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[Cite as
State v. McKelton
,
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2015-02-028 Plaintiff-Appellee, :
O P I N I O N : 10/13/2015 - vs -
:
CALVIN McKELTON, :
Defendant-Appellant. : CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2010-02-0189
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee Rachel Troutman and Shawn Welch, Ohio Public Defenders Office, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for defendant-appellant
S. POWELL, P.J. Defendant-appellant, Calvin McKelton, appeals from the decision of the Butler County Court of Common Pleas denying his petition for postconviction relief after he was sentenced to death upon a jury finding him guilty of murder, aggravated murder, felonious assault, domestic violence, aggravated arson, tampering with evidence and abuse of a corpse. For the reasons outlined below, we affirm.
*2 On February 1, 2010, a Butler County Grand Jury returned an indictment charging McKelton with the above named offenses resulting from his involvement and attempted cover-up of the murder and aggravated murder of Margaret Allen and Germaine Lamar Evans. The indictment also included two death penalty specifications. Following a lengthy jury trial that concluded on October 14, 2010, McKelton was found guilty and sentenced to death. As part of its decision to impose the jury's recommended death sentence, the trial court stated, in pertinent part, the following:
The evidence presented at trial was that on or about July 26, 2008, the defendant, Calvin S. McKelton and Germaine Lamar Evans, were present in the home of Attorney Margaret "Missy" Allen located in Fairfield, Ohio. The evidence was that the defendant and Missy Allen were engaged in a romantic relationship. Sometime during that day, Mr. McKelton and Ms.
Allen argued and the defendant strangled the victim causing her death while Germaine Evans was present in the home. Mr.
McKelton and Mr. Evans then drove her body to Schmidt Field in Cincinnati, Ohio where the body was dumped.
The Cincinnati, Ohio Police Department opened a homicide investigation into Ms. Allen's death. During the course of the investigation, the Cincinnati homicide detectives developed Mr.
McKelton as a suspect and became aware that Germaine Lamar Evans may have been a witness to the homicide and may have participated in the dumping of Ms. Allen's body.
Approximately three days before the Evans' murder, the Cincinnati homicide detectives attempted to contact Mr. Evans by calling his sister Crystal Evans to obtain a DNA sample from him. Within three days of that phone call being made, Mr. Evans was murdered. There was extensive testimony by many witnesses, some voluntary and others involuntary, that Mr.
McKelton murdered Germaine Lamar Evans to prevent him from being a witness against McKelton in the death of Margaret Allen.
The evidence at trial was that Mr. Evans' body was found in a park area along stairs in a remote, unlit part of the park. Evans was murdered by a shot to the back of his head by a 40mm firearm. The jury convicted Mr. McKelton of both the murder of Margaret Allen and the aggravated murder with specifications of Germaine Lamar Evans. McKelton subsequently appealed from his conviction and death sentence to the
*3 Ohio Supreme Court on December 27, 2010, raising numerous propositions of law spanning over three hundred pages. Although oral argument has since been completed, a decision on McKelton's direct appeal has yet to be released and the matter is still pending before the Ohio Supreme Court in State v. McKelton , No. 2010-2198.
{¶ 4} Nevertheless, although his direct appeal is still pending, on December 28, 2011, McKelton filed a timely petition for postconviction relief, which he then amended four times, raising a total of thirty-four grounds for relief. McKelton also filed a series of motions requesting leave to conduct discovery, as well as a request for investigative funds in order to procure a forensic ophthalmologist, a neuropsychologist and a substance abuse expert. After filing its answer to McKelton's postconviction relief petition, the state then filed a motion for summary judgment on March 20, 2012. Thereafter, on January 30, 2015, the trial court issued a decision denying McKelton's petition for postconviction relief without holding an evidentiary hearing. The trial court also denied McKelton's accompanying motions for discovery and investigative funds.
