State v. Noling

[Cite as State v. Noling, 2022-Ohio-759.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2021-P-0081

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

TYRONE LEE NOLING,
Trial Court No. 1995 CR 00220
Defendant-Appellant.

OPINION

Decided: March 14, 2022
Judgment: Reversed and remanded

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Brian Church Howe, The Ohio Innocence Project, University of Cincinnati College of
Law, P.O. Box 210040, Cincinnati, OH 45221; and Carrie C. Mahan, Weil, Gotshal &
Manges LLP, 2001 M Street, N.W., Washington, DC 20036 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Tyrone Lee Noling, appeals from the July 9, 2021 judgment

denying his Motion for Nondestructive Access to State Files. At issue is whether the trial

court erred in denying appellant the opportunity to review the Portage County

Prosecutor’s file as well as the Portage County Sheriff’s file relating to the criminal

investigation which precipitated his indictment and his eventual conviction for, inter alia,

aggravated capital murder. We conclude that, pursuant to this court’s remand order set

forth in State v. Noling, 11th Dist. Portage No. 2011-P-0018, 2014-Ohio-1339 (“Noling

IV”), the trial court committed reversible error.
 {¶2} On August 18, 1995, the Portage County Grand Jury indicted appellant for

his involvement in the murders of Bearnhardt and Cora Hartig. The indictment charged

appellant with two counts of aggravated murder, with each count including specifications

of aggravating circumstances pursuant to R.C. 2929.04(A)(3) and 2929.04(A)(7).

Appellant was additionally indicted on two counts of aggravated robbery and one count

of aggravated burglary. All charges included a firearm specification alleging appellant

possessed a firearm on or about his person or under his control while committing the

offenses.

{¶3} After trial, the jury entered a verdict of guilty on all counts, including the

charged specifications. The trial court then entered the penalty phase after which the jury

returned a recommendation that the court impose the death penalty. The trial court

independently concluded that the death penalty was warranted and entered the sentence

on record. Appellant appealed his convictions to this court and, in State v. Noling, 11th

Dist. Portage No. 96-P-126, 1999 WL 454476 (June 30, 1999) (“Noling I”), this court

affirmed the trial court’s judgment on conviction. The matter was subsequently appealed

to the Supreme Court of Ohio, which affirmed appellant’s conviction. State v. Noling, 98

Ohio St.3d 44, 2002-Ohio-7044.

{¶4} In July 1997, appellant filed a petition for postconviction relief pursuant

to R.C. 2953.23. The trial court, however, dismissed the petition, concluding there was

no substantive grounds for relief. Appellant subsequently appealed the trial court’s

dismissal, and this court affirmed the trial court’s judgment. State v. Noling, 11th Dist.

Portage No. 98-P-0049, 2003-Ohio-5008 (Noling II ).

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 {¶5} Appellant later commenced a federal habeas corpus action. While the

action was pending, the Cleveland Plain Dealer published an article premised upon

appellant’s case. The article’s heading read: “Lies put man on death row, three claim

Portage investigator used coaching, threats to get confessions, men say.” The record

indicates the Plain Dealer was able to obtain various pieces of evidence via a public-

records request. Subsequent to the article’s release, appellant filed, inter alia, a

successive petition for postconviction relief and motion for new trial. Appellant asserted

multiple grounds for relief in his successive petition and motion for new trial, all of which

could be classified into one of three categories: (1) Brady evidence pertaining to alleged

suppressed exculpatory material; (2) ineffective assistance of counsel relating to

evidence that trial counsel possessed at trial but failed to utilize; and (3) evidence in the

form of post-trial affidavit testimony. After considering the arguments, the trial court

dismissed appellant’s successive petition and motion for new trial finding the evidence

failed to meet the standards for granting a new trial or successive petition for

postconviction relief. Appellant then appealed the trial court’s decision which this court

affirmed. State v. Noling, 11th Dist. Portage No. 2007-P-0034, 2008-Ohio-2394 (Noling

III ).

{¶6} During the pendency of Noling III, the Northern District issued a lengthy

order denying appellant relief in habeas corpus. Noling v. Bradshaw, 2008 U.S. Dist.

LEXIS 7650 (N.D.Ohio, Jan. 31, 2008).

{¶7} In June 2010, appellant filed a motion for leave to file a new trial motion in

the Portage County Court of Common Pleas pursuant to Crim.R. 33(A)(6) and R.C.

