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State v. New

Court of Appeals of Ohio, Ninth District

July 22, 2013



DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellant.

GERALD M. SMITH and RICHARD D. MCCLURE, Attorneys at Law, for Appellee.



{¶1} Appellant, the State of Ohio, appeals from the judgment of the Lorain County Common Pleas Court. For the following reasons, this Court reverses.


{¶2} On June 30, 2011, Appellee, Bobbie Lee New, was indicted for the murder of Dorothy Spencer, whose death occurred more than 35 years earlier. Ms. Spencer was last seen alive at 9:15 p.m. on March 13, 1976, while en route to her mobile home located in Camden Township, Ohio after dining with some friends. At 2:11 a.m. on March 14th, an anonymous female called the ambulance service line at Allen Memorial Hospital located in Oberlin, Ohio. The caller stated that she needed help and requested an ambulance. The caller provided directions to Ms. Spencer's home, but hung up when the dispatcher asked her to identify herself Medical personnel discovered Ms. Spencer alone, unconscious, and lying on her sofa with a gunshot wound to her head. An autopsy later revealed that she also had bruising on her neck and shoulders. Ms. Spencer died on March 17, 1976. The Lorain County Coroner ruled that her cause of death was a gunshot wound of the head.

{¶3} The Lorain County Sheriffs Office investigated the matter. At the time of her death, Ms. Spencer was in a relationship for approximately six years with New, who was married but estranged from his wife. Ms. Spencer and New lived together at the mobile home for almost two years. Several of Ms. Spencer's friends and co-workers told investigators that she feared New, and that she had told them that he beat her. Her co-workers further testified that she sometimes arrived at work with injuries, which she attributed to beatings from New, and occasionally she missed work due to such injuries. In 1971, New was charged with assault with a deadly weapon, assault and battery and carrying a concealed weapon arising out of an incident wherein he allegedly beat and threatened to kill Ms. Spencer and her daughter. New pleaded guilty to the carrying a concealed weapon charge and the rest of the charges were dropped at the request of Ms. Spencer. From the beginning of the investigation, New was the primary suspect in Ms. Spencer's shooting.

{¶4} New's whereabouts the night of Ms. Spencer's murder are unknown. Ms. Spencer's neighbor, who was 13 years old at the time, told investigators that she saw New's vehicle parked next to Ms. Spencer's vehicle at the home around 10:00 p.m. or 11:00 p.m. New's estranged wife, Rebecca New, told investigators that he stopped by her home for a few minutes sometime after 11:00 p.m. on March 13th. New's sister and brother-in-law, Zula and Ezra Strader, who lived across the street from Rebecca New, denied that New was at their home the night of March 13th. A bartender testified that New was with her the night Ms. Spencer was shot from approximately 11:00 p.m. or 12:00 a.m. until 4:45 a.m.

{¶5} Due to Ms. Spencer's condition upon medical personnel's arrival and because the home was not equipped with telephone service, investigators concluded that the anonymous telephone call that requested an ambulance had to originate from a different location. While there was no firearm found near Ms. Spencer or in the home, a subsequent search found a box for a Colt .38 revolver that contained two bullets. The gun's last owner, Charles Bogdanowitz, a friend of New's, loaned the gun to him late in 1975. New never returned the gun to Bogdanowitz. A spent shell casing was recovered from the sofa, which was later determined to match the bullets found in the box. The gun itself was never found.

{¶6} Ms. Spencer's son, Alfred Lilly, told investigators in 1976 that he received a message that New wanted to speak with him. On April 12, 1976, New allegedly approached Mr. Lilly and told him that when Lilly got out of the Army, if New was not in jail, he would tell Lilly how his mother was killed. Mr. Lilly died in 1997. There is no evidence that New ever had any further discussions with Mr. Lilly about his mother's death.

{¶7} The case was first presented to the Lorain County Grand Jury in May 1976. Charles Bogdanowitz testified before the Grand Jury about the gun that was loaned to New. Both Zula and Ezra Strader also testified in front of the Grand Jury. The Straders both testified that New was not at their home the night Ms. Spencer was shot. Mrs. Strader testified that she did not recall placing or receiving any telephone calls that night. Both Straders testified that their two sons, ages 17 and 13, were home that night. Investigators never questioned the Straders' sons. The Grand Jury returned a no bill, thus, refusing to indict New for the murder of Ms. Spencer.

{¶8} Investigators traced the telephone calls from the Strader residence. The trace revealed that the anonymous telephone call to the hospital originated from the Straders' phone. Zula Strader was the only female who resided in the home at the time, and fit the description of the caller as a woman in her 30's. It is unclear whether this information about the trace was obtained by the State (or police) before or after the case was presented to the Grand Jury. The Straders were not confronted with the information that the telephone call originated from their home. Both Straders subsequently died. The investigation became a cold case until 2010.

{¶9} In 2010, the son of Ezra and Zula Strader, Perry Strader, contacted the Lorain County Sheriffs Department with information about Ms. Spencer's death. He stated that he awoke the night of March 13th to find his mother in his bedroom closet with a flashlight looking through a telephone book. Mrs. Strader would not tell him what was going on. He later heard his mother make a call from the telephone in the living room, but could not hear what was said. Perry Strader testified that he thought something was wrong, so he went out to the living room and saw his parents and New. He asked what was happening, to which New eventually replied that he argued with Ms. Spencer, "slapped [her] around" and eventually shot her. He assisted his ...

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