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State ex rel. Phelps v. McClelland

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 14, 2019

STATE EX REL., LARRY PHELPS, Relator,
v.
ROBERT McCLELLAND, JUDGE Respondent.

          Writ of Mandamus Motion No. 525648 Order No. 528279

          Larry Phelps, pro se.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, P.J.

         {¶ 1} On December 24, 2018, the relator, Larry Phelps, commenced this mandamus action against the respondent, Judge Robert McClelland, to compel "the trial court to enforce the specific terms of the contract entered into by Laura Phelps and the Cuyahoga County Prosecutor's Office, to which he (Larry Phelps) is the intended beneficiary." The relator argues that in the underlying case, State v. Phelps, Cuyahoga C.P. No. CR-93-296965, his common-law wife entered into a plea agreement under which she would testify against him in exchange for immunity and deleting the two capital specifications on his indictment. Nevertheless, the two specifications were presented to the jury, which found him guilty of the second specification causing him to be sentenced to life imprisonment. On February 14, 2019, the respondent judge, through the Cuyahoga County Prosecutor, moved for summary judgment, inter alia, on the grounds of adequate remedy at law and res judicata. Relator filed his brief in opposition on March 4, 2019. For the following reasons, this court grants the judge's motion for summary judgment and denies the application for a writ of mandamus.

         Factual and Procedural Background

         {¶ 2} In 1985, Laura Phelps was working as a prostitute, and relator was her pimp. On August 26, 1985, Merle Johnston solicited her for sex but did not have any money. Nevertheless, he followed her home. Shortly after that, she saw Johnston in their home and talking to relator. She saw relator hit Johnston who fell down. The next day she saw Johnston, still alive, in their basement. Relator instructed him to place a bag over his head or around his eyes so that he could not see where they were taking him. She then saw relator assault him again. Relator then put him in the trunk of their car, drove to Pennsylvania with her, and disposed of the body. Subsequently, the police ticketed Laura Phelps for an illegal U-turn while she was driving Johnston's car.

         (¶ 3} In 1988, after relator beat Laura Phelps, she told the police about the August 1985 incident. Nevertheless, the police did not believe her. In November 1988, the Pennsylvania state police discovered the skeletal remains of a man in a remote rural area near Erie, Pennsylvania. Subsequent investigations revealed the man to be Merle Johnston who had severe fractures in the sternum, ribs, jawbone, and other parts of the skull.

         {¶ 4} In March 1993, Laura Phelps gave a written statement to the police with her lawyer present, recounting the events of August 1985 and the assault on Merle Johnston. The grand jury indicted both relator and her for the aggravated murder of Johnston. The indictment charged relator with (1) aggravated murder with two capital felony murder specifications for aggravated robbery and kidnapping, (2) aggravated robbery, and (3) kidnapping.

         {¶ 5} During pretrial proceedings, the trial court ruled that a common-law marriage existed between Laura Phelps and relator and that under Evid.R. 601 she may elect not to testify. This court affirmed this ruling in State v. Phelps, 100 Ohio App.3d 187, 652 N.E.2d 1032 (8th Dist.1995) ("Phelps I"). Because Laura Phelps was indicating that she would not testify, the state and Laura Phelps entered into an immunity agreement under which the state would dismiss the indictment in the underlying case against her, seek a grant of immunity for her for the murder of Merle Johnston, the homicide of Danny Atkins, and an alleged arson, and would "delete the death penalty specification against Larry Phelps." In return, she would testify truthfully in the underlying case and waive any and all spousal privileges in connection with her testimony.

         {¶ 6} During the trial of the underlying case, Laura Phelps testified as indicated above. Additionally, the state presented other evidence collaborating relator's murder of Johnston. One of Johnston's friends testified that he went drinking with Johnston that night and that Johnston said he was going hunting for a prostitute. Johnston's mother testified that she last saw her son on August 26, 1985, and that several days later, she received a credit card statement with a dishonored check for $350 made out to "Larry Phelps."

         {¶ 7} On May 25, 1995, the jury convicted relator of aggravated murder and the second specification for kidnapping, as well as the counts for aggravated robbery and kidnapping. The trial judge immediately imposed a term of life imprisonment for Count 1, and terms of 10 to 25 years on each of the robbery and kidnapping counts, all consecutive.

         {¶ 8} In the direct appeal, State v. Phelps, 8th Dist. Cuyahoga No. 69157, 1996 Ohio App. LEXIS 4067 ("Phelps II"), this court noted that Laura Phelps testified after being granted immunity and that the state also agreed to drop the death penalty specifications against relator. This court affirmed the conviction after overruling assignments of error on manifest weight, prosecutorial misconduct, admitting other acts evidence, ineffective assistance of trial counsel, lack of territorial jurisdiction, and improper venue.

         {¶ 9} Since 1996, relator has made multiple attempts to vacate his convictions. In 2009, the trial court entertained a motion for new trial based on newly discovered evidence that in 1988 the police hypnotized Laura Phelps to obtain a better recollection of what happened in August 1985. The trial court denied the motion for new trial, and this court affirmed. State v. Phelps,192 Ohio App.3d 484, 2011-Ohio-706, 949 N.E.2d 567 (8th Dist.) ("Phelps III"). In October 2014, relator filed a second motion for new trial based on newly discovered evidence, in which he presented an affidavit, which stated that another man killed Johnston. The trial court denied the motion because the ...


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