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State of Ohio v. Edmund E. Emerick

October 28, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
EDMUND E. EMERICK, III
DEFENDANT-APPELLANT



T.C. NO. 94CR1548 (Criminal appeal from Common Pleas Court)

The opinion of the court was delivered by: Froelich, J.

Cite as State v. Emerick,

OPINION

{¶1} Edmund E. Emerick appeals from a judgment of the Montgomery County Court of Common Pleas, which denied his motion for further DNA testing. For the following reasons, the trial court's judgment will be affirmed in part, reversed in part, and remanded for further proceedings.

I

{¶2} In 1996, Emerick was indicted for one count of aggravated robbery and two counts of aggravated murder, with death penalty specifications, arising out of the killings of Robert Knapke and Frank Ferraro during a robbery of the Sloopy's bar in Dayton. According to the coroner, Knapke and Ferraro died from blunt-force injuries to their heads, consistent with blows from a hammer. The police discovered that a safe and a two-wheeled dolly were missing from the bar, and that a cigarette vending machine in the bar had been broken into.

{¶3} At trial, the State presented eyewitness testimony that Emerick had been outside of Sloopy's around 11:00 a.m. on March 19, 1994, the day the crimes were committed. Other witnesses testified that Emerick, a former manager of another bar located approximately one block from Sloopy's, had previously been in the office area of Sloopy's, where the safe was located. The dolly and the safe were located near businesses that Emerick frequented in another area of Dayton; a dolly was found behind a laundromat after Emerick came to retrieve his laundry, and the safe was located near a nearby hardware store.

A handwritten letter about the crime, allegedly written by the perpetrator, was mailed to a local television station approximately one week after the murders; an FBI handwriting expert testified that it was "extremely likely" that the letter was prepared by Emerick. Two tool mark examiners testified that tool marks found on the cigarette machine matched the tire iron located in Emerick's car. A man who had been in jail with Emerick after his arrest testified that Emerick had stated that he wished that he had taken the murder weapon with him and other incriminating statements.

{¶4} Numerous blood samples were collected from the men's bathroom and the middle/food preparation room at Sloopy's, where Ferraro and Knapke were killed, respectively. These items, in addition to a claw hammer, the tire iron, and carpet from Emerick's car, were tested for blood type (ABO) and PGM enzyme type. Blood was also found on Emerick's left shoe and jacket; these items were sent to an independent laboratory for DNA testing. A former forensic scientist with the Miami Valley Regional Crime Lab testified that no blood was found on the tire iron. Although the carpet had blood on it, the species could not be determined. One blood sample from a wall showed a blood type of AB, which differed from the victims, but the other blood evidence was consistent with having come from the victims. There was no testimony regarding Emerick's blood type. The results of the DNA testing of Emerick's clothing were inconclusive. No DNA evidence linking Emerick to the murders of Knapke and Ferraro was presented at trial.

{¶5} The jury found Emerick guilty of all charges and specifications and recommended life in prison. The trial court sentenced him accordingly. We affirmed Emerick's convictions on direct appeal. State v. Emerick (June 6, 1997), Montgomery App. No. 15768 ("Emerick I").

{¶6} On October 28, 2005, Emerick filed an application for post-conviction DNA testing with the trial court, seeking to test: (1) the hammer; (2) fingernail clippings; (3) blood tins; (4) screwdriver bits; (5) paper towels and cloth towels; (6) vials of blood; (7) carpet from his automobile; (8) his clothing; and (9) hair samples. Emerick asserted that "DNA testing could be conclusive proof of innocence, particularly if a match was made on different items that was not the DNA profile of either victim (for example, a match between the hammer & DNA collected from fingernail clippings). Further, DNA could prove who was the real murderer. ***"

{¶7} In February 2006, the trial court overruled Emerick's application for post-conviction DNA testing. The trial court held that DNA testing was generally accepted and available in 1996. Thus, Emerick's application "fails under [R.C.] 2953.74(B)(1) because all biological material that he wishes to test was available for testing at the time of trial." The trial court further noted that Emerick's clothing had been tested and an "inconclusive" test result had been obtained; it concluded, however, that any additional DNA testing of that evidence would not be outcome determinative of a not-guilty finding at trial.

