State v. King , 2017 Ohio 181 ( 2017 )

[Cite as State v. King, 2017-Ohio-181.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 103947, 103948, and 103949
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EVIN KING
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-94-312576-ZA
BEFORE: Blackmon, J., Kilbane, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: January 19, 2017
ATTORNEYS FOR APPELLANT
Jennifer P. Bergeron
Mark A. Godsey
Ohio Innocence Project
P.O. Box 210040
Cincinnati, Ohio 45221
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anthony Thomas Miranda
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Evin King (“King”) appeals from the trial court’s denial of his petition for
postconviction relief, motion for relief from judgment pursuant to Civ.R. 60(B), and
application for DNA testing and assigns eight errors for our review.1 Specifically, King
argues that (1) the trial court violated R.C. 2953.21(E) by denying the petition without
holding an evidentiary hearing; (2) he established that he was actually innocent of
murder; (3) the trial testimony of the state’s experts was false and misleading; (4) his trial
and postconviction counsel provided ineffective assistance; (5) the trial court’s admission
of the “scientifically unsupportable” testimony of the state’s experts violated his due
process rights; (6) the state violated his due process rights, both at the time of trial and
during postconviction proceedings, by withholding exculpatory evidence, in violation of
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); (7) the trial
court violated R.C. 2953.74(E) by denying his request to upload a DNA profile obtained
during postconviction proceedings into Combined DNA Index System (“CODIS”); and
(8) the trial court violated R.C. 2953.81(B) by failing to order the state to provide him
with the data and materials pertinent to postconviction DNA testing.
{¶2} Having reviewed the record and pertinent law, we reverse and remand.
The apposite facts follow.
{¶3} On the morning of June 22, 1994, King’s girlfriend, Crystal Hudson
(“Hudson”) was found murdered in her bedroom closet. Hudson had been strangled and
her body was nude and partially decomposed. On July 5, 1994, King was indicted for
1
See appendix.
the murder of Hudson, in violation of R.C. 2903.02. King pled not guilty to the
indictment and the matter ultimately proceeded to a jury trial.
{¶4} At trial, testimony established that Hudson was last seen alive at 11:00 a.m.
on June 21, 1994. The state presented witnesses who saw King at the victim’s apartment
at various times during the 24-hour period from the morning of June 21 to the morning of
June 22. King presented witnesses who testified that they saw King at places other than
the victim’s apartment during this time period.
{¶5} Investigators recovered semen from Hudson’s vagina and rectum, as well as
scrapings from underneath her fingernails. DNA testing was performed on the semen
and King was not a match. The matter found underneath Hudson’s fingernails was
untestable at the time as far as DNA was concerned. The state’s theory during trial was
that Hudson had sex with an unidentified male prior to being murdered by King, and the
state supported this with expert testimony that the semen was hours to days old at the time
of Hudson’s death. King’s theory was that Hudson was killed by the unidentified man
whose semen, and thus DNA, was found in her vaginal and rectal swabs. The biological
material found in Hudson’s fingernail scrapings was essentially downplayed at trial,
because it was not scientifically tested. A complete recitation of the facts presented at
trial can be found in State v. King, 8th Dist. Cuyahoga No. 68726, 1996 Ohio App.
LEXIS 4945 (Nov. 14, 1996) (“King I”). King was convicted of Hudson’s murder and
sentenced to a prison term of 15 years to life.
{¶6} Thanks to advancements in DNA testing, King now has evidence that
excludes him as the source of the DNA found in the victim’s fingernail scrapings, as well
as evidence that the DNA profile from the fingernail scrapings is consistent with the
DNA that was found in the semen. “In short, DNA from one man — who was not Evin
King — was found both on the victim’s rape kit and underneath her fingernails.”2
Additionally, King has evidence that refutes the state’s expert testimony regarding the
time the semen was deposited in the victim.
{¶7} King requested additional DNA test results and materials from the state
“[t]o complete his assessment of the case and confirm his hypothesis” that the “semen
present in the vagina and rectum of [the victim] was deposited contemporaneously with
her death,” and thus, “Unknown Male #1 is [the victim’s] killer.” King additionally
requested that the DNA profile be uploaded into CODIS to determine if the individual
could be identified.
