State v. Dickerson , 2022 Ohio 298 ( 2022 )

[Cite as State v. Dickerson, 2022-Ohio-298.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109434
v. :
OSCAR DICKERSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: February 3, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-585521-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Russel S. Bensing, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Oscar Dickerson (“Dickerson”) appeals from the
trial court’s decision to grant plaintiff-appellee the state of Ohio’s (“the state”)
motion to reinstate his conviction, following the court’s denial of his motion to
dismiss for preindictment delay.1 For the reasons that follow, we affirm in part,
reverse in part, and remand.
Factual and Procedural History
This case is the latest in a series of appeals from Dickerson’s 2014
convictions for rape and kidnapping that stemmed from a 1994 incident. On May 15,
2014, Dickerson and his codefendant Michael Jenkins (“Jenkins”) were each
indicted on two counts of rape, one count of kidnapping, and two counts of
complicity.
The facts in this case have been completely and comprehensively set
out in State v. Dickerson, 2016-Ohio-807, 60 N.E.3d 699 (“Dickerson I”) and State
v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216 (8th Dist.) (“Jenkins II”). We
summarize below:2
The following facts were elicited at trial * * *. The victim, J.R., testified
that on July 2, 1994 * * * she was 16 years old. She had spent the day
and evening with her boyfriend at his house, drinking and smoking
marijuana. She left her boyfriend’s house some time after midnight to
walk home. Her boyfriend walked with her approximately halfway
home. She proceeded to walk the remainder of the approximately 40-
minute walk home alone.
When she was approximately ten minutes from her house, three males
in a car approached her and called out to her as the car drove past. The
car “circled back” a few times, and J.R. testified that she “waved them
off.” J.R. started to cut across an open area to avoid the car, but the car
pulled over near a library. J.R. testified that the car was driven by an
older white male. Two younger black males were also in the car.
1 This is a companion appeal to State v. Jenkins, 8th Dist. Cuyahoga No. 109421
(“Jenkins V”).
2 Jenkins II at ¶ 3-21
One of the younger men got out of the car and approached J.R., offering
her a ride home. She initially declined, but the young man persisted.
At approximately 1:30 a.m., J.R. ultimately got into the car and told the
men where she lived. J.R. testified that she was “not thinking” when
she got in the car; she also testified that she accepted the ride because
she was scared. The car proceeded to drive past her street. J.R.
testified that she again told the driver where she lived as they passed
her street, but she was ignored.
The car eventually pulled into a hotel parking lot. The driver of the car,
later identified as Jerry Polivka, got out of the car and proceeded to rent
a hotel room. A receipt indicated that the room was rented at
approximately 4:42 a.m. J.R. remained in the car with the other two
men, the then-18-year-old defendant-appellant Michael Jenkins and
his then-19-year-old codefendant Oscar Dickerson. J.R. testified that
she did not know the men, but they identified themselves as “Mike” and
“Oscar” or “O,” respectively.
When Polivka returned to the car, he drove to a back entrance of the
hotel, where Dickerson and Jenkins walked J.R. into a hotel room.
Polivka drove off, leaving J.R., Dickerson, and Jenkins at the hotel.
J.R. testified that she tried to think of a way to get out of the situation.
At one point, she asked to go outside to smoke a cigarette, hoping to
escape, but one of the young men accompanied her. J.R. accepted crack
cocaine from him to put on the end of her cigarette, which she testified
that she smoked in an attempt to “numb” herself for what she believed
“was going to happen.” Dickerson and Jenkins proceeded to have
vaginal intercourse with J.R. in the bathroom and bedroom of the hotel
room.
After both men had intercourse with J.R., she took a shower in the hotel
bathroom. When she returned to the living area of the hotel room,
Jenkins and Dickerson were asleep. J.R. took that opportunity to
escape from the hotel room and go home.
J.R. testified that when she got home, she tried to run upstairs to the
bathroom, but her mother confronted her and demanded to know
where she had been. J.R. then told her mother what had happened at
the hotel room.
J.R.’s mother testified that she was on the porch when J.R. returned
home that morning and that J.R., who usually avoided her, sat down
on the porch and looked like she wanted to talk. According to J.R.’s
mother, J.R. then voluntarily told her what had happened. J.R.’s
mother then called the police, who responded to the call at J.R.’s home.
Subsequently, J.R. went to the hospital and was treated for sexual
assault. The responding officers went to the hotel, where they found
Dickerson and Jenkins asleep in the hotel room. Both men were
arrested.
The police obtained the receipt for the hotel room from a hotel clerk.
The receipt identified Jerry Polivka as the individual who rented the
room. Polivka was named as a suspect in the initial report, but was
never contacted by the police in connection with this case.
After J.R. left the hospital, she went with her mother to meet with a
detective to discuss the incident. J.R. testified that the detective was
“very rude” and shared her opinion of the incident, leaving J.R. feeling
humiliated and prompting her to tell the detective to “forget it if she
wasn’t going to help.” J.R.’s mother, however, testified that the
detective was respectful.
Following this meeting, the detective noted in the case file that no
further investigation would take place.
Several days later, J.R. was walking to her boyfriend’s house when
someone she recognized as “Mike” pulled up alongside her in a car. J.R.
testified that Mike seemed angry and “forced” her to sign a note
recanting her statements about the incident. J.R. signed the note and
immediately reported this incident to the police. The police made an
intimidation report but never followed up on the incident.
J.R. testified that shortly after the July 2 events, she found out that she
was pregnant and did not follow up with the police because she wanted
to “get on with her life.”
On August 24, 2012, J.R.’s rape kit was submitted to BCI for DNA
testing as part of the Sexual Assault Kit Testing Initiative. DNA analysis
showed Dickerson’s DNA on vaginal and rectal swabs and Jenkins’s
DNA on the victim’s bathing suit bottoms. The detective assigned to
the case discovered that Polivka was deceased.
On May 15, 2014, Dickerson and Jenkins were each indicted on one
count of rape for vaginal intercourse, one count of rape for fellatio, two
corresponding counts of complicity to commit rape, and one count of
kidnaping. Both defendants pleaded not guilty to all charges.
On November 5, 2014, counsel for Dickerson filed a motion to dismiss
based on preindictment delay. Jenkins’s counsel did not file a similar
motion at this or any other point in the proceedings.
The docket in Dickerson’s case does not indicate a ruling on Dickerson’s
motion to dismiss. In his appeal to this court, Dickerson characterized
the motion as having been denied as untimely, and this court adopted
that characterization. Dickerson II at ¶ 2. A review of the transcript
shows that the trial court declined to consider the motion because it
was untimely.
