State v. Allen

• Decision Date: 29 September 2016
• Docket Number: No. 103492,103492
• Citation: 2016 Ohio 7045
• Parties: STATE OF OHIO PLAINTIFF-APPELLEE v. DAVID W. ALLEN DEFENDANT-APPELLANT
• Court: Ohio Court of Appeals

2016 Ohio 7045

STATE OF OHIO PLAINTIFF-APPELLEE v. DAVID W. ALLEN DEFENDANT-APPELLANT

No. 103492

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

September 29, 2016

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-91-264901-ZA

BEFORE: E.A. Gallagher, P.J., Kilbane, J., and Laster Mays, J.

ATTORNEYS FOR APPELLANT

John J. Ricotta

John J. Ricotta, Co. L.P.A.

The IMG Center

1360 E. 9th Street, Suite 910

Cleveland, Ohio 44114

Henry J. Hilow

McGinty, Hilow & Spellacy Co., L.P.A.

614 W. Superior Avenue, Suite 1300

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty

Cuyahoga County Prosecutor

BY: Daniel T. Van

Christopher D. Schroeder

Assistant Prosecuting Attorneys

The Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

EILEEN A. GALLAGHER, P.J.:

{¶1} Defendant-appellant David Allen appeals the denial of his motion for new trial and petition for postconviction relief that were filed in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm.

Facts and Procedural Background

{¶2} In 1991, Allen was convicted of two counts of aggravated murder and one count of aggravated robbery and a death sentence was imposed.¹ The victim in this case was Chloie English. This court affirmed Allen's convictions and sentence in State v. Allen, 8th Dist. Cuyahoga No. 62275, 1993 Ohio App. LEXIS 4392 (Sept. 9, 1993). The Ohio Supreme Court affirmed this court's judgment in State v. Allen, 73 Ohio St.3d 626, 1995-Ohio-283, 653 N.E.2d 675, and set forth the relevant facts as follows:

English knew Allen through her participation in a prison ministry program. English ministered to five convicted felons, including Allen. She visited and corresponded with Allen while he was in prison and they stayed in touch after his release in 1989. On January 9, 1991, English received a phone call from someone named "David." According to English's daughter, the conversation left English shaking.

English was last seen alive at 5:45 p.m. on January 24, 1991, by her friend Judy Sperry ("Sperry") who had visited English in her home. At 6:45 p.m. the next day, English's friend Cathy Curry found English lying dead in her living room. The doors to English's house were unlocked, which wasunusual because English always locked her doors and never opened them to strangers.

After English's body was found, Bedford police officers secured, photographed, and searched the house. Detective Gerry Artl found English's eyeglasses on the floor and noted a large thumbprint on the inside of the left lens. That thumbprint turned out to belong to David Allen. Police recovered ten cigarette butts from English's kitchen garbage. Saliva tests showed that five of the butts had been smoked by a Type O secretor. (The rest lacked sufficient saliva for testing.) Two of the butts still had the "Doral" brand name on them. Allen is a Type O secretor, and there was evidence that he smoked Dorals. English disapproved of smoking and was a Type O non-secretor.

Although English's last known visitor was a woman, someone had left the toilet seat up in English's bathroom. Moreover, the coffee pot in the kitchen, empty when Sperry left, was half full when English's body was discovered. Police found several items burnt in the fireplace, including the remains of English's purse and wallet, a broken ashtray, a broken coffee cup, a broken drinking glass, a wine bottle, and a knife with its handle burnt off.

Police found no money in the house, even though English always kept about $50 in her wallet for emergencies. English's credit cards and checkbook were also missing.

Detective Timothy Oleksiak ("Oleksiak") obtained the names of prisoners with whom English had corresponded. All but Allen were still in prison. Oleksiak and Artl had the print on the eyeglasses compared with Allen's; when the print was identified as Allen's, Oleksiak got an arrest warrant.

On January 29, Allen was arrested. He was wearing a denim jacket with a stain on one of the sleeves. That stain turned out to be Type O blood, the same type Allen and English shared. Allen was carrying a bus transfer issued between 6:04 and 7:00 a.m., January 25, on the No. 41 Warrensville bus route. The driver identified Allen as a passenger he had picked up on January 25 at 6:04 a.m., at a stop 1.3 miles from English's house.

