State v. King

[Cite as State v. King, 2012-Ohio-4398.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97683
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EVIN KING
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-312576
BEFORE: Cooney, J., Stewart, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 27, 2012
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
BY: Kristopher A. Haines
Assistant Public Defender
Ohio Public Defender’s Office
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Evin King (“King”), appeals the trial court’s denial of
his motion for postconviction relief. Finding no merit to the appeal, we affirm.
{¶2} In July 1994, King was indicted for the murder of his girlfriend Crystal
Hudson (“Hudson”). The State presented circumstantial evidence to the jury on the
theory that King strangled Hudson in the apartment they shared. DNA testing was
performed on semen recovered from the victim, but King was not a match. King argued
that the person who deposited the semen had killed Hudson. The forensic serologist
testified that the semen was anywhere from 16 hours to seven days old at the time of
death. When asked whether the semen was deposited contemporaneously with the
victim’s death, the coroner, Dr. Robert Challener, testified that it was “[v]ery unlikely to
be placed at the time of death.” Although fingernail scrapings were also recovered from
the victim, there were no means by which to test them for DNA material in 1994. In
February 1995, a jury convicted King of murder, and this court affirmed his conviction in
State v. King, 8th Dist. No. 68726, 1996 WL 661033 (Nov. 14, 1996) (“King I”).1
{¶3} In October 2004, due to advancements in DNA testing, King filed an
application for DNA testing of the fingernail scrapings recovered from the victim,
pursuant to R.C. 2953.72. In April 2008, the trial court granted King’s application and
Key facts stated in King I include that the victim was strangled, her partially decomposed
1
body was discovered by her daughter while King was inside the apartment, and there were no signs of
a struggle.
DNA testing was performed. The scrapings matched the DNA material recovered from
the vaginal swabs and excluded King as a match. Based on what King felt were
“exonerative DNA testing results,” he filed a motion for postconviction relief in October
2010.
{¶4} A hearing on the motion was held in February 2011. In November 2011,
the trial court denied King’s motion, finding that when considered in the context of all
available admissible evidence related to the case, the new DNA evidence did not prove by
clear and convincing evidence that King was actually innocent.
{¶5} King now appeals, arguing in his sole assignment of error that the trial court
abused its discretion when it denied his motion for postconviction relief.
{¶6} A postconviction relief proceeding is a collateral civil attack on a judgment,
therefore, the judgment of the trial court is reviewed under the abuse of discretion
standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77. An
abuse of discretion is more than an error of law or judgment, it implies the court’s attitude
is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157,
404 N.E.2d 144 (1980).
{¶7} This court, in State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923
N.E.2d 654, at ¶ 19-20 (8th Dist.), explained that:
[i]n 2006, the General Assembly amended Ohio’s DNA testing statutes.
The amendments, among other things, made postconviction DNA testing
more available to inmates and lowered the outcome-determinative standard
for establishing entitlement to DNA testing. Under the prior version of
R.C. 2953.71(L), “outcome determinative” meant that had “the results of
DNA testing been presented at the trial * * * and been found relevant and
admissible with respect to the felony offense for which the inmate * * * is
requesting the DNA testing * * * no reasonable factfinder would have
found the inmate guilty of that offense.”
Under the amended statute, “‘outcome determinative’ means that had the
results of DNA testing of the subject inmate been presented at the trial * * *
and been found relevant and admissible with respect to the felony offense
for which the inmate * * * is requesting the DNA testing * * *, and had
those results been analyzed in the context of and upon consideration of all
available admissible evidence related to the inmate’s case * * *, 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).
{¶8} As mentioned, the trial court approved King’s application for DNA testing
based on this standard. In the court’s April 2008 findings of facts and conclusions of
law allowing the DNA testing, the court made statements such as “DNA exclusion results
would eliminate King as a suspect,” as the statute required. However, once the DNA
results were presented to the court, the court found that the results, when reviewed with
all the evidence, did not prove King’s actual innocence, and therefore the court denied the
postconviction relief petition.
{¶9} King argues that the court’s denial of his motion for postconviction relief
was an abuse of discretion based on the statements made in the April 2008 entry granting
DNA testing. However, none of the court’s statements in this interlocutory ruling2 were
binding, nor is the standard for DNA testing applications the same as the standard to be
applied to postconviction petitions after the DNA results are received.
{¶10} Under R.C. 2953.23(A), a trial court may entertain a petition for
postconviction relief only in limited circumstances; i.e., if a petitioner establishes one of
the two following conditions:
(1) The petitioner was either “unavoidably prevented from discovery of the
facts upon which the petitioner must rely to present the claim for relief,” or
“the United States Supreme Court recognized a new federal or state right
that applies retroactively to persons in the petitioner’s situation,” and “[t]he
petitioner shows by clear and convincing evidence that, but for the
constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted.”
(2) The petitioner was convicted of a felony * * * and upon consideration of
all available evidence related to the inmate’s case * * *, and the results of
the DNA testing establish, by clear and convincing evidence, actual
innocence of that felony offense * * *.”
