State v. Jalowiec

[Cite as State v. Jalowiec, 2015-Ohio-5042.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 14CA010548
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STANLEY E. JALOWIEC COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 95CR046840
DECISION AND JOURNAL ENTRY
Dated: December 7, 2015
MOORE, Judge.
{¶1} Appellant, Stanley Jalowiec, appeals an order that denied his motion for a new
trial. This Court affirms.
I.
{¶2} In 1996, a jury found Mr. Jalowiec guilty of aggravated murder in connection
with the death Ronald Lally, and on the jury’s recommendation, the trial court sentenced him to
death. This Court affirmed. State v. Jalowiec, 9th Dist. Lorain No. 96CA006445, 1998 WL
178554 (Apr. 15, 1998). The Ohio Supreme Court affirmed as well. State v. Jalowiec, 91 Ohio
St.3d 220 (2001), cert. denied, 534 U.S. 964 (2001). While his direct appeal was pending, Mr.
Jalowiec petitioned the trial court for postconviction relief, followed by three amended petitions.
The trial court treated his third amended petition as a successive petition and dismissed it. This
Court affirmed. State v. Jalowiec, 9th Dist. Lorain Nos. 01CA007844, 01CA007847, 2002 WL
358637 (Mar. 6, 2002), appeal not allowed, 96 Ohio St. 3d 1439, 2002-Ohio-3344.
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{¶3} Mr. Jalowiec also petitioned the federal district court for a writ of habeas corpus
in 2003. During the course of discovery, previously undisclosed evidence came to light, and in
2005, Mr. Jalowiec filed an amended petition. The amended petition alleged, in the twentieth
claim for relief, that Mr. Jalowiec “was denied his rights to a fair trial, due process of law, and to
be free from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution, when the state withheld favorable and
exculpatory * * * materials.” Jalowiec v. Bradshaw, N.D.Ohio No. 1:03 CV 0645, 2008 WL
312655, *16 (Jan. 31, 2008). The district court determined that the allegations in Mr. Jalowiec’s
twentieth ground for relief were procedurally defaulted because Ohio courts had enforced a state
procedural bar with respect to one basis for relief and, with respect to the others, Mr. Jalowiec
had failed to present them for adjudication in Ohio courts. Id. at *33. Nonetheless, the district
court considered the merits of the procedurally defaulted claims “in an effort to promote judicial
efficiency and preserve judicial resources.” Id. at *50. In so doing, the district court concluded
that Mr. Jalowiec’s twentieth ground for relief was without merit in its entirety. Id. at *66-73.
Mr. Jalowiec appealed to the U.S. Sixth Circuit Court of Appeals.
{¶4} On May 28, 2008, Mr. Jalowiec also filed a pro se motion for leave to file a
delayed motion for a new trial based on newly discovered evidence. The trial court granted
leave, and Mr. Jalowiec filed that motion on June 4, 2008. The State responded. In the
meantime, Mr. Jalowiec’s appeal moved forward in the Sixth Circuit. Oral argument was heard
on June 9, 2010. The Sixth Circuit issued its final opinion in the case on November 23, 2011. In
response to Mr. Jalowiec’s argument that his failure to exhaust should have been excused by the
district court, the Sixth Circuit concluded that the nondisclosure of evidence resulted in good
cause for the procedural default, but that the nondisclosure did not result in prejudice such that
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Mr. Jalowiec was entitled to a stay while his motion for a new trial was litigated in state court.
Jalowiec v. Bradshaw, 657 F.3d 293, 305 (6th Cir.2011). In so doing, the Sixth Circuit
undertook a de novo review, considering each allegation in the twentieth claim for relief
individually and collectively. Id. at 305-314. The Sixth Circuit affirmed the district court’s
denial of the twentieth claim for relief, concluding that he had failed to show that “the
undisclosed impeachment evidence is sufficiently ‘material’ to warrant habeas relief.” Id. at 314.
{¶5} About one month after the Sixth Circuit issued that decision, Mr. Jalowiec moved
the trial court for leave to file an amended motion for a new trial. The trial court granted leave,
and Mr. Jalowiec filed an amended motion on June 28, 2012. The trial court conducted a hearing
on the motion and considered the matter submitted upon the filing of posthearing briefs. The
trial court denied Mr. Jalowiec’s motion for a new trial on January 29, 2014, and this appeal
followed.
II.
{¶6} Because Mr. Jalowiec’s motion for a new trial hinged on the materiality of newly
discovered evidence, we begin by setting forth the evidence that resulted in his conviction.
