State v. Apanovitch

• Decision Date: 05 May 2016
• Docket Number: 102698.,Nos. 102618,s. 102618
• Citation: 64 N.E.3d 429
• Parties: STATE of Ohio, Plaintiff–Appellant v. Anthony APANOVITCH, Defendant–Appellee.
• Court: Ohio Court of Appeals

64 N.E.3d 429

STATE of Ohio, Plaintiff–Appellant

v.Anthony APANOVITCH, Defendant–Appellee.

Nos. 102618

102698.

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

May 5, 2016.

Timothy J. McGinty, Cuyahoga County Prosecutor by Adam M. Chaloupka, Katherine Mullin, Christopher D. Schroeder, Frank Romeo Zeleznikar, Assistant Prosecuting Attorneys, Cleveland, OH, for appellant.

Mark R. Devan, William Livingston, Berkman, Gordon, Murray & Devan, Cleveland, OH, Harry P. Cohen, Elizabeth Figueira, Michael K. Robles, James K. Stronski, Crowell & Morning, New York, NY, for appellee.

Before: JONES, A.J., CELEBREZZE, P.J., and LASTER MAYS, J.

LARRY A. JONES, SR., A.J.

{¶ 1} This is an appeal by plaintiff-appellant, the state of Ohio, from the trial court's February 12, 2015 decision granting defendant-appellee's, Anthony Apanovitch, fourth petition for postconviction relief, thereby acquitting Apanovitch of one of two counts of rape, dismissing the second count of rape, and granting a new trial on the remaining charges, which consist of aggravated murder and aggravated burglary with specifications.¹ We affirm.

Factual Background and Procedural History

{¶ 2} The incident that gave rise to this death penalty case was the 1984 rape and murder of Mary Ann Flynn; she was found dead in her Cleveland duplex on August 24, 1984. The investigation revealed that entry into the home had likely been through a basement window, which appeared to have been forcibly opened. Further, one of the basement window sills was missing. The day before her body was discovered, August 23, Apanovitch had been working at the house of Flynn's neighbor, and approached Flynn, whom he knew, to ask her if she wanted him to paint her basement window sills; she declined the offer.

{¶ 3} Flynn's body was discovered in a second-floor bedroom; she was naked and battered, lying face down on a mattress, with her hands tied behind her back, with one end of what appeared to be a rolled-up bed sheet tied around her neck and the other end tied to the headboard. Slivers of wood from a basement window sill were found in the bedroom, on Flynn's body, and in a laceration in the back

of her neck.

{¶ 4} As mentioned, Apanovitch knew Flynn—he had done house painting for her in July 1984. During that time, he had made unwelcome advances toward her and even asked her out in the presence of his pregnant wife. Shortly after hiring Apanovitch in July 1984, Flynn terminated the use of Apanovitch's services prior to his completion of the painting. Afterward, however, she complained to friends that the "painter" still harassed her and that she was afraid of him. A copy of the contract for the painting work was found on Flynn's kitchen table the day after her body was discovered.

{¶ 5} Days after Flynn's body was discovered, Apanovitch became a suspect in her murder. He voluntarily made himself available for questioning by the police, waiving his Miranda rights. He denied any involvement in the crimes and voluntarily provided hair, saliva, and blood samples, along with several articles of clothing for testing. Apanovitch continued to deny involvement in the crimes throughout the investigation of the case.

{¶ 6} Apanovitch gave conflicting accounts of his whereabouts at the time it was surmised that the crimes occurred; however, according to three of the state's witnesses, he asked them to lie about his whereabouts. He also had scratches on his face and gave varying accounts to law enforcement about how he got them. The coroner, who had observed the scratches on Apanovitch's face while he was in police custody, testified at trial that she believed they were consistent with fingernail scratches.

{¶ 7} Little physical evidence of the assailant was found, however—no bodily material was found under Flynn's fingernails, the only blood at the scene belonged to Flynn, and no footprints were revealed. One hair was found on Flynn's body that was identified as being inconsistent with both Flynn and Apanovitch's hair, and although the police identified a number of latent fingerprints, none of them belonged to Apanovitch. At trial, only two pieces of scientific physical evidence were presented to the jury: the hair found on Flynn and evidence relating to the blood-type of Flynn and Apanovitch. As will be discussed in more detail below, both of these items of scientific physical evidence were problematic.

