Court of Appeals of Ohio, First District, Hamilton
Hamilton County Trial No. B-0808031 Court of Common Pleas.
T. Deters, Hamilton County Prosecuting Attorney, and Philip
Cummings, Assistant Prosecuting Attorney, for
Carpenter Lipps & Leland LLP, Kort Gatterdam and Erik P.
Henry, for Defendant-Petitioner-Appellant.
Raising Brady, ineffective assistance, and
actual-innocence claims, defendant William Campbell seeks a
new trial and postconviction relief. Although we find that we
lack jurisdiction over the latter (postconviction) claim, we
conclude that the trial court erred in denying Mr. Campbell
an evidentiary hearing to evaluate his new-trial claims in
light of new evidence. Accordingly, we affirm in part,
reverse in part, and remand the cause.
After a night of heavy drinking in October 2008, Mr. Campbell
and his companion Tina Hayes elected to get in her car and
drive to visit another bar. That decision proved tragic, as
the driver eventually lost control and the car crashed into a
building. Neither individual was wearing a seatbelt, and the
force of the crash ejected Mr. Campbell through the
windshield and killed Ms. Hayes.
This case effectively boils down to who was driving the car
at the time of the crash. Although Mr. Campbell consistently
denied being the driver of the vehicle, he was convicted
after a trial of operating a vehicle while under the
influence of alcohol ("OVI") in violation of R.C.
4511.19(A)(1)(a), aggravated vehicular homicide in violation
of R.C. 2903.06(A)(1)(a), and aggravated vehicular homicide
in violation of R.C. 2903.06(A)(2)(a). The trial court
sentenced him to consecutive prison terms totaling 28 years.
Mr. Campbell unsuccessfully challenged his convictions on
direct appeal and in a timely-filed postconviction petition.
State v. Campbell, 1st Dist. Hamilton No. C-090875
(Sept. 19, 2012) (affirming on direct appeal), appeal
not accepted, 132 Ohio St.3d 1411,
2012-Ohio-2454, 968 N.E.2d 493; State v. Campbell,
1st Dist. Hamilton No. C-120016 (June 29, 2012) (affirming
denial of postconviction relief), appeal not
accepted, 133 Ohio St.3d 1414, 2012-Ohio-4650, 975
N.E.2d 1031. In 2013, on remand from our decision reopening
the direct appeal, the trial court merged the aggravated
vehicular homicides and imposed consecutive prison terms of
five years for OVI and 15 years for OVI-based aggravated
vehicular homicide. State v. Campbell,
2012-Ohio-4231, 978 N.E.2d 970 (1st Dist.), appeal not
accepted, 134 Ohio St.3d 1452, 2013-Ohio-347, 982 N.E.2d
729. We affirmed those convictions on appeal. State v.
Campbell, 1st Dist. Hamilton No. C-130251 (May 16,
2014), appeal not accepted, 140 Ohio St.3d 1441,
2014-Ohio-4160, 16 N.E.3d 683.
After reaching the end of the road in state court, Mr.
Campbell turned to federal court, filing a petition for a
writ of habeas corpus in 2014 before the Southern District of
Ohio, seeking relief on various grounds including actual
innocence, ineffective assistance of counsel, and
prosecutorial misconduct. Upon receiving certain new evidence
during the discovery process in federal court, Mr. Campbell
sought to use that evidence in that forum, only to be told to
return to state court for exhaustion purposes. In December
2016, the federal magistrate accordingly granted Mr.
Campbell's motion to hold the habeas proceedings in
abeyance pending exhaustion of state remedies. See
Campbell v. Warden, London Corr. Inst, S.D.Ohio No.
1:14-CV-13, 2015 WL 7710761 (Nov. 30, 2015),
supplemented, S.D.Ohio No. 1:14-CV-13, 2016 WL
497285 (Feb. 9, 2016).
Consistent with the federal court's directives, Mr.
Campbell thereupon returned to state court, presenting his
habeas grounds for relief in a petition under R.C. 2953.21 et
seq. for postconviction relief and motions under Crim.R. 33
for a new trial and for leave to file a new-trial motion out
of time. The trial court dismissed Mr. Campbell's late
and successive postconviction petition based on the failure
to satisfy the jurisdictional requirements of R.C. 2953.23.
And the court denied leave and overruled his new-trial motion
on the merits, concluding that Mr. Campbell could not meet
his burden under State v. Petro, 148 Ohio St. 505,
76 N.E.2d 370 (1947).
In the wake of this ruling, Mr. Campbell appeals, presenting
a single assignment of error that challenges the trial
court's denial of postconviction relief and a new trial.
No stranger to alcohol-related incidents, Mr. Campbell had
six OVI convictions between 1993 and 2002, which culminated
in a lifetime driver's license suspension. Analyses of
Mr. Campbell's blood at the time of the 2008 crash showed
blood-alcohol-content levels well above the legal limit. The
parties stipulated to those matters, leaving for trial the
pivotal issue of whether Mr. Campbell or Ms. Hayes (herself
under the influence of alcohol and cocaine) was driving the
car at the time of the accident.