{¶7} On January 19, 1994, the body of an unidentified man was found along a road
inside a Cleveland cemetery. Police noted that the previous night had been one of the coldest
recorded in Cleveland, yet the victim was found shirtless, his upper garments lying along the
road in a snow bank. There were blood stains on the road with tire tracks running through them.
According to the coroner, the victim had multiple abrasions to his face and split lips from blows
to the mouth. He had received multiple blows to the head, and his neck bore scrapes that were
“deep” and “impressive.” Another “broad area of parallel scrapes” were evident on his chest and
abdomen. The coroner ruled that the man died as a result of three factors: a gunshot wound to
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the head, which would not have been fatal on its own; multiple blows to the head; and exposure
to extremely cold temperatures. About three weeks later, the deceased was identified as Ron
Lally.
{¶8} In 1993, Mr. Lally had agreed to purchase drugs from Danny Smith as a
confidential informant for the Elyria Police Department. As a result of the purchase, Danny
Smith and his father Raymond were charged with drug offenses. Danny was scheduled to go to
trial on January 19, 1994. Officer John Homoki testified that in September 1993, he responded
to a disturbance call initiated by Mr. Lally, who complained that “these guys” had threatened
him. Officer Homoki recalled that Danny Smith said at the time, “That snitch will get his.”
Officer Homoki also saw Mr. Jalowiec walking away from the disturbance as he arrived on
scene. Mr. Lally’s fiancé, Sandra Williams, also recalled that Mr. Lally had been threatened by
Danny Smith.
{¶9} Witness Lynne Altpater testified that around the same time, Danny Smith asked
her whether she could get him some poison because “he said he needed [it] to take care of
somebody” who was going to testify against him. Terry Hopkins, a school acquaintance of
Danny Smith, testified that he agreed to help Smith “[b]eat somebody up,” but that when Smith
later approached him because he “wanted somebody killed,” he declined. Instead, he arranged
for Smith to meet Carl Hartman. Hartman also testified, and he recalled that in the fall of 1993,
Danny Smith asked him if he would take money in exchange for making sure that Mr. Lally did
not testify. Hartman refused, but recalled that Smith said that “he had somebody that could do it
for him[.]” He remembered that Smith mentioned someone named “Stan,” but did not use a last
name.
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{¶10} The night before Danny and Raymond Smith were scheduled to go to trial on the
drug charges, they went drinking with some of their acquaintances. Terry Hopkins testified that
he was drinking with Danny Smith and Danny’s girlfriend Tammy, his own girlfriend, and his
sister, Sharon Hopkins. According to his testimony, the group went to a diner when the bars
closed for the night, and he returned to his sister’s apartment not long after that without Danny
Smith.
{¶11} Sharon Hopkins also testified, but she recalled that she stayed behind at the diner
when her brother left with his girlfriend. Sharon testified that Raymond Smith, Danny Smith,
and Danny’s brother Michael were all present. She also recalled that Mr. Jalowiec was present
“[h]ere and there” during the evening with Danny, but that by the time the bars closed, Mr.
Jalowiec was gone. She stated that she left with Danny Smith, who was her ride home.
Raymond and Michael were also in the car, but according to her testimony, Danny dropped them
off on Middle Avenue. Danny then pulled into a parking lot in the woods and waited until a
convertible drove past. Sharon recalled that the convertible drove back and forth a few times
before Danny followed it out of town and signaled for it to pull over. According to Sharon,
Danny “ducked down” in the car and told her to get out and ask the driver if they had picked up
his brother Michael. Sharon complied. She identified the driver as Mr. Jalowiec and recalled
that there were other people in the car that she could not identify. Sharon got back in the car, and
Danny Smith drove her home.
{¶12} Joann Fike (also known by the name “Corinne Fike”) testified that she knew
Danny and Raymond Smith as a result of their involvement with drugs. Fike owned a 1992
Chrysler LeBaron convertible, which she had loaned to Danny on occasion in exchange for drugs
that he provided. Fike also owned a dog, whose hair was collected for analysis by the Elyria
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police department in connection with Mr. Lally’s murder. Fike’s nephew, Brian Howington,
testified that he used Fike’s convertible on the night in question. Howington recalled that he was
drinking with Mr. Jalowiec that evening before the two picked Mr. Lally up and went back to
Fike’s house. Howington testified that Mr. Jalowiec received a page, then asked to borrow
Fike’s convertible and left with Mr. Lally around 1:00. He returned the car around 5:00 a.m.
with Raymond Smith, and the car was “frozen, covered with ice” as though it had been washed.
