‘s identity is unknown, it is unclear exactly why the DNA testing done in this case was as critical as the state seems to imply, given that the young men were found sound asleep in the hotel room, arrested, and kept in police custody for days before they were released and the investigation ceased. Even if the DNA testing was critical, however, this only supports a conclusion that the delay in this case was the result of negligence or error in judgment. Rather than testing the victim‘s rape kit
{55} Finally, to the extent that the state argues that the delay was, at least in part, a result of J.R.‘s unwillingness to cooperate, a review of the record easily contradicts this argument. I acknowledge that J.R. did not choose to pursue the matter. If the reason for closing the investigation in 1994 was because the victim expressed a desire not to pursue the case, however, the state seems to have entirely disregarded this desire in 2012 when it decided to reopen the investigation without any input from the victim, let alone any indication that she had a change of heart as to whether or not to pursue the matter 18 years later. For these reasons, I would find that the state has not satisfied its burden of showing that the preindictment delay in this case was justifiable. Additionally, I would note that Dickerson, the state of Ohio, and the alleged victim in this case are all entitled to some measure of finality, and this will not be achieved by ordering yet another remand.
{56} Therefore, I would find that the trial court erred in denying Dickerson‘s motion to dismiss for preindictment delay and in reinstating his conviction. I would accordingly reverse the judgment of the trial court and vacate Dickerson‘s convictions. For these reasons, I respectfully concur in part and dissent in part.
SEAN C. GALLAGHER, A.J., DISSENTING:
{57} I respectfully dissent from the majority‘s conclusion that Jenkins and Dickerson were prejudiced by the preindictment death of Polivka. I understand the
{58} In my view, these cases underscore an argument that the standard for determining prejudice outlined in State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 100, and State v. Luck, 15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984), are at times unworkable and invite inconsistent outcomes. This view is particularly prevalent in cases where the identity of the offender was known at the time of the alleged crime and no prosecution was initiated. Those circumstances seem to cause the factual analysis on prejudice to take on a different and murky context.
{59} In the present case, Polivka was not present during the commission of the rapes committed by the then 21- and 22-year-old men against the 16-year-old victim. And even if Polivka possessed exculpatory evidence, a speculative fact yet to be established, Polivka‘s death precluded his being named as a codefendant for his conspiratorial conduct underlying the kidnapping convictions. In the appropriate parlance, Polivka was not available to testify before the preindictment delay so that
{60} There are only three factual scenarios here: (1) Polivka would have been indicted as a codefendant for his aiding Jenkins and Dickerson in the kidnapping of the victim, and therefore Polivka was not “available” to testify just as neither Jenkins nor Dickerson was available to testify at the other‘s trial through the assertion of their
{61} The majority maintains that Polivka‘s status as a codefendant should not preclude a finding of prejudice because
we are aware of no case in which a defendant is required to show not only that a deceased witness would provide relevant testimony that would minimize the impact of the state‘s case, but also that the witness would be able to overcome any alleged procedural barriers to testifying on the defendant‘s behalf.
State v. Dickerson, 8th Dist. Cuyahoga No. 109434, ¶ 25; but see Bouthot at 298; Stierwalt at 285; United States v. Hofstetter, E.D.Tenn. No. 3:15-CR-27-TAV-CCS, 2018 U.S. Dist. LEXIS 59058, at 11 (Jan. 3, 2018) (the codefendant‘s unavailability was not prejudicial since the defendant could call the remaining codefendants to confirm his story); State v. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-Ohio-1483, ¶ 25 (evidence was not available immediately after the crime and, therefore, could not constitute prejudice under the preindictment-delay analysis). Thus, I cannot agree with the majority that Dickerson demonstrated prejudice because he was “unable to seek verification of his story from someone who was with him on the night of the incident.”
{62} Under the majority‘s proposition, that a codefendant‘s reluctance to testify is not considered, Polivka‘s unavailability is immaterial. Jenkins and Dickerson could provide the missing testimony since both were undisputedly present during the entire criminal event — more so than Polivka, who was not present during the actual commission of the crime for which Dickerson and Jenkins were convicted. See, e.g., Hofstetter (the codefendant‘s unavailability was not prejudicial since the defendant could rely on the remaining codefendants to confirm his story). According to the majority‘s rationale, Dickerson and Jenkins have
{63} Since the majority‘s analysis depends on the fact that the state may not rely on the witness‘s status as a codefendant to establish the unavailability of the testimony before the delay, then fairness and every other notion of due process dictate that Jenkins and Dickerson cannot hide behind their status as codefendants to provide Polivka‘s missing testimony for each other. The death of a witness constitutes prejudice only “if the defendant can identify exculpatory evidence that was lost and show that the exculpatory evidence could not be obtained by other means.” State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 26, quoting State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 103; Hofstetter. Jenkins and Dickerson have not met their burden to demonstrate that Polivka‘s testimony would have aided their defenses, even if we ignore the fact that Jenkins and Dickerson could provide each other the missing evidence. Dickerson II at ¶ 73 (Stewart, J., dissenting).
{64} There is no additional burden here. All defendants claiming preindictment delay must demonstrate that the testimony or evidence would have been available at an earlier trial and are unavailable solely based on the preindictment delay. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-Ohio-1483, at ¶ 25. This necessarily means that if a codefendant is deceased or unavailable through the passage of time, the defendant asserting preindictment delay must demonstrate that a codefendant would have testified at the other‘s trial or that no
{65} Although I disagree that a remand is necessary in this case, the lead opinion‘s remand to permit the trial court to review the second prong of the prejudice analysis is the correct course of action. Nevertheless, I dissent from the majority‘s decision to reverse. I would affirm the trial court in every respect.