State v. Sheppard

• Decision Date: 20 July 1955
• Citation: 128 N.E.2d 504,100 Ohio App. 399
• Parties: , 60 O.O. 332 STATE of Ohio, Plaintiff Appellee, v. Samuel H. SHEPPARD, Defendant Appellant.
• Court: Ohio Court of Appeals

Page 399

100 Ohio App. 399

128 N.E.2d 504, 60 O.O. 332

STATE of Ohio, Plaintiff Appellee, v. Samuel H. SHEPPARD, Defendant Appellant.

Court of Appeals of Ohio, Cuyahoga County.

July 20, 1955.

Page 398

Frank T. Cullitan, County Prosecutor, Saul S. Danaceau, Asst. County Prosecutor, Thomas J. Parrino, Asst. County Prosecutor, Cleveland, for plaintiff appellee.

Corrigan, McMahon & Corrigan, Fred W. Garmone, Arthur E. Petersilge, Cleveland, for defendant appellant.

KOVACHY, Presiding Judge.

Samuel H. Sheppard was convicted of murder in the second degree by a jury in the Common Pleas Court of Cuyahoga County and sentenced to life imprisonment in the Ohio State Penitentiary. He appealed that conviction and judgment to this Court in State of Ohio v. Sheppard, Case No. 23400, which judgment has been affirmed and opinion filed 128 N.E.2d 471, dealing with the claimed errors in that appeal.

This is a separate appeal emanating from that cause on the sole ground that there is error in the record and proceedings in the Court of Common Pleas of Cuyahoga County prejudicial to the rights of the defendant in overruling his motion for a new trial on the ground of newly discovered evidence.

The motion reads:

'Now comes the defendant, and moves for a new trial on the ground of newly discovered evidence material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial, and the defendant further requests that an oral hearing be had on this motion.'

The defendant produced at the hearing on this motion, in support thereof, the affidavits of the witnesses by whom such evidence was expected to be given and the prosecuting attorney produced affidavits to impeach the affidavits of such witnesses, all in accordance with subparagraph (F) of Section 2945.79 of the Revised Code of Ohio.

There were filed by the defendant:

Affidavit N.D.E. 1 made by Samuel H. Sheppard. It deposes that he is right handed.

Affidavit N.D.E. 2 made by Arthur E. Petersilge, one of counsel for defendant. It sets forth that, on several occasions during the trial, he sought delivery to the defendant of the keys to the home of the defendant and his murdered wife, and that such request was refused by the office of the County Prosecuting Attorney until December 23, 1954--two days following the rendition of the verdict by the jury.

Affidavit N.D.E. 3 made by Stephen A. Sheppard, brother of defendant. It sets forth that he received the keys to the defendant's home on December 23, 1954; that without using them for any purpose, he turned them over shortly to his brother, Richard N. Sheppard.

Affidavit N.D.E. 4 made by Richard N. Sheppard, brother of defendant. It sets forth that he is administrator of the estate of the deceased Marilyn Sheppard; that he received the keys from Stephen A. Sheppard on December 23, 1954 and that on January 23, 1955, he made the premises (scene of the murder) available to Dr. Paul Kirk and that Dr. Kirk examined the premises on January 23rd and 24th. Affiant says that there was no change of any kind made in the interior of the dwelling from the time he received the keys until after completion of investigation and examination within the dwelling by Dr. Kirk.

Affidavit N.D.E. 5 made by Dr. Virgil E. Haws. an Osteopathic Physician and Pathologist. He states he visited the home (scene of the murder) on February 12, 1955, accompanied by Dr. Richard Sheppard, Dr. Stephen Sheppard and Reverend Robert G. Scully, Pastor of the Rocky River Methodist Church. He states that the purpose of the visit was to remove two blood spots from the wardrobe or closet door on the east wall of the bedroom which was the scene of the murder. He described in careful detail how that purpose was accomplished and states that the spots were placed in separate bottles and sealed in a mailing tube and handed to Reverend Scully, marked Spot 'A' and Spot 'B.'

Affidavit N.D.E. 6 made by Reverend Robert G. Scully. He corroborates the recital of Dr. Haws as to the removal of the blood spots; states the mailing tubes were then and there sealed and handed to him; that he mailed them to Dr. Paul Kirk, Berkeley, California, on February 14, 1955.

Affidavit N.D.E. 7 made by Dr. Paul Leland Kirk, an authority on Criminalistics, who is at present in charge of the School of Criminology of the University of California. We shall consider its contents later.

Affidavit N.D.E. 8 made by William J. Corrigan, one of counsel for defendant, in rebuttal to the affidavit made by Dr. Marsters for the State and received by telephone from Dr. Kirk. It is in reply to Dr. Marsters' affidavit. We shall consider its contents later.