{¶13} Michael Smith, who is the son of Raymond Smith and brother of Danny Smith,
implicated his father and Mr. Jalowiec directly in the murder of Mr. Lally and, indirectly,
implicated Danny in the scheme that led up to Mr. Lally’s death. Michael testified that he was
out on the night of January 18, 1994, and met up with his father and brother at a diner. He left
the diner with Raymond, Danny, and Danny’s girlfriend, Tammy, in Danny’s car. Michael
recalled that Danny dropped him and Raymond off, and they waited until Mr. Jalowiec picked
them up in a Chrysler LeBaron. Mr. Lally was a passenger in the car as well. Michael recalled
that as they drove, Raymond threatened Mr. Lally because he had set Danny up, but said that
“We are going to give you some money, get you a bus ticket, you are going to get out of town.”
Michael testified that instead, Raymond gave Mr. Jalowiec instructions to drive into Woodland
Cemetery, where he and Mr. Lally got out of the car. According to Michael, Raymond pointed a
gun at Mr. Lally’s face and said, “You will never snitch on nobody again[.]” Michael heard a
gunshot and heard Mr. Lally exclaim, “You shot me in my head, you shot me in my head” before
pleading for his life.
{¶14} At that point, Michael recalled that Raymond told Mr. Jalowiec to get out of the
car and a scuffle ensued. Michael testified that at one point, Mr. Jalowiec opened the door and
retrieved a knife. Silence followed, then according to Michael, he heard the trunk open and
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heard Mr. Jalowiec say, “He ain’t going to fit, he ain’t going to fit, he is too stiff[.]” Michael
recalled that Raymond and Mr. Jalowiec got back into the car and that Mr. Jalowiec backed the
car into something three times. Mr. Lally did not get back into the car. As the men drove away,
Michael recalled that Raymond asked why he had not gotten out of the car to help, then
dismantled his gun and threw it from the window piece by piece.
{¶15} Terry Hopkins testified that after his sister Sharon got home early on the morning
of January 19th, he returned to Danny Smith’s apartment, where he had been staying. According
to Hopkins’ recollection, Danny was “nervous, real nervous and said he was feeling sick to his
stomach. * * * He said they had done it, they did it.” Hopkins left, then returned the next day to
get his belongings. He recalled that Danny Smith, Raymond Smith, Michael Smith, and Mr.
Jalowiec were all at the apartment talking “[a]bout what they had done to this guy.” Hopkins
testified that he heard Mr. Jalowiec say that “[t]hey stomped him and ran him over with a car,”
and the group talked about shooting and cutting the victim. He recalled that Danny Smith
wanted the victim killed because he had worn a wire during a drug deal. According to Hopkins,
Michael Smith seemed nervous during the conversation.
{¶16} During the course of their investigation, police examined the Chrysler LeBaron
owned by Joann Fike for evidence. They found human blood on the trunk liner with a DNA
profile that was consistent with Ron Lally, but inconsistent with Raymond Smith, Danny Smith,
and Mr. Jalowiec. Police also found dog hairs in the trunk that matched hairs found on Mr.
Lally’s clothing after his death.
{¶17} Detective Alan Leiby, who led the investigation into Mr. Lally’s death, also
testified at trial. During his testimony, Detective Leiby acknowledged that every witness in the
State’s case had refused to cooperate at the beginning of his investigation. He also testified that
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in exchange for cooperating in the investigation, witnesses Carl Hartman and Terry Hartman
received favorable consideration in criminal cases that were pending against them. He
acknowledged that he told Brian Howington, a drug user at the time, that he would not be
charged with a drug offense as a result of anything he said during his interview. Detective Leiby
testified that the fact police did not charge Michael Smith with a crime, however, was unrelated
to his cooperation.
{¶18} Mr. Jalowiec’s attorneys mounted a vigorous defense at trial, honing in on three
specific aspects of the State’s case: numerous prior inconsistent statements by witnesses, the
favorable treatment provided to some witnesses in the context of their own criminal cases, and
the fact that many witnesses were under the influence of drugs and alcohol on the night of the
murder.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL
AFTER A PARTIAL EVIDENTIARY HEARING[.]
{¶19} Mr. Jalowiec’s first assignment of error argues that the trial court erred by failing
to conduct a full hearing on his motion for a new trial and by issuing a decision that did not
explain the basis for denying his motion in detail. We disagree.
