State v. Larkins, 2006 Ohio 90 (OH 1/12/2006)
| Decision Date | 12 January 2006 |
| Docket Number | No. 85877.,85877. |
| Citation | 2006 Ohio 90 |
| Parties | State of Ohio, Plaintiff-Appellant v. Ronald Larkins, Defendant-Appellee. |
| Court | Ohio Supreme Court |
William D. Mason, Esq., Cuyahoga County Prosecutor, BY: Kristin L. Lusnia, Esq., Assistant County Prosecutor, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, for plaintiff-appellant.
Kort Gatterdam, Esq., Kravitz, Gatterdam and Brown, LLC, 145 East Rich Street, Columbus, Ohio 43215, David Hanson, Esq., 495 South High Street, Suite 2000, P.O. Box 06529, Columbus, Ohio 43215-2998, for defendant-appellee.
JOURNAL ENTRY and OPINION
{¶ 1} The state of Ohio appeals from the dismissal of a 1986 felony murder indictment against defendant Ronald Larkins. The court dismissed the indictment on grounds that the state's refusal to hand over exculpatory evidence, coupled with the prejudice caused by the passage of time, meant that Larkins could not obtain a fair retrial. This appeal raises important questions as to the scope and basis of sanctions levied against the state for refusing to divulge exculpatory evidence. We agree that the prejudice caused by the state's refusal to divulge exculpatory evidence has now made it impossible to restore Larkins to the position that he should have been in at the time of the first trial had he been made aware of the exculpatory evidence, and therefore find that the court did not abuse its discretion by dismissing the indictment.
I
{¶ 2} In 1986, three armed bandits held up a pawn shop and killed one of the owners and injured the other. The police quickly learned the names of two of the three assailants: Wendell Johnson and Monika Henderson. Both of them turned themselves in and identified the third person as "Road Dog." The state indicted Road Dog in Case No. 166827 for aggravated murder and listed his name on the indictment as "Road Dog," it not knowing his real name at the time it sought the indictment.
{¶ 3} "Road Dog" was later identified as Larkins. Larkins fled Ohio for Colorado immediately after the murder and, while in Colorado, he committed a robbery and was being held there for trial. Ohio requested extradition, but Larkins fought it on grounds that he had been misidentified as "Road Dog." While Ohio continued to press for extradition, Colorado extradited Larkins to Michigan to stand trial for an armed bank robbery that he committed just prior to the murder in Ohio. In any event, Larkins was found guilty in the Colorado courts and imprisoned until 1986.
{¶ 4} Upon his parol from the Colorado prison, the state returned Larkins to this jurisdiction to stand trial. The state reindicted Larkins under a new case number, Case No. 212083, this time listing his full name. The court merged this case with Case No. 166827 without objection from Larkins. A jury found Larkins guilty of aggravated murder, attempted murder and aggravated robbery. He received a life sentence. This court affirmed the conviction in State v. Larkins, Cuyahoga App. Nos. 52779 and 52780.
{¶ 5} Larkin thereafter filed various postconviction motions. One of them being a request for the Cleveland Police Department to turn over all records, including investigative records, related to the murder case. That request found its way to the Ohio Supreme Court in State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, in which the supreme court held that "[i]nformation, not subject to discovery pursuant to Crim.R. 16(B), contained in the file of a prosecutor who is prosecuting a criminal matter, is not subject to release as a public record pursuant to R.C. 149.43 and is specifically exempt from release as a trial preparation record in accordance with R.C. 149.43(A)(4)." The supreme court also held that "once a record becomes exempt from release as a `trial preparation record,' that record does not lose its exempt status unless and until all `trials,' `actions' and/or `proceedings' have been fully completed." Id. at paragraph three of the syllabus. Finally, the supreme court held that "a defendant in a criminal case who has exhausted the direct appeals of her or his conviction may not avail herself or himself of R.C. 149.43 to support a petition for postconviction relief." Id. at paragraph six of the syllabus.
