State v. Purk

[Cite as State v. Purk, 2017-Ohio-7381.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28059
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SCOTT D. PURK COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 13 12 3490
DECISION AND JOURNAL ENTRY
Dated: August 30, 2017
CARR, Presiding Judge.
{¶1} Defendant-Appellant, Scott Purk, appeals from his convictions in the Summit
County Court of Common Pleas. This Court reverses and remands for further proceedings.
I.
{¶2} On the morning of March 18, 1985, Purk called for emergency assistance and
reported that his wife, who was nine months pregnant at the time, had tried to hang herself from
the railing surrounding the stairwell in their two-floor apartment. Purk greeted the police when
they arrived and directed them to his wife, who was lying on her back at the foot of the stairs.
Purk indicated that he had found his wife hanging, had used a knife to cut her down, and had
attempted CPR before calling for assistance. The paramedics responded only minutes after his
call and were able to restore the victim’s heartbeat. They then transported her to a hospital
where she received further treatment and her son was delivered via a cesarean birth. Despite
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their best efforts, both the victim and her son died. Following an autopsy, the victim’s death was
ruled a suicide, and the case was closed.
{¶3} In March 2009, Sergeant Ken Mifflin began investigating a house fire that
occurred at Purk’s home in Stow. During his investigation, Sergeant Mifflin learned that Purk’s
first wife had died of an apparent suicide, but that there were individuals who found the
circumstances surrounding her death suspicious. He then spent the next few years investigating
her death, requesting the original police reports and interviewing various individuals.
Eventually, he approached the Summit County Medical Examiner’s Office to ask for an opinion.
After listening to him and viewing the original autopsy photos and results, the Medical
Examiner’s Office agreed that it was appropriate to exhume the victim’s body for the purpose of
conducting a second autopsy. The second autopsy occurred in September 2011. As a result of
the second autopsy, the victim’s death was ruled a homicide.
{¶4} Subsequently, a grand jury indicted Purk on one count of murder and one count of
tampering with evidence. Four days before trial, Purk moved to dismiss his indictment on the
basis of unconstitutional, pre-indictment delay. The court heard arguments from the parties on
the first day of trial, and denied the motion. The matter then immediately proceeded to trial,
following which the jury found Purk guilty on both counts. The court sentenced him to a total of
18 years to life in prison to be served consecutively with a sentence Purk was already serving in
an unrelated matter.
{¶5} Purk now appeals from his convictions and raises four assignments of error for
our review. For ease of analysis, we consolidate several of the assignments of error.
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II.
ASSIGNMENT OF ERROR I
THE 28-YEAR DELAY BETWEEN MARGARET PURK’S DEATH AND
SCOTT PURK’S INDICTMENT DEPRIVED MR. PURK OF DUE PROCESS
OF LAW, AND REQUIRES REVERSAL OF HIS CONVICTIONS.
{¶6} In his first assignment of error, Purk argues that he was denied due process when
the trial court denied his motion to dismiss and allowed him to stand trial for conduct he
allegedly committed 28 years before his indictment. Because the record reflects that the trial
court failed to apply the correct legal standard when considering Purk’s motion to dismiss, we
reverse and remand this matter for the trial court to apply the correct standard in the first
instance.
{¶7} “‘In reviewing a decision on a motion to dismiss for pre-indictment delay, we
accord deference to the trial court’s findings of fact but engage in a de novo review of the trial
court’s application of those facts to the law.’” State v. New, 9th Dist. Lorain No. 12CA010305,
2013-Ohio-3193, ¶ 13, quoting State v. Kemp, 8th Dist. Cuyahoga No. 97913, 2013-Ohio-167, ¶
26. Likewise, “[w]hether the trial court applied the proper law is a legal decision which this
Court reviews de novo.” Pelmar USA, L.L.C. v. Mach. Exchange Corp., 9th Dist. Summit No.
25947, 2012-Ohio-3787, ¶ 24.
{¶8} “When there has been an unjustifiable delay between the commission of an
offense and a defendant’s indictment for the offense that results in actual prejudice to that
defendant, a defendant’s right to due process under Section 16, Art. I of the Ohio Constitution
and the Fifth and Fourteenth Amendments to the United States Constitution [has] been violated.”
State v. Barnhardt, 9th Dist. Lorain No. 05CA008706, 2006-Ohio-4531, ¶ 16, citing State v.