{¶ 8} On October 2, 1984, Apanovitch was indicted by a Cuyahoga County Grand Jury on two counts of rape, one count each of aggravated murder, with felony murder specifications, and aggravated burglary, with aggravated felony specifications. The case proceeded to a jury trial on November 26, 1984. The jury convicted Apanovitch of all counts and specifications and recommended a death sentence. The trial court adopted the jury's recommendation and imposed a death sentence. The court also sentenced Apanovitch to consecutive 15–25 year prison terms on the aggravated burglary and two rape convictions, for a total of 45–75 years in prison.

{¶ 9} This case has been the subject of extensive and convoluted litigation in both state and federal courts in the years since the 1984 conviction and 1985 death sentence.² Those cases, and further facts, will be discussed below as necessary.

1984 Autopsy

{¶ 10} An autopsy of Flynn's body was conducted the day after her body was discovered. Sperm was found in Flynn's mouth and vagina. It was determined that the perpetrator of the crimes had blood type

A. Apanovitch has blood type A, and that evidence was introduced by the state at trial. Apanovitch was also a secretor, meaning that he secretes his blood type through other bodily fluids. At trial, the analyst testified that approximately 44–55% of the population was blood type A and that approximately 80% of the population were secretors. According to the analyst, therefore, there were approximately 340,000 men in Cuyahoga County who could have emitted the fluids found in Flynn.

Amended Trace Analyst Report

{¶ 11} Flynn also had blood type A. The original trace evidence report that was available at the time of trial did not indicate if Flynn was a secretor, however. On appeal to the Ohio Supreme Court, after Apanovitch's direct appeal to this court, which affirmed the convictions and sentence,³ the Ohio Supreme Court upheld the convictions and sentence in a 4–3 decision. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987). The dissent objected to the imposition of the death penalty, finding that the "evidence of guilt in this case, while sufficient to meet the various standards which an appellate court must use to measure legal error, is far from overwhelming." Id. at 29, 514 N.E.2d 394 (Brown, J., concurring and dissenting).

{¶ 12} The dissent had two evidentiary areas of concern. The first, raised sua sponte by the dissent, related to the blood evidence:

If the victim was a secretor, the recovery of a type A antigen from the swab contained from the victim (who herself was a type A) offers no information concerning the blood type

of the assailant, because the recovered antigens could have as easily originated from the victim as from the assailant.

(Emphasis sic.) Id. at 30, 514 N.E.2d 394.

{¶ 13} Flynn, in fact, was a secretor. The police knew this within the first few days of their investigation, but it was not disclosed to Apanovitch until 1992. After the Ohio Supreme Court's decision, the trace evidence report was amended to reflect Flynn's secretor status.

{¶ 14} The dissent's second concern related to the human hair found on Flynn, which, as mentioned, was neither Flynn nor Apanovitch's hair. The state's position at trial was that it was not uncommon for law enforcement or crime scene personnel to lose a hair while doing their work around a body. The dissent stated:

[w]hile this may have been the case, the better approach would have been to have the hair analyzed against all crime scene personnel who could have deposited it. Such elimination procedure is not overly burdensome given the penalty sought to be extracted by the state.

Id. at 31, 514 N.E.2d 394.

{¶ 15} At trial, the state's representative testified that the hair was found "on the back portion of [Flynn's] hand, which would have been the upper surface." Apanovitch, 648 F.3d 434, 439 (6th Cir.2011). The representative also described the hair as being "in the area of [Flynn's] hand." Id. at 440. The state argued that the hair could have fallen from the law enforcement officials who were around Flynn's body after it was discovered and transported to the coroner's office. But the state did not disclose to the defense that the report prepared by the trace evidence department stated that the hair was found "under [Flynn's] bound hands." Id. at 439.

{¶ 16} The course of the litigation in this case also demonstrated that the state failed to disclose to the defense a document in which a detective wrote that Apanovitch said something different than what the detective testified at trial was said. Specifically, the detective testified at trial that in a pre-arrest conversation with Apanovitch, Apanovitch asked him to let him know "when" he was going to be arrested so that he could break the news to his mother, who had a heart condition. Id. at 438. The detective testified that Apanovitch's request "stunned" him. Id. The detective's report, however, stated that Apanovitch asked the detective to give him warning "if" he was going to be arrested. Id. The report further states that, even with his request, Apanovitch maintained his innocence, which the jury was also not informed of. Apanovitch did not secure the Cleveland Police Department's investigative file until years after his conviction, during his state postconviction proceedings.

Autopsy Swabs

{¶ 17} Swabs of bodily fluids from Flynn's body were collected during the autopsy. At the time of trial, however, they were unavailable—the state believed they had been inadvertently lost or destroyed. In 1991, the state found the...