860 N.E.2d 77 (Ohio 2006), 2005-0329, State v. Gondor

Docket Nº:2005-0329, 2005-0336.
Citation:860 N.E.2d 77, 112 Ohio St.3d 377, 2006-Ohio-6679
Opinion Judge:PFEIFER, J.
Party Name:The STATE of Ohio, Appellee, v. GONDOR, Appellant. The State of Ohio, Appellee, v. Resh, Appellant.
Attorney:Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J. Holder, Assistant Prosecuting Attorney, for appellee in case Nos. 2005-0329 and 2005-0336. Steven L. Bradley, Cleveland, and David F. Hanson, Columbus, for appellant in case No. 2005-0329. James D. Owen and Samuel Porter, Col...
Judge Panel:MOYER, C.J., RESNICK, LUNDBERG STRATTON, O'CONNOR, O'DONNELL and LANZINGER, JJ., concur.
Case Date:December 26, 2006
Court:Supreme Court of Ohio
 
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Page 77

860 N.E.2d 77 (Ohio 2006)

112 Ohio St.3d 377, 2006-Ohio-6679

The STATE of Ohio, Appellee,

v.

GONDOR, Appellant.

The State of Ohio, Appellee,

v.

Resh, Appellant.

Nos. 2005-0329, 2005-0336.

Supreme Court of Ohio

December 26, 2006

Submitted January 25, 2006

Appeal from the Court of Appeals for Portage County, Nos. 2002-P-0073, 2004-Ohio-7219, 2002-P-0074, 2004-Ohio-7220.

Page 78

Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J. Holder, Assistant Prosecuting Attorney, for appellee in case Nos. 2005-0329 and 2005-0336.

Page 79

Steven L. Bradley, Cleveland, and David F. Hanson, Columbus, for appellant in case No. 2005-0329.

James D. Owen and Samuel Porter, Columbus, for appellant in case No. 2005-0336.

PFEIFER, J.

[112 Ohio St.3d 378] {¶ 1} The question presented in these two cases, consolidated sua sponte, is whether the court of appeals applied the correct standard of review when it reviewed de novo the trial court's judgment granting the appellants' petitions for postconviction relief. We hold that the court of appeals should have applied an abuse-of-discretion standard rather than a de novo standard in reviewing the trial court's decisions on the two postconviction petitions. We therefore reverse the judgments of the court of appeals. Because we also hold that the trial court did not abuse its discretion when it granted postconviction relief and ordered new trials for the two appellants, we remand these cases to the trial court for retrial.

Factual Background

{¶ 2} These cases arise from the August 14, 1988 murder of Connie Nardi. She was beaten and then strangled to death; her body was dumped in a pond, where it was discovered the following day. Troy Busta, Robert Gondor, and Randy Resh were charged with Nardi's murder. In 1989, Busta pleaded guilty; in 1990, Resh and Gondor were convicted of Nardi's murder in separate trials.

{¶ 3} With some variations, the state presented the same evidence at both Resh's and Gondor's trials. Busta was the prosecution's key witness at both proceedings. He testified to the following events. Around 5:30 p.m., on Sunday, August 14, 1988, Busta went to Ed's Upper Deck, a bar in Mantua. While at the bar, he met and danced with Nardi. About 30 to 45 minutes later, Resh and Gondor arrived at the bar. At around 7:00 p.m., Busta took Nardi on a motorcycle ride to cool off They traveled to a washed-out bridge that formerly crossed the Cuyahoga River on Allyn Road. After about 45 minutes, they returned to the bar.

{¶4} After returning to the Upper Deck, Busta talked with Resh about Nardi. Busta falsely bragged that he had had sex with Nardi. Resh asked Busta to persuade Nardi to return to the washed-out bridge area and have sex with him. Busta agreed, and the two planned for Busta to buy some beer and take Nardi back to the washed-out bridge. Resh and Gondor were to arrive 15 to 20 minutes later.

[112 Ohio St.3d 379] {¶5} Later that evening, Busta bought a "split six" pack of beer--three Coronas and three Pabsts. Busta and Nardi then left the Upper Deck on Busta's motorcycle and returned to the washed-out bridge. Busta's stated departure time from the Upper Deck differed at the two trials. At Resh's trial, Busta testified that he and Nardi had left the Upper Deck between 8:00 and 8:30 p.m. At Gondor's trial, Busta testified that they had left between 9:00 and 9:30 p.m. At both trials, Busta testified that Resh and Gondor arrived at the bridge in Gondor's white pickup truck 15 to 20 minutes after Busta and Nardi.

{¶ 6} Resh and Gondor joined Busta and Nardi near the bridge. After a short conversation, Resh asked Nardi to have sex with the three of them. Nardi refused, and Resh became angry. Resh grabbed Nardi and told Gondor and Busta to hold her hands and feet. Resh sat on Nardi's stomach while she struggled to free herself Gondor took off Nardi's shorts and underwear. Nardi freed a leg and kicked Gondor. Resh responded by striking Nardi

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several times on her head and then strangled her.

