State v. KingState v. King
Timothy Young
Ohio Public Defender
BY: Kristopher A. Haines
Assistant Public Defender
Ohio Public Defender‘s Office
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Evin King (“King“), appeals the trial court‘s denial of his motion for postconviction relief. Finding no merit to the appeal, we affirm.
{¶2} In July 1994, King was indicted for the murder of his girlfriend Crystal Hudson (“Hudson“). The State presented circumstantial evidence to the jury on the theory that King strangled Hudson in the apartment they shared. DNA testing was performed on semen recovered from the victim, but King was not a match. King argued that the person who deposited the semen had killed Hudson. The forensic serologist testified that the semen was anywhere from 16 hours to seven days old at the time of death. When asked whether the semen was deposited contemporaneously with the victim‘s death, the coroner, Dr. Robert Challener, testified that it was “[v]ery unlikely to be placed at the time of death.” Although fingernail scrapings were also recovered from the victim, there were no means by which to test them for DNA material in 1994. In February 1995, a jury convicted King of murder, and this court affirmed his conviction in State v. King, 8th Dist. No. 68726, 1996 WL 661033 (Nov. 14, 1996) (“King I“).1
{¶3} In October 2004, due to advancements in DNA testing, King filed an application for DNA testing of the fingernail scrapings recovered from the victim, pursuant to
{¶4} A hearing on the motion was held in February 2011. In November 2011, the trial court denied King‘s motion, finding that when considered in the context of all available admissible evidence related to the case, the new DNA evidence did not prove by clear and convincing evidence that King was actually innocent.
{¶5} King now appeals, arguing in his sole assignment of error that the trial court abused its discretion when it denied his motion for postconviction relief.
{¶6} 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. An abuse of discretion is more than an error of law or judgment, it implies the court‘s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶7} This court, in State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654, at ¶ 19-20 (8th Dist.), explained that:
[i]n 2006, the General Assembly amended Ohio‘s DNA testing statutes. The amendments, among other things, made postconviction DNA testing more available to inmates and lowered the outcome-determinative standard
for establishing entitlement to DNA testing. Under the prior version of R.C. 2953.71(L) , “outcome determinative” meant that had “the results of DNA testing been presented at the trial * * * and been found relevant and admissible with respect to the felony offense for which the inmate * * * is requesting the DNA testing * * * no reasonable factfinder would have found the inmate guilty of that offense.”Under the amended statute, “‘outcome determinative’ means that had the results of DNA testing of the subject inmate been presented at the trial * * * and been found relevant and admissible with respect to the felony offense for which the inmate * * * is requesting the DNA testing * * *, and had those results been analyzed in the context of and upon consideration of all available admissible evidence related to the inmate‘s case * * *, there is a strong probability that no reasonable factfinder would have found the inmate guilty of that offense.” (Emphasis added.)
R.C. 2953.71(L) .
{¶8} As mentioned, the trial court approved King‘s application for DNA testing based on this standard. In the court‘s April 2008 findings of facts and conclusions of law allowing the DNA testing, the court made statements such as “DNA exclusion results would eliminate King as a suspect,” as the statute required. However, once the DNA results were presented to the court, the court found that the results, when reviewed with all the evidence, did not prove King‘s actual innocence, and therefore the court denied the postconviction relief petition.
{¶9} King argues that the court‘s denial of his motion for postconviction relief was an abuse of discretion based on the statements made in the April 2008 entry granting DNA testing. However, none of the court‘s statements in this interlocutory ruling2 were binding, nor is the standard for DNA testing applications the same as the standard to be applied to postconviction petitions after the DNA results are received.
{¶10} Under
- The petitioner was either “unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief,” or “the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation,” and “[t]he petitioner shows by clear and convincing evidence that, but for the constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted.”
- The petitioner was convicted of a felony * * * and upon consideration of all available evidence related to the inmate‘s case * * *, and the results of the DNA testing establish, by clear and convincing evidence, actual innocence of that felony offense * * *.”