{¶8} On November 30, 2015, the trial court denied King’s amended successive
petition for postconviction relief, amended motion for relief from judgment, and motion
for DNA testing. The trial court issued findings of fact and conclusions of law in which
it concluded that the new evidence — including the 2009 DNA testing results and the
documents that refute the trial testimony regarding the time of the rape — created, at best,
a “battle of the experts.” It is from this order that King appeals.
Petition for Postconviction Relief
2
Prior to this appeal, King filed various postconviction motions related to the new DNA
evidence, which the trial court denied. This court affirmed in State v. King, 8th Dist. Cuyahoga No.
97683, 2012-Ohio-4398 (the new DNA results do not clearly and convincingly establish King’s actual
innocence under R.C. 2953.23(A)(2)) (“King II”).
{¶9} King’s first, second, and fourth assignments of error pertain to the trial
court’s denial of his petition for postconviction relief.
Standard of Review
{¶10} A postconviction relief proceeding is a collateral civil attack on a judgment,
therefore, we review the trial court’s ruling for an abuse of discretion. State v. Gondor,
112 Ohio St. 3d 377, 2006-Ohio-6679, 860 N.E.2d 77. A trial court’s judgment
regarding a postconviction petition filed pursuant to R.C. 2953.21 will be upheld absent
an abuse of discretion when the trial court’s finding is supported by competent and
credible evidence. Id. at  58. An abuse of discretion implies that the court’s attitude
is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St. 2d 151, 157,
404 N.E.2d 144 (1980).
{¶11} R.C. 2953.21(A) permits a person who has been convicted of a criminal
offense and who claims that there was a constitutional violation that rendered the
judgment void or voidable to file a petition asking the court to set aside the judgment or
grant other appropriate relief within 365 days after the transcript was filed in the direct
appeal. For untimely or successive petitions for postconviction relief, there is a
heightened pleading requirement. R.C. 2953.23(A). See also State v. Mack, 8th Dist.
Cuyahoga No. 101261, 2015-Ohio-2149, ¶ 9. It is undisputed that the petition in the
case at hand is untimely and successive.
{¶12} R.C. 2953.23(A)(1) provides, in relevant part, that a court may not entertain
an untimely or successive petition unless the petitioner is able to demonstrate that the
following pertinent parts of the statute apply:
(a) [T]he petitioner shows that the petitioner was unavoidably prevented
from discovery of the facts upon which the petitioner must rely to present
the claim for relief * * * [and]
(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted[.]
{¶13} Furthermore, R.C. 2953.23(A)(2) provides, in relevant part, that a court may
entertain an untimely or successive petition if:
The petitioner was convicted of a felony, the petitioner is an offender for
whom DNA testing was performed * * * and analyzed in the context of and
upon consideration of all available admissible 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[.]
{¶14} Under R.C. 2953.21(A)(1)(b), actual innocence means that
had the results of the DNA testing * * * been presented at trial, and had
those results been analyzed in the context of and upon consideration of all
available admissible evidence related to the person’s case * * *, no
reasonable factfinder would have found the petitioner guilty of the offense
of which the petitioner was convicted[.]
R.C. 2953.23(A)(2)
{¶15} King argues that he is entitled to relief under R.C. 2953.23(A)(2) because
“all available admissible evidence” points to his innocence. In support of his actual
innocence claim, King emphasizes that (1) he was excluded as a contributor to the
biological material recovered from Hudson’s vagina, rectum, and fingernail scrapings, (2)
the DNA profile recovered from sperm found in Hudson’s vagina and rectum is
consistent with the DNA profile recovered from the fingernail scrapings, (3) the damage
to Hudson’s rectum and the bruises on her body consistent with strangulation indicate that
she was raped at the time of death, and (4) the opinions of three DNA experts
demonstrate that the trial testimony of the state’s experts was scientifically invalid and
that the semen collected from Hudson’s body was deposited contemporaneously with her
death.