{¶ 6} In short, the supreme court held that Larkins was not entitled to any of the police records that he requested. This case would have ended there, except that a person from Cincinnati named Bishop Alfred Nickles filed a public records request for documents held by the police relating to Larkins' case. For unknown reasons, the police turned over the records and Nickles forwarded them to Larkins. Those records contained the following information: 1) the description of the robbers given by eyewitnesses did not match Larkins; 2) a description of "Road Dog," the second shooter, given by potential suspect Todd Hicks did not match Larkins; 3) the police relied on a confidential informant; 4) a witness, Sonja Belcher, who was present when the robbery was planned, did not identify Larkins as one of the planners, and said she saw both robbers after it was known Larkins left town; 5) Henderson named Larkins only after the police told her that Larkins was known by the nickname, "Road Dog;" and 6) Henderson lied on the stand concerning her past criminal convictions. Moreover, Larkins learned that Henderson lied when asked whether the state had promised her anything in exchange for her testimony. Although Henderson asserted at trial that she was testifying without any promises from the state, the assistant prosecuting attorney trying the case wrote a letter on her behalf to the parole board, indicating that he promised her that he "would do everything possible to help her get off parole" because she was initially reluctant to return to Ohio to testify at trial.
{¶ 7} Larkins filed a motion for a new trial on grounds that the state withheld exculpatory evidence from him during discovery. The state opposed the motion on its merits, but also by complaining that the supreme court had ruled that the documents requested were undiscoverable under Steckman and therefore could not be used to support a postconviction motion. The trial court rejected the state's arguments and granted the motion for a new trial. On appeal, this court held in State v. Larkins, Cuyahoga App. No. 82325, 2003-Ohio-5928, that Larkins lawfully obtained the police records, so the trial court properly allowed Larkins to rely on information contained in the police records which constituted exculpatory evidence. We held that the trial court did not abuse its discretion in granting a new trial because, given that there was no physical evidence from the crime scene that specifically linked Larkins to the murder and robbery, the cumulative effect of the withheld evidence was sufficiently material to justify a new trial as it not only questioned the credibility of the state's main witnesses, but it also questioned the identity of the perpetrator of the crime.
{¶ 8} When the case went back to the trial court for a new trial, Larkins filed a motion to dismiss the indictment as a sanction for discovery violations and on grounds of preindictment delay. The discovery aspect of the motion argued that several witnesses who might have cast doubt on the state's theory of guilt but were undisclosed, were now deceased or unavailable. As for the pre-indictment delay aspect of the motion, Larkins argued that the state did not amend the indictment against him to list his correct name until 1986, therefore a period of five years elapsed from the date of the crime until he had been formally charged by name.
{¶ 9} The court made the following findings:
{¶ 10} "The Court finds that there was a pre-indictment delay of some five (5) years during that time at least two (2) key witnesses died. No explanation has been offered for this delay. While defendant did fight extradition for two years (1984-1986) it would appear from the documents appended to the State's pleadings, that the basis of his contention was that he was not the "Road Dog" named in the Ohio indictment. That has been defendant's position throughout this matter and an attempt to vindicate that position is, in fact, at the heart of these entire proceedings.
{¶ 11} "Finally, and perhaps most importantly to this Court, the defendant has been trying at least since 1994 to obtain the exculpatory evidence in possession of the State. ***
{¶ 12} "The issue hence becomes: when the State purposely secrets exculpatory evidence from a defendant resulting in a `verdict unworthy of confidence' and then actively seeks to conceal that evidence for a period of years, and as a result numerous witnesses are deceased or unable-to-be-located, is dismissal the appropriate remedy? ***
{¶ 13}
III. Preindictment Delay
{¶ 14} The state first argues that the court erred by finding that a preindictment delay supported dismissal of the indictment.
{¶ 15} The concept of preindictment delay is grounded not in the Sixth Amendment right to a speedy trial, but in the Fifth Amendment right to due process of the law. In United States v. Stierwalt (C.A.8, 1994), 16 F.3d 282, 284, 285, the Eighth Circuit Court of Appeals stated:
{¶ 16} "The Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an `accused' ***. United States v. Marion, 404 U.S. 307, 313, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). The chief purpose of the Sixth Amendment...
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