{¶ 5} McKelton now appeals from the trial court's decision, raising four assignments of error for review. For ease of discussion, McKelton's third assignment of error will be addressed out of order. Assignment of Error No. 3: THE TRIAL COURT ERRED IN DISMISSING MCKELTON'S POST-
CONVICTION PETITION WHEN HE PRESENTED SUFFICIENT OPERATIVE FACTS TO MERIT RELIEF OR, AT A MINIMUM, AN EVIDENTIARY HEARING. In his third assignment of error, McKelton argues the trial court erred by denying
his petition for postconviction relief without holding an evidentiary hearing. In support of this claim, McKelton alleges numerous instances of prosecutorial misconduct, ineffective assistance of trial counsel, various challenges to the trial court's rulings in regards to the *4 admission of evidence, the nondisclosure of witnesses, as well as arguments regarding his choice of counsel and change of venue, among others. According to McKelton, his petition for postconviction relief – a document that spans over one hundred pages with an additional one thousand plus pages of exhibits – demonstrated sufficient operative facts to establish substantive grounds for relief, thereby entitling him to conduct discovery, receive investigative funds and be provided with an evidentiary hearing. We disagree.
Standard of Review for a Petition for Postconviction Relief A postconviction proceeding is not an appeal of a criminal conviction, but
rather, a collateral civil attack on a criminal judgment. State v. Bayless , 12th Dist. Clinton
Nos. CA2013-10-020 and CA2013-10-021,
files a petition for postconviction relief." State v. Suarez , 12th Dist. Warren No. CA2014-02-
035,
Prosecutorial Misconduct Initially, McKelton alleges the trial court erred by denying his petition for
postconviction relief because he was subject to numerous alleged instances of prosecutorial misconduct. McKelton's argument lacks merit. For a conviction to be reversed on the basis of prosecutorial misconduct, a
defendant must prove the prosecutor's comments were improper and that they prejudicially
affected the defendant's substantial rights. State v. Elmore ,
engaged in widespread misconduct due to the "highly-contested election for county prosecutor" at the time of his trial. In support of this claim, McKelton makes reference to several campaign websites and news articles documenting the efforts of two assistant prosecutors vying for the then open seat as Butler County's prosecutor. However, just as the trial court found, not only did neither of the two candidates actually obtain the open appointment, most of the alleged misconduct that supposedly occurred was either wholly unrelated to McKelton's trial or happened well-after McKelton had already been sentenced to death. Under these circumstances, it simply cannot be said that McKelton set forth sufficient operative facts to establish substantive grounds for relief that would entitle him to an evidentiary hearing on this issue. Therefore, the trial court did not err by denying McKelton's third ground for relief. Next, under his fifteenth and sixteenth grounds for relief, McKelton argues the
state engaged in misconduct when it failed to provide his defense counsel with evidence that
two witnesses were given special treatment on their respective drug related charges then
pending in the United States District Court for the Southern District of Ohio in exchange for
their testimony against McKelton at trial. According to McKelton, by failing to disclose this
purported exculpatory and material evidence to his defense counsel, the state violated the
principles outlined by the United States Supreme Court in Brady v. Maryland ,
*7
In Brady , the United States Supreme Court held "the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." Id. at 87. However, as a rule, "undisclosed evidence is not material
simply because it may have helped the defendant to prepare for trial." State v. Brown , 115
Ohio St.3d 55,
motivation they may have had for testifying at trial, the record also reveals that both received *8 lengthy sentences in excess of ten years in prison. Again, under these circumstances, it simply cannot be said that McKelton set forth sufficient operative facts to establish substantive grounds for relief that would entitle him to an evidentiary hearing on this issue. Therefore, the trial court did not err by denying McKelton's fifteenth and sixteenth grounds for relief. Continuing, under his sixth, ninth, fourteenth and nineteenth grounds for relief,
McKelton alleges the state engaged in prosecutorial misconduct by (1) adducing certain testimony from a witness regarding an injury she witnessed to Margaret Allen's eye, (2) procuring allegedly knowingly false testimony from Detective Keith Witherell regarding a letter McKelton wrote that the state claimed contained threats against witnesses, (3) introducing evidence that McKelton threatened in a phone call to "John Brown" the case, an apparent reference to a Hamilton County case in which the state claims the defendant was acquitted because witnesses either failed to show or recanted their pretrial statements due to threats, intimidation or outright bribery of witnesses, and (4) presenting "unreliable cell phone tower evidence and by using that faulty evidence as a basis to disparage "the credibility of an alibi witness." In addition, under his eighteenth and thirty-fourth grounds for relief, McKelton
alleges the state engaged in further misconduct by (5) soliciting supposed false testimony
from Detective David Gregory regarding another witness' unwillingness to testify due to
intimidation and fear of McKelton, a claim McKelton also alleges violates the Confrontation
Clause as found in the Sixth Amendment to the United States Constitution, and (6) by failing
to conduct a conflict check regarding the state's non-disclosed witnesses to determine
whether those witnesses had ever been represented by his then retained counsel, Richard
Goldberg. McKelton's claims are all barred on the basis of the doctrine of res judicata.
