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State v. Kilbane

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 10, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
OWEN J. KILBANE, ET AL. DEFENDANTS-APPELLANTS

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-76-029398-A, CR-76-029398-B

          FOR APPELLANTS Owen J. Kilbane, pro se Martin A. Kilbane, pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Christopher D. Schroeder Assistant County Prosecutor

          BEFORE: Laster Mays, J., Boyle, P.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶1} Defendants-appellants Owen J. Kilbane ("Owen") and Martin A. Kilbane ("Martin")[1] file this consolidated appeal challenging the trial court's denial of their motion for leave to file a motion for a new trial pursuant to Ohio Crim.R. 33. This court granted appellants' motion to file a delayed appeal. After a review of the record, we affirm the decision of the trial court.

         I. Background and Facts

         {¶2} Appellants were convicted by jury on April 11, 1977, for the much-publicized murder-for-hire killing of Marlene Steele ("Marlene") in 1969, solicited by her husband Robert Steele ("Steele") during his term as judge of the Euclid Municipal Court. Appellants were implicated by Richard Robbins ("Robbins"), who was allegedly contacted by Martin to execute Marlene.

         {¶3} After several meetings, it was determined that a signal would be received from Steele and Martin would drive Robbins to the Steele's home. While Marlene slept, Robbins entered the home and shot her twice in the head. Martin picked up Robbins, returned to appellants' home, and notified Steele that he could call the police. Robbins was paid $1, 000 for the murder of Marlene. In 1975, an individual named C.B. implicated appellants, Robbins and Steele.

          {¶4} Robbins agreed to testify against appellants in exchange for immunity. Robbins and appellants were tried together and found guilty of first- degree murder. This court affirmed the decision in State v. Kilbane, 8th Dist. Cuyahoga Nos. 38428, 38383, and 38433, 1979 Ohio App. LEXIS 10550 (July 3, 1979). Jurisdiction was declined by the Ohio Supreme Court.

         {¶5} The Sixth Circuit reversed the grant of appellants' petition for writ of habeas corpus by the United States District Court for the Northern District of Ohio on the admissibility of a witness statement that refused to testify. Steele v. Taylor, 684 F.2d 1193, 1199 (6th Cir.1982), writ denied, Kilbane v. Marshall, 460 U.S. 1053, 103 S.Ct. 1501, 103 S.Ct. 1502, 75 L.Ed.2d 932 (1983), rehearing denied, Kilbane v. Marshall, 461 U.S. 940, 103 S.Ct. 2113, 103 S.Ct. 2114, 77 L.Ed.2d 316 (1983).

         {¶6} On November 21, 2014, appellants filed a "motion for leave to file a motion for a new trial based on newly discovered evidence or in the alternative, petition for postconviction relief pursuant to Crim.R. 33.[2] The facts supporting appellants' motion are as follows: on August 21, 1977, the Cleveland Plain Dealer newspaper published an article written by James Cox ("Cox") entitled "Murder, the Verdict in Balance."[3] Cox interviewed several jurors that served on the Steele case.

          {¶7} Appellants have consistently maintained that they were not guilty in the Steele case, which turned on the testimony of codefendant Robbins. Robbins could not testify unequivocally what position Marlene was in when she was shot. The article revealed that the jurors conducted experiments during deliberations to determine whether the testimony by Robbins was supported by the experiment results. Appellants argue that these activities constituted a "colorable claim of external influences on the jury" Appellants' brief (Oct. 3, 2017), pg. 3. Affidavits attached to the motion aver that neither appellants nor defense counsel knew of the article until a daughter of one of the counsel discovered it in July 2014.

         {¶8} The state filed a motion in opposition instanter on July 18, 2016. On March 13, 2017, the trial court denied the motion without a hearing, finding that appellants failed to demonstrate by clear and convincing evidence that they were unable to timely discover the Cleveland Plain Dealer article regarding the alleged juror misconduct. We granted leave to appeal.

         II. Assignments of Error

         {¶9} Appellants present two assigned errors for our review:

I. The trial court erred as a matter of law in failing to investigate a colorable claim of external influences on the jury that violated the appellants' Fifth Amendment right to a trial by a fair and impartial jury, which failure violated appellants' right to Due Process and Equal Protection of the laws.
II. The trial court erred and abused its discretion in refusing to conduct a hearing on the issue as to whether the appellants were unavoidably prevented from discovering the ...

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