2945.80. The motion was premised upon evidence, which appellant characterized as

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newly discovered and materially exculpatory. The evidence included: (1) a statement from

one Nathan Chesley, which inculpated Chesley’s now-deceased foster brother, Dan

Wilson, in the Hartig murders (Wilson was executed in 2009 for an unrelated 1991

aggravated murder conviction); (2) DNA evidence from a cigarette butt that was found in

the Hartig’s driveway during the murder investigation, which previously excluded

appellant, but, appellant argued, did not similarly exclude Dan Wilson; and (3) statements

made by one Marlene VanSteenberg, potentially implicating her brother-in-law, Raymond

VanSteenberg, in the Hartig murders. The foregoing evidence was obtained through a

public records request to the Portage County Sheriff’s Office and, according to appellant,

was neither in the prosecutor’s “open file” nor otherwise disclosed to defense counsel.

{¶8} After holding an evidentiary hearing, the trial court denied appellant’s

motion. In its judgment, the trial court observed that, prior to appellant’s trial, the state of

Ohio had an open-file discovery policy. The court noted that appellant’s defense counsel

testified they had no recollection of the evidence submitted in support of appellant’s

motion for leave to file. The prosecuting attorney, however, testified he provided full

discovery of everything in his possession. Given these points, the court determined that

appellant failed to establish, by clear and convincing evidence, that he was unavoidably

prevented from discovering the exculpatory evidence at issue. Appellant appealed the

trial court’s judgment to this court, and, in Noling IV, this court vacated the trial court’s

judgment and remanded the matter for further proceedings.

{¶9} When this court issued its March 2014 opinion in Noling IV, appellant had a

motion pending in the trial court seeking a complete copy of DNA test results and, shortly

thereafter, he filed an application for DNA testing. In June 2014, the trial court denied

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these motions and appellant filed a notice of appeal with this court. This court dismissed

the appeal for lack of subject-matter jurisdiction. State v. Noling, 11th Dist. Portage No.

2014-P-0045, 2015-Ohio-2454 (“Noling V”). This court determined that, pursuant to

statute, the Supreme Court of Ohio has exclusive jurisdiction to review any denial of DNA

testing for a defendant sentenced to death. Id. at ¶3, 15, citing R.C. 2953.73(E).

Appellant appealed to the Supreme Court, where the case remained pending until May

2018. Ultimately, the Supreme Court affirmed the matter in part, reversed it in part, and

remanded the case to the trial court for further proceedings vis-à-vis appellant’s request

for DNA profile(s).

{¶10} In February 2019, appellant filed a motion, supported by an expert affidavit,

for funding to employ an expert document examiner to analyze the relevant files, pursuant

to Crim.R. 42(E) (which allows the trial court to appoint experts for indigent defendants in

capital cases and post-conviction review capital cases). The trial court granted the order.

Although this judgment was ultimately sealed, appellant asserts the court represented

such appointment was consistent with this court’s remand order in Noling IV.

Subsequently, in March 2019, the Supreme Court re-transmitted the case record to the

trial court. Thereafter, appellant moved for access to the state’s files, pursuant to Crim.R.

42(C).1 The trial court denied the motion, concluding it was not “properly presented.”

Appellant filed a motion for reconsideration, requesting the court to reconcile its previous

order granting funds for an expert document examiner pursuant to Crim.R. 42(E), while

1. That rule provides: “(C) Access File Material. In a capital case and post-conviction review of a capital
case, the prosecuting attorney and the defense attorney shall, upon request, be given full and complete
access to all documents, statements, writings, photographs, recordings, evidence, reports, or any other
file material in possession of the state related to the case, provided materials not subject to disclosure
pursuant to Crim.R 16(J) shall not be subject to disclosure under this rule.”
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denying access to the materials which appellant’s expert would examine, mandated by

Crim.R. 42(C). The trial court denied the motion without explanation.

{¶11} In October 2019, appellant filed a “Motion for Nondestructive Access to

State Files,” pursuant to this court’s order in Noling IV. Apparently, the motion remained

pending for nearly one year and a half. Accordingly, in April 2021, appellant filed a

“Motion for Status Conference and/or Hearing on [his] Motion for Access.” The state

opposed the motion, claiming appellant’s October 2019 motion was merely a reiteration

of arguments asserted in his previously overruled motions. Finally, on July 9, 2021, the

trial court denied each pending motion, offering only that they were “not well taken.”

Appellant now appeals that judgment and assigns the following as error:

{¶12} “The court of common pleas violated this court’s 2014 mandate by denying

appellant’s Motion for Nondestructive Access to State Files given that this court required

that ‘further proceedings were necessary to determine whether [potentially exculpatory

evidence] was part of the open file or otherwise available through the Sheriff’s materials

at the time of [appellant’s] trial’ and ordered that ‘additional evidence must be taken.’”