{¶11} After a review of the record, we find that King did not establish either of the
conditions set forth in R.C. 2953.23(A).
{¶12} “Actual innocence,” under R.C. 2953.21(A)(1)(b),
We recognize that the denial of such an application is a final appealable order that the
2
petitioner could appeal under R.C. 2953.73(E)(2).
means that, had the results of the DNA testing * * * been presented at trial,
and had those results been analyzed in the context of and upon
consideration of all available admissible evidence related to the inmate’s
case * * * no reasonable factfinder would have found the petitioner guilty
of the offense of which the petitioner was convicted * * *. (Emphasis
added.)
{¶13} R.C. 2953.21(A)(1)(b) and 2953.71(L) do resemble each other, with one
vital distinction. R.C. 2953.71(L) requires only a “strong probability” that no reasonable
factfinder would have found the inmate guilty, where as R.C. 2953.21(A)(1)(b) requires
that no reasonable factfinder would have found the petitioner guilty, without exception.
Thus, the trial court’s statements in the findings of fact and conclusions of law for the
application for DNA testing are not binding on the court’s later determination regarding
the petition for postconviction relief.
{¶14} Furthermore, in denying King’s petition, the trial court reviewed all of the
admissible evidence before concluding that King did not establish “actual innocence.”
First, it reviewed the evidence submitted at trial, which this court summarized in King I.
It then reviewed the DNA results. The court found that the DNA from the vaginal swab
was consistent with the DNA from the fingernail scrapings, and that King was excluded
from both specimens. However, the trial court concluded that the addition of new
evidence matching the DNA from the vaginal material to the fingernail scrapings did not
establish King’s actual innocence.
{¶15} King argues that the sample from the victim’s fingernail is evidence of a
rape–murder scenario. He contends that the DNA evidence of both the fingernail
scrapings and semen, as well as the coroner’s testimony that there was evidence of trauma
to the victim’s rectum contemporaneous to the injuries caused to her neck by
strangulation, illustrates that whomever deposited the semen was the killer. King’s
theory ignores the serologist and coroner’s testimony that although there was evidence of
rectal trauma at the time of the strangulation, the semen was not deposited at the time of
the murder. Thus, the fingernail scrapings support the State’s theory that the victim
engaged in sexual intercourse with someone other than King in the days preceding the
murder. Furthermore, the evidence of rectal trauma at the time of the murder in no way
exonerates King.
{¶16} In addition, we are bound by the law of the case set forth in King I. The
law of the case doctrine provides that the decision of a reviewing court in a case remains
the law of the case on the legal questions involved for all subsequent proceedings in the
case at both the trial and reviewing levels. Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d
410 (1984). Thus, “the doctrine of law of the case precludes a litigant from attempting
to rely on arguments at a retrial which were fully pursued, or available to be pursued, in a
first appeal. New arguments are subject to issue preclusion, and are barred.” Hubbard
ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404-405, 1996-Ohio-174, 659 N.E.2d 781.
{¶17} Although we recognize that the doctrine of the law of the case is considered
a rule of practice rather than a binding rule of substantive law, we view its application
here achieves just results. The rule is “necessary to avoid endless litigation by settling
the issues.” Hubbard at 404, citing State ex rel. Potain v. Mathews, 59 Ohio St.3d 29,
32, 391 N.E.2d 343 (1979).
{¶18} In King I, this court came to the following legal conclusions: there was
sufficient evidence for the jury to find King guilty of murder, and the evidence did not
weight heavily against his conviction. In reaching these legal conclusions, we stated:
When viewed in the light most favorable to the prosecution, the evidence
showed that defendant was with his girlfriend, the victim, the last time she
was seen alive and when her strangled decomposing corpse was discovered
by her daughter. The circumstances of her death indicate she was killed
from behind by someone she knew, because there were no signs of a
struggle. According to the victim’s friend Jean Hester, defendant and the
victim had a history of fighting about cocaine and money. The victim told
Hester before her death that defendant “jump on her.”
Defendant’s behavior in the apartment before the decomposing body was
discovered was curiously detached. Others noticed a foul odor, which
defendant insisted resulted from cooking, but there was no evidence that
anyone had cooked anything. Defendant’s conduct after the victim’s body
was first discovered continued to be suspicious. According to Brandi,
defendant began pacing and did not originally go to the closet when she told
him she had discovered his missing girlfriend’s body. Defendant also did
not try to determine whether he could help or even whether his girlfriend
was dead.
King I at 15-16.
{¶19} Therefore, we agree that the new DNA results do not clearly and
convincingly establish King’s actual innocence under R.C. 2953.23(A)(2). This
evidence alone did not refute the evidence presented at trial, and therefore, King failed to
establish that “no reasonable factfinder would have found [him] guilty of the offense of
which [he] was convicted.” R.C. 2953.23(A)(1)(b). Therefore, the trial court did not
abuse its discretion when it denied King’s petition for postconviction relief.
