State v. Biggs ( 2013 )

[Cite as State v. Biggs, 2013-Ohio-3333.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
JAY LEWIS BIGGS : Case No. 2013CA00009
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2008CR0653
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 29, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAUL L. SCARSELLA CARRIE WOOD
150 East Gay Street, 16th Floor MARK GODSEY
Columbus, OH 43215 Ohio Innocence Project
P.O. Box 210040
Cincinnati, OH 45221-0040
CHRYSSA HARTNETT
110 Central Plaza South, Suite 510 ADAM VANHO
Canton, OH 44702-1413 137 South Main Street, Suite 201
Akron, OH 44308
Stark County, Case No. 2013CA00009 2
Farmer, J.
{¶1} On May 28, 2008, the Stark County Grand Jury indicted appellant, Jay
Lewis Biggs, on two counts of aggravated murder with death penalty specifications in
violation of R.C. 2903.01, two counts of murder in violation of R.C. 2903.02, one count
of rape in violation of R.C. 2907.02, and one count of endangering children in violation
of R.C. 2919.22. Said charges arose from the death of appellant's four month old
daughter.
{¶2} A jury trial commenced on October 1, 2008. The jury found appellant
guilty as charged, and recommended that appellant serve a term of life imprisonment
without the possibility of parole. By judgment entry filed December 5, 2008, the trial
court sentenced appellant to life in prison without parole. Appellant's conviction was
affirmed on appeal. State v. Biggs, 5th Dist. Stark No. 2008CA00285, 2009-Ohio-6885.
The Supreme Court of Ohio declined to hear an appeal. State v. Biggs, 125 Ohio St.3d
1438, 2010-Ohio-2212.
{¶3} On November 7, 2012, the Ohio Innocence Project filed a motion to
release biological samples in the case. The Innocence Project sought new copies of
the tissue slides in order to evaluate appellant's case for any possible postconviction
proceedings. By judgment entry filed December 12, 2012, the trial court denied the
motion.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
Stark County, Case No. 2013CA00009 3
I
{¶5} "THE TRIAL COURT ERRED WHEN IT CREATED A CIRCULAR AND
SELF-DEFEATING LEGAL STANDARD FOR OBTAINING TISSUE SLIDES FROM AN
AUTOPSY SUCH THAT NO APPLICATION FOR TISSUE SLIDES FROM AN
AUTOPSY WOULD EVER BE GRANTED IN VIOLATION OF BOTH THE U.S. AND
OHIO CONSTITUTIONS."
II
{¶6} "THE TRIAL COURT ERRED IN FAILING TO RELEASE RE-CUTS OF
THE TISSUE SLIDES TO DEFENDANT'S FOUR LISTED EXPERTS AS REQUIRED
BY BOTH OHIO LAW AND THE U.S. AND OHIO CONSTITUTIONS."
III
{¶7} "THE TRIAL COURT ERRED WHEN IT ANALYZED DEFENDANT'S
REQUEST FOR TISSUE SLIDES AS BEING BASED SOLELY ON ADVANCEMENTS
IN S.I.D.S."
IV
{¶8} "THE TRIAL COURT ERRED IN EVALUATING BIGGS'S MOTION FOR
RELEASE AS A MOTION FOR POST-CONVICTION RELIEF."
I, II
{¶9} Appellant claims the trial court erred in denying his motion to release
biological samples in his case as the trial court's decision created a circular and self-
defeating standard, the samples had previously been provided to his trial counsel but
were lost by his expert, due process requires such release, and in the absence of a
statute, the trial court had the discretion to release the tissue slides. We disagree.
Stark County, Case No. 2013CA00009 4
{¶10} The Ohio Innocence Project filed the motion to release biological samples
on behalf of appellant in order to determine if any postconviction proceedings were
warranted. The Innocence Project requested tissue slides from the autopsy performed
on the infant victim because three experts it contacted to conduct a review needed to
examine the original slides. Each expert opined that in order to review the case "a
new," they must examine the tissue slides. See, Exhibits A, B, and C, attached to the
Motion to Release Biological Samples filed November 7, 2012.
{¶11} Preliminarily, it is necessary to point out that time has long since passed
for appellant to file an application for postconviction relief or a motion for new trial in the
ordinary course of criminal procedure. There is no motion for postconviction relief
currently pending or contemplated by the Innocence Project at this time. There is no
specific statutory right or privilege invoked by appellant's motion or any indication of a
specific criminal rule or procedure that is applicable to this case. The jurisdiction of the
trial court appears not to have been invoked by specific statute or rule.