Luck, 15 Ohio St.3d 150 (1984), paragraph two of the syllabus. “Following precedent
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established by the Supreme Court of the United States, the Supreme Court of Ohio outlined a
burden-shifting test for determining whether a charge must be dismissed due to a pre-indictment
delay.” State v. Saxon, 9th Dist. Lorain No. 09CA009560, 2009-Ohio-6905, ¶ 9. “Luck requires
first that the defendant produce evidence demonstrating that the delay has caused actual
prejudice to his defense. Then, after the defendant has established actual prejudice, the [S]tate
must produce evidence of a justifiable reason for the delay.” (Internal citations omitted.) State
v. Whiting, 84 Ohio St.3d 215, 217 (1998). “If the defendant does not produce evidence of actual
prejudice, the court’s inquiry ends and the burden does not shift to the State to justify the delay.”
Saxon at ¶ 9.
{¶9} “Unlike a Sixth Amendment speedy-trial claim, no presumption of prejudice
arises in the due-process context when a pre[-]indictment delay exceeds a particular length of
time.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 98.
The determination of “actual prejudice” involves “a delicate judgment based on
the circumstances of each case.” United States v. Marion, 404 U.S. 307, 325
(1971). In making this assessment, courts are to consider the evidence as it exists
when the indictment is filed and the prejudice the defendant will suffer at trial due
to the delay.
State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, ¶ 52. “The burden upon a defendant seeking
to prove that pre[-]indictment delay violated due process is ‘nearly insurmountable,’ especially
because proof of prejudice is always speculative.” Adams at ¶ 100, quoting United States v.
Montgomery, 491 Fed.Appx. 683, 691 (6th Cir.2012). “Actual prejudice exists when missing
evidence or unavailable testimony, identified by the defendant and relevant to the defense, would
minimize or eliminate the impact of the [S]tate’s evidence and bolster the defense.” State v.
Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, ¶ 28.
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{¶10} Once a defendant establishes actual prejudice as a result of pre-indictment delay,
“the prejudice suffered by the defendant must be viewed in light of the [S]tate’s reason for the
delay.” Luck at 154.
[A] delay in the commencement of prosecution can be found to be unjustifiable
when the [S]tate’s reason for the delay is to intentionally gain a tactical advantage
over the defendant * * * or when the [S]tate, through negligence or error in
judgment, effectively ceases the active investigation of a case, but later decides to
commence prosecution upon the same evidence that was available to it at the time
that its active investigation was ceased.
Id. at 158. The United States Supreme Court has recognized that “prosecutors do not deviate
from ‘fundamental conceptions of justice’ when they defer seeking indictments until they have
probable cause to believe an accused is guilty * * *.” United States v. Lovasco, 431 U.S. 783,
790-791 (1977), quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935).
{¶11} Purk argues that the trial court erred by denying his motion to dismiss because he
suffered actual prejudice as a result of the significant pre-indictment delay that occurred here.
Specifically, he asserts that he was prejudiced because the following evidence was not available
to him at the time of trial: (1) the rope that his wife allegedly used to hang herself; (2) the knife
that he allegedly used to cut her down; (3) the original photographs that the police took at the
Purks’ apartment; (4) records from the hospital where the paramedics brought the victim for
treatment; (5) records from a psychiatric clinic at which the victim allegedly sought treatment at
some earlier point; and (6) maintenance and leasing records for the Purks’ apartment. Purk
argues that the foregoing evidence was material to his defense because it would have shown the
exact manner in which his wife hung herself and would have allowed comparisons between the
rope she used and the impressions on her neck. He further argues that the evidence would have
shown whether the rope left impressions on the wooden railing at the apartment or whether the
landlord had replaced or repaired the railing after the incident. As to the medical records, he
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argues that they would have established whether several of his wife’s injuries were the result of
resuscitative efforts and whether she had a history of suicidal ideations. Purk contends that the
State’s delay in bringing charges against him was unjustifiable because its case rested on the
same evidence that it had available to it in 1985.
{¶12} Before turning to the merits of Purk’s argument, we must first consider whether
the trial court applied the correct legal standard in this matter. See Saxon, 2009-Ohio-6905, at ¶
12. See also Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, at ¶ 29-30. Purk did not file his
motion to dismiss until four days before trial. Although the State challenged his motion as
untimely, the trial court did not deny it as such.1 Compare State v. Ross, 9th Dist. Lorain No.