{¶16} In King’s 2010 petition for postconviction relief, he argued that the new
DNA test results proved he was actually innocent. However, in King II, this court found
that this evidence, standing alone, did not clearly and convincingly establish King’s actual
innocence. King II at ¶ 19. The concurring opinion in King II states, in part, as follows:
Unless King can offer some explanation or testimony that refutes or casts
doubt on the testimony of [the state’s experts], 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 [the state’s
experts’] 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.
{¶17} King went back to the trial court in 2015 armed with expert reports that
either challenge the state’s experts’ opinions or request additional DNA testing materials
to reach a conclusion on the issue. Upon review, we find that the trial court abused its
discretion when it denied King’s request for additional DNA testing materials, request
that the “unknown” DNA profile be uploaded into CODIS, and request for an evidentiary
hearing. Hudson’s autopsy report shows that she was strangled to death, and there is
evidence of bruising on her head, face, and torso. Additionally, she had damage to her
rectum, and semen was found in her vagina and rectum. When viewed in light of the
new advanced DNA test results, this evidence suggests that the victim was raped and
murdered by the same man whose DNA was found on her body. It is undisputed that
this man is not King.
{¶18} We are aware that King’s motion for postconviction relief is successive and
he has presented this argument before. However, “[t]his court has chosen not to apply
the doctrine of res judicata in cases where it would be inequitable * * *.” State v.
McGraw, 8th Dist. Cuyahoga No. 102807, 2016-Ohio-205, ¶ 16.
If DNA testing has the proven ability to ‘exonerate wrongly convicted
people,’ 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. The refinement of DNA testing has shown
that law and science are intersecting with increasing regularity. When
scientific advances give the courts the tools to ensure that the innocent can
go free, those advances in science will necessarily dictate changes in the
law.
(Citations omitted.) State v. Ayers, 185 Ohio App. 3d 168, 2009-Ohio-6096, 923 N.E.2d
654, ¶ 24 (8th Dist.).
{¶19} Accordingly, we order that King be granted access to the DNA test results
and testing material, that the unknown DNA profile be uploaded into CODIS, and that
King be granted an evidentiary hearing . See State v. Johnson, 8th Dist. Cuyahoga No.
100503, 2014-Ohio-2646, ¶ 20 (“the use of new DNA testing to discover new biological
material that was previously undiscoverable, is grounds for granting the application”).
Additionally, we reverse the court’s denial of King’s petition for postconviction relief as
being premature.
{¶20} King’s first, seventh, and eighth assigned errors are sustained. All other
assigned errors are rendered moot pursuant to App.R. 12(A)(1)(c).
{¶21} Judgment reversed and case remanded for proceedings consistent with this
opinion.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS;
FRANK D. CELEBREZZE, JR., J., DISSENTS
WITH ATTACHED DISSENTING OPINION
FRANK D. CELEBREZZE, JR., J., DISSENTING:
{¶22} I must respectfully dissent from the majority opinion. I would find that the
trial court’s judgment denying King’s application for DNA testing is not a final
appealable order because the trial court’s November 30, 2015 judgment entry fails to set
forth any reasons for denying King’s application.
{¶23} R.C. 2953.73(D) requires the trial court to “enter a judgment and order that
either accepts or rejects the application [for DNA testing] and that includes within the
judgment and order the reasons for the acceptance or rejection as applied to the criteria
and procedures set forth in sections 2953.71 to 2953.81 of the Revised Code.”
(Emphasis added.) Ohio courts have distinguished between judgment entries that
provide insufficient reasons for denying an application for DNA testing and entries that
fail to set forth any reasons for denying an application.
{¶24} In State v. Smith, 8th Dist. Cuyahoga No. 87937, 2007-Ohio-2369, this court
explained that when a trial court’s judgment entry does not provide sufficient reasons —
rather than failing to state any reasons — for denying an application for DNA testing, this
court has jurisdiction to remand the matter to the trial court for further explanation. Id.
at ¶ 10. In State v. Richard, 8th Dist. Cuyahoga No. 99449, 2013-Ohio-3918, the trial
court, in denying the defendant’s application for DNA testing, issued the following
journal entry: “[d]efendant’s application for DNA testing filed November 26, 2012, is
denied, as it does not fulfill the requirement of the statute as to being ‘outcome
determinative.’” Id. at ¶ 9. This court held that the trial court’s judgment denying the
application for DNA testing was contrary to law and an abuse of discretion because it
failed to provide any reasons as to how the court reached its conclusion. Id.