{¶13} Appellant argues that the trial court’s failure to grant him access to the

state’s files, held by both the Portage County Prosecutor as well as the Portage County

Sheriff’s Office, directly contradicts this court’s remand order in Noling IV. He also

persuasively points out that the trial court’s conclusory judgment denying him access is

fundamentally inconsistent with its prior judgment releasing funds for the appointment of

a document-examination expert for purposes of reviewing the records. We agree with

each contention.

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 {¶14} To fully appreciate our position, an adumbration of this court’s opinion and

order in Noling IV will be assistive. In Noling IV, this court addressed whether the trial

court abused its discretion in denying him leave to file a motion for new trial. In his motion

for leave, appellant advanced evidence that the prosecution failed to disclose evidence

that his trial counsel could have used to support an alternative-suspect defense. He

claimed the prosecution withheld results from a blood-typing test of a cigarette butt found

at the scene. According to a report, appellant claimed the genetic material found on the

cigarette did not match appellant or his co-defendants, but did not exclude an alternative

suspect, one Dan Wilson – an individual who was ultimately arrested for a separate

murder and executed. Evidence indicated Wilson lived nearby the victims in the

underlying matter. Further, appellant asserted the state failed to provide defense counsel

with a statement made by Wilson’s foster brother, Nathan Chesley, indicating Wilson

committed the murders. Mr. Chesley later filed an affidavit describing Wilson as an

aggressive person who was breaking into private homes in 1990; the murders in the

underlying case were committed in April 1990. Noling IV, supra, at ¶28-29. Appellant

claimed his defense team was never apprised of the foregoing evidence.

{¶15} Appellant also asserted the state withheld material evidence relating to

another individual who, near the time of the murders, had engaged in suspicious activity

with a .25 caliber handgun. The .25 caliber handgun used in the underlying murders was

never recovered. Appellant claims the alleged alternative suspect, one Raymond

VanSteenberg, was never identified by the state as a potential, alternative suspect.

However, according to a statement issued by Mr. VanSteenberg’s sister-in-law, Marlene

VanSteenberg, he borrowed a .25 caliber gun belonging to her and her husband near the

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time of the murders. Ms. VanSteenberg apparently knew Mr. VanSteenberg owned a

firearm; when she asked him what happened to it, however, he stated he had to throw it

out because he “just had to do it.” Additionally, shortly after the murders, Mr.

VanSteenberg contacted Ms. VanSteenberg from the Portage County Sheriff’s Office and

explained he had submitted the firearm he borrowed to authorities. He asked her to tell

investigators he had the weapon in his possession for at least three to four months prior.

Ms. VanSteenberg declined. Ultimately, the ballistics analysis established the firearm Mr.

VanSteenberg turned in to authorities was not the murder weapon. Id. at ¶31-37.

{¶16} Appellant’s trial attorneys testified they made the requisite pretrial discovery

demands, including any information tending to show that other persons, excluding the

accused, were involved in the crime. Id. at ¶44. They believed the prosecutor provided

everything exculpatory relating to potential alternative suspects, but did not recall seeing

or having an awareness of any of the alternative-suspect evidence set forth in appellant’s

Crim.R. 33 motion. Noling IV, supra, at ¶44-47. Moreover, because appellant’s defense

was actual innocence, they noted they would have seized on the evidence because

identity of the murderer was the entire issue in the case. Id. at ¶44. Further, the attorneys

asserted they thought the prosecutor’s open file relating to appellant’s prosecution

provided everything, particularly documentary evidence, relating to appellant’s case.

They additionally believed all documentary evidence was disclosed in light of their

discovery requests and, as a result, neither attorney believed any further inspection of

documents would be necessary. Id. at ¶50. The evidence adduced at appellant’s 2011

evidentiary hearing, however, revealed that, while the Sheriff may have kept one file for

all investigative material in the underlying murders, the prosecutor kept separate files for

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each co-defendant.2 Id. at ¶49, 52. Under the circumstances, this court determined that

it was reasonably possible that the evidence advanced in support of appellant’s motion

for leave made it into the co-defendants’ files at the prosecutor’s office (or the Sheriff’s

office) but was never specifically transferred to appellant’s file. Id. at ¶51-52.

{¶17} This court ultimately determined that “additional evidence must be taken to

completely inform the [trial] court’s decision on whether, as a matter of fact, the evidence

at issue was or was not in the file received by or offered to defense counsel.” Id. at ¶59.

