State v. Noling

• Decision Date: 06 March 2018
• Docket Number: No. 2014–1377,2014–1377
• Citation: 153 Ohio St.3d 108,101 N.E.3d 435,2018 Ohio 795
• Parties: The State of Ohio, Appellee, v. Noling, Appellant.
• Court: Ohio Supreme Court

153 Ohio St.3d 108

101 N.E.3d 435

2018 Ohio 795

The State of Ohio, Appellee,

v.Noling, Appellant.

No. 2014–1377

Supreme Court of Ohio.

Submitted June 20, 2017

Decided March 6, 2018

Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J. Holder, Assistant Prosecuting Attorney, for appellee.

Ohio Innocence Project, Brain Howe, and Mark A. Godsey; and Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant Public Defender, for appellant.

Fischer, J.{¶ 1} In this direct appeal as of right, Tyrone Noling, a capital defendant, has appealed from several rulings of the Court of Common Pleas of Portage County relating to his second application for postconviction DNA testing. For the reasons below, we affirm the lower court's judgment in part and reverse it in part.

I. RELEVANT BACKGROUND

{¶ 2} Noling was found guilty of aggravated murder and was sentenced to death for killing Bearnhardt and Cora Hartig in Portage County in 1990. The court of appeals and this court affirmed Noling's convictions and death sentence. State v. Noling , 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88 (" Noling I "). Noling also filed a petition seeking a federal writ of habeas corpus, which was denied, and he has filed numerous applications for state postconviction relief.

{¶ 3} The only issues presently before this court relate to Noling's request for postconviction DNA testing under R.C. 2953.71 through 2953.81.

A. Noling filed an application for DNA testing of a cigarette butt

{¶ 4} Noling filed his first application for DNA testing in 2008, seeking testing of a cigarette butt found on the driveway of the Hartig home. Noting that a DNA test conducted before trial had already excluded Noling and his codefendants as the source of the DNA on the cigarette butt, the trial court rejected Noling's application, because it found that the earlier DNA test was definitive. State v. Noling , 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 4 (" Noling II ").

B. Noling filed a second application for DNA testing

{¶ 5} In 2010, Noling filed a second application for DNA testing of the cigarette butt, arguing that testing was warranted because newly discovered evidence pointed to other suspects in the murders. Id. at ¶ 6.

{¶ 6} First, Noling alleged that the prosecution had failed to disclose a statement made by Nathan Chesley that inculpated Chesley's foster brother, Daniel Wilson, in the Hartig murders. In an affidavit submitted in support of the application, Chesley described Wilson to police as a heavy drinker and a violent person who had committed thefts and broken into homes at the time of the Hartig murders. He also stated that Wilson drove a blue Dodge Omni—this is possibly significant because another witness saw a dark blue, midsize car near the Hartig residence on the day of the murders. According to Noling, previous analysis of the cigarette butt and of Wilson's saliva did not exclude Wilson as the source of the DNA on the cigarette butt. Id.

{¶ 7} Second, Noling alleged that previously undisclosed documents identified other possible suspects, including the Hartigs' insurance agent, who had defaulted on a loan from the Hartigs. Noling claimed that because of advances in DNA technology, it would now be possible to positively identify the individual whose DNA is on the cigarette butt and that DNA identification of one of the previously undisclosed suspects would be "outcome determinative," because it would identify that person as the killer. Noling II , 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, at ¶ 6. The trial court again denied Noling's application. Id. at ¶ 7.

C. This court remanded for consideration of further testing

{¶ 8} On appeal from the denial of Noling's second application for DNA testing, we held that R.C. 2953.73(E)(1) is constitutional. Noling II at paragraph one of the syllabus. We also held that "[b]efore dismissing a subsequent application for postconviction DNA testing under R.C. 2953.72(A)(7), a trial court must apply the definition of ‘definitive DNA test’ set forth in R.C. 2953.71(U) and the criteria of R.C. 2953.74." Id. at paragraph two of the syllabus.

{¶ 9} We reversed and remanded for the trial court to "consider whether the evidence regarding Wilson or the other suspects * * * show[s] by a preponderance of the evidence that there is a possibility of discovering new biological material from the perpetrator that the prior DNA test may have failed to discover." Id. at ¶ 42.

