[Cite as State v. Keenan, 2013-Ohio-4029.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99025
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
THOMAS M. KEENAN
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-232189
BEFORE: Jones, P.J., S. Gallagher, J., and McCormack, J.
RELEASED AND JOURNALIZED: September 19, 2013
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Richard A. Bell
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
ATTORNEY FOR APPELLEE
Timothy F. Sweeney
Law Office-Timothy Farrell Sweeney
The 820 Building, Suite 430
820 W. Superior Avenue
Cleveland, OH 44113
LARRY A. JONES, SR., P.J.:
{¶1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s dismissal
with prejudice of the indictment against defendant-appellee, Thomas Michael Keenan.
We affirm.
I. Brief Overview of Pertinent Procedural History
{¶2} This case dates back to the September 1988 discovery of Anthony Klann’s
body in Doan Creek. 1 Keenan was indicted, along with alleged co-conspirators Joe
D’Ambrosio and Edward Espinoza, in connection with Klann’s death. Keenan was
charged with two counts of aggravated murder, one count of kidnapping, and one count of
aggravated burglary. In 1989, a jury returned a guilty verdict on all counts, recommended
Keenan be sentenced to death, and the trial court sentenced him to death. In a subsequent
appeal to the Ohio Supreme Court, the court determined that prosecutorial misconduct
occurred during closing argument, and it vacated the convictions and ordered a new trial.
State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993).
{¶3} In 1994, a second trial commenced on the same charges; Keenan was again
convicted and sentenced to death. This court and the Ohio Supreme Court affirmed the
convictions and sentence. State v. Keenan, 8th Dist. Cuyahoga No. 67452, 1996 Ohio
App. LEXIS 3569 (Aug. 22, 1996), aff’d, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998).
1
A complete factual history, as adduced by the evidence presented at Keenan’s second trial,
can be found in Keenan v. Bagley, N.D.Ohio No. 1:01 CV 2139, 2012 U.S. Dist. LEXIS 57044 (Apr.
24, 2012), and State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998).
{¶4} After exhausting his state remedies, 2 Keenan filed a petition for a writ of
habeas corpus in the United States District Court, Northern District of Ohio. In the
district court, Keenan filed numerous motions to expand the record, primarily to include
documents from D’Ambrosio’s federal habeas and state court retrial proceedings. The
district court allowed the inclusion of these documents in Keenan’s habeas proceeding.
Keenan v. Bagley, at *32-22.
{¶5} The district court subsequently found that the state suppressed evidence in
violation of its duties under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963), by withholding seven specific categories of evidence. Keenan v. Bagley at
*134. The district court described the Brady violations in Keenan’s case as “serious and
disturbing violations of the State’s constitutional obligation to produce to defendants any
and all exculpatory information in their possession.” Id. The district court referenced the
state’s “stonewalling” for nearly 20 years, id., and noted that Keenan only learned of the
evidence as a result of discovery ordered by the federal court in D’Ambrosio’s habeas
case. Id. at *68 and 83.
{¶6} The district court concluded that there was a reasonable probability that the
suppressed evidence would have produced a different verdict sufficient to undermine
confidence in the outcome of the trial. Id. at *128-129. The court issued a conditional
writ of habeas corpus, dated April 24, 2012, ordering the state to either set aside Keenan’s
2
Additional procedural history is outlined in Keenan v. Bagley, N.D. Ohio No. 1:01 CV 2139,
2012 U.S. Dist. LEXIS 57044 (Apr. 24, 2012).
conviction for aggravated murder and his death sentence, or conduct another trial within
180 days from the date of the order.
{¶7} The state elected to retry Keenan for Klann’s murder and filed a motion for a
new trial on May 31, 2012. The trial court granted the motion on July 9, 2012, and
vacated Keenan’s convictions.
{¶8} On July 11, 2012, the state filed notices of intent to (1) introduce Keenan’s
prior testimony under Evid.R. 801(D)(2)(a), (2) introduce prior testimony of deceased
witness Edward Espinoza pursuant to Evid.R. 804(D)(1), and (3) introduce prior testimony
and statements of D’Ambrosio pursuant to Evid.R. 801(D)(2)(e). Keenan filed motions in
opposition to the state’s notices of intent. The trial court conducted a hearing on August
23, 2012, and subsequently ordered that the state could not use any of the prior testimonies
or statements. On August 29, 2012, the state elected to remove the death penalty
specifications from the indictment.
{¶9} Meanwhile, on August 8, 2012, Keenan filed a motion to dismiss the
indictment. After the state opposed, the trial court conducted a hearing on August 27,
2012, but held its ruling on the motion in abeyance.
{¶10} A hearing was set to commence on September 5, 2012, relating to Keenan’s
motion to dismiss, but the court once again held its ruling in abeyance because the parties
were involved in plea discussions. After a partial plea colloquy, however, Keenan
decided not to plead guilty.