{¶20} Crim.R. 33(A)(6) provides that a new trial may be granted “[w]hen new evidence
material to the defense is discovered which the defendant could not with reasonable diligence
have discovered and produced at the trial.” By its terms, Crim.R. 33 does not require a hearing
on a motion for a new trial, and this Court has consistently held that the decision to conduct a
hearing is one that is entrusted to the discretion of the trial court. State v. Smith, 30 Ohio App. 3d
138, 139 (9th Dist.1986). When this Court reviews a decision for an abuse of discretion, we
consider whether the trial court’s decision is unreasonable, arbitrary, or unconscionable. State v.
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Penix, 9th Dist. Summit No. 23699, 2008-Ohio-1051, ¶ 34, citing Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219 (1983).
{¶21} In this case, the trial court conducted a hearing, but Mr. Jalowiec objects to the
scope of the hearing that the trial court conducted. Specifically, the trial court held its
proceedings in two stages. In the first, the court heard arguments from counsel about the
evidence that Mr. Jalowiec identified in his motion for a new trial, focusing specifically on
determining which items of evidence had been previously considered during the federal habeas
proceedings. In the second stage, the trial court heard evidence from the witnesses that had been
so identified. After the hearing, the trial court permitted the parties to file closing briefs on the
merits of the case. Given the procedural posture of this case and the fact that Mr. Jalowiec’s
motion for a new trial acknowledged that much of the newly discovered evidence upon which he
relied had been previously analyzed by the federal courts in connection with his habeas petition,
we cannot conclude that the trial court abused its discretion by structuring the hearings in this
way.
{¶22} Mr. Jalowiec has also argued that the trial court’s written decision that denied his
motion for a new trial is insufficient because it did not explain its ruling in adequate detail. It is
well-settled, however, that a trial court is under no duty to issue a written decision that contains
findings of fact and conclusions of law when it rules on a motion under Crim.R. 33. State ex rel.
Collins v. Pokorny, 86 Ohio St. 3d 70 (1999).
{¶23} The trial court did not abuse its discretion in its conduct of the hearing in this
matter, nor was it obligated to include findings of fact and conclusions of law in its order
denying Mr. Jalowiec’s motion for a new trial. Mr. Jalowiec’s first assignment of error is
overruled.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL
WHERE HE PRESENTED SUBSTANTIAL NEW EVIDENCE
DEMONSTRATING THAT POLICE AND PROSECUTORS VIOLATED HIS
RIGHTS UNDER BRADY V. MARYLAND.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL
WHERE HE PRESENTED MATERIAL NEW EVIDENCE OF HIS
INNOCENCE THAT WOULD CHANGE THE RESULT ON RETRIAL[.]
ASSIGNMENT OF ERROR IV
THE TRIAL COURT VIOLATED JALOWIEC’S EIGHTH AND
FOURT[E]ENTH AMENDMENT RIGHTS BECAUSE HE FACES A
SENTENCE OF DEATH FOR A CRIME OF WHICH HE IS ACTUALLY
INNOCENT.
{¶24} Mr. Jalowiec’s second, third, and fourth assignments of error argue that the trial
court erred by denying his motion for a new trial by concluding that many of his arguments were
barred by res judicata and by concluding that he had not established prejudice sufficient to
warrant granting a new trial. With respect to the latter argument, Mr. Jalowiec alleges that some
evidence is newly discovered because it was not disclosed by the State before trial. With respect
to all of the evidence, whether allegedly undisclosed or otherwise newly discovered, Mr.
Jalowiec argues that it demonstrates that he is actually innocent.
{¶25} A threshold issue concerns the trial court’s application of res judicata to evidence
previously considered by the federal courts in connection with Mr. Jalowiec’s petition for habeas
corpus. Mr. Jalowiec has argued that the trial court erred in doing so because “[t]he evidence
considered in federal court was strikingly different from what Jalowiec was [sic] presented in his
[motion for a new trial].” We disagree.
{¶26} Mr. Jalowiec’s motion for a new trial concedes that some evidence upon which he
relies was previously considered by the federal courts. Among this material, Mr. Jalowiec
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pointed to evidence that, according to him, implicates Danny Smith in the murder and evidence
that demonstrates that the State exerted improper influence over witnesses. With respect to
Danny Smith’s involvement, Mr. Jalowiec points to a witness statement by a woman named
Melissa Arroyo in 1995, in which she told police that Danny Smith admitted participating in a
murder; a letter written by a Robert Quillen, who claimed that Danny Smith admitted that he
killed “the snitch”; Danny Smith’s own opinion, expressed to police officers, that he did not
think Mr. Jalowiec was capable of murder; a letter from Raymond Smith to Danny Smith from
the year 2000 (after Raymond was convicted and Danny was acquitted) that urged Danny to tell
the truth about his involvement; and an allegation that an informant placed in Mr. Jalowiec’s
prison cell with a recorder failed to come away with any inculpatory statements.