{¶20} Accordingly, the sole assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE CONCURRING
OPINION ATTACHED);
MELODY J. STEWART, P.J., DISSENTS (WITH SEPARATE DISSENTING
OPINION ATTACHED)
SEAN C. GALLAGHER, J., CONCURRING:
{¶22} I concur fully with the judgment and analysis of the majority opinion. The
dissent offers a comprehensive and thoughtful analysis of the facts in the case, and I write
separately to more specifically address some of the concerns raised in the dissent.
{¶23} Every judge wants to see justice done. No judge wants to see an innocent
person in prison. Where possible, judges will engage in a search for the truth. At
times, those searches, as here, do not change the outcome.
{¶24} There is no question that the ability to identify the origin of the fingernail
scrapings through enhanced DNA testing casts new light on this case. Nevertheless, this
most recent DNA test was not “outcome determinative.” Upon a review of the entire
record, it cannot be said that had the DNA results been analyzed in the context of and
upon consideration of all available admissible evidence related to the case, there is a
strong probability that no reasonable factfinder would have found King guilty.
R.C. 2953.71(L).
{¶25} The victim, Chrystal Hudson, was found murdered in the closet of her
sixth-floor apartment at approximately 10:30 a.m. on Wednesday, July 22, 1994. She
was found by her daughter Brandi who spent the previous night with her younger sister in
their grandmother’s apartment on the 8th floor of the same building. The last person to
see Chrystal alive, other than the killer, was her daughter Brandi, who saw her mother in
the bedroom of the apartment at 11:00 a.m. on Tuesday, June 21, 1994. The only person
in the apartment when Brandi and her sister arrived and discovered the body was Evin
King.
{¶26} The dissent analyzes the language of the various statutes, but regardless of
the definitions applied to the terms “outcome determinative” or “strong probability” under
R.C. 2953.71(L) or the terms “clear and convincing” or “actual innocence” as used in
R.C. 2953.21(A)(1)(a) and 2953.23(A)(2), the appellant does not establish he is entitled
to relief. The DNA results do not necessarily negate the state’s claim and vindicate
King, nor do they establish his “actual innocence.”
{¶27} The crucial evidence in this case has not changed or been refuted by this
new DNA test. The critical evidence that remains uncontroverted is the testimony of the
coroner, Dr. Robert Challener, and the coroner’s serologist, Kay May. Both testified
that the sperm found in the victim that did not match King was deposited anywhere from
two days to seven days prior to her murder. Specifically, May testified that no F-30
enzymes were present in the sperm recovered, indicating that the sperm was deposited at
least 16 hours prior to the murder. The fact that the fingernail scrapings are now shown
to match the sperm originally recovered does not change those facts.
{¶28} The dissent presumes that by authorizing a test under R.C. 2953.71(L),
results consistent with the defendant’s theory must be read to exonerate the defendant as
“outcome determinative.” This approach would require us to ignore the other facts
previously established and not refuted.
{¶29} Further, there is nothing in the statutory scheme that would preclude the trial
court from reconsidering its decision after the results are obtained. A decision to grant
an application for postconviction DNA testing brought pursuant to R.C. 2953.71 et seq. is
not a final, appealable order because there is no provision for an appeal by the state. See
State v. Montgomery, 8th Dist. No. 97143, 2012-Ohio-1640, ¶ 11-12. Instead, only a
defendant whose application for DNA testing has been rejected is permitted to appeal.
Id. at ¶ 13; R.C. 2953.73(E). It necessarily follows that a determination to allow DNA
testing is not binding as to the defendant’s ultimate fate.
{¶30} The trial court may have erroneously drafted its order to suggest that if the
new test revealed King’s DNA was not in the scrapings, the defendant would be granted
the relief requested. The trial court was attempting to utilize new testing techniques to
clear up the unidentified origin of the fingernail scrapings. While R.C. 2953.74(B) and
(C) indicate the test should be approved only if it will be outcome determinative, one
cannot fault the trial court for attempting to clear up an undefined factor in the case.
The trial court’s heart was in the right place. Regardless of the language in the trial
court’s order and the mandates of R.C. 2953.74, this test result changes nothing.
{¶31} Unless King can offer some explanation or testimony that refutes or casts
doubt on the testimony of Dr. Challener and serologist Kay May, the trial court was right
in denying the request for relief. Specifically, it would take a hearing with an expert or a
report that can reasonably question or refute both Challener’s and May’s claims that the
sperm was deposited prior to the murder, to make a more compelling argument that the
origin of the fingernail scrapings is “outcome determinative” in this case.
MELODY J. STEWART, P.J., DISSENTING:
{¶32} Evin King theorized at trial that the person whose semen was found in the
victim was also the person who killed her by ligature strangulation. He might have
proved that contention at trial if then-existing testing protocols were able to test the
genetic material recovered from beneath the victim’s fingernails. If the DNA from the
victim’s fingernails matched the semen found in her, King’s theory would be supported,
showing that the victim would have been killed as she clawed at the murderer’s hands
while being strangled.
