State v. Gillispie

• Decision Date: 10 November 2016
• Docket Number: No. 26965.,26965.
• Citation: 65 N.E.3d 791
• Parties: STATE of Ohio, Plaintiff–Appellant v. Roger Dean GILLISPIE, Defendant–Appellee.
• Court: Ohio Court of Appeals

65 N.E.3d 791

STATE of Ohio, Plaintiff–Appellant

v.Roger Dean GILLISPIE, Defendant–Appellee.

No. 26965.

Court of Appeals of Ohio, Second District, Montgomery County.

Nov. 10, 2016.

Andrew T. French, Assistant Prosecuting Attorney, Dayton, OH, for plaintiff-appellant.

Mark Godsey, Pierre H. Bergeron, Colter L. Paulson, and Larisa M. Vaysman, Cincinnati, OH, Jim Petro, Lakeside Marblehead, OH, for defendant-appellee.

OPINION

FROELICH, J.

{¶ 1} The State of Ohio appeals from the trial court's grant of Roger Dean Gillispie's "Motion to Compel Discovery and, If Required Discovery is Not Produced, to Dismiss Indictment," in which the trial court dismissed the State's indictment against Gillispie.For the following reasons, the trial court's judgment will be affirmed.

I.Factual and Procedural History

{¶ 2} The procedural history of this case in both state and federal court is long and complicated, but integral to an understanding of our opinion.

{¶ 3} In July 1991, Gillispie was convicted by a jury of nine counts of rape, three counts of kidnapping, three counts of gross sexual imposition, and one count of aggravated robbery based on two separate incidents of sexual assault that occurred in August 1988.Except for the three counts of gross sexual imposition, each count carried a firearm specification.In accordance with the sentencing statutes at the time, the trial court imposed an indeterminate sentence of 22 years to 56 years in prison.Gillispie's conviction and sentence were affirmed on direct appeal.State v. Gillespie, 2d Dist. MontgomeryNos. 12941 & 13585, 1993 WL 10927(Jan. 21, 1993).

{¶ 4} The specific facts underlying Gillispie's convictions have been detailed in several prior appeals.E.g.,id.;State v. Gillispie, 2d Dist. MontgomeryNos. 22877 & 22912, 2009-Ohio-3640, 2009 WL 2197052.We have summarized those facts, as follows:

* * * On August 5, 1988, defendant forced his way into the passenger side of [S.C.'s] car as she was leaving a drug store.At gunpoint, he forced her to drive behind a vacant building in the shopping center where he exposed himself, fondled her, and forced her to perform oral sex.

On August 20, 1988, in another shopping center, defendant forced his way into the rear seat of a car occupied by [C.W.] and [B.W.] as they were about to leave the center.He pretended to be a security officer and, at gunpoint, forced the twins to drive to a secluded area where he exposed himself, fondled them and forced each of them to perform oral sex.

State v. Gillespie, 2d Dist. MontgomeryNo. 14595, 1995 WL 41334, *1(Feb. 1, 1995)(affirming the dismissal of Gillispie's petition for post-conviction relief).

{¶ 5} At trial, Gillispie claimed that he had an alibi for the times of the rapes.He asserted that he was with friends on August 5, 1988, and that he was camping with friends in Kentucky during the weekend of August 20, 1988.

{¶ 6} Gillispie filed numerous motions in the years following his conviction.Of relevance to this appeal, on February 13, 2008, Gillispie filed a second petition for post-conviction relief or, in the alternative, a motion for a new trial.He argued that new evidence, falling into three broad categories, had come to light: (1) evidence of police corruption, perjury, witness tampering and other official misconduct of various types by Detective Scott Moore of the Miami Township Police Department; (2) additional evidence that an alternative suspect, Kevin Cobb, committed the offenses; and (3) new scientific understanding in the field of eyewitness identification.

{¶ 7} With regard to his allegation of police misconduct, Gillispie argued, in part, that the State had failed to provide exculpatory evidence known to the police, violating his right to due process as set forth in Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963).Gillispie further argued that, to the extent that such exculpatory evidence was not preserved by the State, such failure to preserve evidence violated his due process rights under Arizona v. Youngblood,488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281(1988).The alleged Brady material consisted of receipts from a campground in Kentucky and supplemental police reports that indicated that Gillispie had once been eliminated as a suspect by the original police investigators, Detectives Steven Fritz and Gary Bailey.

{¶ 8} Upon review of the trial court's denial of Gillispie's petition and motion, we concluded that the trial court did not err in finding no Brady violations.Gillispie, 2d Dist. MontgomeryNos. 22877 & 22912, 2009-Ohio-3640, 2009 WL 2197052, at ¶ 47–106.We also concluded that the alleged new scientific evidence regarding eyewitness identification did not warrant a new trial.Id.at ¶ 139–151.However, we concluded that additional evidence regarding Cobb constituted "new evidence" sufficient to require a hearing on whether a new trial was warranted.Id.at ¶ 138.