A jury trial took place from November 12 to November 18, 2014. The
jury found both defendants guilty of one count of rape for vaginal
intercourse, one count of complicity for each other’s rape conviction,
and one count of kidnaping. The jury found both defendants not guilty
of the rape and complicity charges as they related to fellatio.
On December 29, 2014, the court sentenced Dickerson to five years in
prison on each count, to be served concurrently. This sentence was imposed under
Am.Sub.H.B. No. 86, the sentencing regime that became effective on September 30,
2011, and was in effect at the time of sentencing in 2014.
The state appealed, arguing that the trial court erred by ordering a
definite term of incarceration because Dickerson would have been subject to an
indefinite sentence under the sentencing regime as it existed at the time of the 1994
offense. Dickerson cross-appealed, arguing that the trial court erred in denying his
motion to dismiss for preindictment delay and that his trial counsel was ineffective
for not timely filing the motion. This court vacated Dickerson’s conviction, finding
that his counsel was deficient for not timely filing the motion to dismiss and that
there was a reasonable probability that it would have been granted had it been timely
filed, given that Dickerson “had a strong, viable claim of actual prejudice.”
Dickerson I at ¶ 43. The state appealed this decision to the Ohio Supreme Court,
and the Supreme Court vacated Dickerson I and remanded the case “for application
of State v. Jones, [148 Ohio St.3d 167,] 2016-Ohio-5105, [69 N.E.3d 688].” State v.
Dickerson, 146 Ohio St.3d 1493, 2016-Ohio-5585, 57 N.E.3d 1172.
On remand and after applying Jones, this court reached the same
conclusion, finding that Dickerson’s counsel was ineffective and stating, in relevant
part:
After consideration of this case, we find that Dickerson had a
reasonable probability of success in demonstrating actual and
substantial prejudice. The circumstances of this case are similar to the
circumstances in [State v.] Luck, [15 Ohio St.3d 150, 427 N.E.2d 1097(1984)] in that the defendants and the deceased [witness] were
together here for, at least part of, the alleged crimes. Polivka was a key
witness — he was with the victim for a number of hours during the
course of alleged crimes and the victim herself was unable to account
for that time. Thus, under the particular circumstances of this case, we
find that Dickerson had a reasonable probability of success in
demonstrating actual and substantial prejudice, the first prong of a
claim of preindictment delay.
Further, under the second part of the preindictment delay test, we find
that Dickerson would have had a reasonable probability of success on
his motion given the state’s reason for the delay.
State v. Dickerson, 8th Dist. Cuyahoga No. 102461, 2017-Ohio-177, ¶ 59-60
(“Dickerson II”).
The court in Dickerson II reversed Dickerson’s convictions. Id. at 64.3
3On March 24, 2016, codefendant Jenkins filed a delayed appeal arguing that his
trial counsel was ineffective for failing to file a motion to dismiss for preindictment delay
in the trial court. This court agreed and reversed Jenkins’s conviction. State v. Jenkins,
8th Dist. Cuyahoga No. 105226, 2018-Ohio-483. The Jenkins Court relied on the court’s
opinion in Dickerson II, stating that it “[agreed] with our prior decision in Dickerson II
that the unavailability of Jerry Polivka constitutes actual prejudice” and that there was no
justifiable reason for the state’s delay.
The state filed a motion for reconsideration, asking this court to
clarify the remedy. Specifically, the state asked this court to instruct the trial court
to “conduct a hearing on the motion for pre-indictment delay, and if denied to re-
enter the judgment of conviction.” Dickerson filed a brief in opposition, arguing that
Dickerson II had already determined that he suffered actual prejudice as a result of
preindictment delay, and therefore, “there is nothing more for the trial court to do
on remand than dismiss the case, in accordance with this court’s decision.” This
court summarily denied the state’s motion for reconsideration, and the case was
remanded to the trial court.
On remand, on October 24, 2017, Dickerson filed a motion to dismiss
the indictment based on the law of the case, arguing that the mandate in Dickerson
II rendered further proceedings unnecessary because this court reached a “legal
conclusion that Dickerson had been prejudiced by the preindictment delay, and that
the delay had been unjustifiable,” and therefore, a dismissal was required pursuant
to the law of the case.
The state opposed the motion to dismiss, arguing instead that the trial
court was obligated to hold a hearing on Dickerson’s motion to dismiss for
preindictment delay. On November 28, 2017, the trial court denied Dickerson’s
motion to dismiss based on the law of the case, distinguishing between this court’s
conclusion in Dickerson II that there was a “reasonable probability” that a timely
motion to dismiss for preindictment delay would have been granted and a
conclusion that it should have been granted.
On December 20, 2017, Dickerson filed a motion to dismiss for
preindictment delay. The state opposed the motion, and the court held hearings on
the motion on February 22 and May 3, 2018. At the hearings, the court took
evidence on the issue of preindictment delay in the form of trial transcripts and
heard arguments from counsel.
On June 4, 2018, the trial court denied Dickerson’s motion, finding
that Dickerson did not suffer prejudice due to the delay. The state then filed a
motion to reinstate Dickerson’s conviction. On July 6, 2018, the trial court denied
this motion. The state sought leave to appeal the denial of its motion, and this court
granted leave. Dickerson also appealed the trial court’s denial of his motion to
dismiss for preindictment delay. This court dismissed Dickerson’s appeal, finding
that the trial court’s denial of his motion to dismiss for preindictment delay was not
a final appealable order. State v. Dickerson, 8th Dist. Cuyahoga No. 107419, 2019-
Ohio-2736 (“Dickerson III”). Likewise, this court dismissed the state’s appeal,
finding that the trial court’s denial of the state’s motion to reinstate Dickerson’s
convictions was not a final appealable order. State v. Dickerson, 8th Dist. Cuyahoga
No. 107520, 2019-Ohio-2738 (“Dickerson IV”). The state appealed this court’s
decision in Dickerson IV, and the Ohio Supreme Court declined jurisdiction. State
v. Dickerson, 157 Ohio St.3d 1467, 2019-Ohio-4419, 133 N.E.3d 539.
On November 22, 2019, the state filed a motion to reconsider the
denial of its motion to reinstate Dickerson’s convictions. On November 25, 2019 the
trial court held a hearing on this motion. On December 31, 2019, the trial court
granted the state’s motion to reinstate Dickerson’s convictions. Its judgment entry
stated, in part:
[U]pon correcting the pretrial error by a full presentation and
consideration of the motions to dismiss, there were no proceedings
consistent with the appellate decisions left to conduct. If the motions
had been granted, the indictments against Jenkins and Dickerson
would simply have been dismissed by a judgment entry without further
proceedings. But the motions were denied and the error-free trial that
ordinarily would have followed such a denial has already taken place.