{¶11} After a review of the record, we find that King did not establish either of the conditions set forth in
{¶12} “Actual innocence,” under
{¶13}
{¶14} Furthermore, in denying King‘s petition, the trial court reviewed all of the admissible evidence before concluding that King did not establish “actual innocence.” First, it reviewed the evidence submitted at trial, which this court summarized in King I. It then reviewed the DNA results. The court found that the DNA from the vaginal swab was consistent with the DNA from the fingernail scrapings, and that King was excluded from both specimens. However, the trial court concluded that the addition of new evidence matching the DNA from the vaginal material to the fingernail scrapings did not establish King‘s actual innocence.
{¶15} King argues that the sample from the victim‘s fingernail is evidence of a rape–murder scenario. He contends that the DNA evidence of both the fingernail scrapings and semen, as well as the coroner‘s testimony that there was evidence of trauma
{¶16} In addition, we are bound by the law of the case set forth in King I. The law of the case doctrine provides that the decision of a reviewing court in a case remains the law of the case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels. Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). Thus, “the doctrine of law of the case precludes a litigant from attempting to rely on arguments at a retrial which were fully pursued, or available to be pursued, in a first appeal. New arguments are subject to issue preclusion, and are barred.” Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404-405, 1996-Ohio-174, 659 N.E.2d 781.
{¶17} Although we recognize that the doctrine of the law of the case is considered a rule of practice rather than a binding rule of substantive law, we view its application here achieves just results. The rule is “necessary to avoid endless litigation by settling the issues.” Hubbard at 404, citing State ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979).
{¶18} In King I, this court came to the following legal conclusions: there was sufficient evidence for the jury to find King guilty of murder, and the evidence did not weight heavily against his conviction. In reaching these legal conclusions, we stated:
When viewed in the light most favorable to the prosecution, the evidence showed that defendant was with his girlfriend, the victim, the last time she was seen alive and when her strangled decomposing corpse was discovered by her daughter. The circumstances of her death indicate she was killed from behind by someone she knew, because there were no signs of a struggle. According to the victim‘s friend Jean Hester, defendant and the victim had a history of fighting about cocaine and money. The victim told Hester before her death that defendant “jump on her.”
Defendant‘s behavior in the apartment before the decomposing body was discovered was curiously detached. Others noticed a foul odor, which defendant insisted resulted from cooking, but there was no evidence that anyone had cooked anything. Defendant‘s conduct after the victim‘s body was first discovered continued to be suspicious. According to Brandi, defendant began pacing and did not originally go to the closet when she told him she had discovered his missing girlfriend‘s body. Defendant also did not try to determine whether he could help or even whether his girlfriend was dead.
{¶19} Therefore, we agree that the new DNA results do not clearly and convincingly establish King‘s actual innocence under
{¶20} Accordingly, the sole assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover of appellant 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. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
COLLEEN CONWAY COONEY, JUDGE
SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE CONCURRING OPINION ATTACHED); MELODY J. STEWART, P.J., DISSENTS (WITH SEPARATE DISSENTING OPINION ATTACHED)
SEAN C. GALLAGHER, J., CONCURRING:
{¶22} I concur fully with the judgment and analysis of the majority opinion. The dissent offers a comprehensive and thoughtful analysis of the facts in the case, and I write separately to more specifically address some of the concerns raised in the dissent.
{¶23} Every judge wants to see justice done. No judge wants to see an innocent person in prison. Where possible, judges will engage in a search for the truth. At times, those searches, as here, do not change the outcome.
{¶24} There is no question that the ability to identify the origin of the fingernail scrapings through enhanced DNA testing casts new light on this case. Nevertheless, this most recent DNA test was not “outcome determinative.” Upon a review of the entire record, it cannot be said that had the DNA results been analyzed in the context of and upon consideration of all available admissible evidence related to the case, there is a strong probability that no reasonable factfinder would have found King guilty.
{¶25} The victim, Chrystal Hudson, was found murdered in the closet of her sixth-floor apartment at approximately 10:30 a.m. on Wednesday, July 22, 1994. She was found by her daughter Brandi who spent the previous night with her younger sister in their grandmother‘s apartment on the 8th floor of the same building. The last person to see Chrystal alive, other than the killer, was her daughter Brandi, who saw her mother in the bedroom of the apartment at 11:00 a.m. on Tuesday, June 21, 1994. The only person in the apartment when Brandi and her sister arrived and discovered the body was Evin King.