{¶ 9} In December 2009, prior to a hearing in the trial court on Gillispie's motion for a new trial, Gillispie filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio based on the alleged Brady violations.¹After this date, proceedings occurred in both state and federal court.

{¶ 10} In July 2010, the state trial court held a hearing on Gillispie's motion for a new trial based on Cobb as an alternative suspect.In December 2010, the trial court denied the motion.Gillispie appealed.

{¶ 11} On December 15, 2011, relying exclusively on the state court record,²the district court granted Gillispie a conditional writ of habeas corpus, finding that a Brady violation had occurred.The district court wrote:

* * * In late 1989 or early 1990, during the initial investigation, detectives Fritz and Bailey considered Mr. Gillispie as a suspect after Rick Wolfe brought to the detectives a picture of Mr. Gillispie whom Mr. Wolfe had just terminated as an employee at General Motors (GM).The investigating detectives noted that the "Wanted" poster for the case had been posted for almost two years at GM, but that Mr. Wolfe did not bring Mr. Gillispie to the detectives' attention until after he(Mr. Wolfe) had a fight with Mr. Gillispie and terminated his employment.Nevertheless, the original investigating detectives eliminated Mr. Gillispie as a suspect because he did not fit the physical description of the rapist which the victims had given nor did he fit the profile of the rapist.Eventually, Detective Fritz informed Mr. Wolfe that he and Det. Bailey did not consider Mr. Gillispie a good suspect and that there were not going to be charges brought against him.At some point after Dets.Fritz and Bailey had eliminated Mr. Gillispie as a suspect, Mr. Wolfe again approached the detectives about the rape case and brought several photographs to them.Because the investigators had already eliminated Mr. Gillispie as a suspect, Det. Fritz just put the photos into the case file.Det. Bailey prepared supplemental reports describing the events involving Mr. Wolfe, their investigation of Mr. Gillispie, their elimination of Mr. Gillispie as a suspect, and their reasons therefor.

When Det. Moore, who had recently been promoted to detective, took over the investigations in June 1990 almost two years after the crimes were committed, he contacted the victims and presented a photo spread to them.The photo of Mr. Gillispie was closer and larger than the other photos in the spread and, unlike the other photos, had a matte finish.The victims identified Mr. Gillispie.

There was, of course, absolutely no physical evidence that connected Mr. Gillispie to the crimes.However, the parties agree that at the trial, the three victims each testified that Mr. Gillispie was the person who committed the crimes.Nevertheless, at some point in deliberations the jury was deadlocked eight to four in favor of acquittal.SeeGillespie[sic], 1993 WL 10927 at *3.It was not until the trial court delivered an Allen charge to the jury that it convicted Mr. Gillispie.That fact sheds light on the relative weakness of the casethe State presented to the jury.

The jury never heard testimony about the original investigating officers, Dets.Fritz and Bailey, eliminating Mr. Gillispie as a suspect nor the reasons why they eliminated him.While Dets.Fritz's and Bailey's opinions as to why Mr. Gillispie was not a good suspect certainly do not directly go to the issue of Mr. Gillispie's guilt or innocence, they clearly go to the quality of the investigation which took place subsequent to Dets.Fritz's and Bailey's investigation.The withheld information is material which would have allowed Mr. Gillispie's counsel to impeach Det. Moore with respect to his investigation of the crimes for which Mr. Gillispie was tried and convicted.Cf., D'Ambrosio v. Bagley,No. 1:00–CV–2521, 2006 WL 1169926(N.D.OhioMar. 24, 2006), aff'd,527 F.3d 489(6th Cir.2008).In view of the State's case, that information "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."Van Hook [v. Bobby, 661 F.3d 264(6th Cir.2011).]

"Materiality" for purposes of Brady analysis is a mixed question of law and fact.United States v. Phillip,948 F.2d 241(6th Cir.1991).The state courts' determination that the evidence in question is not material is both an unreasonable determination of the facts in light of the evidence presented to those courts and an objectively unreasonable application of Brady and its progeny.

This Court concludes that Mr. Gillispie's Ground for Relief 1 is meritorious.Specifically, the Court finds that Mr. Gillispie was denied his right to due process pursuant to the Fourteenth Amendment as interpreted in Brady, to be apprised of all material exculpatory and impeachment information which the State holds.

Accordingly, the Petition for Writ of Habeas Corpus is granted.The State of Ohio is ordered to release Petitioner from custody unless he is

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