Therefore the only thing left is to reinstate the defendants’ convictions
without further proceedings because it is consistent with the decisions
by the court of appeals and with the jury’s decisions beyond a
reasonable doubt about the guilt of both defendants.
Dickerson now appeals and assigns the following two errors for
review:
Assignment of Error No. 1
The trial court erred in denying the Motion to Dismiss the Indictment
for Preindictment Delay, in derogation of Defendant’s right to Due
Process of Law, as protected by the Fourteenth Amendment to the
United States Constitution.
Assignment of Error No. 2
The trial court erred in reinstating Defendant’s conviction after that
conviction was reversed and remanded for error in denying
Defendant’s Motion to Dismiss the Indictment for Pre-Indictment
Delay.
Law and Analysis
In his first assignment of error, Dickerson argues that the trial court
erred in denying the motion to dismiss the indictment for preindictment delay. In
his second assignment of error, Dickerson argues that the trial court erred in
reinstating his conviction after that conviction was reversed and remanded.
In support of his first assignment of error, Dickerson argues that
pursuant to the law-of-the-case doctrine, this court’s prior decisions in Dickerson’s
case established that Dickerson had suffered actual prejudice from preindictment
delay. Therefore, according to Dickerson, the trial court’s denial of his motion to
dismiss for preindictment delay violated the law-of-the-case doctrine and ran afoul
of this court’s mandate in Dickerson II.
Dickerson’s attempt to distinguish the court’s opinion in Dickerson II
with State v. Carter, 8th Dist. Cuyahoga No. 91019, 2008-Ohio-6955, must fail. In
Carter, the court found that defense counsel was ineffective by failing to file a
motion to suppress statements the defendant had made to the police. Carter, 8th
Dist. Cuyahoga No. 91019, 2008-Ohio-6955, ¶ 23. The court further found that
because a motion to suppress was not filed, and no evidentiary hearing was held in
the trial court, the record did not reflect the circumstances under which the
defendant made the incriminating statements. Id. at ¶ 25. With critical information
absent from the record, the appellate court was unable to determine whether the
statements should have been suppressed and remanded the case for further
proceedings. Id. at ¶ 34. In Dickerson II, remand was necessary because our
determination of ineffective assistance of counsel included an analysis of
preindictment delay, but did not decide that issue.
The state argues that the trial court was correct when it determined
that this court’s “finding a reasonable probability that the motion would have been
granted is not the same as finding that it should have been granted.” We agree. As
the court in Dickerson III succinctly stated, “[u]nquestionably, an ineffective
assistance of counsel claim incorporates a different standard of review than that
applied to appellate review of a denial of the motion to dismiss for preindictment
delay.” Dickerson III at ¶ 28.
While we are mindful that the language in Dickerson II, and to an
even greater degree the 2018 Jenkins opinion,4 strongly signaled that the court
believed that had Dickerson’s counsel timely filed a motion to dismiss, it would have
been granted, this does not change the issue that the court decided in Dickerson II.
The discrete issue was whether Dickerson received ineffective assistance of counsel;
the court was not making an ultimate determination as to whether Dickerson had
suffered actual prejudice as a result of preindictment delay. The opinion in
Dickerson II, therefore, was constrained by the legal standard of whether there was
a “reasonable probability” that a timely motion to dismiss would have been granted.
The court in Dickerson II addressed the theoretical question of a
motion that had been neither timely filed nor fully litigated in the trial court. The
extent of the court’s deliberation on Dickerson’s untimely November 2014 motion
was whether there had been a legitimate reason for filing the motion mere days
before trial. At that time, the trial court did not take evidence or hear arguments
from either side as to the substantive basis for the motion. In light of this, and
despite this court’s statement that Dickerson had a “strong, viable claim of actual
4In Jenkins II this court opined in dicta that Jenkins had suffered actual prejudice
due to the period of preindictment delay. Jenkins II at ¶ 39.
prejudice,” the court in Dickerson II did not decide the underlying substantive legal
question of whether Dickerson suffered actual prejudice. Regardless of any
ambiguity in the mandate of Dickerson II, it is undisputed that the remand
ultimately provided the parties an opportunity to present new evidence and
arguments to satisfy their respective burdens related to the motion to dismiss. This
was an opportunity the parties did not have at the appellate level, as the scope of this
court’s review was limited to whether Dickerson had received effective assistance of
counsel. Therefore, the trial court neither violated the law-of-the-case doctrine nor
ran afoul of this court’s mandate in Dickerson II when it held a hearing on the
motion to dismiss on remand. In light of this subtle but significant distinction, we
disagree with Dickerson that the trial court’s decision violated the law-of-the-case
doctrine.
We now address whether the trial court erred in denying Dickerson’s
motion to dismiss for preindictment delay. Because we find Dickerson met his
burden in showing that he was prejudiced by the period of preindictment delay, we
agree with Dickerson to the extent that the trial court erred in its failure to find actual
prejudice by the preindictment delay. This court applies a de novo standard of
review to a trial court’s decision regarding legal issues in a motion to dismiss for
preindictment delay. State v. Jabbar, 8th Dist. Cuyahoga No. 109642, 2021-Ohio-
1191, ¶ 28, citing State v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664, 2016-
Ohio-5519, ¶ 12. Therefore, we will independently review the trial court’s decision
without any deference to its determination. Id., quoting State v. Clay, 2d Dist.
Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5. We do, however, afford deference to
the trial court’s findings of fact. Id., citing State v. Walker, 8th Dist. Cuyahoga No.
106414, 2018-Ohio-3669, ¶ 15. Therefore, we must accept the trial court’s factual
findings if they are supported by competent and credible evidence in the record. Id.,citing State v. Burnside, 100 Ohio St.3d 152, 2002-Ohio-5372, 797 N.E.2d 71, ¶ 8.