{¶27} According to Mr. Jalowiec, other evidence implies that witnesses were influenced
to testify against Mr. Jalowiec because they received favorable treatment in their own criminal
cases. This included Lynne Altpater, who claimed that her husband received favorable treatment
in a drug case; Terry Hopkins, who received shock probation; Brian Howington, who was
granted immunity in connection with his testimony and who, according to Mr. Jalowiec, was
influenced by his aunt with respect to the content of his testimony; Joann Fike, whose testimony
Mr. Jalowiec surmises, despite the lack of supporting evidence, to have been the result of
improper influence by Detective Leiby; and Michael Smith, whose testimony Mr. Jalowiec
guesses may have been the result of favorable treatment.
{¶28} In the course of determining whether Mr. Jalowiec’s procedural default should be
excused and whether federal appellate proceedings should be stayed, the federal courts
considered all of this evidence and concluded that the Brady standard had not been met.
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Jalowiec, 2008 WL 312655, at *66-73; Jalowiec, 657 F.3d at 302-314. More specifically, the
Sixth Circuit Court of Appeals concluded:
In reaching this conclusion, we hold that Jalowiec has not shown such prejudice
as to render the unexhausted part of his Brady claim sufficiently meritorious to
warrant a stay pending completion of his state court exhaustion efforts. Further,
on de novo review of the merits of the claim, we hold that Jalowiec has not shown
that the undisclosed impeachment evidence is sufficiently “material” to warrant
habeas relief.
Id. at 313-314.
{¶29} Res judicata encompasses both claim preclusion and issue preclusion. State ex
rel. Nickoli v. Erie MetroParks, 124 Ohio St. 3d 449, 2010-Ohio-606, ¶ 21. With respect to issue
preclusion, application of res judicata “serves to prevent relitigation of any fact or point that was
determined by a court of competent jurisdiction in a previous action between the same parties[.]”
O’Nesti v. DeBartolo Realty Corp., 113 Ohio St. 3d 59, 2007-Ohio-1102, ¶ 7, citing Ft. Frye
Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St. 3d 392, 395 (1998). Two
issues are the same for purposes of issue preclusion when the same evidence will sustain both.
Ft. Frye at 396, citing Norwood v. McDonald, 142 Ohio St. 299 (1943), paragraph four of the
syllabus.
{¶30} Mr. Jalowiec moved for a new trial under Crim.R. 33(A)(6), which requires a
defendant to demonstrate that new evidence:
(1) discloses a strong probability that it will change the result if a new trial is
granted, (2) has been discovered since the trial, (3) is such as could not in the
exercise of due diligence have been discovered before the trial, (4) is material to
the issues, (5) is not merely cumulative to former evidence, and (6) does not
merely impeach or contradict the former evidence.
State v. Petro, 148 Ohio St. 505 (1947), syllabus. Crim.R. 33 does not contemplate a motion for
a new trial on grounds of evidence demonstrating “actual innocence” apart from the grounds set
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forth in Crim.R. 33(A)(6), so a motion based on the premise must demonstrate the strong
probability that newly discovered evidence would have led to a verdict of not guilty.
{¶31} A defendant who argues that exculpatory evidence was wrongfully withheld by
the State in violation of the Due Process Clause, on the other hand, must demonstrate the
suppression of favorable evidence that is material to guilt or punishment. Brady v. Maryland,
373 U.S. 83, 87 (1963). “There are three components of a true Brady violation: The evidence at
issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282
(1999). Undisclosed evidence is “material” when “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.”
U.S. v. Bagley, 473 U.S. 667, 682 (1976).
{¶32} When a due process violation is alleged in within the framework of Crim.R.
33(A)(6), the defendant maintains that evidence is “newly discovered” by virtue of it having
been suppressed before trial. Because the standard for materiality under Brady and its progeny is
lower than that required by Crim.R. 33(A)(6) and Petro, that analysis is dispositive. See State v.
Baker, 12th Dist. Clinton No. CA2000-08-018, 2001 WL 1218888, *6 (Oct. 15, 2001).
{¶33} Thus, the critical issue in both the federal habeas proceedings and the proceedings
related to Mr. Jalowiec’s motion for a new trial is whether the new evidence at issue would have
changed the result of Mr. Jalowiec’s trial. With respect to the evidence presented during the
habeas proceedings, the federal courts considered the issue of materiality under Brady and
concluded that the evidence would not have changed the outcome. As noted above, this
threshold of materiality is lower than that required by Crim.R. 33(A)(6). Consequently, it
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presents the same issue for purposes of issue preclusion, and res judicata prohibits Mr. Jalowiec
from arguing the motion based on the same evidence in this case.
