THE STATE OF OHIO, APPELLEE, v. SCOTT, APPELLANT.
No. 2020-1583
SUPREME COURT OF OHIO
December 2, 2022
Slip Opinion No. 2022-Ohio-4277
O‘CONNOR, C.J.
Submitted December 8, 2021. APPEAL from the Court of Appeals for Butler County, No. CA2020-01-007, 2020-Ohio-5302.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Scott, Slip Opinion No. 2022-Ohio-4277.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Criminal law—Postconviction DNA testing—
O‘CONNOR, C.J.
{¶ 1} Appellant, Guy Billy Lee Scott, is serving a prison term of 15 years to life
Background
{¶ 2} Following a jury trial in 1992, Scott was convicted of the assault, rape, and murder of Buckley. Buckley‘s body was found on July 8, 1990, in Cedar Lake near New Paris, Ohio. The lake was in a disused gravel quarry where Buckley and Scott, along with 60 to 120 other people, attended a party the previous night.
{¶ 3} A summary of the testimony from Scott‘s trial may be found in the Twelfth District‘s decision affirming his convictions. State v. Scott, 12th Dist. Butler No. CA92-03-052, 1994 WL 394976 (Aug. 1, 1994). This court declined review of Scott‘s direct appeal. State v. Scott, 71 Ohio St.3d 1428, 642 N.E.2d 635 (1994).
{¶ 4} In 2019, Scott petitioned the trial court under
{¶ 5} We accepted jurisdiction over Scott‘s discretionary appeal and his single proposition of law in which he asserts that a trial court should consider the possibility that a DNA profile developed from crime-scene evidence could match a profile contained in the Combined DNA Index System (“CODIS“) database when considering whether to grant an application for postconviction DNA testing. See 161 Ohio St.3d 1474, 2021-Ohio-717, 164 N.E.3d 482.
Analysis
{¶ 6} Ohio law provides eligible offenders the opportunity to apply for postconviction DNA testing as described in
[t]he offender did not have a DNA test taken at the trial stage in the case in which the offender was convicted of the offense for which the offender is an eligible offender and is requesting the DNA testing regarding the same biological evidence that the offender seeks to have tested, the offender shows that DNA exclusion when analyzed in the context of and upon consideration of all available admissible evidence related to the subject offender‘s case as described in division (D) of [
R.C. 2953.74 ] would have been outcome determinative at that trial stage in that case, and, at the time of the trial stage in that case, DNA testing was * * * not yet available.
{¶ 7} An “exclusion result” is a DNA test result “that scientifically precludes or forecloses the subject offender as a contributor of biological material recovered from the crime scene or victim in question.”
Whether the trial court should consider the possibility that a comparison of postconviction DNA test results with CODIS will identify a person other than the offender as “available admissible evidence” when considering an application for postconviction DNA testing
{¶ 8} Scott argues that when the trial court was considering whether postconviction DNA testing in his case was “outcome determinative,” it should have considered the possibility that the test results could match another person‘s profile in CODIS.
the eligible offender may request the court to order, or the court on its own initiative may order, the bureau of criminal identification and investigation to compare the results of DNA testing of biological material from an unidentified person other than the offender that was obtained from the crime scene or from a victim of the offense for which the offender has been approved for DNA testing to the combined DNA index system maintained by the federal bureau of investigation.
If there is a match in the database, “[t]he offender or the state may use [that] information for any lawful purpose.”
{¶ 9}
{¶ 10} Additionally, a court‘s decision to accept an application for postconviction DNA testing or to order a comparison of DNA test results with CODIS is within the court‘s discretion. See
{¶ 11} Nonetheless, the statutory scheme requires the trial court reviewing an application for postconviction DNA testing to presume that an “exclusion result“—that is, a result that “scientifically precludes or forecloses” the offender as a contributor,
Whether a postconviction DNA test result excluding Scott would be outcome determinative
{¶ 12} We review a lower court‘s decision whether postconviction DNA testing would be outcome determinative for an abuse of discretion. See State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, paragraph one of the syllabus; State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 45.