Although the Sixth Amendment to the United States Constitution on
its face provides no protection to those who have not been charged, “[w]hen
unjustifiable preindictment delay causes actual prejudice to a defendant’s right to a
fair trial, despite the state’s initiation of prosecution within the statutorily defined
limitation period, the Due Process Clause affords the defendant additional
protection.” State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688,
¶ 11, citing United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d
752 (1977). An unjustifiable delay between the commission of an offense and a
defendant’s indictment for committing that offense, which results in actual
prejudice to the defendant, is a violation of the right to due process of law under
Section 16, Article I of the Ohio Constitution and the Fifth and Fourteenth
Amendments to the United States Constitution. State v. Luck, 15 Ohio St.3d 150,
472 N.E.2d 1097 (1984), paragraph two of the syllabus.
Courts apply a two-part test to determine whether a delay in
prosecution has violated the defendant’s due process rights. The defendant bears
the initial burden of showing that they were substantially and actually prejudiced by
the delay. State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). If the
defendant establishes actual prejudice, the burden shifts to the state to produce
evidence of a justifiable reason for the delay. Luck, 15 Ohio St.3d at 154, 472 N.E.2d
1097, citing United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d
468 (1971).
A determination of actual prejudice involves a “delicate judgment”
and a case-by-case consideration of the particular circumstances involved. State v.
Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 20, citing State v.
Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting Marion,
404 U.S. at 325, 92 S.Ct. 455, 30 L.Ed.2d 468. Further, “a court must ‘consider the
evidence as it exists when the indictment is filed and the prejudice the defendant
will suffer at trial due to the delay.’” Id.The Ohio Supreme Court has repeatedly acknowledged the difficult
burden placed on defendants particularly because proof of prejudice is “always
speculative.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127,
¶ 100, citing United States v. Montgomery, 491 Fed.Appx. 683, 691 (6th Cir.2012),
quoting United States v. Rogers, 118 F.3d 466, 475 (6th Cir.1997). While
acknowledging the inherently speculative nature of actual prejudice arguments, the
court has also clarified that a successful claim of actual prejudice cannot be purely
speculative: “the mere possibility that ‘memories will fade, witnesses will become
inaccessible, or evidence will be lost is not sufficient to establish actual prejudice.’”
State v. Crymes, 8th Dist. Cuyahoga No. 104705, 2017-Ohio-2655, ¶ 16, quoting
Jones at ¶ 21. Nevertheless, a defendant is not required to establish precisely what
an unavailable witness would testify to, or that the testimony would be directly
exculpatory. Id., citing Jones at ¶ 27. Instead, actual prejudice exists when “missing
evidence or unavailable testimony, identified by the defendant and relevant to the
defense, would minimize or eliminate the impact of the state’s evidence and bolster
the defense.” Jones at ¶ 28, citing State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097(1984) at 157-158.
In denying Dickerson’s motion to dismiss for preindictment delay,
the trial court held that there is little doubt that Polivka would have “relevant
testimony” to offer. Despite this, though, the court found that it could not conclude
that this testimony would minimize or eliminate the state’s evidence or bolster the
defense. The court supported this conclusion primarily with the following findings:
1) Polivka likely would have been indicted with Dickerson and Jenkins and thus
unable to testify at trial; 2) nothing in the record supports the conclusion that
Polivka would contradict J.R.’s version of events; 3) even if Polivka contradicted
J.R.’s version of events, this is insufficient to establish actual prejudice because he
would be unable to testify about what happened in the hotel room. After thorough
review, we conclude that the evidence presented to the trial court contradicts this
holding.
We begin with the finding that Polivka likely would have been unable
to testify as a result of his status as a codefendant. The conclusion that Polivka would
have been unavailable as a witness is rejected. This conclusion is wholly
unsupported by competent and credible evidence in the record, contradicts
Dickerson II, and imposes a new burden on defendants in preindictment cases. The
court in Dickerson II resolved this argument when it was made by the state by
reasoning that, although one of the officers assigned to the case had a name and
address for Polivka, he made no attempt to contact him and did not consider him a
suspect. Dickerson II at ¶ 52. Without any attempt by law enforcement to contact
Polivka to speak with him, let alone indict him, there is no basis for concluding that
he would have been unavailable as a witness by virtue of his status as a codefendant.
Even if the court’s conclusion were supported by competent and credible evidence,
we are aware of no case in which a defendant is required to show not only that a
deceased witness would provide relevant testimony that would minimize the impact
of the state’s case, but also that the witness would be able to overcome any alleged
procedural barriers to testifying on the defendant’s behalf. The burden for a
defendant attempting to establish they suffered actual prejudice as a result of
preindictment delay is already “nearly insurmountable.” State v. Adams, 144 Ohio
St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 100. We decline to further heighten
this burden here.
Next, we will address the trial court’s second and third findings
together. With respect to the trial court’s finding that nothing in the record supports
the conclusion that Polivka could have provided a version of events that contradicted
J.R.’s, we find this to be a misapplication of the standard articulated by the Ohio
Supreme Court in Luck and Jones. In Luck, the Ohio Supreme Court found that the
defendant was prejudiced by a 15-year preindictment delay for murder. The court
balanced the alleged sources of actual prejudice — the death of two key witnesses,
the fading of memories and changing of appearances, and the loss of all of the
recorded interviews with potential witnesses compiled shortly after the murder —
against the other admissible evidence in the case and found that Luck had suffered
actual prejudice. Luck at 157. Specifically, the court found that even though the
state had circumstantial evidence linking Luck to the victim’s death, “it cannot be
said that the missing evidence or the dead witnesses would not have minimized or
eliminated the impact of the state’s circumstantial evidence.” Id.As with the missing witness in the instant case, Luck did not show
exactly what the missing witnesses would have testified to in support of her defense.
Instead, Luck merely argued that one witness, a friend who was allegedly in the
victim’s apartment when she was killed, “was the one person who could have helped
her in this matter but he is dead.” Id. Likewise, the other witness was a doctor who
allegedly treated Luck for a hand injury on or around the date of the murder. Luck
did not explain how exactly the doctor’s testimony would be relevant, let alone how
it would have bolstered her defense. Instead, the Ohio Supreme Court found that
Luck was “obviously prejudiced by not being able to seek verification of her story
from [her friend] and thereby establish mitigating factors or a defense to the charge
against her.” Id. at 158. When the court reiterated the relevant standard in Jones,
it looked to Luck, stating that Luck suffered actual prejudice “although there was no
record establishing what the witness would have actually testified to.” Jones at ¶ 25.
The Jones standard makes clear that a defendant’s arguments in
support of an actual prejudice claim cannot be based on “mere speculation” because
the theoretical possibility of lost evidence is insufficient to establish actual prejudice.