It is well-established that a petition for postconviction relief does not provide a
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petitioner with a second opportunity to litigate his conviction. State v. Rose , 12th Dist. Butler
No. CA2012-03-050,
alleged instances of prosecutorial misconduct in his direct appeal to the Ohio Supreme
Court. In so holding, we note that McKelton actually did allege claims of prosecutorial
misconduct as part of his direct appeal under his eighth and seventeenth propositions of law.
E.g. , State v. Jackson , 11th Dist. Trumbull No. 2013-T-0103,
have been raised on direct appeal, including a claim alleging prosecutorial misconduct. State
v. Zych , 12th Dist. Clermont No. CA97-02-012,
Ineffective Assistance of Counsel McKelton also alleges the trial court erred by denying his petition for
postconviction relief because he was subject to numerous alleged instances of ineffective assistance of counsel. We again find McKelton's argument lacks merit. Counsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment. State v.
Hendrix , 12th Dist. Butler No. CA2012-05-109,
again note that McKelton actually did allege claims of ineffective assistance of counsel as part of his direct appeal to the Ohio Supreme Court under his fifteenth and sixteenth propositions of law. Therefore, just as the trial court found, the doctrine of res judicata once again applies to bar McKelton's ineffective assistance of counsel claims as alleged in his twentieth, twenty-first, twenty-third through twenty-ninth and thirty-first through thirty-third grounds for relief. Accordingly, the trial court did not err by denying McKelton's grounds for relief alleging ineffective assistance of counsel.
Other Constitutional Grounds for Relief In addition to his claims alleging prosecutorial misconduct and ineffective
assistance of trial counsel, McKelton has raised several other grounds for relief alleging a variety of claims under both the United States Constitution and Ohio Constitution. For ease of discussion, McKelton's various claims will be addressed out of order and similar issues will be addressed together.
Change of Venue Under his second ground for relief, McKelton argues the trial court erred by
dismissing his petition for postconviction relief because Butler County was not the proper
venue to bring the various charges against him. However, although initially raising this issue
with the trial court, McKelton did not include this challenge as part of his direct appeal to the
Ohio Supreme Court. Therefore, as the trial court found, because this argument could have
been raised on direct appeal, McKelton's argument alleging an improper venue is also barred
by the doctrine of res judicata. E.g., State v. Morrar , 12th Dist. Madison No. CA2013-08-027,
Counsel of Choice and the Appointment of New Counsel Next, under his fourth and twenty-second grounds for relief, McKelton argues
the trial court erred by dismissing his petition for postconviction relief because he was denied
his "counsel of choice" when his retained counsel, Richard Goldberg, was forced to withdraw
due to a conflict of interest. However, not only do we find McKelton's claims are once again
barred by the doctrine of res judicata, as noted by the United States Supreme Court, the
"right to choose one's own counsel is circumscribed in several important respects," and does
not extend to an attorney laboring under an actual conflict of interest. Wheat v. United
States ,
*13 withdraw, the trial court had already appointed two additional attorneys qualified by the Ohio Supreme Court to handle death penalty cases to represent him. As noted by the trial court, "[t]he two court appointed attorneys participated from the beginning in all aspects of the defense of McKelton." The record clearly supports the trial court's finding. Therefore, based on the facts and circumstances here, we find the trial court did not err by denying McKelton's fourth and twenty-second grounds for relief.
