Collier-Hammond v. State

• Decision Date: 30 April 2020
• Docket Number: No. 108368,108368
• Citation: 154 N.E.3d 364,2020 Ohio 2716
• Parties: Rosalynd COLLIER-HAMMOND, Plaintiff-Appellee, v. STATE of Ohio, Defendant-Appellant.
• Court: Ohio Court of Appeals

154 N.E.3d 364

2020 Ohio 2716

Rosalynd COLLIER-HAMMOND, Plaintiff-Appellee,

v.STATE of Ohio, Defendant-Appellant.

No. 108368

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: April 30, 2020

Marein and Bradley, Mark B. Marein, and Steven L. Bradley, Cleveland, for appellee.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brian R. Gutkoski, Assistant Prosecuting Attorney, Dave Yost, Ohio Attorney General, and Thomas E. Madden, Assistant Attorney General, for appellant.

JOURNAL ENTRY AND OPINION

ANITA LASTER MAYS, P.J.:

{¶ 1} Defendant-appellant, the state of Ohio, appeals the trial court's judgment in favor of plaintiff-appellee, Rosalynd Collier-Hammond ("Collier"), and dismissal of the state's third-party complaint against Collier's daughter, A.Y. ("Young").¹ We affirm.

{¶ 2} The history of this case as stated in State v. Collier , 8th Dist. Cuyahoga No. 103857, 2016-Ohio-4951, 2016 WL 3855574, ¶ 2 (" Collier III "),² is as follows,

[i]n an indictment filed October 15, 1996, Collier was charged with thirty-four counts of rape of her minor daughter, A.Y. in violation of R.C. 2907.02. Counts 1-12 alleged offenses occurring between October 20, 1987 and October 19, 1988, Counts 13-24 alleged offenses occurring between October 20, 1988 and October 19, 1989, and Counts 25-34 alleged offenses occurring between October 20, 1989 and July 31, 1990. A bill of particulars filed December 31, 1996 indicated that these offenses occurred at hotels or motels in the greater Cleveland area, in Cuyahoga County, Ohio. State v. Collier , 8th Dist. Cuyahoga No. 76433 [2000 WL 1036305], 2000 Ohio App. LEXIS 3376 (July 27, 2000) [" Collier I "].

{¶ 3} Following trial, Collier was found guilty of two counts of rape against Young. Collier was sentenced to two concurrent life sentences. The trial court further found Collier a sexually oriented offender but not a sexual predator. The convictions and sentences were affirmed on appeal. Collier I .

I. Facts and Procedural History

{¶ 4} The facts and procedural history of the case are found in Collier III , stating,

The evidence at trial disclosed that the victim of these offenses, A.Y., was the daughter of Collier and Floyd Young and was born on October 20, 1983. A.Y. testified Collier would force her to perform oral sex. These incidents occurred three or four times per week at various motels on Euclid Avenue and at the house where they lived. Most of the time, Collier would ingest cocaine immediately before these incidents. Sometimes, Collier's boyfriend was present. A.Y. testified that Collier would instruct her boyfriend to hit A.Y. with a belt when A.Y. refused, and he did so.

Following trial, the jury found Collier guilty of Counts 1 and 2 of the amended indictment and not guilty of the remaining charges. The court sentenced Collier to two concurrent terms of life imprisonment. The court further found Collier a sexually oriented offender but not a sexual predator. The convictions and sentences were affirmed on appeal. Collier I . The Ohio Supreme Court granted Collier's motion for a delayed appeal. State v. Collier , 90 Ohio St.3d 1471, 738 N.E.2d 383 (2000). Subsequently, the Ohio Supreme Court declined to exercise jurisdiction and dismissed the appeal. State v. Collier , 91 Ohio St.3d 1458, 743 N.E.2d 399 (2001).

On April 20, 1999, Collier filed her first motion for a new trial based on juror misconduct. After an evidentiary hearing at which Collier was represented by appointed counsel, the trial court overruled the motion on May 11, 1999.

Collier III at ¶¶ 5-7.

{¶ 5} In 2014, Collier's sister contacted A.Y. on Facebook, and after several conversations, A.Y. expressed her desire to recant her original testimony and claim that Collier never sexually abused her. As a result,

[o]n May 14, 2015, Collier filed a motion for leave to file a motion for a new trial. The state filed a brief in opposition to the request on June 15, 2015, and Collier filed a reply brief on July 9, 2015.

On July 15, 2015, the trial court set September 10, 2015 as the date for an evidentiary hearing on Collier's motion. On July 29, 2015, the trial court granted Collier leave to file a delayed motion for a new trial. The court informed the parties that it would consider the briefs already filed; however the parties could file supplemental briefs if they so desired.

On August 31, 2015, the state filed a motion in limine to exclude 1). The polygraph examination results of the co-defendant Reynard Hammond from evidence; 2). Testimony related to the allegation of juror misconduct during the original trial and 3). Testimony from the trial judge who presided over the jury trial in 1999. Collier filed a brief in opposition on September 8, 2015.