Id. at ¶ 27. In cases in which the defendant’s claims regarding lost evidence or
unavailable witnesses are entirely unsupported by the record, this court has
correctly found that those claims are too remote and speculative to establish actual
prejudice. For example, in a recent case, this court found that a defendant’s
arguments that law enforcement could have investigated the car in which he
allegedly raped the victim if he had been indicted at the time of the incident was
insufficient to establish actual prejudice where, according to the defendant’s own
trial testimony, he did not have a car at the time of the incident. State v. Danzy, 8th
Dist. Cuyahoga No. 109433, 2021-Ohio-1483, ¶ 25. The Danzy Court further held
that the unavailability of two unknown individuals who allegedly found the victim
and drove her to the hospital did not constitute actual prejudice because the
individuals were never identified, let alone identified as witnesses, and therefore
there was nothing in the record indicating what their unavailable testimony might
have offered to the defense. Id., citing State v. Knox, 8th Dist. Cuyahoga No. 107414,
2019-Ohio-1246, ¶ 37.
This is not a case where Dickerson’s actual prejudice is based on
unfounded or entirely speculative claims. Instead, this case closely resembles Luck.
Dickerson does not assert what exactly Polivka would have testified to at trial. Like
Luck, though, Dickerson has clearly shown that he was prejudiced because he was
unable to seek verification of his story from someone who was with him on the night
of the incident. Furthermore, Luck’s claim that one of the unavailable witnesses in
her case was present for the murder was unsubstantiated. Dickerson, however, has
pointed to evidence in the record, including the victim’s own testimony, showing
that Polivka was present when the victim first encountered the defendants, drove
them around, and ultimately rented the hotel room where the alleged rape took
place. Therefore, Dickerson’s claim that he suffered actual prejudice is significantly
stronger than Luck’s successful claim because it is corroborated by documentary
evidence and testimony in the record.
Further, we are cognizant of the unique nature of rape cases in the
context of preindictment delay. This court has noted that, “unlike other crimes of
violence, rape cases where consent is the only issue often turns on a credibility
contest between the accused and the accuser.” State v. Crymes, 8th Dist. Cuyahoga
No. 104705, 2017-Ohio-2655, ¶ 19. Recognizing the particular relevance of witness
credibility in this context, the Crymes Court found that missing phone records from
hours before the alleged rape in that case constituted actual prejudice because,
although the records obviously could not have provided direct proof of consent, they
“would help appellee verify his account of the event, thereby bolstering the defense.”
Id. at ¶ 20, citing Luck at 157-158 and Jones at ¶ 28.
Similarly, as in Dickerson II, we reach the same conclusion here.
While Polivka’s testimony almost certainly could not have provided an account of
what took place in the hotel room, he likely would have testified about how exactly
J.R. came to be in the backseat of his car and what transpired during the hours
between 1:30 a.m. when J.R. got in the car and 4:42 a.m. when Polivka rented a hotel
room for J.R. and the defendants. Likewise, as the court in Dickerson II noted,
Polivka was with the victim for a number of hours during the course of the alleged
crimes and the victim herself was unable to account for that time. Dickerson II at
¶ 59. If Polivka were able to provide an account of the stretch of several hours that
was not accounted for by J.R., this unquestionably would have minimized or
eliminated the impact of the state’s evidence by contradicting a significant aspect of
its key witness’s testimony. Finally, we note that Dickerson was also charged with
kidnapping. Arguably, this kidnapping began from the moment in which J.R.
entered the car and alleged that Polivka passed her street and continued driving
away from her house. We reiterate that a defendant is not required to show exactly
how lost evidence or unavailable testimony would support his case; nor is it required
that the evidence would have been directly exculpatory. State v. Crymes, 8th Dist.
Cuyahoga No. 104705, 2017-Ohio-2655, ¶ 16, quoting Jones at ¶ 27. Most
importantly, the defendant must show that the evidence would minimize or
eliminate the impact of the state’s case or bolster the defense. Jones at ¶ 28. With
that in mind, we find that it is entirely reasonable to conclude that Polivka, as the
person driving the car in which J.R. was kidnapped, certainly could have provided
testimony that this aspect of the incident was consensual, therefore bolstering
Dickerson’s defense. For these reasons, we find that Dickerson suffered actual
prejudice as a result of the nearly 20-year preindictment delay.
Succinctly, there is no doubt that the lengthy delay between the
allegation and the indictment prejudiced Dickerson’s defense. After considering the
evidence as it existed when the indictment was filed, we find that Dickerson was
prejudiced by the 20-year delay. Dickerson established that he was actually and
substantially prejudiced by the death of Polivka whose testimony could have
bolstered his defense as to all charges and undermined the state’s case with respect
to the rape by calling into question the issue of consent and the credibility of J.R.
Having determined that Polivka’s death created actual prejudice were Dickerson to
stand trial today, we now turn our attention to the second prong of the analysis, the
state’s reason for the delay.
In the instant case, the trial court elected not to rule on the second
prong. Having found that Dickerson failed to prove prejudice, the trial court
determined that it was unnecessary to address whether the state had a justifiable
reason for the delay noting:
Because prejudice hasn’t been proved it is not necessary to make a
finding of whether the delay from the crime until the indictment was
justified. Nevertheless, because of the possibility that prejudice would
be found the parties made a full record of the evidence and their
respective arguments in support of their competing claims that delay
was or was not justified.
Even though the trial court noted there was a full record made of the
parties’ respective arguments, we are restricted in our review by two well-settled
principles of appellate review:
First, under Article IV, Section 3(B)(2) of the Ohio Constitution,
appellate courts have jurisdiction to “review and affirm, modify, or
reverse judgments or final orders of the courts of record inferior to the
court of appeals within the district.” * * * Second, an appellate court
limits review to issues actually decided by the trial court in its
judgment. See Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 89, 585
N.E.2d 384 (1992) (declining to rule on issue not decided by trial
court.)
(Emphasis added.) Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51
N.E.3d 593, ¶ 21.
Having determined there was no actual prejudice, it was unnecessary
for the trial court to address the second prong of the preindictment delay test.
Although the record is complete before us, the decision on the second prong remains
the province of the trial court. Therefore, we cannot address it.
Accordingly, we sustain the first assignment of error in part and
overrule it in part. The trial court erred in finding that Dickerson was not prejudiced
by the period of preindictment delay. However, we affirm the trial court’s decision
not to address the reason for the delay because that was the appropriate decision
under preindictment-delay analysis when a court does not find prejudice. As we
have found prejudice, we sustain the first assignment of error and remand the case
for the trial court to conduct the second prong of the review.
In the second assignment of error, Dickerson argues that the trial
court erred in reinstating his convictions. Based on our resolution of the first
assignment of error, where we found actual prejudice and remanded to the trial
court to complete the second prong of the test for prejudicial preindictment delay,
we decline to address the second assigned error because it is not yet ripe for review.