{¶11} On September 6, 2012, the trial court issued the following order, granting
Keenan’s motion to dismiss with prejudice:
Pursuant to Criminal Rule 48(B), a hearing on defendant Thomas Michael
Keenan’s motion to dismiss the indictment with prejudice was held in open
court on 9/5/12. The court issued [its] findings of fact & conclusions of law
on the record. The court finds in the interest of justice and fairness, the
harm done to the defendant Keenan has been so egregious that this is the
extraordinary case where the court has no other option but to grant the
motion to dismiss. Defendant’s motion to dismiss the indictment against
him with prejudice is granted. See Crim.R. 48(B); Criminal Rule 16(L)(1);
State v. Larkins, 8th Dist. No. 85877, 2006-Ohio-90.
Defendant Keenan’s request for appellate bond is granted over state’s
objection. Defendant Keenan’s bond is set [at] $5,000 personal bond with
court supervised release supervision. Defendant is to report to CSR
bi-weekly while this case is pending in the Court of Appeals. Defendant
ordered released.
{¶12} The state appealed from this ruling and submits one assignment of error:
[I.] The trial court erred when it granted the Defendant-Appellee’s Motion
to Dismiss the Indictment with Prejudice.
II. Law and Analysis
New Trial
{¶13} The state claims that the district court already sanctioned the state when it
issued the April 24, 2012 conditional writ of habeas corpus ordering the state to either set
aside Keenan’s conviction for aggravated murder and his death sentence, or conduct
another trial within 180 days from the date of the order. The state argues that the trial
court did not follow the district court’s mandate when it sanctioned the state a second time
for the same discovery violation by dismissing Keenan’s indictment with prejudice as this
action was neither setting aside the conviction and sentence nor conducting a new trial.
We find no merit to this argument.
{¶14} The district court remanded the case to the trial court for further action, and
the state elected to retry Keenan. The decision to go forward with a new trial did not
divest the trial court of its continuing powers of jurisdiction over any further actions of the
parties. See Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, ¶ 58 (Kilbane, J.,
concurring). The trial court was not sanctioning the state a second time for the same
actions or refusing to follow the district court’s mandate.
{¶15} As this court noted in Larkins at ¶ 32, “Civ.R. 33(D) and R.C. 2945.82
govern the manner in which a new trial is to be conducted.” Civ.R. 33(D) provides that
“[w]hen a new trial is awarded on appeal, the accused shall stand trial upon the charge or
charges of which he was convicted.” And R.C. 2945.82 provides that “when a new trial
is granted by the trial court * * * the accused shall stand for trial upon the indictment or
information as though there had been no previous trial thereof.”
{¶16} Consequently, once the district court remanded the case and the state elected
to proceed with a new trial, “matters stood in the same position they did before any trial
had been conducted. It follows that the court possessed all authority to reopen discovery
or entertain any pretrial motions available at law.” Larkins at ¶ 33, 55 (Kilbane, J.,
concurring). Therefore, Keenan was within his rights to file a motion to dismiss and the
trial court could consider said motion.
State v. Darmond
{¶17} We review the trial court’s decision to grant Keenan’s motion to dismiss with
prejudice for an abuse of discretion. State v. Darmond, 135 Ohio St.3d 343,
2013-Ohio-966, 986 N.E.2d 971, ¶ 33, citing State v. Parson, 6 Ohio St.3d 442, 445, 453
N.E.2d 689 (1983).
{¶18} The state submits the trial court failed to consider a less severe sanction than
dismissal with prejudice.
{¶19} In State v. Darmond, 8th Dist. Cuyahoga Nos. 96373 and 96374,
2011-Ohio-6160, this court held that the “least severe sanction” language from Lakewood
v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), does not apply to cases where
sanctions are imposed on the prosecution. In Darmond, 135 Ohio St.3d 343,
2013-Ohio-966, 986 N.E.2d 971, the Ohio Supreme Court disagreed and concluded that its
previous holding in Lakewood that
‘[a] trial court must inquire into the circumstances surrounding a discovery
rule violation and, when deciding whether to impose a sanction, must impose
the least severe sanction that is consistent with the purpose of the rules of
discovery’ applies equally to discovery violations committed by the state and
to discovery violations committed by a criminal defendant.
Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, at the syllabus, quoting
Lakewood, paragraph two of the syllabus.
{¶20} In Lakewood, the court had viewed the trial court’s sanction of excluding the
testimony of the defense witnesses as too severe because it effectively deprived the
defendant of the ability to present a defense. Id. at 4-5. The court concluded that the
trial court should not have imposed the sanction without first considering and rejecting the
feasibility of less severe sanctions. Id. at 5.
{¶21} In expanding its Lakewood holding, the Darmond court noted that the stated
purpose of the 2010 amendment to Crim.R. 16(A) was to provide for a just determination
of criminal proceedings and to secure the fair, impartial, and speedy administration of
justice; the amended rule “expands the reciprocal duties in the exchange of materials,” and
“balances a defendant’s constitutional rights with the community’s compelling interest in a
thorough, effective, and just prosecution of criminal acts.” Darmond at ¶ 29; Staff Notes
to the 2010 amendment to Division (A) of Crim.R. 16. The Darmond court further
recognized that the current Crim.R. 16(A) applies to “all parties in a criminal case,” and
“all duties and remedies” of the rule are reciprocal and apply “to the defense and the
prosecution equally.” (Emphasis sic.) Id.; Crim.R. 16(A).