09CA009742, 2012-Ohio-536, ¶ 13-15. Instead, the court briefly heard arguments on the motion
at the start of trial and denied the motion. Upon review, however, the court neglected to properly
apply the test from State v. Luck.
{¶13} In denying Purk’s motion, the trial court failed to address actual prejudice. The
court spoke strictly in terms of equity and “fundamental unfairness,” noting that its review was
hampered by the fact that it had not yet heard the evidence in the case. The court then went on to
discuss unjustifiable delay. The court stated that it was denying the motion to dismiss because
the State had brought its charges based on at least some new evidence. The court stated:
And even though that evidence may not be admissible, there was new evidence,
where based upon Mr. Purk’s more recent convictions for the arson, it caused the
State to take a different look at him. * * * [T]hat’s not admissible evidence, but it
is evidence to justify the delay in the proceedings of this matter, caused the State
to take a different look at him. And as a result, there was an investigation
commenced. And as a result of that investigation, an indictment. And we will let
the jury ultimately decide whether or not there’s evidence sufficient for
conviction * * *.
1
We would note that the State has not argued on appeal that it was improper for the court to
consider the untimely motion.
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Following the court’s ruling, the trial commenced.
{¶14} It is apparent from a review of the trial court’s reasoning process that it did not
determine whether Purk suffered any actual prejudice as a result of the pre-indictment delay that
occurred here. As noted, “[t]he determination of ‘actual prejudice’ involves ‘a delicate judgment
based on the circumstances of each case.’” Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, at ¶ 52,
quoting Marion, 404 U.S. at 325. Under Luck, the burden to explain pre-indictment delay only
shifts to the State once the defendant has satisfied his burden to establish actual prejudice. Saxon
at ¶ 9, citing Whiting, 84 Ohio St.3d at 217, citing Luck, 15 Ohio St.3d at 158. If the defendant
fails to do so, “the court’s inquiry ends and the burden does not shift to the State * * *.” Saxon at
¶ 9.
{¶15} Were this Court to conduct an actual prejudice analysis, it would be doing so in
the first instance. In doing so, this Court “‘would be usurping the role of the trial court and
exceeding its authority on appeal.’” Nationstar Mtg., L.L.C. v. Young, 9th Dist. Summit No.
27499, 2015-Ohio-3868, ¶ 6, quoting Carriage Ins. Agency, Inc. v. Ohio Farmers Ins. Co., 9th
Dist. Summit No. 27259, 2015-Ohio-2617, ¶ 12. Because this Court functions as a reviewing
court, “we are not inclined to resolve this matter in the first instance.” State v. Doll, 9th Dist.
Wayne No. 13CA0041, 2015-Ohio-1875, ¶ 14. Rather, we conclude that it is appropriate to
remand this matter to the trial court for it to properly apply in the first instance the burden-
shifting test set forth in Luck. See Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, at ¶ 29-30;
Saxon at ¶ 12. Should the court determine on remand that Purk’s motion to dismiss lacks merit,
his convictions will stand without retrial. Purk’s first assignment is sustained strictly on the
foregoing basis.
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ASSIGNMENT OF ERROR II
PURK WAS DENIED A FAIR TRIAL WHEN THE STATE WAS ALLOWED
TO INTRODUCE EXPERT WITNESS TESTIMONY THAT HAD BEEN
BASED ON UNRELIABLE EXPERIMENTS, MERITING REVERSAL.
ASSIGNMENT OF ERROR III
PURK’S RIGHTS TO A FAIR TRIAL AND DUE PROCESS UNDER THE
FEDERAL AND OHIO CONSTITUTIONS WERE VIOLATED WHEN THE
STATE WITHHELD POTENTIALLY EXCULPATORY EVIDENCE FROM
PURK’S COUNSEL, MERITING REVERSAL OF PURK’S CONVICTIONS.
ASSIGNMENT OF ERROR IV
PURK’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, AND MUST BE REVERSED.
{¶16} Based on this Court’s resolution of Purk’s first assignment of error, his remaining
assignments of error are premature, and we decline to address them. See State v. Purefoy, 9th
Dist. Summit No. 27992, 2017-Ohio-79, ¶ 20.
III.
{¶17} Purk’s first assignment of error is sustained for the reasons outlined above, and
his remaining assignments of error are not yet ripe for review. The judgment of the Summit
County Court of Common Pleas is reversed, and the cause is remanded for the trial court to apply
the burden-shifting test from State v. Luck in the first instance.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
TEODOSIO, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.