Allen also had a refund receipt for a Greyhound bus ticket. There was no record of when the ticket was sold, but Allen got the refund on January 25, at 11:28 p.m. Moreover, when Detective Artl searched Allen's bedroom, he found two packed suitcases under Allen's bed.

Id.

{¶3} After Allen's convictions were affirmed, he filed an application for reopening pursuant to App.R. 26(B) which was denied by this court. The Ohio Supreme Court affirmed that decision in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.

{¶4} On September 20, 1996 Allen filed a petition for postconviction relief. The trial court denied Allen's petition without a hearing. This court affirmed the trial court's decision in State v. Allen, 8th Dist. Cuyahoga No. 72427, 1998 Ohio App. LEXIS 2414 (June 4, 1998).

{¶5} On February 16, 2006 the trial court granted a motion for DNA testing filed by Allen relating to the blood sample found on his jacket and a blood sample from a pair of gloves recovered from the scene. The trial court ordered further DNA testing on the gloves to be performed by Orchid Cellmark Laboratories in May 2011.

{¶6} Based on the results of the DNA testing, Allen filed a supplemental motion for new trial and petition to set aside the death penalty determination and verdict on November 28, 2011. The trial court denied Allen's motion and petition without a hearing on August 14, 2015.

I. Motion for New Trial

{¶7} In his first assignment of error, Allen argues that the trial court abused its discretion when it denied his motion for a new trial.²

{¶8} A Crim.R. 33 motion for a new trial is addressed to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Schiebel, 55 Ohio St.3d 71, 77, 564 N.E.2d 54 (1990). An abuse of discretion implies the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1993).

{¶9} To warrant the granting of a motion for a new trial in a criminal case, based on the grounds of newly discovered evidence:

it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.

State v. Barnes, 8th Dist. Cuyahoga No. 95557, 2011-Ohio-2917, ¶ 23, quoting State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

{¶10} Allen further argues that the state violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Pursuant to Brady, the prosecutor isrequired to disclose exculpatory and impeachment evidence that is material to guilt. Brady at 87. Evidence favorable to the defendant is deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bagley at 669; see also State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the syllabus. The Supreme Court of Ohio cautioned that in order to find the undisclosed evidence material, the omission must "reflect our overriding concern in the justice of the finding of guilty," which means "the omission must be evaluated in the context of the entire record," and, if "there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." State v. Jackson, 57 Ohio St.3d 29, 34, 565 N.E.2d 549 (1991), quoting United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

{¶11} The defendant carries the burden to prove a Brady violation rising to the level of a denial of due process. See State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶ 42, citing State v. Iacona, 93 Ohio St.3d 83, 92, 2001- Ohio-1292, 752 N.E.2d 937. We review a Brady materiality question on appeal as a matter of law and, therefore, apply a de novo standard of review. See State v. Fox, 4th Dist. Ross No. 11CA3302, 2012-Ohio-4805, ¶ 25, citing State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 12-13. See also United States v. Bullock, 130 Fed.Appx. 706, 722 (6th Cir.2005), citing United States v. Phillip, 948 F.2d 241, 250 (6th Cir.1991) ("The standard of review for the materiality of a purported Brady violation is de novo because it presents a mixed question of law and fact.").

{¶12} There are three essential components of a Brady violation: (1) evidence at issue must be favorable to the accused because it is exculpatory or impeaching; (2) evidence must have been willfully or inadvertently suppressed by the State; and (3) prejudice ensued. Skinner v. Switzer, 562 U.S. 521, 536, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011), citing Strickler v. Greene, 527 U.S. 263, 281, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

{¶13} Allen argues that the state committed two Brady violations in this instance by (1) failing to disclose a pair of blood-stained gloves found at the scene of the murder and (2) failing to disclose a police report wherein a neighbor of the victim, Julie Walker, reported observing a black male approach the home of the victim on Wednesday, January 23 or Thursday, January 24, 1991....