{¶ 13} Here, the Twelfth District concluded that the trial court did not act unreasonably, arbitrarily, or unconscionably in finding that a DNA exclusion result would not be outcome determinative:
This is not a case where the margin of evidence was so narrow that a DNA exclusion result would lead to a strong probability that no reasonable factfinder would have found Scott guilty. This is also not a case where Scott‘s conviction was premised on one or a few pieces of suspect evidence, or a single eyewitness‘s questionable identification. The jurors considered the testimony of dozens of witnesses and numerous pieces of circumstantial evidence that, when fit together, led them to the conclusion, beyond a reasonable doubt, that Scott assaulted, raped, and murdered Buckley.
{¶ 14} Taking the court of appeals’ description of the evidence at face value, it is easy to assume that the jury‘s verdict was reasonable. But the relevant question is not whether the available admissible evidence was enough to convict Scott; rather, the relevant question is whether there is a strong probability that no reasonable factfinder would have found Scott guilty of the offenses of assault, rape, and murder if a DNA test result excluding Scott had been presented at trial and analyzed in the context of and upon consideration of all available admissible evidence. See
{¶ 15} As the Twelfth District explained, “[t]he evidence underpinning Scott‘s conviction was based on eyewitness testimony and circumstantial evidence.” 2020-Ohio-5302 at ¶ 47. The court of appeals noted that “Scott‘s conviction was not premised on the physical evidence recovered from Buckley‘s autopsy that Scott now seeks to test.” Id. at ¶ 51. Both the trial court and the court of appeals gave significant weight to the eyewitness testimony of Tony Young, who testified at trial that he had observed Scott and Buckley engaging in a sexual act near the edge of the lake
{¶ 16} An exclusion result would also significantly reduce the weight of other evidence that might have corroborated Young‘s false eyewitness testimony. For example, there was trial testimony that Scott and Buckley went missing from the party around the same time and that Scott returned to the party wet. But there was also testimony that approximately 60 to 120 people attended the party at the quarry. And Scott told investigators that he was wet because he had been pushed into the lake. An exclusion result, analyzed in the context of this evidence, would highlight the highly circumstantial nature of this testimonial evidence.
{¶ 17} The court of appeals also dismissed the weight of the evidence offered in support of Scott‘s defense theory that Buckley was killed by a member of the Johnson family. As the court of appeals noted, Ronnie Johnson was Buckley‘s abusive ex-boyfriend, and a witness testified that he saw Ronnie‘s car driving away from the party. Id. at ¶ 43, 46. The witness said he saw Ronnie‘s car leaving the lake just after Buckley‘s estimated time of death. As summarized by Scott in his memorandum in support of his application for postconviction DNA testing, at least eight people, including Buckley‘s parents, told investigators that either Ronnie or Lisa Johnson (Ronnie‘s cousin and Buckley‘s former friend) were likely suspects, given their past abuse of Buckley—Lisa had run over Buckley‘s foot after a public altercation in a parking lot—and given how fearful Buckley was of the Johnson family. According to Scott, three other people told investigators that Buckley also feared Ronnie‘s brothers, who had previously threatened her. None of the Johnsons were interviewed by investigators. At trial, Ronnie and Lisa each testified that they were at Ronnie‘s home on the evening of the murder.
{¶ 18} The court of appeals found that “there was no credible evidence of any involvement by the Johnsons in Buckley‘s death.” 2020-Ohio-5302 at ¶ 46. But a DNA test result that excludes Scott, coupled with the information about the Johnsons discussed above, including the eyewitness testimony of Ronnie‘s car leaving the scene, bolsters the credibility of Scott‘s defense theory.