{¶22} In comparing Lakewood to Darmond, the Ohio Supreme Court recognized
the sanction of dismissal with prejudice in Darmond was also “extremely severe” because
it foreclosed the possibility of further prosecution. Darmond at ¶ 30. The court noted
that
Crim.R. 16’s emphasis on equal and reciprocal treatment of parties clarifies
that the strong preference expressed in Lakewood for imposing the least
severe sanction that will further the purposes of the discovery rules is a
critical consideration that must be taken into account in any criminal case
before a severe sanction is imposed for a discovery violation.
Darmond at 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 31. A trial court
should not impose the sanction of dismissal with prejudice unless the trial court
specifically weighs and rejects the feasibility of less severe sanctions. Id. at ¶ 30.
{¶23} That being said, the Darmond court noted that, despite this mandate, the trial
court retains the discretion in determining a sanction for a discovery violation.3 Id. at ¶
33, citing Parson, 6 Ohio St.3d at 445, 453 N.E.2d 689. The 2010 amendments to
Crim.R. 16 did not change this long-standing principle. Darmond at id. The court
stated:
Crim.R. 16(L)(1) is identical to former Crim.R. 16(E)(3) in detailing a trial
court’s authority to issue orders in the wake of a party’s failure to comply
with discovery obligations, and in particular provides that the trial court may
issue any order “it deems just under the circumstances.”
Id., citing Parson at id.; see also Staff Notes to 2010 amendment to Division (L) of
Crim.R. 16 (“The trial court continues to retain discretion to ensure that the provisions of
the rule are followed. This discretion protects the integrity of the criminal justice process
while protecting the rights of the defendants, witnesses, victims, and society at large.”)
Three-Prong Test
{¶24} In Parson, the Ohio Supreme Court established a three-prong test governing
a trial court’s exercise of discretion in imposing a sanction for the prosecution’s discovery
violation: (1) whether the failure to disclose was a willful violation of Crim.R. 16; (2)
whether foreknowledge of the undisclosed material would have benefitted the accused in
the preparation of a defense; and (3) whether the accused was prejudiced. Id. at syllabus;
see also State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864.
{¶25} In Darmond, the Ohio Supreme Court noted that several of the factors
We, therefore, reject the state’s proposition that a trial court’s legal conclusions in a pretrial
3
motion to dismiss are subject to a de novo review on appeal.
discussed in Lakewood are similar to the Parson factors. Darmond, 135 Ohio St.3d 343,
2013-Ohio-966, 986 N.E.2d 971, ¶ 36. These factors include the degree of prejudice to
the opposing party and whether the violation was willful or in bad faith. Id.; see
Lakewood, 32 Ohio St.3d at 5, 511 N.E.2d 1138. The court emphasized that its holding
did not mean that
a discovery violation committed by the state can never result in the dismissal
with prejudice of a criminal case. That option remains available when a trial
court, after considering the factors set forth in Parson and in Lakewood,
determines that a lesser sanction would not be consistent with the purposes
of the criminal discovery rules.
Darmond at ¶ 41.
{¶26} In the present case, the trial court conducted the three-prong analysis set forth
in State v. Wiles, 59 Ohio St.3d 71, 78-79, 571 N.E.2d 97 (1991), which is the same as the
Parson analysis.
{¶27} In rendering its decision, the trial court stated its findings of fact and
conclusions of law on the record. In pertinent part, the trial court found:
The first prong is the violation and was the violation willful; the second
prong is foreknowledge, would foreknowledge have benefitted Mr. Keenan
or the Defendant; and the third prong is has the Defendant suffered prejudice
as a result of the State’s failure to disclose the information.
Applying that test to this case, I’m going to make the following specific
findings of fact as they pertain to this case:
As to the first prong, it is without question, based on the egregious history of
the prosecutorial misconduct and the Brady violations outlined in detail by
both the Ohio Supreme Court and the Northern District of Ohio in this case
that the State willfully withheld exculpatory evidence from Keenan and his
attorneys.
Looking at the second prong, the knowledge of this material prior to trial
would have clearly benefitted Mr. Keenan’s case.
It would have allowed for more effective cross-examination of witnesses,
especially Edward Espinoza, the co-defendant, and the alleged sole
eyewitness to this crime.
The evidence that Paul Lewis had been indicted for the rape of [a male
victim]; that Anthony Klann, the decedent, had some knowledge of this rape,
and that Paul Lewis had never been prosecuted for it[,] would have also been
beneficial for Keenan. This evidence could have strengthened Keenan’s
case by establishing a motive of someone other than Keenan for the murder
of Anthony Klann.
For the same reasons, the evidence that Paul Lewis was the anonymous
caller who called police and identified Anthony Klann as the murder victim,
and had information regarding the murder that was not publicly known could
also have benefitted Mr. Keenan’s case.
The evidence that the initial responding detectives believed the murder to
have occurred somewhere other than Doan’s Creek would have allowed a
more effective questioning of the police investigation, impeachment of
Espinoza, and could have cast doubt on the State’s theory of the case.
The cassette tape that was made by Angelo Crimi that may have implicated
others in the murder would have been obviously beneficial to the Keenan
case. The disclosure of the existence of this tape and its subsequent
disappearance could have held significant impeachment value towards the
impeachment of the police and Edward Espinoza.