Accordingly, this court reversed the trial court’s judgment denying the application and
remanded the matter, instructing the trial court to “state its reasons for finding that DNA
testing would not be outcome determinative.” Id. at ¶ 18.
{¶25} In State v. Newell, 8th Dist. Cuyahoga No. 85280, 2005-Ohio-2853, the trial
court, in denying the defendant’s application for DNA testing, issued a journal entry that
stated, in its entirety, “[d]efendant’s motion for DNA testing hereby is denied.” Id. at ¶
3. This court dismissed the appeal for lack of a final appealable order, concluding that
the court’s failure to set forth any reasons for denying the application contravened the
mandates of R.C. 2953.73(D). Id. at ¶ 6. In State v. Hickman, 9th Dist. Summit No.
22279, 2005-Ohio-472, the trial court denied the defendant-appellant’s application for
DNA testing in a journal entry that stated, “upon due consideration of this court, it is
hereby ordered that the defendant’s motion is denied.” Id. at ¶ 3. The Ninth District
dismissed the appeal for lack of a final appealable order, concluding that the trial court’s
journal entry neither apprised the applicant of the reasons for denying his application nor
enabled the appellate court to properly entertain the appeal on the merits. Id. at ¶ 10.
{¶26} In the instant matter, the trial court’s November 30, 2015 journal entry
denying King’s application for DNA testing provides, in relevant part, “[King’s]
application for DNA testing, filed 6/12/2015, is denied.” Like Newell and Hickman, the
trial court failed to delineate its reasons for rejecting King’s application, as required by
R.C. 2953.73(D).
{¶27} Accordingly, I dissent from the majority’s conclusion to reverse and
remand. I would find that the trial court’s judgment denying King’s application for
DNA testing is not a final appealable order.
{¶28} King intertwines the issues raised in his application for DNA testing with
the issues raised in his successive petition for postconviction relief. In other words, he
shoehorns his requests for a CODIS upload of the unknown DNA profile and access to
the DNA testing results and materials, and his actual innocence argument into both his
application for DNA testing and his successive petition for postconviction relief.
Although I would find that the trial court’s judgment denying King’s application for DNA
testing is not a final appealable order, R.C. 2953.23(B) provides that an order denying
relief sought in a petition for postconviction relief is, in fact, a final judgment that may be
appealed. In order to avoid piecemeal litigation — which courts do not prefer — I
would examine this matter on the merits rather than dismissing the appeal based on the
trial court’s failure to comply with R.C. 2953.73(D).
{¶29} I would respectfully dissent from the majority’s conclusions that the trial
court prematurely denied King’s successive petition for postconviction relief and abused
its discretion by denying King’s requests for a CODIS upload of the unknown DNA
profile, access to the DNA testing results and materials, and an evidentiary hearing. I
would affirm the trial court’s judgment in all respects.
I. Postconviction DNA Testing
{¶30} First, I respectfully disagree with the majority’s conclusion that the trial
court abused its discretion by denying King’s requests for an upload of the unknown
DNA profile into CODIS and access to the DNA testing results and materials. In
reaching this conclusion, the majority essentially finds that the trial court abused its
discretion by denying King’s application for DNA testing.
{¶31} The majority analyzes the issues raised in King’s seventh and eighth
assignments of error under R.C. 2953.23(A)(2), which governs untimely or successive
petitions for postconviction relief; however, these assigned errors pertain to Ohio’s
statutory scheme for postconviction DNA testing, set forth in R.C. 2953.71 et seq. We
review a trial court’s decision to accept or reject an eligible inmate’s application for DNA
testing for an abuse of discretion. R.C. 2953.74(A); State v. Ayers, 185 Ohio App. 3d
168, 2009-Ohio-6096, 923 N.E.2d 654, ¶ 12 (8th Dist.). I would conclude that the trial
court did not abuse its discretion by denying King’s application for postconviction DNA
testing.
