State v. Gillispie , 2016 Ohio 7688 ( 2016 )

[Cite as State v. Gillispie, 2016-Ohio-7688.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : C.A. CASE NO. 26965
:
v. : T.C. NO. 90CR2667
:
ROGER DEAN GILLISPIE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the ____10th__ day of _____November_____, 2016.
...........
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
MARK GODSEY, Atty. Reg. No. 0074484, Ohio Innocence Project, University of
Cincinnati College of Law, P. O. Box 210040, Cincinnati, Ohio 45221
and
JIM PETRO, Atty. Reg. No. 0022096, 343 Peach Avenue, Lakeside Marblehead, Ohio
43440
and
PIERRE H. BERGERON, Atty. Reg. No. 0071402 and COLTER L. PAULSON, Atty. Reg.
No. 0081903 and LARISA M. VAYSMAN, Atty. Reg. No. 0090290, 221 E. Fourth Street,
Suite 2900, Cincinnati, Ohio 45202
Attorneys for Defendant-Appellee
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.............
FROELICH, J.
{¶ 1} The State of Ohio appeals from the trial court’s grant of Roger Dean
Gillispie’s “Motion to Compel Discovery and, If Required Discovery is Not Produced, to
Dismiss Indictment,” in which the trial court dismissed the State’s indictment against
Gillispie. For the following reasons, the trial court’s judgment will be affirmed.
I. Factual and Procedural History
{¶ 2} The procedural history of this case in both state and federal court is long and
complicated, but integral to an understanding of our opinion.
{¶ 3} In July 1991, Gillispie was convicted by a jury of nine counts of rape, three
counts of kidnapping, three counts of gross sexual imposition, and one count of
aggravated robbery based on two separate incidents of sexual assault that occurred in
August 1988. Except for the three counts of gross sexual imposition, each count carried
a firearm specification. In accordance with the sentencing statutes at the time, the trial
court imposed an indeterminate sentence of 22 years to 56 years in prison. Gillispie’s
conviction and sentence were affirmed on direct appeal. State v. Gillispie, 2d Dist.
Montgomery Nos. 12941 & 13585, 1993 WL 10927 (Jan. 21, 1993).
{¶ 4} The specific facts underlying Gillispie’s convictions have been detailed in
several prior appeals. E.g., id.; State v. Gillispie, 2d Dist. Montgomery Nos. 22877 &
22912, 2009-Ohio-3640. We have summarized those facts, as follows:
* * * On August 5, 1988, defendant forced his way into the passenger
side of [S.C.’s] car as she was leaving a drug store. At gunpoint, he forced
her to drive behind a vacant building in the shopping center where he
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exposed himself, fondled her, and forced her to perform oral sex.
On August 20, 1988, in another shopping center, defendant forced
his way into the rear seat of a car occupied by [C.W.] and [B.W.] as they
were about to leave the center. He pretended to be a security officer and,
at gunpoint, forced the twins to drive to a secluded area where he exposed
himself, fondled them and forced each of them to perform oral sex.
State v. Gillispie, 2d Dist. Montgomery No. 14595, 1995 WL 41334, *1 (Feb. 1, 1995)
(affirming the dismissal of Gillispie’s petition for post-conviction relief).
{¶ 5} At trial, Gillispie claimed that he had an alibi for the times of the rapes. He
asserted that he was with friends on August 5, 1988, and that he was camping with friends
in Kentucky during the weekend of August 20, 1988.
{¶ 6} Gillispie filed numerous motions in the years following his conviction. Of
relevance to this appeal, on February 13, 2008, Gillispie filed a second petition for post-
conviction relief or, in the alternative, a motion for a new trial. He argued that new
evidence, falling into three broad categories, had come to light: (1) evidence of police
corruption, perjury, witness tampering and other official misconduct of various types
by Detective Scott Moore of the Miami Township Police Department; (2) additional
evidence that an alternative suspect, Kevin Cobb, committed the offenses; and (3)
new scientific understanding in the field of eyewitness identification.
{¶ 7} With regard to his allegation of police misconduct, Gillispie argued, in part,
that the State had failed to provide exculpatory evidence known to the police, violating his
right to due process as set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963). Gillispie further argued that, to the extent that such exculpatory
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evidence was not preserved by the State, such failure to preserve evidence violated his
due process rights under Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d
281 (1988). The alleged Brady material consisted of receipts from a campground in
Kentucky and supplemental police reports that indicated that Gillispie had once been
eliminated as a suspect by the original police investigators, Detectives Steven Fritz and
Gary Bailey.
{¶ 8} Upon review of the trial court’s denial of Gillispie’s petition and motion, we
concluded that the trial court did not err in finding no Brady violations. Gillispie, 2d Dist.
Montgomery Nos. 22877 & 22912, 2009-Ohio-3640, at ¶ 47-106. We also concluded
that the alleged new scientific evidence regarding eyewitness identification did not
warrant a new trial. Id. at ¶ 139-151. However, we concluded that additional evidence
regarding Cobb constituted “new evidence” sufficient to require a hearing on whether a
new trial was warranted. Id. at ¶ 138.
{¶ 9} In December 2009, prior to a hearing in the trial court on Gillispie’s motion
for a new trial, Gillispie filed a petition for a writ of habeas corpus in the United States
District Court for the Southern District of Ohio based on the alleged Brady violations.1
After this date, proceedings occurred in both state and federal court.
{¶ 10} In July 2010, the state trial court held a hearing on Gillispie’s motion for a
new trial based on Cobb as an alternative suspect. In December 2010, the trial court
1
The case in federal district court proceeded before a magistrate judge. Pursuant to 28
U.S.C. 636(c), the magistrate judge had plenary jurisdiction over the case upon the
parties’ unanimous consent and referral from the district court. Consequently, the
magistrate judge had the authority to enter judgment in the case (as opposed to issuing
a report and recommendation to the district court), and any appeals from the magistrate
judge’s judgments were made directly to the Sixth Circuit. See id.
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denied the motion. Gillispie appealed.
