Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, JUDGE.
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.
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.
Facts and Procedural History
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.
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
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
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
To support his request for a new trial, Tiedjen argues that
he discovered 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
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
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 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
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)."
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.
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.
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
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.
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.
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.
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.
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.
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
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 * * *").
"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).
Standards of Review of Assigned Errors
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
Motion for Leave to File Motion for New Trial
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
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 -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.
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