James “Lightfoot” Russell’s relocation request could have been used by
Keenan’s defense counsel to question the State of Ohio regarding his
unavailable status in the second trial.
The statements made by the neighbors, Theresa Farinacci, and the older
couple who was not identified, would have strengthened the initial
detective’s conclusion that the murder occurred somewhere else or
somewhere other than Doan’s Creek.
It could have also been used to question the thoroughness of the police
investigation, and Paul Lewis’ involvement in the crime since the statements
were overheard by neighbors near Mr. Lewis’ apartment.
It is clear to this court that the exculpatory evidence would have
strengthened and been beneficial to Keenan’s case as outlined in prong two
[of Wiles, 59 Ohio St.3d at 78-79, 571 N.E.2d 97].4
Looking at the third prong and final prong, has Keenan suffered severe
prejudice as a result of the State’s failure to disclose the exculpatory
evidence.
Keenan’s case is now 24 years removed from the crime. The witnesses
would have to testify to detailed issues that took place that long ago,
including the date and time of this alleged murder which have never been
decisively established.
The only alleged eyewitness, Edward Espinoza, is deceased. And his
testimony is not admissible because he was never able to be cross-examined
with the newly discovered exculpatory material. Additionally, Keenan was
never able to use the exculpatory evidence to impeach Espinoza.
Other witnesses of importance are also deceased, including Detective
Timothy Horval, Lee Oliver, Angelo Crimi, and James Russell. None of
whom have been able to be cross-examined or confronted with the
exculpatory evidence.
The Keenan case before the court today clearly satisfies the three-prong test
as outlined by the Ohio Supreme Court case of State v. Wiles. As in
Larkins, this case is the unique and extraordinary case, that the harm done to
Mr. Keenan cannot be resolved by a new trial, and this Court is going to
dismiss this case with prejudice.
4
The district court also found this material had significant exculpatory and impeachment
value:
The State had a clear obligation to reveal the information it possessed concerning
Lewis’ rape charge, request for assistance from the police and role in the early
investigation; the initial police theories of where the murder occurred; the statement of
a former roommate of the victim regarding who was involved in the murder; and the
statements of wholly disinterested witnesses to activities near Lewis’ apartment on
Friday night/Saturday morning.
Keenan, N.D. Ohio No. 1:01 CV 2139, 2012 U.S. Dist. LEXIS 57044, *134.
***
Therefore, while the Court is aware that it has an obligation to impose the
least severe sanction that is consistent with the purposes of the rules of
discovery, I find that Keenan’s case is the unique and extraordinary case
where the prejudice created cannot be cured by a new trial.
{¶28} Again, our review is limited to whether the trial court abused its discretion in
granting Keenan’s motion to dismiss. A trial court abuses its discretion when it makes a
decision that is unreasonable, unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980). An abuse of discretion includes a situation in which a
trial court did not engage in a “‘sound reasoning process.’” State v. Morris, 132 Ohio
St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597
(1990). An abuse-of-discretion review is deferential, and an appellate court may not
simply substitute its judgment for that of the trial court. Id.
{¶29} In granting the motion to dismiss, the trial court relied, in part, on Larkins,
8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, a case in which a defendant’s indictment
was dismissed as a sanction against the state for its violation of Crim.R. 16. The trial
court in Larkins found that the state had willfully withheld exculpatory material from the
defendant, including information that called into question the state’s identification of the
defendant as the perpetrator. Id. at ¶ 43-48. This court affirmed and concluded that the
prejudice to Larkins could not be cured by a new trial because nearly 20 years had passed
since the original trial, eight witnesses for the defense were deceased, numerous witnesses
had unknown addresses, and to present the witnesses’ prior testimony “would be useless
because none of the witnesses had been previously questioned about the exculpatory
evidence withheld in the case.” Id. at ¶ 51.
{¶30} In this case, the state contends that, unlike Larkins, Keenan is unable to
prove the third Wiles or Parson prong, a prima facie showing of prejudice. The state
argues that Keenan is unable to show that the discovery violations prejudiced him due to
(1) the unavailability of critical witnesses and the passage of time, (2) the degradation of
memory, or (3) an inability to meaningfully use the newly discovered Brady material.
The state also asserts that “Keenan should not be permitted to argue for the exclusion of
Espinoza’s testimony, and then once its excluded, also be able to argue that he is
prejudiced because he cannot confront the testimony with the newly discovered Brady
material.” According to the state, “by moving to exclude Espinoza’s testimony, the
defendant has invited the ‘error’ of not being able to effectively use the newly discovered
Brady material.”
{¶31} We reject the state’s position. Espinoza was the state’s only eyewitness to
Klann’s murder. Based solely on the state’s knowingly withholding the exculpatory
material, Keenan is forever barred from effectively using the material to cross-examine or
impeach Espinoza because Espinoza is dead. Keenan is prejudiced because he cannot
confront a living Espinoza with the exculpatory material because he did not have it when
Espinoza testified at his first and second trials. 5 As recognized by the district court,
5
See Keenan, N.D.Ohio No. 1:01 CV 2139, 2012 U.S. Dist. LEXIS 57044, *123-129, for a
“Keenan could have used the evidence to impeach Espinoza, and, because Espinoza was
the State’s sole witness to the crime and the only evidence linking Keenan to the murder,
thereby undercut the State’s entire case.” Keenan, N.D.Ohio No. 1:01 CV 2139, 2012
U.S. Dist. LEXIS 57044, *123.