Judgment affirmed in part, reversed in part, and remanded for
proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
EMANUELLA D. GROVES, JUDGE
MARY EILEEN KILBANE, J., CONCURS IN PART AND DISSENTS IN PART
(WITH SEPARATE OPINION ATTACHED);
SEAN C. GALLAGHER, A.J., DISSENTS (WITH SEPARATE OPINION
ATTACHED)
MARY EILEEN KILBANE, J., CONCURRING IN PART AND DISSENTING IN
PART:
I respectfully concur in part and dissent in part from the majority
opinion. I agree with the majority’s conclusion that Dickerson established that he
suffered actual and substantial prejudice as a result of the nearly 20-year
preindictment delay in this case. I disagree with the majority’s conclusion that we
are precluded from addressing the second prong of the preindictment delay test
concerning whether the state had a justifiable reason for the delay.
This is the fifth appeal in which this court has directly or indirectly
addressed Dickerson’s claim of preindictment delay. This court has consistently
held that “Dickerson had a strong, viable claim of actual prejudice.” State v.
Dickerson, 2016-Ohio-807, 60 N.E.3d 699, ¶ 43 (“Dickerson I”). This holding was
based primarily on the unavailability of a key witness, Jerry Polivka. Id. Similarly,
on remand from the Ohio Supreme Court for application of State v. Jones, 148 Ohio
St.3d 167, 2016-Ohio-5105, 69 N.E.3d 388, this court found that Dickerson “had a
reasonable probability of success in demonstrating actual and substantial
prejudice.” State v. Dickerson, 8th Dist. Cuyahoga No. 102461, 2017-Ohio-177, ¶ 59-
60 (“Dickerson II”). In the case of codefendant Jenkins, this court went further,
“[agreeing]” with the decision in Dickerson II “that the unavailability of Jerry
Polivka constitutes actual prejudice.” State v. Jenkins, 2018-Ohio-483, 106 N.E.3d
216 (8th Dist.) (“Jenkins II”). Despite this court’s finding of actual prejudice, the
trial court on remand ignored the analysis from multiple panels of this court in
addressing the issue of preindictment delay.
The majority in Dickerson II placed particular emphasis on the fact
that Polivka would have been able to testify as to what occurred during the almost
three-hour period that the victim was completely unable to remember, noting that
this was concerning to at least one juror at trial. Dickerson II at ¶ 50. The victim
was the state’s key witness at trial. She testified that at the time of the alleged rape,
she had been “living recklessly,” and that on the day of the incident, she had been
drinking and smoking and was under the influence. Id. at ¶ 7. Although the timeline
presented by the state at trial was based largely on the victim’s recollection of events,
the victim was unable to recall what exactly happened between approximately 1:30
a.m., when she accepted a ride from Polivka, who was driving with Dickerson and
Jenkins as passengers, and 4:42 a.m., when the hotel receipt showed that Polivka
rented a hotel room for the victim and defendants. At a minimum, Polivka’s
testimony would have filled in a considerable gap in the sequence of events as they
were presented at trial.
State v. Luck, 15 Ohio St.3d 150, 157, 472 N.E.2d 1097 (1984),
remains binding precedent on Ohio courts in preindictment delay cases. In the
instant case, Dickerson presents a significantly stronger claim of actual prejudice
than the appellant in Luck. In Luck, the Ohio Supreme Court found that the
defendant was prejudiced by a 15-year preindictment delay for murder. The court
balanced the alleged sources of actual prejudice — the death of two witnesses, the
fading of memories and changing of appearances, and the loss of all of the recorded
interviews with potential witnesses compiled shortly after the murder — against the
other admissible evidence in the case and found that Luck had suffered actual
prejudice. State v. Luck, 15 Ohio St.3d 150, 157, 472 N.E.2d 1097 (1984).
Specifically, the court found that even though the state had circumstantial evidence
linking Luck to the victim’s death, “it cannot be said that the missing evidence or the
dead witness would not have minimized or eliminated the impact of the state’s
circumstantial evidence.” Id.Unlike Dickerson, Luck confessed to killing the victim in self-defense
on the day of her arrest.5 Luck’s version of events did not dispute the fact that she
killed the victim; Luck essentially asserted that she killed the victim in self-defense.
This is analogous to the instant case, in which Dickerson does not contest that he
had a sexual encounter with the victim, but his theory of the case throughout trial
and numerous appeals has been based on the notion that the encounter was entirely
consensual.
As with the missing witness in the instant case, Luck did not show
exactly what the missing witnesses in her case would have testified to in support of
her defense, nor was she required to have done so. Instead, Luck merely argued that
one witness, a friend who was allegedly in the victim’s apartment when the victim
was killed, “was the one person who could have helped her in this matter but he is
dead.” Id. The other witness was a doctor who allegedly treated Luck for a hand
injury on or around the date of the murder. Luck did not explain how exactly the
doctor’s testimony would be relevant, let alone how it would have bolstered her
defense. Reviewing Luck’s claim, the Ohio Supreme Court found that Luck was
“obviously prejudiced by not being able to seek verification of her story from [her
friend] and thereby establish mitigating factors or a defense to the charge against
her.” Id. at 158. When the court reiterated the relevant standard in Jones, it looked
to Luck, stating that Luck suffered actual prejudice “although there was no record
5 Although the Ohio Supreme Court ultimately determined that Luck’s confession
was obtained in violation of her Sixth Amendment rights, it considered her claim of actual
prejudice amounting to preindictment delay in the context of the alleged confession.
establishing what the witness would have actually testified to.” State v. Jones, 148
Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 25.
Unlike Luck, Dickerson is able to point to specific evidence in the
record requiring a conclusion that Polivka’s testimony would not only be relevant, it
would minimize or eliminate the impact of the state’s evidence and bolster
Dickerson’s defense. Where Luck’s claim of actual prejudice was based on her
unsupported assertions that the missing witnesses’ testimony would have been
helpful to her at trial, Dickerson’s claim of actual prejudice is supported by evidence
in the record, including the victim’s own testimony. It is undisputed that Polivka
was with the victim and defendants on the night of the incident. Evidence in the
record, such as the victim’s testimony and the hotel receipt, establishes that Polivka
picked up the victim, drove the victim and defendants to a hotel, and rented a room
for the victim and defendants.
The Jones standard makes clear that a defendant’s arguments in
support of an actual prejudice claim cannot be based on “mere speculation” because
the theoretical possibility of lost evidence is insufficient to establish actual prejudice.
Id. at ¶ 27. In cases in which the defendant’s claims regarding lost evidence or
unavailable witnesses are entirely unsupported by the record, this court has
correctly found that those claims are too remote and speculative to establish actual
prejudice. State v. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-Ohio-1483, ¶ 25.