{¶ 7} According to Busta, Resh and Gondor put Nardi's body in the back of Gondor's truck on top of a pile of two-by-four pieces of wood. Gondor and Resh drove the truck, and Busta followed on his motorcycle, to a parking area near a pond. Gondor and Resh then dumped Nardi's body into the pond. Busta left Resh and Gondor, and he later discarded Nardi's purse in a ditch and disposed of the beer cans and bottles near the intersection of Abbot and Allyn Roads.

{¶ 8} At around 11:00 or 11:15 p.m. that evening, Busta returned to the Upper Deck and met Resh and Gondor, who had already arrived. They remained until the bar closed. After leaving the bar, they noticed blood on some of the wood in the back of Gondor's truck. The three of them started tossing the wood into the parking lot of the bar across the street. Gondor and Resh then followed Busta to his residence. However, Gondor and Resh did not stop at Busta's house. Other testimony established that Resh and Gondor returned to Resh's trailer and at 12:42 a.m. on August 15, 1988, ordered a pizza from Domino's.

{¶ 9} During the trials of Resh and Gondor, the state relied on blood evidence and false-alibi evidence. Investigators had examined suspected bloodstains found on the black plastic bedliner of Gondor's truck because Busta had claimed that Nardi's bloodstains were left on wood in the back of the truck. Dale Laux, a criminalist with the Ohio Bureau of Criminal Identification and Investigation ("BCI"), testified that the stains were human bloodstains. However, Laux could not determine the blood type because of the age and small size of the samples. During cross-examination at Gondor's trial, Laux testified that the stains were also sent for testing to the Serological Research Institute ("SERI"). Laux testified that SERI tests to type the stains were unsuccessful.

[112 Ohio St.3d 380] {¶ 10} The state also presented testimony that Resh and Gondor had attempted to establish an alibi for Nardi's murder before they had been identified as suspects. At both trials, the owner of Domino's Pizza testified that Gondor had contacted him on Monday, August 15, 1988, to make sure that his name was added to a receipt for the pizza that had been ordered by Resh the night before . Brenda Holcomb, another Domino's employee, testified that both Resh and Gondor went into Domino's on Tuesday, August 16, 1988, to verify their early Monday morning order because they were being investigated for a murder.

{¶ 11} Resh and Gondor denied any involvement in Nardi's murders. During his trial, Resh testified that upon arriving at the Upper Deck, he saw Nardi dancing on the bar. Resh claimed that he saw Busta and Nardi leave the bar together and return about 30 to 45 minutes later. Around 9:00 p.m., Resh saw Busta and Nardi leave again. According to Resh, around 10:00 p.m., he and Gondor left the Upper Deck and went to the Village Tavern. They stayed there for about an hour and then returned to the Upper Deck. Resh noticed that Busta had also returned to the Upper Deck and was sitting alone at the bar. Resh testified that he left the bar when it closed and that he, Gondor, and Busta threw some pieces of wood from the bed of Gondor's truck into the parking lot across the street. However, Resh denied seeing any blood on the wood. Afterwards, according to Resh, he and Gondor drove to Resh's trailer and ordered the pizza.

{¶ 12} At his trial, Gondor testified that upon arriving at the Upper Deck, he sat with Resh, who told him about a woman who had been dancing on the bar and had

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left with Busta. Sometime later, Busta and Nardi returned. Around 10:00 p.m., according to Gondor, he and Resh left the Upper Deck and went to the Village Tavern. They remained there for 30 to 40 minutes and then went back to the Upper Deck. After they returned, Gondor noticed that Busta came back to the Upper Deck. When the Upper Deck closed at midnight, Gondor stated that he, Resh, and Busta went out to the parking lot and threw pieces of wood from the bed of his truck across the street. Gondor denied seeing any blood on the wood. Afterwards, Gondor followed Resh to Resh's trailer, and they ordered the pizza.

{¶ 13} During the defense case at Gondor's trial, the bartender at the Village Tavern testified that Resh and Gondor were at the Village Tavern for about 30 minutes between 9:45 and 10:45 p.m. on August 14. Resh's defense team presented similar evidence at his trial.

{¶ 14} Resh was convicted of murder and attempted rape. He was sentenced to five to 15 years for attempted rape and 15 years to life for murder, the sentences to be served consecutively. Gondor was convicted of involuntary manslaughter, kidnapping, and obstructing justice. He was sentenced to ten to [112 Ohio St.3d 381] 25 years for both involuntary manslaughter and kidnapping, and 18 months for obstructing justice, all sentences to run consecutively.

Procedural History

{¶ 15} The court of appeals separately affirmed Resh's and Gondor's convictions. State v. Resh (December 11, 1992), Portage App. No. 90-P-2256, 1992 WL 366992; State v. Gondor (December 11, 1992), Portage App. No. 90-P-2260, 1992 WL 366988. On May 5, 1993, this court declined to review Resh's discretionary appeal. State v. Resh (1993), 66 Ohio St.3d 1473, 611 N.E.2d 835. On July 21, 1993, this court likewise declined to review Gondor's discretionary appeal. State v. Gondor (1993), 67 Ohio St.3d 1408, 615 N.E.2d 1043.

{¶ 16} On September 20, 1996, Resh and Gondor filed separate petitions for postconviction relief. Both alleged that the state had withheld exculpatory material and that they had received ineffective assistance of counsel...

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