New Argument on Appeal
{¶32} For the first time on appeal, the state proposes that while any form of
dismissal was improper, the trial court should have imposed a less severe sanction of
dismissal of the murder count (due to the unavailability of Espinoza), but preserved the
burglary and kidnapping counts, for which both parties had sufficient witnesses available
to independently proceed with trial on those charges.
{¶33} During oral argument, the state vehemently reiterated its position that the
trial court should have allowed the trial to proceed on the kidnapping and burglary counts
as a less severe sanction, rather than dismissing the entire indictment with prejudice. The
state contends that it was prepared to proceed to trial on all counts, or only on the
kidnapping and burglary counts, and could do so without a prejudicial impact on Keenan.
{¶34} We reject the state’s contention that the trial court abused its discretion when
it “failed” to allow the state to proceed on the charges of kidnapping and burglary. Not
only does the state raise this argument for the first time on appeal, but, in fact, the state
urged the trial court to allow it to proceed on all charges even after the court disallowed
use of Espinoza’s prior testimony. See tr. 417-418. At no time during the state’s
discussion of the significant exculpatory and impeachment value of the withheld evidence.
argument to the trial court, nor in its post-argument briefing, did the state propose the less
severe sanction of dismissing only some of the charges. The state repeatedly told the
court that it was prepared to go forward on the aggravated murder charges, even without
the use of the prior testimony the court excluded from Keenan, D’Ambrosio, and
Espinoza.
{¶35} We are well aware that the trial court had the discretion to fashion its own
sanction and could have granted the motion to dismiss as to one, some, or all of the
charges. But we find the state’s newly-fashioned argument on appeal that the trial court
failed to consider the less severe sanction of dismissal of only the aggravated murder
charges somewhat disingenuous given that it is the first time the state has raised the issue.
In addition, the trial court expressly stated it was aware of its obligation to impose the least
severe sanction that is consistent with the purposes of the rules of discovery before it
dismissed the indictment.
{¶36} The aggravated murder, kidnapping, and aggravated burglary crimes with
which Keenan were charged were part of one continuous course of conduct over several
hours and, despite the state’s arguments to the contrary, dependent upon Espinoza’s
allegations. The state fails to accept responsibility for its intentional inactions, and thus
fails to recognize these inactions over the span of more than two decades resulted directly
in the trial court’s dismissal of the entire indictment. Were it not for D’Ambrosio’s
habeas hearing and the discovery of this “new” evidence, Keenan would most likely still
be without it. 6 We agree that the prejudice caused by the state’s refusal to divulge
exculpatory evidence has now made it impossible to restore Keenan to the position that he
should have been in at the time of the first and second trials had he been made aware of
the exculpatory evidence.
{¶37} Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, was the extraordinary
case in which prejudice caused to the defendant as a result of the state’s failure to disclose
exculpatory evidence could not be cured except by a dismissal with prejudice. This is
also such an extraordinary case. The trial court was in the best position to determine
which sanction under Crim.R. 16(L) was most appropriate. The trial court considered,
but rejected, a less severe sanction, as mandated by Darmond, 135 Ohio St.3d 343,
2013-Ohio-966, 986 N.E.2d 971.
{¶38} Based on the record in this case, we cannot state that the trial court’s decision
to grant Keenan’s motion to dismiss the indictment with prejudice was so arbitrary,
unreasonable, or unconscionable as to be an abuse of the trial court’s discretion.
{¶39} There will be no sense of legal or human relief or resolution resulting from
our collective work on this now quarter century-long pursuit of truth.
6
See Keenan, N.D.Ohio No. 1:01 CV 2139, 2012 U.S. Dist. LEXIS 57044, *68 and 83 (“An
examination of the development of Keenan’s Brady claims during this long and complex case, and the
symbiotic relationship between his case and that of his co-defendant, demonstrates that despite
Keenan’s and D’Ambrosio’s persistent discovery efforts, the State continued to withhold much of the
evidence now at issue until its hand was forced in the [2002] D’Ambrosio case. * * * Throughout
the twenty-three years of his case, Keenan persistently has sought discovery from the State, and was
thwarted at every stage. He only obtained most of the information as a result of his co-defendant’s
highly contentious and hard-won habeas discovery.”).
{¶40} In 1988, a cowardly and unspeakable vicious homicide was carried out upon
the victim, Anthony Klann. All surviving family, friends, and this community are
frustrated by the failure to effectuate justice resulting from his violent death.
{¶41} The 2012 trial court is not at fault for dismissing the retrial of this murder.
The degradation of this case began 25 years ago, when the desire to obtain a conviction
overwhelmed the state’s responsibility to seek the fullest truth of that day in September
1988.
{¶42} A defendant’s right to a fair trial dates back to the adoption of our nation’s
most revered founding documents. In this case, the federal court determined that a fair
trial had not taken place; and in 2012, the trial court decided it could not in the future.
While the victim deserved justice, the bad-faith conduct from 1988 forward made that
impossible.
{¶43} The state’s sole assignment of error is overruled.
{¶44} Judgment affirmed.