We reiterate, however, that this is not a case where Dickerson’s actual prejudice is
based on unfounded or entirely speculative claims. Dickerson does not assert, and
there is no way of knowing, what exactly Polivka would have testified to at trial. Like
Luck, though, Dickerson has clearly shown that he was prejudiced because he was
unable to seek verification of his recollection of events from someone who was with
him on the night of the incident. Luck had nothing but her word to support her
claim that one of the unavailable witnesses was present for the murder and therefore
would have had relevant testimony. Dickerson, however, has pointed to evidence in
the record, including the victim’s own testimony, showing that Polivka was present
when the victim first encountered the defendants, drove them around, and
ultimately rented the hotel room where the alleged rape took place. Thus, while
Polivka of course would not have been able to testify as to whether the sexual
encounter was consensual, he would have been able to provide essential testimony
as to his impression of the victim throughout the entire hours-long encounter, his
relationship with the defendants, the nature of the interaction between the victim
and the defendants, and his reason for renting a hotel room for the victim and
defendants. Therefore, Dickerson’s claim that he suffered actual prejudice is
significantly stronger than Luck’s successful claim because it is corroborated by
documentary evidence and testimony in the record.
In the instant case, Dickerson has repeatedly emphasized that not
only was Polivka present for at least part of the incident in question, Polivka could
likely have presented an account of the several hours of which the victim has no
memory. Polivka also could have testified as to how and why the victim got into his
car in the first place, as well as why he drove the victim and defendants to a hotel
and rented a room for them. In providing such an account, Polivka’s testimony
would have “minimized or eliminated the impact of the state’s evidence” by
contradicting significant aspects of the state’s key witness’s testimony and therefore
undermining the victim’s version of events. Polivka’s testimony likewise would have
“bolstered the defense” by verifying Dickerson’s account of events — that the sexual
encounter was consensual. With respect to consent, an essential element of the rape
offense to be established beyond a reasonable doubt, the state’s case rested entirely
on the victim’s own testimony. Any evidence that could have undermined the
victim’s credibility at trial would have had an impact on the outcome of this case. It
is not for this court to determine whether such missing or unavailable evidence
would have resulted in a not guilty verdict at trial. We are instead tasked with
determining whether the evidence would “minimize or eliminate the impact of the
state’s evidence and bolster the defense.” State v. Jones, 148 Ohio St.3d 167, 2016-
Ohio-5105, 69 N.E.3d 688, ¶ 28. Applying this standard to the facts of this case, I
believe it is clear that Dickerson has established actual prejudice. For these reasons,
I agree with the majority’s conclusion that Dickerson satisfied the first prong of
preindictment delay by establishing that he suffered actual prejudice.
I disagree, however, with the majority opinion’s conclusion that we
are precluded from determining whether the state has established a justifiable
reason for the delay, and its subsequent conclusion that a remand is required for the
trial court to conduct an additional review of this issue.
In this case, we are reviewing the trial court’s decision on a motion to
dismiss for preindictment delay. This court applies a de novo standard of review to
a trial court’s decision regarding legal issues in a motion to dismiss for
preindictment delay. State v. Jabbar, 8th Dist. Cuyahoga No. 109642, 2021-Ohio-
1191, ¶ 19, citing State v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664, 2016-
Ohio-5519, ¶ 12, citing State v. Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951
N.E.2d 814 (12th Dist.). “‘De novo review requires an independent review of the trial
court’s decision without any deference to the trial court’s determination.’” Id.,quoting State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5. Here, as
the majority notes, the trial court incorrectly determined that Dickerson had not
suffered actual prejudice. Based on this incorrect conclusion, the trial court’s
analysis did not include a determination as to whether the state’s delay was
justifiable. This court’s review, however, necessarily encompasses both prongs of
the preindictment-delay analysis. In deciding the motion to dismiss, the trial court
heard evidence and arguments as to both prongs of preindictment delay. Our review
of the trial court’s decision, therefore, can and should address both prongs of
preindictment-delay. For these reasons, I do not believe that it is necessary to
remand the case for the trial court to address the second prong.
Because I believe that our review in this case encompasses both
prongs of the preindictment-delay analysis, I would find that with respect to the
second prong, the state was unable to explain, let alone justify the delay in this case.
The state asserts that the reasons for the nearly 20-year delay were “investigative.”
Nevertheless, the state does not dispute that between 1994, when the men in this
case were identified and arrested in the hotel room in which the alleged rape took
place, and 2012, when the victim’s rape kit was tested for DNA, no investigation took
place. Likewise, it is undisputed that no investigation took place despite authorities
having collected physical evidence, identifying and arresting the men, and
identifying a critical witness within hours of the incident. This was not a cold case,
in which an unknown perpetrator committed a crime and the state had no
investigative leads or physical evidence connecting the crime to a suspect. The state
had ample physical evidence and had both men in custody for several days
immediately following the incident and then chose to release them and not pursue
the case, doing nothing for nearly 20 years.
Additionally, I am not persuaded by the state’s assertion that the
Cleveland Police Department “did not do DNA testing” in 1994. There is a
significant difference between arguing that DNA testing did not exist or was
unavailable and arguing that it was simply not done. Further, unlike cases in which
the suspect’s identity is unknown, it is unclear exactly why the DNA testing done in
this case was as critical as the state seems to imply, given that the young men were
found sound asleep in the hotel room, arrested, and kept in police custody for days
before they were released and the investigation ceased. Even if the DNA testing was
critical, however, this only supports a conclusion that the delay in this case was the
result of negligence or error in judgment. Rather than testing the victim’s rape kit
in 1994 to obtain this critical evidence, the state elected to close the investigation in
the case entirely.
Finally, to the extent that the state argues that the delay was, at least
in part, a result of J.R.’s unwillingness to cooperate, a review of the record easily
contradicts this argument. I acknowledge that J.R. did not choose to pursue the
matter. If the reason for closing the investigation in 1994 was because the victim
expressed a desire not to pursue the case, however, the state seems to have entirely
disregarded this desire in 2012 when it decided to reopen the investigation without
any input from the victim, let alone any indication that she had a change of heart as
to whether or not to pursue the matter 18 years later. For these reasons, I would
find that the state has not satisfied its burden of showing that the preindictment
delay in this case was justifiable. Additionally, I would note that Dickerson, the state
of Ohio, and the alleged victim in this case are all entitled to some measure of
finality, and this will not be achieved by ordering yet another remand.
