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State v. Tiedjen

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-89-238376-ZA

          ATTORNEY FOR APPELLANT Kimberly Kendall Corral

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Frank Romeo Zeleznikar Kristen Sobieski Assistant County Prosecutors

          BEFORE: Blackmon, J., Kilbane, A.J., and S. Gallagher, J.



         {¶1} John Tiedjen ("Tiedjen") appeals from the trial court's denial of his motion for leave to file motion for new trial and assigns the following errors for our review:

I. The trial court erred in failing to grant a new trial or, in the alternative, a more complete hearing on the appellant's motion for a new trial.
II. The trial court erred in failing to grant appellant's motion for new trial where the government withheld Brady evidence that was material to the guilt or non-guilt of the appellant.
III. The trial court erred in limiting the scope of the defense expert's testimony as his expertise and his opinion bore directly on whether the new evidence was material and/or exculpatory.
IV. The trial court erred in failing to properly sanction the government for attempting to admit a falsified and inaccurate affidavit as evidence.

         {¶2} Having reviewed the record and pertinent law, we vacate the court's judgment and remand this case for either: (1) an evidentiary hearing based on State v. Jones, 71 Ohio St.3d 293, 643 N.E.2d 547 (1994), to determine whether Tiedjen is substantially responsible for the missing evidence if the evidence is, in fact, still missing; or (2) a full hearing on Tiedjen's motion for a new trial if the evidence is located. The apposite facts follow.

         I. Facts and Procedural History

         {¶3} Tiedjen and Brian McGary ("McGary") "were as close as natural brothers" and lived in the upstairs apartment of a house on E. 57th Street in Cleveland. On the morning of April 1, 1989, the Cleveland police found McGary's body in the bedroom of the apartment. McGary had been stabbed in the left chest and shot in the forehead with a .22 caliber rifle. McGary was 18 years old at the time of his death. Initially, Tiedjen told his family and friends that he did not know how McGary died, although he believed McGary committed suicide. Tiedjen was arrested later in the day on April 1, 1989. He originally told the police that he did not know how McGary died, but on April 4, 1989, after three days of interrogation, Tiedjen gave a written statement to the police indicating that he shot McGary in self-defense.

         {¶4} On April 18, 1989, Tiedjen was indicted for murder with a firearm specification. On June 2, 1989, 45 days after Tiedjen was indicted, a jury found him guilty as charged, and the court sentenced him to 15-years-to-life in prison for the murder and three years in prison for the firearm specification.

         {¶5} Tiedjen filed a direct appeal, and on February 7, 1991, this court affirmed his convictions. State v. Tiedjen, 8th Dist. Cuyahoga No. 57996, 1991 Ohio App. LEXIS 547 (Feb. 7, 1991). On October 27, 2004, Tiedjen filed a postconviction motion to retain blood evidence, which the trial court denied. This court affirmed the denial of Tiedjen's postconviction motion in State v. Tiedjen, 8th Dist. Cuyahoga No. 85674, 2004-Ohio-4989, concluding that there was no indication that the blood evidence was part of the trial court record.

         {¶6} On October 3, 2016, Tiedjen filed a motion for leave to file a motion for new trial based on newly discovered evidence. The court initially denied this motion; however, the court subsequently vacated the denial and allowed Tiedjen to supplement his motion. Although captioned as a "motion for leave," Tiedjen argues in this document that he is entitled to a new trial under Crim.R. 33 and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

         {¶7} To support his request for a new trial, Tiedjen argues that he discovered[1] 76 crime-scene photographs that were suppressed or never produced by the police, the prosecutor, or both. Tiedjen further argues that the newly discovered photographs differed, allegedly in substance, from the ten photographs of the crime scene that were introduced as evidence during Tiedjen's murder trial. Additionally, Tiedjen argues that these newly discovered photographs are material and exculpatory, because "modern crime scene reconstruction technology has now made it possible to conclusively demonstrate that [McGary] committed suicide; * * * the shooting could not have occurred as the government argued at trial; [and] Tiedjen's alleged confession is demonstrably false." Tiedjen also argues that the photographs show that the government manipulated the crime scene.