It is ordered that appellee recover from appellant his 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
TIM McCORMACK, J., CONCURS
SEAN C. GALLAGHER, J., DISSENTS WITH
SEPARATE OPINION
SEAN C. GALLAGHER, J., DISSENTING:
{¶45} I respectfully dissent from the opinion of the majority. In my opinion, the
trial court abused its discretion by imposing the most severe discovery sanction, dismissal
of the indictment, after it already imposed a less severe one, precluding evidence, all for
the same Brady violations that formed the basis of awarding a new trial as the original
sanction. I further believe that the majority combines two different standards used to
review a due process claim based on prior Brady violations, with ongoing discovery
violations, to create one unworkable standard that offers no prospective guidance to the
trial courts. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Understandably, this conflation of issues began with this district’s Larkins decision;
however, in light of the Ohio Supreme Court’s decision in Darmond, Larkins must be
limited by the facts of that case. I would, accordingly, reverse the decision of the trial
court and remand for further proceedings. State v. Larkins, 8th Dist. Cuyahoga No. 85877,
2006-Ohio-90; State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971.
{¶46} In its assignment of error, the state argues the trial court erred by relying on
Larkins and granting the motion to dismiss with prejudice as a discovery sanction, when
either no sanction or a lesser sanction was appropriate. This case originated from the
federal district court’s judgment determining that the state committed a Brady violation by
withholding evidence, and sanctioning the state for the violation by ordering either a new
trial or dismissal of the indictment, at the state’s election. The state elected a new trial
upon remand to the trial court. Keenan, after pursuing cursory discovery, filed a motion
to dismiss the indictment based on the Brady violation, claiming the new trial would not
remedy the violation. Both the trial court and the majority analyzed Keenan’s claim as a
discovery violation sanctionable pursuant to Crim.R. 16, rather than as a due process
violation based on the original Brady violation, when the discovery for the new trial
revealed that a retrial would violate the defendant’s constitutional due process rights in
light of the degraded state of discovery caused by the passage of time.
{¶47} If the dismissal of the indictment was predicated upon a Crim.R. 16
discovery violation and analysis, once the trial court determined that a discovery sanction
was warranted based on its tripartite Parson analysis, the court should have determined
whether a less severe sanction would suffice to remedy the prejudice caused by the
discovery violation. State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983).
The trial court conducted the three-prong analysis as set forth in State v. Wiles, 59 Ohio
St.3d 71, 78-79, 571 N.E.2d 97 (1991) (reiterating the tripartite Parson analysis), to
determine that a further discovery sanction was warranted, given the ongoing prejudice to
Keenan caused by the Brady violations. The state’s appeal focuses on the trial court’s
conclusion that Keenan was prejudiced by the discovery violations in its analysis of the
third Wiles prong, and whether a less severe sanction would have been consistent with the
purposes of the criminal discovery rules.
{¶48} In Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, upon which the
majority heavily relies, this court affirmed the trial court’s dismissal of the defendant’s
indictment as a sanction for the state’s violation of Crim.R. 16. In that case, the state had
willfully withheld exculpatory material from the defendant, including information that
called into question the state’s identification of the defendant as the perpetrator, resulting
in prejudice to the defendant. Id. at ¶ 43-48. The prejudice to Larkins could not be
cured by a new trial because eight witnesses for the defense were deceased and 16 other
witnesses had unknown addresses, and to present those witnesses’ prior testimony would
have been useless because none of the witnesses had been previously questioned about the
exculpatory evidence. Id. at ¶ 51.
{¶49} The Larkins court essentially shoe-horned a due process argument — that the
new trial awarded as a sanction for the Brady violation would violate a defendant’s right to
due process in light of the passage of time and degradation of witnesses’ memories — into
the framework for analyzing sanctions used to remedy ongoing pretrial discovery
violations pursuant to Crim.R. 16. It is for this reason that Larkins must be limited to its
facts. In both Lakewood v. Papadelis and Darmond, the Ohio Supreme Court interposed
an additional factor to resolving discovery disputes that this court’s Larkins analysis
omitted. Lakewood v. Papadelis, 32 Ohio St.3d 1, 4-5, 511 N.E.2d 1138 (1987);
Darmond, 135 Ohio St.3d 343, 352, 2013-Ohio-966, 986 N.E.2d 971.
{¶50} Lakewood and Darmond instruct the court to analyze the effectiveness of a
less severe sanction, such as preclusion of evidence, prior to imposing the most severe
sanction available pursuant to Crim.R. 16, which is dismissal of the indictment.
Lakewood; Darmond (acknowledging that although it would have been “helpful” for the
state to provide alternative sanctions in its opposition to a motion to dismiss the
indictment, it was an unnecessary prerequisite). The obligation rests with the trial court
to ensure that the least severe sanctions available are considered. Id. The majority
creates a standard shifting the burden to the state to provide the court with less severe
sanction options. Under that standard, the state’s failure to do so would forfeit its right to
argue that the court failed to consider the effectiveness of the less severe sanction.
Lakewood and its progeny set no such standard.