{¶8} Emerick appealed the trial court's denial of his application. He argued that he should have been allowed to test the following items for DNA: (1) fingernail scrapings of the victims, (2) swabs of blood taken from the bathroom wall in Sloopy's, (3) genetic material on the hammer and screwdriver bits used to murder Knapke and Ferraro, (4) blood stains found on Emerick's jacket cuff and shoe, and (5) stains on the carpet of Emerick's motor vehicle. (These items represented many, but not all, of the evidentiary materials included in Emerick's application; for example, Emerick did not focus on the paper towels on appeal.) Emerick claimed that if these items were to be tested for DNA, the results would demonstrate the presence of a third unknown person at the crime scene. Emerick further asserted that DNA testing of the genetic material would effectively demonstrate that he was not present at the bar when the murders were committed, and thus, could not have been the perpetrator of the crimes.

{¶9} On October 10, 2006, while his appeal of the trial court's denial of DNA testing was pending, Emerick filed a second application for DNA testing. In his second application, Emerick requested DNA testing of the same biological material that was listed in the first application, namely the "hammer; victims' fingernail clippings; blood tins; vials of blood; screw driver bits; paper and cloth towels; automobile carpet; clothing; [and] hair samples." His supporting memorandum argued that Short Tandem Repeat ("STR") DNA testing "is capable of excluding Emerick as the source of the biological materials and establishing his innocence of the crime. If Mr. Emerick is in fact excluded through DNA testing, the test results could be used to identify the true perpetrator of the crime."

{¶10} On March 23, 2007, prior to the trial court's ruling on Emerick's second application, we reversed the trial court's February 2006 decision. State v. Emerick, 170 Ohio App.3d 647, 2007-Ohio-1334 ("Emerick II"). We noted that Y-Chromosome Short Tandem Repeat ("Y-STR") DNA Analysis was not available at the time of Emerick's trial and that the development of Y-STR technology was partially responsible for the General Assembly's decision to enact R.C. 2953.71 through 2953.83, so that otherwise qualified inmates would have the opportunity to take advantage of advances in technology that were not available at the time of their trials. We stated that "Emerick's case falls squarely under that category." Id. at ¶18.

{¶11} We further held that the DNA testing would be outcome determinative, reasoning:

{¶12} "The state's theory at trial was that the offenses which took place at Sloopy's on the day in question were committed by a single perpetrator. There was no DNA evidence that placed Emerick at the scene of the crime, and he maintained his innocence throughout the trial. He contends that DNA testing of the fingernail scrapings of the victims, the swabs of blood on the bathroom walls, and the genetic material on the murder weapons will demonstrate the existence of a third party at the crime scene whose DNA does not match Emerick's or that of the two victims. Emerick argues that if the genetic material does not match his DNA or that of the victims, then the isolated DNA must belong to another donor. If the unidentified donor's DNA is located on different evidentiary items, that individual would be the actual murderer. Under this scenario, DNA analysis of the requested evidentiary items would clearly be outcome determinative with respect to the question of Emerick's guilt. The existence of a third party who committed the murders and robbery would exonerate Emerick. Thus, pursuant to R.C. 2953.74(B)(2), Emerick is entitled to Y-STR DNA analysis of the identified evidentiary items." Id. at ¶25.

{¶13} In October 2007, the prosecutor filed a report, pursuant to R.C. 2953.75, which identified the following biological materials as still existing: (1) screwdriver bit recovered from in front of a cigarette machine; (2) fingernail clippings; (3) stain from the bathroom wall; (4) sample from the hammer; (5) sample from the jacket cuff; (6) sample from the shoe; and (7) sample from the carpet. The screwdriver bit and fingernail clippings were retained in the court's property room. The other items were retained by the Miami Valley Regional Crime Lab. The report did not mention biological materials other than those ordered to be tested in Emerick II, and it is unclear whether the prosecutor looked for any additional biological evidence, as required by R.C. 2953.75.