{¶ 11} On December 15, 2011, relying exclusively on the state court record,2 the
district court granted Gillispie a conditional writ of habeas corpus, finding that a Brady
violation had occurred. The district court wrote:
* * * In late 1989 or early 1990, during the initial investigation,
detectives Fritz and Bailey considered Mr. Gillispie as a suspect after Rick
Wolfe brought to the detectives a picture of Mr. Gillispie whom Mr. Wolfe
had just terminated as an employee at General Motors (GM). The
investigating detectives noted that the “Wanted” poster for the case had
been posted for almost two years at GM, but that Mr. Wolfe did not bring
Mr. Gillispie to the detectives’ attention until after he (Mr. Wolfe) had a fight
with Mr. Gillispie and terminated his employment. Nevertheless, the
original investigating detectives eliminated Mr. Gillispie as a suspect
because he did not fit the physical description of the rapist which the victims
had given nor did he fit the profile of the rapist. Eventually, Detective Fritz
informed Mr. Wolfe that he and Det. Bailey did not consider Mr. Gillispie a
good suspect and that there were not going to be charges brought against
him. At some point after Dets. Fritz and Bailey had eliminated Mr. Gillispie
as a suspect, Mr. Wolfe again approached the detectives about the rape
2
On March 10, 2011, the district court held an evidentiary hearing on Gillispie’s Brady
claim. However, in its decision, the magistrate judge stated that Cullen v. Pinholster, 563
U.S. 170, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011), which the United States Supreme
Court decided after that evidentiary hearing, precluded the district court from considering
the evidence that the parties introduced at the hearing in deciding the habeas corpus
question in Gillispie’s case. Gillispie v. Timmerman-Cooper, 835 F. Supp. 2d 482, 494
(S.D. Ohio 2011).
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case and brought several photographs to them. Because the investigators
had already eliminated Mr. Gillispie as a suspect, Det. Fritz just put the
photos into the case file. Det. Bailey prepared supplemental reports
describing the events involving Mr. Wolfe, their investigation of Mr. Gillispie,
their elimination of Mr. Gillispie as a suspect, and their reasons therefor.
When Det. Moore, who had recently been promoted to detective,
took over the investigations in June 1990 almost two years after the crimes
were committed, he contacted the victims and presented a photo spread to
them. The photo of Mr. Gillispie was closer and larger than the other
photos in the spread and, unlike the other photos, had a matte finish. The
victims identified Mr. Gillispie.
There was, of course, absolutely no physical evidence that
connected Mr. Gillispie to the crimes. However, the parties agree that at
the trial, the three victims each testified that Mr. Gillispie was the person
who committed the crimes. Nevertheless, at some point in deliberations
the jury was deadlocked eight to four in favor of acquittal. See Gillespie
[sic], 1993 WL 10927 at *3. It was not until the trial court delivered an Allen
charge to the jury that it convicted Mr. Gillispie. That fact sheds light on
the relative weakness of the case the State presented to the jury.
The jury never heard testimony about the original investigating
officers, Dets. Fritz and Bailey, eliminating Mr. Gillispie as a suspect nor the
reasons why they eliminated him. While Dets. Fritz’s and Bailey’s opinions
as to why Mr. Gillispie was not a good suspect certainly do not directly go
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to the issue of Mr. Gillispie’s guilt or innocence, they clearly go to the quality
of the investigation which took place subsequent to Dets. Fritz’s and
Bailey’s investigation. The withheld information is material which would
have allowed Mr. Gillispie’s counsel to impeach Det. Moore with respect to
his investigation of the crimes for which Mr. Gillispie was tried and
convicted. Cf., D’Ambrosio v. Bagley, No. 1:00-CV-2521, 2006 WL 1169926
(N.D.Ohio Mar. 24, 2006), aff’d, 527 F.3d 489 (6th Cir.2008). In view of the
State’s case, that information “could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.”
VanHook [v. Bobby, 661 F.3d 264 (6th Cir.2011).]
“Materiality” for purposes of Brady analysis is a mixed question of
law and fact. United States v. Phillip, 948 F.2d 241 (6th Cir.1991). The
state courts’ determination that the evidence in question is not material is
both an unreasonable determination of the facts in light of the evidence
presented to those courts and an objectively unreasonable application of
Brady and its progeny.
This Court concludes that Mr. Gillispie’s Ground for Relief 1 is
meritorious. Specifically, the Court finds that Mr. Gillispie was denied his
right to due process pursuant to the Fourteenth Amendment as interpreted
in Brady, to be apprised of all material exculpatory and impeachment
information which the State holds.
Accordingly, the Petition for Writ of Habeas Corpus is granted. The
State of Ohio is ordered to release Petitioner from custody unless he is
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again convicted at a trial commencing not later than July 1, 2012.
(Emphasis added.) Gillispie v. Timmerman-Cooper, 835 F. Supp. 2d 482, 508-509 (S.D.
Ohio 2011).
{¶ 12} The next day, the State filed a notice of appeal to the Sixth Circuit. The
State also filed a motion to stay in the district court. The district court granted the stay,
but concurrently (on Gillispie’s motion) ordered Gillispie’s release on bond. Gillispie v.
Timmerman-Cooper, S.D.Ohio No. 3:09-cv-471 (Dec. 22, 2011).
{¶ 13} On April 13, 2012, while the State’s federal appeal was pending, we
reversed the trial court’s ruling on Gillispie’s motion for a new trial based on an alternative
suspect. State v. Gillispie, 2d Dist. Montgomery No. 24456, 2012-Ohio-1656, amended
on reconsideration by State v. Gillispie, 2d Dist. Montgomery No. 24456, 2012-Ohio-2942
(deleting paragraph 45 from original opinion). We vacated Gillispie’s conviction and
sentence and remanded the matter to the trial court for a new trial. The State appealed
our ruling to the Ohio Supreme Court. The Ohio Supreme Court denied leave to appeal
on November 7, 2012. State v. Gillispie, 133 Ohio St. 3d 1467, 2012-Ohio-5149, 977
N.E.2d 694 (table).
{¶ 14} After the Supreme Court of Ohio’s ruling, the State moved to dismiss its
federal appeal of the district court’s December 15, 2011 decision granting a conditional
writ of habeas corpus. Notably, the State’s motion did not ask the Sixth Circuit to vacate
the district court’s decision. The State’s appeal was dismissed on November 27, 2012.
{¶ 15} The State sought vacation of the conditional writ by means of a Fed.R.Civ.P.