{¶51} While the trial court addressed the Parson factors in this case, it failed to
specifically consider the effectiveness of a less severe discovery sanction, concluding its
sole obligation was to merely consider the sanction of a new trial, derived from the
original Brady violation, as opposed to considering the effectiveness of a less severe
sanction, such as preclusion of evidence. It is important to note the completely
unworkable standard the majority perpetuates. The vehicle Keenan used to seek further
sanctions for the Brady violations was a motion to dismiss the indictment after the retrial
was already granted as a sanction for the Brady violation. Thus, the retrial was not a
sanction available to impose any further discovery sanctions against the state; it was
already granted. If, as the majority implies, the standard of review is derived from
Crim.R. 16, the court necessarily abused its discretion when it failed to consider the
effectiveness of any other discovery sanction to address the prejudice emanating from the
deteriorated state of discovery. Darmond at 352. The trial court’s only consideration
was of the sanction imposing a retrial, a sanction not available at that stage of the
proceedings for the purposes of a Crim.R. 16-derived sanction.
{¶52} Moreover, the trial court imposed an additional sanction against the state for
the Brady violation by precluding its use of Espinoza’s prior testimony at the new trial.
The court then, without addressing the effectiveness of that sanction, bootstrapped the
preclusion of testimony with Keenan’s argument that he was prejudiced by the exclusion
because he could not use the newly discovered exculpatory evidence, which was the basis
for the Brady violation, to impeach the only eyewitness to the crime. Such a circular
argument leaves the state in an untenable position.
{¶53} Under the majority’s rationale, trial courts are now free to consider Crim.R.
16 sanctions that are unavailable, or to consider imposing the most severe sanctions based
on the prejudice caused by the imposition of the less severe sanction in resolving criminal
discovery disputes. I cannot join such a broad advancement of Darmond or Larkins.
The majority rationalizes the broad interpretation by perpetuating an unsupported standard,
from Larkins, that a trial court does not abuse its discretion in dismissing an indictment
based on Brady violations for which a new trial was already granted if it is impossible to
restore the defendant to the position he should have been in at the time of the first trial.
This essentially creates a bright-line rule that the state will be precluded from retrying
defendants after a Brady violation is found years after the original trial: it will always be
impossible to restore the defendant to his original position through the ravages of time.
Most courts have established that the typical remedy for a Brady violation is the granting
of a new trial, and speak nothing of a requirement that the defendant be restored to his
original position. State v. Mapp, 3d Dist. Union No. 14-10-34, 2011-Ohio-4468, 32;
United States v. Presser, 844 F.2d 1275, 1286 (6th Cir.1988).
{¶54} Keenan’s argument and the trial court’s ruling are both grounded on a
Crim.R. 16 discovery violation. The reality is, however, Keenan’s motion to dismiss the
indictment raises a due process claim in that a new trial would violate Keenan’s
constitutional right to due process because of the passage of time and the unavailability of
witnesses after discovery was conducted for the new trial, which was awarded as a
sanction for the Brady violation. This analysis stands apart from a claim for ongoing
discovery violations pursuant to Crim.R. 16. Keenan, however, failed to substantiate the
merits of a due process argument based on the record before this court. Tellingly, the
majority avoids any discussion on the due process arguments Keenan raised, while
implicitly relying on such in affirming the trial court’s decision through reliance on
Larkins.
{¶55} Any reliance on Larkins to fuse the due process standards with a Crim.R. 16
discovery violation analysis is especially misplaced in light of Darmond.7 Larkins was
7
I acknowledge the Ohio Supreme Court’s decision in Darmond, 135 Ohio St.3d 343, 351,
2013-Ohio-966, 986 N.E.2d 971, occurred subsequent to the trial court’s proceedings in the current
case. Our references to Darmond are intended for the sake of convenience. Darmond merely
reiterated the standard advanced in Lakewood, 32 Ohio St.3d 1, 4-5, 511 N.E.2d 1138, which was the
same standard the trial court applied in dismissing the indictment. Further, this district held that
decided under the presumption that the discovery sanction inquiry ended without any
specific analysis regarding the effectiveness of less severe discovery sanctions,
specifically, but not exclusively, whether the sanction of exclusion of the unavailable
witnesses’ testimony the trial court already imposed would have sufficed to remedy the
prejudice caused by the discovery violation. See Larkins, 8th Dist. Cuyahoga No. 85877,
2006-Ohio-90, 51 (in Larkins, this court did not consider the effectiveness of precluding
the use of the unavailable witnesses’ prior testimony at the retrial). The Larkins court
merely relied on Larkins’s establishment of prejudice, with no analysis regarding the
effectiveness of the least severe sanction. Id. at 51.
{¶56} Similar to the Larkins court’s approach, the concept of due process does not
require the court to determine the effectiveness of a less severe sanction before dismissing
an indictment on due process grounds either. See, e.g., State v. Cline, 8th Dist. Cuyahoga
No. 64776, 1994 Ohio App. LEXIS 683, *5-6 (Feb. 24, 1994) (defendant need only show
actual prejudice before the burden shifts to the state to establish a justifiable basis for the
delay in indicting the defendant). Thus, according to the Larkins court, the due process
and Crim.R. 16 discovery sanction arguments were coextensive: both required the
defendant to establish prejudice as the culminating inquiry. The fact that the Larkins
Lakewood applied equally to discovery violations by the state and the defendant prior to the Ohio
Supreme Court’s final pronouncement on the issue. See State v. Wolf, 8th Dist. Cuyahoga No.