{¶12} This matter presents an issue of first impression to this court. We
conclude that given the issue of the trial court's jurisdiction and the lack of any statutory
authority relative to this request, our standard of review of the trial court's decision is de
novo "as a matter of law."
{¶13} Because of the lack of statutory authority or specific rule, we are forced by
analogy to review this motion by the standards set forth in R.C. 2953.73, 2953.74, and
2953.75 relative to DNA evidence.
{¶14} In State v. Prade, 126 Ohio St.3d 27, 2010-Ohio-1842, the Supreme Court
of Ohio set forth a two-stage analysis for postconviction relief under R.C. 2953.74.
Stark County, Case No. 2013CA00009 5
Former Justice Stratton found in a DNA testing application pursuant to R.C. 2953.73,
the movant must first prove "new DNA testing methods are now able to provide new
information that was not able to be detected at the time of defendant's trial." Prade at ¶
23. In addition, the movant must show that the new testing would have been outcome-
determinative at the original trial (¶ 25):
R.C. 2953.71 provides that "outcome determinative" means that
"had the results of DNA testing of the subject inmate been presented at
the trial of the subject inmate requesting DNA testing and been found
relevant and admissible with respect to the felony offense for which the
inmate is an eligible inmate and is requesting the DNA testing or for which
the inmate is requesting the DNA testing under section 2953.82 of the
Revised Code, and had those results been analyzed in the context of and
upon consideration of all available admissible evidence related to the
inmate's case as described in division (D) of section 2953.74 of the
Revised Code, there is a strong probability that no reasonable factfinder
would have found the inmate guilty of that offense * * *." (Emphasis
added.) R.C. 2953.71(L).
{¶15} We will analyze appellant's request in this case under this two-stage
standard. First, is the testing asked of the experts an innovative, advanced or new
scientific test or form of analysis unavailable at the time of appellant's trial?
Stark County, Case No. 2013CA00009 6
{¶16} The three experts contacted by the Innocence Project, George R. Nichols,
II, M.D., Marvin Miller, M.D., and Mark J. Shuman, M.D., M.S., all explained they
needed to exam the tissue slides in order to evaluate the case, but did not even infer
that the science now available was new, innovative or more advanced than the science
utilized by appellant's expert at trial, Werner Spitz, M.D. See, Exhibits A, B, and C,
attached to the Motion to Release Biological Samples filed November 7, 2012. In fact,
in an e-mail dated February 3, 2012, Dr. Shuman already concluded without the slides
that his opinion differs from the opinions of the state's expert witnesses at trial, P.S.S.
Murthy, M.D. and Anthony Bertin, D.O. See, Exhibit D, attached to the Motion to
Release Biological Samples filed November 7, 2012.
{¶17} Appellant argues Dr. Shuman would be the first pediatric forensic
specialist to offer an opinion in the case as none of the state's experts or appellant's
own expert were pediatric forensic specialists. With all due respect to the better choice
of expert, this argument has long gone "left the station" as a viable reason for
appellant's motion.
{¶18} Appellant also offers that "advancements" have been made in the study of
infant deaths since the time of appellant's trial. Appellant supported this statement in
his motion at footnote no. 4 as follows:
For example, child medical specialists now have a greater
understanding about accidental asphyxiation resulting from unsafe
sleeping conditions, these deaths having commonly been labeled as
sudden infant death syndrome ("SIDS"). See State v. Hansen, 2008 Minn.
Stark County, Case No. 2013CA00009 7
App. Unpub. LEXIS 292 (Minn. App. 2008), review denied State v.
Hansen, 2008 Minn. LEXIS 329 (2008), motion for new trial granted
"Findings of Fact, Conclusions of Law and Order," No. 23-KX-04-1222,
District Court of Douglas County (July 13, 2011) (attached as Defendant's
Exhibit F). In Hansen, the defendant was convicted of second-degree
murder for the death of his infant daughter. The autopsy revealed
evidence of a skull fracture, which was presumed to have been caused by
intentional blunt force trauma. Subsequent review by medical experts
revealed that the skull trauma had been caused by the infant's car carrier
falling onto the ground with the infant inside, and that this trauma was not
fatal. Instead, the experts believe that the infant had died as the result of
"positional asphyxiation," i.e., accidental asphyxiation due to unsafe sleep
conditions, as she had been sleeping face-down on a futon with her father,
surrounded by loose pillows. Unexplained infant deaths are often
classified as sudden infant death syndrome ("SIDS"), but advancements in
knowledge about SIDS and positional asphyxia led the district court to
grant the defendant's motion for new trial on the basis of this newly-
discovered scientific evidence. See, id.{¶19} We find this reference does not rise to the level of new advancements in
the determination of infant deaths as the Hansen case was fact specific.