60(b) motion filed in the district court. On December 20, 2012, the district court denied
the motion, reasoning that the conditional writ was neither moot nor void and that it (the
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district court) had jurisdiction to enforce its conditional writ. The court rejected the State’s
argument that the district court’s judgment should be vacated because the judgment was
not reviewed by an Article III judge; the court emphasized that the State had consented
to plenary magistrate judge jurisdiction and had voluntarily dismissed its appeal to the
Sixth Circuit. Finally, the district court reasoned that there was no change in the
decisional law that warranted vacation of the judgment. The court stated:
* * * The Second District Court of Appeals granted Gillispie a new
trial on a legal basis different from this Court’s legal basis. The factual
circumstances have somewhat changed—the State is now bound to retry
Gillispie both by this Court’s conditional writ and the mandate of the Second
District Court of Appeals. Those orders do not conflict.
However, this Court’s Decision and Order does conflict with the prior
decision of the Second District Court of Appeals on the precise issue on
which this Court ruled. State v. Gillispie, 2009-Ohio-3640, 2009 Ohio App.
LEXIS 3107, 2009 WL 2197052 (Ohio App. 2nd Dist.2009). If the Decision
and Order were vacated, presumably the Second District’s prior decision
would be the law of the case for the retrial. This Court found that prior
decision was “both an unreasonable determination of the facts in light of the
evidence presented to those courts and an objectively unreasonable
application of Brady and its progeny.” Gillispie, 835 F.Supp. [2d] at 509.
The Second District Court of Appeals has itself recognized that a
decision of this Court in a habeas corpus case can have collateral estoppel
effect in a later proceeding in the Ohio courts, even if this Court’s decision
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is in error as a matter of Ohio law. State v. Slagle, 2012-Ohio-1575, 2012
Ohio App. LEXIS 1384, 2012 WL 1144051 (Ohio App. 2nd Dist. Apr. 6,
2012). There is no good reason offered by Respondent why Gillispie
should be deprived of that benefit of his judgment in this Court which was
obtained with much effort.
Gillispie v. Timmerman-Cooper, S.D.Ohio No. 3:09-cv-471, 2012 WL 6644624, *6 (Dec.
20, 2012). The State filed a notice of appeal to the Sixth Circuit on January 17, 2013.
{¶ 16} On January 18, 2013, Gillispie filed a motion in the Montgomery County
Common Pleas Court to compel discovery of the supplemental police reports or to dismiss
the indictment. In its response, the State indicated that it “does not now possess, nor
has it ever possessed, any such reports. Copies will not be forthcoming.” However, the
State argued that collateral estoppel did not bar it from challenging the preclusive effect
of the district court’s December 15, 2011 decision, and that Gillispie was not entitled to
dismissal of the indictment, even if the State were bound by the district court’s decision.
Upon motion of the State, and with Gillispie’s consent, the state trial court stayed the
matter until the Sixth Circuit ruled on the State’s appeal from the denial of its Fed.R.Civ.P.
60(b) motion in federal court.
{¶ 17} The State also asked the district court to stay its Fed.R.Civ.P. 60(b) ruling
pending appeal to the Sixth Circuit; the State’s request was denied. In ruling on the
State’s motion to stay, the district court considered the same factors that are used in
determining whether to grant a preliminary injunction, including whether the State was
likely to prevail on the merits. Upon considering this factor, the district court recognized
that its December 15, 2011 decision, which the district court had declined to vacate, had
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both prospective and retrospective components. With respect to the prospective portion,
the district court concluded that it had jurisdiction to make the writ unconditional if the
State failed to comply with the conditions in its December 15, 2011 judgment.
{¶ 18} In ruling on the motion to stay as to the retrospective portion of its December
15, 2011 judgment, the district court rejected a suggestion by the State that the State
could retry Gillispie without producing the supplemental police reports. The district court
stated that the December 15, 2011 ruling would be entitled to collateral estoppel effect,
including during retrial. The court wrote:
It seems clear from the State’s papers on the instant Motion that it does not
concede that collateral estoppel effect. It argues “[t]his Court did not, as
Gillispie now argues, make any finding that the purported Brady violation
was incurable such that the State of Ohio could not retry him unless they
produced the alleged reports in question.” (Reply, Doc. No. 105, PageID
4783.) On the contrary, that is precisely the implication of the retrospective
portion of this Court’s judgment: the evidence in question is Brady material
and Gillispie may not be constitutionally convicted of the crimes of which he
stands charged without production of that material. Any new judgment of
conviction procured after a trial in which Gillispie was not provided with the
Brady material would be as unconstitutional as the old judgment and
Gillispie would be entitled to file a new petition for writ based on the
retrospective portion of the judgment entirely apart from this Court’s
authority vel non to make its prior writ unconditional.
Gillispie v. Timmerman-Cooper, S.D. Ohio No. 3:09-cv-471, 2013 WL 526481, *4 (Feb.
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11, 2013). The district court concluded that, “even if the Sixth Circuit completely agrees
with the State on the prospective aspect of the judgment, it seems very unlikely it would
hold that this Court [the district court] abused its discretion in refusing to vacate the
retrospective portion of the judgment.” Id. at *5.
{¶ 19} The State did not appeal any part of the denial of its motion for stay pending
appeal.
{¶ 20} In November 2014, the Sixth Circuit affirmed the district court’s denial of the
State’s Fed.R.Civ.P. 60(b) motion, albeit on other grounds. It agreed with the district
court that the decision granting the conditional writ was not void, but it found that “the
district court’s assertion of a prospective interest in the conditional writ’s enforcement
[was] flatly inconsistent with our decision in Eddleman [v. McKee, 586 F.3d 409 (6th
Cir.2009)].” Gillispie v. Warden, London Correctional Inst., 771 F.3d 323, 328 (6th
Cir.2014). The Sixth Circuit further noted that the district court was without jurisdiction
to “decide the preclusive effect of its order for purposes of ongoing proceedings in the
Ohio courts.” Id. at 330. However, addressing the equities of the situation, the Sixth
Circuit found no basis to vacate the district court’s decision. The circuit court commented
that, although the conditional writ had become moot, the State had “slept on its rights”
when it failed to seek vacation of the decision in its first appeal, and the appellate court
saw “no particular reason why a vacatur of [the district court’s] order would serve the
public interest here.”