{¶33} Testing techniques have now been refined to the point where DNA evidence
is deemed by many to be the most reliable form of evidence. Recognizing the strength
of King’s theory of the murder, the court granted additional DNA testing by finding that
if testing showed that the genetic material recovered from the victim’s fingernails did not
belong to King, that result would be “outcome determinative.” Yet when the DNA from
the fingernails did not match King but matched the semen found in the victim, the court
inexplicably denied postconviction relief, concluding that the DNA evidence “does not by
clear and convincing evidence establish in the Court’s mind [the] actual innocence of the
Defendant.”
{¶34} This conclusion was reached in error. The majority’s decision to affirm the
court requires it to engage in a flawed analysis that makes immaterial and vague
distinctions between the “outcome determinative” standard for granting DNA testing
under R.C. 2953.71(L) and the standard for granting postconviction relief under R.C.
2953.21(A)(1). Those standards are cut from the same cloth and, when properly applied,
compel the conclusion that the court erred by refusing to grant postconviction relief.
The decision of the trial court should be reversed, and Evin King should be released from
prison.
{¶35} To obtain additional DNA testing, King had to demonstrate that the DNA
evidence would be “outcome determinative.” R.C. 2953.71(L) states that the results of
DNA testing are outcome determinative when, “in the context of and upon consideration
of all available admissible evidence related to the offender’s case * * * there is a strong
probability that no reasonable factfinder would have found the offender guilty” of the
offense.
{¶36} R.C. 2953.23(A)(2) provides the vehicle for vacating convictions under the
outcome determinative standard employed for DNA testing:
The petitioner was convicted of a felony, the petitioner is an offender for
whom DNA testing was performed under sections 2953.71 to 2953.81 of
the Revised Code or under former section 2953.82 of the Revised Code and
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, and the results of the DNA testing
establish, by clear and convincing evidence, actual innocence of that felony
offense or, if the person was sentenced to death, establish, by clear and
convincing evidence, actual innocence of the aggravating circumstance or
circumstances the person was found guilty of committing and that is or are
the basis of that sentence of death.
{¶37} As used in R.C. 2953.21(A)(1)(a), the phrase “actual innocence” means that
“no reasonable factfinder would have found the petitioner guilty of the offense of which
the petitioner was convicted[.]” R.C. 2953.21(A)(1)(b).
{¶38} It is true that R.C. 2953.71(L) differs from R.C. 2953.21(A)(1)(b) because it
requires a “strong probability” whereas R.C. 2953.21(A)(1)(b) does not use that language.
But it is important to note that R.C. 2953.21(A)(1)(a) requires “clear and convincing”
evidence of actual innocence, so it is proper to say that a petitioner is entitled to relief if
he can show by clear and convincing evidence that no reasonable factfinder would have
found him guilty. This standard is virtually identical to the outcome determinative
standard in R.C. 2953.71(L) which requires “a strong probability that no reasonable
factfinder would have found the offender guilty” of the offense. We held as much in
State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654, ¶ 21 (8th Dist.),
when we noted that “[t]he addition of the words ‘strong probability,’ among others, in the
current version of R.C. 2953.71(L) in essence lowers the definition of ‘outcome
determinative’ from a showing of innocence beyond a reasonable doubt to one of clear
and convincing evidence.”
{¶39} Although the majority cites Ayers, it does not cite it for the proposition that
the “strong probability” and “clear and convincing evidence” standards are the same in
meaning. The clear and convincing evidence standard of proof is “intermediate, being
more than a mere preponderance, but not to the extent of such certainty as is required
beyond a reasonable doubt as in criminal cases.” State v. Eppinger, 91 Ohio St.3d 158,
164, 743 N.E.2d 881 (2001); see also Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the syllabus. Something is probable when it is more likely
than not. A “probability” of something occurring is likelier than something happening
by a mere preponderance of the evidence. When there is a “strong” probability of
something occurring, it means it is far more likely than the preponderance of the evidence
standard but something less than the kind of certitude expressed in the beyond a
reasonable doubt standard. A strong probability is thus more than a preponderance of
the evidence and less than beyond a reasonable doubt — in other words, functionally
equivalent to the clear and convincing evidence standard. See, e.g., Natalini, Comment:
Preventive Detention and Presuming Dangerousness Under The Bail Reform Act of 1984,
134 U. Pa. L.Rev. 225 (1985), fn. 88, citing to McBaine, Burden of Proof: Degrees of
Belief, 32 Calif. L. Rev. 242, 246-247 (1944).
{¶40} Once the trial court declared that the results of DNA testing would be
“outcome determinative” under R.C. 2953.71(L), and those results were in fact favorable
to King, the court was obligated to find that King showed “actual innocence” and should
have ordered his release from prison.
{¶41} The “actual innocence” standard set forth in R.C. 2953.21(A)(1)(b) does not
require King to show that he is actually innocent — that he did not commit the crime
(although King has always maintained that he is indeed actually innocent) — he only
needed to show that, had the fingernail DNA evidence been presented at trial and
analyzed in the context of all admissible evidence related to his case, “no reasonable
factfinder would have found [him] guilty of the offense of which [he] was convicted[.]”