83632, 2004-Ohio-5023, 17 (applying the least severe sanction rationale to the standard of review to
determine whether the trial court abused its discretion in not excluding a state’s witness despite the
failure to disclose in favor of a less severe sanction, given the scope of the discovery violation and the
lack of prejudice to the defendant); State v. Brown, 8th Dist. Cuyahoga No. 83976, 2004-Ohio-5863,
¶ 6 (applying Lakewood analysis to the state’s discovery violations).
court combined the two separate arguments was harmless, given that overlap and the fact
that Larkins presented specific evidence supporting the due process arguments. Larkins
must be limited to the facts and circumstances of that case in light of the fact that
discovery sanctions predicated upon Crim.R. 16 must undergo the effectiveness of a less
severe sanction analysis. The majority’s reliance on Larkins is, therefore, misplaced.
{¶57} Further, Larkins does not stand for the proposition that the degradation of a
witness’s memory is presumed from the passage of time, as Keenan argued and the trial
court considered. The Larkins court found the unavailability of 24 witnesses prejudiced
the defendant’s ability to defend the case “wholly apart from issues relating to the typical
degradation of memories occurring over long periods of time.” Larkins, 8th Dist.
Cuyahoga No. 85877, 2006-Ohio-90. Thus, the Larkins court did not address the
degradation of the witnesses’ memories because the unavailability of so many witnesses
precluded the defendant from presenting a meaningful defense in the first place.
{¶58} In this case, it is not enough to presume the degradation of a witness’s
memory prejudices Keenan for the purposes of whether any retrial would violate Keenan’s
right to due process under Article I, Section 16, of the Ohio Constitution and the Fifth and
Fourteenth Amendments to the United States Constitution. In fact, Keenan
acknowledged the lack of specific evidentiary material to substantiate the degradation of
memory issue and instead relied on the notion of “common sense” to determine that the
witnesses would not have sufficient memory to testify at the retrial. Tr. 395:13-20.
Such a presumption would automatically entitle a defendant to a finding of prejudice that
warrants a dismissal of the indictment in all cases where a retrial is granted based on any
type of Brady violation made years after the original trial. It must be reiterated that, to
the contrary, most courts have established that the typical remedy for a Brady violation is
the granting of a new trial. Mapp, 3d Dist. Union No. 14-10-34, 2011-Ohio-4468, 32;
Presser, 844 F.2d 1275, 1286 (6th Cir.1988).
{¶59} This court has maintained in the similar context of pre-indictment delay, the
mere “possibility of prejudice inherent in any extended delay: that memories will dim,
witnesses become inaccessible, and evidence be lost[,] * * * are not in themselves enough
to demonstrate that [a defendant] cannot receive a fair trial * * *.” State v. Cline, 8th
Dist. Cuyahoga No. 64776, 1994 Ohio App. LEXIS 683, *5-6 (Feb. 24, 1994), citing State
v. Starks, 8th Dist. Cuyahoga No. 50087, 1986 Ohio App. LEXIS 5845 (Mar. 6, 1986). It
is incumbent upon the defendant to establish that the witnesses currently have such a
diminished ability to recollect the events as to prejudice the defendant in a retrial. State
v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, 25. I see no reason to
create a presumption and deviate from our pre-indictment delay standard for the purposes
of determining whether the retrial, premised on the Brady violation after the parties
pursued discovery, is violative of the defendant’s constitutional right to due process.
Accordingly, the trial court’s conclusion that the available witnesses were unable to
effectively testify at the retrial is not supported by the evidence. There is no evidence in
the record establishing the prejudice created by the passage of time. Quite the opposite.
The state presented evidence that witnesses were ready and able to testify at the retrial.
{¶60} Of the five witnesses who are unavailable to testify at Keenan’s retrial, any
potential prejudice caused by Espinoza’s and Crimi’s unavailability was seemingly
resolved by the trial court’s preclusion of Espinoza’s previous testimony and the state’s
stipulation as to the content of Crimi’s alleged exculpatory statements. Neither the trial
court nor Keenan offered any rationale explaining the ineffectiveness of those remedial
steps for the purposes of the aggravated murder counts other than the bootstrapping claim
that the exclusion then prejudices Keenan. The trial court completely failed to consider
any prejudice with regard to the individual counts for kidnapping and aggravated burglary
as required when considering whether to impose sanction pursuant to Crim.R. 16. The
trial court thus abused its discretion in dismissing the indictment without undergoing the
correct analysis prior to imposing the most severe discovery sanction available.
{¶61} It is unfortunate that Keenan may be placed in the position of potentially
having to endure a third trial for acts that occurred over two decades ago, but the victim
deserves a just process, as does Keenan. Accordingly, I would find the trial court abused
its discretion in dismissing the entire indictment as a discovery sanction pursuant to
Crim.R. 16 without first addressing the effectiveness of a less severe discovery sanction to
address the Brady violations. If the dismissal was predicated upon due process grounds,
it cannot be determined that the retrial violates Keenan’s right to due process based on the
record submitted on appeal. In light of the foregoing, I would reverse the decision of the
trial court and remand for further proceedings.
State v. Keenan
Combined Opinion