State v. Luckett

• Decision Date: 17 July 2001
• Docket Number: No. 77527.,77527.
• Citation: 144 Ohio App.3d 648,761 NE 2d 105
• Parties: The STATE of Ohio, Appellant, v. LUCKETT, Appellee.
• Court: Ohio Court of Appeals

144 Ohio App.3d 648

761 NE 2d 105

The STATE of Ohio, Appellant, v. LUCKETT, Appellee.^*

No. 77527.

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

Decided July 17, 2001.

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William D. Mason, Cuyahoga County Prosecuting Attorney, Richard J. Bombik and Saleh S. Awadallah, Assistant Prosecuting Attorneys, for appellant.

David Bodiker, State Public Defender, and Jill E. Stone, Assistant Public Defender; Terry H. Gilbert, for appellee.

MICHAEL J. CORRIGAN, Presiding Judge.

The state of Ohio herein appeals from the judgment of the trial court, subsequent to an evidentiary hearing, to grant the appellee, Frederick F. Luckett, a new trial on two counts each of rape, kidnapping, and robbery, for which he was convicted in 1979. The appellee's motion for a new trial was premised on DNA analysis of a seminal fluid allegedly showing that appellee was excluded as the source of the sperm obtained via a vaginal swab from one of the victims soon after she was raped.

On September 6, 1979, appellee was indicted for two counts of rape, two counts of kidnapping, and two counts of aggravated robbery arising out of two separate incidents which each occurred on August 4, 1979.¹ In each of the incidents, the appellee was alleged to have abducted his victim off the street, forced her into his car, and then raped the victim. In addition to being raped, both women reported that the assailant demanded money and that he went through their purses. In one of the incidents, after raping the victim, the perpetrator forced her to remain in the car while he drove to her landlord's house, where he then instructed the victim to attempt to "borrow" $300 from her landlord and then to hand it over to him. After being allowed to exit the car the victim became hysterical, causing the assailant to flee the scene.

A jury trial commenced on October 25, 1979. The appellee was convicted on both the two kidnapping counts and the two rape counts as they were contained in the indictment. In addition, the appellee was convicted on two counts of robbery, a lesser included offense of the counts of aggravated robbery for which he was indicted.

On appeal to this court the verdicts were affirmed.² See State v. Luckett (Oct. 2, 1980), Cuyahoga App. Nos. 41666, 41667, 41668 and 41669, unreported.

Although both victims sought medical treatment after being raped, the second victim, Clinkscales, waited a period of several days before doing so, making it impossible for hospital personnel to collect physical evidence of a sexual assault. The first victim, Martin, did go to Huron Road Hospital shortly after the commission of the offense, where a vaginal swab was administered and showed the presence of spermatozoa in the victim's vaginal canal. No tests were ever performed to confirm that the sperm in question belonged to the appellee, nor was any such test ever requested by the appellee's counsel.³ Both victims (as well as a third rape victim from case No. 50553) identified the appellee as the perpetrator of the offense by both appearance and voice from a lineup, and each testified that their assailant had a peculiar method of "dragging" his speech. Each victim also provided similar descriptions of the physical appearance and dress of their assailant and of the vehicle used in the commission of the crimes.

At trial the prosecutor made reference to the presence of sperm on the person of the first victim during his closing arguments as evidence that she had been raped, although there was no testimony provided by the victim as to whether her assailant had ejaculated during the commission of the offense. There was also never any testimony elicited at trial as to whether the first victim was sexually active and whether she had engaged in consensual intercourse with another male during the twenty-four-to-forty-eight-hour time period immediately preceding the time that she was raped.

Seventeen years later, on October 26, 1996, the appellee filed a motion with the trial court seeking a court order that Huron Road Hospital release the slide containing the specimen in question so that a DNA analysis could be conducted. This motion was not opposed by the state. The trial court ordered that the hospital release the slide for testing on November 15, 1996, and subsequently ordered that the Department of Rehabilitation and Correction permit blood to be drawn from the appellee.