In other words, with the DNA results from the fingernail scrapings, a reasonable
factfinder would, more likely than not, find that the state did not prove beyond a
reasonable doubt that he committed the murder. The court engaged in this same analysis
of the impact of the DNA evidence when granting the motion for DNA testing under R.C.
2953.71(L), which required the court to consider the possible results of DNA testing “in
the context of and upon consideration of all available admissible evidence related to the
offender’s case[.]”
{¶42} King theorized that the person whose semen was found in the victim was
also her murderer. In an answer on the application form that petitioners for DNA testing
must complete, King was asked to state: “What defense was presented in your case at the
time of your plea or trial?” King responded: “Defendant maintained that he left the
victim’s apartment before she was killed by an unidentified assailant. Defendant
presented an alibi that he spent time with other people during the time of the killing.”
{¶43} The application for DNA testing also asked King to “[e]xplain why a DNA
test would have changed the outcome of your case. (Be specific)[.]” King explained
that “[i]f the fingernail scrapings match a third party, not defendant, the indication is that
victim got assailant’s skin cells under fingernails during death struggle, and killer is third
party perpetrator. There is no other physical evidence implicating defendant in this
killing.” As King stated in his memorandum in support of his application for DNA
testing, “[i]f a DNA profile of the scrapings matched the semen profile, this would
implicate a third party perpetrator, as an argument can be made that in the struggle with
her assailant, the victim got some of her assailant’s skin cells under her fingernails.”
{¶44} In granting DNA testing, the court accepted King’s stated rationale. In the
findings of fact and conclusions of law issued by the court, it stated in pertinent part:
C. Determination whether DNA exclusion would have been outcome
determinative at Trial. R.C. § 2953.74(B) and R.C. §2953.71(L).
DNA procedures have advanced dramatically since the time of this trial.
The debris from the nails examined today may yield testable biological
material. This is a circumstantial evidence case. If biological material is
available, it should be tested. DNA belonging to “an unknown party”
found under the fingernails of the victim, for example would prove the
identity of the real killer if the fingernail debris is testable and matches the
DNA from the semen. King’s theory of defense was a third party killed
and raped the victim while he was away from the apartment.
DNA testing results would be outcome determinative.
***
DNA testing of the samples of the DNA collected from the victim with
King’s DNA samples may definitely prove that King did not murder Ms.
Hudson. If Hudson scratched her assailant, the crime scene evidence
technician may have scraped the real assailant’s biological material from
her fingernails. If the results of the DNA testing establish that someone
other than King was the assailant, a reasonable factfinder may not find him
guilty of the murder of Ms. Hudson.
***
If a DNA profile of the scrapings matched the semen profile, a strong
argument could be made that Ms. Hudson scratched her assailant as he
raped and murdered her.
DNA exclusion results would eliminate King as a suspect. This Court
finds that no reasonable factfinder would have found King guilty had DNA
exclusion results been presented. Thus DNA exclusion results would have
been outcome determinative.
***
H. Determination whether one or more of the defense theories
asserted at the trial stage was of such nature that, if DNA Testing is
conducted and an exclusion result is obtained, the exclusion result will
be outcome determinative. R.C. §2953.74(C)(4).
A trial court may accept an application for DNA testing if an exclusion
result will be consistent with a defense theory presented at the trial of the
case. * * * This Court adopts its reasoning in part C and finds an
exclusion result will be consistent with King’s alibi defense and general
denial which he asserted at trial.
I. Determination whether, if DNA Testing is conducted and an
exclusion Result is obtained, the results of the testing will be outcome
determinative regarding the inmate. R.C. §2953.74(C)(5).
As discussed in part C of its Finding[s] of Facts and Conclusions of Law,
this Court found that DNA exclusion results would have been outcome
determinative. Evidence that King was not the donor of biological
evidence recovered from the fingernails of the victim would provide strong
evidence of King’s innocence. This Court finds that, if DNA testing is
conducted and an exclusion result is obtained, the results of the testing will
be outcome determinative regarding King. (Emphasis added.)
{¶45} The results of the DNA testing conclusively showed that the genetic
material recovered from the victim’s fingernails did not belong to King, but instead
matched the DNA from the semen found in the victim. This evidence is crucial because
it is the exact evidence that King argued, and the court found, “will be consistent with
King’s alibi defense and general denial which he asserted at trial,” “would provide strong
evidence of King’s innocence,” “would eliminate King as a suspect,” “would prove the
identity of the real killer,” and “would be outcome determinative.”
{¶46} The DNA test results support King’s contention that the male who deposited
the semen in the victim is the killer, regardless of whether the semen was deposited
during a rape or consensual intercourse. Evidence showed that the victim had been
strangled from behind after being brutally beaten. Under those circumstances, the
obvious close contact with her assailant makes debris found under her fingernails
significant in and of itself, the timing of the semen deposit notwithstanding. See Matte,
Williams, Frappier, & Newman, Prevalence and Persistence of Foreign DNA Beneath
Fingernails, Forensic Science International: Genetics 6, (2012) 236-243. With the state
admittedly building its case for murder solely on circumstantial evidence, this DNA
evidence would have been compelling.