{¶26} The dissent analyzes the language of the various statutes, but regardless of the definitions applied to the terms “outcome determinative” or “strong probability” under
{¶27} The crucial evidence in this case has not changed or been refuted by this new DNA test. The critical evidence that remains uncontroverted is the testimony of the coroner, Dr. Robert Challener, and the coroner‘s serologist, Kay May. Both testified that the sperm found in the victim that did not match King was deposited anywhere from two days to seven days prior to her murder. Specifically, May testified that no F-30 enzymes were present in the sperm recovered, indicating that the sperm was deposited at least 16 hours prior to the murder. The fact that the fingernail scrapings are now shown to match the sperm originally recovered does not change those facts.
{¶28} The dissent presumes that by authorizing a test under
{¶29} Further, there is nothing in the statutory scheme that would preclude the trial court from reconsidering its decision after the results are obtained. A decision to grant an application for postconviction DNA testing brought pursuant to
{¶30} The trial court may have erroneously drafted its order to suggest that if the new test revealed King‘s DNA was not in the scrapings, the defendant would be granted the relief requested. The trial court was attempting to utilize new testing techniques to clear up the unidentified origin of the fingernail scrapings. While
{¶31} Unless King can offer some explanation or testimony that refutes or casts doubt on the testimony of Dr. Challener and serologist Kay May, the trial court was right in denying the request for relief. Specifically, it would take a hearing with an expert or a report that can reasonably question or refute both Challener‘s and May‘s claims that the sperm was deposited prior to the murder, to make a more compelling argument that the origin of the fingernail scrapings is “outcome determinative” in this case.
MELODY J. STEWART, P.J., DISSENTING:
{¶33} Testing techniques have now been refined to the point where DNA evidence is deemed by many to be the most reliable form of evidence. Recognizing the strength of King‘s theory of the murder, the court granted additional DNA testing by finding that if testing showed that the genetic material recovered from the victim‘s fingernails did not belong to King, that result would be “outcome determinative.” Yet when the DNA from the fingernails did not match King but matched the semen found in the victim, the court inexplicably denied postconviction relief, concluding that the DNA evidence “does not by clear and convincing evidence establish in the Court‘s mind [the] actual innocence of the Defendant.”
{¶34} This conclusion was reached in error. The majority‘s decision to affirm the court requires it to engage in a flawed analysis that makes immaterial and vague distinctions between the “outcome determinative” standard for granting DNA testing under
{¶35} To obtain additional DNA testing, King had to demonstrate that the DNA evidence would be “outcome determinative.”
{¶36}
The petitioner was convicted of a felony, the petitioner is an offender for whom DNA testing 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 inmate‘s case as described in division (D) of section 2953.74 of the Revised Code, and the results of the DNA testing 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.
{¶37} As used in
{¶38} It is true that
{¶39} Although the majority cites Ayers, it does not cite it for the proposition that the “strong probability” and “clear and convincing evidence” standards are the same in meaning. The clear and convincing evidence standard of proof 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.” State v. Eppinger, 91 Ohio St.3d 158, 164, 743 N.E.2d 881 (2001); see also Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Something is probable when it is more likely than not. A “probability” of something occurring is likelier than something happening by a mere preponderance of the evidence. When there is a “strong” probability of something occurring, it means it is far more likely than the preponderance of the evidence standard but something less than the kind of certitude expressed in the beyond a reasonable doubt standard. A strong probability is thus more than a preponderance of the evidence and less than beyond a reasonable doubt — in other words, functionally equivalent to the clear and convincing evidence standard. See, e.g., Natalini, Comment: Preventive Detention and Presuming Dangerousness Under The Bail Reform Act of 1984, 134 U. Pa. L.Rev. 225 (1985), fn. 88, citing to McBaine, Burden of Proof: Degrees of Belief, 32 Calif. L. Rev. 242, 246-247 (1944).