A. CODIS Upload
{¶32} In his seventh assignment of error, King argues that the trial court violated
R.C. 2953.74(E) by denying his request for a CODIS upload of the unknown DNA
profile. R.C. 2953.74(E) provides that:
[i]f an eligible offender submits an application for DNA testing under
section 2953.73 of the Revised Code and the court accepts the application,
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.
(Emphasis added.)
{¶33} In my view, King’s reliance on R.C. 2953.74(E) is misplaced. King fails to
appreciate the distinction between DNA testing and a comparison of DNA testing results
to CODIS. The clear and unambiguous language of the statute provides that DNA
testing results may be compared to CODIS if the trial court accepts the application and
DNA testing is conducted.
{¶34} King’s 2004 application for DNA testing requested DNA testing of the
biological material recovered from Hudson’s fingernails. The trial court granted King’s
application in 2008, and the DNA testing was conducted in 2009. King could have
requested a comparison of the results of the 2009 DNA testing — including the unknown
DNA profile — to CODIS; however, he failed to do so.
{¶35} Unlike his 2004 application, King did not request DNA testing in his 2015
application; rather, King requested a CODIS upload of the unknown DNA profile.
Furthermore, the trial court denied King’s 2015 application. Thus, King is not entitled
to a CODIS upload under R.C. 2953.74(E).
{¶36} King further argues that he is entitled to a CODIS upload under R.C.
2953.74(B)(2), which provides, in relevant part,
If an eligible offender submits an application for DNA testing under section
2953.73 of the Revised Code, the court may accept the application only if *
* * [t]he offender had 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 test was not a
prior definitive DNA test that is subject to division (A) of this section, and
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 this section would
have been outcome determinative at the trial stage in that case.
(Emphasis added.) In my view, King’s reliance on R.C. 2953.74(B)(2) is misplaced
because the prior DNA testing was “definitive” and the DNA testing that King requested
in his 2015 application — a CODIS upload of the unknown DNA profile — would not be
outcome determinative.
1. Definitive DNA Test
{¶37} King acknowledges that prior DNA testing has been conducted regarding
the same biological evidence that he seeks to have tested, and that he was excluded as a
contributor to the biological material recovered from Hudson — both at the time of his
trial and in 2009. Nevertheless, King contends that the prior DNA testing was not
definitive, and “additional DNA testing could determine the source of the DNA.”
{¶38} R.C. 2953.71(U) defines a definitive DNA test as follows:
a DNA test that clearly establishes that biological material from the
perpetrator of the crime was recovered from the crime scene and also
clearly establishes whether or not the biological material is that of the
eligible offender. A prior DNA test is not definitive if the eligible
offender proves by a preponderance of the evidence that because of
advances in DNA technology there is a possibility of discovering new
biological material from the perpetrator that the prior DNA test may have
failed to discover. Prior testing may have been a prior “definitive DNA
test” as to some biological evidence but may not have been a prior
“definitive DNA test” as to other biological evidence.
(Emphasis added.)
{¶39} In State v. Prade, 126 Ohio St. 3d 27, 2010-Ohio-1842, 930 N.E.2d 287, the
defendant-appellant was convicted of murdering his ex-wife. Investigators discovered a
bite mark that the killer left on the fabric of a lab coat that the victim was wearing when
she was murdered. However, the killer’s DNA was “overwhelmed or diluted” by the
significant amount of the victim’s blood on the lab coat. Id. at ¶ 18. Thus, the 1998
DNA testing of the bite mark showed only the victim’s DNA.
{¶40} Both the trial court and the Ninth District concluded that the 1998 DNA
testing was definitive because the defendant was excluded as a contributor to the
biological material recovered from the lab coat. The Ohio Supreme Court, however,
disagreed and concluded that the prior DNA testing was not definitive:
the only information that the DNA testing on the lab coat revealed was that
[the victim’s] blood was present on her lab coat. The state’s expert agreed
that the 1998 DNA “test results [did] not give [him] any information about
the killer” and that “the bite mark show[ed] [him the victim’s] DNA only.”