{¶20} Based upon our review, we find no evidentiary quality averments
necessary to fulfill the first prong of Prade. There is no evidence of any new definitive
Stark County, Case No. 2013CA00009 8
tests. We therefore conclude appellant has failed to meet his burden required for the
resubmission of the tissue slides to his "newly discovered" experts.
{¶21} By inference, appellant argues he was afforded the tissue slides in initial
discovery and therefore what harm is there in permitting him to have them again.
Presumably, if Dr. Spitz had not lost/destroyed the slides, appellant's new experts could
render their reports without judicial intervention. Basically, the argument is "no harm, no
foul."
{¶22} To this position, we find Justice O'Donnell comments in his dissent in
Prade at ¶ 41-43 to be on point:
This construction of the statute is supported by the narrow remedy
afforded inmates in seeking postconviction relief. As this court explained
in State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67,
postconviction review is not a constitutional right, and it provides only "a
narrow remedy." Because of the significant societal interest in the finality
of judgments, the postconviction-relief statute provides only a limited
opportunity to collaterally attack a conviction, an opportunity not intended
to allow inmates to relitigate issues previously resolved at trial. See id.(explaining that res judicata applies to actions for postconviction relief);
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶
47 (noting that courts construe statutes establishing postconviction relief
narrowly to uphold the societal interest in final judgments). As we stated in
State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233: " ' "[P]ublic
Stark County, Case No. 2013CA00009 9
policy dictates that there be an end of litigation; that those who have
contested an issue shall be bound by the result of the contest, and that
matters once tried shall be considered forever settled as between the
parties." ' " Id. at 95, 671 N.E.2d 233, quoting Federated Dept. Stores,
Inc. v. Moitie (1981), 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103,
quoting Baldwin v. Iowa State Traveling Men's Assn. (1931), 283 U.S.
522, 525, 51 S.Ct. 517, 75 L.Ed. 1244.
This court should treat an inmate's postconviction application for
DNA testing no differently. Notably, in District Attorney's Office for Third
Judicial Dist. v. Osborne (2009), ––– U.S. ––––, ––––, 129 S.Ct. 2308,
2323, 174 L.Ed.2d 38, the Supreme Court of the United States declined to
recognize a freestanding constitutional right to postconviction DNA testing.
The court explained that any due process right of access to DNA evidence
"must be analyzed in light of the fact that [the inmate] has already been
found guilty at a fair trial, and has only a limited interest in postconviction
relief," id. at 2320, and it recognized that resolving the dilemma of "how to
harness DNA's power to prove innocence without unnecessarily
overthrowing the established system of criminal justice" is a "task [that]
belongs primarily to the legislature," id. at 2316.
In enacting R.C. 2953.71 et seq., the General Assembly took up
this task, considered the public-policy questions raised by postconviction
DNA testing, measured an inmate's interest in proving actual innocence
against the societal interest in the finality of judgments, and established a
Stark County, Case No. 2013CA00009 10
limited remedy affording postconviction DNA testing in cases where
biological evidence has not been the subject of a prior definitive test. This
court should not expand that remedy beyond the statute's express terms.
The legislature could have provided for courts to consider advances in
testing technology in determining whether prior tests were definitive, yet it
chose not to do so. Instead, by barring applications for retesting when
there has been a prior definitive test, the legislature signaled its intent to
uphold the finality of convictions.
{¶23} Upon review, we find the trial court did not err in denying appellant's
motion to release biological samples.
{¶24} Assignments of Error I and II are denied.
III, IV
{¶25} Appellant claims the trial court erred in determining his request was based
solely on advancements in diagnosing S.I.D.S., and erred in evaluating the motion as a
motion for postconviction relief. We disagree.
{¶26} Because we are addressing the issues herein de novo as a matter of law,
we find it is unnecessary to address these assignments as, noted above, it is hard to
determine what jurisdictional avenue is open to appellant, if any. Further, appellant's
motion contains a statement which was not supported by any affidavit or quality
evidence that there have been advancements in the study of infant deaths, including the
diagnosis of S.I.D.S., since appellant's trial. See, Appellant's Motion to Release
Biological Samples filed November 7, 2012 at page 3.
Stark County, Case No. 2013CA00009 11
{¶27} Assignments of Error III and IV are denied.
{¶28} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. Patricia A. Delaney
SGF/sg 0709
[Cite as State v. Biggs, 2013-Ohio-3333.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JAY LEWIS BIGGS :
:
Defendant-Appellant : CASE NO. 2013CA00009
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellant.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. Patricia A. Delaney