The only eyewitness to the accident, Corporal Robert Viner of
the Hamilton County Sheriffs Department, did not see who was
driving. While on patrol near midnight, erratic driving
prompted Corporal Viner to initiate pursuit of Ms.
Hayes's car. During the course of the chase, he saw the
car mount a curb, proceed through a yard, and hit a tree and
then a building. "As the vehicle was striking the
building," Corporal Viner, from a distance of 20 feet
from the building, saw Mr. Campbell "ejected from the
vehicle * * * [in] one fluid motion."
As Corporal Viner approached the car after the accident, he
saw no one in the driver's seat. He then observed Mr.
Campbell outside of the car, surrounded by "a lot of
debris." On the car's passenger side, he saw Ms.
Hayes, unconscious, "seated in the passenger seat."
"[H]er legs were kind of straight ahead, but her body
was kind of turned toward the passenger side," and her
head "was kind of twisted," with "the back of
her head * * * wedged in between the passenger seat and what
they call the vehicle B-pillar, which is basically where the
door shuts and locks." He also observed a large hole in
the passenger-side windshield.
Corporal Viner summoned his supervisor and emergency medical
assistance. Mr. Campbell was bleeding from cuts on his face,
arm, and leg, but emerged relatively unscathed from the
accident. When asked who was driving, a somewhat dazed Mr.
Campbell responded, "It wasn't me." Corporal
Viner also observed that Ms. Hayes was wearing shoes, but Mr.
Campbell was not. At some point after Ms. Hayes and Mr.
Campbell were transported to the hospital, Corporal Viner
noticed a pair of gym shoes on the driver's side of the
The news media arrived between 12:15 and 12:30 a.m., after
Ms. Hayes and Mr. Campbell had been whisked away to the
hospital. A videographer shot about eight minutes of raw
footage, providing (among other things) a brief look at the
open driver's side of the car. This footage did not show
the shoes present on the driver's side (a point we return
At the hospital, Mr. Campbell was found to have injuries to
his face, eye, and leg, but not his chest. A chest X-ray and
CT scan ruled out internal injuries. An autopsy showed that
Ms. Hayes had died as a result of "a cervical spine
fracture due to blunt-force trauma, due to a motor vehicle
collision." The autopsy also showed a blunt-force
laceration extending from her left forehead to the parietal
scalp, a four-inch laceration to the right posterior scalp, a
blunt-force superficial abrasion below her lower lip, a
bruise and abrasion to the right clavicular chest, abrasions
to her right wrist and forearm, and a blunt-force abrasion
and contusion over her left knee. The deputy coroner who
testified to the autopsy results declined to opine whether
those injuries were more consistent with being on the
driver's side or the passenger side of the car. But he
did acknowledge, "[T]here was nothing to indicate that
[Ms. Hayes] was the driver of the vehicle. There was no
steering wheel imprint which you may expect in a motor
vehicle collision if you were the driver and
unrestrained." Nor did Mr. Campbell have any such
Subsequent forensic analysis found that hairs gathered from
the passenger window frame corresponded in microscopic
characteristics with Ms. Hayes's hair, and not Mr.
Campbell's hair. But hairs gathered from the middle
portion of the windshield, the passenger-side windshield, and
the passenger-side airbag did not correspond with either Ms.
Hayes's hair or Mr. Campbell's hair. Neither the
car's brake pad nor the gym shoes found in the car had
left a discernable impression on the other. Asked to
"look for dark fibers" because it had been
"reported that the victim was wearing a dark
sweater," the forensics expert collected fibers that had
been "fused" into the car's passenger-side
armrest, examined them microscopically, and found
"several dark blue * * * cotton fibers."
No blood was found on the car's driver-side airbag. A mix
of blood was found on the passenger-side airbag, and DNA
analysis excluded Ms. Hayes as a contributor and identified
Mr. Campbell as the major contributor. Neither Ms. Hayes nor
Mr. Campbell could be excluded from the mixture of nonblood
DNA collected from the gym shoes. Ms. Hayes was determined to
be the source of blood on the front plate of the car's
Two days after the accident, Ms. Hayes's mother, Pamela
Holt, searched the car for a camera containing pictures from
a recent family outing. The glovebox, according to Ms. Holt,
was locked and was not dented or otherwise damaged, until a
police officer assisting her "broke down the
glovebox" with a crowbar to gain access to its contents.
Ms. Holt also noticed that the passenger seat was pushed all
the way back, with the seat back slightly reclined, whereas
the driver's seat was in its usual position for Ms.
Hayes, who at five feet, three inches tall, with "short
legs," "always" positioned her seat
"straight up, where she could reach the pedals."
Mr. Campbell, standing nearly six feet tall, is considerably
The forensic evidence presented at trial was certainly not
overwhelming in either direction. Some aspects favored Mr.
Campbell's position that he was not the driver, whereas
others favored the state. To secure a ...