Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-232189.
ATTORNEYS FOR APPELLANT Timothy J. McGinty Cuyahoga County Prosecutor By: Richard A. Bell Assistant Prosecuting Attorney The Justice Center.
ATTORNEY FOR APPELLEE Timothy F. Sweeney Law Office-Timothy Farrell Sweeney.
BEFORE: Jones, P.J., S. Gallagher, J., and McCormack, J.
JOURNAL ENTRY AND OPINION
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. 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).
(¶ 4} After exhausting his state remedies,  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 * 3 2-22.
(¶ 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 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
(¶ 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 ...