There were filed by the State:

Affidavit N.D.E.--A made by Saul S. Danaceau, Assistant County Prosecuting Attorney. He states that in November 1954, there were discussions touching the subject of turning over the keys to the house to Dr. Richard A. Sheppard, fatherin-law of Marilyn Sheppard, deceased, and the then executor of her estate and that the request was denied. He also states that from the time the Prosecuting Attorney or his assistants entered into the case in July 1954 to the present time (April 1955):

'he does not know of any instance where the defense was denied a request to inspect the said home or to make any investigation therein.'

Affidavit N.D.E.--B made by Dr. Samuel R. Gerber, Coroner of Cuyahoga County. He states that in October 1954, Fred Garmone, of counsel for the defendant, visited his office and there, in the presence of Thomas Parrino, an Assistant Prosecuting Attorney, inspected a large number of articles which were held for evidence and which came from the house in which the deceased was murdered. The articles are listed in detail under captions: Bedding from bed of victim; Clothing of victim, Marilyn Sheppard; Clothing of Dr. Sam Sheppard, in 'Hallmark' box. He also states that counsel was shown a model of the head of the victim and made notes of his view of said articles and model.

Affidavit N.D.E.--C made by Leona Phalsgraff and Raymond Keefe, Secretary and Property Custodian, respectively, of the Coroner's office. They assert that Dr. Anthony J. Kazlauckas, a former Deputy Coroner of the County, visited the Coroner's office in October 1954 and, on behalf of the defendant, was permitted to examine all the items which were examined by Mr. Garmone, as set forth in the Coroner's affidavit, and that Dr. Kazlauckas further examined:

Autopsy protocol, Case 76629 (M. 7280) Marilyn Sheppard Conclusions from Laboratory findings.

X-rays of Marilyn Sheppard, Case 76629 taken at Coroner's office.

Affidavit N.D.E.--D made by Dr. Roger W. Marsters in charge of the Maternity Rh Laboratory at the University Hospitals in Cleveland (a clinical laboratory). We shall consider its contents later.

The bill of exceptions of the trial of the principal cause, totaling 7102 pages, a supplemental bill containing 206 pages and a great number of exhibits in Case No. 23400 were also filed in this appeal. The facts therein are set forth in the opinion rendered in that case. 128 N.E.2d 471. These two appeals have been considered and decided simultaneously.

The proceedings in the trial court were had under authority of Section 2945.79, Revised Code of Ohio, which reads in part:

'A new trial, after a verdict of conviction, may be granted on the application of the defendant for any of the following causes affecting materially his substantial rights:

'(A) * * *

'(B) * * *

'(C) * * *

'(D) * * *

'(E) * * *

'(F) When new evidence is discovered material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial. * * *'

The allowance of the new trial, as set forth in the Statute above, is bottomed on the proposition that the new evidence uncovered could not have been discovered and produced at the trial by the exercise of reasonable diligence. This is a basic and necessary requirement under the law. If it were otherwise, a defendant might well take a languorous attitude toward the trial of his case, be indolent in the marshalling of defensive evidence and decide to take his chances on the state being unable to prove him guilty beyond a reasonable doubt and even be so bold as to hold testimony in his behalf in reserve to be used as grounds for another trial in case he be found guilty.

'A person indicted for a crime and on trial cannot be allowed to speculate upon the outcome of his trial and to hold back evidence which he may easily procure, with the hope and expectation that, should the proof against him be more convincing than he anticipates, he can put the state to the additional expense of another trial, at which the evidence that he has suppressed can be introduced. The law favors a full discovery of all relevant evidence which has a bearing upon the criminality of the defendant. It will not permit the accused to mask his batteries, and, having thus drawn all the fire of the prosecution, he cannot, after having been convicted, take the chances of a new trial in which everything would be in his favor.' Underhill's Criminal Evidence, Fourth Edition, pages 1507 and 1508.

The Supreme Court in Domanski v. Woda, 132 Ohio St. 208, 6 N.E.2d 601, states the law in paragraphs three and four of the syllabus as follows:

'3. Newly discovered evidence is other than that which might have been known before the termination of a trial had due diligence been used.

'4. Where during the trial of a case a party is given reasonable cause to believe that favorable and available evidence of a material nature exists, it is his duty, in the exercise of due diligence, to ask for a continuance, if necessary, to investigate, and to produce such evidence, if found. Having finally submitted the case without doing so, and having searched for and found the evidence after verdict, he may not then successfully claim the right to a new trial on the basis that such evidence is newly discovered.' See...