{¶34} Nonetheless, Mr. Jalowiec also argues that his motion is based on evidence that
was discovered since the federal habeas proceedings and that based on that evidence, alone and
in conjunction with the previously discovered evidence, he is entitled to a new trial. We
disagree.
{¶35} Some of this allegedly newly discovered evidence is essentially a restatement of
the evidence that the federal courts considered and rejected. The affidavit of Jeff Buteau
reiterated the suppositions from his earlier affidavit that Joann Fike, received assistance from
Detective Leiby and coached Brian Howington regarding his statement to police. Danny Smith’s
affidavit repeated his speculation that Mr. Jalowiec would not have killed someone and the
allegation that his brother, Michael Smith, was given immunity and financial assistance from the
State in exchange for cooperating with the prosecution. The affidavits of Ditanvia Deiger and
Gerald Mielcarek, who had no connection to the events at issue, reiterated the same allegations.
Like Danny Smith, Richard Altpater speculated that Mr. Jalowiec could not kill someone. A
new affidavit from Melissa Arroyo, whose statement to police was considered during the habeas
proceedings, appears at first glance to offer new evidence, but upon closer examination of the
record, it fails to do so. When Ms. Arroyo testified at the hearing on Mr. Jalowiec’s motion for a
new trial, she admitted that she did not read her affidavit before signing it and recanted much of
it. The testimony that she provided contradicted her affidavit and was consistent with the
statement already considered by the federal courts.
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{¶36} All of this evidence is redundant and bears on the same issues resolved by the
federal courts. As such, res judicata applies in this proceeding, and the trial court did not err in
reaching this conclusion.
{¶37} With respect to the rest of the evidence that Mr. Jalowiec has advanced in support
of his motion for a new trial – and to all of the evidence collectively – we also conclude that the
trial court did not err in denying the motion. “The decision whether to grant a new trial on
grounds of newly discovered evidence falls within the sound discretion of the trial court.” State
v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128, ¶85, citing State v. Hawkins, 66 Ohio St. 3d 339,
350 (1993). When a Brady violation is framed in terms of Crim.R. 33(A)(6), an appellate court
still reviews the determination for an abuse of discretion. See generally LeMar at ¶ 85.
{¶38} Crim.R. 33(A)(6) permits a new trial to be ordered when “new evidence material
to the defense is discovered which the defendant could not with reasonable diligence have
discovered and produced at the trial.” In order to establish that new evidence warrants a new trial
under Crim.R. 33(A)(6), a movant must establish that the new evidence:
(1) discloses a strong probability that it will change the result if a new trial is
granted, (2) has been discovered since the trial, (3) is such as could not in the
exercise of due diligence have been discovered before the trial, (4) is material to
the issues, (5) is not merely cumulative to former evidence, and (6) does not
merely impeach or contradict the former evidence.
Petro, 148 Ohio St. 505 at syllabus. Evidence that impeaches or contradicts the evidence at trial
is not excluded from consideration per se, but the character of that evidence is relevant to
whether a different result is a strong probability. State v. Cureton, 9th Dist. Medina Nos.
03CA0009-M, 03CA0010-M, 2003-Ohio-6010, ¶ 19, quoting Dayton v. Martin, 43 Ohio App. 3d
87 (2d. Dist.1987), syllabus. The nature of the evidence is a significant consideration:
In singling out impeaching or contradicting evidence, Petro recognized that the
nature of such evidence requires that a trial court exercise circumspection in
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determining whether newly discovered evidence of that character would create a
strong probability of a different result, because such evidence quite often will not
be likely to change the outcome.
Martin at 90.
{¶39} In this case, the trial court did not abuse its discretion by denying Mr. Jalowiec’s
motion for a new trial because some of the remaining evidence is not “newly discovered” and the
rest does not demonstrate a strong probability of a different result at trial. This remaining
evidence can be grouped into four categories: evidence that attempts to impeach the credibility of
trial witnesses, expert testimony that attempts to cast doubt on the State’s case, general criticism
of the Elyria Police Department, and evidence that purports to bear on Mr. Jalowiec’s innocence.
{¶40} Exhibits 57-60 contain affidavits of Mr. Jalowiec’s immediate family members
that date to 1998. These affidavits claim that family members were with Mr. Jalowiec on the
night of Ron Lally’s murder. Exhibit 1 is the affidavit of Mr. Jalowiec himself, in which he
claims that he was a confidential informant for the Elyria Police Department at the time of the
murder. Mr. Jalowiec could have discovered this evidence with reasonable diligence and,
accordingly, it cannot support a motion for a new trial.