{¶ 21} After the Sixth Circuit’s ruling, the common pleas court sought additional
briefing on the preclusive effect of the conditional writ.
{¶ 22} On November 30, 2015, the trial court granted Gillispie’s motion to dismiss
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the indictment. The court accepted, “as it must,” the federal district court’s findings of
fact in the conditional writ, and held that the doctrine of res judicata prevented the court
from “relitigating [the district court’s] conclusions of fact and law delineated in [its]
December 15, 2011 Conditional Writ – the Supplemental Reports not only existed, they
were material pursuant to Brady. And thus Gillispie cannot be retried because, as the
State admits, the State does not have the Supplemental Reports and cannot produce
them.” (Emphasis in original.) The trial court reasoned:
Simply stated, Judge Merz’s Conditional Writ is “a final judgment or
decree rendered on the merits by a court of competent jurisdiction [and] is
a complete bar to any subsequent action on the same claim between the
same parties or those in privity with them.” Of course the State of Ohio
here and the Warden as Respondent before Judge Merz are in clear privity,
having the exact same goal: defeating Gillispie’s Brady claim. And Judge
Merz’ Conditional Writ was clearly a final judgment from a court of
competent jurisdiction.
As stated above, Ohio courts have held consistently that issue
preclusion applies with respect to federal habeas decisions and subsequent
state court retrial proceedings, thereby prohibiting the relitigation of issues
already decided in the federal habeas litigation. And so it must be here.
And as noted by the Second District in Slagle, this Court could not
relitigate Judge Merz’ conclusions that the Supplemental Reports existed
and were material per Brady even were this Court to believe Judge Merz’
decision was reached in error. Were the law otherwise, federal habeas
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relief and the doctrine of collateral estoppel would be eviscerated and the
Supremacy Clause turned on its head.
This Court acknowledges that the State’s tactical decision to eschew
filing with the State court affidavits contradicting those of Dets. Bailey and
Fritz in order to establish that the Supplemental Reports never existed is
odd. But the State made precisely that tactical decision and pursued only
its formalistic, legal argument that Gillispie’s affidavits did not establish a
Brady violation as a matter of law. Judge Merz now has ruled otherwise –
a ruling binding upon this Court.
(Emphasis in original.)
{¶ 23} The State appeals from the trial court’s judgment.
II. Issues on Appeal
{¶ 24} The State’s sole assignment of error states that the trial court abused its
discretion in dismissing the indictment, and it offers several arguments to support its
position.
{¶ 25} First, it states that the federal district court lost jurisdiction over the retrial
once the state court vacated Gillispie’s conviction in 2012. The State argues that the
conditional writ issued in December 2011 became “superfluous and of no force or effect.”
{¶ 26} Second, the State asserts that the district court addressed an issue that was
not addressed by the state courts, namely whether the supplemental police reports
actually existed, and thus collateral estoppel does not apply to the district court’s factual
findings. As a corollary argument, the State asserts that State v. Slagle, 2d Dist.
Montgomery No. 23934, 2012-Ohio-1575, is inapposite, because the retrial in Slagle
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occurred pursuant to the writ of habeas corpus, not a state court mandate.
{¶ 27} Third, the State claims that, even if the supplemental reports exist (a fact
that the State disputes), the appropriate remedy was “a new trial at which Appellee
possessed the information he asserts was withheld in 1991,” not dismissal of the
indictment. (Emphasis added.) The State argues that Gillispie has that information
already.
{¶ 28} Gillispie responds that the district court’s judgment granting the conditional
writ is a valid judgment, which the trial court was bound to follow, pursuant to the
Supremacy Clause. Alternatively, he asserts that, even if the Supremacy Clause did not
apply, res judicata would prevent the State from challenging the federal district court’s
decision that Gillispie could not be retried without the State’s turning over the
supplemental reports. Gillispie emphasizes that the district court had jurisdiction to issue
its original judgment granting the conditional writ and subsequent orders, that the parties
fully litigated the Brady issue in federal court and the State chose not to challenge the
existence of the supplemental reports, and that a hearing was not required for res judicata
to apply.
III. Preclusive Effective of District Court Decision Granting Conditional Writ
{¶ 29} The ultimate issue in this case is whether the trial court erred in dismissing
the indictment against Gillispie due to the State’s not providing the supplemental police
reports, i.e., Brady material, to Gillispie. However, because the trial court’s reasons for
granting the motion to dismiss were based substantially on the district court’s December
15, 2011 decision granting a conditional writ to Gillispie, we necessarily focus (as did the
parties) on the district court decision and whether it had any preclusive effect in state
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court. The Sixth Circuit expressly declined to state an opinion on this matter and noted
that the district court did not have jurisdiction to decide the preclusive effect in state court.
Gillispie, 771 F.3d at 330.
{¶ 30} “[U]nder our federal system, the States possess sovereignty concurrent with
that of the Federal Government, subject only to limitations imposed by the Supremacy
Clause.” Tafflin v. Levitt, 493 U.S. 455, 458, 110 S. Ct. 792, 107 L. Ed. 2d 887 (1990).
Consequently, state and federal courts generally have concurrent jurisdiction to
adjudicate claims arising under federal law, including claims raised pursuant to the United
States Constitution in criminal cases. In reaching their determination of federal law
issues, state courts generally are not bound by decisions of federal courts with respect to
federal law, except for decisions of the United States Supreme Court. See Reed v.
Farley, 512 U.S. 339, 358, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994) (Scalia, J., concurring
in part and in judgment) (The United States Supreme Court “and not individual federal
district judges, has appellate jurisdiction, as to federal questions, over the supreme courts
of the States.”).
{¶ 31} The power of the federal courts on habeas corpus is not a grant of appellate
review of state court decisions by federal district courts, but rather provides a mechanism
for incarcerated offenders to challenge their incarcerations as violative of federal law. As
stated by the United States Supreme Court:
The whole history of the writ -- its unique development -- refutes a
construction of the federal courts’ habeas corpus powers that would
assimilate their task to that of courts of appellate review. The function on
habeas is different. It is to test by way of an original civil proceeding,
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independent of the normal channels of review of criminal judgments, the
very gravest allegations. State prisoners are entitled to relief on federal
habeas corpus only upon proving that their detention violates the
fundamental liberties of the person, safeguarded against state action by the
Federal Constitution.