         {¶8} On July 25, 2017, September 21, 2017, and October 18, 2017, the court held hearings ("the 2017 hearings") on Tiedjen's motion. At these hearings, all 86 crime-scene photographs were introduced into evidence. On January 9, 2018, the court denied the motion for leave, finding that, although the photographs qualified as newly discovered evidence, Tiedjen "failed to show the photographs are indeed exculpatory material." The court also limited the expert forensic testimony that Tiedjen proffered finding that "improvement in crime scene reconstruction" was not newly discovered evidence. It is from this order that Tiedjen appeals.

         II. Missing Evidence

         {¶9} Prior to beginning our review of this case, we sua sponte raise the following issue: all exhibits from the 2017 hearings, including the newly discovered photographs, copies of the Cleveland Police Department property log book from April 1, 1989, and some of the police reports from the 1989 investigation, are missing from the appellate record. Furthermore, the ten photographs, plus four other exhibits[2] that were introduced into evidence at the 1989 trial, are missing from the trial court record. Additionally, although this would not be part of the record but may be a source of information in light of the missing evidence, the prosecutor's 1989 trial file is missing as well.

         {¶10} The missing evidence in this case was last seen at the 2017 hearings. According to the transcript of these hearings, the exhibits were marked and admitted into evidence. Specifically, the court instructed the parties to give the exhibits to the court reporter. When Tiedjen filed his notice of appeal, he properly instructed the clerk's office to "prepare and assemble the original papers and exhibits filed in the trial court [including the] [c]omplete transcript under Appellate Rule 9(B)."

         {¶11} App.R. 9(E) states, in part, that

[i]f anything material to either party is omitted from the record by error or accident * * *, the parties by stipulation, or the trial court, * * * or the court of appeals, on proper suggestion or of its own initiative, may direct that omission or misstatement be corrected, and if necessary that a supplemental record be certified, filed, and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.

         {¶12} In accordance with State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, when this court discovered that all exhibits from the 2017 hearings, as well as the exhibits from Tiedjen's trial, were not part of the record, we sua sponte informed the parties that the evidence was missing, instructed them to supplement the record pursuant to App.R. 9, and issued three extensions of time to complete the task. To date, the parties concede that the missing evidence cannot be located or recreated, thus rendering compliance with App.R. 9(C) futile. Accordingly, because the parties are unable to supplement the record as ordered, this court has not had the opportunity to view the newly discovered photographs.

         {¶13} At oral argument, defense counsel stated that, in light of the missing evidence, the parties and the court could not comply with App.R. 9, because the photographs could not be recreated or stipulated to. See Crutchfield v. Sharon Twp. Bd. of Zoning Appeals, 9th Dist. Medina No. 04CA0006-M, 2004-Ohio-6265, ¶ 25 (vacating a zoning violation based on missing evidence and finding that a description of photographs in a transcript is inadequate without the photographs themselves. "[W]ithout the actual notice of violation, or a copy of it, and the photographs used to file the violation and relied upon by the BZA, the trial court was limited to ruling on the transcript. Unfortunately, the transcript also creates holes in the evidence because a majority of [the] testimony * * * contains [witnesses] describing the photographs; without the photographs the trial court's review of the testimony is hampered").

         {¶14} In the case at hand, the state conceded that the parties have black-and-white photocopies of two of the missing pictures, which are interspersed into Tiedjen's court filings. However, these two copies are not reprints of the color photographs and do not depict the original photographs in any type of detail. Indeed, they most closely resemble ink blots. The state further conceded that Tiedjen is not at fault in relation to the missing photographs.

         {¶15} Accordingly, we find that the record cannot be settled on remand without the missing photographs. While a trial court record need not be perfect for appellate review, we must balance adequacy of the record with the deprivation of a defendant's due process rights. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 161.