{¶47} The state argued that King and the victim knew each other, thus accounting
for the lack of evidence in the apartment showing a struggle. The state thus understood at
trial that it could rebut King’s theory that the person who deposited the semen was also
the murderer if there was no DNA evidence found beneath the victim’s fingernails. It
offered the testimony of a forensic scientist who testified that there was “no blood or
tissue or any material significance” found under the victim’s fingernails. The expert
also reiterated on both direct and cross-examination that the scrapings resulted in nothing
of evidentiary value.
{¶48} King’s theory of who committed the crime evaporated with the expert’s
testimony. He had no other way to tie the person who left the semen in the victim to the
murder. This meant that the state could plausibly argue that the semen and murder were
unrelated happenings.
{¶49} Although the forensic evidence did not demonstrate with any certainty when
the semen had been deposited, the state maintained that the semen was deposited during a
remote time prior to the murder. In fact, the state went to great lengths to demonstrate
that the semen was deposited as far away in time from the murder as possible.
Testimony from a scientist that no biological material or that nothing of evidentiary value
was found beneath the fingernails supported this strategy. Evidence that biological
material was indeed located beneath the fingernails, and that the material matched the
person whose semen was found in the victim certainly runs counter to the strategy. At a
minimum, the factfinder would have to determine how, and when, the material got lodged
beneath the fingernails.
{¶50} The DNA result excluding King as the originator of the genetic material
found beneath the victim’s fingernails was a crucial break in the case. It negates the
forensic scientist’s testimony that no biological material was found under the victim’s
fingernails and weakens the state’s entire case of circumstantial evidence. King’s
contention that an unknown person’s DNA material found under the victim’s fingernails
“would prove the identity of the real killer if the fingernail debris * * * matches the DNA
from the semen because King’s theory of defense, i.e. a third party killed and raped the
victim while he was away from the apartment * * *,” is made all the more probable with
the test results than without them. The court had to have understood all of this when it
granted King’s application for DNA testing.
{¶51} Despite making the findings that “[i]f a DNA profile of the scrapings
matched the semen profile, a strong argument could be made that Ms. Hudson scratched
her assailant as he raped and murdered her,” that an exclusion result “would eliminate
King as a suspect,” and that “no reasonable factfinder would have found King guilty
had DNA exclusion results been presented [at trial],” the court ultimately held that the
DNA evidence did not prove King’s innocence. In its findings of fact and conclusions
of law, the court stated that “[t]he only new evidence is that the DNA material under the
fingernail was not the Defendants and that it was consistent with the vaginal DNA
material.” The court made no mention of its prior ruling that the DNA evidence would
be outcome determinative. Instead, it justified the reversal of its prior statements
concerning the impact of the DNA evidence by saying:
The Court concludes that this particular additional information does not by
clear and convincing evidence establish in the Court’s mind actual
innocence of the Defendant. Further, since the evidence presented at trial
already excluded Defendant as the donor with respect to the vaginal swabs,
the Court finds that this one additional fact would not be outcome
determinative.
{¶52} Nothing about the case changed from the time when the court found that
DNA testing would be outcome determinative to the time when the court denied
postconviction relief. The court’s statement that “[t]he only new evidence is that the
DNA material under the fingernail was not the Defendants and that it was consistent with
the vaginal DNA material” is perplexing. This was the exact evidence, and indeed the
“only new evidence,” King sought in his petition for testing. Even more, this was
precisely the evidence the court had previously ruled “will be consistent with King’s alibi
defense and general denial which he asserted at trial,” “would provide strong evidence of
King’s innocence,” “would eliminate King as a suspect,” “would prove the identity of the
real killer,” and “would be outcome determinative.”
{¶53} The court’s refusal to grant postconviction relief is a clear abuse of the
court’s discretion because the court specifically found that DNA testing would be
outcome determinative. The court’s initial outcome determinative finding was made “in
the context of and upon consideration of all available admissible evidence” related to
King’s case. R.C. 2953.21(A)(1)(b) required the court to consider the DNA evidence
presented in a petition for postconviction relief “in the context of and upon consideration
of all available admissible evidence” related to King’s case. In other words, the court
had to view the DNA evidence in the petition for postconviction relief and the evidence at
trial in the same light in which it viewed it when deciding whether DNA testing would be
outcome determinative. The court concluded that King’s DNA evidence did not show
actual innocence, even though it found the very same evidence would be outcome
determinative. Because the standards employed in R.C. 2953.71(L) and R.C.
2953.21(A)(1)(a) are functionally identical, the court’s opposite conclusion on the same
evidence is arbitrary, unreasonable, and capricious — the very definition of an abuse of
discretion. State v. Adams 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶54} The state opposed the petition for postconviction relief on grounds that King
was asking for a new trial based upon “unremarkable” evidence — evidence that was
neither new nor contradicted by the scientific evidence presented at trial that there was no
evidence of rape, no evidence of a struggle between the victim and her murderer, and no
evidence that correlated the sexual relations and the deposit of sperm with the homicide.