In light of the evidence, this court held “further proceedings are necessary to determine

whether the evidence at issue was part of the open file or otherwise available through the

Sheriff’s materials at the time of trial.” Id. at ¶60. Despite various attempts by appellant

to proceed with this order, outlined above, the trial court has declined.

{¶18} Initially, we will address the state’s argument that appellant’s arguments on

appeal are barred by res judicata. The state claims that appellant’s prior motions seeking

access to the records at issue were overruled and he did not attempt to appeal those

judgments. The state contends appellant simply replicated his arguments in his most

recent motion, and therefore, because the trial court rejected them, they are now barred.

We do not agree.

{¶19} “[A] convicted defendant is precluded under the doctrine of res judicata from

raising and litigating in any proceeding, except an appeal from that judgment, any defense

or any claimed lack of due process that was raised or could have been raised” in the trial

court or an appeal from a judgment. State v. Szefcyk, 77 Ohio St.3d 93 (1996), at

paragraph one of the syllabus. Moreover, settled principles of res judicata or former

2. A prosecutor testifying at the hearing claimed the Sheriff kept one large file for Hartig murders, but the
record suggests the Sheriff’s file was organized according to each co-defendant.
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adjudication preclude relief on successive motions raising issues which were or could

have been originally raised in a prior pleading. See, e.g., State v. Hall, 11th Dist. Trumbull

No. 2010-T-0053, 2011-Ohio-656, ¶7

{¶20} There is no question appellant moved the court for access to the records

twice previously; however, he premised his basis for relief in those motions upon Crim.R.

42(C). The most recent motion sought relief premised upon this court’s remand order in

Noling IV. Although appellant could have argued each basis for relief as conjunctive

reasons for granting the prior motions, we decline to hold res judicata prevents

consideration of his arguments on appeal.

{¶21} “‘The doctrine of res judicata is not a mere matter of practice or procedure

inherited from a more technical time, but rather a rule of fundamental and substantial

justice, or public policy and of private peace. The doctrine may be said to adhere in legal

systems as a rule of justice. Hence, the position has been taken that the doctrine of res

judicata is to be applied in particular situations as fairness and justice require, and that it

is not to be applied so rigidly as to defeat the ends of justice or so as to work an

injustice.’” Grava v. Parkman Twp., 73 Ohio St.3d 379, 386 (1995) (Emphasis sic.)

(Douglas, J., dissenting), quoting 46 American Jurisprudence 2d (1994) 786- 787,

Judgments, Section 522. “‘Underlying all discussion of the problem must be the principle

of fundamental fairness in the due process sense. It has accordingly been adjudged that

the public policy underlying the principle of res judicata must be considered together with

the policy that a party shall not be deprived of a fair adversary proceeding in which to

present his case. * * *[.]’” Goodson v. McDonough Power Equipment, Inc., 2 Ohio St.3d

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193, 202 (1983), quoting 46 American Jurisprudence 2d 569-570, Judgments, Section

402. It would be fundamentally wrong and unjust to apply res judicata in this situation.

{¶22} Initially, applying res judicata would permit the trial court to completely and

unreasonably ignore this court’s remand order in Noling IV simply because it had

previously, albeit without clear justification or rationale, denied appellant’s previous

Crim.R. 42(C) motion for access. Coincidentally, it would appear Crim.R. 42(C) mandates

the relief appellant sought in his initial motions. (In “post-conviction review of a capital

case, the prosecuting attorney and the defense attorney shall, upon request, be given full

and complete access to all documents * * * in possession of the state * * *.” Id. (Emphasis

added.)) Still, the court’s decisions on the previous motions are not on appeal and thus

not directly at issue in this appeal. In light of this court’s remand order, which was first,

formally raised as a basis for relief in the underlying motion and which the trial court has

effectively ignored, we decline to give preclusive effect to the trial court’s prior, under-

analyzed judgments denying appellant’s Crim.R. 42(C) requests.

{¶23} Moreover, the trial court granted appellant’s motion to release funds for the

appointment of a forensic document examiner, yet, for reasons unknown, denied, without

substantive justification, the motion for access to the very documents the expert would be

examining. Not only is this fundamentally inconsistent with this court’s order in Noling IV,

it is inherently contradictory. It is both strange and unintelligible why the trial court would

release funds to appoint an expert who, by virtue of the court’s subsequent orders, can

never be utilized. The state does not dispute the expert’s appointment and, in order to

effectuate this court’s prior remand order, appellant and his expert must be granted

access to the files at issue.

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 {¶24} Appellant’s assignment of error has merit.

{¶25} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is reversed and remanded for further proceedings.

THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.

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