Therefore, the testing excluded defendant only in the sense that the DNA
found was not his, because it was the victim’s. But the “exclusion”
excluded everyone other than the victim in that the victim’s DNA
overwhelmed the killer’s DNA due to the limitations of the 1998 testing
methods. Therefore, the exclusion was meaningless, and the test cannot be
deemed to have been definitive.
Id. at ¶ 19. Furthermore, the court held that “a prior DNA test is not ‘definitive’ within
the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information
that could not be detected by the prior DNA test.” Id. at ¶ 23.
{¶41} Subsequently, in State v. Noling, 136 Ohio St. 3d 163, 2013-Ohio-1764,
992 N.E.2d 1095, the Ohio Supreme Court explained that a prior DNA test is not
definitive and an applicant would be entitled to further testing of DNA evidence if the
applicant could show “‘by a preponderance of the evidence that because of advances in
DNA technology there is a possibility of discovering new biological material from the
perpetrator that the prior DNA test may have failed to discover.”’ (Emphasis added.)
Id. at ¶ 35, quoting R.C. 2953.71(U). Furthermore, the court explained that the DNA
testing statutes
now permit testing to positively identify the DNA’s source. R.C.
2953.74(E) allows the trial court to order biological material from the crime
scene to be compared to [CODIS] or compared to any identified person to
determine whether that person is the DNA source.
Id.
{¶42} In the instant matter, the prior DNA testing — both at the time of trial and in
2009 — excluded King as a contributor to the biological material recovered from Hudson.
Unlike Prade, the biological material recovered from Hudson was not diluted or
compromised in any way, and the DNA testing did not exclude everyone other than
Hudson. Furthermore, unlike Noling, King does not argue that there is a possibility of
discovering new biological material from the perpetrator based on advances in DNA
technology. Instead, King argues that the contributor of the unknown DNA profile
could be identified if the profile is uploaded into CODIS.
{¶43} The Cuyahoga County Coroner’s Office’s “DNA Laboratory Examination
Report,” dated January 29, 2009, provides, in relevant part, “[t]he [unknown] male DNA
profile obtained from [Hudson’s] vaginal swab was searched in the Ohio DNA database.
The profile will be maintained on file for future comparison.” The record reflects that
this search failed to identify the unknown DNA profile’s contributor.
{¶44} King takes issue with the fact that the unknown DNA profile was
“searched” in rather than “uploaded” into the state database. However, R.C. 2953.74(E)
does not provide for an upload, but rather a DNA comparison. The DNA testing at the
time of King’s trial clearly established that King was not a contributor to the biological
material recovered from Hudson’s vagina and rectum. Furthermore, the 2009 testing
clearly established that King was not a contributor to the biological material recovered
from Hudson’s fingernail scrapings. Accordingly, I believe that the prior DNA tests
were, in fact, “definitive.”
2. Outcome Determinative
{¶45} Under the amended version of R.C. 2953.71(L), “outcome determinative”
means
had the results of DNA testing of the subject offender been presented at the
trial of the subject offender requesting DNA testing and been found
relevant and admissible with respect to the felony offense for which the
offender is an eligible offender and 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 offender’s case, there is a
strong probability that no reasonable factfinder would have found the
offender guilty of that offense.
{¶46} As noted above, the prior DNA testing clearly established that King was
excluded as a contributor to the biological material recovered from Hudson. Assuming,
arguendo, that King’s request for a CODIS upload was granted, and the upload identified
the contributor of the unknown DNA profile, I do not believe that this result would be
outcome determinative in light of the trial testimony of the state’s experts.
{¶47} The state’s experts opined at trial that the semen recovered from Hudson —
from which the unknown DNA profile was obtained — was not deposited
contemporaneously with Hudson’s murder. Forensic serologist, Kay May testified that
at the time of Hudson’s death, the semen was anywhere from 16 hours to seven days old.
Chief Deputy Coroner, Dr. Robert Challener testified that it was “[v]ery unlikely” that the
semen was deposited contemporaneously with Hudson’s death.