Townsend v. Sain, 372 U.S. 293, 311-312, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), overruled
on other grounds.
{¶ 32} State prisoners may collaterally attack either the imposition or execution of
their sentences under 28 U.S.C. 2254. A state offender generally is required to exhaust
a constitutional claim in state court before he or she can raise that same issue in a petition
for a writ of habeas corpus in federal court. 28 U.S.C. 2254(b)(1)(A).
{¶ 33} Pursuant to 28 U.S.C. 2254(a), a district court “shall entertain an application
for a writ of habeas corpus in [sic] behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.” The federal court may grant a writ of habeas
corpus “with respect to any claim that was adjudicated on the merits in State court
proceedings” if the state court’s adjudication either (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. “If, after carefully weighing all the reasons for
accepting a state court’s judgment, a federal court is convinced that a prisoner’s custody
* * * violates the Constitution, that independent judgment should prevail.” Williams v.
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Taylor, 529 U.S. 362, 389, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).
{¶ 34} Gillispie raised one ground for relief in his petition for a writ of habeas
corpus: “The State’s failure to disclose to the defense, prior to or during trial, supplemental
reports written by the original investigating detectives, which eliminated Petitioner as a
suspect, violated Petitioner’s due process rights pursuant to Brady v. Maryland. U.S.
Const. amend V, XIV.” (Emphasis added.) Gillispie’s argument to the district court was
that “there were reports that existed but which the State did not disclose and which
completely contradicted Det. Moore’s and the State’s theory of the case.” (Emphasis
added.) Gillispie, 835 F. Supp. 2d at 503-504.
{¶ 35} The State argued in response that (1) Gillispie’s petition was barred by the
Antiterrorism and Effective Death Penalty Act (AEDPA) statute of limitations, (2) “there is
no Brady violation where a defendant knew or should have known the essential facts
permitting him to take advantage of any exculpatory information or where the evidence is
available from another source because in such case, there is really nothing for the
government to disclose,” (3) the reports were not material, and (4) even if the reports were
material, “the State did not need to disclose the supplemental reports because Mr.
Gillispie had access to the information via alternative sources, to wit: Det. Fritz.”
(Emphasis added.) Id. at 504-505.
{¶ 36} The district court’s December 15, 2011 decision concluded that “[t]he state
courts’ determination that the evidence in question [the supplemental police reports] is
not material is both an unreasonable determination of the facts in light of the evidence
presented to those courts and an objectively unreasonable application of Brady and its
progeny.” Id. at 509. As a remedy, the court ordered Gillispie to be released unless he
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were again convicted at a trial commencing not later than July 1, 2012. The district court
did not expressly state that the State was required to produce the supplemental police
reports prior to any retrial, but that requirement was arguably implicit in the district court’s
ruling.
{¶ 37} The Sixth Circuit determined that the district court lost jurisdiction over the
habeas case once this court vacated Gillispie’s conviction and sentence in 2012.
Gillispie, 771 F.3d at 330. It expressly stated that the district court could not “continue
to enforce the terms of a conditional writ after the petitioner is no longer in custody
pursuant to an unconstitutional judgment.” Id. at 329.
{¶ 38} The State asserts that the district court’s lack of authority to enforce,
supervise, oversee, or interfere with any retrial in state court also means that the district
court’s underlying analysis for granting the writ also has no effect. In fact, it argues that
this case should again be governed by our July 2009 determination that no Brady violation
had occurred. We disagree.
{¶ 39} The fact that the district court can no longer enforce its remedy does not
render the entire December 15, 2011 decision a nullity. As recognized by the Sixth
Circuit, the district court had subject matter jurisdiction to grant the conditional writ at the
time it was issued, and because both the district court and the Sixth Circuit denied the
State’s effort to vacate the district court decision pursuant to Fed.R.Civ.P. 60(b), the
district court’s decision remains a valid judgment. Accordingly, the district court’s
determination that the State’s failure to provide the supplemental police reports to the
defense violated Gillispie’s due process rights pursuant to Brady remains in effect.
{¶ 40} In addition to the inherent relationship between state and federal courts in
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habeas proceedings, the doctrine of collateral estoppel can be invoked to preclude
relitigation, in state court, of issues addressed by a federal district court in a habeas
proceeding.3 See State v. Slagle, 2d Dist. Montgomery No. 23934, 2012-Ohio-1575.
“The doctrine of collateral estoppel, or, more correctly, issue preclusion, precludes further
action on an identical issue that has been actually litigated and determined by a valid and
final judgment as part of a prior action among the same parties or those in privity with
those parties.” State v. Williams, 76 Ohio St. 3d 290, 294, 667 N.E.2d 932 (1996).
{¶ 41} The district court addressed Gillispie’s Brady claim following this court’s
denial of his Brady claim in state post-conviction proceedings. The district court had
jurisdiction to enter its December 15, 2011 decision granting habeas relief, and there is
no question that there is mutuality and privity of the parties, despite the nominal difference
in party names. See Slagle at ¶ 42.
{¶ 42} Because the district court’s habeas ruling was not vacated, we cannot
simply ignore the district court’s conclusion that the State’s failure to produce the
supplemental police reports violated Gillisipie’s due process rights pursuant to Brady.
{¶ 43} The State also asserts that Slagle does not require the application of
collateral estoppel in this case. In Slagle, an attorney was charged with theft of a large
sum of money from a law firm. He waived his right to a jury trial and elected to be tried
before a particular judge. The case proceeded to a bench trial before that judge, but the
judge died before rendering a verdict. Upon motion by the State, another judge declared
3
We often speak in terms of “res judicata,” rather than “collateral estoppel” and “estoppel
by judgment,” as the doctrine of res judicata encompasses both collateral estoppel (issue
preclusion) and estoppel by judgment (claim preclusion). Grava v. Parkman Twp., 73
Ohio St. 3d 379, 381, 653 N.E.2d 226 (1995).
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a mistrial. The attorney then sought dismissal of the indictment on double-jeopardy
grounds, claiming that a verdict could have been rendered by another judge based on the
audiovisual record of the trial and written arguments of the parties, and thus there was no
manifest necessity for a mistrial. The trial court denied the motion.