D. Noling filed a motion to amend his second application

{¶ 10} After we decided Noling II , Noling filed a motion in October 2013 to amend his second application for DNA testing. He requested testing of the shell casings collected from the Hartigs' kitchen and the ring boxes collected from their bedroom. He also requested submission of the shell casings and projectiles from the crime scene to the FBI's National Integrated Ballistic Information Network ("NIBIN") for a possible match with the missing murder weapon.

{¶ 11} The state objected to Noling's motion, arguing that the shell casings and ring boxes had been contaminated and were not suitable for DNA testing. The state pointed out that this evidence was collected and examined before exacting standards for handling evidence to preserve uncontaminated DNA for testing were in place. The state also objected to submitting the shell casings to NIBIN, because that request was unrelated to Noling's motion to amend his DNA application.

{¶ 12} The trial court granted Noling's motion to amend his application. The court overruled Noling's request to submit the shell casings to NIBIN, because no statutory procedure exists to make such a request.

E. BCI tested the cigarette butt

{¶ 13} In December 2013, the trial court ordered the Ohio Bureau of Criminal Investigation ("BCI") to collect DNA evidence from the cigarette butt and compare the DNA profile created from that evidence with the DNA profiles in the Combined DNA Index System ("CODIS"), a database of DNA profiles created by law-enforcement agencies. The comparison revealed that the DNA was from "an unknown male." BCI also reported that the DNA profile was compared with profiles in the local, state, and national levels of the CODIS database "without a hit." Additionally, BCI confirmed that Wilson's DNA profile was in a database that was searched.

{¶ 14} The state provided Noling with a one-page report. The report included a statement that "DNA profiling

was performed using the polymerase chain reaction at the short tandem repeat loci" and listed the loci that were identified. The report did not include the DNA profile that was created as a result of this process but did include the statement that "[t]he DNA profile from the cutting from the cigarette butt (Item 1.1.1) is from an unknown male."

F. Noling filed a motion for a "Copy of Complete DNA Test Results"

{¶ 15} After receiving BCI's results, Noling filed a motion requesting a "Copy of Complete DNA Test Results," including laboratory notes, allelic charts, electropherograms, and quantification measurements that BCI generated. He argued that the single-page report provided to the defense reflected only the testing authority's conclusions about the DNA results and that the report did not include all the results of the testing. The state objected, citing the absence of a statutory requirement to release additional information. See R.C. 2953.81(C). The trial court denied the motion.

G. The trial court ordered BCI to determine the quantity and quality of biological material on the ring boxes and shell casings

{¶ 16} On December 19, 2013, the trial court ordered the prosecutor and BCI to prepare findings regarding the quantity and quality of the parent sample of the ring boxes and shell casings ("the December 19 order"). The court directed the "testing authority" to determine whether there is "a scientifically sufficient quantity of the parent sample to test, [and] whether the parent sample is so minute or fragile that there is a substantial risk that the parent sample could be destroyed."

H. Noling requested Cellmark as the testing authority

{¶ 17} On December 26, 2013, Noling moved the court to stay the December 19 order, and on December 30, he moved the court to amend that order to select Orchid Cellmark Laboratories ("Cellmark") as the testing authority for the ring boxes and shell casings. Noling argued that Cellmark was best equipped to answer the trial court's question regarding the quantity and quality of biological material on the evidence, because it used more advanced DNA technology. Noling also argued that advanced testing was needed to resolve the state's claim that the evidence was contaminated.

{¶ 18} At a subsequent hearing, the defense presented Dr. Rich Staub, an expert in DNA and forensic testing, to explain why Cellmark was the better choice to conduct testing on the shell casings and ring boxes. He stated that advanced DNA-testing capabilities were necessary to identify DNA on evidence handled by multiple persons. Staub testified that Cellmark used a commercial kit for DNA analysis that was more sensitive and "less susceptible to inhibitors" than those used by BCI.

{¶ 19} The state presented the affidavit of Dr. Lewis Maddox, the DNA technical leader at BCI. Maddox stated that in the 1990s, BCI laboratory, latent-print, and firearms analysts did not follow sterile procedures to minimize low-level contamination. He stated that the "use of current-or-future DNA tests on evidence which has been clearly subject to contamination, followed by the assertion that the presence of unattributable partial results are evidence of alternative subjects does not shed light on who may have touched the casings or jewelry box during the crime in 1990." He stated that he could "think of no way to rule out contamination from years of mishandling."

{¶ 20} Maddox stated that BCI does not conduct DNA testing on fired casings unless the forensic question is related to handling after firing. Maddox added...