Therefore, I would find that the trial court erred in denying
Dickerson’s motion to dismiss for preindictment delay and in reinstating his
conviction. I would accordingly reverse the judgment of the trial court and vacate
Dickerson’s convictions. For these reasons, I respectfully concur in part and dissent
in part.
SEAN C. GALLAGHER, A.J., DISSENTING:
I respectfully dissent from the majority’s conclusion that Jenkins and
Dickerson were prejudiced by the preindictment death of Polivka. I understand the
majority’s decision, but I come to a different conclusion as I did in my separate
concurring opinion in State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216 (8th Dist.)
(“Jenkins II”), which referenced the dissent in State v. Dickerson, 8th Dist.
Cuyahoga No. 102461, 2017-Ohio-177 (“Dickerson II”), asserting that no prejudice
was shown in these cases. Although, in dicta, I disagreed with the Dickerson II
majority’s view that expressed prejudice was in play, I felt bound by the Dickerson
II opinion on the question of ineffective assistance of counsel. Thus, I concurred
with the outcome in Jenkins II.
In my view, these cases underscore an argument that the standard for
determining prejudice outlined in State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-
3954, 45 N.E.3d 127, ¶ 100, and State v. Luck, 15 Ohio St.3d 150, 157-158, 472 N.E.2d
1097 (1984), are at times unworkable and invite inconsistent outcomes. This view
is particularly prevalent in cases where the identity of the offender was known at the
time of the alleged crime and no prosecution was initiated. Those circumstances
seem to cause the factual analysis on prejudice to take on a different and murky
context.
In the present case, Polivka was not present during the commission
of the rapes committed by the then 21- and 22-year-old men against the 16-year-old
victim. And even if Polivka possessed exculpatory evidence, a speculative fact yet to
be established, Polivka’s death precluded his being named as a codefendant for his
conspiratorial conduct underlying the kidnapping convictions. In the appropriate
parlance, Polivka was not available to testify before the preindictment delay so that
his death was not the cause of his unavailability at trial. It is well settled that the
defendant must not only show the exculpatory nature of the missing evidence, but
must also demonstrate that the witness would have been available to testify but for
the preindictment delay. See, e.g., United States v. Bouthot, 685 F.Supp. 286, 298
(D.Mass.1988) (defendant failed to establish that the codefendant would have
testified at trial, and therefore, failed to show prejudice from the codefendant’s
unavailability); United States v. Stierwalt, 16 F.3d 282, 285 (8th Cir.1994) (noting
in overruling the claim of preindictment delay that the defendant failed to prove that
the codefendant would have testified at the defendant’s trial).
There are only three factual scenarios here: (1) Polivka would have
been indicted as a codefendant for his aiding Jenkins and Dickerson in the
kidnapping of the victim, and therefore Polivka was not “available” to testify just as
neither Jenkins nor Dickerson was available to testify at the other’s trial through the
assertion of their Fifth Amendment rights; (2) Polivka could provide exculpatory
evidence on the kidnapping charge in the attempt to avoid prosecution for his
involvement, the same as Jenkins and Dickerson could provide for each other, but
Polivka cannot testify to any events during the rapes; or (3) Polivka had
incriminating information to be offered in exchange for a plea in which case his
unavailability benefited Jenkins and Dickerson. Importantly, none of those
scenarios entitle Jenkins or Dickerson to a dismissal for preindictment delay.
The majority maintains that Polivka’s status as a codefendant should
not preclude a finding of prejudice because
we are aware of no case in which a defendant is required to show not
only that a deceased witness would provide relevant testimony that
would minimize the impact of the state’s case, but also that the witness
would be able to overcome any alleged procedural barriers to testifying
on the defendant’s behalf.
State v. Dickerson, 8th Dist. Cuyahoga No. 109434, ¶ 25; but see Bouthot at 298;
Stierwalt at 285; United States v. Hofstetter, E.D.Tenn. No. 3:15-CR-27-TAV-CCS,
2018 U.S. Dist. LEXIS 59058, at 11 (Jan. 3, 2018) (the codefendant’s unavailability
was not prejudicial since the defendant could call the remaining codefendants to
confirm his story); State v. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-Ohio-1483,
¶ 25 (evidence was not available immediately after the crime and, therefore, could
not constitute prejudice under the preindictment-delay analysis). Thus, I cannot
agree with the majority that Dickerson demonstrated prejudice because he was
“unable to seek verification of his story from someone who was with him on the night
of the incident.”
Under the majority’s proposition, that a codefendant’s reluctance to
testify is not considered, Polivka’s unavailability is immaterial. Jenkins and
Dickerson could provide the missing testimony since both were undisputedly
present during the entire criminal event — more so than Polivka, who was not
present during the actual commission of the crime for which Dickerson and Jenkins
were convicted. See, e.g., Hofstetter (the codefendant’s unavailability was not
prejudicial since the defendant could rely on the remaining codefendants to confirm
his story). According to the majority’s rationale, Dickerson and Jenkins have
someone who was present to seek verification of their stories despite Polivka’s death.
Id.Since the majority’s analysis depends on the fact that the state may
not rely on the witness’s status as a codefendant to establish the unavailability of the
testimony before the delay, then fairness and every other notion of due process
dictate that Jenkins and Dickerson cannot hide behind their status as codefendants
to provide Polivka’s missing testimony for each other. The death of a witness
constitutes prejudice only “‘if the defendant can identify exculpatory evidence that
was lost and show that the exculpatory evidence could not be obtained by other
means.’” State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 26,
quoting State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 103;
Hofstetter. Jenkins and Dickerson have not met their burden to demonstrate that
Polivka’s testimony would have aided their defenses, even if we ignore the fact that
Jenkins and Dickerson could provide each other the missing evidence. Dickerson II
at ¶ 73 (Stewart, J., dissenting).
There is no additional burden here. All defendants claiming
preindictment delay must demonstrate that the testimony or evidence would have
been available at an earlier trial and are unavailable solely based on the
preindictment delay. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-Ohio-1483, at
¶ 25. This necessarily means that if a codefendant is deceased or unavailable
through the passage of time, the defendant asserting preindictment delay must
demonstrate that a codefendant would have testified at the other’s trial or that no
other codefendant could offer the same evidence. Bouthot; Hofstetter; Stierwalt.
Jenkins and Dickerson’s claims both fail here because each could have provided the
other the same evidence Polivka could have offered and his credibility was no better
given his involvement in the kidnapping.
Although I disagree that a remand is necessary in this case, the lead
opinion’s remand to permit the trial court to review the second prong of the
prejudice analysis is the correct course of action. Nevertheless, I dissent from the
majority’s decision to reverse. I would affirm the trial court in every respect.