{¶ 44} Slagle then filed a habeas corpus action in federal court. The district court
granted Slagle a conditional writ, ordering that “Slagle shall be discharged from further
responding to the Indictment unless the Common Pleas Court renders a decision on the
video record already created not later than 180 days from the date judgment is entered
in this matter.” Pursuant to the conditional writ, the common pleas court reviewed the
video record, and Slagle was convicted. Slagle appealed.
{¶ 45} On review of his conviction, we disagreed with the federal district court’s
conclusion that Ohio law permitted Slagle to be convicted based on an audiovisual record.
Rather, we concluded that “a successor judge in a bench trial, absent the consent of the
parties, may not render a verdict in a bench trial based solely upon a review of an
audiovisual recording of the trial.” Slagle at ¶ 40.
{¶ 46} Nevertheless, we held that collateral estoppel precluded relitigation of the
district court’s order. We stated: “The State was surely bound by the federal court order
in Slagle’s habeas corpus proceeding; had the common pleas court failed to render a
verdict in the manner prescribed by, or within the time limit prescribed by, the federal
order, the State could not have continued to incarcerate Slagle in defiance of the federal
court’s order.” Slagle at ¶ 42.
{¶ 47} Slagle focused on the remedy provided in the district court’s conditional writ
of habeas corpus, whereas this case concerns the district court’s holding on the
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underlying constitutional and factual questions. Despite these differences, Slagle’s
general holding that the principles of collateral estoppel bar relitigation of issues decided
in a district court’s habeas ruling is applicable to both circumstances. Although the
district court has lost its jurisdiction to enforce the prospective aspect of its December 15,
2011 decision due to our vacation of Gillipsie’s conviction and sentence, the doctrines of
collateral estoppel and federal supremacy continue to govern the State’s ability to
relitigate, in state court, the district court’s factual findings and its holding on the Brady
constitutional issue. Those matters have been decided and cannot be relitigated.
{¶ 48} The State claims that collateral estoppel should not apply to the district
court’s factual findings, because the issue of the existence of the alleged supplemental
police reports was not before the district court, and the district court’s factual findings were
based on a mistaken impression that this appellate court had factually found that the
reports existed. The State further asserts that, in 2008, it was not required to submit
evidence opposing Gillispie’s assertion that supplemental reports had been prepared.
Gillispie responds that the State had ample opportunity to present evidence that the
supplemental reports did not exist, and that it made a strategic decision not to present
evidence on this issue.
{¶ 49} The district court’s December 15, 2011 decision unequivocally found that
the supplemental police reports existed. In summarizing the evidence before it, the
district court stated that “Det. Bailey prepared supplemental reports describing the events
involving Mr. Wolfe, their investigation of Mr. Gillispie, their elimination of Mr. Gillispie as
a suspect, and their reasons therefor.”
{¶ 50} The district court addressed Gillispie’s Brady claim based on the
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documentary evidence that was before the state court. As stated above, Gillispie’s
ground for habeas relief was that the State failed to produce supplemental police reports
that had been prepared by Detectives Bailey and Fritz. Bailey and Fritz had provided
affidavits attesting to the existence of those reports. The State’s response to Gillispie’s
2008 petition for post-conviction relief and motion for a new trial included numerous
exhibits. Attached to the opposition memorandum itself was (1) a table comparing
characteristics of the rapist, as reported, and Gillispie, (2) an affidavit from Detective
Moore, which addressed, among other things, Moore’s investigation into the Kentucky
campground records, which was one aspect of Gillispie’s Brady claim, (3) a cover letter
from the Kentucky Department of Agriculture regarding the campground records, (4) three
campground receipts, and (5) a copy of Gillispie’s motion to produce Brady material.
(State’s Response, filed Apr. 25, 2008) The State also filed two appendices to its
opposition memorandum with 27 documents. On July 3, 2008, the State moved to
supplement its response with an additional affidavit from Wade Lawson, a former
employee of the Dayton Police Department;4 that motion was denied on July 9, 2008, in
the same judgment that overruled Gillispie’s motion for a new trial and for post-conviction
relief.
{¶ 51} The record indicates that the State provided evidence opposing certain
aspects of Gillispie’s motion for a new trial and for post-conviction relief, particularly the
investigation into the Kentucky campground, but not the existence or nonexistence of the
supplemental police reports. Based on the record in this case, the district court and the
4
In our July 24, 2009 opinion, we incorrectly stated that Gillispie had moved to
supplement his motion with an affidavit by Lawson.
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trial court concluded that the State could have contested, but elected not to contest, the
existence of the supplemental police reports.
{¶ 52} In addition, we find nothing in the district court’s December 15, 2011
decision to indicate that the district court’s finding was based on a mistaken impression
that the state courts had concluded that the supplemental reports exist. Although the
district court thoroughly discussed our 2009 opinion (not to mention the entire procedural
history of Gillispie’s Brady claim) prior to conducting its habeas review of the Brady issue,
the district court did not state that the state courts found that the supplemental reports
existed. Rather, the district court prefaced its factual findings with the phrase, “the
evidence in this case established.” The district court’s language indicates that it
reviewed the evidence before the state courts and made findings of fact based on that
record.
{¶ 53} Regardless, if the State wished to contest the legal or factual conclusions
of the district court’s decision granting a conditional writ of habeas corpus to Gillispie, the
appropriate avenue to challenge the district court’s ruling was an appeal to the Sixth
Circuit. The State’s voluntary dismissal of its appeal of the December 15, 2011 decision
constituted a waiver of any challenge to the conclusions reached by the district court.
{¶ 54} Next, the State asserts that the district court’s December 15, 2011 decision
did not state that the State was required to provide the supplemental police reports in
order to retry Gillispie. The State argues that the December 15, 2011 decision – and
Brady ̶ simply require the State provide the necessary information. Gillispie counters
that all of the district court’s rulings are entitled to collateral estoppel effect, and that both
the original decision granting the conditional writ and the district court’s subsequent
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February 2013 decision make clear that the State could not retry Gillispie without
producing the supplemental police reports.