The state went on to strenuously argue that King’s petition and the results of the DNA
testing do nothing to alter the evidence presented at trial regarding the age of the semen
found inside the victim: that evidence, the state argued, shows that there was no
rape–murder. Now, the new evidence does correlate the “sexual relations” with the
homicide, arguably by time, but certainly by identity. The new DNA evidence is the
best, if not the sole, piece of physical evidence that ties the perpetrator to the crime.
{¶55} Additionally, the best that can be said of the state’s arguments in opposing
the petition for postconviction relief is that they had been rejected when offered in
opposition to the motion for DNA testing. The state opposed DNA testing on grounds
that DNA evidence was available and introduced at the time of trial. It also argued that
additional DNA did not exist, and even if it did and could be tested, the DNA results
would not be outcome determinative because they would not likely convince a reasonable
juror that King did not commit the crimes for which he was convicted, “let alone create
doubt where the biological material found on the victim’s body in the form of
spermatozoa that was tested excluded Defendant as the source.” These were essentially
the same arguments the state made when opposing the petition for postconviction relief
and nothing changed between the time the court granted testing and then denied
postconviction relief. The majority concedes the inconsistency of the trial court’s
decision, but nonetheless affirms the court’s decision, asserting that the outcome
determinative finding was not binding on the court because it was “interlocutory.”
{¶56} Also, the majority’s conclusion appears to be at odds with its application of
the law of the case doctrine — the majority essentially finds that this court’s affirmance
of King’s conviction on direct appeal established that there was sufficient evidence to
sustain the conviction and that the new DNA evidence does nothing to contradict this.
That conclusion is obviously at odds with the court’s finding that the DNA evidence, if
not matched to King, “would eliminate King as a suspect.” There would be no point in
postconviction testing for DNA if the reviewing court could waive away the results of
that testing simply by pointing to the same evidence used to convict. Again, R.C.
2953.71(L) specifically requires the trial court to determine whether DNA testing will be
outcome determinative by analyzing the DNA evidence “in the context of and upon
consideration of all available admissible evidence related to the offender’s case[.]” So
to the extent the court found that the results of DNA testing would be outcome
determinative, it had to view those results in the context of the evidence presented in
King’s case. It could not make an outcome determinative finding based on the results
King set forth in his petition, and then turn around and say that those exact results would
not support a finding of actual innocence. The concurring opinion attempts to explain
the inconsistency merely by implying that the trial court, although well intentioned, erred
in granting the petition for testing because the results were not “outcome determinative.”
{¶57} To the extent that the court’s consideration of the impact of the DNA
evidence changed or differed from the testing stage to the results stage, that consideration
cannot be based on a less comprehensive review of the evidence once the actual results
were submitted. In this case, the trial court did not conduct a comprehensive review of
the evidence. So the court abused its discretion also because it is clear that the court did
not consider the new DNA evidence “in the context of and upon consideration of all
available admissible evidence” as the statute requires. (Emphasis added.)
{¶58} In its findings of fact, the court gave a brief summary of the case and
referenced a “broader recapitulation of the facts” that could be found in the pleadings and
this court’s opinion in King’s direct appeal. This does not demonstrate the type of
review and consideration of the evidence contemplated by the statute. Furthermore,
before its conclusions of law, the court plainly states that it “has chosen to look at the new
DNA results and the coroner’s report.” This language clearly demonstrates that the
court’s analysis, as does the analysis of the concurring opinion, considered the new DNA
evidence only in context to the blood antigen and vaginal swab evidence presented at trial
— and not even all of that evidence.
{¶59} Tellingly, the court states in its conclusions of law that “the findings in the
coroner’s report excluded the Defendant as the donor on a blood antigen basis. The new
DNA report confirms that.” The court goes on to say that “since the evidence presented
at trial already excluded Defendant as the donor with respect to the vaginal swabs, the
Court finds that this one additional fact would not be outcome determinative.” This
analysis implies that King petitioned the court for DNA testing simply to accumulate
evidence to support the fact that the sperm deposits were not his. This was clearly not the
reason for King’s petition.
{¶60} Finally, the concurring opinion attempts to buttress the decision reached in
this case by referencing a judicial desire to “search for the truth” “where possible,” but
concludes that the “search” here “does not change the outcome.” I can only respond by
saying that there is no “change” in the outcome because the “search” was extremely
limited.
{¶61} Since King’s conviction, the pleadings and judicial opinions regarding this
case have been rife with misstatements and mischaracterizations of the evidence, and
unfortunately, the concurring opinion continues to perpetuate these mistakes. For
example, the pleadings and judicial opinions indicate that the victim’s older daughter
observed King with the victim the night before, and the morning of, her murder. Yet the
transcript is replete with the daughter’s testimony that King was not with her mother on
those occasions: that her mother was alone, that King “wasn’t there.” Also, it is alleged
that King did not deny killing the victim when the daughter accused him. Yet her
testimony reveals that he consistently and repeatedly did so.