{¶40} Once the trial court declared that the results of DNA testing would be “outcome determinative” under
{¶41} The “actual innocence” standard set forth in
{¶42} King theorized that the person whose semen was found in the victim was also her murderer. In an answer on the application form that petitioners for DNA testing must complete, King was asked to state: “What defense was presented in your case at the time of your plea or trial?” King responded: “Defendant maintained that he left the victim‘s apartment before she was killed by an unidentified assailant. Defendant presented an alibi that he spent time with other people during the time of the killing.”
{¶44} In granting DNA testing, the court accepted King‘s stated rationale. In the findings of fact and conclusions of law issued by the court, it stated in pertinent part:
C. Determination whether DNA exclusion would have been outcome determinative at Trial. R.C. § 2953.74(B) and R.C. § 2953.71(L) .
DNA procedures have advanced dramatically since the time of this trial. The debris from the nails examined today may yield testable biological material. This is a circumstantial evidence case. If biological material is available, it should be tested. DNA belonging to “an unknown party” found under the fingernails of the victim, for example would prove the identity of the real killer if the fingernail debris is testable and matches the DNA from the semen. King‘s theory of defense was a third party killed and raped the victim while he was away from the apartment.
DNA testing results would be outcome determinative.
* * *
* * *
If a DNA profile of the scrapings matched the semen profile, a strong argument could be made that Ms. Hudson scratched her assailant as he raped and murdered her.
DNA exclusion results would eliminate King as a suspect. This Court finds that no reasonable factfinder would have found King guilty had DNA exclusion results been presented. Thus DNA exclusion results would have been outcome determinative.
* * *
H. Determination whether one or more of the defense theories asserted at the trial stage was of such nature that, if DNA Testing is conducted and an exclusion result is obtained, the exclusion result will be outcome determinative. R.C. § 2953.74(C)(4) .
A trial court may accept an application for DNA testing if an exclusion result will be consistent with a defense theory presented at the trial of the case. * * * This Court adopts its reasoning in part C and finds an exclusion result will be consistent with King‘s alibi defense and general denial which he asserted at trial.
I. Determination whether, if DNA Testing is conducted and an exclusion Result is obtained, the results of the testing will be outcome determinative regarding the inmate. R.C. § 2953.74(C)(5) .
{¶45} The results of the DNA testing conclusively showed that the genetic material recovered from the victim‘s fingernails did not belong to King, but instead matched the DNA from the semen found in the victim. This evidence is crucial because it is the exact evidence that King argued, and the court found, “will be consistent with King‘s alibi defense and general denial which he asserted at trial,” “would provide strong evidence of King‘s innocence,” “would eliminate King as a suspect,” “would prove the identity of the real killer,” and “would be outcome determinative.”
{¶46} The DNA test results support King‘s contention that the male who deposited the semen in the victim is the killer, regardless of whether the semen was deposited during a rape or consensual intercourse. Evidence showed that the victim had been strangled from behind after being brutally beaten. Under those circumstances, the obvious close contact with her assailant makes debris found under her fingernails significant in and of itself, the timing of the semen deposit notwithstanding. See Matte, Williams, Frappier, & Newman, Prevalence and Persistence of Foreign DNA Beneath Fingernails, Forensic Science International: Genetics 6, (2012) 236-243. With the state admittedly building its case for murder solely on circumstantial evidence, this DNA evidence would have been compelling.
{¶48} King‘s theory of who committed the crime evaporated with the expert‘s testimony. He had no other way to tie the person who left the semen in the victim to the murder. This meant that the state could plausibly argue that the semen and murder were unrelated happenings.
{¶50} The DNA result excluding King as the originator of the genetic material found beneath the victim‘s fingernails was a crucial break in the case. It negates the forensic scientist‘s testimony that no biological material was found under the victim‘s fingernails and weakens the state‘s entire case of circumstantial evidence. King‘s contention that an unknown person‘s DNA material found under the victim‘s fingernails “would prove the identity of the real killer if the fingernail debris * * * matches the DNA from the semen because King‘s theory of defense, i.e. a third party killed and raped the victim while he was away from the apartment * * *,” is made all the more probable with the test results than without them. The court had to have understood all of this when it granted King‘s application for DNA testing.