The trial court granted the state's motion in part on September 10, 2015. Specifically, the trial court ruled that the results of the polygraph results were inadmissible; however the willingness of a party to take a polygraph test could be admitted; evidence of juror misconduct would not be allowed on the basis of res judicata; no witness would be allowed to vouch for the credibility of any other witness; and the testimony of the trial judge would be permitted but the scope of her testimony will be very limited, if ultimately permitted at all.

Collier , 8th Dist. Cuyahoga No. 103857, 2016-Ohio-4951, 2016 WL 3855574, ¶¶ 8-11.

{¶ 6} The trial court granted Collier's request for a new trial, and stated,

The Court has taken into consideration all the testimony provided at the hearing, the trial transcript, and the exhibits. The Court finds [A.Y.'s] testimony at hearing to be credible when taken in conjunction with all the other evidence in the case. For all the reasons set forth in this decision, the Court grants the motion for new trial.

Id. at ¶ 56.

{¶ 7} The state appealed arguing that the trial court erred in granting Collier a new trial. This court in Collier III considered the trial court's decision granting Collier a new trial and concluded, "[t]he state has failed to sufficiently demonstrate a probability that the trial court erred when it granted Collier's motion for new trial. Accordingly, we deny the state's motion for leave to appeal. The state's appeal is dismissed." Id. at ¶ 97.

{¶ 8} After the state's appeal was dismissed, the trial court dismissed all charges against Collier finding that "re-trial is prohibited on double jeopardy grounds pursuant to State v. Ogle , 8th Dist. Cuyahoga No. 87695, 2007-Ohio-5066, 2007 WL 2793355." Journal entry No. 98404667 (Apr. 7, 2017).

{¶ 9} The following year, Collier filed a claim of statutory wrongful imprisonment against the state. The state answered and pleaded a third-party complaint against A.Y. because she recanted her testimony that Collier raped her. A.Y. filed a motion to dismiss the state's complaint under Civ.R. 12(B)(6). The trial court granted the motion to dismiss. The state filed a reconsideration in the trial court, stating,

[o]n December 12, 2017, this Honorable Court issued an order dismissing Defendant State of Ohio Third-Party Complaint bringing claim against [A.Y.] under R.C. 2307.60. In doing so, the Court expressly relied on information outside of the pleadings to wit: that [A.Y.] has not been convicted of perjury. In prematurely dismissing the State's claim, this Honorable Court further relied upon non-binding, authority from the 10th District. Morrow v. Reminger & Reminger Co. LPA , 183 Ohio App.3d 40, 2009-Ohio-2665 [915 N.E.2d 696,], ¶ 16 (10th Dist.). The Court did not address binding precedent from the 8th District holding a conviction is not required to state claim under R.C. 2307.60. See State's Br. in Opp. (filed 12/7/17) at p. 4 (noting, " R.C. 2307.60 provides that any victim of criminal act may recover ‘full damages’ in civil action. The section specifically provides that criminal conviction of the crime is not condition precedent to civil liability . Gonzalez v. Spofford , 8th Dist. No. 85231, 2005-Ohio-3415 [2005 WL 1541016], ¶ 27.

Motion No. 4719189 (Sept. 24, 2018).

{¶ 10} The trial court denied the state's motion for reconsideration of the third-party complaint. The trial court, in its journal entry, stated,

[t]he third-party complaint attempted to assert a civil action against [A.Y.] for her recanting testimony from a criminal case, in other words, perjury. "While perjury, subornation of perjury, and conspiracy to commit perjury are punishable under criminal statutes, they may not, for public policy reasons, form the basis of a civil lawsuit." Morrow v. Reminger & Reminger Co. LPA , 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, [¶ 16] (10th Dist.), citing Costell v. Toledo Hosp. , 38 Ohio St.3d 221, 223-[2]24, (1988). " ‘[T]he giving of false testimony in a judicial proceeding * * * does not give rise to a civil action for damages resulting from the giving of the false testimony’ even where it is alleged that the witness knew the testimony to be false." Id. , citing Schmidt v. State Aerial Farm Statistics, Inc. , 62 Ohio App.2d 48, 51, (6th Dist.1978) ; see alsoLisboa v. Lisboa , 8th Dist. Cuyahoga No. 95673, 2011-Ohio-351 [2011 WL 319956], ¶ 17. "Although a person injured by the criminal act of another may ordinarily obtain civil relief, an exception exists in the ‘very * * * well established rule that no action lies to recover damages caused by perjury, false swearing, subornation of perjury, or an attempt to suborn perjury, * * * committed in the course of, or in connection with, a civil action or criminal prosecution, regardless of whether the perjurer was a party to, or a witness in, the action or proceedings.’ " Morrow , at ¶ 16, citing Schmidt , 62 Ohio App.2d at 51, .

Because Ohio law does not recognize a civil action for perjury, the state of Ohio's third-party complaint failed to state a claim upon which relief can be granted whether a conviction is required under R.C. 2307.60 is completely irrelevant when the purported cause of action is not

...