{¶ 55} The December 15, 2011 decision could be read as having some ambiguity
regarding whether disclosure of the reports, or simply the information in the reports, was
required to be produced in order for the State to retry Gillispie. Gillispie asked the district
court to find that the failure to disclose the supplemental reports written by the original
investigating detectives violated Brady. See Gillispie, 835 F. Supp. 2d at 494 (Petitioner’s
Ground for Relief 1). The district court concluded that the ground for relief was
meritorious, but it specifically found that Gillispie was denied his right to due process, as
interpreted in Brady, “to be apprised of all material exculpatory and impeachment
information which the State holds.” (Emphasis added.) Id. at 509.
{¶ 56} The district court’s February 11, 2013 decision, however, clarified that the
retrospective portion of its December 15, 2011 decision required the production of the
supplemental reports themselves. The district court expressly stated that the evidence
in question, i.e. the supplemental reports, was Brady material and that Gillispie could not
be constitutionally convicted upon retrial without production of that material. Indeed, the
district court made clear that it considered the Brady violation to be “incurable” in that the
State could not retry Gillispie unless it produced the supplemental reports.
{¶ 57} This clarification was also binding on the state trial court. The Sixth Circuit
has held that a district court cannot materially amend its judgment after the State has
released a petitioner, and that a habeas court does not maintain “continuing supervision
over a retrial conducted pursuant to a conditional writ granted by the habeas court.” Girts
v. Yanai, 600 F.3d 576, 582 (6th Cir.2010), quoting Pitchess v. Davis, 421 U.S. 482, 490,
-26-
95 S. Ct. 1748, 44 L. Ed. 2d 317 (1975). However, the Sixth Circuit has stated that a
district court has jurisdiction to “clarify” the scope of the court’s writ. See id. (district court
could clarify whether the unconditional writ permitted retrial), discussing Satterlee v.
Wolfenbarger, 453 F.3d 362 (6th Cir. 2006).
{¶ 58} In Girts, the district court entered an unconditional writ of habeas corpus,
which ordered the State to release the defendant. After the State complied with the order
(the defendant was released, thus the writ had become moot and the district court lost
any prospective interest in its enforcement), the State requested a finding on whether it
could retry the defendant. The following day, the district court clarified its order granting
the unconditional writ of habeas corpus, concluding that retrial was permitted. The Sixth
Circuit held that the district court had jurisdiction to clarify what was meant by its
unconditional writ. Girts at 581-582. The court emphasized that “a district court sitting
in habeas has jurisdiction to consider the circumstances that exist up until either the state
complies with a conditional writ or the court issues an unconditional writ, but does not
have jurisdiction to consider circumstances that unfold after the state complies with the
writ.” Id. at 582.
{¶ 59} Here, as with the clarification decision in Girts, the district court’s February
11, 2013 decision was rendered after the defendant was no longer confined by the State
due to an unconstitutional judgment. Nevertheless, the district court’s February 11, 2013
decision related to whether the State could retry Gillispie without production of the
supplemental police reports, a matter that the December 15, 2011 decision arguably left
as ambiguous. As in Girts, the district court made this clarification in response to
arguments by the State relating to the scope of the conditional writ.
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{¶ 60} In our view, the district court was permitted to clarify its December 15, 2011
decision to indicate whether production of supplemental police reports themselves or
simply the information contained within them was required. We emphasize the district
court’s clarification related to circumstances that existed up until the state complied with
the conditional writ, and not with circumstances that unfolded after Gillispie’s conviction
and sentence were vacated. The district court clarified, as opposed to modified, the
retrospective portion of its December 15, 2011 decision as it related to whether production
of the reports was required.
{¶ 61} In short, we reject the State’s suggestion that our 2009 decision is now the
controlling law of the case regarding the alleged Brady violations. The trial court
correctly concluded that it was required to follow the federal district court’s December 15,
2011 habeas decision (as clarified by its February 11, 2013 decision), which concluded
that the State’s failure to produce the supplemental police reports violated Brady and
rendered Gillispie’s confinement unconstitutional. The State cannot relitigate the district
court’s legal conclusions or factual findings. The trial court correctly interpreted the
district court’s December 15, 2011 decision as requiring the State to produce the actual
supplemental police reports, and not just the information contained within them.
IV. Dismissal of the Indictment
{¶ 62} Finally, the State asserts that dismissal of the indictment was not the
appropriate remedy for the Brady violation, because it was not demonstrated that Gillispie
could not still receive a fair trial absent production of the supplemental police reports.
The State contends, citing State v. Keenan, 143 Ohio St. 3d 397, 2015-Ohio-2484, 38
N.E.3d 870, that the parties should have been given the opportunity to develop the record
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before dismissal of the indictment.
{¶ 63} We review the trial court’s dismissal of the indictment for an abuse of
discretion. Keenan at ¶ 7. “A trial court abuses its discretion when it makes a decision
that is unreasonable, unconscionable, or arbitrary. An abuse of discretion includes a
situation in which a trial court did not engage in a ‘sound reasoning process.’ Abuse-of-
discretion review is deferential and does not permit an appellate court to simply substitute
its judgment for that of the trial court.” State v. Darmond, 135 Ohio St. 3d 343, 2013-
Ohio-966, 986 N.E.2d 971, ¶ 34.
{¶ 64} The Ohio Supreme Court has held that “[a] trial court must inquire into the
circumstances surrounding a discovery rule violation and, when deciding whether to
impose a sanction, must impose the least severe sanction that is consistent with the
purpose of the rules of discovery.” Lakewood v. Papadelis, 32 Ohio St. 3d 1, 511 N.E.2d
1138 (1987), paragraph two of the syllabus. This holding applies equally to discovery
violations committed by the State and by the defense. State v. Darmond, 135 Ohio St. 3d
343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 42.
{¶ 65} In Keenan, the defendant was found guilty of murder in 1989 and sentenced
to death. The Ohio Supreme Court reversed the conviction based on prosecutorial
misconduct at trial, State v. Keenan, 66 Ohio St. 3d 402, 613 N.E.2d 203 (1993), and
Keenan was again convicted and sentenced to death upon retrial. In 2012, after a “long
and complex history,” the federal district court granted Keenan a writ of habeas corpus
due to Brady violations. The district court ordered the State to set aside Keenan’s
conviction or conduct another trial within 180 days.