         {¶16} In Skatzes, the trial court "failed to keep control of the charts used by the prosecutors during voir dire." Id. at ¶ 160. The Ohio Supreme Court found that the "whereabouts of the charts were currently unknown." Id. The defendant argued that "effective appellate review is impossible without the exhibits." Id. However, the court concluded otherwise, finding that the defendant: failed to request that the exhibits be admitted into evidence in the trial court; "made no attempt to recreate the contents of the charts pursuant to App.R. 9(C)"; and failed to make a showing of prejudice. Id. at ¶ 163.

         {¶17} Upon review, we find that the case at hand is distinguishable from Skatzes. In Skatzes, the missing evidence was charts used in voir dire that were never made part of the record. Furthermore, the parties in Skatzes did not attempt to comply with App.R. 9.

         {¶18} In the case at hand, Tiedjen presented newly discovered evidence to the trial court in 2016; the photographs were admitted into evidence in open court and made part of the record; Tiedjen has not been dilatory and has proceeded in a timely fashion ever since; the parties attempted, but were unable, to comply with App.R. 9; and the photographs are critical to the disposition of Tiedjen's arguments. Accordingly, we find that Tiedjen has been denied his right to meaningful appellate review.

         {¶19} Upon remand, if the evidence is still missing, we direct the trial court to hold an evidentiary hearing to determine whether Tiedjen is substantially responsible for the missing exhibits pursuant to the Ohio Supreme Court's holding in State v. Jones, 71 Ohio St.3d 293, 643 N.E.2d 547 (1994).

         {¶20} We further note that there is no evidence before this court of any wrongdoing on Tiedjen's part. See In re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109, 821 N.E.2d 568, ¶ 14 ("reject[ing] the notion that an appellant has the duty to supervise the actions of a trial court clerk to ensure the proper transmission of the record"). We also note that it is the duty of the court reporter to correctly prepare the transcript. See App.R. 9(B)(6)(f) and (g) ("A transcript of proceedings under this rule shall [contain] [a]n index to exhibits, whether admitted or rejected, briefly identifying each exhibit [and] [e]xhibits such as papers, maps, photographs, and similar items that were admitted shall be firmly attached, either directly or in an envelope to the inside rear cover * * *").

         {¶21} "In the event the defendant's misconduct is determined not to be the cause of the nonproduction of the appellate record, absence of the record may require reversal of the underlying conviction and the grant of a new trial." Jones, 70 Ohio St.3d 293, 297. See also Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980) (a new trial may be granted if it is determined, after an evidentiary hearing, that the record is incomplete and the moving party is not at fault); State v. Polk, 8th Dist. Cuyahoga No. 57511, 1991 Ohio App. LEXIS 900 (Mar. 7, 1991) (granting a new trial when the transcript was unavailable through no fault of the parties).

         III. Standards of Review of Assigned Errors

         {¶22} We review Tiedjen's assigned errors in part should the missing evidence be located on remand. In summary, we find the following: (1) the court erred by denying Tiedjen's motion for leave; (2) the court abused its discretion by limiting Tiedjen's expert witness's testimony to the extent the testimony was offered to show that the newly discovered evidence was exculpatory and material; and (3) Tiedjen's arguments are not barred by the doctrine of res judicata.

         A. Motion for Leave to File Motion for New Trial

         {¶23} Generally, motions for a new trial must be filed within 14 days of the verdict. Crim.R. 33(B). However, when the motion is based on newly discovered evidence, it must be filed within 120 days after the verdict was rendered. Id

         {¶24} As a exception to this rule, a court may grant leave to file a motion for a new trial if "it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely * * * within the [120]-day period." Id. See also State v. Corrothers, 8th Dist. Cuyahoga No. 75668, 2000 Ohio App. LEXIS 344 (Feb. 3, 2000). Ohio courts have defined "newly discovered evidence" as "evidence of facts in existence at the time of trial of which the party seeking a new trial was justifiably ignorant." (Citations omitted.) State v. Holzapfel, 10th Dist. Franklin Nos. 10AP-17 and 10AP-18, 2010-Ohio-2856, ¶ 20.

         {¶25} As an example, this court recently held that a defendant's "supporting documents clearly and convincingly demonstrate that the appellees were unavoidably prevented from discovering the evidence," because "the police reports at issue were in the exclusive control of the state." State v. Glover, 8th ...

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