The slide was initially sent to Forensic Science Associates ("FSA") in Richmond, California, for testing. FSA reported that the material on the slide was too deteriorated to produce any results. In a letter dated September 9, 1997, FSA reported its results as follows:

"1. The genes described above could not be amplified or typed from either the sperm DNA fraction or the E cell DNA fraction from the vaginal slide Item 1. Since no human DNA was detectable in either of these fractions it is likely that the DNA recovered from the spermatozoa and abundant white blood cells is inadequate for a PCR based DNA analysis of this evidence.

"2. It is likely that this evidence is inadequate, in part, due to the staining process H & E used on these cells. The hematoxylin stain typically employs both strong base and strong acid wash steps. This type of processing typically degrades DNA. While some samples processed in this manner may be successfully employed in a PCR analysis, this sample has not only been degraded by the histochemical staining process, it subsequently has been degraded by 20 years of aging. In light of this history, and our current findings, it is unlikely that DNA capable of a PCR based analysis remains in the cellular material from the slide."

FSA reported that its analysis consumed approximately half of the sample on the slide that had been preserved by Huron Road Hospital.

On January 27, 1998, FSA, at the appellee's request, sent the slide with the remaining sample to Cellmark Diagnostics in Germantown, Maryland, for further testing. Cellmark was able to conduct a DNA analysis on the remaining cellular material on the slide, but in doing so consumed the remainder of the sample. The Cellmark analysis concluded, in a report dated March 26, 1998, that"Frederick Luckett is excluded as a source of the DNA obtained from the sperm fraction of the slide."

Based upon these results, on April 21, 1998, the appellee simultaneously filed a motion for leave to file a motion for a new trial and a motion for a new trial. The trial court held evidentiary hearings on both of these motions.

The hearing on the motion for a new trial commenced on December 8, 1999. At the outset of the hearing, the parties entered into a nineteen-paragraph joint stipulation as to much of the evidence. Included in the stipulations were the following:

"1. The Ohio Supreme Court has held that DNA testing is scientifically valid, reliable and admissible as evidence.

"2. STR DNA testing (as performed by Cellmark Diagnostics in its analysis of the slide obtained from Huron Road Hospital) is scientifically valid, reliable and admissible as evidence.

"3. Cellmark Diagnostics is a reputable laboratory accredited for forensic work.

"4. On March 28, 1998, employees at Cellmark Diagnostics completed STR DNA testing and concluded that based on the sperm DNA in the Huron Road Hospital slide, M79-146, and blood DNA from appellee's sample, that the appellee is excluded as the source of the DNA obtained from the sperm fraction on the Huron Road Hospital slide."

On December 29, 1999, the trial court granted the appellee's motion for a new trial. The trial court found in part as follows:

"You get into all these credibility questions and those are credibility questions that would go to a jury in this case. * * * The jury is faced with the question of whether scientific testimony is so persuasive that it overrides these eyewitnesses. So that becomes a jury question.

"Certainly, identification in this case as a primary issue and, certainly, the State wanted to try the Clinkscales and the Martin cases together because, even if people are strangers to their assailant, thus have never seen the assailant before, could be greatly mistaken, maybe two of them together who come to this conclusion, or if one of them isn't such a strong witness but the other circumstances are so similar and the witness who is a strong witness is to be believed, then even though the second eyewitness identification might be a little shaky, you can rely on the other witness. That is why this case was tried together. * * *

"So I think that the defense has shown here that this evidence is material and that it couldn't have produced the evidence at the time of this trial and that it has brought it forward in a timely fashion, after the science itself had become developed and accepted. So, I am going to grant this motion, as it relates to the cases involving Ms. Clinkscales and Ms. Martin."

It is from the trial court's order granting the motion for a new trial that the state brings the instant appeal. The state presents the following single assignment of error for this court's review:

"The trial court abused its discretion and acted in a capricious and arbitrary manner by granting the defendant's motion for new trial based upon newly discovered evidence contrary to Criminal Rule 33(A)(6), State v. Petro and the trial court's own orders to the parties."

Crim. R. 33(A)(6) provides as follows:

"(A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:

"* * *

"(6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be...