{¶ 66} Keenan subsequently filed a motion to dismiss in the trial court, which the
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trial court granted, stating, “In light of the State’s egregious prosecutorial misconduct and
the Brady violations in Keenan’s prior two trials, Keenan cannot receive the fair and
Constitutional trial that he is entitled to today.” The court indicated that the case was
“unique and extraordinary * * * where the prejudice created cannot be cured by a new
trial.” The Eighth District affirmed the dismissal of the indictment.
{¶ 67} The Supreme Court of Ohio reversed. In doing so, the supreme court
emphasized that “[t]he issue in this case is not whether Keenan’s rights have been
violated—they have been, and that is why the district court granted the writ of habeas
corpus. The issue is whether, given those violations, it is possible for Keenan to receive
a fair trial. Obviously, this is a highly subjective determination, requiring the analysis of
a voluminous record with appropriate adjustments for the absence of certain key
witnesses who are now unavailable because they have died.” Keenan, 143 Ohio St. 3d
397, 2015-Ohio-2484, 38 N.E.3d 870, at ¶ 8. The Court found that the dismissal of the
indictment was premature, reasoning that the parties should have been given the
opportunity to develop the record on whether Keenan could receive a fair trial.
{¶ 68} The Court’s opinion addressed an argument by Keenan at oral argument
that the absence of a witness would be detrimental to his efforts to defend himself, stating:
That something is hard to do does not mean that it is unconstitutional.
We understand that Keenan will have difficulties based on the passage of
time, deceased witnesses, decreased memories, and so forth. But so will
the state; for example, the late Mr. Espinoza [the focus of Keenan’s
argument] was the state’s sole source of direct eyewitness testimony about
Klann’s murder. In the event that these difficulties render it impossible for
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Keenan to defend himself, the trial court can at that time determine that a
fair trial is not possible. But that day, if it comes, is in the future -- at a
minimum, after it is determined whether the state is able to establish its case
in chief.
In so holding, we reject the state’s argument that because the Brady
violations led to the granting of the writ of habeas corpus, they cannot also
serve as the basis of a dismissal with prejudice. It is possible for a Brady
violation (or other type of discovery abuse) to be so severe, so detrimental
to the interests of justice that it can be the basis for the granting of a great
writ and for the subsequent granting of a motion for dismissal.
Id. at ¶ 11-12.
{¶ 69} We do not find Keenan to be controlling in the case before us. Keenan
includes only an abbreviated factual and procedural history, which limits its usefulness in
determining whether the trial court, in this case, abused its discretion in dismissing the
indictment. Although, as here, the basis for the district court’s granting Keenan a
conditional writ of habeas corpus was a Brady violation, Keenan contains no discussion
of the nature of the Brady violation and whether the violation had been rectified in some
way prior to retrial. The State’s argument before the Ohio Supreme Court seemed to
suggest that the trial court’s dismissal of the indictment was due to the State’s past failure
to provide the Brady material, not on a present inability or failure to provide it. And, the
Supreme Court’s opinion appears to focus on whether Keenan could receive a fair trial
despite challenges mainly caused by the significant passage of time since the offense,
holding that the parties must be given the opportunity to further develop the record before
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dismissing the indictment on that basis, not on a present failure to comply with Brady.
{¶ 70} Keenan stands for the proposition that a trial court errs in finding that a
defendant cannot receive a fair trial without providing the parties an opportunity to develop
the record on that issue. Here, the district court determined that the State violated
Gillipsie’s right to due process and denied Gillispie a fair trial when it failed to produce the
supplemental police reports. The district court’s decision granting the conditional writ,
as later clarified, expressly found that the reports existed and held that the State’s failure
to provide those supplemental police reports would necessarily preclude a fair trial upon
retrial. The trial court provided the parties ample opportunity to present arguments
concerning the preclusive effect of the district court’s judgment, particularly in light of the
State’s statement that it could not produce the supplemental police reports. To the
extent that Keenan applies, the trial court complied with Keenan’s requirement that the
parties be given an opportunity to develop a record on whether Gillispie could obtain a
fair trial upon retrial; for purposes of this case, that issue depended substantially on
whether the district court’s December 15, 2011 decision, in whole or in part, was required
to be followed.
{¶ 71} We also note that, to the extent that Keenan discussed the impact of the
Brady violation, it commented that a Brady violation could form the basis for granting a
motion for dismissal. In this respect, Keenan is favorable to Gillispie, not the State.
{¶ 72} We are mindful that “once the petitioner’s criminal judgment was vacated,
‘[t]he responsibility of ensuring that he received not only a fair trial, but a timely one, then
passed to the [state trial court] in the first instance.’ ” Gillispie, 771 F.3d at 329, quoting
Eddleman, 586 F.3d at 413. However, as discussed above, the state courts remain
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bound by the district court’s conclusion, on habeas review, that Gillispie could not receive
a fair trial without production of the supplemental police reports. In light of the district
court’s conclusion and because the State has conceded that it cannot produce the
supplemental police reports, as required by the district court, the trial court did not abuse
its discretion in dismissing the State’s indictment against Gillispie.
V. Conclusion
{¶ 73} To summarize, the trial court correctly determined that it was required to
follow the federal district court’s determination, upon habeas review, that a Brady violation
had occurred due to the State’s failure to produce supplemental police reports to Gillispie.
It is not legally relevant whether we now agree or disagree with the district court’s holding
that our 2009 opinion invoked an “unreasonable determination of the facts in light of the
evidence presented” and an “objectively unreasonable application of Brady and its
progeny.” The State cannot relitigate whether the supplemental police reports existed
and whether the State’s failure to produce the supplemental reports constituted a Brady
violation.
{¶ 74} Moreover, the district court clarified the retrospective portion of its decision
granting the conditional writ, stating that Gillispie could not be constitutionally convicted
of the offenses without production of the supplemental police reports themselves; the
district court had authority to clarify its prior ruling in this respect, despite the fact that
Gillispie’s conviction and sentence had been vacated. The trial court properly afforded
the clarification preclusive effect. In light of the State’s statement that it cannot produce
the supplemental police reports, as required by the district court, the trial court did not
abuse its discretion in dismissing the indictment against Gillispie.
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{¶ 75} The State’s assignment of error is overruled. The trial court’s judgment will
be affirmed.
.............
FAIN, J., concurs.
HALL, J., concurs in judgment.
Copies mailed to:
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Mark Godsey
Jim Petro
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Hon. Steven K. Dankof