{¶41} The affidavits of Tammy Lasinis, fka Tammy Castro, Danny Smith, and Richard
Altpater attempt to impeach the credibility of trial witnesses. Ms. Lasinis was Danny Smith’s
girlfriend at the time of the murder. In her affidavit, she maintains that she was working the
night that Mr. Lally died; that Danny Smith borrowed Joann Fike’s car in exchange for drugs;
and that she has no idea who killed Ron Lally. To the extent that Ms. Lasinis claims that she was
working the night of the murder, her affidavit contradicts the trial testimony of Terry Hopkins
and Sharon Hopkins, both of whom claimed that she was among the group that went drinking
that evening. Mr. Jalowiec’s motion for a new trial articulates the significance of her affidavit as
17
follows: “If these witnesses were wrong about [her] being in Elyria that night, they can be no less
wrong about seeing Jalowiec in the LeBaron.” This is purely speculative. Ms. Lasinis, Danny
Smith, and Richard Altpater each maintain that on occasion, Danny exchanged drugs with Joann
Fike in exchange for the use of her car. Ms. Fike herself testified to this fact at trial, however,
and it falls far short of establishing that anyone other than Mr. Jalowiec borrowed the car on the
night of the murder.
{¶42} Like the statement of Robert Quillen that was considered by the federal courts
during the habeas proceedings, the affidavit of inmate Wilbur Jeffrey Lewis maintains that while
Mr. Lewis was incarcerated with Raymond and Danny Smith, they confessed to the murder of
Ron Lally, but never implicated Mr. Jalowiec, who maintained his innocence. That Mr. Jalowiec
maintains his innocence is unsurprising, and that Danny and Raymond implicated themselves is
equally so. The State’s theory of the case, after all, was that Danny planned the murder while
Raymond and Mr. Jalowiec carried it out. In other words, Mr. Quillen’s statements are not
material to Mr. Jalowiec’s defense.
{¶43} The final items at issue are three affidavits from people with no connection to the
case. The first is the affidavit of Hetzel See, a former Elyria police officer. Mr. See’s affidavit
makes sweeping allegations against the police and the then-prosecutor, but he acknowledged at
the hearing that he had no involvement in the investigation of Mr. Lally’s murder. At best, Mr.
See’s affidavit is speculative. It has virtually no evidentiary value in the context of Crim.R.
33(A)(6).
{¶44} The second and third exhibits contain reports authored by experts retained by Mr.
Jalowiec’s defense. Gary A. Rini, whose report is Exhibit 3 in support of Mr. Jalowiec’s motion
for a new trial, opined that it would be difficult for four adult males to ride in Joann Fike’s 1994
18
Chrysler LeBaron; that Mr. Lally died at the scene where the body was later found; and that there
was no forensic evidence of “crushing wounds” caused by a vehicle running over Mr. Lally’s
body. In an affidavit marked as Exhibit 53, Dr. Leroy Riddick opined that Mr. Lally was beaten
before being shot, that he could not have said, “You shot me in the head” after being shot, and
that the coroner miscalculated the time of Mr. Lally’s death. Dr. Riddick agreed that Mr. Lally
had been beaten and that his injuries were consistent with being struck by an automobile. These
exhibits are offered in an attempt to contradict the testimony of trial witnesses Michael Smith,
who testified about the events that he heard from the LeBaron on the night of the murder, and Dr.
Heather Neilson Raaf, who performed the autopsy of Mr. Lally’s body. The inconsistencies
raised by these experts, however, were apparent from the trial court proceedings and were the
subject of cross-examination by Mr. Jalowiec’s attorneys at trial.
{¶45} The new evidence to which Mr. Jalowiec points consists of speculation and
alleged contradictions that do not create a strong possibility of a different outcome at trial. This
is the case when the evidence is considered individually and collectively and, indeed, when it is
considered in the context even of the evidence to which res judicata applies in these proceedings.
Counsels’ zeal for their client is admirable. But the evidence in the record does not “destroy[]”
the testimony of the State’s key witnesses or “make[] clear that on retrial, no reasonable juror
would conclude that Jalowiec had any role in Lally’s death.” To the contrary, the evidence is
consistent with the State’s theory of the case: Danny Smith conspired with Raymond Smith to
murder Mr. Lally, but left the murder itself to Raymond and Mr. Jalowiec.