{¶14} Pursuant to our judgment, the items addressed in our opinion (and itemized by the prosecutor in the Prosecutor's Report) were sent to an independent laboratory for Y-STR DNA testing. Emerick and Ferraro's DNA was excluded from the fingernail clippings, wall sample, and hammer handle; Knapke's DNA could not be excluded as the source of the blood for those samples. Emerick's DNA was excluded from the hammer whereas both Ferraro's and Knapke's DNA could not be excluded. Ferraro and Knapke were excluded as the source of the blood on Emerick's jacket; Emerick was not excluded as the source of that blood. Emerick, Ferraro, and Knapke were excluded as sources of the DNA on Emerick's shoe. No male DNA was located on the screwdriver tip, and no human DNA was found on the automobile carpet. Emerick has acknowledged that "[t]esting thus far has failed to yield definitive evidence of Defendant's innocence or guilt." (Doc. #15.)

{¶15} On March 13, 2009, Emerick filed a motion for further DNA testing and to compel the prosecutor to provide a report listing all biological material collected in the case. He argued that "DNA testing of the remaining items would likely turn up additional profile that would exculpate Emerick in this case." In particular, Emerick sought testing of the so-called "devil letter," which was purportedly sent from the killer to the media shortly after the murders/robbery, as well as paper towels found in both the men's and ladies' restrooms and a Budweiser beer bottle found inside the walk-in cooler in the middle room of the bar. Emerick stated that there were more than 20 additional items that had never been tested for DNA, such as (1) blood taken from the cooler in the middle room; (2) blood taken from the men's room sink; and (3) blood taken from the wall of the men's room near the toilet paper dispenser. Emerick also sought an order to require the State to inventory all biological material, which the State allegedly had never done.

{¶16} The State opposed Emerick's motion for additional testing. The State argued that Emerick had "not even attempted to demonstrate the reasonableness of testing every single item of evidence, and [had] not specifically identified what items' test results could exculpate him." (Emphasis in original.) (Doc. #19.) The State further argued that results excluding Emerick as a contributor of biological material on the additional items would not exonerate him.

{¶17} A hearing on Emerick's motion was held in July 2009, and the parties submitted post-hearing memoranda. For the most part, the parties repeated their previously asserted arguments. In his post-hearing memorandum, Emerick also asserted that the law of the case doctrine governed this matter. He claimed that the appellate court (this court) had previously concluded that DNA testing would be outcome determinative and that the trial court was bound to follow that holding. The State responded that the law of the case doctrine did not apply, because Emerick's motion for further testing concerned different biological evidence.

{¶18} The trial court denied Emerick's motion for further post-conviction DNA testing. The court rejected Emerick's contention that the law of the case doctrine applied. The court noted that it had already followed the mandate in Emerick II, and that the appellate opinion and judgment were confined to eight pieces of evidence. The court further found that Emerick had made the strategic decision not to test additional items at the time of trial, when DNA testing was generally available. Further, the court found that additional testing would not be outcome determinative. The trial court stated, in part:

{¶19} "Defendant's theory that DNA testing could produce an outcome determinative result is problematic because it only can prove to be true IF the evidence at trial is found not to be credible AND the DNA testing of the 'devil letter' reveals an additional profile AND that profile happens to be found on any of the other evidence tested AND all the other profiles found on all other evidence exclude Defendant. At best, finding a new DNA profile would simply attack the credibility of evidence presented rather than produce an outcome determinative result. The Court reminds Defendant that the murders took place in the hours following two very busy nights at the bar. Finding DNA from another person on paper towels or beer bottles in a bar, or even the walls of a public bar, would not definitively exclude Defendant as the murderer. Further, with respect to the 'devil letter,' a DNA profile of someone other than Defendant could simply mean that Defendant wrote the letter, but someone else handled it and sealed the envelope. As set forth above, it was testified to at trial that the purpose of the 'devil letter' was to divert attention from the true killer. Thus, even another's DNA on the letter would not be 'outcome determinative.'" (Emphasis in original.)

{ΒΆ20} As for Emerick's request for a list of biological materials, the court found that Emerick had previously been provided the list that he had requested under R.C. 2953.73. The court noted that Emerick's counsel had been given access to all evidence held in the court's property room, and trial counsel had been given access to a list of all available evidence through the open discovery provisions of the Court Management Plan. Citing State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, the court held that the State need not produce the list because DNA would not produce an ...


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