The Court concludes that this particular additional information does not by clear and convincing evidence establish in the Court‘s mind actual innocence of the Defendant. Further, since the evidence presented at trial already excluded Defendant as the donor with respect to the vaginal swabs, the Court finds that this one additional fact would not be outcome determinative.
{¶58} In its findings of fact, the court gave a brief summary of the case and referenced a “broader recapitulation of the facts” that could be found in the pleadings and this court‘s opinion in King‘s direct appeal. This does not demonstrate the type of review and consideration of the evidence contemplated by the statute. Furthermore, before its conclusions of law, the court plainly states that it “has chosen to look at the new DNA results and the coroner‘s report.” This language clearly demonstrates that the court‘s analysis, as does the analysis of the concurring opinion, considered the new DNA evidence only in context to the blood antigen and vaginal swab evidence presented at trial — and not even all of that evidence.
{¶60} Finally, the concurring opinion attempts to buttress the decision reached in this case by referencing a judicial desire to “search for the truth” “where possible,” but concludes that the “search” here “does not change the outcome.” I can only respond by saying that there is no “change” in the outcome because the “search” was extremely limited.
{¶62} The victim‘s daughter was the best witness the state presented at trial. She was the last person, other than the killer, to see the victim alive. She discovered her mother‘s body, and she was the only person to observe King‘s demeanor and response when the body was discovered. What is more, the daughter let it be known that she did not like King. She testified, “when I first saw him, I just didn‘t like him, just something — just I don‘t like him. * * * The way he looked, the way he dressed, because he dressed like he was a bum or came off the streets.” Therefore, her testimony would appear to be the most credible of anyone‘s offered during trial. Her strong aversion to King shows that, any favorable testimony would not have been made for his benefit.
{¶64} As previously noted, the concurring opinion, like the trial court, analyzed the new DNA results solely in the context of the sperm evidence. The concurrence asserts that the “crucial evidence in this case,” the testimony of the chief deputy coroner and that of the serologist, is the evidence that the new DNA results would have to refute, presumably in order for the results to be “outcome determinative.” Not only is this analysis limited, it is just plain wrong.
{¶65} First off, it defies logic that one would not consider the identity of the person whose biological material was found under the fingernails of a strangulation victim, crucial: as if, the fact that the material matched the depositor of the semen is irrelevant because that person has, in effect, been ruled out as the killer with the finding of guilt against King. Secondly, the testimony of the deputy coroner and the serologist is not quite what the concurrence says it is.
{¶67} Likewise, the serologist‘s testimony does not indicate that sperm was deposited at least 16 hours prior to the murder. Her testimony was that the particular protein that was not found in the swabs only lasts “between 8 and 16 hours,” that it “[n]ever lasts beyond 16 hours after having been deposited.” Because the biological material was collected 24 hours or more after the victim had been murdered, this testimony is not “crucial.”
{¶68} The point the concurrence seems to want to underscore is that the testimony regarding the timing of the semen deposit contradicts King‘s theory that the crime was a rape-murder: that the semen was deposited at the same time the victim was killed. Without question, some of the testimony does indeed contradict King‘s theory. And some does not. In some instances, the evidence supports his theory or is conflicting. For instance, the victim‘s autopsy report indicates: “Few intact sperm and many sperm in vaginal and rectal smears.” But neither King‘s theory nor the state‘s theory should be the sole focus in determining this case. A consideration of the DNA results in the context of and upon consideration of all available admissible evidence related to King‘s case is the analysis required by law.
{¶70} The trial testimony in this case is critical, especially the daughter‘s testimony. Not only does she establish the time frame for her mother‘s death, her testimony also includes the fact that her mother always left her door open with a block, thus showing one way that someone else would have access to the apartment. All told, this evidence and more should have been considered in light of the DNA results. It was not.
{¶72} I am well aware that “a reviewing court should not overrule the trial court‘s finding on a petition for postconviction relief that is supported by competent and credible evidence.” State v. Gondor, 112 Ohio St.3d 377, 390, 2006-Ohio-6679, 860 N.E.2d 77. However, the trial court‘s finding in this matter is not. I therefore dissent from the decision to affirm.