{¶46} The trial court did not abuse its discretion in denying Mr. Jalowiec’s motion for a
new trial. His second, third, and fourth assignments of error are overruled.
ASSIGNMENT OF ERROR V
19
THE TRIAL COURT ERRED IN DENYING JALOWIEC A NEW TRIAL
WHERE HE PRESENTED SUBSTANTIAL NEW EVIDENCE THAT THE
STATE VIOLATED HIS CONSTITUTIONAL RIGHTS UNDER ARIZONA V.
YOUNGBLOOD[.]
{¶47} Mr. Jalowiec’s fifth assignment of error is that the State violated his right to due
process by destroying exculpatory evidence. Specifically, Mr. Jalowiec maintains that there is
“substantial new evidence” that Detective Leiby destroyed tape recordings of interviews in bad
faith. We disagree.
{¶48} Crim.R. 33(A)(2) provides that a new trial may be granted because of misconduct
by the prosecutor or a witness for the state that materially affects a defendant’s substantial rights.
This inquiry consists of two steps. State v. Heru, 9th Dist. Summit No. 24756, 2010-Ohio-635,
¶2, quoting State v. Herb, 167 Ohio App. 3d 333, 2006-Ohio-2412, ¶ 6 (9th Dist.). The first
determination is whether misconduct actually occurred, and the second is whether that
misconduct materially prejudiced the defendant’s substantial rights. Heru at ¶2, quoting Herb at
¶ 6. With respect to the existence of misconduct, the United States Supreme Court has
recognized that whether or not a defendant makes a specific request for disclosure, the
suppression of exculpatory evidence that is material to guilt or punishment violates due process
without respect to whether the state acted in bad faith. Brady, 373 U.S. at 87. When the state
fails to preserve evidence that is merely “potentially useful,” a defendant must demonstrate that
the state acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
{¶49} As a threshold matter, however, a defendant cannot establish a due process
violation by speculating about the existence, content, and disposition of evidence. See United
States v. Jobson, 102 F.3d 214, 218-219 (6th Cir.1996); Gipson v. Sheldon, N.D.Ohio No. 3:13-
CV-1997, 2015 WL 1980244, *9; United States v. Lusenhop, S.D.Ohio No. 1:14-CR-122, 2015
WL 1487126, *5 (Apr. 1, 2015); Phelps v. Richard, S.D.Ohio No. 1:12-CV-896, 2014 WL
20
1872115, *10-11 (May 8, 2014). Compare United States v. Williams-Davis, 90 F.3d 490, 514
(D.C.Cir.1996) (refusing to infer the existence of Brady material based on speculation). This is
precisely what Mr. Jalowiec has attempted to do. Mr. Jalowiec speculates that because some
witness interviews were tape recorded, all were tape recorded; infers that if all were recorded,
some must have been destroyed; and surmises that if some were destroyed, they must have been
potentially useful. This speculation does not establish misconduct on the part of the State or its
witnesses, and it is therefore not sufficient to entitle Mr. Jalowiec to a new trial under Crim.R.
33(A)(2).
{¶50} Mr. Jalowiec’s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED IN DENYING A NEW TRIAL WHERE
[JALOWIEC] HAS PRESENTED THE COURT WITH SUBSTANTIAL NEW
EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER
STRICKLAND AND MARTINEZ[.]
{¶51} Mr. Jalowiec’s final assignment of error raises two ineffective assistance
arguments. The first is that if this Court determines his claims have no merit because trial
counsel could have discovered the evidence at issue, trial counsel was ineffective. This Court
has determined that his motion for a new trial was properly denied for reasons other than the
performance of trial counsel, so this aspect of Mr. Jalowiec’s sixth assignment of error is moot.
Mr. Jalowiec’s second argument is that he should be granted a new trial because he received
ineffective assistance during the habeas proceedings. This argument fails for two fundamental
reasons. The Sixth Amendment right to counsel extends only as far as direct appeals as of right
in state courts. See generally Halbert v. Michigan, 545 U.S. 605 (2005). The standards for
effective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984) are
grounded in the guarantees of the Sixth Amendment. Id. at 684-686. These standards do not
21
apply to Mr. Jalowiec’s federal habeas proceedings. Even if they did, however, a direct appeal
from a state court’s denial of a motion for a new trial would not be the proper judicial forum to
consider these arguments.
{¶52} Mr. Jalowiec’s sixth assignment of error is overruled.
III.
{¶53} Mr. Jalowiec’s assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
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 Lorain, 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.
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.
22
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
MICHELE L. BERRY and TARA THOMPSON, Attorneys at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.