{¶48} Accordingly, had the CODIS upload that King requested been conducted,
presented at trial, and analyzed in the context of and upon consideration of all available
admissible evidence, I would find that a reasonable factfinder could still have found King
guilty of Hudson’s murder.
{¶49} Based on the foregoing analysis, I would overrule King’s seventh
assignment of error.
B. Access to DNA Testing Results and Materials
{¶50} In his eighth assignment of error, King argues that the trial court erred by
failing to order the state to provide him with all of the underlying data and materials
related to the postconviction DNA testing. In support of his argument, King directs this
court to R.C. 2953.81(B) and ().
{¶51} King argues that he is entitled to the test results, including “all data and lab
bench notes underlying the 2009 Summary DNA Report,” because the results are a public
record under R.C. 2953.81(B). R.C. 2953.81(B) provides that if DNA testing is
performed under R.C. 2953.73, “[t]he results of the testing are a public record.”
(Emphasis added.) Although the test results are a public record, the underlying data,
bench notes, and testing materials that King requested access to are not.
{¶52} King further argues that disclosure of the results and records is mandatory
pursuant to R.C. 2953.81(), which provides that if DNA testing is performed based on
an application for DNA testing under R.C. 2953.73, “[t]he court or the testing authority
shall provide a copy of the results of the testing to the prosecuting attorney, the attorney
general, and the subject offender.” The record reflects that the 2009 DNA Laboratory
Examination Report was provided to King’s counsel, as required by R.C. 2953.81.
{¶53} In my view, King is essentially framing a discovery issue in the context of a
postconviction relief claim of actual innocence and an application for postconviction
DNA testing, and asking this court to order discovery. The postconviction relief statutes
— R.C. 2953.21 and 2953.23 — and the postconviction DNA testing statutes do not
provide for the discovery that King sought in his application for DNA testing, which
included, but not limited to, access to the testing results, testing materials, and
microscopic tissue slides from the autopsy and rape kit.
{¶54} The Ohio Supreme Court has never held that there is a right to discovery in
postconviction proceedings. State v. Broom, 146 Ohio St. 3d 60, 2016-Ohio-1028, 51
N.E.3d 620, ¶ 28, citing State ex rel. Love v. Cuyahoga Cty. Prosecutor’s Office, 87 Ohio
St.3d 158, 159, 718 N.E.2d 426 (1999); see State v. Harris, 8th Dist. Cuyahoga No.
103924, 2016-Ohio-4707, ¶ 7 (R.C. 2953.21 does not provide for discovery in preparation
for filing a petition for postconviction relief.). In Broom, the Ohio Supreme Court
explained that because R.C. 2953.21 is silent about discovery, the decision to grant or
deny a request for discovery rests with a trial court’s sound discretion. Id.
{¶55} The proper time for King to request access to or raise any discovery issues
regarding the testing results and materials was at the time of his trial. However, the
record reflects that King failed to do so. Because King requested these materials during
postconviction proceedings, rather than at the time of his trial, he did not have a right to
the materials through the exchange of discovery. Accordingly, I would overrule King’s
eighth assignment of error and find that the trial court did not abuse its discretion in
denying King’s request for access to the testing results and materials.
C. Evidentiary Hearing
{¶56} I respectfully disagree with the majority’s conclusion that the trial court
abused its discretion by denying King’s request for an evidentiary hearing.
{¶57} R.C. 2953.73(D) provides, in relevant part, “[t]he [trial] court is not required
to conduct an evidentiary hearing in conducting its review of, and in making its
determination as to whether to accept or reject, the application.” As noted above, we
review the trial court’s ruling on an application for DNA testing for an abuse of
discretion. Because an evidentiary hearing is not required, I do not believe that the trial
court acted unreasonably, arbitrarily, or unconscionably in denying King’s request for
one.
{¶58} For all of the foregoing reasons, I would find that the trial court did not
abuse its discretion by denying King’s 2015 application for DNA testing.
II. Successive Petition for Postconviction Relief
{¶59} Second, I respectfully disagree with the majority’s conclusion that the trial
court prematurely denied King’s petition for postconviction relief. In my view, King’s
actual innocence claim is barred by res judicata, and King is not entitled to relief under
R.C. 2953.23(A)(2).