{¶ 19} The court of appeals also considered testimony from witnesses who heard Scott make inculpatory statements about Buckley‘s death. Id. at ¶ 28, 32. And the court of appeals found that Scott‘s ability to immediately identify Buckley upon finding her bloated and beaten body while swimming at the quarry the next day and his “apparent evidence destruction” (he tossed a red lighter like the one Buckley had owned and a red plastic cup like the one he had been drinking from at the party into the lake) after finding Buckley‘s body was circumstantial and probative evidence of Scott‘s involvement. Id. at ¶ 39-42.
{¶ 21} As the Twelfth District noted, circumstantial and direct evidence have the same probative value, and a sufficient “margin of evidence” may counter a conclusion that an exclusion result would be outcome determinative. 2020-Ohio-5302 at ¶ 47. But a presumed exclusion result viewed in the context of the circumstantial evidence described herein reduces the probative value of that “margin of evidence.” Therefore, we conclude that the trial court and the court of appeals abused their discretion by unreasonably concluding that there is not a strong probability that a reasonable factfinder would have found Scott guilty if a DNA test result excluding Scott had been presented at trial.
{¶ 22} We do not reach this decision lightly. The horrible events leading to Buckley‘s death are not ones that her family and friends should have to relive so many years later. But the specter of a wrongful conviction in light of available but untested DNA evidence is something the legislature has sought to prevent by making postconviction testing available. See
[W]orth noting is the fact that additional [DNA] testing may not yield an inmate‘s expected results. In other words, testing can cut both ways for an applicant. Testing may, indeed, lead to the exoneration of one wrongfully convicted, but can also further implicate the inmate or simply have a neutral effect.
But the Eighth District also recognized:
The United States Supreme Court has stated that the “ultimate objective” of our system of criminal law is that “the guilty be convicted and the innocent go free.” Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). If DNA testing has the proven ability to “exonerate[] wrongly convicted people,” [District Attorney‘s Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009),] we can perceive no viable argument that matters of judicial economy should supersede the law‘s never-ending quest to ensure that no innocent person be convicted.
(First brackets added in Ayers.) Ayers at ¶ 24.
{¶ 23} Under the circumstances of this case, we find that the trial court and the court of appeals abused their discretion by denying Scott‘s application for postconviction DNA testing.
{¶ 24} For the foregoing reasons, we reverse the judgment of the Twelfth District Court of Appeals and remand the cause to the trial court with instructions that it accept Scott‘s application for postconviction DNA testing.
Judgment reversed and cause remanded to the trial court.
DONNELLY, STEWART, and BRUNNER, JJ., concur.
FISCHER, J., dissents, with an opinion.
DEWINE, J., dissents, with an opinion joined by KENNEDY and FISCHER, JJ.
THE STATE OF OHIO, APPELLEE, v. SCOTT, APPELLANT.
No. 2020-1583
SUPREME COURT OF OHIO
December 2, 2022
FISCHER, J.
FISCHER, J., dissenting.
{¶ 25} This case should be dismissed as improvidently allowed. It is questionable whether the proposition of law that this court resolves today was preserved in the lower courts. And as recognized by the second dissenting opinion, the second issue that the majority opinion resolves—whether a DNA exclusion result would be outcome determinative based on the trial evidence—was not a proposition of law that this court accepted for review. Because the court chooses to resolve that issue, I agree with the second dissenting opinion and join it in full.
{¶ 26} I also take this opportunity to encourage the General Assembly to review the statutory scheme at issue in this case and to make clear the requirements for approving an offender‘s application for postconviction DNA testing. After reviewing the statutory scheme, our precedent, and the decisions of the lower courts, it has become apparent that all participants in this litigation process have had difficulty interpreting the requirements set forth in
THE STATE OF OHIO, APPELLEE, v. SCOTT, APPELLANT.
No. 2020-1583
SUPREME COURT OF OHIO
December 2, 2022
DEWINE, J.
DEWINE, J., dissenting.
{¶ 27} We accepted the following proposition of law for review in this case:
In determining whether DNA testing would be outcome determinative, a trial court should consider the possibility that a DNA profile developed from crime scene evidence could match a profile contained within the [Combined DNA Index System (“CODIS“)] database.