{¶62} The victim’s daughter was the best witness the state presented at trial. She
was the last person, other than the killer, to see the victim alive. She discovered her
mother’s body, and she was the only person to observe King’s demeanor and response
when the body was discovered. What is more, the daughter let it be known that she did
not like King. She testified, “when I first saw him, I just didn’t like him, just something
— just I don’t like him. *** The way he looked, the way he dressed, because he
dressed like he was a bum or came off the streets.” Therefore, her testimony would
appear to be the most credible of anyone’s offered during trial. Her strong aversion to
King shows that, any favorable testimony would not have been made for his benefit.
{¶63} The state insists that King’s rape–murder theory is “speculation and fantasy”
because the coroner testified that one would expect to see more intact sperm “if they had
just been recently deposited” and he thought it was “very unlikely” that the sperm heads
found were contemporaneous with the anal penetration. However, the coroner also
testified that “[i]t is very difficult to give any reliable estimate,” with regard to the age of
the sperm heads. He further testified that the injury to the victim’s rectum was a
“common association of some form of sexual assault” and that the injury was done in
conjunction with her neck injuries.
{¶64} As previously noted, the concurring opinion, like the trial court, analyzed
the new DNA results solely in the context of the sperm evidence. The concurrence
asserts that the “crucial evidence in this case,” the testimony of the chief deputy coroner
and that of the serologist, is the evidence that the new DNA results would have to refute,
presumably in order for the results to be “outcome determinative.” Not only is this
analysis limited, it is just plain wrong.
{¶65} First off, it defies logic that one would not consider the identity of the
person whose biological material was found under the fingernails of a strangulation
victim, crucial: as if, the fact that the material matched the depositor of the semen is
irrelevant because that person has, in effect, been ruled out as the killer with the finding
of guilt against King. Secondly, the testimony of the deputy coroner and the serologist
is not quite what the concurrence says it is.
{¶66} Dr. Challener did not testify that the sperm was deposited anywhere from
two days to seven days prior to death. As a matter of fact, when asked was it possible
that the sperm cells could have been deposited up to seven days prior to death, the doctor
replied, “that would be stretching it a bit.”
{¶67} Likewise, the serologist’s testimony does not indicate that sperm was
deposited at least 16 hours prior to the murder. Her testimony was that the particular
protein that was not found in the swabs only lasts “between 8 and 16 hours,” that it
“[n]ever lasts beyond 16 hours after having been deposited.” Because the biological
material was collected 24 hours or more after the victim had been murdered, this
testimony is not “crucial.”
{¶68} The point the concurrence seems to want to underscore is that the testimony
regarding the timing of the semen deposit contradicts King’s theory that the crime was a
rape–murder: that the semen was deposited at the same time the victim was killed.
Without question, some of the testimony does indeed contradict King’s theory. And
some does not. In some instances, the evidence supports his theory or is conflicting.
For instance, the victim’s autopsy report indicates: “Few intact sperm and many sperm
in vaginal and rectal smears.” But neither King’s theory nor the state’s theory should be
the sole focus in determining this case. A consideration of the DNA results in the
context of and upon consideration of all available admissible evidence related to King’s
case is the analysis required by law.
{¶69} Last but not least, the concurring opinion also emphasizes the fact that King
was the only person in the apartment (the linchpin of the state’s case) when the victim’s
daughter discovered her body — the day after the murder. This fact is important. But
again, it cannot be considered in isolation. Presence at a crime scene when a body is
discovered does not automatically equate to having committed murder. King was
watching television in the living room of the apartment when the body was discovered
stuffed in a bedroom closet. King was also in the apartment entertaining the victim’s
mother and a neighbor the evening before the body was discovered, but clearly after Ms.
Hudson had been murdered.
{¶70} The trial testimony in this case is critical, especially the daughter’s
testimony. Not only does she establish the time frame for her mother’s death, her
testimony also includes the fact that her mother always left her door open with a block,
thus showing one way that someone else would have access to the apartment. All told,
this evidence and more should have been considered in light of the DNA results. It was
not.
{¶71} King was sentenced to 15 years to life in prison for a crime he has always
maintained he did not commit. In consideration of the fact that no physical evidence
connects him to this brutal murder, and no direct testimony credibly implicates him, the
circumstantial evidence presented at trial cannot overcome a finding of actual innocence
in light of the new DNA test results. The trial court recognized this when it granted the
petition for DNA testing, but abused its discretion when it subsequently denied King
postconviction relief.
{¶72} I am well aware that “a reviewing court should not overrule the trial court’s
finding on a petition for postconviction relief that is supported by competent and credible
evidence.” State v. Gondor, 112 Ohio St.3d 377, 390, 2006-Ohio-6679, 860 N.E.2d 77.
However, the trial court’s finding in this matter is not. I therefore dissent from the
decision to affirm.