Nondisclosure of Witnesses and Crim.R. 16(B)(1)(e) Furthermore, under his fifth ground for relief, McKelton argues the trial court
erred by dismissing his petition for postconviction relief because the trial court violated his
due process rights through its application of Crim.R. 16(B)(1)(e) regarding the state's alleged
nondisclosure of witnesses prior to trial. McKelton's claim, however, is likewise barred by the
doctrine of res judicata as he has raised substantially similar arguments as part of his direct
appeal to the Ohio Supreme Court in his first and second propositions of law. It is well-
established that "[r]es judicata also implicitly bars a petition from 'repackaging' evidence or
issues which either were, or could have been, raised in the context of the petitioner's trial or
direct appeal." State v. Tolliver , 10th Dist. Franklin No. 14AP-170,
Admission of Evidence and Confrontation Clause Under his seventh, eighth, tenth through thirteenth and seventeenth grounds for
relief, McKelton argues the trial court erred by dismissing his petition for postconviction relief because it permitted the admission of "unreliable and inflammatory evidence" at trial that he was "deprived of the opportunity to defend against." McKelton also alleges the trial court erred by "restricting the use of impeachment evidence," thereby violating the Confrontation Clause as found in the Sixth Amendment to the United States Constitution. McKelton's *14 various claims, however, all involve evidentiary issues that occurred during trial that could have been raised as part of his direct appeal to the Ohio Supreme Court. In fact, in reviewing his appellate brief submitted to the Ohio Supreme Court, McKelton did raise these same or substantially similar claims as part of his direct appeal under his fourth, fifth, sixth, seventh, ninth, tenth and eleventh propositions of law. Therefore, as these claims are also all barred by the doctrine of res judicata, the trial court did not err by denying McKelton's various grounds for relief regarding these evidentiary issues.
Cumulative Error
{¶ 35} Finally, under his thirtieth claim for relief, McKelton argues the trial court erred by dismissing his petition for postconviction relief given the cumulative effective of the trial court's numerous errors throughout his trial. McKelton raised this same issue as part of his direct appeal under his twenty-first proposition of law. Regardless, based on the record before this court, McKelton has failed to demonstrate any violation of his rights that led to his conviction and death sentence. Therefore, the trial court did not err by denying McKelton's thirtieth ground for relief alleging cumulative error.
{¶ 36} In light of the foregoing, having found no merit to any of his various arguments raised herein, McKelton's third assignment of error is overruled.
{¶ 37} Assignment of Error No. 1: THE TRIAL COURT ERRED WHEN IT DENIED THE POST-CONVICTION PETITION WITHOUT FIRST ALLOWING MCKELTON TO CONDUCT DISCOVERY. In his first assignment of error, McKelton argues the trial court erred by denying his petition for postconviction relief without first allowing him to conduct discovery. We disagree. As noted above, a postconviction proceeding is not an appeal of a criminal
conviction, but rather, a collateral civil attack on the judgment. Bayless ,
{¶ 41}
As this court recently noted, R.C. 2953.21 "'does not contain a provision
entitling a post-conviction petitioner to discovery during the post-conviction process[.]'" State
v. Osie , 12th Dist. Butler No. CA2014-10-222,
substantive grounds for relief, the trial court did not err by denying McKelton's petition for postconviction relief. Simply stated, the trial court properly determined that McKelton's various claims alleging prosecutorial misconduct, ineffective assistance of counsel, as well as other various purported constitutional violations, all lacked merit or were barred by the doctrine of res judicata. Therefore, based upon this finding, we likewise find no error in the trial court's decision to deny McKelton's motion seeking to conduct discovery in this matter. Accordingly, McKelton's first assignment of error is also without merit and overruled. Assignment of Error No. 2: THE TRIAL COURT ERRED WHEN IT DENIED MCKELTON'S MOTION FOR FUNDS TO EMPLOY EXPERTS.
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{¶ 45}
In his second assignment of error, McKelton argues the trial court erred by
denying his motion seeking investigative funding in order to procure a forensic
ophthalmologist, a neuropsychologist and substance abuse expert. However, similar to our
decision as it relates to his motion seeking to conduct discovery, because nothing in R.C.
2953.21 provides a right for investigative funding to a petitioner seeking postconviction relief,
the trial court did not err by denying McKelton's request for funds to employ these experts.
E.g., State v. Hoop , 12th Dist. Brown No. CA2004-02-003,
MCKELTON RELIEF WITHOUT AFFORDING HIM THE NECESSARY DUE PROCESS TO MEET HIS BURDEN. In his fourth assignment of error, McKelton argues Ohio's statutory scheme
providing for postconviction relief is unconstitutional in that it does not provide him with a
"meaningful system to have his constitutional challenges heard." However, this court has
already determined that "[t]he statutory procedure for postconviction relief constitutes an
adequate corrective process." State v. Lindsey , 12th Dist. Brown No. CA2002-02-002, 2003-
Ohio-811, ¶ 13. Other districts have held the same. See State v. Conway , 10th Dist.
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Franklin No. 12AP-412,
RINGLAND and HENDRICKSON, JJ., concur.