See 161 Ohio St.3d 1474, 2021-Ohio-717, 164 N.E.3d 482. The majority correctly rejects that proposition. That should end
{¶ 28} But, remarkably, that‘s not what the majority does. Instead, the majority goes beyond the case that was argued and briefed to us and—based on its theory of the trial evidence—grants the application for DNA testing. Incredibly, it does so even though the trial evidence is not part of the record before us in this appeal. I respectfully dissent.
The majority correctly rejects Scott‘s argument in support of the proposition of law that was accepted for review
{¶ 29} For a court to approve an application for postconviction DNA testing, the offender must show “that DNA exclusion when analyzed in the context of and upon consideration of all available admissible evidence related to the subject offender‘s case * * * would have been outcome determinative at that trial stage in that case.” (Emphasis added.)
{¶ 30} By its terms,
{¶ 31} Scott asks this court to take an additional leap: he asks us to presume that the DNA profile identified through postconviction testing would conclusively match a profile contained in the CODIS database. The statute does not call for such a presumption. For those reasons, I agree with the majority‘s rejection of the proposition of law presented.
The majority errs by going beyond the issue in front of us
{¶ 32} The majority, though, does not limit itself to answering the proposition of law presented. It also concludes that the lower courts abused their discretion in determining that a DNA exclusion result would not be outcome determinative in this case. It therefore reverses the court of appeals’ judgment and remands the case with instructions for the trial court to approve Scott‘s application for DNA testing. I am unable to join the majority‘s judgment in that regard for two reasons.
{¶ 33} First, that issue was not raised by Scott in this appeal or briefed by the parties. “It has long been the policy of this court not to address issues not raised by the parties.” Sizemore v. Smith, 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2, citing F. Ents., Inc. v. Kentucky Fried Chicken Corp., 47 Ohio St.2d 154, 163, 351 N.E.2d 121 (1976). “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Natl. Aeronautics and Space Admin. v. Nelson, 562 U.S. 134, 148, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011), fn. 10, quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). When we decide legal issues without the benefit of full briefing, we “run the risk of an improvident or ill-advised opinion, given the court‘s dependence on the adversarial process for sharpening the issues for decision.” (Cleaned up.) Carbino v. West, 168 F.3d 32, 35 (Fed.Cir.1999).
{¶ 34} Indeed, Scott requested only that this court “remand the case with instructions to consider [his] eligibility for postconviction DNA testing under the proper standard.” And the majority‘s decision in this case to reach an issue not raised or argued by Scott in his appeal to this court is especially unfair to the state, which has now had judgment entered against it on an issue that it did not expect to be considered and which it had no opportunity to brief or argue. See id.
{¶ 35} Even worse, the majority makes an evidentiary determination without all the evidence. The trial transcripts in this case are not part of our record. Not only is it necessary to review the trial transcripts before deciding whether a DNA exclusion result would be outcome determinative, it is also what is required by statute.
{¶ 36}
{¶ 37} As the appellant, it is Scott‘s burden to ensure that transcripts are part of the record on appeal. See
{¶ 38} The majority has now rejected Scott‘s proposed standard. No other issue is properly in front of us. The majority goes beyond its limited role and reaches an issue that is not before this court, and it makes an evidentiary determination without the benefit of having the trial evidence for review. I therefore dissent from its judgment reversing the court of appeals’ judgment below.
KENNEDY and FISCHER, JJ., concur in the foregoing opinion.
Martin P. Votel, Preble County Prosecuting Attorney, and Philip D. Bogdanoff, Special Assistant Prosecuting Attorney, for appellee.
Ohio Innocence Project, Donald R. Caster, Jennifer Paschen Bergeron, and Samantha M. Kovacevic, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Kristen L. Sobieski, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.
Pillsbury Winthrop Shaw Pittman, L.L.P, Jeetander T. Dulani, Emily Huang, and Chloe J. Stepney; Timothy Young, Ohio Public Defender and Joanna Sanchez, Assistant Public Defender, urging reversal for amicus curiae the Innocence Network.