State v. Gregory Lott, 02-LW-2122
| Decision Date | 30 May 2002 |
| Docket Number | 79792,02-LW-2122,79791,79790 |
| Citation | 2002 Ohio 2752 |
| Parties | STATE OF OHIO, Plaintiff-appellee v. GREGORY LOTT, Defendant-appellant |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court, Case No. CR-212720
For plaintiff-appellee WILLIAM D. MASON, ESQ., Cuyahoga County Prosecutor, JON W. OEBKER, ESQ., Assistant County Prosecutor The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113
For defendant-appellant: DAVID H. BODIKER, ESQ., Ohio Public Defender, J. JOSEPH BODINE, JR., ESQ., Assistant State Public Defender, GREGORY MEYERS, ESQ., Chief Counsel, Death Penalty Division, OFFICE OF THE PUBLIC DEFENDER, 8 East Long Street Columbus, Ohio 43215
{¶1} Appellant appeals the trial court denying his second petition for postconviction relief. For the reasons that follow, we affirm the judgment of the trial court.
{¶2} In 1986, appellant was convicted of aggravated murder, aggravated robbery, petty theft, aggravated arson, and two counts of aggravated burglary. In 1987, a three-judge panel sentenced appellant to death as a result of his conviction for the aggravated murder of John McGrath.[1] On direct appeal to this court, all of appellant's convictions and sentences were affirmed in State v. Lott (Mar. 16, 1989), Cuyahoga App. No. 54537. The Ohio Supreme Court also affirmed appellant's convictions in State v. Lott (1990), 51 Ohio St. 3d 160.[2]
{¶3} In September 1991, appellant filed his first petition for postconviction relief, which was denied by the trial court. On appeal, this court affirmed the trial court's decision. State v. Lott, Cuyahoga App. Nos. 66388, 66389, 66390, 1994 Ohio 4965 (First Petition ).[3]Pursuant to R.C. 2953.23(A), appellant filed a second and successive petition for postconviction relief in March 2000. The trial court denied the second petition and that denial is now the subject of this appeal.
{¶4} The nature of the crimes for which appellant was convicted is described in State v. Lott (1990), 51 Ohio St. 3d 160, 168:
{¶5} In this case, the prosecution proved beyond dispute the existence of certain highly probative circumstantial evidence. Lott was indisputably linked to the victim's home by Lott's unexplained possession of the victim's car, by Lott's fingerprints at two separate locations in McGrath's home, and by a shoeprint on the floor of the victim's house consistent with Lott's gym shoes. From these facts and from other physical evidence of the scene established by the prosecution, there was sufficient probative evidence from which reasonable minds could conclude, as the trial panel did, that Lott robbed, set fire to and purposely killed McGrath, and burglarized his home. Lott's purposeful intention to cause death can be inferred from the act of pouring lamp oil over McGrath and setting him on fire.
{¶6} The Ohio Supreme Court finally concluded that Lott stands convicted on constitutionally adequate evidence. Lott.
{¶7} Appellant presents two assignments of error, which are procedurally interrelated, and will, therefore, be addressed together.
{¶12} The parties agree that this appeal falls under the authority of R.C. 2953.23, Ohio's successive postconviction relief statute. Because a postconviction relief proceeding is a collateral civil attack on a judgment, the judgment of the trial court is reviewed under an abuse of discretion standard. Abuse of discretion means more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Hall, Lorain App. No. 95CA006065, 1996 Ohio 947 citing Cedar Bay Constr. Inc., v. Fremont (1990), 50 Ohio St. 3d 19, 22, 552 N.E.2d 202.
{¶13} Under the statute, appellant argues that, both before and during trial, the state failed to disclose evidence proving his innocence. He also claims that, even though his attorney had obtained this same evidence in 1991, he failed to present it in his first postconviction proceeding. Because his attorney never presented the evidence, appellant believes he received ineffective assistance of counsel in his First Petition.
{¶14} I. Appellant's claims under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
{¶15} According to appellant, during the trial, the state hid detailed descriptions of the real killer that Mr. McGrath provided to the police; he hid crime stopper reports that corroborated Mr. McGrath's description of his attacker; and Marino hid the fact that an oil burning lamp was discovered in Mr. McGrath's home. Appellant claims the state violated his constitutional right to a fair trial and due process of law because it withheld evidence which he claims was exculpatory.
{¶16} Appellant bases his argument on the law pronounced in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. Such evidence is material "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 that which is sufficient to affect or undermine confidence in the outcome of a trial. Bagley, supra.
{¶17} Thus, 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.
{¶18} Brady, supra.
{¶19} Moreover, the United States Supreme Court has held that the prosecution's United States v. Agurs, 427 U.S. 97, 112-13, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1975).
{¶20} Though the prosecution is responsible for disclosing all favorable evidence known to it as well as to those acting on its -6- behalf, there is "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." Moore v. Illinois, 408 U.S. 786, 795, 33 L. Ed. 2d 706, 92 S. Ct. 2562 (1972) (). United States v. Mullins, (6th Cir. 1994), 22 F.3d 1365, 1372; See also Arizona v. Youngblood, 488 U.S. at 55.
{¶21} The prosecution has a duty, however, to disclose evidence favorable to the accused and necessary for him to receive a fair trial. See Bagley, supra 473 U.S. at 675; Brady, supra 373 U.S. at 87. If the prosecution fails to disclose Brady material, the defendant is required to show that there is a reasonable probability that the omission deprived him of a fair trial. See Agurs, 427 U.S. at 108.
{¶22} In the case at bar, appellant argues that the victim's physical description of his attacker, from which a police sketch was made and crime stopper reports gathered by the police after the sketch was televised, were exculpatory. Apparently, after seeing the sketch, people called tips into the police.[4] Appellant argues that because the physical descriptions given in some of the reports were consistent with McGrath's description to police, they corroborate that description and thus tend to prove he was not the assailant. We underscore the fact that the reports are not reports by eyewitnesses to the crime. Also, appellant does not specify exactly which reports he believes would exonerate him as the perpetrator of the crimes for which he was charged and convicted. At best, any police investigation resulting from the crime stopper reports or follow-up on the physical description given by Mr. McGrath constitutes general investigatory work which is not the type of exculpatory evidence the state has to turn over to the defense. See Moore, 408 U.S. at 795. The prosecution has a duty to disclose only evidence that is favorable to a defendant. See Brady, 373 U.S. at 87. In the case at bar, appellant presents no evidence that the crime stopper reports were exculpatory.
{¶23} Nor is the victim's statement to the police exculpatory. McGrath described his assailant as six feet tall, that is two inches taller than appellant. McGrath also identified his attacker as light complected with long hair, whereas appellant has a medium complexion and, at the time of his arrest, had short hair. We note, however, that a two-inch difference in height is not significant. Nor do we find the difference in complexion tones exculpatory in light of one witness' testimony that appellant was found with liquid make-up upon...
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