{¶60} In his October 2010 petition for postconviction relief, King argued that the
2009 DNA testing results proved that he was actually innocent. The trial court denied
King’s petition. Furthermore, in King II, this court held that the 2009 DNA testing
results did not clearly and convincingly establish King’s actual innocence under R.C.
2953.23(A)(2). Id. at ¶ 19.
{¶61} Again, in his amended successive petition for postconviction relief, filed in
2015, King argued that the results of the 2009 DNA testing establish his actual innocence
by clear and convincing evidence. However, unlike his 2010 petition, King submitted
an affidavit, a letter, and trial testimony from experts to support his claim. King asserts
that the documents from Keel, Spitz, and Zielaskiewicz support the theory that an
unknown third party raped and murdered Hudson, and refute the trial testimony of the
state’s experts.
{¶62} The doctrine of res judicata applies to successive petitions for
postconviction relief. Natl. Amusements, Inc. v. Springdale, 53 Ohio St. 3d 60, 62, 558
N.E.2d 1178 (1990); State v. Apanovitch, 107 Ohio App. 3d 82, 87, 667 N.E.2d 1041 (8th
Dist.1995); McCann v. Lakewood, 95 Ohio App. 3d 226, 237, 642 N.E.2d 48 (8th
Dist.1994). Typically, res judicata bars claims that could or should have been raised at
trial or on direct appeal. However, res judicata also applies to foreclose a defendant
from presenting claims that could or should have been asserted in a first petition for
postconviction relief. See Apanovitch at id.
{¶63} In the instant matter, King’s actual innocence claim is not supported by any
new DNA evidence. In fact, the DNA evidence remains the same today as it was in
2009, and no additional DNA testing has been conducted since that time. Keel’s,
Spitz’s, and Zielaskiewicz’s opinions are not new evidence — they are merely new
opinions or interpretations regrading the state’s experts’ trial testimony. King could
have, and should have presented the experts’ opinions to support his 2010 postconviction
petition. However, King failed to do so.
{¶64} Thus, I believe that King’s actual innocence claim based on the opinions of
Keel, Spitz, and Zielaskiewicz is barred by res judicata. Accordingly, I would overrule
King’s first assignment of error.
III. Conclusion
{¶65} For all of the foregoing reasons, I would dismiss the appeal for lack of a
final appealable order. The trial court’s judgment entry denying King’s application for
DNA testing failed to include its reasons for the denial, as required by R.C. 2953.73(D).
Had the trial court’s judgment entry complied with R.C. 2953.73(D), however, I would
affirm the trial court’s judgment in all respects.
APPENDIX
Assignments of Error
1. A trial court’s denial of a petition for post-conviction relief without an evidentiary
hearing when that petitioner presents expert affidavits that directly challenge the scientific
validity of the testimony by the State’s trial experts and the State files nothing in response
violates R.C. 2953.21(E) and requires reversal.
2. The trial court erred when it denied petitioner’s successive petition for post-conviction
relief and his request for relief from judgment where the defendant presented evidence
establishing that he is actually innocent of the crime.
3. The trial court erred when it refused to grant relief where the defendant presented
unchallenged evidence establishing that the State’s case rested on false and misleading
trial testimony by its expert witnesses.
4. The trial court erred when it failed to grant relief based on an ineffective assistance of
trial counsel claim that was not previously pursued due to the ineffective assistance of
postconviction counsel.
5. The trial court erred when it failed to consider that the admission of the scientifically
unsupportable testimony of the State’s trial experts undermined the fundamental fairness
of his trial such that the defendant is entitled to relief based on due process.
6. The trial court erred when it failed to hold that the State violated the defendant’s due
process rights by refusing to provide exculpatory evidence at the time of trial and during
postconviction proceedings.
7. A denial of a request for a CODIS upload of a profile obtained during post-conviction
DNA testing violates R.C. 2953.74(E) and requires reversal.
8. The trial court erred when it did not order the State to produce to the defendant all of
the underlying data and materials generated during post-conviction DNA testing as
required by R.C. 2953.81(B).